The question on applicability of creamy layer concept to the Sc/St reservation. The Centre has appealed to Supreme Court to refer the Jarnail Singh 2018 judgment to a seven-judge Bench.
- The matter involves whether the creamy layer concept should apply or not to the Scheduled Castes/Scheduled Tribes while providing them reservation in promotions.
Background of Creamy layer application to the SC/ST
- In the Indra Sawhney (1992) that any discussion on the creamy layer “has no relevance” in the context of SC/STs.
- In the Nagaraj 2006, the judgment apex court held that it is “not mandatory” for the State to make reservations for SC/ST in promotion.
- To further proceed in reservation in promotions
- It is supposed to gather quantifiable data showing backwardness of the class
- To show the inadequacy of representation of that class in public employment.
- The government should maintain the administrative efficiency clause as per Article 335.
- It also brought in the clause of Creamy layer application in case of reservation policy breaching the 50 ceiiling.
- In the 2018 Jarnail Singh judgement gave a stamp of approval to application of creamy layer principle to SC/STs.
Case for the application of creamy layer principle to the Sc/St
- It will help in furthering the objective of the reservation.
- The creamy layer within that class bag “all the benefits to perpetuate themselves, leaving others backward”.
- It does not in any manner tinker with the Presidential List under Articles 341 or 342.
- With the application of creamy layers principle to OBC and introduction of EWS Quota, need is felt to introduce the same to the SC/St.
- The principle was based on the fundamental right to equality.
The case against the application of the creamy layer principle to Sc/St
- The nonavailability of quantifiable data to identify the “Creamy layer “ within them.
- Presumed of backwardness: As per the article 46, the SCs and STs being the most backward or the weakest are presumed to be backward.
- The stigma of untouchability: even if Scheduled Caste or Scheduled Tribe reaches higher posts, the taint of either untouchability or backwardness does not goes away.
- SC/STs would end up garnering more posts than their proportion in population.
- The reservation should not be seen as the only affirmative action.
- The focus should be more on creating more jobs.
- The “principle of benign neglect” will be beneficial from the American experience of dealing with racism
The reservation as constitutional provisions is aimed at getting rid of the rough edges of caste discrimination. However, the least one expects of the highest level in the judiciary is to accord “an element of certainty and continuity”.