Creamy layer: A proper yardstick to determine backwardness within Scheduled Castes/Tribes

On August 1, a seven-judge Constitution Bench of the Supreme Court in State of Punjab v. Davinder Singh by a 6:1 majority, held that the state governments have power to sub-classify within the Scheduled Castes for providing reservations.

The present article discusses the yardstick and criteria laid down for the said sub-classification, because the implementation, if proper, will ensure the “real equality” to the deserving people amongst the Scheduled Castes/Scheduled Tribes (SCs/STs).

Chief Justice of India DY Chandrachud (for himself and Manoj Misra, J.) held that though the State can adopt different a yardstick to determine inter-se backwardness, it should determine the same based on “inadequacy of effective representation”. He observed that the states have assessed representation on numerical perspectives, by comparing representation of the “class” in all services to the total population in the state. For example, if 33 SC employees work in lower posts and 2 SC employees work in higher posts out of the state’s total population of 100, the states called it as “adequate representation” because total 35% of SCs are given representation in the state.

After rejecting the numerical representation, he then held that if the objective of Article 16(4) of the Constitution is to be truly achieved, then “inadequacy of representation” must be determined by assessing the representation of “class” across various posts in the state. In other words, the representation of the said “class” shall be both in higher and lower level of the posts in the state. “Social backwardness” is also to be proved by the state while proving “inadequacy of effective representation”.

He further held that the states can either provide certain percentage of seats to the sub-class and the unfilled posts can be made available to other categories in SCs (preference model). Alternatively, the states can reserve certain percentage of seats exclusively for this sub-class and carry-on the unfilled seats for the subsequent year.

While the other four judges (Justices BR Gavai, Vikram Nath, Pankaj Mithal and Satish Chandra Sharma) do not specifically comment on the afore-discussed view of the CJI, they agreed that the state has to justify through empirical data that a sub-class was not adequately represented. They further held that to achieve “real equality” as enshrined under the Constitution, the state must evolve a policy for identifying the “creamy layer” from the SCs and STs so as to exclude them from the benefit of affirmative action.

The “creamy layer” concept, though was first coined by Justice VR Krishna Iyer in State of Kerala v. NM Thomas, and was developed in Indra Sawhney v. Union of India. In the latter case, the Court, while upholding 27% reservation for Other Backward Classes (OBCs) and holding that the state cannot exceed the 50% limit for reservations, held that those who come under the “creamy layer” should be excluded from the benefit of OBC reservation.

Based on this case, the Government of India came up with an Office Memorandum in 1993 to exclude people who fall under the “creamy layer” from reservation in Central government posts. OBCs - either of whose parents hold Constitutional posts or hold Class I/ Group A Officer posts or are employed in PSUs or both parents are in Class II post or if father recruited in Class II gets promoted to Class I before attaining 40 years age - come under “creamy layer”. Apart from the above, presently, OBCs whose parental income, after excluding income from salaries or agriculture, exceeds ₹8 lakh per annum in the last three consecutive financial years, also comes under “creamy layer”. The Central government’s criteria are being substantially followed by the states. Whenever the states have come up with “creamy layer” solely on economic criteria, the courts have stuck them down. [Pichra Warg Kalyan Mahasabha Haryana v. State of Haryana]. Thus, the “creamy layer” concept is individual-oriented, whereas, sub-classification is group-oriented.

Justice Gavai (and three other judges who agreed with him) observed that the Constitution itself recognises the SC/STs as the most backward section of the society. He held that the parameters for exclusion of SC/STs shall be different from that of other classes (OBCs). He cites one example: If a person from the SC/ST community has bagged a peon or sweeper post through reservation, then he would continue to be socially, economically and educationally backward. Whereas if the same SC/ST person, by availing reservation, has reached high echelons in life, he shall be discontinued from availing the benefit of affirmative action.

In the Central government’s memorandum for determining “creamy layer” in OBCs, the children of Class-III and Class-IV employees (peon or sweeper class) are anyways not included, and those who advanced socially upwards are included in the “creamy layer” principle. Thus, it is difficult to discern what higher threshold was being suggested by Justice Gavai. Maybe the economic criteria should not be included for the "creamy layer" of SC/STs. Also, the Court has not specified whether “creamy layer” should be applicable after sub-classifying within SC/STs based on “inadequate representation” of that sub-class (group) or the “creamy layer” itself is the criteria for sub-classification.

In the author’s view, the former is viable and will ensure adequate representation. For instance, in Telangana, the Backward Classes (BCs) are sub-categorized into A, B, C & D category based on backwardness of certain castes within BCs. BC-A gets higher percentage of reservation followed by B, C & D categories. After this sub-categorisation within BCs, the “creamy layer” principle is made applicable, which ensures that the most backward individuals among them get the benefit of reservation.

Though the Supreme Court has not determined “creamy layer” and also as the same is policy decision of the state, the introduction of “creamy layer” within the Scheduled Castes will help in achieving “real equality”. Though the sub-classification within SC/STs based on the criteria determined by CJI Chandrachud will bring certain sub-classes who have faced economic, social and educational backwardness within the umbrella of “inadequately represented class”, this sub-classification, which depends on the subjective satisfaction of the executive, is group-oriented. Also, the state government, due to political motives, can determine any SC as “inadequately represented”.

Although,any sub-classification is subject to judicial review where the state has to satisfy the twin tests of “intelligible differentia” and “rational nexus” of Article 14, with the application of the “creamy lawyer” principle, which is individual-oriented, the most backward and deserving individuals among the sub-class will get the benefit of affirmative action of the state. Hence, it is expected that after coming up with quantifiable and empirical data to determine “inadequately represented” castes within the SC/STs, the states should evolve the “creamy layer” principle to churn out the deserving individuals from the sub-class within the SC/STs.

Baglekar Akash Kumar is an Advocate practicing before the High Court of Telangana.