Exclusion from reservations and the “creamy layer”

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admin November 4, 2021
Updated 2021/11/05 at 6:08 AM

For over three decades, the Supreme Court has upheld the notion that economic criteria alone cannot be used to label a member of the Backward Class as a “creamy layer.” Other elements, such as social progress, education, and job, are also important.

What exactly is the creamy layer?

The creamy layer idea was first established in the Supreme Court’s Indra Sawhney decision, which was handed down on November 16, 1992 by a nine-judge panel. Though the court accepted the government’s decision to award Other Backward Classes a 27 percent quota based on the Mandal Commission report, the court felt it was important to identify portions of the Backward Classes who were already “well progressed socially, economically, and educationally.” These rich, advanced members, according to the court, create the “creamy layer” among them. The decision ordered state governments to identify the “creamy layer” and exclude them from reserve protections.

Recent Supreme Court ruling

The Haryana Backward Classes (Reservation in Services and Admission in Educational Institutions) Act of 2016 was passed by the Haryana State government in 2016. Backward Class people with a gross yearly income of more than Rs. 6 lakhs were designated as “creamy layer” in the notice. It said that families from the Backward Class who earn less than Rs. 3 lakh would be given priority over those who earn more than Rs. 3 lakh but less than Rs. 6 lakh. These notices were appealed to the Supreme Court. The Supreme Court ruled that the removal of the creamy layer could not be based only on economic considerations. The notifications were declared a “flagrant breach” of the 2016 Act, according to the Supreme Court, which stated that Section 5 (2) of the Act requires the State to examine social, economic, and other reasons in identifying and excluding Backward Class individuals as “creamy layer” members.

What determines the creamy layer?

Certain states, such as Kerala, have been slow to execute the above-mentioned SC decision (identifying Creamy layer & excluding them). This prompted a follow-up investigation into the Indra Sawhney-II case, which was first disclosed in 2000. In this case, the court went so far as to define a “creamy layer” among the Backward Classes. The ruling said that those from lower socioeconomic classes who worked in higher-ranking positions such as IAS, IPS, and All India Services had achieved a better degree of social development and economic standing, and hence were not allowed to be labelled as backward. Without further investigation, such people were to be classified as “creamy layer.” Similarly, those with adequate money who were able to hire others should be considered “outside the Backward Class” and treated as such. Other groups included those with larger agricultural holdings or property income, among others. Thus, a study of the Indra Sawhney decisions reveals that identifying the “creamy layer” required social development, including education and job, rather than merely riches.

Identification of creamy layer is required

In the 2018 case of Jarnail Singh vs. Lachhmi Narain Gupta, Justice Nariman stated that unless the creamy layer concept was followed, individuals who were truly deserving of reservation would be denied entry. He went on to say that the idea of the creamy layer was founded on the fundamental right to equality. Benefits are largely taken away by the backward caste or class’s top creamy layer, keeping the weakest among the poor always weak and leaving the lucky layers to eat the entire cake.

Why is it not feasible to define a creamy layer purely based on economic criteria?

Identification has proven to be a difficult task. The main concern here is how affluent or advanced a Backward Class sector should be in order to attract reservation exclusion. In other words, determining “how and where to draw the line” between the worthy and the creamy layer becomes difficult when economic reasons are used as the only criterion for selection. The difficulties of determining creamy layer only on the basis of economic considerations were emphasised by Justice Reddy in the Indra Sawhney decision. In rural India, for example, an individual earning ₹36,000 per month would be considered prosperous. In a big metropolis, however, the same wage may not be worth much. A member of the Backward Class, such as a carpenter, travels to the Middle East and works as a carpenter. If we calculate his annual salary in Rupees, it is rather substantial by Indian standards. When just economic factors are examined, he is torn between being included in the Backward Class and being omitted. “The foundation of exclusion should not just be economic,” Justice Jeevan Reddy said, “unless, of course, economic development is so great that it inevitably entails social advancement”.

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