Is The Non-Implementation of Exclusion of Creamy Layer' From SC/ST Violating Article 14?

Amulya.
A
20130166
Is the non-implementation of exclusion of creamy layer from SC/ST violating
Article 14?
In the case of Indra Sawhney v. Union of India, the court implemented the exclusion
of creamy layer from the other backward classes in 1992 and had no opinion
regarding the exclusion of creamy layer from SC/ST reservation.
Article 14 of the Indian Constitution says that the State shall not deny to any person
equality before the law or the equal protection of the laws within the territory, and
through case laws a principle of treating equals equally and unequals differently has
evolved1. This principle harmonically allows affirmative action in the form of
reservation towards the economic, social and educational backward castes/classes,
which is Constitutional and not violative of Article 15 (1) or Article 16(1) of the
Constitution. The basis for treating unequals differently should have an intelligible
differentia with reasonable nexus to the object 2. That is a reasonable person should be
able to comprehend the classification of people into groups and that classification
should directly help in achieving the purpose. The object of categorising people into
SC/ST and general category is for the social, economical and educational upliftment
through adequate representation in the society by giving equal opportunity.
The creamy layer constitutes the socially advanced people who have snapped their
ties with the backwardness of their class and have progressed economically, socially
and educationally3 and no longer require the advantage of reservation. Their
development can be seen in their occupation, their living standards and social status.
The Courts have been very cautious in not taking away the benefits granted in the
form of reservation by only measuring the annual income and has expressly laid out
rules to determine the creamy layer for OBC, example:- children of IAS, IFS officers,4
who are not just economically well to do, but socially forward can be used as a
measure to define the creamy layer, or a businessmen with the power to employ
people can satisfy the test of economic and social progression. In the case of Ashok
Kumar Thakur v. State of Bihar, the court relied on criterions like children of
1 Mahendra Pal Singh, V.N. Shuklas Constitution of India, pg. 49 (12th ed. 2013)
2 State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC
3 Indra Sawhney v. Union of India, (2000) 1 SCC 168
4 Id
Constitutional officers, certain professionals, large holding of property owners to

segregate into them creamy layer and non-creamy layer for OBC 5. These can act like
guidelines to introduce the creamy layer in SC/ST.
Now that there is no rule to exclude the creamy layer in the SC/ST lists, the top layer
which has already taken advantage and progressed, will further allow them to
monopolise the opportunities like reservation in educational institutions, employment
in State and Central services. Therefore this would result in polarization of SC/ST into
two sections. When this situation is analysed through the lens of Article 14, it would
fail, as unequals that are to be treated differently 6 would not include the top layer of
the SC/ST as being unequals as they have attained equality in terms of law. The
object of reservation is to level the playing felid, which in this case disables the
opportunities of the lower section of SC/ST and dismantle the main purpose of
reservation. In the process of accomplishing equality, we would be supporting reverse
discrimination against the non-SC/ST by not excluding the creamy layer7.
In the Survey of Statistical Profile Of Scheduled Tribes In India by Ministry of Tribal
Affairs, has shown that the gap in the literacy rate between other social groups and
SC/ST has reduced8, a considerable amount of SC/ST are in non- agricultural work9
and poverty has reduced,10 which shows that the living conditions of the SC/ST has
improved, if not completely changed. As the survey only illustrates the people who
have crossed the marginal line, there is no detailed survey as to the range above this
line. There are chances of economically and socially forward people being
encompassed in this line, example:- If there are 7,906 of SCs and 3,274 STs in the
field of construction11, there is no distinction between numbers of labourers and
managers within this felid.
Hence, a specific survey to determine the presence of the top layer is necessary in
order to find out the census of top layer in SC/ST. Therefore, it is imperative that the
5 1995 SCC (5) 403
6 Supra 1
7 Indra Sawhney v. Union of India, (2000) 1 SCC 168
8 Statistical Profile Of Scheduled Tribes In India, Ministry of Affairs of Statistics Division pg.13-14
(2013)
9 Id pg. 261
10 Supra 8 pg. 94
11 Supra 8 pg. 261
creamy layer is recognised in SC/ST to eradicate poverty and further improve

economic development. The exclusion can ensure more efficiency in reservation by
providing aid to the deprived section.

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Constitutional officers, certain professionals, large holding of property owners to

creamy layer is recognised in SC/ST to eradicate poverty and further improve

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