Sunday, November 27, 2022

Creamy Layer – Criteria Creamy Layer Limit Laid Down by Government has Resulted in Reverse Discrimination and Injustice to Backward Classes [Part – II]

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By Sushil Jain

A false but strong impression has been created in the public narrative that General Category consists of only rich and highly educated people. But the truth is large proportion among General Category is economically and educationally backward.  Nevertheless, they are excluded from Social Welfare Schemes.

On acceptance of Sinho report, the government had brought a constitutional amendment giving 10% reservation for Economically Weaker Sections.

The extent of backwardness of General Category was also brought out in the NSSO report  (68th round, July 2011 – June 2012)

Educational Backwardness  of General Category as per NSS, 68th round (July 2011 – June 2012)  (Source: Page 34 and 35 (Statement 3.13) of NSS, 68th round)

85% of the General Category Population are non-graduates

71.1% of the General Category population are illiterate or have education only up-to secondary level.

35% of the General Category population has education only up-to primary or Secondary level.

Economic Backwardness of General Category as per NSS, 68th round (July 2011 – June 2012 (Source:  1. Page 45 and 46 (Statement 3.19) of NSS, 68th round, 2. Page V, Vi of NSS, 68th round)

86.7% of General Category Population  do not earn regular wage or salary in rural India

74.6% of General Category Population do not earn regular wage or salary in both rural and urban areas combined.

60.1% of General Category Population in Rural India are employed in the low-paying primary sector.

27.1% had of General Category population had MNREG cards

The proportion of persons who sought but did not get work in MGNREG work was the highest for others category of persons (21.9 per cent).

Cultivated Land Holdings As per NSS, 68th round (July 2011 – June 2012) (Source: Table S4R , page A-8 of NSS, 68th round)

General Category had an average cultivated landholding of only  0.75  hectares.

44.3% of the General Category population do not own any cultivated  land

77.7%  of the General Category population do not own any cultivated land or had cultivated land holding of less than 1 hectares.

Only 3.8% of the General Category population had cultivated land holdings of more than 4.01  hectares.

Land Holdings As per NSS, 68th round (July 2011 – June 2012)  (Source: Table S3R , page A-7 of NSS, 68th round)

General Category had an average landholding of only  0.83 hectares.

59.1% of the General Category population had land holdings of less than 0.4 hectares.

75.4% of the General Category population had land holdings of less than 1 hectares.

Only 4.3% of the General Category population had land holdings of more  than 4.01  hectares.


Even after 74 years of independence and continuous reservation for Supreme Court/ST category, and more than 30 years of reservation, the benefit of reservations seems to have not percolated to the actual needy. Maximum benefit has in fact been taken by the affluent section of the backward classes. These affluent section of OBC/SC/ST are if not better but are closer to general category. Grant of benefit to such category of individuals in backward classes is ex-facie violative and infringement of Article 14, 15(1) and 16(1) of the Constitution and violative of basic features of Constitution in as much as equals are treated unequally; and not unequal(s) are treated equally. They do not need any affirmative action.

GIST OF CIRCULARS ISSUED BY THE CENTRAL GOVERNMENT-  One year prior to the judgment in Indra Sawhney 1992 (supra), the Central Government led by the then PM – P.V. Narasimha Rao brought two changes in the OBC Reservation Policy. Firstly, within the OBC reservation quota, preference was to be given to the candidates belonging to the poorer sections. Secondly, 10 per cent of Public Services shall be reserved for economically backward sections of the people, not otherwise covered by the scheme of reservation.

As per the DoPT OM dated 8th September, 1993 under Income/Wealth Test category, the rule of exclusion had to be applied on the son(s) and daughter(s) of the persons having gross annual income of Rs. 1 lakh or above or possessing wealth above the exemption limit as prescribed in the Wealth Act for a period of three consecutive years. According to the 1993 order, sons and daughters of Group A/Class I Officers of All India Central and State Services (direct recruits), Group B/Class II Officers of Central and State Services (direct recruits), employees of Public Sector Undertakings etc. and armed forces fall within the creamy layer, and, therefore, they would not be entitled to reservation benefits. 

The order also included within the creamy layer sons and daughters of people with a gross annual income of Rs 1 lakh above or possessing wealth above the exemption limit as prescribed under the Wealth Tax Act for a period of three consecutive years.

It, however, clarified that income from salaries and agricultural land will not be clubbed, and asserted that the income criteria in terms of rupee will be modified taking into account the change in its value every three years. However, the ceiling has been revised only four times since 1993 — the last time it happened was in September 2017 when the cap was raised to Rs 8 lakh per annum. The government has also proposed to raise the cap to Rs. 12 lakh per annum.

Since 1993, successive governments have been determined to nullify the concept of creamy layer totally by increasing the creamy layer limit.  As per Socio Economic Caste Census 2011 (, among rural population 74.52% earn less than Rs. 5,000 per month, 17.18% earn between Rs. 5,000 to Rs. 10,000 per month and only 8.25% earn more than Rs. 10,000 per month.  It is important to note that it is for the overall population and not just for any social group. Though the urban income slabs were not published in the aforesaid survey, the proportion of population in high income bracket is not likely to be very high. As per the Central Board of Direct Taxes, CBDT, in the year 2020 less than 0.75% of the population reported income between Rs. 5 lakh to Rs. 10 lakh per annum (1 crore persons) and just a negligible 0.4% of the population reported income between over Rs. 10 lakh per annum (46 lac persons). While this being the case, the creamy layer limit (Current – Rs. 8 lakh per annum and Proposed – Rs. 12 lakh per annum) hardly exclude anyone from getting reservation benefits. Apart from reverse discrimination, the higher creamy layer limit makes the whole reservation system a mirage from the poor OBCs. It is pertinent to note that there is no creamy layer limit defined for SCs and STs. It is also perverse that reservation is provided seemingly because large sections of the population of a community are socially, educationally and economically backward but the actual benefits of reservation are confined to top echelons of the society. The fundamental premise that reservation is providing a level playing field is dismantled by defining higher creamy layer limit of Rs. 8 lakh per annum.

The concept of creamy layer was not laid down for the first time in Indira Sawhney.

In Backward Classes Commission Tamil Nadu (1974) at Vol I page 100 para 206 it was observed that:

“we think it is time that government recognizes the inequity that is being perpetuated in this system. The sons of senior officials or of a doctor, engineer, accountant, lawyer or anybody similarly placed in a good profession and sons of landlords and business executives should have reason to complain of educational handicaps. While scholarships are intended to overcome economic handicap, reservation in appointments is primarily intended to overcome social and educational (sic) handicaps. If it is recognized that in every caste there is a class which has overcome educational (sic) and social handicaps, that section should be regarded as forward section, though the caste may be included in the list of Backward Classes or may hold a ritually lower social status”

Report of the Karnataka Second Backward Classes Commission, (1986) at Vol. I, p. 220, para 9.69:

“… This has been done mainly, keeping in view the fact that even castes/communities identified as backward classes and recommended to get the benefit under these provisions, have an affluent section, which might take advantage of reservation available under these categories and walk away with the major share of the cake…”

Report of the Second Backward Classes Commission, (Gujarat) (CV Rane Commission), (1983) at Vol. I, p. 70 (at para 15.1) and p. 58 (at para 12.8):

“…looking to the abnormal rise in the cost of living and some increase in income level and other relevant circumstances, we feel that for the purpose of excluding those who are well-to-do, while identifying socially and educationally backward classes, income limit should be fixed at Rs. 10,000 (rupees ten thousand only) per annum. It would, however, be open to the Government to review the position from time to time and to suitably raise or adjust the above income limit…”

Report of the Commission for Reservation of Seats in Educational Institutions (Kerala), (1965) at p. 77 (at Para 34).

Article 14, 15(1) and 16(1) guarantees all citizens right to equality. However, in India ST/SC/OBC remain much below the poverty line. They are socially backward and are not equal. To make them equal, affirmative actions by the state are needed. The principle of creamy found in Article 14(1) and 16(1) aims to do away with the concept of treating un-equals within the same class equally. When article 14 and 16 are harmoniously interpreted along with other Article 341 and 342, it is clear that parliament will have complete freedom to include or exclude. If the object of reservation is to take affirmative action in favour of a class which is socially, economically and educationally backward, the state while exercising its executive or legislative function to decide as to what extent reservation should be made for them either in public service or for obtaining admission in education institution.

In Indra Sawhney II [1], the Hon’ble Supreme Court has summarized the judgment in Indra Sawhney – I as follows:-

 “13. In Indra Sawhney (1) [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1] on the question of exclusion of the “creamy layer” from the Backward Classes, there was agreement among eight out of the nine learned Judges of this Court. There were five separate judgments in this behalf which required the “creamy layer” to be identified and excluded.

14. The judgment of Jeevan Reddy, J. was rendered for himself and on behalf of three other learned Judges, Kania, C.J. and M.N. Venkatachaliah, A.M. Ahmadi, JJ. (as they then were). The said judgment [Indra Sawhney (2) v. Union of India, (2000) 1 SCC 168 : 2000 SCC (L&S) 1] laid emphasis on the relevance of caste and also stated that upon a member of the backward class reaching an “advanced social level or status”, he would no longer belong to the backward class and would have to be weeded out. Similar views were expressed by Sawant, Thommen, Kuldip Singh, and Sahai, JJ. in their separate judgments.

15. It will be necessary to refer to and summarise briefly the principles laid down in these five separate judgments for that would provide the basis for decision on Points 2 to 5.

16. While considering the concept of “means-test” or “creamy layer”, which signifies imposition of an income limit, for the purpose of excluding the persons (from the backward class) whose income is above the said limit, in para 791, the Court has noted that counsel for the States of Bihar, Tamil Nadu, Kerala and other counsel for the respondents strongly opposed any such distinction and submitted that once a class is identified as a backward class after applying the relevant criteria including the economic one, it is not permissible to apply the economic criterion once again and sub-divide a backward class into two sub-categories. The Court negatived the said contention by holding that exclusion of such (creamy layer) socially advanced members will make the “class” a truly backward class and would more appropriately serve the purpose and object of clause (4).

17. Jeevan Reddy, J. dealt with the “creamy layer” under Question 3(d) (paras 790, 792, 793 of SCC) and under Question 10 (paras 843, 844). This is what the learned Judge declared : there are sections among the Backward Classes who are highly advanced, socially and educationally and they constitute the forward section of that community. These advanced sections do not belong to the true backward class. They are (para 790) “as forward as any other forward class member”.

‘If some of the members are far too advanced socially (which in the context, necessarily means economically and, may also mean educationally) the connecting thread between them and the remaining class snaps. They would be misfits in the class.’ (SCC p. 724, para 792).

The learned Judge said : (SCC p. 724, para 792)

‘792. … After excluding them alone, would the class be a compact class. In fact, such exclusion benefits the truly backward.’

A line has to be drawn, said the learned Judge, between the forward in the backward and the rest of the backward but it is to be ensured that what is given with one hand is not taken away by the other. The basis of exclusion of the “creamy layer” must not be merely economic, unless economic advancement is so high that it necessarily means social advancement, such as where a member becomes owner of a factory and is himself able to give employment to others. In such a case, his income is a measure of his social status. In the case of agriculturists, the line is to be drawn with reference to the agricultural landholding. While fixing income as a measure, the limit is not to be such as to result in taking away with one hand what is given with the other. The income limit must be such as to mean and signify social advancement. There are again some offices in various walks of life — the occupants of which can be treated as socially advanced, without further inquiry”, such as IAS and IPS officers or others in All India services. In the case of these persons, their social status in society rises quite high and the person is no longer socially disadvantaged. Their children get full opportunity to realise their potential. They are in no way handicapped in the race of life. Their income is also such that they are above want. It is but logical that children of such persons are not given the benefits of reservation. If the categories or sections abovementioned are not excluded, the truly disadvantaged members of the backward class to which they belong will be deprived of the benefits of reservation. The Central Government is, therefore, directed (para 793) to identify and notify the “creamy layer” within four months and after such notification, the “creamy layer” within the backward class shall “cease” to be covered by the reservations under Article 16(4). Jeevan Reddy, J. finally directed (see Question 10) that the exclusion of the creamy layer must be on the basis of social advancement and not on the basis of economic interest alone. Income or the extent of property-holding of a person is to be taken as a measure of social advancement — and on that basis — the “creamy layer” within a given caste, community or occupational group is to be excluded to arrive at the true backward class. There is to be constituted a body which can go into these questions as follows : (SCC p. 757, para 847)

‘847. … We direct that such a body be constituted both at Central level and at the level of the States within four months from today. … there should be a periodic revision of these lists to exclude those who have ceased to be backward or for inclusion of new classes, as the case may be.’

The creamy layer [see para 859, sub-para (3)(d)] can be, and must be excluded. Creamy layer has to be excluded and “economic criterion” is to be adopted as an indicium or measure of social advancement [para 860, sub-para (5)]. The socially advanced persons must be excluded [para 861(b)]. That is how Jeevan Reddy, J. summarised the position.

18. Sawant, J. too accepted (p. 553 of SCC) that “at least some individuals and families in the Backward Classes — however small in number — gain sufficient means to develop capacities to compete with others in every field. That is an undeniable fact”. (emphasis in original) Social advancement is to be judged by the “capacity to compete” with forward castes, achieved by the members or sections of the Backward Classes. Legally, therefore, these persons or sections who reached that level are not entitled any longer to be called as part of the backward class, whatever their original birthmark. Taking out these “forwards” from the “backwards” is “obligatory” as these persons have crossed the Rubicon (pp. 553-54). On the crucial question as to what is meant by “capacity to compete”, the learned Judge explained (para 522) that if a person moves from Class IV service to Class III, that is no indication that he has reached such a stage of social advancement but if the person has successfully competed for “higher level posts” or at least “near those levels”, he has reached such a state.

19. Thommen, J. (paras 287, 295, 296, 323) observed that if some members in a backward class acquire the necessary financial strength to raise themselves, the Constitution does not extend to them the protection of reservation. The creamy layer has to be “weeded out” and excluded, if it has attained a “certain predetermined economic level”.

20. Kuldip Singh, J. (para 385) referred to the “affluent” section of the backward class. Comparatively “such (sic rich) persons in the backward class — though they may not have acquired a higher level of education — are able to move in the society without being discriminated socially”. These persons practise discrimination against others in that group who are comparatively less rich. It must be ensured that these persons do not “chew up” the benefits meant for the true backward class. “Economic ceiling” is to be fixed to cut off these persons from the benefits of reservation. In the result, the “means-test” is imperative to skim off the “affluent” sections of Backward Classes.

21. Sahai, J. (para 629) observed that the individuals among the collectivity or the group who may have achieved a “social status” or “economic affluence”, are disentitled to claim reservation. Candidates who apply for selection must be made to disclose the annual income of their parents which if it is beyond a level, they cannot be allowed to claim to be part of the backward class. What is to be the limit must be decided by the State. Income apart, provision is to be made that wards of those Backward Classes of persons who have achieved a particular status in society, be it political or economic or if their parents are in higher services then such individuals must be precluded from availing the benefits of reservation. Exclusion of “creamy layer” achieves a social purpose. Any legislative or executive action to remove such persons individually or collectively cannot be constitutionally invalid.”

In Indra Sawhney II [2], it was further laid down that:-

“9…… In any case, the “creamy layer” has no place in the reservation system.

(Indra Sawhney – II, (2000) 1 SCC 168 @ Pg. 184)

10. If forward classes are mechanically included in the list of backward classes or if the creamy layer among backward classes is not excluded, then the benefits of reservation will not reach the really backward among the backward classes. Most of the benefits will then be knocked away by the forward castes and the creamy layer. That will leave the truly backward, backward forever. ….

(Indra Sawhney – II, (2000) 1 SCC 168 @ Pg. 185)

13. In Indra Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] on the question of exclusion of the “creamy layer” from the backward classes, there was agreement among eight out of the nine learned Judges of this Court. ……

(Indra Sawhney – II, (2000) 1 SCC 168 @ Pg. 185)

27. As the “creamy layer” in the backward class is to be treated “on a par” with the forward classes and is not entitled to benefits of reservation, it is obvious that if the “creamy layer” is not excluded, there will be discrimination and violation of Articles 14 and 16(1) inasmuch as equals (forwards and creamy layer of backward classes) cannot be treated unequally. Again, non-exclusion of creamy layer will also be violative of Articles 14, 16(1) and 16(4) of the Constitution of India since unequals (the creamy layer) cannot be treated as equals, that is to say, equal to the rest of the backward class. …

(Indra Sawhney – II, (2000) 1 SCC 168 @ Pg. 190)

29. In the context of the law laid down in Indra Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] and in Ashoka Kumar Thakur [(1995) 5 SCC 403 : 1995 SCC (L&S) 1248 : (1995) 31 ATC 159] if the legislature of any State does not take steps to remove the defect or to effectively and realistically remove the defect to exclude the “creamy layer” from the backward classes then the benefits of reservations which are invalidly continued in favour of the “creamy layer” cannot be declared retrospectively valid merely by a legislative declaration that such creamy layer is absent as done by Section 3 of the Kerala Act. Nor can it be done by means of the validating provision contained in Section 6 of that Act. The creamy layer principle laid down in Indra Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] cannot be ignored as done by Section 6 of the said Act. We shall elaborate these aspects later. If under the guise of elimination of the “creamy layer”, the legislature makes a law which is not indeed a true elimination but is seen by the Court to be a mere cloak, then the Court will necessarily strike down such a law as violative of the principle of separation of powers and of Articles 14, 16(1) and Article 16(4).

(Indra Sawhney – II, (2000) 1 SCC 168 @ Pg. 190)

65. What we mean to say is that Parliament and the legislature in this country cannot transgress the basic feature of the Constitution, namely, the principle of equality enshrined in Article 14 of which Article 16(1) is a facet. Whether the creamy layer is not excluded or whether forward castes get included in the list of backward classes, the position will be the same, namely, that there will be a breach not only of Article 14 but of the basic structure of the Constitution. The non-exclusion of the creamy layer or the inclusion of forward castes in the list of backward classes will, therefore, be totally illegal. Such an illegality offending the root of the Constitution of India cannot be allowed to be perpetuated even by constitutional amendment….”

(Indra Sawhney – II, (2000) 1 SCC 168 @ Pg. 202)

In M. Nagraj vs. Union of India (2006) 8 SCC 212, in para 88, 110, 120-122 it was held:-

“80……. For this proposition, this Court placed reliance on the judgment in Indra Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] while holding that if creamy layer among Backward Classes were given some benefits as Backward Classes, it will amount to equals being treated unequals. Applying the creamy layer test, this Court held that if roster-point promotees are given consequential seniority, it will violate the equality principle which is part of the basic structure of the Constitution and in which event, even Article 16(4-A) cannot be of any help to the reserved category candidates. This is the only judgment of this Court delivered by a three-Judge Bench saying that if roster-point promotees are given the benefit of consequential seniority, it will result in violation of equality principle which is a part of the basic structure of the Constitution. Accordingly, the judgment of the Tribunal was set aside.

110. As stated above, the boundaries of the width of the power, namely, the ceiling limit of 50% (the numerical benchmark), the principle of creamy layer, the compelling reasons, namely, backwardness, inadequacy of representation and the overall administrative efficiency are not obliterated by the impugned amendments….

120. … In Indra Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] all the Judges except Pandian, J. held that the “means test” should be adopted to exclude the creamy layer from the protected group earmarked for reservation. In Indra Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] this Court has, therefore, accepted caste as a determinant of backwardness and yet it has struck a balance with the principle of secularism which is the basic feature of the Constitution by bringing in the concept of creamy layer….”

121. The impugned constitutional amendments by which Articles 16(4-A) and 16(4-B) have been inserted flow from Article 16(4). They do not alter the structure of Article 16(4). They retain the controlling factors or the compelling reasons, namely, backwardness and inadequacy of representation which enables the States to provide for reservation keeping in mind the overall efficiency of the State administration under Article 335. These impugned amendments are confined only to SCs and STs. They do not obliterate any of the constitutional requirements, namely, ceiling limit of 50% (quantitative limitation), the concept of creamy layer (qualitative exclusion), the sub-classification between OBCs on one hand and SCs and STs on the other hand as held in Indra Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] , the concept of post-based roster with inbuilt concept of replacement as held in R.K. Sabharwal [(1995) 2 SCC 745 : 1995 SCC (L&S) 548 : (1995) 29 ATC 481] .

122. We reiterate that the ceiling limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse.”

The Constitution Bench in Ashok K Thakur vs. Union of India[3] while upholding the insertion of Article 15(5) in the Constitution vide the 93rd Amendment subject to the creamy layer test. In M. Nagaraj, which pertains to challenge to Article 16(4) and Article 16(4A), which concerns only SC/ST reservation and in the said matter it was clearly laid that principle of creamy layer is applicable to both SC/ST even then a controversy was raised by the Government that extension of creamy lawyer principle to SC/ST was obiter. This controversy has now been fully resolved in Jarnail Singh vs Laxmi Narayan Gupta[4] by the constitution bench in para 27 and 28 as under:-

“27. We do not think it necessary to go into whether Parliament may or may not exclude the creamy layer from the Presidential Lists contained under Articles 341 and 342. Even on the assumption that Articles 341 and 342 empower Parliament to exclude the creamy layer from the groups or sub-groups contained within these Lists, it is clear that constitutional courts, applying Articles 14 and 16 of the Constitution to exclude the creamy layer cannot be said to be thwarted in this exercise by the fact that persons stated to be within a particular group or sub-group in the Presidential List may be kept out by Parliament on application of the creamy layer principle. One of the most important principles that has been frequently applied in constitutional law is the doctrine of harmonious interpretation. When Articles 14 and 16 are harmoniously interpreted along with other Articles 341 and 342, it is clear that Parliament will have complete freedom to include or exclude persons from the Presidential Lists based on relevant factors. Similarly, constitutional courts, when applying the principle of reservation, will be well within their jurisdiction to exclude the creamy layer from such groups or sub-groups when applying the principles of equality under Articles 14 and 16 of the Constitution of India. We do not agree with Balakrishnan, C.J.’s statement in Ashoka Kumar Thakur [Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1 : 3 SCEC 35] that the creamy layer principle is merely a principle of identification and not a principle of equality.”

“28. Therefore, when Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] applied the creamy layer test to Scheduled Castes and Scheduled Tribes in exercise of application of the basic structure test to uphold the constitutional amendments leading to Articles 16(4-A) and 16(4-B), it did not in any manner interfere with Parliament’s power under Article 341 or Article 342. We are, therefore, clearly of the opinion that this part of the judgment does not need to be revisited, and consequently, there is no need to refer Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] to a seven-Judge Bench. We may also add at this juncture that Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] is a unanimous judgment of five learned Judges of this Court which has held sway since the year 2006. …”

Though the principle of creamy layer was laid down with an object to provide benefit of affirmative action to SC/ST or backward classes who actually deserve it but the government just to have a political mileage are increasing income every year to nullify the benefit to actually needy and giving benefit to affluent members of SC/ST or backward classes.

BENEFIT OF RESERVATION IS NOT PERCOLATED TO THE NEEDY AND POORER SECTION OF THE SC/ST/OBC – In 2017, the Central Government constituted the Justice Rohini Commission to examine the sub-categorisation of the Other Backward Classes to examine the equitable redistribution of the 27% quota for the Other Backward Castes (OBC), which has now reportedly begin consultations with the states on a four-category formula. The four-member Commission is headed by Justice (Retd) G Rohini, Chief Justice (Retd), Delhi High Court with the other three members being (a) Dr. JK Bajaj, Director, Centre for Policy Studies, New Delhi (b) Director, Anthropological Survey of India, Kolkata(ex-officio Member) (c) Registrar General and Census Commissioner, India. (ex-officio Member). Justice G. Rohini, Chairperson of the Commission belongs to the OBC community.

In an interim report, Justice Rohini Commission found that just about 40 castes out of about 5000 Other Backward Castes are enjoying maximum benefits of reservation in central educational institutions and recruitment to central services. As per the said interim report Less than 1% of OBC castes corner 50% reservation benefits, 20% get none.[5] In this manner, the object of affirmative action/reservation has not percolated to the actual backward classes for whom and on whose name reservation policies are being continued. If such trend continues, then the whole object of depriving general category meritorious students/candidates will be defeated and the fruits will be taken up by similarly situated persons infringing Article 14, 15 and 16 of the Constitution.

To some extent, the Rohini Commission, in its interim report has also suggested division of Backward Classes in four categories. There are 2,633 Other Backward Castes in the Central List. The Commission has proposed to divide them into four subcategories numbered 1, 2, 3 and 4 and split the 27% into 2,6,9 and 10 per cent, respectively, the Economic Times reported. The Category 1 will include 1,674 caste groups, identified as the ones who have not benefited from the quota. In the second Category there will be 534 caste groups while categories 3 and 4 will give 328 and 97 caste groups, respectively.[6] Interestingly, as per the information there are the least number of caste groups in the Category 4, mostly considered dominant OBCs with large populations, but they will still be getting the largest chunk at 10%. With this sub-categorisation, the Commission would ensure that the objective of other groups being guaranteed a share is ensured.

Out of the four categories, the two categories – 3 & 4, if not better are almost similar to general category and therefore they are also not entitled to any special consideration. As category 3 & 4 have got maximum land and wealth, and have also taken benefit of reservation policies, they are much above the ordinary citizens in general category in terms of wealth and facilities. Maximum benefit should be given to Category 1 & 2, who have not been benefitted. Otherwise also, even among Category 1 & 2, the maximum benefit is taken away by creamy layer.

The author is a Senior Advocate, Supreme Court of India

[1] Indra Sawhney (2) v. Union of India, (2000) 1 SCC 168

[2] Indra Sawhney (2) v. Union of India, (2000) 1 SCC 168

[3]  (2008) 6 SCC 1

[4] (2018) 10 SCC 396



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