By Elton Gomes
The Supreme Court on Wednesday ruled that the concept of creamy layer will now be applicable in reservations for Scheduled Castes and Scheduled Tribes. A constitution bench headed by Chief Justice of India Dipak Misra announced that a constitutional court will be empowered to abolish any reservation meant for a creamy layer among the most backward classes.
Justice Rohinton F. Nariman authored the judgment on behalf of the bench and stated that the principle of the creamy layer can be applied by a court on the touchstone of equality among the same group or sub-group.
What did the court say?
“The whole object of reservation is to see that backward classes of citizens move forward so that they may march hand in hand with other citizens of India on an equal basis. This will not be possible if only the creamy layer within that class bag all the coveted jobs in the public sector and perpetuate themselves, leaving the rest of the class as backward as they always were,” the bench noted, News18 reported.
The bench said that when a court applies the creamy layer principle to Scheduled Castes and Scheduled Tribes, it does not seek to make any change to the Presidential List under Articles 341 or 342 of the Constitution of India.
“The caste or group or sub-group named in the said List continues exactly as before. It is only those persons within that group or sub-group, who have come out of untouchability or backwardness by virtue of belonging to the creamy layer, who are excluded from the benefit of reservation,” the bench said, according to News18.
The bench did not entertain the Centre’s plea to do away with the concept of creamy layer among the SC/ST groups.
The top court said that it was incorrect to conduct a test to assess backwardness. The bench noted that the Scheduled Castes and the Scheduled Tribes are the most backward or the weakest of the weaker sections of society, and are hence presumed to be backward. The bench further held that states will no longer be required to collect quantifiable data to determine backwardness of these groups, News18 reported.
Centre says creamy layer cannot apply to SC/STs
In August, the Centre told the Supreme Court that the creamy layer concept cannot be applied to the Scheduled Caste/Scheduled Tribe communities. Presenting his arguments before a five-judge bench led by CJI Misra, Attorney-General K.K. Venugopal argued that SCs/STs are a “homogenous group and any action to regroup them based on economic or social advancement would not be appropriate.”
Venugopal further said that rigorous modalities were proposed so that other communities can also be included in the list of SCs/STs. “For inclusion of communities in the list of the SCs, one of the important determinants is the traditional practice of untouchability,” Venugopal argued, the Hindu reported.
Supreme Court asks whether creamy layer can be extended to SC/STs
The Supreme Court wondered, in August, if the creamy layer concept could be extended to Scheduled Castes and Scheduled Tribes. The creamy layer was then applicable only to Other Backward Classes.
“Suppose there was a caste which was backward 50 years ago and now it has sections of creamy layer. Why can’t court say don’t treat unequals as equals… because the whole idea (behind reservation) is to give a leg up to those deserving, not to someone who already has both legs up on the fan,” Justice R.F. Nariman said, the Indian Express reported.
CJI Misra, who was heading the bench, then posed a question as to what would happen if a “person from the reserved category becomes Secretary in a state… will it be logical to treat his family as backward for promotion with accelerated seniority?”
The creamy layer in India
The term “creamy layer” was first used during the SC judgment in the Indira Sawhney v. Union of India case in 1992. The case concerned the Mandal Commission recommendations that demanded 27% reservations for other backward classes (OBCs) in central government jobs.
The SC’s recent ruling does not seem to address the fundamental problem of untouchability. P.S. Krishnan, secretary in the Union Ministry of Welfare when reservation for the Other Backward Classes was implemented in 1990, stated that for Dalits and Adivasis, backwardness cannot be judged through the creamy layer framework, instead, it is based on the fact that they are subject to untouchability.
“A person might even become a collector,” said Krishnan. “But has society stopped treating them as untouchables?” Scroll.in reported. Indira Jaisingh, a petitioner in the present case, claims that a constitutional amendment could be in the pipeline.
Elton Gomes is a staff writer at Qrius