Whether Creamy Layer is to be excluded from SEBCs? India and its reservation regime

The Socially and Economically Backward Classes (SEBCs) have been identified by applying various criteria. Though for the purpose of convenience, the list is based on caste, it cannot be said that ‘Backward Class’ has been identified solely on the basis of caste. All the castes which suffered the social and educational backwardness have been included in the list. Therefore, it is not violative of Article 15(1). The only possible objection that could be agitated is that in many of the castes included in this list, there may be an affluent section (Creamy Layer) which cannot be included in the list of SEBCs. When socially and educationally backward classes are determined by giving importance to caste, it shall not be forgotten that a segment of that caste is economically advanced and they do not require the protection of reservation.

It was argued on behalf of the petitioners that the principle of ‘Creamy Layer’ should be strictly applied to SEBCs while giving affirmative action and the principles of exclusion of ‘Creamy Layer’ applied in Indra Sawhney’s case should be equally applied to any of the legislations that may be passed as per Article 15(5) of the Constitution. The Counsel for the petitioners submitted that SEBCs have been defined under section 2 (g) of the The Central Educational Institutions (Reservation in Admission) Act, 2006 (Act 5 of 2007) and the Central Government has been delegated with the power to determine Other Backward Classes.

Poverty, social backwardness, economic backwardness, all are criteria for determination of backwardness. It has been noticed in Indra Sawhney’s case that among the backward class, a section of the backward class is a member of the affluent section of society. They do not deserve any sort of reservation for further progress in life. They are socially and educationally advanced enough to compete for the general seats along with other candidates.

The majority in Indra Sawhney’s case upheld the exclusion of “creamy layer” for the purpose of reservation in Article 16(4). Therefore, we are bound by the larger Bench decision of this Court in Indra Sawhney’s case, and it cannot be said that the “creamy layer” principle cannot be applied for identifying SEBCs. Moreover, Articles 15(4) and 15(5) are designed to provide opportunities in education thereby raising educational, social and economical levels of those who are lagging behind and once this progress is achieved by this section, any legislation passed thereunder should be deemed to have served its purpose.

By excluding those who have already attained economic well being or educational advancement, the special benefits provided under these clauses cannot be further extended to them and, if done so, it would be unreasonable, discriminatory or arbitrary, resulting in reverse discrimination.

Sawant, J. also made observation in Indra Sawhney’s case to ensure removal of ‘creamy layer’. He observed:

…at least some individuals and families in the backward classes – gaining sufficient means to develop their capacities to compete with others in every field…. Legally, therefore, they are not entitled to be any longer called as part of the backward classes whatever their original birth mark – to continue to confer upon such advanced sections from the backward classes the special benefits, would amount to treating equals unequally violating the equality provisions of the Constitution.

Secondly, to rank them with the rest of the backward classes would equally violate the right to equality of the rest in those classes, since it would amount to treating the unequals equally…. It will lead to perverting the objectives of the special constitutional provisions since the forwards among the backward classes will thereby be enabled to tap up all the special benefits to the exclusion and to the cost of the rest in those classes, thus keeping the rest in perpetual backwardness.

What should be the para-meters for determining the “creamy layer” group ?

After the decision in Indra Sawhney’s case (supra), the Government of India, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) issued an Office Memorandum dated 08.09.1993 providing for 27% reservation for Other Backward Classes.

Following the Supreme Court judgment in the Indra Sawhney v. Union of India the Government of India appointed an Expert Committee to recommend the criteria for exclusion of the socially advanced persons/sections from the benefits of reservations for Other Backward Classes in Civil Posts and Services under the Government of India.

Column 3 of Schedule to the Office Memorandum contained persons/sections to whom the 27% reservation shall not apply. The criteria has been modified throughout the years.

It was made clear that same principle of determining the creamy layer for providing 27% reservation for backward classes for appointment need not be strictly followed in case of reservation envisaged under Article 15(5) of the Constitution. As pointed by Shri Ravivarma Kumar, learned Senior Counsel, if a strict income restriction is made for identifying the “creamy layer”, those who are left in the particular caste may not be able to have a sufficient number of candidates for getting admission in the central institutions as per Act 5 of 2007.

Government can make a relaxation to some extent so that sufficient number of candidates may be available for the purpose of filling up the 27% reservation. It is for the Union Government and the State Governments to issue appropriate guidelines to identify the “creamy layer” so that SEBC are properly determined in accordance with the guidelines given by this Court. If, even by applying this principle, still the candidates are not available, the State can issue appropriate guidelines to effectuate the implementation of the reservation purposefully.

“Backward class” defined in Section 2(g) does not exclude “creamy layer”. The SC, therefore, made it clear that backward class as defined in Section 2(g) of Act 5 of 2007 must be deemed to have been such backward class by applying the principle of exclusion of “creamy layer”.

In addition, right from the beginning, the Scheduled Castes and Scheduled Tribes were treated as a separate category and nobody ever disputed identification of such classes. So long as “creamy layer” is not applied as one of the principles of equality, it cannot be applied to Scheduled Castes and Scheduled Tribes. So far, it is applied only to identify the socially and educationally backward classes. The SC made it clear that for the purpose of reservation, the principles of “creamy layer” are not applicable for Scheduled Castes and Scheduled Tribes.

Main Source: Ashoka Kumar Thakur v. Union of India (UOI) and Ors. (OBC Judgment) (2008) 6 SCC 1

Author: Anonymous