Creamy layer is a term used in Indian politics to refer to 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.[1] The concept has its genesis in a 1992 Supreme Court judgment in the Indira Sawhney vs Union of India AIR 1993 SC 477 case. Following is the table tracing the history of Creamy Layer in India –
1979
· The Mandal Commission was set up under Article 340 of the Constitution. It laid down 11 criteria for determining social and economic backwardness.
1990
· 27% reservation was provided in central government jobs for OBCs. This was challenged in the Supreme Court by several writ petitions
1992 Indira Sawhney case
· A Nine-judge bench had upheld reservations for OBCs.
· The court ruled that a creamy layer among the backward class of citizens must be excluded “by fixation of proper income, property, or status criteria” by the central government.
· The Supreme Court also held that reservations in appointments under Article 16(4) of the Constitution do not apply to promotions.
1993
· Following the SC judgment, the Department of Personnel and Training had laid down categories under the creamy layer.
· Sons and daughters of Group A/Class I Officers of All India Central and State Services (direct recruits), Group B/Class II Officers of Central and State Services (direct recruits), employees of Public Sector Undertakings, etc. and armed forces fall within the creamy layer, and, therefore, they would not be entitled to reservation benefits.
· The Supreme Court also held that reservations in appointments under Article 16(4) of the Constitution do not apply to promotions.
1994
· Following the SC judgment, the Department of Personnel and Training had laid down categories under the creamy layer.
· Sons and daughters of Group A/Class I Officers of All India Central and State Services (direct recruits), Group B/Class II Officers of Central and State Services (direct recruits), employees of Public Sector Undertakings, etc. and armed forces fall within the creamy layer, and, therefore, they would not be entitled to reservation benefits.
· The order also included within the creamy layer sons and daughters of people with a gross annual income of Rs 1 lakh above or possessing wealth above the exemption limit as prescribed under the Wealth Tax Act for a period of three consecutive years.
· However, the ceiling has been revised only four times since 1993 — the last time it happened was in September 2017 when the cap was raised to Rs 8 lakh per annum.
Amendments that followed
Constitution (77th Amendment) Act, 1995
· Inserted Article 16(4A), thereby enabling the government to make laws providing quota in promotion for SCs and STs & Article 16(4B), providing that reserved promotion posts for SCs and STs that remain unfilled can be carried forward to the subsequent year.
· While the SC judgment in the Indira Sawhney case capped the reservation quota at 50 %, the government’s amendment ensured that the 50 % ceiling for these carried-forward unfilled posts does not apply to subsequent years.
Article 335 of the Constitution was amended in 2001.
· While Article 335 specified that reservations have to be balanced with the “maintenance of efficiency”, the 2001 amendment stated that the Article will not apply to the government if it relaxes evaluation standards in matters of promotion.
2006
These amendments led to the 2006 Supreme Court judgment in
M. Nagaraj vs Union of India WP (civil) 61 of 2002
· A five-judge bench approved Parliament’s decision to extend reservations for SCs and STs to include promotions with three conditions.
· It required the government to provide proof for the backwardness of the class benefitting from the reservation, for its inadequate representation in the position/service for which reservation in promotion is to be granted, and to show how reservations in promotions would further administrative efficiency.
· The judgment also held that the creamy layer concept was applicable to SCs and STs.
2018
The M. Nagaraj case judgment was challenged in the Jarnail Singh & Ors vs. Lacchmi Narain Gupta & Ors. SLP (Civil) No. 30621 of 2011
· Jarnail Singh case via two reference orders, the latest one having been issued in November 2017, stating that it needed to be referred to a seven-judge bench.
· The top court refused to refer it to a larger bench, asserting that even though it had not expressly chosen to apply the creamy layer principle to SCs and STs in its verdict in the Indira Sawhney case, the principle can still be applied in view of the principles of equality enshrined in Constitution.
· The court also asserted that the SC and high courts would be well within their jurisdiction to exclude creamy layer from getting reservations, rejecting the central government’s submissions that only the Parliament can exclude or include people from SC/ST lists.
· “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,”
[1] Rajagopal, Krishnadas (8 December 2019). "Why does government want Supreme Court to reconsider stand on SC/ST creamy layer?". The Hindu.
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