There is a growing view in the Congress and the UPA that a constitutional amendment, stating that reservation will not be limited or denied, is the only viable option to deal with the Supreme Court ruling that calls for removing the creamy layer among scheduled castes and scheduled tribes from the ambit of reservation.
While the Left and parties like the Lok Janshakti have opposed the concept of a creamy layer, the Congress prefers a deliberative and consensual approach while maintaining its role as head of the coalition and avoiding a clash with the judiciary.
It will finalise its stand after the Congress Working Committee has first taken stock of the development and the party has conferred with its UPA partners, including its Left allies.
"The Congress view will be the view which will be finalized after consulting the UPA allies,’" said Abhishek Singhvi, vice-chairman of the AICC’s Media Department.
Once the UPA’s official line is hammered out, Prime Minister Manmohan Singh is likely to call an all party meeting before Parliament’s winter session starts on November 22 to discuss the issue on which the legislature and judiciary seem to differ.
Even otherwise, there is a clash of perspectives on the concept itself. While the legal argument sees it as a violation of the principle of equality, the "birthmark" (of being born as an SC and ST) is considered a strong social and political argument against creaming.
Besides. the Constitution talks only of reservations for SCs and STs and not of a creamy layer. Questions are bound to be raised about the implications of skimming the SCs and STs when the creamy layer concept was actually linked to the application of quotas for other backward classes.
"There can be scope for debate on whether the creamy layer cut off should apply to the judicially evolved OBC category. But it is the first time that a judgement has applied the creamy layer concept that was born in the context of the OBCs to the SCs and STs," said Singhvi.
He added, "SCs/STs constitute a constitutionally prescribed category and the founding fathers, while writing SCs and STs into our Constitution chose not to limit it by any creamy layer concept. Inevitably, this will be course of the future debate."
He saw a "mismatch" between the SC/STs and the OBCs since the former is entitled to certain constitutional rights and privileges from birth while the idea of a creamy layer in the OBCs stemmed from the post-Mandal agitation.