Creamy Layer Principle And Why It Should Be Applicable On Schedule Castes And Schedule Tribes
"Creamy layer principle and why it should be applicable on schedule castes and
schedule tribes"
Abstract:
The question is of paramount importance that whether still in 2024 each and every person falling under a homogeneous group of schedule castes and schedule tribes irrespective of their current economic, educational or social status needs reservation or deserves to be uplifted ? hence it becomes significant to observe the developments country has gone through, especially after the independence and co-relate it with the reservation policy to increase its applicability and efficiency in contemporary era.
Here I have discussed about how and why reservation policy was an significant and essential step to maintain equality and unity in India. Further. The concept of creamy layer prevalent in India has been explained and why it is important to be implemented on schedule castes and schedule tribes is discussed by showing different data and making comparisons, then the information is backed up by certain case laws by the Supreme court of India and then conclusion has been derived.
Introduction
Historical background of reservation and its contemporary situation
It is the old age rigid caste system which led to the origin of reservation policies in India as it divided the society according to the four main castes which were Brahmans, kshatriyas, vaishyas and shudras. Shudras or later known as harijans were considered lowest in the hierarchy who just worked as slaves for the upper three castes and were also treated as untouchables. Even after the independence of India untouchability and discrimination with dalits was at its peak which made them socially, educationally and economically backward class therefore to uplift them it was necessary to reserve some quotas and seats in jobs, education, legislature etc.
It was B.R Ambedkar who proposed the concept of reservation in constituent assembly debates and later on many Constitutional provisions were added to the Constitution of india in order to firm the concept of reservation. However the policy of reservation was designed as an adhoc policy for ten years.
But it is continuing and getting extension after the end of every ten years which led to almost 70 years of positive discrimination and consequently the evil of untouchability is almost diminished from the Indian society but caste and class equality all over the territory is still to be achieved but meanwhile positive impact of reservation can be clearly observed in the Modern India as many castes among SC's and ST's have become affluent and are sitting in legislature, bureaucracies, judicial.
On other high governmental posts moreover many of them have become economically sound as well therefore this directly focuses on the question of increasing intercaste inequalities among them along with the politics of casteism which is at its peak leading towards the over consciousness of caste identity and obstructing the process of national integration. Moreover, castes have been used as instruments for maintaining the vote banks of different political parties. Thus, these issues heavily demands the regulation and alteration of reservation policy as per the needs of Modern India of 2024.
What is creamy layer?
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 term was originally introduced in the context of reservation of jobs for certain groups in Indra Sawhney & Others v. Union of India case in 1992[2].The judgment held that persons from backward classes who occupied posts in higher services such as IAS, IPS and All India Services had reached a higher level of social advancement and economic status, and therefore, were not entitled to be treated as backward.
Such persons were to be treated as 'creamy layer' without any further inquiry moreover people with sufficient income who were in a position to provide employment to others should also be taken to have reached a higher social status and treated as "outside the backward class" and Other categories included persons with higher agricultural holdings or income from property[3].after this income ceilings of families under backward classes were fixed for instance it was 4.5 lakhs in 2008 and then 6 lakhs in 2013 further increased to 8 lakhs in 2017 according to which creamy layer was excluded from the other backward classes so that reserved seats and quotas provided by the Government of India shall be enjoyed by the section of the society which is still educationally, socially and economically weaker of weakest. Thus, a reading of the Indra Sawhney judgments shows that social advancement, including education and employment, and not just wealth, was key to identify the 'creamy layer'.
Rationale why Creamy Layer principle needs extension to Schedule castes and Schedule tribes.
It has been always argued that concept of creamy layer could not be extended to schedule castes and schedule tribes because economic criteria cannot be the sole basis to detract the reservation benefits from the individuals however people under the categorization of other backward classes were also socially and educationally backward classes but not the economically backward as defined by The Constitution of India but still concept of creamy layer which works basically on income of a family making it an economical basis is applicable on them, this clearly states that Schedule castes and Schedule tribes should not be a exception to it otherwise it could be a great inequality with the people falling under other backward classes.
Does children of an class 'A' officer or a person with millions of rupees worth land or Constitutional functionaries such as President, judges of the Supreme court and High court, employees of central and state bureaucracies above a certain level need reservation under schedule castes or schedule tribes the answer if given by average human intelligence will be 'NO' because people with such economically as well as socially reputed family background cannot be backward or untouchable in any such way therefore excluding them on the basis of income will be totally reasonable as it is with other backward classes.
Moreover the principle of creamy layer could be applicable on schedule castes and tribes without making changes to Article 341 and Article 342 of the Constitution of India because there is no need to exclude any particular caste from the presidential list (which declares certain castes to be considered under scheduled caste or schedule tribe by power given to central executive-The President by The Constitution of India) but the purpose is to regulate the system of reservation so that only affluent groups among them should not eat all the cake and weakest among them should get benefited and uplifted in order to maintain equality in society.
Intercaste Inequalities
The other major consequent of not excluding creamy layer fro schedule castes and schedule tribes is the growing intercaste differences within SC and ST's. For instance Caste groups such as Jatavs (leatherworkers) in the north, Mahars in the west, Malas in the south, and Namasudras in the east had a relatively early exposure to modern education and could make substantial use of the opportunity offered by reservations as Compare that to the Balmiki community in the north, traditionally engaged in scavenging Or think of Musahars and Doms in Uttar Pradesh and Bihar Or Arunthathiyars in Tamil Nadu they still have very limited access to the education that is needed to take advantage of reservations[4].
Furthermore when the country had recorded a literacy rate of 74 per cent in the latest census of 2011, the literacy rate for Doms was 16 per cent and for Musahars, Census 2011 records that of the 20 lakh-plus Musahar community in the state, there were less than 2,000 graduates — about 0.1 per cent Similar differences exist among the STs as well because Tribal communities in the hill states of the north (Himachal, Uttarakhand) and the northeast (Manipur, Mizoram, Meghalaya, Nagaland) have done much better than their counterparts in the rest of the country. And then there is the unusual case of the Meenas of east Rajasthan, who have received disproportionate benefits of ST reservations.[5]
These data clearly depicts how the particular caste groups within the schedule castes and schedule tribes are dominating over the other just because some castes were benefitted early due to various factors like their geographical condition or their relations with certain leaders or freedom fighters at that time and etc. Consequently there is an urgent need to fix income ceilings and exclude creamy layer so that 1108 scheduled castes[6] and 744 tribes[7] could be represented and benefitted equally.
Judicial Pronouncements
The apex court in the Mandal case[8] has very clearly held that the "creamy layer" has to be excluded from the backward class and To ensure that the most deserving members of backward classes benefit from job reservations, the reservation under Article 16(4) is only applicable to those who are not part of the "creamy layer." This is because the more affluent members of these classes have been largely taking advantage of the current benefits, leaving the poorer members to become even poorer[9]. However in this case principle of creamy layer was applicable only to other backward classes (OBC) but not to schedule castes and scheduled tribes.
However afterwards in 2007 the Apex court ruled that the basis of reservation should be quantifiable data depicting how backward a particular class is and how their representation is not adequate in public employment. Consequently court introduced the principle of proportionality by ruling that reservation provision of any state must not lead to excessiveness so as to breach the ceiling limit of 50% or obliterate the creamy layer or extend the reservation indefinitely[10]. This time concept of creamy layer was extended to schedule caste and schedule tribes also.
The Centre has put forth two reasons to reconsider the Nagaraj judgment. Firstly, the requirement for states to provide quantifiable data to demonstrate backwardness contradicts the Indra Sawhney v Union of India[11] ruling because this ruling presumes Scheduled Castes and Scheduled Tribes to be the most backward among backward classes, so there is no need to demonstrate their backwardness again once they are included in the Presidential List under Articles 341 and 342 of the Constitution of India Secondly, the creamy layer concept, which has not been applied to Scheduled Castes and Scheduled Tribes in the Indra Sawhney case, needs to be addressed. hence it should be restricted to Other backward classes only[12].
Even after the decision of the Constitution bench principle of creamy is still restricted to the OBC's because even though it was a nine judge bench who gave decision in Indra Sawhney & Others v. Union of India but still central government has demanded a larger bench to overrule the previous decision of not extending creamy layer principle to SC's and ST's.
Conclusion
These judicial orders clearly depicts the need to diminish inequalities among schedule castes and tribes which different states are facing because some of them remain grossly under represented as compared to other schedule castes and tribe as shown by various reports for instance in Andhra Pradesh, Punjab, Tamil Nadu and Bihar, special quotas were introduced for the most vulnerable Dalits. In 2007, Bihar set up the Mahadalit Commission to identify the castes within SCs that were left behind[13].
In Tamil Nadu, a 3% quota within the SC quota is accorded to the Arundhatiyar caste, after the Justice M S Janarthanam report stated that despite being 16% of the SC population in the state, they held only 0-5% of the jobs[14].These needs and demands of sub quota shows that still many groups within the ambit of schedule castes and tribes are backward therefore it becomes necessary to apply creamy layer principle in order to represent them adequately throughout all the territory of India.
End-Notes:
Abstract:
The question is of paramount importance that whether still in 2024 each and every person falling under a homogeneous group of schedule castes and schedule tribes irrespective of their current economic, educational or social status needs reservation or deserves to be uplifted ? hence it becomes significant to observe the developments country has gone through, especially after the independence and co-relate it with the reservation policy to increase its applicability and efficiency in contemporary era.
Here I have discussed about how and why reservation policy was an significant and essential step to maintain equality and unity in India. Further. The concept of creamy layer prevalent in India has been explained and why it is important to be implemented on schedule castes and schedule tribes is discussed by showing different data and making comparisons, then the information is backed up by certain case laws by the Supreme court of India and then conclusion has been derived.
Introduction
Historical background of reservation and its contemporary situation
It is the old age rigid caste system which led to the origin of reservation policies in India as it divided the society according to the four main castes which were Brahmans, kshatriyas, vaishyas and shudras. Shudras or later known as harijans were considered lowest in the hierarchy who just worked as slaves for the upper three castes and were also treated as untouchables. Even after the independence of India untouchability and discrimination with dalits was at its peak which made them socially, educationally and economically backward class therefore to uplift them it was necessary to reserve some quotas and seats in jobs, education, legislature etc.
It was B.R Ambedkar who proposed the concept of reservation in constituent assembly debates and later on many Constitutional provisions were added to the Constitution of india in order to firm the concept of reservation. However the policy of reservation was designed as an adhoc policy for ten years.
But it is continuing and getting extension after the end of every ten years which led to almost 70 years of positive discrimination and consequently the evil of untouchability is almost diminished from the Indian society but caste and class equality all over the territory is still to be achieved but meanwhile positive impact of reservation can be clearly observed in the Modern India as many castes among SC's and ST's have become affluent and are sitting in legislature, bureaucracies, judicial.
On other high governmental posts moreover many of them have become economically sound as well therefore this directly focuses on the question of increasing intercaste inequalities among them along with the politics of casteism which is at its peak leading towards the over consciousness of caste identity and obstructing the process of national integration. Moreover, castes have been used as instruments for maintaining the vote banks of different political parties. Thus, these issues heavily demands the regulation and alteration of reservation policy as per the needs of Modern India of 2024.
What is creamy layer?
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 term was originally introduced in the context of reservation of jobs for certain groups in Indra Sawhney & Others v. Union of India case in 1992[2].The judgment held that persons from backward classes who occupied posts in higher services such as IAS, IPS and All India Services had reached a higher level of social advancement and economic status, and therefore, were not entitled to be treated as backward.
Such persons were to be treated as 'creamy layer' without any further inquiry moreover people with sufficient income who were in a position to provide employment to others should also be taken to have reached a higher social status and treated as "outside the backward class" and Other categories included persons with higher agricultural holdings or income from property[3].after this income ceilings of families under backward classes were fixed for instance it was 4.5 lakhs in 2008 and then 6 lakhs in 2013 further increased to 8 lakhs in 2017 according to which creamy layer was excluded from the other backward classes so that reserved seats and quotas provided by the Government of India shall be enjoyed by the section of the society which is still educationally, socially and economically weaker of weakest. Thus, a reading of the Indra Sawhney judgments shows that social advancement, including education and employment, and not just wealth, was key to identify the 'creamy layer'.
Rationale why Creamy Layer principle needs extension to Schedule castes and Schedule tribes.
It has been always argued that concept of creamy layer could not be extended to schedule castes and schedule tribes because economic criteria cannot be the sole basis to detract the reservation benefits from the individuals however people under the categorization of other backward classes were also socially and educationally backward classes but not the economically backward as defined by The Constitution of India but still concept of creamy layer which works basically on income of a family making it an economical basis is applicable on them, this clearly states that Schedule castes and Schedule tribes should not be a exception to it otherwise it could be a great inequality with the people falling under other backward classes.
Does children of an class 'A' officer or a person with millions of rupees worth land or Constitutional functionaries such as President, judges of the Supreme court and High court, employees of central and state bureaucracies above a certain level need reservation under schedule castes or schedule tribes the answer if given by average human intelligence will be 'NO' because people with such economically as well as socially reputed family background cannot be backward or untouchable in any such way therefore excluding them on the basis of income will be totally reasonable as it is with other backward classes.
Moreover the principle of creamy layer could be applicable on schedule castes and tribes without making changes to Article 341 and Article 342 of the Constitution of India because there is no need to exclude any particular caste from the presidential list (which declares certain castes to be considered under scheduled caste or schedule tribe by power given to central executive-The President by The Constitution of India) but the purpose is to regulate the system of reservation so that only affluent groups among them should not eat all the cake and weakest among them should get benefited and uplifted in order to maintain equality in society.
Intercaste Inequalities
The other major consequent of not excluding creamy layer fro schedule castes and schedule tribes is the growing intercaste differences within SC and ST's. For instance Caste groups such as Jatavs (leatherworkers) in the north, Mahars in the west, Malas in the south, and Namasudras in the east had a relatively early exposure to modern education and could make substantial use of the opportunity offered by reservations as Compare that to the Balmiki community in the north, traditionally engaged in scavenging Or think of Musahars and Doms in Uttar Pradesh and Bihar Or Arunthathiyars in Tamil Nadu they still have very limited access to the education that is needed to take advantage of reservations[4].
Furthermore when the country had recorded a literacy rate of 74 per cent in the latest census of 2011, the literacy rate for Doms was 16 per cent and for Musahars, Census 2011 records that of the 20 lakh-plus Musahar community in the state, there were less than 2,000 graduates — about 0.1 per cent Similar differences exist among the STs as well because Tribal communities in the hill states of the north (Himachal, Uttarakhand) and the northeast (Manipur, Mizoram, Meghalaya, Nagaland) have done much better than their counterparts in the rest of the country. And then there is the unusual case of the Meenas of east Rajasthan, who have received disproportionate benefits of ST reservations.[5]
These data clearly depicts how the particular caste groups within the schedule castes and schedule tribes are dominating over the other just because some castes were benefitted early due to various factors like their geographical condition or their relations with certain leaders or freedom fighters at that time and etc. Consequently there is an urgent need to fix income ceilings and exclude creamy layer so that 1108 scheduled castes[6] and 744 tribes[7] could be represented and benefitted equally.
Judicial Pronouncements
The apex court in the Mandal case[8] has very clearly held that the "creamy layer" has to be excluded from the backward class and To ensure that the most deserving members of backward classes benefit from job reservations, the reservation under Article 16(4) is only applicable to those who are not part of the "creamy layer." This is because the more affluent members of these classes have been largely taking advantage of the current benefits, leaving the poorer members to become even poorer[9]. However in this case principle of creamy layer was applicable only to other backward classes (OBC) but not to schedule castes and scheduled tribes.
However afterwards in 2007 the Apex court ruled that the basis of reservation should be quantifiable data depicting how backward a particular class is and how their representation is not adequate in public employment. Consequently court introduced the principle of proportionality by ruling that reservation provision of any state must not lead to excessiveness so as to breach the ceiling limit of 50% or obliterate the creamy layer or extend the reservation indefinitely[10]. This time concept of creamy layer was extended to schedule caste and schedule tribes also.
The Centre has put forth two reasons to reconsider the Nagaraj judgment. Firstly, the requirement for states to provide quantifiable data to demonstrate backwardness contradicts the Indra Sawhney v Union of India[11] ruling because this ruling presumes Scheduled Castes and Scheduled Tribes to be the most backward among backward classes, so there is no need to demonstrate their backwardness again once they are included in the Presidential List under Articles 341 and 342 of the Constitution of India Secondly, the creamy layer concept, which has not been applied to Scheduled Castes and Scheduled Tribes in the Indra Sawhney case, needs to be addressed. hence it should be restricted to Other backward classes only[12].
Even after the decision of the Constitution bench principle of creamy is still restricted to the OBC's because even though it was a nine judge bench who gave decision in Indra Sawhney & Others v. Union of India but still central government has demanded a larger bench to overrule the previous decision of not extending creamy layer principle to SC's and ST's.
Conclusion
These judicial orders clearly depicts the need to diminish inequalities among schedule castes and tribes which different states are facing because some of them remain grossly under represented as compared to other schedule castes and tribe as shown by various reports for instance in Andhra Pradesh, Punjab, Tamil Nadu and Bihar, special quotas were introduced for the most vulnerable Dalits. In 2007, Bihar set up the Mahadalit Commission to identify the castes within SCs that were left behind[13].
In Tamil Nadu, a 3% quota within the SC quota is accorded to the Arundhatiyar caste, after the Justice M S Janarthanam report stated that despite being 16% of the SC population in the state, they held only 0-5% of the jobs[14].These needs and demands of sub quota shows that still many groups within the ambit of schedule castes and tribes are backward therefore it becomes necessary to apply creamy layer principle in order to represent them adequately throughout all the territory of India.
End-Notes:
- Rajagopal, Krishnadas (8 December 2019). "Why does government want Supreme Court to reconsider stand on SC/ST creamy layer?". The Hindu.
- "Quota: What does 'creamy layer' mean?". Business Standard. 10 April 2008.
- Krishnadas rajagopal, "why Why does government want Supreme Court to reconsider stand on SC/ST creamy layer?"(The Hindu,8 December 2019)
- Yogendra Yadav, "India needs SC-ST sub-quota. And the Supreme Court just removed one key roadblock"(The Print,9 September 2020)
- Yogendra Yadav, "India needs SC-ST sub-quota. And the Supreme Court just removed one key roadblock"(The Print,9 September 2020)
- The constitution (schedule caste) order of 1950
- The constitution (schedule Tribe) order of 1950
- Indra Sawhney v Union of India AIR 1993 SC 477
- M.P Jain, Indian Constitutional Law 1041 (Lexis nexis , Gurgaon , 8th edn.,2020)
- M Nagaraj v Union of India,(2006) 8 SCC 212 : AIR 2007 SC 71
- AIR 1993 SC 477
- Ananthakrishnan G, "Creamy layer principle in SC, ST quota for promotion: judgments, appeals"(Indian Express,11 December 2019)
- Apurva Vishwanath," The 'quota within quota' debate"(Indian Express,1 september 2020)
- Apurva Vishwanath," The 'quota within quota' debate"(Indian Express,1 september 2020)
Award Winning Article Is Written By: Mr.Vikram Khurmi
Authentication No: AG460175552975-22-0824
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