India's reservation policies have been a cornerstone of its affirmative action program aimed at addressing historical injustices and ensuring social equity. These policies provide preferential treatment in education, employment, and political representation for historically marginalized communities, particularly the Scheduled Castes (SC), Scheduled Tribes (ST), and Other Backward Classes (OBC). One of the critical and often debated components within these policies is the concept of the "creamy layer".

Affirmative action, or reservation, in India aims to promote socio-economic equality, particularly through public employment as outlined in Article 16 of the Constitution.The concept of reservation existed even before the Constitution, with historical instances like the 1918 reservation in Mysore and advocacy by reformers such as Jyotibha Phule. While initially intended to address historical injustices and create an egalitarian society, reservation policies have sometimes been politicized.

Understanding the 'Creamy Layer'
The term "creamy layer" refers to the relatively wealthier and better-educated members within the SC and OBC category. It was introduced to ensure that the benefits of reservation policies reach the genuinely underprivileged sections of the SC and OBC community rather than those who are already well-off and capable of competing on merit.

The Supreme Court of India, in the landmark mandal commission case,1992,( Indra Sawhney v Union Of India & ors) upheld the concept of the creamy layer and directed the exclusion of the economically advanced sections of OBCs from reservation benefits. This was to prevent the monopolization of reserved quotas by the affluent members of the SCs and OBCs and to extend the advantages to the most deserving and needy within these communities.

On 16 November 1992, the Supreme Court, in its verdict, upheld the government order, being of the opinion that caste was an acceptable indicator of backwardness. Thus, the recommendation of reservations for OBCs in central government services was finally implemented in 1992.

On a recent SC judgement, Justice Gavai stated "Putting the children of the parents from the Scheduled Castes and Scheduled Tribes who on account of benefit of reservation have reached a high position and ceased to be socially, economically and educationally backward and the children of parents doing manual work in the villages in the same category would defeat the constitutional mandate."

Chronology of application of 'Creamy layer':

• 1975: Punjab issued a notification giving Balmiki & Mazhabi Sikhs preference in SC reservations.
• 2004: E V Chinnaiah v State of Andhra Pradesh - The Supreme Court said that states cannot subclassify SCs/STs.
• 2006, July: Dr. Kishan Pal v State of Punjab - Punjab HC struck down Punjab's 1975 notification as per the Chinnaiah ruling. In October 2006, Punjab Govt. passed Punjab's SC and Backward Classes (Reservation in Services) Act 2006, reintroducing preference for Balmiki & Mazhabi Sikhs.
• 2010, July: Punjab HC struck down the 2006 Punjab Act, which was later challenged in the Supreme Court.
• 2014: Davinder Singh v State of Punjab - Referred to a 5-judge Constitution Bench.
• 2020: Constitution Bench questioned the Chinnaiah case and referred the case to a larger bench.
• 2024: A 7-judge Bench (6:1) overturned Chinnaiah's case judgment, allowing states to sub-classify SC/ST and set sub-quotas for backward communities. Supreme Court upholds quota within quota for marginalized among SCs, STs.

"State must evolve a policy to identify creamy layer among the Scheduled Castes and Scheduled Tribes category and exclude them from the fold of affirmative action," Justice Gavai was quoted as saying by Live Law

Thus the Supreme Court overruled a 2005 judgment which had ruled that SC/ST sub-classification was contrary to Article 341 of the constitution. The particular Article confers the right on the President of India to prepare the list of SCs and STs.

The bench while disposing the case stated:
"There is nothing in Article 15, 16 and 341 which prevents sub-classification for SCs if there is a rational for distinction(intelligible differentia)and there is a rational nexus for the object sought to be achieved. State can sub-classify for the inadequate representation of some class" The court, however, cautioned that states must support sub-classification with empirical data, ensuring it is not based on "whims or political expediency."

Criteria for the 'Creamy Layer'
The creamy layer criteria are periodically revised by the government and are based on several socio-economic indicators, including:

• Annual Income: Families with an annual income above a specified threshold are categorized as the creamy layer. In OBCs, the "creamy layer" – those with family income over Rs 8 lakh per year – is not eligible for reservation. This income threshold is subject to periodic revision to account for inflation and changes in living standards.
• Professional Status: Children of high-ranking government officials, military officers, and professionals such as doctors and engineers are often considered part of the creamy layer, regardless of their family's income.
• Land Holdings: Families owning large tracts of agricultural land or significant real estate assets may also fall into the creamy layer category.

The Rationale Behind Exclusion:

• Equitable Distribution: Ensuring that reservation benefits reach the most disadvantaged sections within the OBC category, thereby promoting a more equitable distribution of opportunities.
• Avoiding Perpetuation of Inequality: Preventing the relatively affluent members of OBCs from perpetuating their social and economic advantage through reserved quotas, thereby maintaining the integrity of the reservation policy.

Challenges and Controversies
While the concept of the creamy layer is well-intentioned, it is not without its challenges and controversies:
Even though the majority opinion penned by Chief Justice Chandrachud has ruled that there is "social heterogeneity" among SCs based on "historical and empirical evidence", many activists have criticised the Supreme Court's judgement permitting sub-classification, arguing that it was not based on any "current and empirical" data.

• Implementation Issues: Identifying and excluding the creamy layer can be complex and prone to errors, leading to either wrongful exclusion or inclusion.
• Periodic Review: The criteria for determining the creamy layer need regular updates to remain relevant, which can be a bureaucratic and political challenge.
• Economic Versus Social Backwardness: The creamy layer concept primarily uses economic criteria, potentially overlooking the social disadvantages that wealthier OBC members might still face.
• Unfilled Reserved Posts: A significant part of SC/ST quotas in government jobs goes unfilled every year. As the level of positions increases in seniority, the problem of unfilled reserved posts is exacerbated.

Despite special drives, relaxed qualifying criteria, and pre-promotional training, there remain thousands of backlog reserved vacancies that ministries or departments fail to fill annually.M S Nethrapal, an Indian Revenue Service officer researching Bahujan representation issues in jobs and education, clarifies that barely 1.9% of SCs earn above Rs 50,000.

Conclusion
The concept of the creamy layer is a crucial aspect of India's reservation policies, aiming to strike a balance between affirmative action and meritocracy. While it seeks to ensure that the benefits of reservation reach the genuinely needy, its implementation and periodic revision remain critical to its effectiveness. As India continues to evolve socially and economically, ongoing dialogue and policy adjustments will be essential to uphold the principles of equity and justice that underpin its reservation system.Understanding and addressing the nuances of the creamy layer is vital for policymakers, scholars, and citizens alike as India strives to create a more inclusive and just society.As

Justice Gavai referred to Jeevan Reddy's opinion in Indra Sawhney v. Union of India , wherein he illustrated that if a member of a designated backward class becomes a member of IAS or IPS or any other All India Service, his status in society rises; he is no longer socially disadvantaged. His children would get full opportunity to realise their potential and in such a situation, his children are not to be given the benefit of reservation. By giving them the benefit of reservation, other disadvantaged members of that backward class may be deprived of that benefit.

References:

• https://www.livemint.com/news/supreme-court-exclude-creamy-layer-from-sc-st-reservations-quota-benefits-11722501396445.html
• https://www.livelaw.in/supreme-court/creamy-layer-must-be-excluded-from-scheduled-castesscheduled-tribes-for-reservations-supreme-court-265293
• https://www.thehindu.com/news/national/supreme-court-judges-take-on-creamy-layer-among-scs-causes-uproar/article68474298.ece
• https://thewire.in/law/in-61-verdict-sc-upholds-power-of-states-to-sub-classify-scs-and-sts-for-reservation
• https://m.economictimes.com/news/india/creamy-layer-snatching-job-pie-data-shows-a-chunk-of-sc/st-jobs-remain-unfilled-each-year/articleshow/112258001.cms