The Indian Political System and Social Order is filled with instances, where the judiciary has evolved certain distinct concepts and principles to counter the challenges emerging with this dynamic society. In Indian Political Scene, ‘Creamy Layer’ is used in reference to the relatively forward and better educated members of the Other Backward Classes (OBCs).
The term creamy layer was first coined by Justice Krishna Iyer in 1975 in the landmark case of State of Kerala vs. N.M. Thomas wherein he observed that the benefits of reservation ae snatched away by the top creamy layer of the ‘backward’ caste or class, thus keeping the weakest among weak always weak. This term again was cited by J. , Iyer in the case of Akhil Bhartiya Shoshit Karmachari Sangh vs. Union of India and further similar concerns were expressed in K.S. Jayashree vs. State of Kerala by J. , Chinappa Reddy where the people belonging to backward class, but whose family income exceeds ₹ 10,000 were excluded from the scope of reservation policy.
In order to establish a complete understanding of this significant term it becomes absolutely necessary to assess and evaluate the judgement of the Indira Sawhney Case – a case which settled several issues and unsettled even more. Popularly called as ‘The Mandal’ case when the judgement of the Indira Sawhney case was pronounced, t divided the public opinion which resulted in widespread controversy. On many occasions this divide resulted in public demonstration and violent protests. The question regarding the Constitutional validity of the Implementations of the Mandal Commission came up before the 9 judge bench of the Apex Court for consideration. By a 6:3 majority the court upheld the constitutionality and enforceability of the two memorandums which were passed in 1990, by Prime Minister V.P. Singh’s government in furtherance of the Mandal Commission’s Report. The leading judgement is by J. , B P Jeevan Reddy( for J. M H Kania, J. A M Ahmadi, C J M N Venkatachaliah and himself), Concurring opinions were provided by J. S Ratnavel Pandian and P B Sawant J.J. . Dissenting opinions were expressed by Dr. T.K. Thommem, Kuldip Singh and R.M. Sahai J.J.
The judgement deals with several key issues but we will exclusively focus ourselves to define the expression ‘backward class of the citizens’ and the criteria for their identification. The majority, after concluding an extensive research on the uses of the term ‘class and caste’ opined that, ‘ A caste is nothing but a social class- a socially, homogenous class and that merely because the word class is used in Article 16(4), it cannot be concluded either that ‘class’ is antithetical to ‘caste’ or that a caste cannot be a class or that a caste as such can never be taken as a backward class of citizens. The word ‘class’ in Article 16(4) is used in the sense of social class and not in the sense it is understood in marxist jargon.The apex court further evolved the ‘means test’ which signifies the imposition of an income limit, for the purpose of excluding persons (from the backward class) whose income is above te said limit and directed the Government of India to specify the basis of exclusion – whether on the basis of income, extent of holding or otherwise of creamy layer.
The concurring opinion of S Ratnavel Pnadian, J observed that a determination of ‘ socially and educationally backward class’ beyond the caste label would amount to turning a blind eye to the existing stark reality in Hindu Society.
However, the dissenting opinion of R M Sahai, J., reasoned that utilizing caste as the basis for determination is constitutionally invalid and is even morally and ethically forbidden. Kuldeep Singh, J. , agreed with the opinion of R M Sahai J, and emphasised for identification on the basis of secular collectiveness ( e.g. education plus income) instead of caste collectiveness.
My concluding remark on this historic judgement are not very much positive, In my view any classification on the sole criteria of caste is impermissible in the light of the restriction imposed by our Constitution on the basis of caste. Avoidance of this can not be performed by claiming that the classification is not on caste basis but caste is a tool used for categorising to identify the backward class, since it would still amount to recognising caste in its collective sense, which is forbidden by the Indian Constitution.
