Observations by Supreme Court judges on August 1 calling for carving out a “creamy layer” to be excluded from the Scheduled Caste (SC) quota for jobs and education have caused widespread confusion among large sections of vocal Dalit communities across the country over what such a “creamy layer” could look like for SCs.
A seven-judge Bench of the Supreme Court led by Chief Justice D.Y. Chandrachud on Ausgut 1 ruled in a 6:1 majority judgement that State governments were permitted to sub-classify communities within the SC list based on empirical data.
But in his opinion, Justice B.R. Gavai had taken the position that the State “must” find a way to identify the “creamy layer” among SCs and Scheduled Tribes (ST) as well to exclude them from the benefits of affirmative action. Justices Vikram Nath, Pankaj Mithal and Satish Chandra Sharma explicitly concurred with this opinion.
However, beyond noting that the creamy layer criteria for SCs and STs “could be different” from that for OBCs, Justice Gavai’s opinion does not go into the details of what the criteria for creamy layer among SCs and STs could be.
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With the debate over the inaccurate implementation of the creamy layer principle for OBCs and fraudulent means of bypassing it still alive, the observations on a similar “creamy layer” principle for SCs have now led many from SC communities to question why some judges ventured into this area at all when it was supposed to decide on sub-categorisation alone.
Prominent Dalit scholar and PhD researcher at the University of London, Arvind Kumar, argued that the Supreme Court did not have to consider the question of a “creamy layer” for SCs at all. “Even as per its own framing of the question in this case, the court was not supposed to look into the issue of creamy layer among SCs,” Mr. Kumar said in a chatroom discussion on social media organised by columnist Dilip Mandal hours after the judgement.
Subhajit Naskar, assistant professor at Jadavpur University, agreed, adding, “There is not much the Dalit community can hope for when some judges on the Bench have quoted from religious scriptures to justify their stance,” referring to Justice Mithal’s citations of verses from the Bhagwad Gita in his opinion.
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Further, professor Ravikant Kisana, associate professor of cultural studies at Woxsen University, Hyderabad, added, “Creamy layer has been a disaster for OBCs. It needs renewal and bureaucracy of getting it done is so frustrating that many OBCs simply can’t use it. This will be fate of SC/ST creamy layer too.”
And even though the majority opinion penned by Chief Justice Chandrachud has ruled that there is “social heterogeneity” among SCs based on “historical and empirical evidence”, many activists have criticised the Supreme Court’s judgement permitting sub-classification, arguing that it was not based on any “current and empirical” data.
The “creamy layer principle” was first introduced when the OBC quota was brought in after the Indra Sawhney judgement. It created a guiding charter to exclude those OBC individuals from reservations whose families had accumulated certain social and economic privileges over the years, known as the creamy layer.
This would then allow reservation benefits only for those declared as ‘non-creamy layer’ or NCL candidates, based on several criteria, including a crucial income or wealth test.
Using a similar example, Justice Gavai noted in his judgement that the child of an SC person in a high-ranking, prestigious post (e.g. IAS, IPS), cannot be compared to the child of an SC person who works as a peon or a sweeper. Thus, the former “cannot be considered to be socially, economically and educationally backward so as to continue availing the benefit of affirmative action”, he noted.
Shalin Maria Lawrence, a prominent Dalit activist from Chennai said, “There is nothing called ‘developed’ or ‘progressed’ in terms of caste. Caste capital is not economic capital. I hope people understand the difference.”
Mr. Naskar added in a post on social media, “Sub classifying SC ST reservation and putting creamy layers in it is deeply unconstitutional & disrespectful to the two marginalised communities when SC STs in highest positions are victims of caste discrimination, how can court reduce their experiences and essentialise.”
Gautam Bhatia, a scholar of constitutional law and a legal expert, said observations on a creamy layer for SCs might not be legally binding as they were personal views of the four judges and the judgement penned by the Chief Justice does not go into this question at all.
