The misuse of the OBC Non-Creamy Layer Reservation provision (NCL) by Probationary Indian Administrative Service (IAS) officer Puja Khedkar coupled with multiple disabilities certificates has raised issues surrounding the creamy layer in OBC reservation.

About Reservation

• Reservation is a policy for ensuring Equality and Social Justice which aims to enable special provisions for the advancement of socially and educationally backward classes or OBC, Scheduled Castes (SC) and Scheduled Tribes (ST) in education and government jobs.

Constitutional Basis for Reservations in India

• Articles 15(4) and 16(4): They guarantee equality to all citizens in any policy of the government and public employment respectively.
  • Reservations for SC and ST are fixed at 15% and 7.5% respectively, in jobs, educational institutions and public sector undertakings (PSU) at the central level
  • OBC Reservation: It was introduced in 1990, by the then V. P. Singh government based on Mandal Commission (1980) recommendations.
    • A 27% reservation for OBC was implemented in central government employment 
  • 2005: Reservation was enabled for OBC, SC and ST in educational institutions including private institutions.
  • 103rd Constitution Amendment Act 2019: 10% reservation was enabled for the Economically Weaker Sections (EWS) among the General category.

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Other Backward Class and The Creamy Layer Concept

• About Other Backward Class: OBC is a collective term used to  denote castes that are educationally or socially backward.
• Occupational basis of Identification: The OBCs are generally identified on the basis of their occupation, 
  • Example: Cultivation of own land, tenant farming, pottery, agriculture labour, cultivation and selling of vegetables, fruits and flowers, oilseeds crushing, cattle-rearing, washing clothes, carpentry, blacksmith, stone-cutting, etc.
• Population Share: The Mandal Commission report of 1980 estimated OBCs population including  both Hindus and non-Hindus, at around 52 per cent of the total population and identified 3,743 castes and communities as OBCs.
  • As per National Sample Survey Organisation,  The OBCs population was at 41 per cent in 2006.
• Constitutional Safeguards: 
  • Article 15(4): It says nothing in this article shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens.
  • Article 16(4): It allows the state to make any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.
  • Article 340: it provides for the appointment of a Commission National Commission for Backward Classes to investigate the conditions of and the difficulties faced by the socially and educationally backward classes and to make appropriate recommendations. 
• OBC Reservation: It was introduced in 1990, by the then V. P. Singh government based on Second Backward Classes Commission (Mandal Commission) recommendations.
  • A 27% reservation for OBC was implemented in central government employment 
• Indra Sawhney case (1992): The 27% reservation for OBC was upheld by the Supreme Court with the opinion that ‘caste is a determinant of class in the Indian context’, but it was conditional and subject to the exclusion of the creamy layer.
  • A 50% cap was also fixed for reservation unless there are exceptional circumstances to uphold the basic structure of equality.

Creamy Layer Concept

• The Department of Personnel and Training (DoPT) has listed various categories of people of certain rank/status/income whose children cannot avail the benefit of OBC reservation.
• Recommendation: The Justice Ram Nandan Prasad Committee (1993) recommendation was taken into consideration for identifying a person as part of the creamy layer.
• Criterion:
  • Parental Income: It is determined by the position/income of an applicant’s parents alone.
    • Non Governmental: For those not in government, the current threshold is an income of Rs 8 lakh per year (excluding income from salary and agricultural income) in the last three consecutive financial years.
  • GroupA/B Government Service:
    • Either of the parents entered government service (centre or State) as Group A/Class I officer
    • Both the parents entered as Group B/Class II officers 
    • Father, who was recruited in Group B/Class II post and promoted to Group A/Class I before 40 years of age.
  • Either of the parents employed in a managerial position in PSUs
  • Either of the parents holding constitutional posts.
  • Children of a Colonel or higher-ranked officer in the Army, and children of officers of similar ranks in the Navy and Air Force.

Issues Pertaining to the Reservation System in India

• Circumventing the System: Dubious means are adopted by some candidates to obtain such Caste (NCL and EWS) and Disability (4% reservation) certificates to avail Reservation benefits,
  • Example: Strategies like gifting of assets, taking premature retirement etc are adopted to get around the creamy layer exclusion by applicants and their parents, since the applicant’s or his/her spouse’s income is not considered for such exclusion.
• Concentration of Reservation Benefits: As per the Rohini Commission (set up for providing recommendation on sub-categorisation among OBC castes) estimates 97% of reserved jobs and seats in educational institutions have been garnered by just around 25% of the OBC castes/sub-castes at the central level. 
  • Close to 1,000 of around 2,600 communities under the OBC category had zero representation in jobs and educational institutes.
• Creamy layer for SC/ST: Concentration of reservation benefits persists in the SC and ST category as well, which does not have any exclusion based or  ‘creamy layer’ criteria.
• Unfilled Vacancies: 40-50% of seats reserved for OBC, SC and ST in the central government remain unfilled as per government replies in Parliament.
• Reservation for Religious Minorities: Debate over reservations based solely on religion vs. reservations granted to socially/educationally backward groups within various religions.
  • Extending SC Reservation: Commission headed by Justice K.G. Balakrishnan looked into reservations for Dalits who converted to religions other than Buddhism and Sikhism.
• Reservation in Private Sector: Demands for Reservation in Private sector is gaining popularity amongst the political circle
  • Example: Dalit MP CHandrashekhar Azad introduced A Private Members Bill to enable  Reservation in Private Sector in the Parliament.

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Way Forward

• Detailed Scrutiny:  To plug the loopholes in the issue of NCL, EWS and disability certificates with thorough scrutiny in the issuance of these certificates and detailed background check.
• To fill the backlog vacancies for reserved communities on a mission mode 
• Sub-categorisation of reservation to address the under representation or non-representation of various communities. 
• Creamy layer exclusion in SC and ST category should be Introduced  at least for children of Group I/Class A government officials.

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