Comment on the significance of the Government’s decision to review the application of creamy layer principle on Scheduled Castes and Tribes in government jobs.

The Government has  asked the Supreme Court of India to review the provisions of creamy layer concept applicable to Scheduled Castes and Scheduled Tribes while giving them reservation in promotions.

The Central Government has asked the CJI to refer the Jarnail Singh versus Lachhmi Narain Gupta case of September 26, 2018 to a larger Bench of seven judges for a review.

In the Jarnail Singh case, the court went with its 12-year-old verdict given in the M. Nagaraj case that creamy layer needs to be applied to SCs and STs to prevent the socially advanced in a backward class from devouring the whole cake while leaving the weak impoverished.

 The creamy layer concept first finds its introduction in the SC’s landmark judgement of Indra Sawhney v. Union of India. 

‘Creamy layer’ is when some members of a backward class who are highly advanced socially as well as economically and educationally.

 Article 335 recognizes that special measures need to be adopted to bring SCs and STs to level playing field.  The centuries of discrimiation suffered by SCs and STs prevents them from access to opportunity. 

Application of creamy layer – 

In 1992 case of Indra Sawhney v Union of India, the SC held that reservations under Article 16(4) can only be provided at the time of entry into government service but not in matters of promotion. More significantly, It ruled that the creamy layer can be and must be excluded.

The Parliament on June 17, 1995 adopted the seventy-seventh amendment by which clause (4A) inserted into Article 16 to enable reservation to be made in promotion for SCs and STs.

 The validity of the amendment was challenged before the Supreme court in the Nagaraj case, 2006. But the court ruled that constitutional amendments do not abrogate the fundamentals of equality.

 A comprehensive piece of legislature is the need of the hour to deal with ambiguity related to promotions. It should rectify the absence of transparency in evaluating backwardness and efficiency of STs/SCs.