The Creamy Layer (Articles 15 & 16)

Minutes for 14th March 2018, Wednesday by Group 3

Group 2 presented on the topic of “Creamy Layer” (Art 15 & 16) and through our blog, we’ll be elucidating the minutes of the presentation.

WHAT IS THE "CREAMY LAYER"? WHAT ARE ITS ORIGINS?

'Creamy layer' originates from the French term 'crème de la crème' literally meaning 'the best of the best'. The term's usage was appropriated in Indian politics in reference to the relatively forward and better educated members of the Other Backward Classes (OBCs) who are ineligible for government-sponsored educational and professional benefit programs. The creamy layer criteria were defined as annual family income from all sources.

In October 2015, the National Commission for Backward Classes (NCBC) proposed that a person belonging to OBC with an annual family income of up to Rs.15 lakh should be considered as the minimum ceiling for OBC. The NCBC also recommended the sub-division of OBCs into 'backward', 'more backward', and 'extremely backward' blocs and divide 27% quota amongst them in proportion to their population, to ensure that stronger OBCs don't corner the quota benefits.

The concept of Creamy Layer was first used by Justice Krishna Iyer in the case of State of Kerala v. N.M. Thomas (1975). In his reasoning, Justice Iyer mentioned the Danger of using the Creamy Layer. The danger was three-fold:

1. Benefits are snatched away and this keeps weakest among the weak always weak
2. Groups whose burden of backwardness has been substantially lightened by the march of time and measures of better education and more opportunities of employment but wish to wear the 'weaker section' label as a means to score over their near-equals formally categorised as the upper brackets.
3. A lasting solution to the problem is improvement of social environment, more educational facilities and cross-fertilisation of castes by inter-caste and inter-class marriages sponsored as a massive State programme. This solution is calculatedly hidden from view by the higher 'backward' groups.

THE INDIRA SAWHNEY CASE

This case is known for its exclusion of the creamy layer or socially advanced population from within the sections of the OBCs who reaped the benefits of the reservation policies. The income limit was used as the test for determination.

However, it was held that the criteria for exclusion must not merely be economic, unless someone or some group advancement is unexpectedly high.

The Court held that Clause (4) or Article 16 aims at group backwardness and not individual backwardness. While we agree that Clause (4) aims at group backwardness, we feel that exclusion of such socially advanced members will make the 'class' a truly backward class and would more appropriately serve the purpose and object of Clause (4).

ANALOGY: AN INDIAN CARPENTER WORKING IN THE UAE 

Group 2 used an example to show the ambiguity of the criteria. An Indian carpenter’s annual income would be fairly well-off in INR. Therefore, is he to be excluded for the “Backward Class”? Will his family be deprived of benefits under Article 16 (4) of the Constitution?

However, if his social status rises to, say, that of factory owner, the scenario changes. His social status is such that he would be the one providing employment opportunities to others. His income will be a measure of his social status.

NATIONAL COMMISSION FOR BACKWARD CLASSES (NCBC)

The Supreme Court of India in its – Indira Sawhney & Ors. Vs. Union of India and Ors. directed the Govt. of India to constitute a permanent body in the nature of a Commission or Tribunal for entertaining, examining and recommending upon requests for inclusion and complaints of over-inclusion and under-inclusion in the list of OBCs.

Pursuant to the direction of the Supreme Court, the Government of India enacted the NCBC Act, 1993 for setting up a Commission at National Level viz. “National Commission for Backward Classes” as a permanent body.
 
The Act came into effect on the 2nd April, 1993. Section 3 of the Act provides that the Commission shall consist of five Members, comprising of a Chairperson who is or has been a judge of the Supreme Court or of a High Court; a social scientist; two persons, who have special knowledge in matters relating to backward classes; and a Member-Secretary, who is or has been an officer of the Central Government in the rank of a Secretary to the Government of India.

Powers of the NCBC:

1. Recommendation to the government of inclusion or exclusion of a community within OBCs
2. Hear complaints of OBCs and protect their interests.

Present Status:

The Union Cabinet gave the green light for setting up a National Commission for Socially & Educationally Backward Classes with constitutional status. The Cabinet also cleared a proposal for dissolving the National Commission for Backward classes and repealing the law under which it was established.

The Cabinet's decision followed demands for constitutional status for the National Commission for Backward Classes in order to allow it to hear the grievances of OBCs in the manner in which the National Commission for Scheduled Castes and National Commission for Scheduled Tribes do.

MANDAL COMMISSION

The Mandal Commission was established in India on 1 January 1979 by the Janata Party government under Prime Minister Morarji Desai with a mandate to "identify the socially or educationally backward classes" of India.

The Commission’s report in 1980 recommended that the members of OBC be granted reservations to 27 percent of jobs under the Central government and public sector undertakings. Thus, this took the total number of reservations for SC, ST and OBC to 49 percent.

On 7 August 1990, the VP Singh government accepted the Mandal Commission's recommendations and announced that it would implement the reservation scheme.

THE A.K. THAKUR CASE

The case is bound by Indira Sawhney Case which upheld Creamy Layer Exclusion for OBCs and challenged the validity of article 15(5).

It is suggested by the court that the union and state governments should issue appropriate guidelines to identify the “creamy layer.” On this issue of identification of OBC’s, the court is bound by the holding in Indira Sawhney that case could not be the sole determinant of backwardness. In the end, the case does not settle on how the creamy layer can be identified, only how OBC’s are identified.

Application Of Creamy Layer pertaining to  SCs And STs

• Indira Sawhney Case: The Creamy Layer exclusion is applicable specifically to OBCs.

• M Nagaraj Case: To opt for reservation of SC and STs, Government should devise a method to procure data which can prove their backwardness.

• AK Thakur Case: The Creamy Layer is actually a way of identifying who is socially and educationally backward. Bound by Indira Sawhney.

KERALA: ECONOMIC-CRITERIA FOR RESERVATION

The State Legislature of Kerala was reluctant to recognize and exclude the "creamy layer" from reservation because of the predominantly OBC population in the state. It is often contended that in the state of Kerala, Caste is no longer a tool for social domination but social bargaining.

The State Government did not do anything for a few years due to the fear of losing votes of particular communities. However, it was under the pressure of this "vote bank politics" and the influence of OBC groups which culminated in the passing of the Kerala State Backward Classes Act, 1995 which sought to exempt Kerala from the implementation of ‘creamy layer’ regulations by saying that no creamy layer existed in the state.

Kerala HC Questions the Need For Future OBC Reservations:

In 2010, the Kerala High Court in the case of Kerala Muslim Jama-ath Council v The State of Kerala challenged the constitutional validity of forward class reservations and the state government gave a 10% reservation to forward class Hindu’s below the poverty line.

AARAKSHAN

Through a scene in the movie 'Aarakshan', the group tried to show the discussion about reservations and how the privileged class are perhaps the ones turning away from competition. Saif Ali Khan dialogues demand for an “equal starting line” for all communities.

DISCUSSION

Q. Education in today’s world takes a toll on the general categories. Do reservations deny people who are more meritorious?
A. The group responded by stating that equality and justice comes at a cost and at this moment this cost was being borne by the general categories. Through providing reservations, Marc Galanter stated that we are only “righting our own wrongs”. Although the reservation system is flawed, do we have a better solution or alternative? It is hard to think of one.

Q. Does providing reservations to less meritorious people deprive us of development? Does upliftment outweigh development in our country?

A. Reservations seeks to provide an equal starting line which perhaps intertwines the concept of upliftment and development. No one really knows whether the so called meritorious population would actually lead to development. However, an argument that suggests that development is sacrificed because of upliftment seems flawed. People who we think are meritorious may not be so. Most of the time it comes down to who has the better opportunities.

Creamy layer is a concept which is perhaps a movement towards fine tuning the reservation system in order to ensure that the reservation policies are acquired by those who need it the most.

Q. Does reservation create more caste based division and antagonist feelings within a society that has always suffered from such issues?
A. Although, the abolishing caste was a major aim for our constitution, it has not materialized yet. However, if we do not provide reservations or do not work towards the upliftment of these “lower caste”, will the problem ever be solved? We acquired the reservation structure from a discussion from Justice Krishna Iyer and Marc Galanter. Similar systems are present in the United States.

Q. Will providing opportunities at the lower level of education, i.e. schools and kindergartens help the Backward Class and in turn abolish reservations from higher education such as colleges and universities?
A. A legislation has been implemented in Delhi that takes in the lower income strata. Teachers and schools are not trained to deal with people from a Backward Class. They are often looked down upon. If we provide them reservations at a lower level perhaps they would move to the Creamy Layer till they move to universities and colleges, and then remove them from OBCs hence purifying the system more and ensuring it reaches the needy.

FOOD FOR THOUGHT

Prof. Fischer posed an interesting conundrum asking whether compensation could replace reservation in policies of positive discrimination?  A 'one-time compensation' would not be able to justify centuries of oppression and denial of opportunities that the oppressed and under privileged sections of society faced. Therefore, the class came to a consensus that reservations are necessary but their implementation is riddled with flaws and infested with loopholes.