Defining the creamy layer
Source: By Shyamlal Yadav: The Indian Express
A proposal to revise the criteria for defining the “creamy layer” among OBCs has been pending for years, and MPs have raised the issue during the ongoing Monsoon Session of Parliament. A look at how the creamy layer is defined, and what has led to the revision to get stuck:
It is a concept that sets a threshold within which OBC reservation benefits are applicable. While there is a 27% quota for OBCs in government jobs and higher educational institutions, those falling within the “creamy layer” cannot get the benefits of this quota.
Based on the recommendation of the Second Backward Classes Commission (Mandal Commission), the government on 13 August 1990 had notified 27% reservation for Socially and Educationally Backward Classes (SEBCs) in vacancies in civil posts and services that are to be filled on direct recruitment. After this was challenged, the Supreme Court on 16 November 1992 (Indira Sawhney case) upheld 27% reservation for OBCs, subject to exclusion of the creamy layer.
Following the order in Indra Sawhney, an expert committee headed by Justice (retired) R N Prasad was constituted for fixing the criteria for determining the creamy layer. On 8 September 1993, the Department of Personnel and Training (DoPT) listed out various categories of people of certain rank/status/income whose children cannot avail benefit of OBC reservation.
For those not in governments, the current threshold is an income of Rs 8 lakh per year. For children of government employees, the threshold is based on their parents’ rank and not income. For instance, an individual is considered to fall within the creamy layer if either of his or her parents is in a constitutional post; if either parent has been directly recruited in Group-A; or if both parents are in Group-B services. If the parents enter Group-A through promotion before the age of 40, their children will be in the creamy layer. Children of a Colonel or higher-ranked officer in the Army, and children of officers of similar ranks in the Navy and Air Force, too, come under the creamy layer. There are other criteria as well.
Income from salaries or agricultural land is not clubbed while determining the creamy layer, according to a DoPT clarification issued on 14 October 2004.
During the Monsoon Session, eight Lok Sabha MPS (seven from BJP and one from Congress) raised two questions about the pending proposal for revising the criteria. In response, Minister of State for Social Justice and Empowerment Pratima Bhoumik said on 20 July 2021: “A proposal for revision of the income criteria for determining the Creamy Layer amongst the OBCs is under consideration of the Government.”
In Rajya Sabha, three MPs (two from Samajwadi Party and one from Congress) have asked whether the provision of creamy layer for government services only for OBC candidates is rational and justified. On 22 July 2021, Minister of State Jitendra Singh referred to the Indira Sawhney ruling. He said that in Civil Service batches between 2015 and 2019, 63 candidates selected for IAS were not given appointment because “they were treated as falling under creamy layer”.
Other than the income limit, the current definition of creamy layer remains the same as the DoPT had spelt out on 8 September 1993 and clarified on 14 October 2004. “No other orders for definition of creamy layer have been issued,” Minister of State for Social Justice and Empowerment Krishan Pal Gurjar said in response to a question in Parliament in March.
The income limit has been revised over the years. While the DoPT had stipulated that it would be revised every three years, the first revision since 8 September 1993 (Rs 1 lakh per year) happened only on 9 March 2004 (Rs 2.50 lakh), followed by revisions In October 2008 (Rs 4.50 lakh), May 2013 (Rs 6 lakh) and 13 September 2017 (Rs 8 lakh). It is now more than three years since the last revision.
In a report presented in July 2020, the Parliament Committee on Welfare of OBCs (then headed by BJP MP Ganesh Singh) noted that the provision of revision of income limit after three years “is not being followed by the Government and the revisions are being made at larger intervals, which is not in consonance with and, therefore, violative of the norms set by the Government themselves”.
What does the government propose to do about the revision?
On 12 March 2021, the Ministry of Social Justice and Empowerment forwarded to the National Commission for Backward Classes (NCBC) a draft Cabinet note stating that the creamy layer will be determined on all income, including salary calculated for income tax, but not agriculture income. This was based on the recommendations of a committee, headed by former DoPT secretary B P Sharma that was tasked with suggesting a review of the implementation of the DoPT instructions of 8 September 1993.
However, due to protests by MPs, the move has been stuck and the government’s present stand is that “review is under consideration”. Even ruling MP Ganesh Singh, as head of the Parliament Committee, wrote to other OBC MPs in the BJP on 5 July last year asking them to request Prime Minister Narendra Modi and Home Minister Amit Shah through “messages, tweets” to not include salary and agriculture income while calculating annual family income to decide the creamy layer.
He wrote that the Parliamentary Committee had recommended that the income limit be raised to Rs 15 lakh, but that the government is considering a “consensus on Rs 12 lakh but salary and agriculture income is also being added in the gross annual income, which is wrong”.
The Committee was constituted in June 2012 following a Motion moved in Lok Sabha on 21 December 2011. It currently has 18 members from Lok Sabha and eight from Rajya Sabha, and is headed by Rajesh Verma (BJP) of Lok Sabha.
