The creamy layer refers to the small section of privileged individuals who are part of the socially backward class, however, are not socially backwards and occupy the topmost position in the socio-economic hierarchy of that particular class. This concept is limited to Other Backward classes (“OBC”) only. Excluding the wealthy and advantaged is the only way to bring about positive change for these disadvantaged groups. The concept of the Creamy layer was first introduced in the case of State of Kerala v. NM Thomas it described those individuals within the backward classes who are themselves advanced.
The concept of creamy layer and the idea of reservation jurisprudence under Article16 (1) and 16 (4) of the Indian constitution was highly stressed in the case of the Indira Sawhney v. U.O.I. It was held that these members of the backward classes were forward in nature and providing them with reservations would mean taking away from the truly backward classes that reservations were instituted for. Such exclusion of the creamy layer would result in benefit to the backward class and serve the purpose of Article 16 (4). It held that excluding well-off and advanced members would ensure that benefit is reaped by a truly backward class. The exclusion of the Creamy layer was restricted to those belonging to the OBC from seeking reservation. It is regarded that SCs and STs are the countries most backward class and are discriminated against, excluding them from reservations would be unfair and against the principle of equality.
In Nagaraj v. U.O.I, it was stated that SCs and STs must be subjected to the creamy layer while providing them reservation in promotion as it fell within the ambit of constitutional equality. However, this was later revoked in the case of Ashok Kumar Thakur v. U.O.I, wherein it was clarified that SCs and STs cannot be subjected to the creamy layer as they form a separate class by themselves. In order to achieve the objective stated in Articles 14 and 16 which guarantee the principles of equality, the exclusion of creamy layers is necessary. It laid the job of identifying creamy layers up to the government.
It should be noted that reservation has always been a means to bring positive development to the backward castes and was introduced to serve the purpose of ending caste-based discrimination. It is to ensure that public representation, employment, and education is made available to these castes, who have been denied basic human rights to live their life with dignity and equal opportunity that has been provided to all citizens. By introducing the creamy layer, it is assured that those who are truly in dire situations have means to representation and reservation to ensure that they are compensated and placed at a somewhat equal footing with others. It would also become difficult to uplift the weaker sections if only those in comfortable positions were bagged by such individuals.
One argument against the creamy layer would be that it could be problematic that those who qualify as part of the creamy layer are being discriminated against for being in a position that is considered to be the highest in that caste but may fail to account for the position they could have been at if they had not to be discriminated against at all. Despite there being reservations, the backward castes are still discriminated against and unable to reach the mark of reserved seats for them, as that is the level of disadvantaged that these castes are. Even on reaching economic and educational independence, they are treated unequally and unfairly at their workplace and even at government jobs. When this is the reality of caste-based treatment, excluding the creamy layer of SCs and STs from promotion furthers their inferior treatment and reduces the chances of them progressing in their careers.
REFERENCES;
- Choudhry et al., The Oxford handbook of the Indian Constitution 2016
- Indra Sawhney v. Union Of India AIR 1993 SC 477
- M Nagaraj v. Union of India (2006) 8 SCC 12
- Ashok Kumar Thakur v. Union of India (2008) 6 SCC 1
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