Should creamy layer apply in SC/ST quota?

Shreenath A Khemka
King's Law Scholar, University of Cambridge

Language has a violence of its own. When something is defined, a boundary is constructed. The challenge then is to erect a fence which keeps all the hens in and all the foxes out. Social institutions also run on a 'fencing' principle; but it becomes seemingly impossible to isolate the two when foxes begin to cluck and the hens howl. The problem that the reservation policy faces before the Supreme Court is also one of keeping the foxes out of the henhouse.

The apex court has been approached with a petition to disqualify the privileged section within the Scheduled Caste/ Scheduled Tribe (SC/ST) community from claiming reservation under Articles 15 and 16. It has been asserted that the benefits are cornered by a miniscule section within the SC/ST communities which have benefited to emerge as equal participants in society. Therefore, the plea is bifocal-those who have benefited from the policy must move out as beneficiaries, and their continuance prevents the benefits from percolating to the intended beneficiaries. Such a 'creamy layer' had been deliberated in Indira Sawhney v. UOI where the Supreme Court was adamant on filtering out the privileged lot within the OBCs. However, the concept was not extended to the SC/ST, and now is before the court.

The Constituent Assembly chose a model of substantive equality over formal parity. There would be no equitability in treating unalike as similar. Under Article 16(4), the state was given the power to create reservation in public employment for 'any backward class of citizens' who were underrepresented in the services. Concurrently, the categorisation of SC/ST (under Articles 338, 341, and 342) was aimed at abolishing untouchability (Article 17) and protecting them from social injustice and exploitation (Article 46). However, there was no qualification of the term 'backward class' as being SC/ST under 16(4). It was only in 1995 through the 77th Amendment (Article 16(4A)) that reservation in promotions was specifically qualified for SC/ST. 

Backwardness under Article 16(4) was guided by Article 340 which qualified the term as 'socially and educationally backward classes'. However, economic backwardness was not the determinant criterion of backwardness as per either Article 340 or the later inserted Article 15(4). The First Backward Class Commission (Kalelkar Commission of 1953) identified the relevant factors of backwardness as: traditional occupation, literacy, distribution of community, social position in caste hierarchy, and under-representation in government or industry. The Chairman, Kaka Kalelkar, had also advised the President against creating reservations solely on the basis of caste. But, the 1955 report was found unsuitable by the Centre and not adopted. Not heeding to Kalelkar's advice, reservations were granted to existing category of SC/ST without seeking to define Backward Classes. 

The Second Backward Class Commission (Mandal Commission of 1979) was constituted to re-identify 'backward classes'. However, between the Kalelkar Report and the Mandal Report, it was assumed that all SC/STs would automatically be qualified as Backward Classes as they were already enjoying benefits under Article 16(4). Therefore, what was being defined was a secondary category of backwardness in the form of OBCs. Even the terminology of 'Other Backward Classes' gave the hierarchy where the SC/STs were the primary, and the OBCs were the 'other'. This was a poor categorisation under Article 16(4) which only used the term Backward Classes and did not distinguish between OBC or SC/ST. Regardless, the violence of language would dictate that while on the latter the concept of 'creamy layer' applied, the same was absent for the former.

The Mandal Report had evolved an 11-point determinant of backwardness which spread across social, educational, and economic parameters. While all of these were meters to be classified as Backward Classes, the economic parameter gathered judicial scrutiny. In Indira Sawhney v. UOI, the Supreme Court stated that while OBCs were defined under the three broad parameters (social, educational, economic), their backwardness was still only social and educational, as per the guidance in Article 15(4) and Article 340. Therefore, mere economic disadvantage would not be adequate to categorise backwardness. Economic disadvantage was found as a suitable parameter to substantiate and define social and educational backwardness, and no more. Strong economic character would be indicative of social and educational opportunity. Ergo, economic ability would serve as a disqualification along with other indices which showed that social and economic backwardness was mitigated. This was the 'creamy layer'. Because the question before the Supreme Court in the Indira Sawhney case only related to OBCs and not all 'backward classes' under Article 16(4), therefore, the export of the 'creamy layer' was never made to SC/ST reservation. But when the Constitution had used the same expression to qualify both, then differing parameters could not be used to exclude members between the SC/STs and the OBCs.

There are constitutional differences between the SCs, the STs, and the OBCs. The purpose for defining SC/STs was also different from that of Backward Classes. For SC/STs, the function of the State was of negative protection-preventing continuing atrocities against socially excommunicated (Scheduled Castes) and tribal populations (Scheduled Tribes). On the other hand, Article 16(4) dealt with a positive protection-affirmative action measure, which was provided for all Backward Classes. Yes, unlike OBCs, the SC/ST community enjoys greater protection from the State in terms of Article 17 and Article 46 and laws like the Scheduled Caste and the Scheduled Tribe (Prevention of Atrocities) Act 1989. However, these measures are negative in their design, and different from reservations under Article 16(4).

'Should creamy layer apply in SC/ST reservation' is a question of how the court creates equability within Backward Classes. It would be just and equitable to apply the same parameters of 'backwardness' for both SC/STs and OBCs. If OBCs are disqualified on economic basis and other relevant considerations, the same should apply to SC/STs too because both enjoy the same protection under Article 16(4). Not doing the same would be a violation of Article 14's non-arbitrariness mandate because the Constitution does not distinguish between the two under Article 16(4). Where the Constitution treats them on a par (as Backward Classes), the State cannot have different criteria for inclusion and exclusion. 

'Creamy layer' does not prevent members of the SC/ST community from seeking legal recourse against untouchability, social exclusion, atrocities, or even community-culture protection. However, members cannot and should not cordon off actual beneficiaries by cornering in the name of their community's disadvantage.