top of page
  • Ali Asghar

"Revisiting Reservation Policy of India: Exploring the Creamy Layer in SC and ST"

Ali Asghar

Faculty Of Law, Jamia Millia Islamia 

NOT WITHOUT RESERVATION- CREAMY LAYER IN SC AND ST – IS THERE A NED TO REVISIT RESERVATION POLICY OF INDIA

ABSTRACT

Beneath the Umbrella: Can "creamy layer" carve true equality for India's SCs and STs?

India's historic reservation policy, a vibrant umbrella sheltering the historically disadvantaged, faces a stormy debate. The "creamy layer," a concept filtering affluent beneficiaries within Scheduled Castes (SCs) and Scheduled Tribes (STs), promises targeted inclusion. But does it risk leaving some shivering in the rain?

Facts whisper the complexity. While affirmative action has uplifted countless SCs and STs, disparities within these communities persist. The creamy layer, defined by education, income, or occupation, aims to direct benefits to the most marginalised. Yet, critics decry exclusion of deserving candidates and inconsistent application across diverse states.

The question hangs heavy: Can we tailor the umbrella without harming those it's meant to protect? Or are we simply rearranging raindrops in a downpour?

This is no mere legal squabble, but a societal tug-of-war between equity and pragmatism. Are we ready to redefine the reservation narrative, acknowledging the nuanced realities within SCs and STs? Can we craft a policy that shelters all, without sacrificing the need for targeted upliftment? Join the conversation, under the monsoon of change. Let's rewrite the reservation story, one raindrop at a time.

INTRODUCTION

Beneath the sheltering canopy of India's affirmative action policy, a storm brews. The "creamy layer" concept, filtering affluent beneficiaries within SCs and STs, promises to focus aid on the truly drenched. But can it do so without leaving others out in the cold?

The facts paint a complex picture. While affirmative action has uplifted countless SCs and STs, disparities within these communities remain. The creamy layer, defined by education, income, or occupation, seeks to direct resources to the most soaked – those clinging to the very frayed edges of the social fabric. Yet, critics warn of excluding deserving individuals and of uneven application across diverse states.

The question looms heavy: can we tailor the umbrella without harming those it seeks to protect? Or are we merely rearranging raindrops in a downpour?

This is more than a legal tussle; it's a societal tug-of-war between equity and pragmatism. Are we ready to rewrite the reservation narrative, acknowledging the nuanced realities within SCs and STs? Can we craft a policy that shelters all, without sacrificing the need for targeted upliftment? Join the conversation, step into the monsoon of change. Let's rewrite the reservation story, one raindrop at a time.

LEGAL FRAMEWORK FOR SC’S AND ST’S

Beneath the Legal Canopy: Creamy Layer and the Constitution!

In India before independence there were several movements which lead down the caste system in India such as in 1851 when Jyotirao Phule questioned the discrimination in the social system which affected the lives of lower caste groups and he opened up the schools for the girls belonging to the different lower caste. And later on 1873, he also founded the Satyashodhak Samaj which is open for all the communities and caste irrespectively without discrimination and on 1867 Atmaram Panduranga founded the Prathnana Samaj which was later joined by the Ramakrishna Bhandarkar and Mahadev Govind Ranade.

After the Independence there were several Article in the Constitution of India which clearly forecast the discrimination against the SC’s and ST’s India's reservation policy rests on a foundation of constitutional pillars:

Article 15:[i] Prohibits discrimination based on caste or any other ground.

Article 16: Guarantees equality of opportunity in public employment.[ii] 

Article 25:[iii] Enables special provisions for the advancement of socially and educationally backward classes (SEBCs), including SCs and STs.

These articles set the stage, but the Supreme Court has further shaped the reservation narrative through landmark judgments: Indra Sawhney v. Union of India (1992):[iv] Established the "creamy layer" concept for Other Backward Classes (OBCs), excluding SCs and STs. The government's stand favored inclusion without internal differentiation.

M. Nagaraj v. Union of India (2006):[v] 77th Constitutional Amendment Act, 1995: The Indra Sawhney verdict had held there would be reservation only in initial appointments and not promotions. But the government through this amendment introduced Article 16(4A)[vi] to the Constitution, empowering the state to make provisions for reservation in matters of promotion to SC/ST employees if the state feels they are not adequately represented.

81st Constitutional Amendment Act, 2000: It introduced Article 16(4B), which says unfilled SC/ST quota of a particular year, when carried forward to the next year, will be treated separately and not clubbed with the regular vacancies of that year. While the Supreme Court in the Indra Sawhney Case capped the reservation quota at 50%, the government by this amendment ensured that 50% ceiling for these carried forward unfilled posts does not apply.

82nd Constitutional Amendment Act, 2000: It inserted a condition at the end of Article 335[vii] that enables the state to make any provision in favour of the members of the SC/STs for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State.Controversially introduced the creamy layer principle for SCs and STs in promotions, arguing that benefits must reach the most disadvantaged. The government initially resisted but later accepted the judgment.

Jarnail Singh v. Lacchmi Narain Gupta (2018):[viii] Upheld the exclusion of the creamy layer for SCs and STs in promotions, emphasizing targeted inclusion. The government supported this judgement.

Statutory provisions, like the SC/ST (Reservation in Promotion) Act, 2006[ix], further define creamy layer criteria (income, education, occupation) for promotions. However, there's no central legislation for general recruitment, leaving states to devise their own frameworks. This inconsistency remains a major point of contention.

The legal framework remains in flux, with ongoing debates about balancing equality for all with targeted upliftment for the most disadvantaged within SCs and STs. Finding a perfect balance under this legal canopy may require further judicial and legislative refinement, keeping both the letter and spirit of the Constitution at its core. 

REVISITING THE CREAMY LAYER: LEGAL ARGUMENTS IN FAVOR

The application of the "creamy layer" concept to SCs and STs raises critical legal concerns requiring revisiting the existing framework. Here are some key arguments supporting this position:

Ineffectiveness in Addressing Internal Disparities: The current approach, often relying solely on income or occupational criteria, fails to capture the complex and diverse realities within SC and ST communities. It risks neglecting the most marginalized and disadvantaged sections, who may not qualify under these narrow definitions. This undermines the very purpose of affirmative action: targeted upliftment of the most vulnerable.

Lack of Objective Criteria: Defining the "creamy layer" based on income, education, or occupation poses practical challenges. These criteria vary significantly across states and contexts, leading to inconsistent application and potential arbitrariness. This lack of standardization can violate the principle of equality before the law, as similarly situated individuals might face differential treatment based on their location.

Potential Exclusion of Deserving Candidates: Administrative complexities and bureaucratic inefficiencies can result in the unintended exclusion of genuine beneficiaries. Errors in data collection, verification, or interpretation of criteria can create hurdles for legitimate candidates struggling to overcome historical disadvantages. This raises concerns about procedural fairness and equal access to reservation benefits.

Constitutional Implications: The exclusion of the "creamy layer" could be challenged on the grounds of violating the principles of equality and affirmative action enshrined in the Constitution. Articles 14 and 15 guarantee equality before the law and prohibit discrimination based on caste, respectively. Article 25 empowers the state to make special provisions for the advancement of backward classes, which potentially includes measures like preventing the "creamy layer" from disproportionately benefiting from reservations.

These legal arguments highlight the complexities and potential pitfalls of applying the "creamy layer" concept to SCs and STs. Revisiting the existing framework through legislative and judicial interventions may be necessary to ensure effective, fair, and constitutionally sound affirmative action for the communities that truly need it the most.

Imagine two brothers, Ashok and Vijay, both SCs. Ashok, raised in poverty, barely scraped through school. Vijay, on the other hand, benefited from scholarships and affirmative action, thriving in his education and now enjoys a successful career. Should Vijay continue to rely on reservation benefits meant for his less fortunate brother?

This example sparks the debate over retaining the "creamy layer" exclusion for SCs/STs in promotions. Proponents of the current law argue:

Targeted Upliftment: Resources are limited. Excluding the "creamy layer" ensures those like Ashok, facing the most persistent disadvantage, receive the targeted support needed to climb the social ladder. Vijay, already at an advantage, can compete based on merit in the general category.

Preventing Misuse: Unchecked access to reservations by the "creamy layer" can dilute their effectiveness. Excluding them prevents affluent individuals from unfairly utilizing benefits intended for those struggling to overcome historical legacies of inequity. This safeguards the genuine purpose of affirmative action.

Administrative Feasibility: Implementing a nuanced system differentiating within diverse communities across states is a logistical nightmare. Defining and applying complex criteria like income bands or specific professions raises concerns about inconsistency and potential bureaucratic hurdles. The current approach offers relative simplicity and practicality.

Constitutional Legitimacy: Supreme Court judgments like Jarnail Singh (2018) have upheld the "creamy layer" exclusion, interpreting Articles 15 and 16 as allowing for measures ensuring reservations reach the most disadvantaged within backward classes. This judicial validation lends constitutional legitimacy to the current framework.

These arguments suggest the "creamy layer" exclusion, while not without its challenges, plays a crucial role in ensuring efficient, targeted, and constitutionally sound affirmative action for SCs/STs. Revisiting the existing framework requires careful consideration of these counterpoints to prevent unintended consequences and safeguard the progress already made towards social justice

CONCLUSION

Beyond the Umbrella: A Future for India's Reservations

The "creamy layer" debate casts a long shadow over India's reservation policy. Advocates for revisiting it cite gaps in effectiveness, subjective criteria, and potential exclusion of genuine beneficiaries. Others warn of resource scarcity, misuse prevention, administrative complexities, and constitutional compliance concerns. Finding a solution demands balancing equity for all with targeted upliftment for the most disadvantaged.

One potential solution could involve revising creamy layer criteria to address internal disparities within SCs and STs through a multi-dimensional approach. Consider factors like social vulnerability, location, and educational access alongside income or occupation. This nuanced approach requires data-driven analysis and robust implementation mechanisms, but holds promise for reaching the truly marginalized.

Alternatively, revisiting reservation quotas itself could offer a solution. Perhaps increasing overall quotas while excluding the "creamy layer" could ensure both targeted inclusion and broader representation. This requires careful cost-benefit analysis and consideration of potential political hurdles.

Ultimately, India's reservation policy must evolve beyond binary debates. Embracing a dynamic framework, constantly adapting to societal realities and legal interpretations, is crucial. This future necessitates open dialogue, evidence-based policymaking, and unwavering commitment to the ideal of true equality for all. Until then, the debate will continue to swirl beneath the umbrella of affirmative action, shaping the next chapter in India's long journey towards social justice.

References 

[i] Art. 15: Constitution of India, 1950, Art. 15

[ii] Art. 16: Constitution of India, 1950, Art. 16.

[iii] Art. 25: Constitution of India, 1950, Art. 25

[iv] Indra Sawhney v. Union of India: Indra Sawhney v. Union of India & Ors., (1992) 1 SCC 210

[v] M. Nagaraj v. Union of India: M. Nagaraj v. Union of India & Ors., (2006) 8 SCC 555

[vi] Art. 16: Constitution of India, 1950, Art. 14

[vii] Art. 335: Constitution of India, 1950, Art. 335

[viii] Jarnail Singh v. Lacchmi Narain Gupta: Jarnail Singh v. Lacchmi Narain Gupta & Ors., (2018) 14 SCC 500

[ix] SC/ST (Reservation in Promotion) Act, 2006: The Scheduled Castes and the Scheduled Tribes

88 views0 comments

Σχόλια


bottom of page