As the Supreme Court has upheld reservation in promotion for the SC/ST communities, the court’s position on the idea of a creamy layer has put the political class in a dilemma.
So far creamy layer is applicable only for OBCs seeking reservation. Last year, the creamy layer ceiling for OBC reservation was raised to Rs 8 lakh per year — families with income above this were not eligible.
How will a creamy layer apply to SC/STs is uncharted territory. While the government says it is still “examining” the judgment, SC/ST groups are restive in a poll year that has seen caste protests nationwide.
Speaking to The Indian Express, Lok Janshakti Party president and Cabinet Minister Ram Vilas Paswan said, “I don’t agree with the observation given on the creamy layer.” The minister, an ally of the ruling BJP, said he would wait for the government order that would be issued by the DoPT in line with the verdict.
BJP MP Udit Raj, welcoming the apex court’s clearance for reservation in promotions for SC/STs employees, cautioned that his All India Confederation of SC/ST Organisations would protest against the move to introduce the creamy layer.
Said Raj: “In the present judgment, the Supreme Court has decided not to collect data of backwardness which means the SCs and STs are to be considered backward. Then how can we implement creamy layer considering economic backwardness as a factor for reservation? If creamy layer is implemented, All India Confederation of SC/ST Organisations will definitely protest.”
“I do not agree with the position of the Supreme Court on applying the creamy layer principle in reservation in promotions,” said S K Thorat, former chairman of the UGC.
“Nowhere in the world is affirmative action policy based on economic criteria,” he added. “It is used to protect those who are discriminated against. The anti-poverty policy is a different thing. For example, in case of foreign scholarships, income criteria is applied by the Ministry of Social Justice and Empowerment. That one can understand. The economically better off in SCs should not get scholarships. But you cannot deny reservation to them. In Northen Ireland, there is affirmative action for Catholics who are rich and educated. In India, there is affirmative action policy for women irrespective of whether they are rich or poor. They have suffered because of their gender.”
Thorat argued that the application of creamy layer will defeat the very purpose of reservation in promotions. “The economically better-off SCs will continue to face discrimination in employment. Currently there are 11,000 complaints of discrimination in promotion filed by category A and B employees with the SC/ST Commission. With this decision, there will be less promotion and less people of reserved categories in higher ranks. This decision may also encourage the demand to implement the creamy layer criteria in the overall recruitment of SC/STs,” Thorat told The Indian Express.
Dalit activists also echoed these apprehensions. K Ananda Rao, National President of All India Dalit Rights Federation, said that the creamy layer will hurt SC/STs. “Creamy layer can be applied only when reservations are implemented 100 per cent. But as of now, neither state nor Central governments are providing jobs. Many sectors are privatised and there is no reservation in private sector,” Rao said. A creamy layer in these circumstances, he said, may ensure that “we will not see even one SC or ST officer in future.”
These fears could set off fresh challenges for the BJP-led NDA government which had come under fire for its delay in coming up with a legislation to undo the Supreme Court’s judgment allegedly diluting the SC/ST Atrocities Act.
The Supreme Court on Wednesday said that M Nagaraj Vs Union of India ruling that the government should collect quantifiable data for providing reservations was wrong and that states do not need to collect data on backwardness for SC/ST quotas in job promotions.
However, Wednesday’s judgment upheld Nagaraj’s judgment on the issue of creamy layer. “.. When Nagaraj applied the creamy layer test to Scheduled Castes and Scheduled Tribes…it did not in any manner interfere with Parliament’s power under Article 341 or Article 342. We are, therefore, clearly of the opinion that this part of the judgment does not need to be revisited, and consequently, there is no need to refer Nagaraj to a seven-Judge bench,” the verdict said.
This verdict was in contrast to the judgment in the Ashok Thakur case in 2008 when judges did not find any reason to exclude the creamy layer. The judgment had said the creamy layer exclusion was confined to OBCs only and “has no relevance” in the case of SCs and STs. “Therefore, I express no opinion with regard to the applicability of exclusion of creamy layer to the Scheduled Castes and Scheduled Tribes,” read the five-bench judgment headed by then CJI K G Balakrishnan in 2008.
In Wednesday’s verdict, the judges said that Parliament will have “complete freedom” to include or exclude persons from the Presidential Lists based on relevant factors. “Similarly, Constitutional Courts, when applying the principle of reservation, will be well within their jurisdiction to exclude the creamy layer from such groups or sub-groups when applying the principles of equality under Articles 14 and 16 of the Constitution of India. We do not agree with Balakrishnan, C.J.’s statement in Ashoka Kumar Thakur that the creamy layer principle is merely a principle of identification and not a principle of equality,” it said.
The judges also observed that the object of reservation is to see that backward classes of citizens 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,” the bench said.