What is the creamy layer?
Creamy layer is a term used to refer to some members of a backward class who are highly advanced socially as well as economically and educationally. They constitute the forward section of that particular backward class – as forward as any other forward class member.
Who introduced the term ‘creamy layer’? When?
In 1970, the First Backward Classes Commission of Tamil Nadu was constituted under the chairmanship of A. N. Sattanathan and it alleged in its report that a higher class inside that backward class termed as the “Creamy layer” had been exploiting huge advantages of reservation and preventing the growth of the actual backward classes (BC).
The term ‘creamy layer’ was introduced by the A. N. Sattanathan Commission in 1971, which directed that the “creamy layer” should be excluded from the reservations (quotas) of civil posts.
Who belongs to the ‘creamy layer’?
The ‘creamy layer’ concept was directed in the Supreme Court’s Indira Sawhney judgment, delivered by a nine-judge Bench on November 16, 1992.
Though it upheld the government’s decision based on the Mandal Commission’s report to give 27% reservation to Other Backward Classes, the court found it necessary to identify sections of backward classes who were already “highly advanced socially as well as economically and educationally”.
The court believed that these wealthy and advanced members form the ‘creamy layer’ among backward classes.
The judgment directed the State governments to identify the ‘creamy layer’ and exclude them from the purview of reservation.
However, certain States like Kerala did not promptly implement the judgment. This led to the Indira Sawhney-II case, reported in 2000.
In the Indira Sawhney-II case, the Supreme court went to the extent of determining the ‘creamy layer’ among backward classes. The judgment held that persons from backward classes who occupied posts in higher services such as IAS, IPS and All India Services had reached a higher level of social advancement and economic status, and therefore, were not entitled to be treated as backward. Such persons were to be treated as ‘creamy layer’ without any further inquiry. Likewise, people with sufficient income who were in a position to provide employment to others should also be taken to have reached a higher social status and treated as “outside the backward class”. Other categories included persons with higher agricultural holdings or income from property.
Thus, a reading of the Indira Sawhney-II judgments shows that social advancement, including education and employment, and not just wealth, was key to identify the ‘creamy layer’.
Why is it difficult to draw the line?
The identification of the ‘creamy layer’ has been a thorny issue. The basic question here is how rich or advanced should a backward class section be to invite exclusion from the reservation.
Justice Jeevan Reddy, in the Indra Sawhney judgment, wondered “how and where to draw the line” between the deserving and the creamy layer among backward classes. “The basis of exclusion should not merely be economic, unless, of course, the economic advancement is so high that it necessarily means social advancement,” he pointed out.
“Benefits, by and large, are snatched away by the top creamy layer of the backward caste or class, thus keeping the weakest among the weak always weak and leaving the fortunate layers to consume the whole cake,” he wrote.
What is the latest judgement of the Supreme Court on creamy layer?
On 24th August 2021, a Division Bench of the Supreme Court, led by Justice L. Nageswara Rao, observed that economic criterion cannot be the sole basis for identifying the ‘creamy layer’ of a backward class, and that other factors like social advancement, education, employment, too, matter.
The judgment came on a writ petition filed by a group from Haryana, the Pichra Warg Kalyan Mahasabha, challenging two notifications issued by the State government in 2016 and 2018, under the Haryana Backward (Reservation in Services and Admission in Educational Institutions) Act, 2016.
The apex court held that the Haryana’s notifications have violated the law declared in the Indira Sawhney judgment by identifying creamy layer only on the basis of income.
“In spite of Section 5(2) of the 2016 Act making it mandatory for identification and exclusion of ‘creamy layer’ to be on the basis of social, economic and other relevant factors, the State of Haryana has sought to determine ‘creamy layer’ from backward classes solely on the basis of economic criterion and has committed a grave error in doing so,” the court held, quashing both the notifications.