Creamy Layer, the Fifty Per Cent Ceiling, and What Has Happened to Both

In one line

Reservation must exclude the well-off within the beneficiary class, and must ordinarily stay under half the posts, and both rules have been argued about ever since.

In the wording a student can write in an exam: two limits on reservation come from Indra Sawhney v. Union of India. The first is the creamy layer: the socially advanced members of a backward class CAN BE AND MUST BE EXCLUDED, because a person who has risen above the backwardness that justified the measure no longer needs it and takes the place of one who does. The second is the ceiling: reservations should NOT EXCEED FIFTY PER CENT, that being the rule subject to extraordinary situations approached with extreme caution, and applied to each year. The creamy layer rule was applied to the twenty-seven per cent central reservation in Ashoka Kumar Thakur, and extended to the Scheduled Castes and Scheduled Tribes for the purposes of promotion in M. Nagaraj, which Jarnail Singh declined to disturb. The ceiling has been qualified by article 16(4B), which takes carried-forward vacancies out of the year's calculation, and by the majority in Janhit Abhiyan, which held the fifty per cent limit not inflexible and applicable only to the reservations envisaged by articles 15(4), 15(5) and 16(4).

The creamy layer

Where it comes from. In Indra Sawhney v. Union of India, AIR 1993 SC 477; 1992 Supp (3) SCC 217, decided on 16 November 1992 by nine judges, among the Court's answers was that THE CREAMY LAYER CAN BE AND MUST BE EXCLUDED.

The reason, which is the part to state. The justification for a special provision is the backwardness of the class. A member of that class who has ceased to be backward has ceased to answer the justification. If such a person takes a reserved place, the measure operates against the very persons it exists for, and the benefit concentrates in a few families.

What the exclusion looks like. The criteria are administrative and are fixed by the Government: holders of constitutional posts, persons in specified higher service categories, and persons whose income or agricultural or other wealth exceeds a prescribed limit, together with their children. A candidate need not memorise the figures; what matters is that the exclusion is by rule, is reviewable, and is a CONDITION of the validity of the scheme rather than a matter of grace.

Its first big application. In Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1; AIR 2008 SC 1, decided on 10 April 2008. Facts. A challenge to the Ninety-third Amendment and the Central Educational Institutions (Reservation in Admission) Act 2006, reserving twenty-seven per cent of seats for the Other Backward Classes. Held. The Amendment and the Act were upheld so far as they related to State-maintained and aided institutions, and the twenty-seven per cent was sustained SUBJECT TO THE EXCLUSION OF THE CREAMY LAYER; the Court directed that cut-off marks for the Other Backward Classes be set NOT MORE THAN TEN MARKS out of a hundred below the general category, and emphasised that reservation or preference must not lead to REVERSE DISCRIMINATION.