The Creamy Layer And The Cake

In case after case concerning the law of caste-based reservations under our Constitution, the Supreme Court has held that it is mandatory for the government to ensure that the “creamy layer” does not avail of any quotas. In other words, even if a person belongs to a Scheduled Caste, Scheduled Tribe, or Other Backward Class community, she will not be able to get a reserved seat in a government job or educational institution if she belongs to a “creamy layer” family. Typically, families that earn more than a specified sum of money or who have attained a certain status in society (e.g., high-ranking positions in the government) are considered part of the “creamy layer”. However, the Supreme Court’s application of the creamy layer doctrine is riddled with numerous inherent inconsistencies.

Justice Krishna Iyer’s Formulation

In his judgment in State of Kerala v. NM Thomas (1976), Justice Krishna Iyer wrote something quite interesting. He said that one of the dangers of reservation was that its benefits were, “by and large…snatched away by the top creamy layer of the “backward” caste or class”. This was the first time that the words “creamy layer” had been used in a Supreme Court judgment. Justice Krishna Iyer believed that the well-off, affluent members of the backward classes were the ones who were getting to “consume the whole cake”, while those genuinely in need, the “weakest among the weak”, were left with nothing. In fact, he wrote, research conducted at an institute of social studies in Patna “revealed a dual society among harijans” – “a tiny elite gobbling up the benefits and the darker layers sleeping distances away from the special concessions.” For the latter, the provisions of India’s constitution were a “noble romance”. The reservations “bonanza”, the study said, went “to the ‘higher’ harijans.”

However, these were only passing observations. The exclusion of the creamy layer became a binding rule in the early 1990s. The VP Singh government had given effect to the Mandal Commission report and granted reservations to OBCs in central government jobs. The Mandal Commission had used caste as one of the factors in determining whether a community was socially backward or not. In Indra Sawhney v. Union of India (1992), the Supreme Court upheld the Mandal Commission report with one important twist. The court said that before the government could grant reservations to OBCs, it had to exclude the “creamy layer”. From being a mere fleeting observation in Justice Krishna Iyer’s judgment, the exclusion of the “creamy layer” was now a firmly entrenched principle in constitutional law.

In subsequent years, the Supreme Court applied the creamy layer concept not merely to OBCs, but also to SCs and STs. So, in Jarnail Singh v. Lachhmi Narain Gupta (2018), Justice RF Nariman held that the creamy layer concept applies to SCs and STs with equal vigour.

Jagjivan Ram Was In The Creamy Layer

However, the application of the “creamy layer” doctrine by the Supreme Court to SCs is highly problematic. Unlike STs and OBCs, SCs have historically suffered from the stigma of untouchability. While reservations are given to SCs, STs, and OBCs in order to bring them out of their “backwardness”, reservations for SCs, in particular, are also intended to compensate them for the trauma of untouchability. The creamy layer concept relies on the proposition that an individual who is no longer backward (e.g., one who is well off, or whose family members have attained high positions in the government) can compete with others and so should not be able to get a seat reserved for herself. However, creamy layer status does not necessarily wipe out the stigma of untouchability. An SC person may be relatively well off, her family members might have attained high posts in the government, and she might still be subjected to invidious forms of untouchability in India.

Though formally repudiated by the Constitution, untouchability continues to be practiced in insidious forms. In 1978, in Varanasi, when Jagjivan Ram, who had been a minister in the central government for several years, unveiled a statue of Dr Sampurnanand (a former chief minister of Uttar Pradesh) at the Sanskrit university there, high caste Hindus later washed that statue with the water of the Ganges in order to “purify” it.

In urban India, empirical evidence suggests that companies discriminate between potential employees on the basis of caste and religion. According to one study, in response to newspaper advertisements, job applicants who had Hindu upper-caste names were more likely to get called for interviews than those with backward caste or Muslim names. Another study found that landlords in Delhi were more willing to give their homes on rent to tenants with upper-caste Hindu names, rather than those who had Dalit or Muslim names.

Does The Community Benefit?

Oddly, the Supreme Court applies the creamy layer concept to reservations in education and employment, but not to reservations in legislative bodies. In other words, though members of the backward classes who have attained “creamy layer” status cannot obtain reserved seats in educational institutions or government jobs, “creamy layer” SCs and STs can contest elections to the Lok Sabha or state legislative assemblies in reserved constituencies. Creamy layer OBCs can similarly contest reserved seats in panchayats and municipalities.

In a judgment written in 2010, Chief Justice KG Balakrishnan explained the rationale for this inconsistency. He suggested that when a backward class person is elected to political office in a reserved constituency, the benefit goes to the community as a whole, and not just to her as an individual. By contrast, he hinted, when a person gets a reserved seat in an educational institution or government job, that individual alone benefits.

However, this reasoning is flawed. When a backward class person gets a reserved seat in a government job or educational institution, the entire community may sometimes benefit along with the candidate in question. Consider the case of an SC student who becomes a medical doctor thanks to reservations. The fact that she has qualified as a doctor now means that networks have been opened up within her community – members of her community who might have found it difficult to even get a doctor’s appointment now have easy access to a doctor within the community.

Inter-Caste Marriages

Further, the Supreme Court’s failure to apply the creamy layer test to political reservations renders the law of inter-caste marriages tenuous. When an upper-caste woman marries a lower caste man, the Supreme Court says that the peremptory rule is that the married woman cannot seek a reserved seat (whether in a job, college, or elected office) on the basis of her husband’s caste. Once an upper-caste woman, always an upper-caste woman, says the court.

Now, in its application of the creamy layer rule, the Supreme Court says that there is a difference between reservations in government jobs and educational institutions, on the one hand, and in political office on the other. Creamy layer candidates can avail of reservations in political office, says the Supreme Court, because the entire community benefits by the reserved candidate’s election, and not the individual alone. Creamy layer candidates cannot, however, seek reserved seats in government jobs and educational institutions, since the assumption is that the individual candidate alone benefits in such cases.

On the same logic, it would be possible for an upper-caste woman who marries a lower caste man to argue that she should be entitled to contest an election in a reserved constituency, even if she is not permitted to seek reservations in government jobs or educational institutions. After all, if she is elected to office, according to the Supreme Court’s own reasoning, the benefit of that election would go not to her alone but to the entire community. As a legislator holding a reserved seat, she might be able to competently represent the interests of the backward community which she has married into, and which might have accepted her as one of their own. However, while political reservation is considered to be different from reservation in education and employment when it comes to the creamy layer rule, these concepts are thought of as indistinguishable when it comes to inter-caste marriages.

Abhinav Chandrachud is an advocate at the Bombay High Court and the author of Republic of Religion: The Rise and Fall of Colonial Secularism in India (Penguin 2020). A Marathi version of this article first appeared in the Loksatta on Nov. 29, 2020.

The views expressed here are those of the author, and do not necessarily represent the views of BloombergQuint or its editorial team.