Sub-classification of SC, ST: What did the Supreme Court say about ‘creamy layer’?

Supreme Court on sub classification

A seven-judge bench of the Supreme Court on August 1 by a 6:1 majority allowed sub-classification of Scheduled Castes (SCs) and Scheduled Tribes (STs) for grant of reservation in admissions to educational institutes and public jobs, reversing an earlier order that restricted states from adopting the 'quota-within-quota' model.

The ruling had a total of six opinions including a dissent by Justice Bela Trivedi. Four of the judges who agreed with sub-classification suggested that the government evolve a policy to identify the ‘creamy layer’ among the SCs and STs so that affirmative action (reservation) reaches the people who truly need it.

Justice BR Gavai, who is to become the first Chief Justice of India (CJI) from Dalit community, said, "State must evolve a policy to identify creamy layer among the SC/ST category and take them out of the fold of affirmative action (reservation). This is the only way to gain true equality.”

‘Creamy layer’ refers to those among the SCs and STs who have reached higher echelons of society and would not need the government's help as much as more economically and socially deprived sections.

This however is only a suggestion and not a direction that the government must implement.

Moneycontrol explains what the case was about and what each of the four judges said about the ‘creamy layer’.

What did the judges say about the creamy layer?

Tracing the evolution of the ‘creamy layer’, Justice Gavai’s opinion read. “Can a child of IAS/IPS or Civil Service Officers be equated with a child of a disadvantaged member belonging to Scheduled Castes, studying in a Gram Panchayat/Zilla Parishad school in a village?”

The judgment noted that the child of a parent who is a civil servant would have access to educational and other facilities that would be "totally unavailable" to a child belonging to the same community in a gram panchayat school. The judgment added, “He (the child) will be living in the company of his parents who do not have education and have not even been in a position to guide such a child.”

Noting that disparities and social discrimination are much higher in rural areas than in cities and towns, Gavai's ruling said, “I have no hesitation to hold that putting a child studying in St Paul's High School and St Stephen's College and a child studying in a small village in the backward and remote area of the country in the same bracket would obliviate the equality principle enshrined in the Constitution.”

Similarly, the judgment also highlighted that people from the SC and ST category who have achieved a certain position in society availing of affirmative action cannot be considered socially backward.

The judgment noted that such persons must ‘walk out’ of the special provisions and give way for the needy.

The judgment also clarified, “The criteria for exclusion of the creamy layer from the Scheduled Castes and Scheduled Tribes for the purpose of affirmative action could be different from the criteria as applicable to the Other Backward Classes.”

Justice Vikram Nath, who concurred with the majority view, said, “I am also in agreement with the opinion of Brother Justice Gavai that ‘creamy layer’ principle is also applicable to Scheduled Castes and Scheduled Tribes, and that the criteria for exclusion of creamy layer for the purpose of affirmative action could be different from the criteria as applicable to the Other Backward Classes.”

Justice Pankaj Mithal, in his concurring judgment and Gavai's observation, also noted that if a few members of a particular caste/class advance in society, the entire caste or class would not cease to be backward. His judgment added, “Nonetheless if any member of designated backward class acquires a higher status and attains equality with the forward class, it is difficult to comprehend how his children would be treated as depressed, downtrodden or backward in any manner be it socially, economically or educationally."

Justice Satish Chandra Sharma’s ruling said, “I find myself in agreement with the view expressed by Justice Gavai i.e., for the full realisation of substantive equality inter se the Scheduled Castes and Scheduled Tribes, the identification of the ‘creamy layer’ qua Scheduled Castes and Scheduled Tribes ought to become a constitutional imperative for the State."

What was the case about? 

While reservation is an affirmative action aimed at uplifting communities that were oppressed prior to independence, its constitutional scheme did not provide a methodology to arrive at which communities need how much of reservation. Some states in India took to sub-classifying among the SCs and STs to provide certain communities more reservation that others.

In 2004, a five-judge bench of the Supreme Court ruled that all SC communities that suffered ostracisation, discrimination and humiliation for centuries represented a homogeneous class, incapable of being sub-categorised. Furthermore, the court ruled that only Parliament had the power to sub-classify and not the states.

In 2020, a five-judge bench of the top court felt the need to reassess the 2004 judgment while hearing challenges to a Punjab government's 1975 notification that divided its 25 percent reservation for the SCs into two categories.

The case was then referred to the seven-judge bench, since the 2004 judgment could only be reassessed by a larger bench. Hearings began in February 2024, wherein the Union government told the court that it supported the sub-classification as would further the cause of reservation.

Solicitor general Tushar Mehta said the government favoured setting aside the 2004 judgment as it restricted states from framing policies by sub-classifying the zone of reservations appropriately.

Mehta said the ruling was against the constitutional guarantee of equal opportunity and added states’ lack of power to sub-classify perpetuated inequality among the reserved classes.

The court in its judgment accepted the Centre’s contention and allowed sub-classification of SCs and STs.