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"Creamy layer" rule does not apply to SCs and STs!

K. V. Viswanathan

A close reading of the judgment in the Nagaraj case shows the Supreme Court used the expression "creamy layer" while interpreting Article 16(4), 16(4A), and 16(4B) compendiously and in the process of laying down limitations on the amending power of Parliament in the context of social reservations.

BARELY HAD the ink dried on the recent reservation judgment in M. Nagaraj & Others versus Union of India & Others than an entirely needless controversy arises. It is an unnecessary controversy because the Supreme Court has not said anything about excluding the "creamy layer" from among the Scheduled Castes (SC) and Scheduled Tribes (ST).

A close reading of the judgment shows that the expression "creamy layer" was used while interpreting Article 16(4), 16(4A), and 16(4B) compendiously and in the process of laying down limitations on the amending power of Parliament in the context of social reservations. The expression used in the judgment in the Nagaraj case is confined to Other Backward Classes (OBCs) and it is not in the context of SCs and STs. It should not be forgotten that the court was interpreting Article 16(4) and 16(4B) as much as it was interpreting 16(4A). The first two apply to OBCs also.

The issue of excluding the creamy layer among SCs and STs did not arise for consideration. That issue was already settled in 1992 by a larger bench of nine judges (Indra Sawhney versus Union of India — the `Mandal case,' AIR 1993 SC 447) and also in 2004 by a co-ordinate bench of five judges (E.V. Chinnaiah versus State of Andhra Pradesh and Others, AIR 2005 SC 162) by holding that the concept of creamy layer had no application to SCs and STs. The October 19, 2006 judgment in the Nagaraj case by five judges could not and, in fact, does not derogate from these earlier pronouncements.

In 1992, the Supreme Court ruled that reservation for backward classes (which include OBCs and SCs & STs) should be confined to initial appointments and not extend to promotions. To get over this verdict, Article 16(4A) was introduced to enable reservations to be made in promotions for SCs and STs. Soon thereafter, the apex court held that even if reservations could be allowed in promotions, seniority could not be granted to a person thus promoted, once the general candidate "caught up" with him or her in the promoted post. To neutralise this, Article 16(4A) was further amended to grant consequential seniority to a person promoted from a reserved quota.

Parliament had earlier introduced Article 16(4B). This sub-Article was significant since it was not confined to SCs and STs but theoretically applied to OBCs also. This sub-Article said that if any unfilled reserved vacancy was carried forward, such unfilled vacancies should not be counted while calculating the ceiling of 50 per cent of reservation. The petitioners before the Supreme Court challenged the above amendments along with one more amendment made to Article 335, which enabled the relaxation in qualifying marks for SC and ST candidates. The Supreme Court had to address a crucial issue, namely whether any or all of these amendments were violative of the basic structure of the Constitution, since that is the only ground available in law to challenge a constitutional amendment.

After an elaborate discussion, the Supreme Court held (page 115) that the amendments could not be faulted since the boundaries of the width of the power, namely the ceiling limit of 50 per cent, the principle of creamy layer, the compelling reasons, that is, backwardness, inadequacy of representation, and overall administrative efficiency, were not obliterated by the amendments. It was only in the context of elucidating the structure of equality of opportunity in Article 16 that the court referred to these principles. The court also ruled that the individual enactments of States providing for reservations would have to be decided keeping these principles as touchstones.

Referring specifically to Article 16 (4B), which applied to OBCs and SCs & STs, the court said (page 125):

"In the case of Article 16(4B) we must keep in mind that following the judgment in R.K. Sabharwal the concept of post-based roster is introduced. Consequently, specific slots for OBC, SC and ST as well as GC have to be maintained in the roster. For want of candidate in a particular category the post may remain unfilled. Nonetheless, that slot has to be filled only by the specified category. Therefore, by Article 16(4B) a classification is made between current vacancies on one hand and carry-forward / backlog vacancies on the other hand. Article 16(4B) is a direct consequence of the judgment of this court in R.K. Sabharwal by which the concept of post-based roster is introduced. Therefore, in our view Articles 16(4A) and 16(4B) form a composite part of the scheme envisaged. Therefore, in our view Articles 16(4), 16(4A) and 16(4B) together form part of the same scheme. As stated above, Articles 16(4A) and 16(4B) are both inspired by observations of the Supreme Court in Indra Sawhney and R.K. Sabharwal. They have nexus with Articles 17 and 46 of the Constitution. Therefore, we uphold the classification envisaged by Articles 16(4A) and 16(4B). The impugned constitutional amendments, therefore, do not obliterate equality."

Firstly, the conclusions, which have been separately set out in the judgment, read by themselves and with the body of the judgment make it amply clear that the phrase "creamy layer" was used only for the reason that a composite challenge had been made and the court was dealing with the validity of the amendments together. On such a compendious consideration of the Articles enshrining the equality code, namely Article 14, 16(1), 16(4), 16(4A), and 16(4B), the court had necessarily to set out the broad contours and the underlying principles.

It is while identifying those salutary facets of the equality clause, which constitute the basic structure, that the Court adverted to the creamy layer principle. The court was at pains to distinguish the principles of equality, which constitute the basic structure, and the principles of service jurisprudence like the "catch up" rule and the rule of "consequential seniority," which the court held could be elevated to the status of basic structure. The principles have to be applied wherever they arise and to situations that call for their application. Take for example the other principle of 50 per cent ceiling in reservations, which the court has mentioned. Could it ever be argued that the ceiling means 50 per cent for SC & STs and would the 50 per cent not include reservations for OBCs?

Not for SCs, STs

It cannot and does not mean that the Supreme Court has mandated or recognised the concept of any creamy layer among SCs and STs. Nothing of that sort was intended nor could it have been since the Mandal Commission case had confined the concept of creamy layer to OBCs alone and this view was reiterated in E.V. Chinnaiah's case. The confusion in the public mind is perhaps due to the fact that the Nagaraj case involved a challenge to constitutional amendments predominantly (but not entirely) granting benefits to SCs and STs.

Secondly, the judgment in the Nagaraj case makes copious references to the Mandal case, where it was emphatically held that the concept of creamy layer was "confined to Other Backward Classes only and has no relevance in the case of Scheduled Tribes and Scheduled Castes."

Thirdly, the Supreme Court had only recently, in the Chinnaiah case, put paid to the effort of the Andhra Legislature to divide the Presidential List of Scheduled Castes, promulgated under Article 341 (1), for the purpose of purportedly providing benefits to those groups among Scheduled Castes that the State felt had failed to secure the benefits. The law was struck down on the ground that castes once included in the Presidential List form a class by themselves and any division of these classes of persons based on any consideration would amount to tinkering with the Presidential List.

Reiterating the view given in the Mandal case, the apex court held:

"We do not think the principles laid down in Indra Sawhney's case for sub-classification of other backward classes can be applied as a precedent law for sub-classification or sub-grouping Scheduled Castes in the Presidential List because that very judgment itself has specifically held that sub-division of other backward classes is not applicable to Scheduled Castes and Scheduled Tribes. This we think is for the obvious reason, i.e. the Constitution itself has kept the Scheduled Castes and Scheduled Tribes List out of interference by the State Governments."

Under the Indian Constitution, it is only Parliament by law that can include or exclude from the list of Scheduled Castes and Scheduled Tribes or part of or group within any caste or tribe, once the Presidential List is notified (Articles 341(2) and 342(2)).

Lastly, in law a case is an authority only for what it decides and not what may remotely follow. In the judgment in the Nagaraj case, it has not even been remotely suggested that the concept of "creamy layer" should apply to Scheduled Castes.

(The writer is a New Delhi-based lawyer.)

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