The Creamy Layer Sans Cream

The Creamy Layer Sans Cream Which creamy layer are we talking about when there is just one Secretary from the Scheduled Castes in the Central government?
PS Krishnan

After a gap of many years a Balmiki boy, the son of a Group ii Scheduled Caste (SC) officer, has made it to the recent batch of the Indian Administrative Service. This flowering in a blue moon would have been nipped in the bud in case Group ii SC officers’ children were made ineligible for reservation by applying the ‘creamy layer’ concept.
Of the hundred-odd secretaries in the Government of India, there is only one from the SCs, which is even less than what it was 10 years ago, and only two from the Scheduled Tribes (ST). At present when no SC or ST is excluded as creamy layer, the posts reserved for them — 15 percent and 7.5 percent respectively at the Centre — are far from being filled in Group a and b posts even after about six decades. The number of ST employees is below the quota even in Groups c and d. Excluding some as creamy layer will only further reduce the present below-par SC and ST numbers in government jobs, in violation of the basic constitutional principles of Equality, Social Equality, Social Justice and Reservations.
The idea of Socially Advanced Persons/Sections (SAPS), popularly known as the creamy layer, can conceptually arise only in respect of castes/communities identified on the basis of social backwardness, viz the Socially and Educationally Backward Classes (SEBDC), better known as the Other Backward Classes (OBCs). SCs have been identified not on the basis of social backwardness but something much more degrading — ‘Untouchability’. The creamy layer concept cannot be applied to those whose marker is not social backwardness in the first place. The transition required for SCs is from untouchability to non-untouchability, not from social backwardness to social advancement. Given that even SC civil servants experience untouchability, that process is far from over. Similarly, STs have been identified on the basis of tribal ethnicity and distinct cultural traits, not social backwardness.
The majority judgement in the Indra Sawhney (Mandal) case has described the inegalitarian “four-tier (chaturvarnya) system” of Indian society, by which “the outcastes (Panchamas), the lowliest” and the Sudras, also lowly, “though certainly better than the Panchamas,” were left at great disadvantage. The judgement read, “The lowliness attached to them (Sudras and Panchamas) by virtue of their birth in these castes is unconnected with their deeds. There was to be no deliverance from this social stigma, except perhaps death. They were condemned to be inferior. All lowly, menial and unsavoury occupations were assigned to them — this was a phenomenon peculiar to this country.”

The transition required for the SCs is from untouchability to non-untouchability, not from social backwardness to social advancement

The SCs are the Panchamas of old. There is no dearth of statistics and data of the continuing deprivation, humiliation and exploitation of the SCs even today. From my experience of over 50 years all over India, I can say that untouchability continues to be virulent to this day, often culminating in inhuman atrocities. Three news-reports and other reports in October alone (in Kadkol village in Karnataka’s Bijapur District, Kherlanji village in Maharashtra’s Bhandara district, and in Punjab’s Mansa village) describe the infliction of gang rapes, massacres, social and economic boycott on SCs.
We must look at the history of the advancement of the upper castes for a contextual look for any debate on reservations and the creamy layer. Attracted by the prospect of employment under the British, the upper castes began to avail themselves of English education from the mid-19th Century. Their standards of education then were nowhere near their standards today. The first two Indian graduates, including Bankim Chandra Chatterjee, had to be given grace marks to enable them to pass. Thereafter, from generation to generation they progressed, each generation standing on the shoulder of the previous one, and that is how they have risen to their present level of eminence. Simultaneously, by collective force they prevented/delayed the entry of lower castes into even primary schools. The caste-based monopoly thus built up was dented when, from 1902 to 1935, reservations were introduced in the Presidencies and princely states for Backward Classes and SCs, and later on all-India basis in the Constitution in 1950.
The process by which the upper castes progressed has now to be made available in full without impediment for the SCs, the STs as well as the OBCs. Reservations are an instrument to enable them to rise to the level of today’s upper castes. To prematurely interrupt this process with new impediments would militate against the achievement of the Constitutional goal of Social Justice, to bring about Equality in all fields and at all levels. Reservations are thus part of the basic structure of the Constitution. It must be remembered that we are talking here about the fundamental rights of about 70 percent of India’s population and, through their full development, India’s optimal progress.
The judgement of a five-member Supreme Court bench on October 19, 2006 on the writ petitions of M. Nagaraj and others focused on the validity of the Constitutional amendment that restored reservations to SCs and STs in promotion. The judgement was understood by almost all of the media, civil society and political circles as the first ever judicial direction to exclude the creamy layer from the ambit of reservation for SCs and STs in government jobs, in both recruitment and promotion.
The concept of excluding the creamy layer was first expounded by a nine-member Constitutional bench of the Supreme Court in 1992 in the Indra Sawhney (Mandal) case pertaining to reservation for the OBCs in Central government employment, in which it laid down that “this discussion is confined to the OBCs and has no relevance in the case of STs and SCs”. It directed that “the Government of India shall specify the bases to exclude socially advanced persons/sections (creamy layer) from OBCs”.
It is thus clear that according to the nine-member Constitution bench, the creamy layer concept does not apply to SCs and STs. A five-member bench of the court, as in the M. Nagaraj case, cannot overrule the judgement of a larger bench and cannot extend the creamy layer-based rule of exclusion to SCs and STs. The Nagaraj judgement rightly says that “we are bound by the decision in Indra Sawhney”, which applies to this too.
There are two voices partly or wholly differing from the predominant understanding of the import of Nagaraj. Writing in The Indian Express, Pratap Bhanu Mehta has said that the exclusion of the creamy layer from reservation for SCs and STs applied only to promotion and not to recruitment. More significantly, KV Viswanathan has written in The Hindu, “In the judgement in the Nagaraj case, it has not even been remotely suggested that the concept of creamy layer should apply to the SC.” He has drawn support from judgements in the EV Chinnaiah case (2005) and Mandal cases.
It may be useful here to quote from the Nagaraj judgement: “The State is not bound to make reservation for SC/ST in matter of promotions. However if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance of Article 335. It is made clear that even if the State has compelling reason, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling limit of 50 percent or obliterate the creamy layer or extend the reservation indefinitely”.
There is room for the fear that this wording and context will enable anti-reservationists among the implementing authorities to go by the predominant interpretation (rather than Viswanathan’s) and issue orders imposing the concept of the creamy layer on SCs and STs. A precedent is the way in which a judgement on reservation in promotions in 1995 in Punjab was grossly misunderstood/misinterpreted, and the reservation roster was revised in 1997 to the disadvantage of the SCs and STs.
In view of this, in case the intention of the Supreme Court in the Nagaraj case and the correct import of that judgement is not to prescribe the exclusion of creamy layer from reservation for SCs and STs, I feel it is desirable that this is authoritatively clarified at the earliest. The filing of a review petition by one of the parties would be a long drawn-out affair. I have the greatest respect for the Supreme Court and its crucial position in strengthening the people’s confidence in Constitutional governance. To quickly terminate the raging controversy, it is respectfully submitted that the Supreme Court may like to consider undertaking a suo motu review, which can be done expeditiously, with the assistance of a fully knowledgeable amicus curiae, and remove the misunderstanding (if the predominant interpretation is a misunderstanding) and clarify that there is no direction in the Nagaraj judgement to apply the creamy layer concept to SCs and STs.
The Supreme Court has a history of making creative innovations in the interest of justice. A suo motu review could be another, using the opportunity for clarifications on certain other points too.
Krishnan advises the HRD ministry on reservations. These are his personal views

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