Executive clarifications have often diluted the intent of affirmative action. Discuss with reference to the OBC creamy-layer controversy.

In Indra Sawhney (1992), the Supreme Court upheld 27% OBC reservation in central services on one condition: the creamy layer, meaning socially advanced families, had to be excluded [1]. The executive was meant to apply that test faithfully. Instead, its office memoranda and "clarifications" have often changed the test, as the Rohith Nathan (2026) verdict shows [2].

How clarifications diluted the intent

• Changing the test: The 1993 Office Memorandum (OM) judged creamy-layer status by the post and category held by the parents. It left out salary and agricultural income. A 2004 DoPT letter brought salary back in. The SC held this letter cannot override the 1993 OM [2].
• Unequal treatment: Salary was counted for children of PSU and private-sector employees but not for children of government employees. The Court called this hostile discrimination that violates Articles 14 and 16 [2].
• Exclusion caused by inflation: Pay revisions raise salaries even when a parent's post stays the same. Several OBC candidates who had cleared the Civil Services Examination lost the quota this way [2].
• Narrower eligibility: The Committee on Welfare of OBCs criticised later guidelines. It noted that they could exclude children of clerks and peons promoted to junior management by age 40 [3].

Why clarifications arise: the other side

• Equivalence gap: Posts in PSUs, banks and autonomous bodies have no notified Group A/B equivalent. The Committee faulted the government for not mapping these posts, which pushed candidates into court [3]. Salary filled a gap the rules left open.
• Salary is objective: A salary slip is easy to check, and judging what a post is "equal" to is a matter of discretion. Some families with high salaries may still benefit from the quota.

Way forward

• Notify equivalence for PSU, bank and autonomous-body posts [3].
• Count only non-salary, non-agricultural income in the income test, and exempt all Class III employees [3].
• Link revisions of the income ceiling, set at ₹8 lakh in 2017, to each pay commission [3].
• Place creamy-layer OMs before Parliament for scrutiny.

Executive discretion is needed to put a judicial principle into practice. When it is used to redefine eligibility, it defeats social justice. Codified equivalence and transparent, periodically revised criteria would protect Indra Sawhney's intent and the guarantee of equality of opportunity in Article 16(4).