The debate continues over ‘creamy layer’ in India’s reservation system

The SC judgment permitting sub-classification within SCs, while aiming to address internal disparities, has certain advantages as well as disadvantages.

Since the time of the Constitution's drafting, the concept of the “creamy layer” in the reservation has been a pivotal issue of debate and legal scrutiny in India.

The judgment permitting sub-classification within SCs, while aiming to address internal disparities, has certain advantages as well as disadvantages. (Getty Images/iStockphoto)

The laws or any policy, on the reservation system, have been implemented to address the historical and social inequalities faced by marginalised communities. Even after 75 years of independence, there is a constant dilemma about who should fall in the reserved category as the inclusion of individuals from affluent families within these marginalised groups has time and again raised concerns about the fairness and effectiveness of the system.

The Scheduled Caste (SC) designation in India finds its roots in the historical context of untouchability and the treatment of certain groups as "depressed classes." As early as 1916, discussions in the Indian Legislative Council suggested that the "depressed classes" should encompass criminal and wandering tribes, aboriginal tribes, and untouchables. Then, the Government of India Act of 1935 formally recognised these "depressed classes" as "Scheduled Castes," solidifying their connection.

The historical connection between "depressed classes" and "Scheduled Castes" underscores the continued impact of social hierarchies and the persistence of disadvantage faced by these groups, prompting specific constitutional provisions aimed at their protection and upliftment.

The Supreme Court's ruling in the State of Punjab & Ors. v. Davinder Singh & Ors. has shed further light on the complexities surrounding the exclusion of the creamy layer from the reservation system as it examines the constitutionality of sub-classifying SCs for reservations in public services. The reference to a larger bench was made to determine whether the "creamy layer" principle, which excludes the most socially and economically advanced members of a backward class from reservations, applies to SCs. The most significant effect of this judgment is that it overturns the precedent set by E.V. Chinnaiah v. State of A.P. and Ors., where, it was held that the sub-classification within Scheduled Castes was impermissible within the Constitution. The present judgment found this interpretation flawed and while analysing various constitutional provisions, including Articles 14, 15, 16, 341 and 342, it held that sub-classification among SCs is permissible to provide more beneficial treatment to the most disadvantaged groups within the Scheduled Castes category.

Article 341 and Homogenous Classification

The connection between Article 341 and the concept of homogenous classification is complex as the crux of the issue lies in whether the categorisation of certain castes as SCs under Article 341 creates a rigidly homogenous class, or whether it allows for the recognition of internal differences and the possibility of sub-classification. Article 341 empowers the President of India to specify, through public notification, the castes, races, or tribes deemed to be SC for the Constitution. This process of specification creates a distinct legal category—the “Scheduled Castes”—entitled to certain benefits and protections.

Earlier, in Chinnaiah’s judgment, the concept of “deeming fiction” was central to the argument against sub-classification, where it was held that recognising sub-categories within SC would be tantamount to “tinkering” with the Presidential List, thereby undermining the purpose and authority of Article 341.

However, the present judgment rejects this interpretation, finding that Article 341 does not create an absolute, integrated homogenous class for all purposes. Instead, it contends that the “deeming fiction” in Article 341 serves the limited purpose of identifying and distinguishing SCs from other groups for constitutional protection. The judgment emphasizes that while Article 341 creates a specific legal category, it does not erase the historical and social realities of internal differences within this group.

Justice Bela M. Trivedi’s dissenting judgement

The judgment pronounced by Justice Bela M. Trivedi upheld the precedent set in E.V. Chinnaiah’s case and emphasised the potential dangers of permitting states to modify the Presidential list of SCs. She emphasises the importance of judicial discipline and the doctrines of precedent and stare decisis, which discourage overturning settled law without compelling reasons. She asserts that overturning such precedents without robust justification can create uncertainty and weaken the legal system.

Trivedi underscores that the Constitution, specifically Article 341, grants the President the sole authority to identify and specify the groups recognised as SCs. Allowing states to further sub-classify these groups, she argues, essentially empowers them to modify the presidential list, thereby exceeding their constitutional authority.

Further, she contends that the reliance on the Indra Sawhney case to justify the need for sub-classification within SCs is misplaced. She highlights that the Indra Sawhney judgment, which dealt with reservations for Other Backward Classes, explicitly stated its inapplicability to SC and Scheduled Tribes.

Trivedi also raises concerns about potentially misapplying Article 142 of the Constitution. This article grants the Supreme Court the power to deliver complete justice. She argues that while well-intentioned, using Article 142 to allow state-level sub-classification of SCs would, in effect, be condoning the violation of a specific constitutional provision (Article 341) in the pursuit of a broader societal goal.

Sub-classification within SCs: Advantages and disadvantages

The judgment permitting sub-classification within SCs, while aiming to address internal disparities, has certain advantages as well as disadvantages. The judgment aims to ensure that the most disadvantaged among SCs receive the benefits of affirmative action, promoting a more equitable distribution of resources and opportunities and also acknowledges the existence of a "creamy layer" within SCs who have advanced socio-economically, thus allowing the state to focus its efforts on those who remain marginalised and truly in need. Further, the requirement for empirical data to justify sub-classification ensures that decisions are based on objective criteria rather than arbitrary distinctions, promoting fairness and transparency.

On the contrary, instead of moving towards a more equitable and casteless society as envisioned in the Constitution, the decision might exacerbate caste consciousness and solidify these social classifications. Allowing sub-classification within SCs could open the floodgates to further legal challenges and disputes as the process of defining and justifying the criteria for sub-categorisation could lead to prolonged litigation and create uncertainty for both the government and the communities involved. The concern also arises that the process of sub-classification might be susceptible to political manipulation. It could be exploited by political parties seeking to appease specific communities or consolidate their vote banks, potentially undermining the intended objective of social justice. Moreover, sub-classification could create a system where certain groups develop a vested interest in maintaining their disadvantaged status to continue benefiting from reservations.

The judgment has highlighted the need to strike a balance between the commitment to equality and the imperatives of compensatory discrimination and to refine and improve the reservation system to better serve the most disadvantaged. At the same time, it also introduces new complexities and potential for intra-community conflicts that need careful management.

Sanya Singh is a practising lawyer based out in New Delhi. The views expressed are personal