The Supreme Court’s ruling excluding the “creamy layer” from reservation in promotions for the Scheduled Castes and the Scheduled Tribes has predictably sparked a debate. Alok Prasanna Kumar argues that the court erred by holding that the Scheduled Castes and the Scheduled Tribes can avail of reservation in promotions only if they are backward, and challenges its presumption that backwardness and untouchability will disappear if a generation or two of Dalits and Adivasis get access to education and jobs. This presumption is also rebutted by PS Krishnan, who points to instances of Dalits having been treated as untouchable even after occupying high office. Christodas Gandhi argues that the creamy layer rule may reduce reservation in promotions, although the exclusion criteria he fears may be applied are radically different from those currently used for the Other Backward Classes. Across the aisle, Devika Agarwal supports the filtering out of the creamy layer from all caste-based reservation. Rajeev Dhavan, one of the senior advocates involved with the matter, reiterates in print his argument in the court that the creamy layer principle is a necessary facet of equality and, thus, a part of the Constitution’s basic structure.

There’s one premise of the creamy layer principle, though, that has not been properly anaylsed. The court set it out thus:

“The whole object of reservation is to see that backward classes of citizens move forward so that they may march hand in hand with other citizens of India on an equal basis. This will not be possible if only the creamy layer within that class bag all the coveted jobs in the public sector and perpetuate themselves, leaving the rest of the class as backward as they always were.”

The observation is predicated on a 1975 judgement where the Supreme Court held:

“In the light of experience, here and elsewhere, the danger of ‘reservation’, it seems to me, is three-fold. Its benefits, by and large, are snatched away by the top creamy layer of the ‘backward’ caste or class, thus keeping the weakest among the weak always weak and leaving the fortunate layers to consume the whole cake.”

This line of reasoning, that the poorer among Dalits and Adivasis are losing out on reservation benefits because the creamy layer corners all opportunities, is not backed by evidence. Consider the central civil services: senior officials from Dalit and Adivasi communities are too few to even fill all reserved positions. In fact, posts set aside for the Scheduled Castes and the Scheduled Tribes often go unfilled and the government has to undertake special drives to fill backlog vacancies.

The “weakest among the weak” are not being deprived by the creamy layer, but by the same obstacles that made reservation necessary in the first place. To exclude, through the creamy layer test, the people who have overcome such hindrances to the extent they are able to avail of reservation goes against the very purpose of reservation.

Some among the Scheduled Castes have indeed been unable to benefit from reservation, but this can be remedied by creating a sub-quota, as has been done for the Arunthathiyars in Tamil Nadu. This, however, might require reconsidering the Supreme Court’s judgement in EV Chinnaiah.

Worse outcome

Let us assume the court’s premise that the creamy layer corners all reserved jobs is valid. What would be the effect of excluding such candidates from promotions? It is self-evident that if the feeder cadre is full of the creamy layer, few, if any, non-creamy layer candidates would be available for promotion in the directly recruited cohort. It is a worse outcome than would result if the creamy layer test were applied at the stage of recruitment since that would presumably bring more non-creamy layer candidates into the feeder cadre. Of course, excluding the creamy layer at the recruitment stage would be a travesty, as both Kumar and Krishnan point out.

If more evidence were needed, consider that applying the creamy layer test to reservation for the Other Backward Classes has become so problematic that a parliamentary committee is now reviewing its implementation.

Vikram Hegde is a Supreme Court lawyer.