Can SC apply Creamy Layer on SC/ST reservations

Should Creamy layer be apply on SC-ST Reservations

Issue :-

  • 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.

Plea’s Focus :-

  • 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.

Need to know about Constitutional Articles before going further :-

  • Article 16(4) :- Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.
  • Article 16(4A) :- Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.
  • Article 15(4) :- Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
  • Article 340 :- Appointment of a Commission to investigate the conditions of backward classes.

Constitutional Provisions :-

  • 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).

Backward Class Commission Reports :-

Kalekar Commission :-

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
  • 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.

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).

Mandal Commission :-

  • The Second Backward Class Commission (Mandal Commission of 1979) was constituted to re-identify ‘socially and educationally backward classes’.
  • The Mandal Report had evolved an 11-point determinant of backwardness which spread across social, educational, and economic parameters.
  • Therefore, what was being defined was a secondary category of backwardness in the form of OBCs.

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.

Judicial Scrutiny on OBC’s but not SC/ST :-

In Indira Sawhney v. UOI – Supreme Court Order

The Supreme Court stated that while OBCs were defined under the three broad parameters (social, educational, economic), but 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. Strong economic character would be indicative of social and educational opportunity. 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.

Constitutional Differences between SCs, STs & OBCs :-

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.
  • 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 ?

Yes, the court needs to create 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).

Article 14 :- The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India

Conclusion :-

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.

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