Court, quota and cream

Churning of the Cream

November 1992, Indra Sawhney versus Union of India:

Eight out of the nine judges in the case argued that the creamy layer must be excluded from reservations made for OBC’s. Three principal reasons were given. First, for a group to be eligible for reservations it must be a class. A class, in order to be a class must be homogenous; if the variations within it are vast it loses its character as a class. Second, unless the privileged within these classes were excluded, they would reap most of the benefits of reservation, defeating its purpose. Third, retaining groups who had transcended backwardness within a backward class, would be tantamount to treating unequals equally and violate Article 14.

• August 1995: Kerala Government passes an Act that states that “there are no socially advanced sections in any Backward Classes who have acquired the ability to compete with Forward Classes.” The Act allows for the existing system of reservations to continue, with retrospective effect.

• August 1997: Supreme Court appointed Committee submits report on creamy layer. Report Not Implemented.

• December 1999 Indra Sawhney II: Court reiterates creamy layer exclusion. “To us it appears rather anomalous that while governments declare endlessly that they will see to it that the benefits of reservations really reach the needy amongst the backwards, the very action of the Government both on the executive side and the Legislative side, deliberately refusing to exclude the creamy layer¿.are leading to a serious erosion of the reservation program.”

• October 2006: Court Re iterates Creamy Layer Exclusion and Extends it to SC/ST’s.

Identifying the Cream

• 1992: Indra Sawhney: Four judges favored economic criteria. One judge argued that no group should be excluded until it had acquired the social capacities to compete with Forward Classes.

• 1995: Ashok Kumar Thakur vs. State of Bihar: the criteria used to identify creamy layer must be reasonable. Supreme Court chastised the governments of U.P. and Bihar for positing unrealistically high criteria for exclusion in order to subvert the requirement that the creamy layer be excluded.

... contd.