Creamy Layer Made Sediment

Creamy Layer Made Sediment
( Dr. Justice A.K. Rajan )

1. The Government of India made reservation in employment as well as in educational institutions run by the Government of India only for the SC / STs from 1950 onwards. For the backward class, no such reservation was ever made. Only in the year 1990, the Government of India decided to make reservations for backward classes other than SC / STs. To that effect, the two Office Memoranda of 1990 and 1991 were issued by Government of India, which were challenged before the S.C. in Indra Sawhney vs Union of India, which is popularly known as Mandal case, as unconstitutional and hence unenforceable.

2. The Office Memorandum of 25th September 1991 specifically provided that :

“(i) within the 27%....reserved for SEBCs, preference shall be given to candidates belonging to the poorer section of the SEBCs. In case sufficient number of such candidates are not available, unfilled vacancies shall be filled by the other SEBC candidates”.

(ii) 10% of the ........the posts.........under the Government of India shall be reserved for other economically backward sections of the people who are not covered by any of the existing scheme of reservation”.

The Supreme Court in Mandal case, all the 9 Judges, except Justice Kuldip Singh, have held that no reservation can be made on the basis of economic criteria alone.

“Creamy Layer” :
3. Though the Supreme Court upheld the power of the Government to provide reservations for backward classes (27%), went further and said that the Office Memorandum will be valid only if the “creamy layer” from the backward classes (to be determined by State) are eliminated. According to the Supreme Court, inclusion of people from the creamy layers will not make backward classes a “homogenous entity”. Therefore, they must be removed for identifying the backward classes. No such plea was made by any of the organisations or by persons belonging to backward classes that their opportunities were cornered by persons from such creamy layers. The basis for the conclusion of the Supreme Court appears to be that people from the creamy layer in the Backward Classes corner the opportunities of persons from non-creamy layer. That is, the benefits of reservation are reaped by the advanced sections within the class depriving the other sections, which are yet to get opportunities.

Process of becoming “Creamy Layer” :
4. The study of the societies’ development reveals that for a class of society to make advancement, it takes decades of consistent efforts. It also reveals that when a person enters in service as a Constable he could go up to the level of Sub-Inspector of Police before retirement. His son will not aspire to become a Constable but he will compete for direct recruitment as Sub-Inspector of Police, and he may reach the level of Superintendent of Police before retirement. The SP’s son will not be interested either in becoming a Constable or becoming a direct recruit Sub-Inspector of Police, he would be interested to become directly an IPS Officer. Such a person alone can reach the top position in the hierarchy, namely Director General of Police. But at the same time, a person coming from a family, from where none of their family members were in those positions, normally cannot and will not aspire to become an IPS Officer directly. Even if he aspires, he will not have the required wherewithal. Similarly, the son of a Judge of the Supreme Court or High Court will not compete for the post of Civil Judge Junior Division or Senior Division, not even for the post of the District Judge. He will try, if at all, to become a Judge of the High Court. Children of Class I or even Class II officers in the Government will not aspire for the post of Junior Assistant in the Government service. He will try to become directly an IAS or Class I officer. The competition for those posts of Junior Assistants, etc., would be only among the candidates from the so called non-creamy layer. Therefore, the argument that their opportunities are cornered by the creamy layer is unfounded and unacceptable.

“Creamy Layer” become “Sediment” :
5. Only from a family which has attained some economic advancement can think of competing for IPS or IAS, as it requires some amount of economic affluence as well as educational advancement. If all these persons, capable of competing for such positions, are eliminated in the name of creamy layer, then there would be dearth of persons to compete for those positions. Of course, it is possible even for a person from a non-creamy layer to aspire for and get into IPS or IAS and the like, but they would only be exceptional cases. Ordinarily, it would be an impossible task for them to achieve even if they desire. Under such a situation, if the so called creamy layer is excluded from the SEBC, there will not be sufficient persons from that class to fill up those posts reserved for the SEBCs. The son of a person, who by promotion became Class II or Class I officer cannot and will not immediately attain the ability to compete with the advanced section of the people in the open category. It will result in the so called creamy layer of the BC becoming “sediment” in the category of advanced classes. That will nullify the scheme of reservation for SEBC and will be detrimental to the advancement of Backward Classes.

Backlog of 28,000 OBC vacancies :
6. The evidence is already available. The Times of India (Bangalore edition) dated February 14, 2008 has published that there is a proposal to launch a special recruitment drive to fill up the huge backlog of “28,671 vacancies against positions reserved for OBCs in 70 Central Government Ministries, Departments and PSUs”. That shows that these vacancies could not be filled up due to non-availability of suitable persons from the non-creamy layer of the OBC; and that resulted in the huge “backlog” vacancies. The above fact conclusively proves that when the “creamy layer” is excluded, there will not be enough candidates to fill up the 27% of the posts reserved for OBCs. This should be more than sufficient even for the unwilling minds to realise the consequences of excluding the creamy layer from OBCs. This also proves, beyond any doubt, that all the eligible OBC candidates had been excluded as “creamy layer”. That means exclusion of the so called creamy layer would result in ‘de-facto’ elimination of the entire OBCs from the system or getting the benefit of Reservation. The creamy layer of Backward Classes had become “sediment” in the open competition or in the advanced category.

Creamy layer in other classes :
7. The same argument, that the person from creamy layer cannot be compared as equals to a person from non-creamy layer within backward class and therefore they must be excluded, in order that less fortune members may get admission or employment, applies equally to the open competition and SC & ST categories. That should also be done if really equality is to be perfect. In the open competition also, preference shall be given to the people from non-creamy layer, among that class, on the ground of equality, to make the competition fair. But it is not done either in the case of open competition or in the case of Scheduled caste / Scheduled tribe communities.

8. If the creamy layer within the advanced category is meted out with the same disadvantage, by giving preference to non-creamy layer in that category, the cream of open competition (the economically affluent section of the advanced community) will never get admission or employment. The creamy layer of OBCs, when excluded from the category of OBCs, need to compete in the Open Competition and since they may not be able to compete with the candidates in the OC because of the backwardness of the class from which they emerge, they will become “sediment” in the advanced category.

SEBC & BC shall be defined in the Constitution :
9. While discussing the concept of creamy layer in Backward Classes, the Hon’ble Supreme Court in Mandal case has said that “This discussion is confined to Other Backward Classes only and has no relevance in the case of Scheduled Tribes or Scheduled Castes”. It has not stated any other reason. That is, probably, because of the fact that Scheduled Castes and Scheduled Tribes are defined in Article 366 of the Constitution. Since there is no such definition for “Socially and educationally backward classes of persons” or “Backward classes”, these arguments are advanced; these opinions are expressed and such decisions are rendered. In order to protect such reservations for OBCs, it is necessary and imperative that the Constitution must be amended and the SEBC and BC shall also be defined.

Determination of Creamy Layer :
10. The creamy layer is determined mainly on the basis of income of the parents. The Hon’ble Supreme Court in State of U.P. vs Pradip Tandon, following earlier decisions of the S.C., has categorically held that “poverty alone cannot be the basis for determining or identifying the SEBC. Reservation u / Arts 15 and 16 are not poverty alleviations programme. They were mainly directed towards removal of social and educational backwardness”. If economic criteria cannot be the deciding factor to determine or identify SEBC, equally, it cannot be the sole basis for identifying or excluding the so called creamy layer. Therefore, economic advancement alone does not ensure elimination of social and educational backwardness. The transformation from the Backward Class to the advanced class cannot happen in a single day or by a stroke of pen.

11. In Mandal case, the Supreme Court by a majority of 8-1 has held that economic criteria alone cannot be the basis to determine backwardness of a class. The corollary is that economic criteria alone cannot be the basis for identifying or excluding individuals from that class, as creamy layer.

12. Further, the Supreme Court, right from Balaji’s case has consistently held that in order to identify SEBC, the class must both be socially, and, educationally backward. Mere educational backwardness is not enough if the class is not also socially backward and vice versa.

13. In the recent judgment of the Supreme Court in 2008, Justice K.G. Balakrishnan, Chief Justice of India, has held that :

(i) When SEBC are determined on the basis of caste.......”it cannot be forgotten that segment of that caste is economically advanced and they do not require the protection of reservation.

(ii) “If the creamy layer principle is not applied, it could easily be said that all the castes that have been included among the SEBC have been included exclusively on the basis of caste”.

(iii) “by excluding those who have been already attained the economic well-being or educational advancement, the special benefits cannot be further extended to them and if done so, it would be unreasonable, discriminatory or arbitrary resulting in reverse discrimination”.

(iv) “OBC should be deemed to mean SEBC after exclusion of creamy layer”.

Justice R.V. Raveendran agreeing with CJ has held :
“Failure to exclude creamy layer would render the quota law unconstitutional. The Act is valid if definition of OBC is clarified”.

Arijit Pasayat & Thakkur JJ have held that
“If any seat remains vacant after adopting such norms, they shall be filled up by candidates from general categories”, whereas CJI has held such posts can be filled up by the creamy layer of the SEBCs.

Bandari J :
“......once a candidate graduates from a University, he must be considered educationally forward”

14. Thus, from the above, it is seen that in the present case, the emphasis appears to be on the economic advancement. Once a person is economically advanced, he does not require the protection of reservation. This proposition appears to be in conflict with earlier decisions of the Supreme Court. The effect of that needs deeper study.

15. There is also an observation that, for identifying the creamy layer, the order issued by the Central Government on 8/9/93 for that purpose may be adopted for excluding creamy layer. As per that order, the following persons, apart from others, are also to be excluded as creamy layer.

(i) Professionals such as Doctors, Lawyers, Chartered Accountants, I.T. Consultants, Dental Surgeons, Engineers, Architects, Computer Specialists, Film Artistes and other Film Professionals and other Playwriters, Sports persons, Sports Professionals, Media Professionals or any other vocation of like status, and

(ii) Income / wealth criteria shall apply even to persons engaged in Trade, Business and Industry.

16. If that is adopted, as soon as a person from OBC becomes a Lawyer, Doctor or Engineer, he is eliminated as creamy layer and therefore, the seats reserved for any post-graduation course in their respective fields, like M.L., M.D., M.S., M.E., etc., cannot be reserved. Similarly, no reservation will be useful in selection of judicial offices like Civil Judge, Junior Division or Senior Division; District Judge, Professors in Medical or Engineering Colleges, etc. The words ‘Film Artists’ and ‘Film Professionals’ include even the junior artists, light boys, etc. Media professionals are even the Press Reporters, spot boys, etc. Sports persons from district and sub-district levels will also be included in that category of Sports persons. If all these persons are eliminated, no one, except the manual labourers, will remain in the OBC, who will not be competing for any of the posts or seats in educational or professional institutions. That means, the purpose of reservation will be nullified by elimination of all the eligible candidates as creamy layers. That is, what is given by one hand is snatched away by the other hand, without the recipient knowing that it is being snatched away.


17. Therefore, in order to protect the reservation for OBCs, Constitution needs to be amended. In the absence of definitions of the two terms OBC and SEBC in the Constitution, the Hon’ble Supreme Court has defined OBC to mean SEBC after exclusion of creamy layer in the 2008 case. In Mandal case also, the term ‘Backward class’ was interpreted to mean only backward castes minus creamy layer. Hence, definitions of Backward Classes and SEBC must be included under Art. 366 of the Constitution as in the case of SCs and STs.

Conclusion :
18. To conclude, the exclusion of creamy layer will effectively nullify the Scheme or system of Reservation for OBCs. To make the Reservation for OBCs a reality, Constitutional amendment defining “SEBC” and ”Backward Classes” is the immediate necessity. Unless such amendments are made, the Reservation for OBCs will only be a pious wish and an unfulfilled dream.

Dr. Justice A.K. Rajan
20.4.2008