The story so far: On December 2, the Central government asked the Supreme Court of India to refer to a seven-judge Bench the question whether the creamy layer concept should apply (or not) to Scheduled Castes and Scheduled Tribes while giving them reservation in promotions. Attorney General K.K. Venugopal urged the court to reconsider a past ruling and refer the issue to a larger Bench.
What does the government want?
The Narendra Modi government wants the Supreme Court to reconsider its stand that socially, educationally and economically advanced “cream” of Scheduled Castes/Scheduled Tribes (SC/ST) communities should be excluded from the benefits of reservation in government services.
The government has asked the Chief Justice of India, Sharad A. Bobde, to refer a September 26, 2018 judgment of a five-judge Bench of the Supreme Court in Jarnail Singh versus Lachhmi Narain Gupta to a larger Bench of seven judges for a review. The court in the Jarnail Singh case had upheld the applicability of creamy layer to affluent SCs and STs.
In Jarnail Singh , the court had agreed with its 12-year-old verdict in the M. Nagaraj case that the creamy layer applied to SCs and STs in order to prevent the socially advanced in a backward community or class from eating the whole cake while leaving the weak among them impoverished.
But the government believes that the ‘creamy layer’ will become a ruse to deprive the backward classes of the benefit of reservation. The Attorney-General of India, K.K. Venugopal, said the SC/ST community as a whole still continues to bear the yoke of centuries’ old backwardness.
What is the creamy layer concept?
The ‘means-test and creamy layer’ first finds expression in the Supreme Court’s landmark judgment in Indra Sawhney versus Union of India , delivered by a nine-judge Bench on November 16, 1992. The judgment recorded lawyers describing the ‘creamy layer’ as “some members of a backward class who are highly advanced socially as well as economically and educationally... They constitute the forward section of that particular backward class — as forward as any other forward class member. They lap up all the benefits of reservations meant for that class, without allowing benefits to reach the truly backward members of that class”.
The Indra Sawhney judgment had upheld the government’s move, based on the Mandal Commission report, to give 27% reservation to Other Backward Classes. But it held that the creamy layer (socially advanced persons) “can be and must be excluded from backward classes”. The court said “economic criterion could be adopted as an indicium or measure of social advancement” in order to identify members of a creamy layer in a class or a group. The court asked the Central government to fix the norms for income, property and status for identifying the creamy layer. In 1993, the creamy layer ceiling was fixed at ₹1 lakh. It was subsequently increased to ₹2.5 lakh in 2004, ₹4.5 lakh in 2008, ₹6 lakh in 2013, and at ₹8 lakh since 2017.
How was the creamy layer made applicable to SC/ST members?
The Indra Sawhney verdict had held there would be reservation only in initial appointments and not promotions. The Centre introduced Article 16(4A) through the Constitution (Seventy-seventh Amendment) Act on May 31, 1995 to overcome the effect of this judgment and continue with its policy of extending quotas for SCs and STs in promotions, reasoning that their representation in States’ services has not reached the required level.
Article 16(4B) was also introduced in the Constitution to carry forward unfilled vacancies in subsequent years and not apply the 50% cap on reservation to these vacancies. Article 335 of the Constitution was amended in 2001 to allow relaxations in qualifying marks and lowering of standards in favour of SCs/STs. The amendments were challenged in the Supreme Court and referred to a five-judge Bench in the M. Nagaraj case.
In 2006, the five-judge Bench, in Nagaraj , laid down three conditions for promotion of SCs and STs in public employment. The court held that the government cannot introduce quota in promotion for its SC/ST employees unless it proves that the particular community was backward, inadequately represented and providing reservation in promotion would not affect the overall efficiency of public administration. The opinion of the government should be based on quantifiable data.
The judgment in Nagaraj also held that the creamy layer was applicable to SCs and STs in government promotions.
What happened in the ‘Jarnail Singh’ judgment?
In Jarnail Singh , another five-judge Bench led by then Chief Justice of India Dipak Misra upheld the 2006 verdict’s reasoning that the creamy layer principle was based on the right to equality. The court held that quota benefits should go to the weakest of the weak and not be snatched away by members of the same class who were in the “top creamy layer”. Justice Rohinton F. Nariman, who wrote the September 26, 2018 judgment in the Jarnail Singh case, said the creamy layer concept ensured that only the genuinely deserving members of an SC/ST community get reservation benefits.
The 2018 judgment, while modifying the part in the Nagaraj verdict which required States to show quantifiable data to prove backwardness, rejected the Centre’s argument that Nagaraj had misread the creamy layer concept ushered in by Indra Sawhney by applying it to SCs and STs.
Justice Nariman had observed in his judgment for the court: “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 2018 judgment said that when the court applied creamy layer to SCs and STs in the Nagaraj case, it did not tinker with the Presidential List under Articles 341 or 342 of the Constitution. The caste, group or sub-group named in the List had remained intact.
The court had thus refused the government’s plea to refer the case to a seven-judge Bench.