CREAMY LAYER PRINCIPLE

AN ANALYTICAL STUDY

THESIS SUBMITTED TO THE UNIVERSITY OF KERALA

FOR THE AWARD OF THE DEGREE OF
DOCTOR OF PHILOSOPHY IN LAW

PRABHU M.A.

DEPARTMENT OF LAW
UNIVERSITY OF KERALA
KARIAVATTOM
THIRUVANANTHAPURAM, KERALA
 Reservation of seats and posts for backward communities has
been a controversial issue ever since the enactment of the
Constitution. The major problem in this regard was the identification
of beneficiaries eligible for reservation. For this purpose, two
commissions at national level viz. Kaka Kalekar Commission and
Mandal Commission were appointed. At State level also different
commissions and committees were appointed for that purpose. These
committees adopted different norms for identification of backward
communities. However till 1989, at national level no steps were taken
for reserving seats or posts in favour of backward communities.
Hence in 1989, then Prime Minister V.P. Singh took some initiative in
this regard on the basis of Mandal Commission report. However,
there was strong resistance on the part of certain sections of the
society against the move to reserve seats in public employment to
backward classes. Though the initiative of V.P. Singh Government
was temporarily blocked, the binding order issued by the Supreme
Court in 1990 mandated Narasimha Rao Government to implement
the recommendation of the Mandal Commission with certain
modifications. However, the decision of the Narasimha Rao
Government was challenged before the SC leading to an epoch-
making decision in Indra Sawhney v. Union o f India in which the
Supreme Court okayed the Governments’ decision to grant reservation
for backward communities. As regards identification of backward
communities, it was held that creamy layer of the caste group
identified as Backward Classes by Mandal Commission should be
excluded from the category of Backward Classes eligible for
reservation. From that point onwards creamy layer principle had
become a controversial issue.

At the time of enactment of Constitution, caste-based closed,

hierarchal society was in existence. The Constitution envisaged the
creation of an egalitarian society having equal status and opportunity
to all sections of society. The lower caste groups were in a backward
position in terms of education, employment income and social status.
In the traditional Hindu society since division of labour was on the
basis of caste the backwardness was also on the basis of caste. The
census of 1931 estimated 52% of India’s population as backward. So
for the upliftment of backward class in terms of financial position and
social status, measures like reservation in public employment had
become essential. Though there were divergent opinions regarding the
reservation of posts in public employment, the predominant view was
in favour of reservation.

This is based on the assumption that our society has always

suffered from inequality. It is an accepted fact that in this caste-ridden
hierarchical society, basic human rights of crores of people have been
denied for several centuries. Their education, wages, living conditions,
social status and even pattern of behaviour were dictated by the whims
of the affluent and influential sections of the society, reducing them to
the status of mere animals. This economic backwardness was the
result of social discrimination, suffered by the low castes making them
down trodden. This placed them in the lowest social strata. In a
society grossly stratified on the basis of caste the steering of power
was with the upper caste thereby enabling them to use their whips in a
maimar prejudical to the interest of the lower segments of the society.
Lower castes had to serve the upper class without any demur. Further
there was no grievance redressal mechanism. This inhuman and
barbaric condition continued for centuries till "we the people" realised
the malady prompting the framers of our Constitution to evolve a
suitable mechanism to remedy it.

The need to remedy the malady and to discriminate positively in

favour of socially under-privileged was felt for the first time during
the nationalist movement. It was Mahatma Gandhi, himself a devout
Hindu and strong believer in the efficacy of caste system, who was the
first political leader to grasp the significance of the subject and the
need to invoke the conscience of the upper castes to this age - old
social malady of pushing down whole communities to the degrading
position of untouchables. He also understood the political logic of
inducting this large body of people into the political mainstream in
order to make the freedom movement more lively and broad-based.
By renaming these untouchables as Harijans (people of God) he tried
to elevate the people suffering from caste bias. In doing so he did not
try to disturb the traditional sensitiveness of caste-Hindus more than
what was really necessary.

Any democratic society faces several challenges. The most

challenging one is of harmonising two essentially contradictory
political concepts viz, equality before law irrespective of religion
caste, creed, race and gender on one side and social justice on the
other. Even a developed democracy like United States is no exception
to the rule. It has taken recourse to affirmative action to secure justice
for the less privileged section of the society at the cost of individual
merit and equality of all citizens before law. In India large numbers of
people have suffered social discrimination for centuries on account of
the peculiar institution called the caste system. Efforts have been
made by the framers of the Constitution to redress the grievance of
these under- privileged sections, through the policy of reservations or
quotas for them in jobs, seats in educational institution and
legislatures and in the grants of governmental aid / succour and loans
and also other developmental assistance. So in India provision for
reservation of seats in public employment was incorporated in Article
16(4) of the Constitution.

Further, there were provisions for reservation to Scheduled

Caste and Scheduled Tribe in the Parliament and State Legislative
Assemblies. Though there was no express provision in the original
Constitution regarding reservation to Backward Classes in the matter
of admission to educational institutions certain state governments
adopted the system of reservation in admission to educational
institutions. In certain States like Tamilnadu, admission was made
purely on the basis of quotas allotted to each community. However
Supreme Court declared such quotas unconstitutional. In order to
overcome the difficulties created by Supreme Court decision, Article
16(4) was enacted. It was laid down that in matters of public
employment nothing in that Article shall prevent the State from
making any provision for the reservation of appointments or posts in
favour of any backward class of citizens which, in the opinion of State
is not adequately represented in the services under the State,

It is pertinent to note that the original Constitution itself

contained provision for reservation of seats in the matter of public
appointment.
 The Indian Constitution was drafted in the late 1940’s. The deft
drafters incorporated in the Constitution provisions which reflect the
twin goals of the early British regime. They had endeavored
dexterously to strike a political balance among Indian communities by
reserving seats in the State legislatures and the House of people for the
depressed classes. This is how the members of the Scheduled Caste
and Scheduled Tribes became constitutionally entitled to reservation
of seats in the State legislature and the House of people. The second
goal of the framers of the Constitution was to ameliorate the condition
of the underprivileged by making a direct attack on the hierarchical
structure of Indian society. They resolved to establish an egalitarian
society in the country. They included in the Constitution a general and
pervasive right to equality which prohibits discrimination by the
States on the basis of religion, caste, race, sex, descent, place of birth
or any of them.

With the object of achieving social justice the Constituent

Assembly included in the Constitution Article 16(4) a provision which
authorizes the State to reserve government jobs for any Backward
Class which, in the opinion of the State is not adequately represented
in the services under the State. This was a far-reaching revolutionary
and innovative measure to widen the amplitude of social justice.
Public services have all along been a matter of great fascination for
Indians even during the British days as membership of the public
services was considered to be a majestic symbol of State power.
Historically the untouchables had been denied jobs in public service.
In fact a certain amount of prejudice existed in the minds of upper
class against the downtrodden including Scheduled Castes and
Scheduled Tribes. The Constituent assembly considered compensatory
discrimination in this area as an effective means for uplifting the
under-privileged and deprived classes. This was certainly a measure
employed as a tactic to ensure that the upper classes did not block the
entrance of Backward Classes into public service. This goal was first
articulated by the British and then incorporated in Article 16(4). This
was expanded in 1951 when Article 15(4) was added to the
Constitution to provide that the State can make “any special provision
for the advancement of any socially and educationally Backward
Classes of citizens or for the Scheduled Castes and Scheduled Tribes.”

The founders of modem India thus imaginatively and wisely

incorporated two approaches in the Constitution to achieve social
justice. The first is generally termed as equality in law. It mandates
that State action should not be vitiated by discrimination of any sort
and guarantees that “the State shall not deny to any person equality
before the law or the equal protection of the laws within the territory
of India.” The second approach envisaged equality in fact, giving the
State an affirmative duty to remedy existing inequalities. The State's
duty in this respect is articulated in Article 46 as a Directive Principle
of State Policy. This Article mandates that the State shall "promote
with special care the educational and economic interests of the people
and in particular of the Scheduled Castes and Scheduled Tribes and
shall protect them from social injustice and exploitation.” This article
has imaginatively blended equality with social justice. Safeguards and
affirmative provisions envisaged in Article 46 to benefit under
privileged classes of citizens are embedded in Articles 15 to 17, 29,30,
330 to 342.
 The concept of right to equal concern projected by Donald
Dworkin based on the Rawls concept of justice forms the theoretical
foundation to the concept of job reservation. The deliberations of the
Constituent Assembly, also reveal that the words socially and
educationally backward used by the Constituent Assembly had certain
specific objectives. The complexity of the caste system itself is the
reason for using the term class instead of caste in Article 16(4) of the
Constitution. The two Backward Classes Commission faced lot of
challenges in identifying backward classes of citizens. After detailed
examination of the peculiar features of the social system in India, both
the Commissions considered caste as the predominant fact for
determining class. However there exist strong criticism against the
method adopted by Mandal Commission to determine the
communities which may be treated as Backward Classes for the
purpose of giving the benefit of reservation. The issue of reservation
to backward communities came before the SC on several occasions.
The Court had examined the crucial issue of reservation and merit and
suggested some formulae for application of the reservation system
without having any compromise on the issue of merit. The court also
has examined the fiindamental issue of individual right to equality v.
group right to equality in the context of reservation in public
employment.

The merger of general right to equality with compensatory

discrimination is patent in the apex Court's role in laying down the
optimum limits of reservation. Neither Article 15(4) nor Article 16(4)
lay down any ceiling on the quantum of reservation that may be made
for deprived classes of citizens. Dr.B.R. Ambedkar the principal
architect of the Indian Constitution stressed that Article 16(4) limited
the quantum of reservation to a minority of seats. He claimed that a
reservation scheme which earmarked 70% of posts in government
employment to the favoured classes could be beyond the authority of
the provision. The two articles as enacted in broad and unrestricted
language confer on the State freedom to set limits of reservation as it
deems appropriate for the advancement of the Backward Classes.

The Indian judiciary has evolved guidelines establishing the

constitutional limits of reservation. By setting such limits of
reservation, the Court has to a large extent relieved the State from the
pressure of a large number of citizens who might have otherwise
claimed a right to preference. By doing so the judiciary has balanced
the rights of the majority and the claims of the under privileged, a
balance essential in a constitutional scheme.

The underlying issue of the reservation controversy was

inevitable as the tendency of the powers that be in India was to use
caste status as the primary index of backwardness. The Hindu caste
system has been a significant factor in the stratification of Indian
society and backwardness even under secular standards is, directly
related to a group’s low position in the religion hierarchy. It is a
significant feature of the Indian Constitution that preferences
underlying Articles 15(4) and 16(4) are given to classes and not
individuals. The Supreme Court has imaginatively defined a ‘class
as’ a homogeneous section of the people grouped together because of
certain likenesses or common traits who are identifiable by common
attributes such as status, rank, occupation residence in a locality race,
religion or the like. India’s unique social structure and long history
would make one to consider the caste as the common identifiable
homogeneous sections of the people.

Admittedly caste is not by itself a constitutionally permissible

criterion for discriminating between groups of citizens. The Indian
constitutional scheme is solidly founded on the noble notion of an
egalitarian classless and casteless society. Untouchability is explicitly
abolished by the Constitution, which views the caste hierarchy as a
vice which should not be perpetuated. The Supreme Court has
therefore developed neutral criteria for the designation of the
Backward Classes, including poverty, place of habitation occupation
and income level. According to the Supreme Court, caste can be used
as one of several considerations but it may not in itself be conclusive
of backwardness. Designation by caste name may be made only after
a thorough enquiry and determination using other neutral criteria.
Both the Government and the Courts generally use the expression
community and communal group and scrupulously avoid using the
term caste.

The practice of designating certain castes as backward for

purposes of preferential treatment in government service began during
the period of British rule. The term, however, had no uniform
connotation nationally. As a sequel, during the floor debate on Article
16(4) members of the Constituent Assembly were concerned about the
vagueness of the term ‘backward’. They were also apprehensive of the
possible abuses in designating certain classes as eligible for
preferential treatment. Many members of the Constituent Assembly
presented definition based on the experience of the region from where
they had come. Instead of adopting a detailed and comprehensive
definition the Constituent Assembly decided to keep the generic term
thereby creating a paradise for lawyers as one member lamented. The
report and its reference to caste as an indicator of backwardness were
greeted with wide spread criticism. The report was not accepted by the
Central Government for decades. This resulted in a complete lack of
consistent national guidelines for the designation of the Backward
Classes. Thus the individual States and the Central Government were
left to choose from among the Indian citizenry such groups as they
considered as deserving the benefits of compensatory discrimination.

Legality and propriety of various rules governing reservation by

different State Governments were examined by the Supreme Court
and certain guidelines regarding the identification of beneficiaries and
quantum and extent of reservation were formulated. The scope of
reservation to persons falling outside backward classes is also
examined by the court. However till the decision of the SC in Indra
Sawhney such an attempt has not been made and the Court held that
the affluent sections of a backward caste shall be excluded for the
purpose while treating that caste as Backward Class for the purpose of
reservation. That affluent section is named as creamy layer. The SC
itself had given some broad guide lines for determining creamy layer.
However, the difficult task of formulating the rules for determining
the creamy layer and the procedure to be followed for issuing
certificate to the concerned person to the effect that she or he does not
come within the category of creamy layer was put on the shoulders of
centre and State governments. So at central and State level certain
norms have been formulated and procedure has been evolved for the
purpose of implementation of creamy layer concept. The norms fixed
by the Government of Bihar were struck down by Supreme Court on
the ground of arbitrariness. The Government of Kerala took the stand
that in the State of Kerala there is no creamy layer among the
Backward Classes. The Kerala Legislature Assembly enacted a law in
this regard. However, the Supreme Court declared that law invalid. So
the norms formulated by the Governments at Central and State level
and procedure adopted for implementation of the creamy layer have
become a controversial issue.

Through the present research work an attempt is made to

critically evaluate the evolution of the concept of creamy layer
principle its constitutional dimensions, legality and propriety of the
existing norms to determine creamy layer and efficacy of the
procedure for issuing the creamy layer certificate. For this purpose
after the detailed examination of the theoretical issues an empirical
study was conducted. The discussion in chapter 3 and 4 reveals that
hypothesis nos.l and 2 are proved. For the purpose of the empirical
study 306 persons were identified. These 306 persons were working
in various offices like Secretariat, Court, school and collectorate.
Questionnaires were issued to them and replies furnished by them
were tabulated. Their replies led to the following conclusions.

Regarding the question whether creamy layer principle shall not

be applied for any specific category in government service, the
majority view was that there is no need to exclude any category.
Regarding the question whether for determining creamy layer market
value of the land may be considered along with the area of the land,
majority view was in favour of taking both factors together. Regarding
the issue of the present classification of Backward Classes persons
holding constitutional position posts in service sector and persons
having particular income was correct or not, majority view was that it
is not correct. However employees from Government Secretariat took
the view that the classification is correct. Regarding the question
whether persons eligible for reservation on the basis of official
position and income from that position be excluded from the benefit
of reservation on the ground that they are crossing the income limit
due to the income from other sources, majority view was in favour of
excluding that category. Regarding the issue of considering the
income of parents for the purpose of giving benefit of reservation,
majority view is that total income of both the parents shall be taken
for determining the benefit of reservation. The majority of the persons
who responded to the question took the view that for determining the
persons belonging to creamy layer, income from salary and income
from agriculture shall be clubbed together. The majority is against the
view that in the case of persons holding high positions instead of
income from salary official position itself shall be the criteria to
determine creamy layer. So it appears that majority is not fully
satisfied with the existing norms for determining creamy layer.
However they are in favour of certain important existing criteria to
determine creamy layer. So the hypothesis no 3 is partially proved.
Regarding the authorities to be charged with the duty to issue creamy
layer certificate majority is in favour of existing authority. However
majority is not in favour of the existing procedure for issuing creamy
layer certificate. So the hypothesis no 4 is rejected.

Majority of the respondent took the view that creamy layer of

both Schedule Caste and Schedule Tribes shall be excluded from the
benefit of reservation. It is pertinent to note that even persons liaving
the benefit of reservation took the same view. The majority of the
persons who responded to the question were the view that the decision
of the Honourable Supreme Court to exclude the creamy layer of the
backward community from the benefit of reservation will help to
ensure social justice. Regarding the question "Do you agree with the
view that there is no creamy layer among backward communities, vast
majority answered in the negative. Regarding the question whether
reserved posts for Backward Classes may be offered to creamy layer
of the community in the absence of persons not belong to creamy
layer from that community majority answered in the negative.

Regarding the question whether the exclusion of creamy layer

may affect efficiency of administration majority answered in the
negative. Regarding the issue of existing income limit majority
favoured the enhancing of income limit and suggested that income
limit should be six lakhs. Regarding the question whether creamy
layer principle shall be extended for the purpose of reservation for
admission to educational institution majority favoured it.

Suggestions

On the basis of the above findings the researcher puts forward

the following suggestions.

1. In the matter of determining creamy layer among backward

communities, the present criteria should be followed with certain
modification.

2. For excluding creamy layer of Backward Classes on the basis of

land holding the market value of land may be considered along
with the area of land.
3. Creamy layer principle shall be extended for the purpose of both
public employment and admission to educational institutions.

4. There is no need to offer the reserved post for backward community

to the creamy layer of the community in the absence of eligible
persons not belonging to creamy layer.

5. The existing classification of Backward Classes on the basis of

position may be continued.

6 . Income limit for determining creamy layer shall be revised in every

three years.

7. Income from official position and other sources need to be clubbed

for the purpose of determining creamy layer.

8. In determining persons belonging to creamy layer income from

salary and income from agriculture need not be clubbed together.

9. In the case of persons holding high position, instead of income from

salary official position itself shall be the criterion to determine
creamy layer.

10. In the matter of issuing creamy layer certificate competent

authority shall be any government official deputed for this purpose
and the procedure shall be made friendly to the beneficiaries.

The creamy layer principle evolved through the decision of the

Supreme Court has become the rule of the day for identifying the
sections of backward communities eligible for reservation. The rules
made for implementation of the creamy layer principle appear to be
just and fair. If the above suggestions are incorporated one can expect
that the rules for determining creamy layer would become perfect.