The creamy layer and reservation: A historical review and an Indian perspective

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admin November 5, 2021
Updated 2021/11/05 at 7:36 AM

On August 24, a Supreme Court Division Bench headed by Justice L. Nageswara Rao noted that economic criteria alone cannot be used to define the “creamy layer” of a backward class, and that other variables such as social progress, education, and employment must also be considered. The decision came in response to a writ suit brought by the Pichra Warg Kalyan Mahasabha in Haryana, which challenged two notifications issued by the state government in 2016 and 2018 under the Haryana Backward Classes (Reservation in Services and Admission in Educational Institutions) Act, 2016.

What were the previous notifications?

Backward class individuals with a gross yearly income of more than Z6 lakh were designated as “creamy layer” in a 2016 notice. It said that families from the backward classes earning less than n lakh will be given precedence over those earning more than Z3 lakh but less than Z6 lakh. The notifications were ruled invalid by the Supreme Court as a “flagrant breach” of the 2016 Act. It claimed that Section 5 (2) of the Act obliged the state to examine social, economic, and other criteria in order to identify and remove members of the backward class as ‘creamy layer.’

Who is a part of the ‘creamy layer’?

The Supreme Court’s Indra Sawhney decision, issued by a nine-judge Bench on November 16, 1992, established the “creamy layer” notion. Though the court supported the government’s decision to grant Other Backward Classes a 27 percent quota based on the Mandal Commission’s findings, it deemed it essential to identify parts of the backward classes who were already “well progressed socially, economically, and educationally.” The court concluded that among the backward groups, these rich and advanced individuals formed the ‘creamy layer.’ The court ordered state governments to identify the ‘creamy layer’ and exclude them from reservation. However, certain states, like as Kerala, have been slow to execute the decision. The Indra Sawhney-ll case, which was reported in 2000, was the result of this. The court even went so far as to determine the “creamy layer” among the backward classes in this case. The ruling said that those from backward classes who worked in higher-ranking positions like as IAS, IPS, and All India Services had achieved a greater degree of social progress and economic standing, and therefore were not considered backward. Such individuals were to be regarded as ‘creamy layer’ without further investigation. Similarly, individuals 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. Thus, a study of the Indra Sawhney decisions reveals that identifying the “creamy layer” required social progress, including education and job, rather than simply money.

Why is drawing a line so difficult?

The identification of the ‘creamy layer’ has proven difficult. The fundamental issue here is how wealthy or advanced a backward class portion should be in order to be excluded from the reservation. In the Indra Sawhney case, Justice Jeevan Reddy questioned “how and where to draw the boundary” between the worthy and the creamy layer among the backward classes. “The foundation of exclusion should not just be economic,” he said, “unless, of course, economic progress is so great that it inevitably leads to social advancement.” The difficulties of defining the creamy layer only on the basis of cost have been addressed by Justice Reddy. In rural India, for example, an individual earning 236,000 rupees per month would be considered prosperous. In a big metropolis, however, the same income may not mean much. Justice Reddy cautioned in this case “While a person’s money may be used to gauge his social progress, the limit set should not be such that it takes away with one hand what is provided with the other. The income ceiling must be set in such a way that it represents and signifies social progress “.

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