Sub-classification of SCs, STs: Could OBC model for ‘creamy layer’ be a blueprint?

How can such a policy be formulated? The model of Other Backward Classes (OBC) reservations can provide a blueprint.

What does ‘creamy layer’ refer to?

The concept of a creamy layer arose out of the landmark Indra Sawhney ruling in 1992.

Based on the recommendation of the Mandal Commission, the V P Singh government on August 13, 1990, had notified 27% reservation for Socially and Educationally Backward Classes (OBC reservation) in civil posts and services. This was challenged in the Supreme Court by Indra Sawhney and others.

On November 16, 1992, a nine-judge Bench headed by Justice B P Jeevan Reddy, upheld the 27% OBC reservation subject to exclusion of the creamy layer, or the more socially, economically, and educationally advanced members among OBCs. This was done in order to ensure that reservation benefits go to those who need it the most.

The creamy layer is not the same as sub-classification or sub-categorisation. The latter refers to community/caste wise breakdown of a reserved category (like SC) based on various socio-economic or other criteria. Creamy layer, however, refers to a group of people within a certain caste/community who are better off than the rest based on certain criteria.

How is creamy layer among the OBC identified?

The logic of determining the creamy layer was made by an expert committee headed by the retired Justice Ram Nandan Prasad, which was constituted following the Indra Sawhney judgement.

The committee submitted its report on March 10, 1993, based on which, on September 8, the Department of Personnel and Training (DoPT) listed six categories of people whose children would be considered to fall in the creamy layer. These are:

* Constitutional/statutory post;

* Group ‘A’ and group ‘B’ officers of central and state governments, employees of PSUs and statutory bodies, universities;

* Colonel and above in armed forces and equivalent in paramilitary forces;

* Professionals like doctors, lawyers, management consultants, engineers etc;

* Property owners with agricultural holdings or vacant land and/or buildings; and

* Income/wealth tax assessee.

The creamy layer comprises two broader categories (besides persons holding constitutional post) — people whose parents are/were in government service, and those whose parents work/worked in the private sector. For the latter, the creamy layer determination is based on their parents’ income, while for the former, the determination is based on rank.

Originally, the income threshold was fixed at Rs 1 lakh per annum, with a provision for this figure to be revised every three years. However, since 2017, when the threshold was updated to Rs 8 lakh, no further revision has taken place. In 2015, the National Commission for Backward Classes (NCBC) had recommended raising the income threshold to Rs 15 lakh, however no action was taken in this regard.

For children of government service, either parent being recruited as a group-A officer (the highest category government servants in India), or becoming a group-A officer via promotion prior to the age of 40, makes one ineligible for OBC reservation. Both parents being group-B officers also puts someone in the creamy layer. Similarly, children of a colonel or those of higher ranks in the Army, and of equivalent ranks in the Navy and Air Force, too, fall in the creamy layer.

The union government constituted a committee headed by former DoPT secretary B P Sharma in March 2019 to review this criteria. But no progress has been made in this regard.

How might the creamy layer among SC and ST be decided?

In his opinion, Justice Gavai stated that “the criteria for exclusion of the creamy layer from the Scheduled Castes and Scheduled Tribes for the purpose of affirmative action could be different from the criteria as applicable to the Other Backward Classes”. However, he stopped short of providing a definitive criteria for how this determination may be made.

Justice Pankaj Mithal in passing hinted at one possible criteria that might be used. He said, in his opinion, that “It has rightly been observed that a child studying in St Stephen’s College or any good urban college cannot be equated with a child studying in a rural school/college and that he cannot be grouped into the same bracket.”

Compared to OBCs, the SC creamy layer issue is fraught. Despite the benefits of affirmative action, can the historic injustices of caste be wiped out? For OBCs the economic and social criteria perhaps allows upward mobility from backwardness but the same cannot be said for SCs and STs.

Nonetheless, the apex court ruling leaves the final decision to states on whether to create a creamy layer exception and if so, how to do it. They will likely have to constitute a committee on the lines of the Justice R N Prasad Committee for OBC reservations.