Quota conundrum: Clarity needed on creamy layer definition

By: |
August 26, 2021 5:15 AM

‘Socially advanced’ is too broad a term, could muddle the reservation conversation

The apex court needs to be cognisant of the effect of competitive quota politics.The apex court needs to be cognisant of the effect of competitive quota politics.

The Supreme Court’s pronouncement that the exclusion of the ‘creamy layer’ from quotas can’t be merely on the basis of economic strength potentially opens a Pandora’s Box. The apex court, on Tuesday, held that people with “sufficient income who were in a position to employ others” should be treated as outside the backward class. It also said that social advancement, higher employment in government services, etc, played an equal role in deciding ‘creamy layer’ status; this could further muddle the quota debate.

Can, then, an OBC household with significant income argue that a lack of ‘social advancement’ be treated as a factor to keep it from being classified as being in the ‘creamy layer’? The apex court must clarify further, and lay down what would constitute “being socially advanced”, apart from what is already laid down by the Indra Sawhney judgment. Given how difficult that would be to define, the better solution, of course, is to rely on an economic criterion for exclusion from quotas. With creamy-layer income-threshold (currently at Rs 8 lakh annually) up for revision—there have been reports of a Rs 12-lakh annual threshold being considered, though the Centre hasn’t indicated anything so far—it would favour OBCs at the cost of unreserved categories; bear in mind the 10% EWS quota of the Centre for unreserved category caps income-eligibility at Rs 8 lakh per annum. A Rs 12 lakh ‘creamy layer’ for OBCs means, while the average household income rose by 14% between FY17 and FY20–the pandemic would certainly have dented the rate of this growth in FY21–the income-threshold for exclusion from OBC reservation would be set 33% higher. A whopping 80% of the country’s households earns under Rs 8 lakh annually and 95%-plus earn under Rs 12 lakh.

The apex court needs to be cognisant of the effect of competitive quota politics. If the political current that is gathering momentum sweeps away the 50% cap on overall quotas instituted by the Indra Sawhney judgment, merit will suffer a body blow in the country. Against such a backdrop, anything that lends to more quota claims needs to be avoided. While the political class doesn’t shy away from milking the caste-cow, the courts have not been entirely blameless. There have been many problematic judgments in the past—from the Bombay High Court making room for breaching of the 50% quota-cap, against the backdrop of Maharashtra’s Maratha reservation law (that was declared unconstitutional by apex court earlier this year) to the Supreme Court’s own Ajay Kumar Singh judgment (1994), which allowed for reservations in higher education which Indra Sawhney had proscribed. Indeed, in Ajay Kumar Singh, the Court even deemed post-graduate medical courses as ‘not superspecialities’ for the purpose of reservation in admissions. In KL Narasimhan, it demolished the concept of marks as a metric of merit; the Karnataka High Court took this a step further in June 2019, in the case of reservation in promotions.

For India to make the progress that it needs in fourth industrial revolution, reservations have to be kept sharply targeted, if not done away with altogether, to benefit those who need these the most. The judiciary, as also the others, have to ensure that we don’t have reservations in perpetuity, and that too for dominant groups.

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