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Creamy Layer in Reservation


NAME: C. Naveen Kumar

DESIGNATION: 4th year law student, School of Excellence of Law

E-MAIL ADDRESS: naveen.rtro9@gmail.com


INTRODUCTION


Equality is not just providing equal opportunities to the people. It should ensure whether the people were standing in the equal line to hold the opportunities. There are certain classes of people who were not given equal opportunities for a very long period. They were suppressed by the defining feature of Hinduism called the 'caste system.' This unequal structure of society makes a specific class of people to climb the top position of the community. Only this high class of people were given education and decent employment.


This unique type of society mandates the framers of the constitution to provide a profound meaning for equality in the constitution. This creates a concept called 'reservation,' which is enforced to promote the backward class of society (SC & ST, OBC) by providing a specified reduction in the merit level for qualifying in educational institutions and employment. The reservation also made a certain fixed percentage of employment and educational seats in all government sectors. The etymology of this complex system of equality is challenged based on equality itself. In recent decades the government and judiciary system has amended and interpreted the concept of reservation. One such evolution is the creamy layer in the caste-based reservation. This article will examine the genesis of the creamy layer and its evolution in the world's biggest democratic country.


GENESIS OF CREAMY LAYER


The concept of the creamy layer is a classification among the backward class of society (SC& ST, OBC) based on the idea of equality among themselves. This layer of people belongs to the backward class of society, but they enjoy the top position in the socioeconomic status among them. The philosophy of this concept is to provide 'Reservation for reserved,' which will remove the creamy layer class of people among the backward class from the benefit of reservation.


The genesis of the term creamy layer in India has tracked down to the landmark judgment of the supreme court in Indira Sawhney vs. Union of India,1992. It is a combination of several writ petitions challenging the 27 percent reservation of OBC by following the preference for the poorer among the OBC in the central government jobs. The 27 Percent reservation for OBC is based on the report submitted by the Mandal commission in 1980.


The commission is formed to track the social, economic, and educational status of the backward class of society. The hon'ble supreme court upheld the Narasimha Rao government method of giving preference to the more impoverished among OBC in 27 percent reservation. The judicial system has superimposed the concept of creamy layer in the reservation system of OBC. In 1993, the department of personnel and training (DoPT) laid down the brief of creamy layer procedures, which has to be followed to determine the class of people falling in the creamy layer among the backward class (OBC).


UPGRADING THE JURISDICTION OF CREAMY LAYER


The jurisdiction of the creamy layer was limited only to the OBC community by the nine-judge bench in the Indira Sawhney vs. Union of India, 1992; those who gave birth to the concept of creamy layer in caste-based reservation system. Later the jurisdiction of the creamy layer was extended to SC & ST communities by the landmark judgment in the Nagaraj case, 2006. In which validity of the 77th, 81st, 82nd, 85th constitutional amendment Act was challenged.

The issue claimed that these amendments violated the landmark judgment delivered by the supreme court in Indra Sawhney case, 1992. However, the court upheld the validity of all the constitutional amendments. It also added the concept of creamy layer to the SC and ST communities in its verdict. The center again raised this issue to the supreme court, whether the creamy layer will apply to the SC & ST communities in Jarnail Singh vs. Lachhmi Narain Gupta case (2018). The five-judge bench also upheld the decision made to extend the jurisdiction of the creamy layer to the SC & ST communities.


CONCLUSION


The concept of reservation provides opportunities for the backward class people to enhance their livelihood equal to others. It is not only reserved for any particular castes. Even the 103rd Amendment act, 2019, provides a 10 percent reservation to the economically backward section of the general category. This also has a reverse creamy layer concept.


But, In reality, most seats reserved for the backward sections, especially for SC & ST communities in the educational institution and government jobs were not getting fulfilled. This exposes the prevailing backwardness among those classes of people. In this situation, the adding of the creamy layer for those backward communities will increase vacancy in reserved seats in all sectors and ultimately diluting the purpose of reservation, which is promised in the constitution of India.



REFERENCES

  1. AIR 1993 SC 477, 1992 Supp 2 SCR 454.

  2. http://www.ncbc.nic.in/Writereaddata/Mandal%20Commission%20Report%20of%20the%201st%20Part%20English635228715105764974.pdf

  3. Writ Petition (civil) 61 of 2002.

  4. Special Leave Petition (CIVIL) No.30621 OF 2011.





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