The Creamy Layer

In one line

If the reason for the preference is that the group is disadvantaged, the preference cannot go to those within it who are not.

In the wording a student can write in an exam: the creamy layer is that section of a backward class whose members have advanced socially, educationally and economically to the point where they are no longer backward, and who must therefore be excluded from the benefit of reservation, the exclusion being a requirement of article 14 as well as of the enabling provisions themselves.

The reasoning

The argument is short and it follows from [Formal and Substantive Equality].

Reservation is justified in Indian doctrine as a facet of equality, on the footing that the beneficiaries are unequally placed. A person within the class who is no longer unequally placed is therefore outside the justification. Including that person would be treating unequals equally in the other direction, which is the very vice the doctrine exists to correct, and it would also take the benefit from the person for whom it was intended.

There is a second, empirical argument: without the exclusion, the benefit concentrates in the families that captured it first, and the least advantaged within the class never reach it.

The rule and its history

Indra Sawhney v. Union of India, AIR 1993 SC 477, held in terms that the creamy layer can be and must be excluded. The Court did not fix the criteria itself; the Union appointed an expert committee, and the criteria that followed have three broad heads.

Constitutional and service position. Children of persons holding constitutional posts, and of officers in higher services, are excluded.

Income and wealth. A family income limit, revised from time to time, and holdings of agricultural land or plantations above stated limits.

Profession and property. Children of professionals and of persons in trade or industry above the income limit.

Two points about the criteria. They operate on the parents' status, not the applicant's own; and income is only one head, so a person may be excluded by the family's official position at a lower income.

The Scheduled Caste question

This is the difficult part and it has to be stated carefully.

The argument against applying it. The Scheduled Castes and Scheduled Tribes are identified by the Presidential List under articles 341 and 342, and Indra Sawhney treats them as the most backward once so listed. Their backwardness is not something the State assesses; it is a consequence of the List. On that view, testing individual members for advancement is a variation of the List by a route Parliament alone may take.

The argument for applying it. The justification for reservation is disadvantage, and a member of a listed caste who holds high office and whose children are educated at the best institutions is not disadvantaged in the relevant sense; article 14 requires the exclusion, and the exclusion does not remove anybody from the List.