The recent Supreme Court judgement extending the "creamy layer" concept to Scheduled Castes (SCs) and Scheduled Tribes (STs) marks a troubling departure from established constitutional jurisprudence. It represents a clear case of judicial overreach, threatening to undermine decades of efforts aimed at achieving social justice for India's most marginalised communities.
While Chief Justice DY Chandrachud, who authored the majority opinion on the sub-classification of SCs, has notably remained silent on this contentious issue, the concurring opinions by four other judges extending the creamy layer principle are symptomatic of a broader trend in the Indian judiciary of dismantling social justice, first with EWS judgement and now with creamy layer. The Supreme Court's judgement on the extension of the creamy layer to SCs is a clear example of judicial overreach, with potentially damaging consequences for India's reservation policies. The creamy layer extension was unnecessary, unargued, and ultimately injudicious, reflecting a deep-seated misunderstanding of the complexities of caste-based discrimination.
The creamy layer: From caution to doctrine
To appreciate the gravity of this situation, we must trace the evolution of the "creamy layer" concept. Its origins lie in Justice Krishna Iyer's opinion in the NM Thomas case (1976), where he offered a "sociological caution" against reservation benefits being monopolised by the more advantaged members of backward classes. However, it's crucial to note that Justice Chinnappa Reddy, in his opinion in KC Vasanth Kumar vs State of Karnataka (1985), criticised this approach as "elitist" and "paternalistic." He argued that it treated reservations as a token gesture rather than a necessary step towards undoing generations of caste-based discrimination. This cautionary note, peripheral to the case at hand, would later evolve into a cornerstone of reservation policy.
The concept gained judicial sanction in the landmark Indra Sawhney vs Union of India case (1992), where the Supreme Court mandated the exclusion of socially advanced members of Other Backward Classes (OBCs) from reservation benefits. Crucially, the court explicitly exempted SCs and STs from this principle, recognising the unique nature of their historical oppression.
Judicial overreach
What began as a sociological caution has since been deployed as a rigid legal doctrine for OBCs. This exclusion is a necessity since the population of OBCs was estimated at around 52% in Indra Sawhney, while their reservations are capped at 27%. The creamy layer threshold, initially designed to exclude the more affluent among OBCs from reservations, was paradoxically used to include upper-caste beneficiaries under the EWS category while excluding those within OBCs and now SCs who might have marginally risen above subsistence levels. This misapplication has turned the creamy layer principle into a cynical approach to understanding the constitutional promise of social justice.
The extension of the creamy layer principle to SCs by the recent Supreme Court judgement is a stark deviation from the original intent of the Constitution and the judicial precedent set by Indra Sawhney. It disregards the unique and systemic disadvantages faced by SCs, suggesting that those who have achieved a certain level of economic advancement should no longer benefit from reservations. This perspective fails to account for the enduring degradation and social discrimination that continue to affect even the economically successful members of these communities. Unlike the OBCs, whose reservation is purely on the account of backwardness, in the case of SCs, it is not only backwardness but also untouchability.
A Scheduled Caste person may economically prosper with family members also attaining high posts in governments may still be subjected to invidious forms of untouchability. Caste is a permanent state of exception. In 1978, a statue at Sanskrit University was sought to be cleansed with water of the Ganges, which was inaugurated by Babu Jagjivan Ram, Union Cabinet Minister for the longest time and Deputy Prime Minister. The official residence of the Chief Minister in UP was also purified by the water of the Ganges at the behest of Yogi Adityanath before occupying, as the previous occupant was Akhilesh Yadav in 2017. Ramnath Kovind, former President of India, was mistreated by priests in Jagannath Puri Temple in 2018. Untouchability is based on the notion of defilement, a virus of mind, as Dr Ambedkar says. It is incurable by application of a creamy layer.
Justice BR Gavai's judgement, which went beyond the core issue of sub-classification of SCs and unnecessarily introduced the creamy layer principle, is particularly problematic. His rhetorical questioning during the hearing—whether the children of an IAS officer from a reserved community should still be eligible for reservations—reflects a fundamental misunderstanding of the purpose of affirmative action. The creamy layer is applicable to individuals, while the sub-classification is for caste groups.
The fallacy of economic mobility as social equality
Recent research provides critical insights into the intersection of caste, class, and economic opportunity in India. Rukmini S in her book, Whole Numbers and Half Truths: What Data Can and Cannot Tell Us About Modern India, offers a compelling analysis of these intersections. She notes that "SCs and STs earn the least among all social groups, followed by Muslims and OBCs. Forward castes, on the other hand, are the richest, with household incomes nearly 1.5 times the Indian average." This data underscores the persistent economic disparities along caste lines, despite decades of affirmative action policies.
Furthermore, a recently published research paper by Prateek Raj from IIM Bangalore reveals another dimension of caste-based economic discrimination. Raj's study shows that Dalit business owners face an income gap of 16% compared to other disadvantaged groups due to institutionalised discrimination. This finding is particularly significant as it demonstrates that even when Dalits manage to enter entrepreneurship, they continue to face economic penalties due to their caste identity.
These insights from Rukmini S and Prateek Raj underscore the fallacy of applying the creamy layer principle to SCs and STs. Despite any marginal economic mobility, these groups continue to face significant social and economic disadvantages. The cumulative effect of recent judgements has been to dilute the protective measures that were originally designed to uplift SCs and STs. By subjecting these groups to the same standards as OBCs, the judiciary has ignored the distinct and more severe forms of discrimination faced by SCs and STs. Empirical data shows an overwhelming continuing practice of untouchability, with 52% of Brahminis still practising it, though constitutionally abolished in Article 17. This is a profound misreading of the social realities in India, where caste and untouchability continue to exert a powerful influence irrespective of economic status.
A historical amnesia
The selective application of the creamy layer principle raises serious questions about its fairness and consistency. If the goal is a more equitable distribution of the benefits of reservation, then the creamy layer concept should be applied across all categories, including dominant castes, rather than selectively targeting SCs, STs, and OBCs. As philosopher John Rawls famously opined, "a chain is no stronger than its weakest link." By applying the creamy layer selectively, the judiciary is, in effect, weakening the very groups that reservations are intended to empower, thus undermining the principle of social justice.
The judgement not only misapplies the creamy layer concept but also reflects a troubling historical amnesia. This is particularly evident in the concurring opinion of Justice Pankaj Mithal, who not only extended the creamy layer principle to SCs and STs but also made the historically inaccurate observation that "there was no caste system in ancient India" and that the "misconstruction of the varna system as a caste system was a social defect." Such statements fly in the face of established historical and sociological scholarship, contradicting the extensive discussions on the origins of the caste system in previous judgements, especially Indra Sawhney.
Justice Mithal's revisionist view of history is not merely an academic error; it has profound implications for how we understand and address caste-based discrimination in contemporary India. By denying the historical reality of the caste system while simultaneously extending the creamy layer concept to SCs and STs, this judicial opinion embodies a dangerous contradiction. It seeks to apply a principle (creamy layer) to address a problem (caste-based discrimination) whose very existence it seems to question.
This approach represents a form of judicial overreach that goes beyond mere legal interpretation. It ventures into the realm of historical revisionism, potentially delegitimising the very basis of affirmative action policies enshrined in our Constitution. The extension of the creamy layer concept to SCs and STs, coupled with this ahistorical understanding of caste threatens to undermine decades of constitutional jurisprudence and social justice efforts.
This judgement is a travesty against the historical and social context within which reservations were instituted. It reflects a jurisprudence of convenience as displayed, where judges' personal proclivities, like in the case of Justice Pankaj Mithal, shape legal outcomes more than normative judicial reasoning. We are witnessing a jurisprudence of convenience driven more by the proclivities of judges than by normative reasoning grounded in the Constitution.
The constitutional manifesto for a caste census
The ongoing judicial inconsistencies surrounding the application of the creamy layer principle underscore the urgent need for a comprehensive caste census in India. The last caste census was conducted in 1931, and the social landscape of India has changed dramatically since then. It led to political bargaining with the British government. Pritam Singh, a scholar at the London School of Economics, argued in his paper that the caste data in the census reports highlighted the marginalisation of the lower castes and was used by them to make their claims for power. Due to the demands of the upper castes, caste as a census category was dropped for the 1941 Census. This was a massive setback to the lower castes, who were using the census figures to legitimise their representation in the public sector.
A caste census would provide the empirical data necessary to accurately assess the socio-economic status of various caste groups, enabling the government to tailor affirmative action policies to the needs of the most disadvantaged. Without accurate data, debates over the creamy layer, sub-classification, and other aspects of reservation policies will continue to be mired in speculation and political maneuvering. A caste census would allow policymakers to move beyond broad generalisations and develop more nuanced approaches to social justice. It would also provide a clear empirical basis for determining who qualifies for reservation benefits, ensuring that affirmative action policies are both fair and effective.
The Patna High Court's decision in Youth For Equality vs State of Bihar upholding the constitutionality of the caste survey is a step in the right direction. The court rightly noted that state governments "cannot wait on their haunches for the Central Government to carry out Census and provide details" for affirmative action under Articles 15 and 16 of the Constitution. The reluctance to conduct a nationwide caste census reflects deeper anxieties within Indian society and the political establishment.
The way forward
To move forward, the government must undertake a comprehensive caste census, providing the empirical foundation needed to develop more effective and just affirmative action policies. Only through such a data-driven approach can the country hope to achieve the constitutional vision of substantive equality and social justice for all its citizens.
As the debates over reservations and the creamy layer principle continue to evolve, it is crucial that these discussions are informed by accurate data. The failure to address these issues head-on has significant implications for the future of social justice in India. Without a comprehensive caste census, affirmative action policies will continue to be shaped by political expediency rather than empirical evidence. The resulting policies are likely to be ineffective at best and deeply divisive at worst, further entrenching the inequalities they are meant to address.
It is time for our political leadership to show courage and commitment to the principles of social justice enshrined in our Constitution. A caste census is not just a statistical exercise; it is a moral imperative for the world's largest democracy to build a truly just and equitable society for all Indians.
Benarji Chakka is Dean and Professor of Law, VIT-AP School of Law. Surendra Kumar is Assistant Professor of Constitutional Law and Philosophy at Ramaiah College of Law. They both are British Chevening scholars. Views expressed here are the authors’ own.