The Narendra Modi government has rightly requested the Supreme Court to reconsider a Constitution bench decision on the issue of creamy layer within the scheduled castes and scheduled tribes, pronounced in the 2018 case of Jarnail Singh v. Lachhmi Narayan Gupta, by referring it to a larger bench. The Jarnail Singh judgment, authored by Justice Rohinton Nariman, had held that the creamy layer within SC/STs will be excluded from the benefits of reservation in promotion policies.
There were glaring flaws in the Jarnail judgment.
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Conflating OBCs with SC/STs
The Jarnail Singh decision made an interpretation of earlier judgments. The problem is that these judgments had conflated the OBC issue with that of the SC/STs – the creamy layer principle that was invoked for the OBCs was applied to the question of SC/STs. This is the central fallacy that goes into the heart of the ongoing debate now.
The fact that the Constitution bench in the 2018 case did not even take this obvious flaw into account reflects poorly.
The Constitution bench in Jarnail Singh had been called upon to reconsider a previous decision in M. Nagaraj v. Union of India (2006). It was contended by the government’s attorney general before the Supreme Court in Jarnail Singh case that exclusion of creamy layer of SC/STs in promotions, as propounded in Nagaraj, is a clear misinterpretation of another judgment in 1992 in Indra Sawhney v. Union of India. The 1992 judgment had dealt only with the constitutionality of 27 per cent reservation granted to the Other Backward Classes (OBCs) and exclusion of creamy layer from the OBCs.
Specifically examining the 1992 Indra Sawhney judgment, the Jarnail Singh judgement of 2018 made two observations that are contradictory. On one hand, it noted that the discussion on the creamy layer concept is limited to backward classes in the Indra Sawhney, which had said clearly that “this discussion is confined to Other Backward Classes only and has no relevance in the case of Scheduled Tribes and Scheduled Castes”. But, on the other hand, the Jarnail Singh judgment made the mistake of treating the Indra Sawhney judgement to be “a facet of the larger equality principle” (covering both OBCs as well as SC/STs). Both positions are mutually exclusive.
Here, the Supreme Court failed to understand the significant difference between OBCs and SC/STs.
In a number of judgments, including Indra Sawhney, it has been held that the members of the Scheduled Castes are most backward amongst the backward classes and that they are not required to fulfill any condition of social and educational backwardness. The standard of review for adjudicating the claims of SC/STs and OBCs cannot be the same.
India’s Constitution enshrines substantive equality (which recognises that affirmative steps can’t be one-size-fits-all), and a recent two-judge bench decision in B.K. Pavitra v. Union of India (2019) rightly said, it therefore requires “accounting for the structural conditions into which people are born”.
The judgment in Nagaraj, earlier, had made the same mistake. In dealing with the constitutional amendments that allowed reservation in promotions for SC/STs, the judgment had applied the test laid down in Indra Sawhney for OBCs to SC/STs as well. The Supreme Court had then held: “These impugned amendments are confined only to SCs and STs. They do not obliterate any of the constitutional requirements, namely, ceiling limit of 50% (quantitative limitation), the concept of creamy layer (qualitative exclusion), the sub-classification between OBCs on one hand and SCs and STs on the other hand as held in Indra Sawhney”.
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Creamy layer not a principle of equality
In another Constitution bench judgment in the case of Ashoka Kumar Thakur v. Union of India (2008), the Supreme Court had reiterated the creamy layer test to be applied to OBCs in admissions to government universities as well as government-aided private universities. Then Chief Justice of India, K.G. Balakrishnan, had said emphatically that the creamy layer principle is inapplicable to scheduled castes and scheduled tribes because it is merely a principle of identification of the backward class and not applied as a principle of equality. The decision in Jarnail Singh noted that the Ashoka Kumar judgement was “not on Scheduled Castes and Scheduled Tribes but on OBCs”, and also disagreed with the view of Chief Justice Balakrishnan.
This again presents a contradiction: On one hand, it was disagreeing with Chief Justice Balakrishnan’s opinion on inclusion of SC/STs creamy layer because Ashoka Kumar decision was mainly related to OBC reservation, but on the other hand, it was approving Nagaraj’s exclusion of SC/STs creamy layer based on the reading of Indra Sawhney, which also was limited only to OBC reservation. Justice Nariman in Jarnail Singh fails to address this.
Furthermore, Justice Nariman relies upon some observations made in Justice Krishna Iyer’s concurring opinion in State of Kerala v. N.M. Thomas (1976) in support of creamy layer exclusion. This raises the concern that if the opinion of one judge (Justice Krishna Iyer) is important enough to be invoked for “constitutional courts … to exclude the creamy layer”, then the opinion of Chief Justice Balakrishnan on the inclusion of creamy layer is equally important. This concern ought to have been addressed.
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The creamy layer argument
Opponents of reservations in India contend that decades of reservations for SCs and STs had created a ‘creamy layer’ and that the time has come to exclude their descendants from job quotas.
But that is a flawed argument. Centuries of discrimination and harmful stereotypes, and denial of opportunities do not go away if one buys a car or owns a city home.
In a detailed article in Harvard Civil Rights-Civil Liberties Law Review, professor Khiara M. Bridges documents the disadvantages that class-privileged people of colour experience in the United States. On the basis of these experience, Bridges strongly critiques and rejects the notion of ‘post-racial’ thinking — which opposes race-based affirmative action programmes on the ground that it just benefits class-privileged black people.
The discussion on ‘creamy layer’ in India is similar to post-racialism discourse in the US and needs to be similarly critiqued. It should begin with the Supreme Court reconsidering the condition of creamy layer as laid down in Nagaraj and Jarnail judgments.
The author is an LLM from Harvard Law School and teaches a seminar course ‘Law, Politics, and Social Transformation’ at National Law University, Delhi. Views are personal.