The seven-judge constitutional bench of the Supreme Court has upheld the constitutional validity of the sub-classification of Scheduled Caste reservations within the purview of existing Article 341. This is a great day for all those who were fighting for substantial justice through re-classification to achieve social justice. The SC upheld the sub-classification with a majority of 6:1. The only dissenting judge on the bench was, predictably, Justice Bela Trivedi who opposed it both on the principle and the method. 

While there were six independent judgements about the issue, Chief Justice DY Chandrachud wrote the judgement for him and Justice Manoj Mishra. Justice Gavai, Justice Vikram Nath, Justice Mittal, and Justice SC Sharma gave independent and concurring judgements with the main judgement of the CJI. 

The CJI judgment while upholding the legislative power of the sub-classification of SC reservation by the state governments has instructed that it could do so only based on the empirical study which should prove the inadequacy of the representation of the beneficiaries of sub-classification. 

So far so good. 

Why did the creamy layer creep in?

The historic judgements also have some ahistoric and problematic postulates, especially about the question of applicability of the creamy layer to SC social groups. 

In fact, this question was not before the constitutional bench at all. Still, the four judges concurring on the constitutionality of the sub-classification dwelled on this question and provided confusing answers going against the principle of social justice itself. 

The question of the applicability of creamy layer to SCs was conclusively resolved in the Indira Sawhney vs Union of India case by the nine-judge constitutional bench. The bench then concluded that the creamy layer could only be applied to the OBC categories and not the SCs since their social backwardness could not be overcome at an individual level.

Since then, there hasn’t been much debate about the applicability of the creamy layer criteria to the SCs. 

Creamy layer – Another way to exclude? 

Two basic historical and contemporary realities do not permit the applicability of the criterion to the SCs. Articles 15(4) and 16(4) of the Constitution guarantee affirmative action to the socially and educationally backward classes of the society by the state. While 15(4) makes special reference to SCs and STs, the term backwardness subsumes SC and STs in 16(4). 

In defining social backwardness, the social impediments caused by the practice of untouchability and the consequent educational, and social backwardness it gives rise to are duly recognised. Given the rigid caste system of the country, it was observed that even though economic and educational mobility of the SCs would be possible by reservation and other affirmative action by the state among the beneficiaries of the SCs to a small extent, it will not bring in social mobility for the same class. Hence, the creamy layer which by definition presumes not only relative better economic and education status, but also social status, can't be applied for the SCs. This was the rationale. 

But this answer also has a flip side. This social predicament of the SCs’ perpetual social immobility precludes the benefits of reservation perpetuating to a tiny class within the SCs without allowing it to percolate further down, hence creating a vested interest against the application of creamy layer to the SC category. 

Denying adequate representation?

But this pertinent question which would eventually find an answer in creamy layer, does not provide a satisfactory answer for the negative implications of such exclusion of creamy layers within the SCs. It is about the emergence of an existing situation which is already witnessing a lack of suitable SC candidates in the middle and higher cadres. This ‘dearth of suitable candidates’ would multiply if the post in the previous cadre is not filled due to the application of the creamy layer principle. This would increase the backlog without fulfilling the reservation or making the post general category for want of a suitable SC candidate. 

Thus it would lead to inadequate representation that would defeat the very purpose of Article 16(4) which urges states to appoint backward classes which aren't adequately represented.

Thus the stated purpose of introducing the creamy layer gets defeated and the same principle is manipulated by the forward caste for their benefit. In this era of neoliberalism and increasing withdrawal of the State, such a creamy layer policy would be a recipe for the regression of Dalit life.

Both these questions of principles of SC backwardness and the pragmatic questions of retaining the opportunity for the next in the ladder ought to be addressed by the SC before invoking the creamy layer principle in deciding sub-classification. The SC has unnecessarily passed its opinions and judgements without answering the above questions satisfactorily. In fact, the question of the creamy layer for the SCs was not before the bench at all. 

Multiple opinions or directions?

Not only did the judges of the bench not answer the counter questions that arose out of applying the creamy layer category to the SCs, they also provided different solutions leaving the implementing authorities perplexed about what is to be followed. 

For example, the leading judgement by the CJI and Justice Mishra deliberates about the applicability of the creamy layer to the SCs and stops at stating the understanding of Indira Sawhney about the issue. The Sawhney judgement said creamy layer did not apply to SCs since their social mobility was not possible despite economic and educational mobility induced by reservation. The conclusion and direction given by the CJI and Justice Manoj Mishra do not have any reference to creamy layer at all!

The case for the applicability of creamy layer to the SCs is forcibly argued by another senior and the only Scheduled Caste judge on the bench, Justice BR Gavai. He concludes:

“...that the finding of M Nagaraj, Jarnail Singh and Davinder Singh to the effect that creamy layer principle is also applicable to Scheduled Castes and Scheduled Tribes lays down the correct position of law.” 

But gives some concession to the SCs by saying: 

“that the criteria for exclusion of the creamy layer from the Scheduled Castes and Scheduled Tribes for the purpose of affirmative action could be different from the criteria as applicable to the Other Backward Classes.” 

Justice Vikram Nath who concurs with CJI in the rest of the matter, takes the side of Justice Gavai by stating: 

“I am also in agreement with the opinion of Brother Justice Gavai that the ‘creamy layer’ principle is also applicable to Scheduled Castes and Scheduled Tribes, and that the criteria for exclusion of creamy layer for the purpose of affirmative action could be different from the criteria as applicable to the Other Backward Classes.” 

Justice Satish Chandra Sharma also follows Justice Gavai by stating: 

“However, on the question of applicability of the ‘creamy layer principle’ to Scheduled Castes and Scheduled Tribes, I find myself in agreement with the view expressed by Justice Gavai i.e., for the full realisation of substantive equality inter se the Scheduled Castes and Scheduled Tribes, the identification of ‘creamy layer’ qua Scheduled Castes and Scheduled Tribes ought to become a constitutional imperative for the State.”

Justice Pankaj Mittal goes a step ahead in this pursuit of excluding SCs from the ambit of reservation. He states in his judgement that:

“The reservation, if any, has to be limited only for the first generation or one generation and if any generation in the family has taken advantage of the reservation and have achieved higher status, the benefit of reservation would not be logically available to the second generation; and (iv) It is reiterated that periodical exercise has to be undertaken to exclude the class of person who after taking advantage of reservation has come to march, shoulder to shoulder with the general category.” 

By this logic, even sons and daughters of a D grade employee who would have got the job out of reservation shall not be qualified for the benefits of reservations. 

Moreover, how will it ensure “adequate representation” when the very feeding mechanism is plugged? 

What impact would such a policy have upon the families of the new lower and lower middle class of the SCs? Will it not preclude any chance of educational and economic mobility to the SCs, let alone social mobility in this era of neoliberalism? 

That apart, the six judges who upheld the sub-classification provide different answers to the question of the applicability of the creamy layer to the SCs. 

While two judges, including CJI, are silent on the question of creamy layer, Justice Gavai, Justice SC Sharma and Justice Vikram Nath emphasise the need for creamy layer among the SCs while suggesting that the criteria for the creamy layer for the SCs “could” be different from the OBCs. Justice Mittal says reservation should be only for the first generation. 

When the constitutional bench gives multiple directions to unasked questions, what should the states do? Without answering the constitutionality of the principle of extending the creamy layer which would destroy the very principle of reservation and consequent pragmatic questions, how will this judgement hold for social justice even though it upheld sub-classification? 

Shivasundar is an activist and freelance journalist. Views expressed here are the author’s own.