Central government has 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.

What’s the issue?

• The Centre has asked the CJI 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.
• 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.

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.
• ‘Creamy layer’ are “some members of a backward class who are highly advanced socially as well as economically and educationally.

Constitutional basis- Article 335:

• Article 335 recognises that special measures need to be adopted for considering the claims of SCs and STs in order to bring them to a level-playing field.

Need: Centuries of discrimination and prejudice suffered by the SCs and STs in a feudal, caste-oriented societal structure poses real barriers of access to opportunity. The proviso contains a realistic recognition that unless special measures are adopted for the SCs and STs, the mandate of the Constitution for the consideration of their claim to appointment will remain illusory.

How was the creamy layer made applicable to SC/ST members?

1. Indra Sawhney vs Union of India:

In its landmark 1992 decision in Indra Sawhney vs Union of India, the Supreme Court had held that reservations under Article 16(4) could only be provided at the time of entry into government service but not in matters of promotion. And the principle would operate only prospectively and not affect promotions already made and reservation already provided in promotions shall continue in operation for a period of five years from the date of the judgment.

More significantly, It ruled that the creamy layer can be and must be excluded.

On June 17, 1995, Parliament, acting in its constituent capacity, adopted the seventy-seventh amendment by which clause (4A) was inserted into Article 16 to enable reservation to be made in promotion for SCs and STs.

2. The validity of the amendment was challenged before the Supreme Court in the Nagaraj case (2006). Upholding the validity of Article 16 (4A), the court then said that it is an enabling provision. “The State is not bound to make reservation for the SCs and STs in promotions. But, if it seeks to do so, it must collect quantifiable data on three facets — the backwardness of the class; the inadequacy of the representation of that class in public employment; and the general efficiency of service as mandated by Article 335 would not be affected”.
3. The court ruled that the constitutional amendments do not abrogate the fundamentals of equality.

What are the concerns?

• Against Precedence – It has been clearly stated in Indra Sawhney (1992) case, that any discussion on creamy layer “has no relevance” in the context of SC/STs.
• Representation – Going by the creamy layer ceiling of Rs 8 lakh per annum, even “Group D” functionaries will come under the definition of creamy layer.
• But notably, the SC/STs lack representation mainly at the Group A level which do not have direct recruitment provisions.
• Promotions are the way through which members of SC/ST communities make it to this level.
• So the consequence of the judgement will be that promotions will stop even at the Group D and Group C levels.

• Protection – The SC/STs are given job reservations not because they are poor but because they are excluded.
• The Constitution made the Scheduled Castes and Scheduled Tribes as a separate category of subjects to protect them from caste aggression.
• It was also to help them gain the strength they need to withstand it and to grow autonomously.
• The first part of Article 335 stipulates job reservations for SC/STs as a right of representation, not as a welfare measure.
• However, the creamy layer among SC/ST employees helps fulfil the second part of Article 335 that requires maintaining the “efficiency of administration”.

• So the recent judgement largely undoes the affirmative action of ensuring equality of opportunity.
• Right to opt-out – The court also failed to address this, as, at present, an SC/ST candidate does not have the right to reject reservations.
• It is also a punishable offence to withhold one’s caste status while seeking government employment.
• But allowing SC/ST candidates to compete in the general category would help thousands to leave the space for the less privileged among them.
• Also, by competing as non-reserved candidates, the well-qualified SC/ST group would corner a substantial number of open posts.
• So theoretically, SC/STs would end up garnering more posts than at present.

Need of the hour:

A comprehensive piece of legislation that would deal with ambiguity related to reservation in promotions is needed. The Act should try to rectify the current issues such as

• Undefined parameters of efficiency.
• Absence of transparency in evaluating backwardness and efficiency of STs/SCs
• Presence of ambiguity regarding the whole process of promotions in government services.

So taking in view all the dimensions one can fairly conclude that India needs Affirmative action and that too in its pristine form as envisaged originally in our Constitution. No power, authority, opinion, movement should distort or destroy what is legally and constitutionally due to the vast multitudes of disadvantaged sections of our “sala” society in the name of “advanced development”.