Scheduled Castes, Scheduled Tribes, Creamy Layer and Social Reality

Anil N Vaidya

The Supreme Court recently refused to hear a public interest litigation filed by a person named Ad Malviya seeking the immediate implementation of the creamy layer, i.e. exclusion of Scheduled Castes and Scheduled Tribes from the ambit of reservation.

But in this regard, the court said,
“Considering the experience of the last 75 years, we are of the opinion that those persons who have already benefited and can compete with others should be excluded from reservation. But this decision should be taken by the executive and the legislature (i.e. the government),” the bench said.
Hence this article.
From the petitions that have come to the Supreme Court, it is seen that efforts are being made to introduce a creamy layer for the Scheduled Castes and Tribes. Sometimes classification, sometimes creamy layer, and sometimes reservation for a single post is not applicable, and the flexibility of reservation is being broken by introducing one or more issues.
In the case of Punjab vs. Dalwinder Singh, given by the Supreme Court on August 1, 2024, the state government has the power to sub-categorize the Scheduled Castes. This opinion was expressed. Although the issue of creamy layer was not even an issue in this case before bench , the learned judges expressed the opinion that a creamy layer should be introduced for the Scheduled Castes.
This was protested by the pro-reservation organizations all over the country.
Strong opposition was expressed. Still
again the Supreme Court has expressed the view that the wealthy class should not take advantage of the reservation. And the state and central governments can take a decision in this regard. Overall, it seems that the court wants to implement the creamy layer for the Scheduled Castes and Tribes.
Here it is to be mentioned that the basic principle of reservation ,
Reservation is for the socially and educationally backward classes. It is also for those whose quota in government jobs is not adequate. Reservation is given on the basis of these three criteria.
Reservation is not a poverty eradication campaign
That when there is economic reform, there is freedom from caste discrimination. ! If two or four people get jobs, does that mean that the quota of that group in government jobs is adequate?
The quota of Scheduled Castes and Tribes in government jobs is still indaequet.
Importantly,
What is the law to implement the creamy layer? Where is this provision? There is not even a single word about the creamy layer in the constitution. Before enacting new rules, is it not necessary to know the opinions of various social organizations, leaders, thinkers who work in the ground level of society? The National Scheduled Commission is a statutory body. Does it have such a report?
Even the use of the word creamy layer is also insulting .The milk is called creamy layer. Here, the Scheduled Castes and Tribes were not even getting milk, so where will they get milk from? This use of the word does not apply to the backward class society, which has been exploited for thousands of years. calling the backward class society creamy layer is a mockery of them. Justice Krishna Iyer first used the term creamy layer in 1976 in the case of State of Kerala v. N. M. Thomas. Later, in 1992, the Justice decided to implement the creamy layer in the case of Mandal Commission on Reservation of OBCs in Indra Sawane vs. Government of India.
In the Supreme Court

In 2008,
in the case of Ashok Kumar Thakur v. Union of India, in which the 93rd Amendment to the Constitution, which provided reservation in higher education to OBCs, SCs, STs in the Private Educational Institutions and Central Educational Institutions (Reservation in Admission) Act, 2006, was challenged, in this case,
the Supreme Court refused to implement the creamy layer for SCs, STs. The parties that filed the writ petition in the Supreme Court included Resident Doctors Association, Youth for Equity, All India Equity Forum, Citizens for Equity.
A bench headed by then Hon’ble Chief Justice K.G. Balakrishnan this decision came in April 2008.
Hon’ble Chief justice KG Balakrishnan,in the case of Ashok Kumar Thakur vs union of India.wp.no(civil)265/2006
Held as under
So far, this Court has not applied the “creamy layer” principle to the general principle of equality for the purpose of reservation. The “creamy layer” so far has been applied only to identify the backward class, as it required certain parameters to determine the backward classes. “Creamy layer” principle is one of the parameters to identify backward classes. Therefore, principally, the “creamy layer” principle cannot be applied to STs and SCs, as SCs and STs are separate classes by themselves.”
(Para 161 )
Recently, the Supreme Court in its judgment on the classification of Scheduled Castes in the case of State of Punjab vs. Davinder Singh and Others (Civil Appeal No. 2317/2011) dated 1 August 2024 and expressed its opinion to include the Scheduled Castes and Tribes in the creamy layer . This decision is of a 7-judge bench.
But earlier in 1992, in the case of Indira Sawane vs. Government of India, 9 judges delivered their decision and opine that the Scheduled Castes and Tribes should be excluded from the creamy layer. That sentence is given below as it is.
the concept of creamy layer must be excluded for SCs & STs.
The use of the word be excluded in this case suggests that the Scheduled Castes and Tribes must be kept separate from the creamy layer. This decision is of a 9-judge There was detail discussion on Creamy layer therefore it can be accepted as a Ratio decide di .Even if it is obiter dicta
It is customary to accept the decision of more judges.
It has respect and persuasive value.
But contrary view in the recent judgement of classification issue.

To assume that money in the pocket, modern clothes, a good life and a good house will reduce prejudice and hatred towards them and protect them from social discrimination in various spheres of life is to be ignorant of the reality of inequality in this country.
Only those who are jealous know it. Atrocities can happen to anyone of sc. st.

There is no such report of the National Commission for Scheduled Castes for imposing Creamy layer. Or there is no such empirical data available. It comes to anyone’s mind that Creamy layer should be imposed on the Scheduled Castes and Tribes. And then efforts are started to fulfill their wishes.
Are there any legal procedures or not? Weather
Sc st party were heard by giving opportunity?

Those who classify Scheduled Castes and make the Creamy layer principle should study the role of Dr. Babasaheb Ambedkar on reservation .His opinion on this matter should be studied by the court and Govt. When the Simon Commission testified further, in the Round Table Conference,
while demanding the rights of the untouchables. What Dr. Babasaheb Ambedkar said on reservation in the Constituent Assembly should be studied first.
The opinions of various social organizations, leaders, intellectuals, experts who work at the ground level should be sought, but decisions are being made without doing so. This is not fair in terms of justice.
In our country, there are selection boards for candidates for jobs. Are they ready to select talented students from Scheduled Castes and Tribes without reservation?
The possibility of a talented candidate from Scheduled Castes being selected without reservation is very low. The selection committee has complete information about the candidates. The selection committee also knows his caste. What to do with that candidate is also decided based on his caste, but all this is invisible.
There is a rule that if a talented candidate from Scheduled Caste or St obc gets more marks than an open category candidate, he should be selected in the open category. But this is often avoided. The selection committee has a caste-based desire that he should sit in the reservation because of this, candidates from the open category cannot be selected. And their hidden plan is not to select backward class candidates in large numbers. This is a reality.
That is why candidates go to court on the issue of not selecting a qualified candidate from the backward class in the open category. The Supreme Court has also ordered that a qualified candidate should be selected from the open category.
This is a clear example of discrimination.
This raises the question that will the selection committees select qualified backward class children? who are not reserved, that is, who will be in the creamy layer tomorrow?
Since there is reservation, it is mandatory to recruit 13 percent in the state and 15 percent in the center. It is a safety net. A student from a Scheduled Caste Tribe without reservation and a student from an open category without reservation cannot be compared. Both castes are different. The dirty habit of evaluating on the basis of caste has not gone away from this country yet.
No kind of casteism has gone from this country, on the contrary, it is taking a new form.
Due to the creamy layer, students from Scheduled Caste Tribes will definitely compete in the open but in the end they are rejected in the oral examination. This has been seen many times.
There is Castism in educational institutions.
The Rohit Yemmulla and Payal Tadvi cases have proven how much casteism there is in the educational sector.
Many students from Scheduled Castes pass the theory exam for Medical Engineering but the same students fail the practical exam.
For some posts, Scheduled Caste candidates pass the written exam with good marks but fail the oral exam.
And those who score low marks in the written exam of the open category are passed in the oral exam.
What is this a sign of? Isn’t this casteism? This is going on continuously. This is a ground reality.
This also happens with economically capable students from Scheduled Castes.
Qualified Scheduled Caste and Tribe students are not given jobs in corporate companies and hospitals because there is no reservation. (There may an exception case). It is a reality that caste discrimination occurs in big companies. It should be noted how important reservation is here. While rejecting candidature, these companies do not look at the financial condition of the student but look at the caste and reject him.
Casteism does not disappear due to economic reforms. This should be taken into account by the government and the courts.
There will be bad consequences socially as well.
Two groups will be created among the Scheduled Castes and Tribes
and the group that does not take reservation will be separated from the group that takes it. Distrust will arise.
Even economically weak students from Scheduled Castes and Tribes are intelligent. This has been proven many times. Many such students are IAS, officers, professors, lawyers, doctors, engineers. What is special is that they have reached the pinnacle of success along with the economically capable students from Scheduled Castes and Tribes. It is also found that many economically capable students from Scheduled Castes and Tribes are behind these qualified economically backward candidates. This means that there is no connection between the economic condition of the Scheduled Castes and their intelligence.
Creamy layer supporters say that a rich SC boy who studied in English medium cannot be equal to a poor boy who did not study in English medium. Such learned people do not know the ground reality. Many students who did not study in English medium are working in good positions and are successful officers.
Nowadays, semi-English medium has come everywhere. In Maharashtra, parents of economically backward Scheduled Castes and Tribes are teaching their children in English medium. That is all, the government should pay the fees of convent schools for economically backward Scheduled Castes and Tribes and prepare students. The court should order accordingly. Similarly, the Government of India scholarship scheme is applicable to economically backward sc st students. It is not applicable to students of economically backward Scheduled Castes and Tribes. There is a limit to income.
Welfare schemes like Gharkul scheme are also for economically backward Scheduled Castes and Tribes.
Some of the sectors have no reservation.
There is no reservation in the courts. There is no reservation in the defense department i.e. Army, Navy, Air Force. Reservation should be implemented where there is no reservation. Reservation should be implemented where reservation has been removed from all privatized government industries.
Important issue is till date, the backlog has not been fulfilled . There is a backlog of lakhs of seats in the central and state governments. Attention should be paid to that.
In educational institutions, there is an attempt to ensure that reservation is not applied to a single post by showing a single post of Principal or Head of Department (HOD). Even if there are many colleges of an institution, they destroy the reservation of the post of Principal by showing a single post from there. This is a fact. Many qualified sc. st. students are unemployed. They belong to both economical categories . Some private institutions, private universities, colleges have reserved seats but their fees are lakhs of rupees, which economically backward students cannot pay. Such seats will go vacant due to creamy layer. For example, there is reservation for medical postgraduate M.D. And M. S. in private deemed universities. But the fee in this university is 30 to 35 lakh rupees. The government does not give scholarships to any postgraduate course. Nor is the admission fee paid by the government. If a financially capable student from the Scheduled Caste Tribe does not take admission in such a course, such seats will go vacant. Similarly, even today, many Scheduled Caste Tribe students do not take admission by paying such a huge amount. There is a government scholarship scheme for studying abroad. But initially and occasionally, lakhs of rupees have to be spent by oneself. Only a few people from Scheduled Castes and Tribes can afford this. If they are excluded in the name of creamy layer, these seats will also remain vacant. And the society will suffer.
This should also be considered.
Court say to implement creamy layer, but how many university vice-chancellors are from Scheduled Castes and Tribes? How many police commissioners are there? How many principal secretaries are there? How many judges are there in the high court and supreme courts?
Why are there so few?
The answer is the same, hidden discrimination still persists silently. Even the Dalit Judge word is being used for Schedule caste judge. Is this not giving a smell of superiority complex?
The office system tries to spoil the confidential report of a simple clerk and deprive him of promotion.
The father of reservation, Chhatrapati Shahu Maharaj and Dr. Babasaheb Ambedkar, did not even think of implementing creamy layer. They never raised a baseless issue like creamy layer.
This matter should be taken into consideration.
Scheduled Caste Tribes Injustice and Atrocities Prevention Act is applicable to all Scheduled Caste Tribes. By implementing the creamy layer. Will action be taken against those who fall in the creamy layer under this law?
The purpose of reservation is to establish social equality. Not economic equality. Therefore, applying a creamy layer to the Scheduled Caste Tribes. It is unwise.
The social leaders of the Scheduled Caste Tribes should be alert on this issue and defeat the creamy layer. Those who destroyed the truth of reservation by classifying it and applying a creamy layer have abandoned the direction given by Dr. Babasaheb Ambedkar. Society will never forgive them.

Anil N Vaidya
Advocate
(Rtd .Judge.)
Nashik

14 January 2025

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