Ecostani | Cabinet resolution against creamy layer is against the spirit of reservation
The influential tribals from hill states Himachal, Jammu and northeast have cornered most benefits under ST reservation at the cost of poorer tribals.
Last Friday, the Union cabinet passed a resolution saying there would be no “creamy layer” for Scheduled Caste (SC) and Scheduled Tribe (ST) categories, days after the Supreme Court called for the exclusion of the creamy layer from the ambit of SC /ST reservation.
The Cabinet decision came hours after BJP’s SC/ST Parliament members met Prime Minister Narendra Modi and said they had been assured that no step would be taken on the top court’s observations calling for the exclusion of the creamy layer.
On August 1, a seven-judge Constitution Bench of the Supreme Court, in a landmark 6-1 majority verdict, ruled that SCs do not constitute a socially homogeneous class and can be sub-classified by states for the purpose of providing reservation to the less privileged among them.
Four of the judges favoured excluding the creamy layer from the SC/ST quota ambit.
The concept of the creamy layer was not there when the Constitution introduced reservation for SC and STs in 1950. It was introduced following a landmark Supreme Court order in 1992 in the Indira Sawhney case while holding reservation to the Other Backward Classes (OBCs) constitutionally valid.
The court had then said that the creamy layer was not relevant for SC reservation on the ground that it was a different reservation from OBC as it was based on social exclusion through untouchability and not on just economic and social backwardness.
While the OBC reservation is applicable only to jobs and admissions in higher education, the SC/ST reservation applies to elections, in addition to these two, making it close to complete affirmative action.
On August 1 four of the five judges — G R Gavai, Vikram Nath, Pankaj Mittal and Satish Chandra Sharma — suggested that a creamy layer should be introduced for SC/STs although it should be different from the one for OBCs.
The judges were of the opinion that the reservation benefit should reach the most deprived or disadvantaged sections among SC/STs as the present reservation system was benefiting the empowered ones among these communities, defeating the very purpose of reservations.
Over the years, the argument for introducing a creamy layer for SC/ST has gained ground but there is not enough data available to suggest that the empowered among the Dalits and tribals have cornered most benefits of reservation.
The data provided by the Central government to the Standing Committee for Welfare of SC/ST communities in 2023 showed that Dalits and tribals get enough opportunity only at the lower level of service, Group C and D, and not at the level of Group A and B, as per the reservation granted for them — 15% for SC and 7.5% for ST.
This data showed that despite the reservation mechanism being in place for over 70 years, these communities have not been able to penetrate into the top echelons of the executive and judiciary, where reservation in postings does not apply, even though it appears that SC/ST have adequate representation in Central government jobs.
Not even 10% of the heads of departments in the Central government are from SC/ST communities even though they have a reservation of 22.5%. In the higher judiciary, they are not even five percent. The ratio of SC and ST workers to the total workforce reduces at top-level jobs in the government, employment data shows.
The National Sample Survey (NSS) survey on the socio-economic condition of different caste groups conducted in 2010 (no such survey has been done after that) showed that people from SC/ST communities in salaries jobs were much less than the proportion of their population despite reservation.
A study, ‘The Effectiveness of Jobs Reservation: Caste, Religion and Economic Status in India’, based on the NSS survey said that the reservation has increased representation of SC/ST communities in jobs by five percentage points and without reservation their representation would have been lower than Muslims and OBCs.
However, there is little research on the educationally and socially empowered among Dalits and tribals cornering most benefits of SC/ST reservation, although theoretically, that probability appears high. One can see that the children of the educationally and socially well-off Dalits and tribals benefit from reservation even though they have not faced any discrimination because of their caste and social status. The influential tribals from hill states Himachal, Jammu and North-Eastern states have cornered most benefits under ST reservation at the cost of poorer tribals.
The case for the creamy layer
Empirical studies and the SC have made a strong case for creamy layers in SC/ST reservations. The creamy layer concept for SC/ST reservation can be different from the OBC reservation creamy layer where the annual income of ₹8 lakh per year, high-ranking government jobs and large farm ownership are the exclusion criteria.
To be sure, the creamy layer for OBCs has not been revised for the past seven years.
While the sub-categorisation in SC reservation would introduce an aspect of the creamy layer where the empowered Dalits' share in the job quota will reduce, the government can consider some additional measures such as that if two generations of a family have received relevant benefits, the third one cannot, and if movable and immovable asset holding of a family has increased by a certain percentage, they will not have access to reservation benefits.
Like sub-categorisation, the introduction of the creamy layer concept in SC and ST reservations would benefit the needy and deprived among the Dalits and tribals and would end the hegemony of the influential in these communities.
The BJP Dalit MPs, who met the PM on the creamy layer issue, fear that they can lose their political position if the creamy layer is introduced. Most of the Dalit and tribal MPs would not be able to contest from reserved seats if the creamy layer is introduced unless an exception is made for them.
These MPs are doing a great disservice to the most deprived and backward in their communities by opposing the creamy layer category and a Cabinet resolution in this regard goes against the spirit of reservation in the Constitution.
Chetan Chauhan, national affairs editor, analyses the most important environment and political story in the country this week
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