Needless row over creamy layer

To attain an egalitarian society, there is an urgent need to remove socio-economic inequalities. Benefits of reservation must be delivered to only those who really deserve it. Unless the creamy layer is removed from admissions and service reservation, the benefits would not reach the actually deserving sections

The Telangana State government decision to implement creamy layer formula in reservations is opposed by some people belonging to the Backward Classes. The creamy layer formula is used to differentiate socially and economically developed persons in a caste from those who deserving reservation and empowerment. In fact, the Government of Telangana in November 2014 merely adopted all the criteria to determine the creamy layer among BCs.

The annual income ceiling limit as fixed by the Ministry of Personnel, Public Grievances and Pensions, Government of India, and adopted by the Government of undivided Andhra Pradesh, is Rs 6 lakh per annum for determining the creamy layer among the BCs. However, income from salaries and income from agricultural land shall not be taken into account.

To attain an egalitarian society, there is an urgent need to remove socio-economic inequalities. Benefits of reservation must be delivered to only those who really deserve it. Unless the creamy layer is removed from admissions and service reservation, the benefits would not reach the actually deserving sections. In one of the important cases, the Supreme Court has aptly observed that reservation is given to BCs until they cease to be backward, and not indefinitely.

It further said that: "Society does not remain static. The industrialisation and the urbanisation which necessarily followed in its wake, the advance on political, social and economic fronts, made particularly after the commencement of the Constitution, the social reform movements of the last several decades, the spread of education and the advantages of the special provisions including reservations secured so far, have all undoubtedly seen at least some individuals and families in the backward classes, however small in number, gaining sufficient means to develop their capacities to compete with others in every field.

That is an undeniable fact. Legally, therefore, they are not entitled to be any longer called as part of the backward classes whatever their original birthmark. It can further hardly be argued that once a backward class, always a backward class. That would defeat the very purpose of the special provisions made in the Constitution for the advancement of the backward classes, and for enabling them to come to the level of and to compete with the forward classes, as equal citizens."

In a historical judgement delivered on 16th November 1990, the Supreme Court made some interesting observations on the creamy layer. It signifies imposition of an income limit, for the purpose of excluding persons whose income is above a specified limit. Petitioners in the case submitted that some members of the designated BCs are highly advanced socially as well as economically and educationally and hence should be treated as forward. However, respondents strongly opposed and argued that 'creamy layer' is but a mere ruse, a trick, to deprive the BCs of the benefit of reservations. They also argued that because few of the seats and posts reserved for BCs are snatched away by the more fortunate among them, it cannot be said reservation is not necessary.

Responding to these arguments, the judges observed that the very concept of a class denotes a number of persons having certain common traits which distinguish them from the others. If the connecting link is social backwardness, it should broadly be the same in a given class. If some of the members are far too advanced socially, economically and also educationally, the connecting thread between them and the remaining class snaps. They would be misfits in the class.

Illustrating the point, the judges observed that there are several practical difficulties, too, in imposing an income ceiling. The line to be drawn must be a realistic one. Another question would be, should such a line be uniform for the entire country or a given State or should it differ from rural to urban areas and so on. Further, income from agriculture may be difficult to assess and, therefore, in the case of agriculturists, the line may have to be drawn with reference to the extent of holding.

The income limit must be such as to mean and signify social advancement. At the same time, it must be recognised that there are certain positions, the occupants of which can be treated as socially advanced without any further enquiry. For example, if a member of a designated backward class becomes a member of IAS or IPS or any other All India Service, his status in society rises and hence he is no longer socially disadvantaged. His children get full opportunity to realise their potential.

They are in no way handicapped in the race of life. His salary is also such that he is above want. It is but logical that in such a situation, his children are not given the benefit of reservation. For by giving them the benefit of reservation, other disadvantaged members of that backward class may be deprived of that benefit.

Keeping in mind all these considerations, the Court directed the Government of India to specify the basis of exclusion – whether on the basis of income, extent of holding or otherwise – of 'creamy layer' as early as possible. On such specification, persons falling within the net of exclusionary rule shall cease to be the members of the Other Backward Classes.

The Government of India in obedience to this issued instructions in September 1993. 27% of the vacancies in civil posts and services under the Government of India, to be filled through direct recruitment, shall be reserved for the Other Backward Classes. Candidates belonging to OBCs recruited on the basis of merit in an open competition on the same standards prescribed for the general candidates shall not be adjusted against the reservation quota of 27%.

The rule of exclusion will not apply to persons working as artisans or engaged in hereditary occupations, callings. The OBCs for the purpose of the aforesaid reservation would comprise, in the first phase, the castes and communities which are common to both the lists in the report of the Mandal Commission and the State Governments’ Lists. The aforesaid reservation shall take immediate effect.

Consequently, instructions were issued, saying that while applying the Income/Wealth Test to determine the creamy layer status of any candidate, income from the salaries, and income from the agricultural land shall not be taken into account. Subsequently, the Government of India revised the annual income criteria to exclude socially advanced persons/sections (creamy layer) from the purview of reservation for OBCs from Rs 1 lakh in 1993 to Rs 6 lakh in May 2013 from time to time.

The government in the erstwhile Andhra Pradesh issued orders on April 4, 2006, to adopt all the criteria to determine the creamy layer among the Backward Classes, as fixed by the Government of India, except the annual income limit, which was fixed by the Government of India at Rs 2.5 lakh per annum and by the erstwhile Government of AP at Rs 4.00 Lakh per annum with effect

from April 4, 2006, and enhanced the income criteria by raising the income limit from Rs 4.5 lakh to Rs 6 lakh per annum on December 9, 2013. The process has thus begun with the Supreme Court direction, followed by Government of India orders, and adopted by both erstwhile AP government and the present Telangana State Government. Then why do a few people make it a controversy?