Who are Creamy layer in SC/STs ?

 

The concept of reservation was introduced in the Indian Constitution under various Articles 15(4), 16(4A), 16(4B) and 46.as policy of positive discrimination in favour of the SC/STs who have been oppressed and depressed by the so called upper caste people since time immemorial. Articles 330,332,335,338 to 342 and the entire Fifth and Sixth Schedules of the Constitution deal with special provisions for implementation of the objectives set forth under Article 46. This concession has been provided to these people to partially mitigate the social disability and deprivation imposed upon them for centuries. The founding fathers of the Constitution thought it fit make suitable provisions in the Constitution to safeguard their welfare and provide empowerment.

 

The concept of ‘creamy layer’ was first introduced by the Mandal verdict in 1992 delivered by a nine member in Supreme Court to ward off the economically and socially better off OBC from cornering the concessions meant for the genuine poor OBC classes.

In the recent judgment in case of M.Nagaraj Vs Union of India, the five-member bench in Supreme Court opined that the creamy layer concept should be applied to SC/STs as well, as per constitutional requirements.


However, before adhering to the  opinion expressed by the Supreme Court in the matter of creamy layer, following points need  further analysis.

  1. The concessions for SC/STs have been notified by the President under Articles 341 and 342 of the Constitution whereas concessions for OBCs have been listed in pursuance of the Mandal verdict.
  2. The creamy layer concept is applicable only to OBCs because powerful Kshatriyas, Jats, Nadars Thevars and other land owing castes are included in OBC.
  3. Even the definition of ‘Creamy Layer’ is not clear and precise.
  4. SC/STs constitute the lowest strata of society and they are being suppressed, oppressed and depressed even today in all walks of life.
  5. The Constitution has no provisions for creamy layer within SC/STs because of their compelling realities of their socio-economic backwardness and exploitation.
  6. The stigma of SC/ST is still looming large around the society. Every thing in the Society revolves round the castes only. Casteism has killed the public spirit.
  7. The argument that the enlightened and rich SC/ST should be outside the ambit of concession does not hold any water because even at the higher level, SC/STs have been subjected to harassment and humiliation by their seniors and can not be excluded from other poor SC/STs people.
  8. To feel the stigma and humiliation attached to SC/STs, one has to be born as a SC/ST to feel the impact. In India, caste is in every body’s mind and it cannot be eradicated and no amount of concession and mitigation can be compensation for the stigma. If it is necessary to parade some body  naked in public  a schedule caste woman  is chosen. For forcing some body to eat the human excreta a scheduled caste man is chosen. For rape again, the victim is a scheduled woman.  No amount of creamy layer attained by them can   wipe the humiliation and degradation of self respect suffered by them.  
  9. It is therefore ,wrong to treat SC/STs on par with other OBCs because the latter do not suffer the social disability to the extent the former suffer.
  10. It is nothing but judicial activism on the part of the Supreme court to suggest for change of the status of  SC/STs which is enshrined in the Constitution. Only the Parliament has the power to make any change in the Constitution.  It is surprising to note that the judges have not made any mention at all of Articles 341 and 342 which stipulate that the Presidential order issued cane be amended only by law passed by the Parliament.
  11. Bringing the concept of creamy layer in SC/STs  is an attempt to preempt the qualified and able SC/STs people from attaining higher position or post .
  12. As the judicial activism has very often raises its ugly head, the issue of reservation should be included in the Ninth Schedule  in the Constitution which would keep the issue beyond the scope of the Courts.

But, it is a fact that creamy layer of the SC/ST will mostly reap the benefit of concession of job/promotion  at the cost of their less privileged brethren because of their continued good standard of education and standard of living. The financially and educationally well off SC/STs should come forward and sacrifice part of their time and money for up-liftment of their socially backward classes brethren.