Author Name:   arkodayroy1

This is an informative article discussing the Mandal Commission, which was set up for identifying the SEBCs in India came out with the recommendation of excluding the Creamy layer out of any reservation scheme for the SEBCs & OBCs. The rationale behind being that caste was not the sole criterion for such classification in the society and it included economic peripherals as well. National Commission for Backward Classes came out with Persons/Sections excluded from reservation which constitute Creamy Layer of the Society. Thus clearing the air of present day uncertainty related to creamy layer exclusion from the schemes of reservation.

Creamy Layer:
The Mandal Commission View - The Present Day Exclusion

“The exclusion of creamy layer from the beneficiaries of reservations is a constitutional requirement to be honoured by the Central and State Governments”-Supreme Court of India

The Mandal Commission in India was established in 1979 by the Janata Party government under Prime Minister Morarji Desai with a mandate to "identify the socially or educationally backward." It was headed by Indian parliamentarian Bindheshwari Prasad Mandal to consider the question of seat reservations and quotas for people to redress caste discrimination, and it used eleven social, economic, and educational indicators to determine "backwardness". In 1980, the commission's report affirmed the affirmative action practice under Indian law whereby members of lower castes (known as Other Backward Classes and Scheduled Castes and Tribes) were given exclusive access to a certain portion of government jobs and slots in public universities, and recommended changes to these quotas, increasing them by 27% to 49.5% but the creamy layer was excluded from the overview of reservations[1].

Creamy Layer
The term "creamy layer" was first used during the 1992 Supreme Court judgment (Indira Sawhaney v. Union of India[2]) on the Mandal Commission recommendations asking for 27% reservations for other backward classes (OBCs) in central government jobs. While the Supreme Court meant that the more privileged among the backward classes do not dominate the reserved categories, the bare bones of the criteria for judging the creamy layer was left with the state governments.

Many state governments did come up with some criterion while others like Kerala have not. Some principles have been laid down by the Supreme court in the 1992 judgment on the creamy layer. These include children of constitutional functionaries including the President, Vice-President and Judges of the Supreme Court and High Courts. Children of the members of the Union Public Service Commission (UPSC) are also excluded as are Group A and B or Class I and II officers of all-India and state services. Children of certain public sector employees are also excluded. Certain property-related ceilings, on irrigated and unirrigated land holders, and plantation owners have also been imposed, and in certain cases children whose parents have an annual income of over Rs 2.5 lakhs( in 2008 the ceiling being increased to Rs 4.5 lakhs) are also excluded. Children of doctors, dentists, engineers, chartered accountants, IT consultants, media professionals, authors, and sports professionals are also included in the creamy layer.

Establishment Of The Mandal Commission
The plan to set up the commission was taken by the Morarji Desai government in 1978 as per the mandate of the Constitution of India under article 340 for the purpose of Articles like 15 and 16 of the Constitution of India. The decision was made official by the president on 1st January, 1979. The commission is popularly known as the Mandal Commission, its chairman being B.P. Mandal[3].

The Commission, after a very thorough scientific investigation has with the help of experts from various disciplines worked out 11 indicators to determine social backwardness. These indicators are social, educational and economic, and as the major controversy resolves around the caste criteria allegedly adopted by the commission, it would be relevant to reproduce the actual criteria used by the Commission. The 11 indicators[4] formulated by the commission are

Social
Castes/classes considered as socially backward by others.
Castes/classes which mainly depend on manual labour for their livelihood.
Castes/classes where the percentage of married women below 17 is 25% above the state average in rural areas and 10% in urban areas; and that of married men is 10% and 5% above the state average in rural and urban areas respectively.
Castes/classes where participation of females in work is at least 25% above the state average.

Educational
Castes/classes where the number of children in the age group of 5 to 15 years who never attended school is at least 25% above the state average.
Castes/classes where the rate of student drop-out in the age group of 5-15 years is at least 25% above the state average.
Castes/classes amongst whom the proportion of matriculates is at least 25% below the state average

Economic
Castes/classes where the average value of family assets is at least 25% below the state average.
Castes/classes where the number of families living in kachcha (temporary) houses is at least 25 % above the state average.
Castes/classes where the source of drinking water is beyond half a kilometer for more than 50% of the households.
Castes/classes where the number of the house-holds having taken a consumption loan is at least 25% above the state average.

Controversy Surrounding The Mandal Commission Report Recommendations
The controversy generated by the recommendations of the Mandal Commission obfuscated many issues which needed a deeper analysis. There is no doubt that the main recommendations and the demand for their implementation were to be supported from the viewpoint of democratization of Indian society.

The main objection of the critics of the recommendations was the use of the case/community criteria to analyze backwardness. But when India is stated as a backward country, it is normally stated in terms of a mass of statistics about the number of people over the poverty line, the number of illiterates etc., the people are portrayed as an amorphous mass of human beings. However, the backward are people closely tied into the caste or community that they were born into, connected by thousands of threads by the work they do and the cultural, traditional practices they still follow into a structure that has come down to us since centuries. And we know that over 75% of our people live within these relations in poverty and backwardness.

This aspect of reality was forgotten by those who forwarded a more progressive sounding argument - that only economic criteria should be used for reservations. On the one hand there were protestors who were against caste as a criterion. On the other were those who voiced an unqualified support for the Commission's recommendations as being revolutionary in their sweep. Both failed to observe the real base and thereby limitations of the Commission's approach and recommendations[5].

Limitations
It can be said that the undemocratic nature of Indian society lies not merely in the restrictions on our fundamental rights or their non-implementation, but is connected to the economic and political structure of our society. For, without basic amenities to a decent life, the fundamental rights themselves cannot be enjoyed. In India, land is concentrated in the few hands (10% of rural households control almost 55% of cultivable land while 35.23% own hardly 2.07% of land). Industry too is highly concentrated in the hands of the top business house. Thus the caste system still operates. Social and economic power is monopolized by a small proportion of the population.

It was in the context of this structure of our society that the evaluation of the recommendations and acceptance of their limitations are to be done. The recommendations centre on reservation of 27% of all central government jobs for the OBC. The campaigns for the implementation of the Mandal Commission recommendations have also focused only on this demand. Therefore, though there are other recommendations in the report, for instance, land reforms, cooperatives for artisans, they have not been discussed much and the main debate of both, proponents and opponents, has centered on the reservation of jobs and seats in educational institutions.

But, in giving its assent to the Government order for implementation of the Mandal Commission report, the Supreme Court in 1992 not only limited overall reservation to 50 per cent; thereby in effect reserving 50 per cent for the ``forward castes'', but also inserted the economic exclusion clause under the name of ``creamy layer''. The term “creamy layer” was used both to refer to the slightly better off economically, among the backward castes (could not be applied to the Dalits and Adivasis) and to better off jatis among them.

National Commission for Backward Classes
As per the direction of the Supreme Court in the Indra Sawhney case, a permanent mechanism was created, namely, the National Commission for Backward Classes under an Act. This Commission had the responsibility and the power to consider requests for inclusion in the lists of backward classes, and complaints of over-inclusion or under-inclusion. In the process, some of the communities that were in one list, and not in the other, were not included. Those who were in neither list also came up. A number of them were rejected. The Commission advises the government and the government invariably complies with the Commission's advice, because the Act says that the advice of the Commission is ordinarily binding on the government, which is what the Supreme Court laid down. The Commission then advised the inclusion of 200-odd communities, making up a total of 2,200-odd communities. The Supreme Court rightly observed in the Indra Sawhney case that the Central government did not accept the whole Mandal list. They have only included those communities that are common to both the Mandal list and the State lists. Thus it is virtually the State lists [that prevailed]. All the State lists had withstood the test of time and judicial scrutiny. Many of them had gone to the Supreme Court in different cases. In all these cases, the Supreme Court had upheld all these lists. All the criticisms now being made were also raised at that time. All these arguments were repeated in the Mandal case (Indra Sawhney) but were rejected by the Supreme Court[6].

Persons/Sections Excluded from Reservation which constitute Creamy Layer of the Society[7]
Description of Category To whom rule of exclusion will apply.

I. Constitutional Posts: Son(s) and daughter(s) of
(a) President of India;
(b) Vice President of India;
(c) Judges of the Supreme Court and of the High Courts;
(d) Chairman & Members of UPSC and of the State Public Service Commission; Chief Election Commissioner; Comptroller & Auditor General of India;
(e) Persons holding Constitutional positions of like nature.

II.Service Category
A. Group A/Class 1 officers of the All India Central and State Services (Direct Recruits) Son(s) and daughter(s) of

(a) Parents, both of whom are Class I officers;
(b) parents, either of whom is a Class I officer;
(c) parents, both of whom are Class I officers, but one of them dies or suffers permanent incapacitation.
(d) parents, either of whom is a Class I officer and such parent dies or suffers permanent incapacitation and before such death or such incapacitation has had the benefit of employment in any International Organisation like UN, IMF, World Bank, etc. for a period of not less than 5 years.
(e) parents, both of whom are class I officers die or suffer permanent incapacitation and before such death or such incapacitation of the both, either of them has had the benefit of employment in any International Organisation like UN, IMF, World Bank, etc. for a period of not less than 5 years.
(f) Provided that the rule of exclusion shall not apply in the following cases :-

(a) Sons and daughters of parents either of whom or both of whom are Class-I officers and such parent(s) dies / die or suffer permanent incapacitation.
(b) A lady belonging to OBC category has got married to a Class-I officer, and may herself like to apply for a job.

B. Group B/Class II officers of the Central & State Services (Direct Recruitment) Son(s) and daughter(s) of

(a) parents both of whom are Class II officers.
(b) parents of whom only the husband is a Class II officer and he gets into Class I at the age of 40 or earlier.
(c) parents, both of whom are Class II officers and one of them dies or suffers permanent incapacitation and either one of them has had the benefit of employment in any International Organisation like UN, IMF, World Bank, etc. for a period of not less than 5 years before such death or permanent incapacitation;
(d) parents, of whom the husband is a Class I officer (direct recruit or pre-forty promoted) and the wife is a Class II officer and the wife dies; or suffers permanent incapacitation; and
(e) parents, of whom the wife is a Class I officer (Direct Recruit or pre-forty promoted) and the husband is a Class II officer and the husband dies or suffers permanent incapacitation.

Provided that the rule of exclusion shall not apply in the following cases: Sons and daughters of
(a) Parents both of whom are Class II officers and one of them dies or suffers permanent incapacitation.
(b) Parents, both of whom are Class II officers and both of them die or suffer permanent incapacitation, even though either of them has had the benefit of employment in any International Organization like UN, IMF, World Bank, etc. for a period of not less than 5 years before their death or permanent incapacitation.

C. Employees in Public Sector Undertakings etc. The criteria enumerated in A & B above in this Category will apply mutatis mutandi to officers holding equivalent or comparable posts in PSUs, banks, Insurance Organizations, Universities, etc. and also to equivalent or comparable posts and positions under private employment, Pending the evaluation of the posts on equivalent or comparable basis in these institutions, the criteria specified in Category VI below will apply to the officers in these Institutions.

III. Armed Forces Including Paramilitary Forces[8]
(Persons holding civil posts are not included) Son(s) and daughter(s) of parents either or both of whom is or are in the rank of Colonel and above in the Army and to equivalent posts in the Navy and the Air Force and the Para Military Forces;

Provided that:-
(i) if the wife of an Armed Forces Officer is herself in the Armed Forces (i.e., the category under consideration) the rule of exclusion will apply only when she herself has reached the rank of Colonel;

(ii) the services ranks below Colonel of husband and wife shall not be clubbed together:

(iii) if the wife of an officer in the Armed Forces is in civil employment, this will not be taken into account for applying the rule of exclusion unless the falls in the service category under item No.II in which case the criteria and conditions enumerated therein will apply to her independently.

IV.  Professional Class And Those Engaged In Trade And Industry
(I) Persons engaged in profession as a doctor, lawyer, Chartered Accountant, Income- Tax Consultant, financial or management consultant, dental surgeon, engineer, architect, computer specialist, film artists and other film professional, author, playwright, sports person, sports professional, media professional or any other vocations of like status. Criteria specified against Category VI will apply:

(II) Persons engaged in trade, business and industry: Criteria specified against Category VI will apply:

Interpretation:
(i) Where the husband is in some profession and the wife is in a Class II or lower grade employment, the income / wealth test will apply only on the basis of the husband's income.

(ii) If the wife is in any profession and the husband is in employment in a Class II or lower rank post, then the income/wealth criterion will apply only on the basis of the wife's income and the husband's income will not be clubbed with it.

V. Property Owners[9]
A. Agricultural holdings -- Son(s) and daughter(s) of persons belonging to a family (father, mother and minor children) which owns

(a) only irrigated land which is equal to or more than 85% of the statutory ceiling area, or
(b) both irrigated and unirrigated land, as follows:

(i) The rule of exclusion will apply where the pre-condition exists that the irrigated area (having been brought to a single type under a common denominator) 40% or more of the statutory ceiling, limit for irrigated land (this being, calculated by excluding the unirrigated portion). If this pre-condition of not less than 40% exists, then only the area of unirrigated land will be taken into account. This will be done by converting the unirrigated land on the basis of the conversion formula existing, into the irrigated type. The irrigated area so computed from unirrigated land shall be added to the actual area of irrigated land and if after such clubbing together the total area in terms of irrigated land is 80% or more of the statutory ceiling limit for irrigated land, then the rule of exclusion will apply and dis-entitlement will occur.

(ii) The rule of exclusion will not apply if the land holding of a family is exclusively unirrigated.
B. Plantations
(i) Coffee, tea, rubber, etc.
(ii) Mango, citrus, apple plantations etc.

Criteria of income/wealth specified in Category VI below will apply.
Deemed as agricultural holding and hence criteria at A above under this Category will apply.

C. Vacant land and/or buildings in urban areas or urban agglomerations: Criteria specified in Category VI below will apply.

Interpretation:
Building may be used for residential, industrial or commercial purpose and the like two or more such purposes.

VI. Income/Wealth Test[10] Son(S) And Daughter(S) Of

(a) Persons having gross income of Rs.1 lakh or above or possessing wealth above the exemption limit as prescribed in the Wealth Tax Act for a period of three years.

(b) Persons in Categories I, II, III and VA who are not disentitled to the benefit of reservation but have income from other sources of wealth which will bring them within the income/wealth criteria mentioned in (a) above.

Interpretation:
(i) Income from salaries or agricultural land shall not be clubbed;
(ii) The income criteria in terms of rupee will be modified taking into account the change in its value every three years. If the situation, however, so demands, the interregnum may be less.

Rationale Behind Creamy Layer Exclusion
It cannot be said that backward class has been identified solely on the basis of caste. The only possible objection that could be agitated is that in many of the castes included in OBC list, there may be an affluent section (creamy layer) which cannot be included in the list of SEBCs. When socially and educationally backward classes are determined by giving importance to caste, it shall not be forgotten that a segment of that caste is economically advanced and they do not require the protection of reservation.

They are excluded because unless this segment of caste is excluded from that caste group, there cannot be proper identification of the backward class. If the ‘creamy layer’ principle is not applied, it could easily be said that all the castes that have been included among the SEBCs have been included exclusively on the basis of caste[11].

By excluding those who have already attained economic well-being or educational advancement, the special benefits cannot be further extended to them and, if done so, it would be unreasonable, discriminatory or arbitrary resulting in reverse discrimination.

As far as the parameters for identification of creamy layer are concerned, the office memorandum dated September 8, 1993 (specifying upper income limit of Rs.2.50 lakh per annum and giving categories of persons excluded for availing reservation) may be applied. OBC should be deemed to mean SEBC after exclusion of creamy layer.

For implementing the [quota] statute creamy layer must be excluded. The Central government shall examine as to the desirability of fixing cut-off marks in respect of candidates belonging to the OBCs. This would ensure quality and merit would not suffer. If any seats remain vacant after adopting such norms they shall be filled up by candidates from general categories.

So far as determination of backward classes is concerned, a notification should be issued by the Union of India after exclusion of the creamy layer for which necessary data must be obtained by the Central and State governments. To strike the constitutional balance it is necessary and desirable to earmark certain percentage of seats out of permissible limit of 27 per cent for socially and economically backward classes.

For identifying backward classes, the Commission set up pursuant to the directions of the court [in the Mandal case judgment] has to work more effectively and not merely decide applications for inclusion or exclusion of castes. While determining backwardness, graduation (not technical graduation) or professional [graduation] shall be the standard test yardstick for measuring backwardness.

Failure to exclude creamy layer would render the quota law unconstitutional.

Effects Of Creamy Layer Exclusion
The costs to the nation of inserting the ``creamy layer'' exclusion clause have been considerable. Financial and administrative costs have mounted with the continual national and State-level Government commissions designed to set up criteria for determining a ``creamy layer'', with continual court cases focusing on this issue. The Supreme Court has even forced States such as Kerala, whose own experts had determined that there was no ``creamy layer'' in the State, to find one, regardless - or be liable for ``contempt of court''. All of this has provided considerable employment for social science ``experts'' but it has added little to the information available about caste and occupation in India. It has certainly stalled implementation of the Mandal Commission recommendations.

If the ``creamy layer'' clause were actually enforced rigorously at determined levels, it would have the effect of excluding today even children of Class III Government employees or moderately well-off farmers. But it is not of course rigorously enforced; it has simply added to the burden of bribery upon those hoping for employment for their children and has provided another source of under-the-table income for the local-level officials who provide the certificates.

Thus the reservation system was instituted not so much on the basis of the Constitution as on that of the decades-old elite resistance to restructuring public employment. It serves several purposes. It allows the elite to maintain the facade of a generous patron of Dalits and Adivasis while continuing to deprive them of mass-level education and access to resource. It provides a process to absorb some of their brightest members into a system still based more on extortion and corruption than true public service. Finally, it continues to block a true representation of the majority of the nation's population, a representation which the founders and leaders of the anti-caste movement had always seen as part of a full-scale political and social-economic transformation[12].

Creamy Layer Rule Does Not Apply To Scs & Sts
The issue of excluding the creamy layer among SCs and STs have not arisen much for consideration. That issue was already settled in 1992 by a larger bench of nine judges (Indra Sawhney v. Union of India — the `Mandal case,') and also in 2004 by a co-ordinate bench of five judges (E.V. Chinnaiah v. State of Andhra Pradesh and Others[13]) by holding that the concept of creamy layer had no application to SCs and STs. The October 19, 2006 judgment in the M. Nagaraj v. Union of India[14] case by five judges could not and, in fact, does not derogate from these earlier pronouncements.

In 1992, the Supreme Court ruled that reservation for backward classes (which include OBCs and SCs & STs) should be confined to initial appointments and not extend to promotions. To get over this verdict, Article 16(4A) was introduced to enable reservations to be made in promotions for SCs and STs. Soon thereafter, the apex court held that even if reservations could be allowed in promotions, seniority could not be granted to a person thus promoted, once the general candidate "caught up" with him or her in the promoted post. To neutralise this, Article 16(4A) was further amended to grant consequential seniority to a person promoted from a reserved quota.

Parliament had earlier introduced Article 16(4B). This sub-Article was significant since it was not confined to SCs and STs but theoretically applied to OBCs also. This sub-Article said that if any unfilled reserved vacancy was carried forward, such unfilled vacancies should not be counted while calculating the ceiling of 50 per cent of reservation. The petitioners before the Supreme Court challenged the above amendments along with one more amendment made to Article 335, which enabled the relaxation in qualifying marks for SC and ST candidates. The Supreme Court had to address a crucial issue, namely whether any or all of these amendments were violative of the basic structure of the Constitution, since that is the only ground available in law to challenge a constitutional amendment[15].

After an elaborate discussion[16], the Supreme Court had held that the amendments could not be faulted since the boundaries of the width of the power, namely the ceiling limit of 50 per cent, the principle of creamy layer, the compelling reasons, that is, backwardness, inadequacy of representation, and overall administrative efficiency, were not obliterated by the amendments. It was only in the context of elucidating the structure of equality of opportunity in Article 16 that the court referred to these principles. The court also ruled that the individual enactments of States providing for reservations would have to be decided keeping these principles as touchstones.

Referring specifically to Article 16 (4B), which applied to OBCs and SCs & STs, the court said:
"In the case of Article 16(4B) we must keep in mind that following the judgment in R.K. Sabharwal[17] the concept of post-based roster is introduced. Consequently, specific slots for OBC, SC and ST as well as GC have to be maintained in the roster. For want of candidate in a particular category the post may remain unfilled. Nonetheless, that slot has to be filled only by the specified category. Therefore, by Article 16(4B) a classification is made between current vacancies on one hand and carry-forward / backlog vacancies on the other hand. Article 16(4B) is a direct consequence of the judgment of this court in R.K. Sabharwal by which the concept of post-based roster is introduced. Therefore, in our view Articles 16(4A) and 16(4B) form a composite part of the scheme envisaged. Therefore, in our view Articles 16(4), 16(4A) and 16(4B) together form part of the same scheme. As stated above, Articles 16(4A) and 16(4B) are both inspired by observations of the Supreme Court in Indra Sawhney and R.K. Sabharwal. They have nexus with Articles 17 and 46 of the Constitution. Therefore, we uphold the classification envisaged by Articles 16(4A) and 16(4B). The impugned constitutional amendments, therefore, do not obliterate equality. "

Firstly, the conclusions, which were separately set out in the judgment, read by themselves and with the body of the judgment made it amply clear that the phrase "creamy layer" was used only for the reason that a composite challenge had been made and the court was dealing with the validity of the amendments together. On such a compendious consideration of the Articles enshrining the equality code, namely Article 14, 16(1), 16(4), 16(4A), and 16(4B), the court had necessarily to set out the broad contours and the underlying principles.

It is while identifying those salutary facets of the equality clause, which constitute the basic structure that the Court adverted to the creamy layer principle. The court was at pains to distinguish the principles of equality, which constitute the basic structure, and the principles of service jurisprudence like the "catch up" rule and the rule of "consequential seniority," which the court held could be elevated to the status of basic structure. The principles have to be applied wherever they arise and to situations that call for their application

It cannot and does not mean that the Supreme Court has mandated or recognised the concept of any creamy layer among SCs and STs. Nothing of that sort was intended nor could it have been since the Mandal Commission case had confined the concept of creamy layer to OBCs alone and this view was reiterated in E.V. Chinnaiah's case. The confusion in the public mind is perhaps due to the fact that the Nagaraj case involved a challenge to constitutional amendments predominantly (but not entirely) granting benefits to SCs and STs.

Secondly, the judgment in the Nagaraj case made copious references to the Mandal case, where it was emphatically held that the concept of creamy layer was "confined to Other Backward Classes only and has no relevance in the case of Scheduled Tribes and Scheduled Castes."

Thirdly, the Supreme Court had only recently, in the Chinnaiah case, put paid to the effort of the Andhra Pradesh Legislature to divide the Presidential List of Scheduled Castes, promulgated under Article 341 (1), for the purpose of purportedly providing benefits to those groups among Scheduled Castes that the State felt had failed to secure the benefits. The law was struck down on the ground that castes once included in the Presidential List form a class by themselves and any division of these classes of persons based on any consideration would amount to tinkering with the Presidential List.

Reiterating the view given in the Mandal case, the apex court held:
"We do not think the principles laid down in Indra Sawhney's case for sub-classification of other backward classes can be applied as a precedent law for sub-classification or sub-grouping Scheduled Castes in the Presidential List because that very judgment itself has specifically held that sub-division of other backward classes is not applicable to Scheduled Castes and Scheduled Tribes. This we think is for the obvious reason, i.e. the Constitution itself has kept the Scheduled Castes and Scheduled Tribes List out of interference by the State Governments."

Under the Indian Constitution, it is only Parliament by law that can include or exclude from the list of Scheduled Castes and Scheduled Tribes or part of or group within any caste or tribe, once the Presidential List is notified (Articles 341(2) and 342(2)).

Lastly, in law a case is an authority only for what it decides and not what may remotely follow. In the judgment in the Nagaraj case, it has not even been remotely suggested that the concept of "creamy layer" should apply to Scheduled Castes.

Conclusion
Quota system is definitely not going to uplift the really backward people. This has been very clearly proved in Tamil Nadu which is shown as a showcase by the quota suppoters. What has happened in TN is that the top layer has been churned where Brahmins have been brought down and some other communities who stood alongwith Brahmins in the caste system have cleverly junped to the Backward bandwagon and have gained enormously by quota system. The really backward csates (SCs & STs) have never benifited. Otherwise why is there only 1% reservation for STs in TN. Govt. says there are not enough ST candidates. Does this not prove the failure of the system. There is no doubt that SCs & STs (Really Backward) people need support. But the quota system is 99% misused and the benefits are not flowing to the targeted population.

Thus, it is easy to gesture at the attempt of bringing in CREAMY LAYER within the SC/ST Caste group and the result can be expected to be rife with insurmountable practical difficulties for its implementation & is likely to end up only as a “spanner in the works” rather than being a workable solution towards focusing the thrust of Reservations towards “more backward segments within the SC/ST Caste Group! Similarly, the additional “Dos & Don’ts” added by the honorable SC Bench may make the whole scheme of reservation extremely Contentious & difficult to implement.

The Supreme Court has said the exclusion of the creamy layer from the reservation policy is meant to promote those who are in fact socially, educationally and economically backward. While re-emphasizing the need to respect the 50% ceiling imposed on reservations and to keep the creamy layer outside its purview, it is asserted that the state must justify in each case the compelling reasons for providing reservations, keeping in mind the overall efficiency of the state administration.

The founding figures of the Constitution made it clear that any enabling legislation that gives a leg-up to socially and economically 'backward classes' cannot proceed on the basis of caste alone. Though it is horrifying to notice and lay eyes at the way leading politicians of the day have sneaked in "caste" as a major determinant of OBC status.

Therefore, now one has the term 'Backward Castes' which nobody dare interrogate as it is so widely employed and has become part of our political vocabulary. This, however, does not make it i.e. inclusion of creamy layer constitutionally acceptable and not the concept of creamy layer; and the latest Supreme Court judgment reiterates this point.
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[1] M.P Jain, Indian Constitutional Law ( LexisNexis Butterworths Wadhwa Nagpur, Fifth Edition, Reprint 2009) 963-964
[2] AIR 1993 SC 447
[3]Dinkar Sakrikar, “The Mandal Commission Report”, PUCL Bulletin, August 1994 at 09 February 2010
[4] Ibid.
[5] Aruna Singh, “A comment on the recommendations of the Mandal commission”, PUCL Bulletin, August 1984 at 09 February 2010.
[6] V. VENKATESAN, “Petitioners were wrong in history”, Interview with P.S. Krishnan, former Secretary, Ministry of Welfare, Frontline, Volume 24 - Issue 07 :: Apr. 07-20, 2007 at 09 February 2010.
[7] www.ncbc.nic.in/html/creamylayer.htm on 09 February 2010.
[8] See supra note 7
[9] See supra note 7
[10] See supra note 7
[11]J. Venkatesan, Caste can be the basis to determine SEBCs, rules Supreme Court Saturday, Oct 28, 2006 http://www.thehindu.com/2008/04/11/stories/2008041156171200.htm at 09 February 2010.
[12] Gail Omvedt, The purpose of reservation http://www.ambedkar.org/gail/purposeof.htm at 09 February 2010.
[13] AIR 2005 SC 162
[14] (2006) 8 SCC 212
[15] By K.V. Vishwanathan Creamy layer does not apply to SCs & STs On Saturday, Oct 28, 2006
[16] M. Nagaraj & Ors. Vs. Union of India & Ors. [(2006) 8 SCC 212]
[17] R.K. Sabharwal & Ors Vs. State of Punjab [AIR 1995 SC 1371]

The  author can be reached at: arkodayroy1@legalserviceindia.com

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