The Question of Creamy Layer in Indira Sawhney Case

S. Ratnavael Pandian. J.[1]

223. A further submission has been made stating that the benefits of reservation are often snatched away of eaten up by top creamy layer of socially advanced backward class who consequent upon their social development no longer suffer from the vice of social backwardness and who are in no way handicapped and who by their high professional qualifications occupy upper echelons in the public services and therefore, the children of those socially advanced section of the people, termed as ‘creamy layer’ should be completely removed from the lists of ‘Backward Classes’ and they should not be allowed to compete with the children of socially under privileged people and avail the quota of reservation. By way of illustration it is said that if a member of a designated backward class holds a high post by getting through the qualifying examinations of IAS, IFS, IPS or any other All India Service, there can be no justification in extending the benefit of reservation to their children, because the social status is well advanced and they no longer suffer from the grip of poverty.

224. On the same analogy, it has been urged that the children of other professionals such as Doctors, Engineers, Lawyers etc. etc. also should not be given the benefit of reservation, since in such cases, they are not socially handicapped.

225. No doubt the above argument on the face of it appears to be attractive and reasonable. But the question is whether those individuals belonging to any particular caste, community or group which satisfies the test of backward class should be segregated, picked up and thrown over night out of the arena of backward class. One should not lose sight of the fact that the reservation of appointments or posts in favour of ‘any backward class of citizens’ in the Central Government services have not yet been put in practice in spite of the impugned OMs. It is after 42 years since the advent of our Constitution, the Government is taking the first step to implement this scheme of reservation for OBCs under Article 16(4). In fact, some of the States have not even introduced policy of reservation in the matters of public employment in favour of OBCs.

226. In opposition, it is said that only a very minimal percentage of BCs have stepped into All India Civil Services or any other public services by competing in the mainstream along with the candidates of advanced classes despite the fact that their legs are fettered by social backwardness and hence it would be very uncharitable to suddenly deprive their children of the benefit of reservation under Article 16(4) merely on the ground that their parents have entered into Government services especially when those children are otherwise entitled to the preferential treatment by falling within the definition of ‘backward class’. It is further stressed that those children so long as they are wearing the diaper of social backwardness should be given sufficient time till the Government realises on review that they are completely free from the shackles of social backwardness and have equated themselves to keep pace with the advanced classes. There, are a few decisions of this Court which I have already referred to, holding the view that even if a few individuals in a particular caste, community or group are socially and educationally above the general average, neither that caste nor that community or group can be held as not being socially backward. (Vide Balaram).

227. In the counter-affidavit dated 30th October 1990 filed by the Union of India sworn by the Additional Secretary to the Government of India in the Ministry of Welfare, the following averments with statistical figures are given :

“Based on the replies furnished by 30 Central Ministries and Departments and 31 attached and subordinate offices and public sector undertakings under the administrative control of 14 Ministries (which may be treated as sufficiently representative of the total picture) the Commission arrived at the following figures :-

(Extracted from page 92 of First Part of Mandal Commission Report)”

228. The above figures clearly show that the SEBCs are inadequately represented in the Services of the Government of India and that the SCs and STs in spite of reservation have not yet been able to secure representation commensurate with the percentage of reservation provided to them.

229. Meeting an almost similar argument that the ‘creamy layers’ are snatching away the benefits of reservation, Chinnappa Reddy, J observed in Vasanth Kumar (AIR 1985 Supreme Court 1495) to the following effect :

“One must, however, enter a caveat to the criticism that the benefits of reservation are often snatched away by the top creamy layer of backward class of caste. That a few of the seats and posts reserved for backward classes are snatched away by the more fortunes among them is not to say that reservation is not necessary. This is bound to happen in a competitive society such as ours. Are not the unreserved seats and posts snatched away, in the same way, by the top creamy layers amongst them on the same principle of merit on which the non reserved seats are taken away by the top layers of society. How can it be bad if reserved seats and posts are snatched away by the creamy layer of backward classes, if such snatching away of unreserved posts by the top creamy layer of society itself is not bad ? “

230. The above observation, in my view, is an apt reply to such a criticism with which I am in full agreement. To quote Krishna Iyer, J “For every cause there is a martyr”, I am also reminded of an adage,” One swallow does not make the summer.”

231. Reverting to the case on hand, the O.M. does not speak of any ‘creamy layer test’. It cannot be said by any stretch of imagination. that the Government was not aware of some few individuals having become both socially and educationally above the general average and entered in the All India Services or any other Civil Services. Despite the above fact, the Government has accepted the listed groups of SEBCs as annexed to the Report and it has not thought it prudent to eliminate those individuals. Therefore, in such circumstances, I have my own doubt whether the judicial supremacy can work in the broad area of social policy or in the great vortex of ideological and philosophical decisions directing the exclusion of any section of the people from the accepted list of OSCs on the mere ground that they are all ‘creamy layers’ which expression is to be tested with reference to various factors or make suggestions for exclusion of any section of the people who are otherwise entitled for the benefit of reservation in the decision of the Government so long that decision does not suffer from any constitutional infirmity.

232. Added to the above submission, it has been urged that some pseudo communities have smuggled into the backward classes and they should be removed from the list of OBCs, lest those communities would be eating away the major portion of the reservation which is meant only for the true and genuine backward classes. There cannot be any dispute that such pseudo communities should be weeded out from the list of backward classes but that exercise must be done only by the Government on proper verification.

233. The identification of the backward classes by the Mandal Commission is not with a seal of perpetual finality but on the other hand it is subjected to reviewability by the Government. The Mandal Commission itself in paragraph 13.40 in Chapter XIII has suggested that “the entire scheme should be reviewed after 20 years.” Mr. Jethmalani suggested that the list may be reviewed at the interval of 10 years. There are judicial pronouncements to the effect that the Government has got the right of reviewability. There cannot be any controversy indeed there is none – that the Government which is certainly interested in the maintenance of standards of its administration, possesses and retains its soverign authority to adopt general regulatory measures within the constitutional framework by reviewing any of its schemes or policies. The interval of the period at which the review is to be held is within the authority and discretion of the Government, but of course subject. to the constitutional parameters and well settled principles of judicial review. Therefore, it is for the Government to review the lists at any point of time and take a decision for the exclusion of any pseudo community or caste smuggled into the backward class or for inclusion of any other community which in the opinion of the Government suffers from social backwardness.

234. It may be recalled that the petitioner herself in W.P. No. 930 of 1990 has stated, “…… the Courts cannot sit as a super legislature to determine and decide the social issue as to who are socially and educationally backward ……….”

235. It will be appropriate to refer to an observation of the five-Judges Bench of this Court (which heard initially these matters) in its order dated 8th August 1991 stating :

“The validity of the Mandal Commission Report as such is not in issue before us ……”

236. A three-Judges Bench of this Court comprising of Ranganath Mishra, K. N. Singh, M. H. Kania, JJ (as the learned Chief Justice then were) has observed in their order dated 21st September 1990 that the implementation of executive decisions is in the hands of the Government of the day but constitutional validity of such action is a matter for Court’s examination.

237. Thereafter, a Constitution Bench of this Court of their order dated 1 st October 1990 explained the earlier order stating “Three out of us sitting as a Bench on the 21 st September 1990 made an order after hearing parties wherein we had indicated that the decision to implement three aspects of the recommendations of the Mandal Commission was a political one and ordinarily the Court would not interfere with such a decision.”

238. Therefore, when this Court is not called upon to lay a test or give any guideline as to who are all to be eliminated from the listed groups of the Report, there is no necessity to lay any test muchless ‘creamy layer test’. I find no grey area to be clarified and consequently hold that what one is not free to do directly cannot do it indirectly by adopting any means. Therefore, the argument of ‘creamy layer’ pales into insignificance.

239. Further I hold that all SEBCs brought in the lists of the Commission which have been accepted and approved by the Government should be given equal opportunity in availing the benefits of the 27 per cent reservation. In other words, the entire 27% of the vacancies in civil posts and services under the Government of India shall be reserved and extended to all the SEBCs.

240. In fact, the first OM dated 13th August 1990 does not make any division or sub-classification as in the amended OM. Para2(i) of the first OM reads. “27% of the vacancies in civil posts and services in the Government of India shall be reserved for SEBC”. In reading para 2(i) of the first OM In juxtaposition with para 2 (i) of the amended OM, no basic difference in the policies of the two Government is spelt out; in that both the impugned OMs have made 27% reservation in civil posts and services under the Government of India for SEBCs on the basis of the recommendations of the Second Backward Classes Commission (Mandal Report). The only difference between the two impugned OMs is that in the amended OM a division among the SEBCs is made as ‘poorer sections’ and others that the ‘poorer sections’ is firstly allowed to avail the benefit of reservation and that others to avail the benefit of reservation of only the unfilled vacancies. Therefore, by striking down para 2(i) of the amended OM as unconstitutional, I hold that there is no legal impediment in implementing para 2 (i) of the first OM dated 13th August 1990 which has not been supersed, rescinded or repealed but “deemed to have been amended.”

241. Before parting with this aspect of the matter, I would like to express my view that the ‘poorer sections’ of the SEBCs may be provided with various kinds of concessions and facilities such as educational concessions, special coaching facilities, financial assistance, relaxation of upper age limit, increase of number of attempts etc. for government services with a view to give them equal opportunity to compete and keep pace with the advanced sections of the people.

[1] This article is an excerpt from the judgment of Indira Sawhney v Union of India 1993 (1) SCT 448