Sub-Classification of Scheduled Castes: Is the ‘Creamy Layer’ Fair Game?

Sub-categorization and the concept of “creamy layer” are terms used in the context of affirmative action and reservation policies, particularly in India. Sub-categorization refers to the practice of dividing broad reservation categories into more specific sub categories. For example, in India, the Schedule caste (SC) and Schedule Tribe (ST) categories may further be divided into sub-categories based on specific social and economic condition. 

To ensure that the benefit reach the most disadvantaged individuals within a larger category and to address disparities within broad categories and allocate resources more effectively. The “creamy layer” is a concept used to describe the relatively privileged members within a reserved category who are economically and socially better off. The term was popularized by the supreme court of India to address the concern that reservations, which are intended to uplift the most disadvantaged, were sometimes benefiting those who were already relatively well-off within their category. The criteria for determining the creamy layer often includes income limits, educational qualifications and other socio-economic indicators.

The Supreme Court in its recent decision allowing sub-classification of Scheduled Castes(SCs), held that the States are required to base their justification of sub-classification on effective and qualitative data indicating 'inadequate representation' of the sub-classified backward classes in state services.

The 7-judge Constitution Bench, by 6:1 majority, held that 'inadequate representation' of certain SCs across appointments in state services was a key indicator of proving 'backwardness' within the Schedule Caste. The States are required to prove an 'inter se' backwardness within the SCs in order to make reservations for a specific sub-classified group within the SCs.

Also Read: Supreme Court calls for 'creamy layer' exclusion in SC/ST reservations

The Court examined two key issues on the extent of justification required to be given by the States in making sub-classifications within a caste for reservation : (1) should the state prove 'inter se backwardness' as opposed to the decision in Indra Sawhney v Union of India which held such backwardness is not required to be 'proven' for SC/STs; (2) Whether it is necessary to prove the 'inadequacy of representation of the more backward within the Scheduled Castes? 

The Court held that while the decision in Indra Sawhney case allows the State to give benefits to Scheduled Castes and Scheduled Tribes without proving they're backward, the decision makes no express exception for the States to sub-classify without giving a reasonable justification.

"The decision in Indra Sawhney (supra) exempts the State from having to prove that the Scheduled Castes and the Scheduled Tribes are backward for the purposes of securing benefits under Articles 15 and 16. The observations do not exempt the State from having to justify the decision of sub-classifying within the Scheduled Castes and Scheduled Tribes for the purposes of reservation."

It further held that sub-classification is premised on the notion that there exists a hierarchy within the scheduled castes, where certain castes or groups have even more backwardness than the other. Thus it was made clear that while the State doesn't need data to prove the entire class is backward, it must collect data to show differences in backwardness within the class if it wants to sub-classify. Such quantifiable data was necessary to establish the variance in backwardness with the backward classes or 'inter se' backwardness.

"The basis of sub-classification is that few of the castes or groups within the class are more backward. Thus, though the State is not required to collect quantifiable data to prove backwardness of the entire class of the Scheduled Castes/Tribes, it is required to collect data to prove inter-se backwardness within the class, where it seeks to make a sub-classification within the class."

Accordingly, the Court concluded that using only cadre strength to measure representation is insufficient. This approach fails to distinguish between quantitative and qualitative representation, potentially overlooking the accurate extent of a group's backwardness in state services. Using a cadre as a unit of assessment would only reflect the proportion of representation of the backward classes within that cadre. The Court highlighted that Articles 16(4) and 16(4-A) of the Constitution specifically refer to adequate representation "in the services under the State." thus indicating the need for a broader assessment of representation beyond the specific cadres. 

A 7-judge bench of the Supreme Court(by 6-1) held that sub-classification of Scheduled Castes is permissible to grant separate quotas for more backwards within the SC categories.The verdict means that States can identify more backwards among the SC categories and can sub-classify them for separate quota within the quota.

The Court clarified that while allowing sub-classification, the State cannot earmark 100% reservation for a sub-class. Also, the State has to justify the sub-classification on the basis of empirical data regarding the inadequacy of representation of the sub-class.

Chief Justice of India DY Chandrachud stated that there are 6 judgments, all concurring. The majority has overruled the EV Chinniah judgment of 2004 which held that sub-classification is not permissible. Justice Bela Trivedi dissented.

Justice BR Gavai, in his concurring judgment, stated that it is the duty of the state to give preferential treatment to the more backward communities. Only a few people within the category of SC/ST are enjoying the reservations. The ground realities cannot be denied and there are categories within the SC/STs which have faced more oppression for centuries.

Justice Gavai opined that the State must evolve a policy to identify creamy layers among the SC/ ST category and take them out of the fold of affirmative action. This is the only way to gain true equality, he said.

Justice Vikram Nath also concurred with this view that the creamy layer principle as applicable to OBCs also applies to SCs. Similar view was expressed by Justice Pankaj Mithal, who said that reservation should be limited to one generation. If the 1st generation reached a higher status through the reservation, the 2nd generation should not be entitled to it, Justice Mithal said.Justice Satish Chandra Sharma also supported this view.

In her dissent, Justice Trivedi stated that the Presidential list of Scheduled Castes notified under Article 341 cannot be altered by the States. Castes can be included or excluded from the Presidential list only by a law enacted by the Parliament. Sub-classification will amount to tinkering of the Presidential list. 

The object of Article 341 was to eliminate any political factors playing a role in the SC-ST list. Justice Trivedi stated that the rule of plain and literal interpretation has to be kept in mind. Any preferential treatment for a sub-class within the Presidential list will lead to deprivation of the benefits of the other classes within the same category.In the absence of executive or legislative power, the States do not have any competence to sub-classify the castes and sub-classify the benefits which are reserved for all of the SCs. Allowing States to do so will amount to allowing a colourable exercise of power.

The matter was referred to a 7-judge bench by a 5-judge bench in 2020 in the case State of Punjab v. Davinder Singh. The 5-judge bench observed that the judgment of the coordinate bench in E.V.Chinnaiah v. State of Andhra Pradesh, (2005) 1 SCC 394, which held that sub-classification was not permissible, was required to be reconsidered. The referring bench reasoned that 'EV Chinniah' did not correctly apply the decision of Indira Sawhney v. UOI

The reference took place in a case concerning the validity of Section 4(5) of the Punjab Scheduled Caste and Backward Classes (Reservation in Services) Act, 2006. 

The provision stipulated that fifty per cent of the vacancies of the quota reserved for Scheduled Castes in direct recruitment shall be offered to Balmikis and Mazhabi Sikhs, subject to their availability, by providing first preference from amongst the Scheduled Castes candidates. 

In 2010, a division bench of the Punjab and Haryana High Court struck down the provision, relying on EV Chinnaiah judgment. 

In EV Chinnaiah, the bench held that all the castes in the Presidential Order under Article 341(1) of the Constitution formed one class of homogeneous group and the same could not be further subdivided. Under Article 341(1), the President of India can officially designate certain groups as Scheduled Castes in any State or Union territory. The said designation of SCs for states has to be done in consultation with the Governor and then be publicly notified. The designation can be done amongst the categories of castes, races, tribes, or their sub-groups. 

The Supreme court in its judgment of M.Nagraj v. Union of India held that there is no relevance of any question on creamy layer for SC/ST because of inadequate representation in public employment. The court further held that there is no comparison of social status between other Backward Classes and SC/ST’s because there is no comparison between the two. It is important to understand that a journey of Supreme Court jurisprudence from Indra Sawhney case to Jarnail Singh case interprets the core aspect of adequate representation of SC/ST in public employment but there is nothing on the apparent face of record which suggests that any data has ever been given apparently by the government to Supreme Court. Hence any debate or comparison of creamy layer of Other Backward Classes with SC/ST can never be a potential ground for introducing creamy layer for SC’s/ST’s without adequate representation.The stigma of being Scheduled Caste and Scheduled Tribe is far more traumatic than any other inequality in the society.

On the contrary, caste is a very important ‘sole criteria’ in terms of Scheduled Caste and Scheduled Tribe because they are known by the order of caste. It is pertinent to note that Scheduled Caste from thousands of years have been deprived of their life and liberty. A person who does not have adequate means of livelihood can never be able to get good education and forget about social recognition, when you are already untouchable amongst the section of society. 

The stigma, trauma and pain of being a Scheduled Caste or Scheduled Tribe is known by the community itself and can never be understood and experienced by others. Hence it is important to understand that creamy layer criterion for Scheduled Caste and Scheduled Tribe requires a very serious kind of data to prove the adequacy of representation. It is furthermore important to understand that reservation policy is based on equal protection clause which mean unequal may never be considered as equal and equal may never be considered as unequal because there is no comparison between two unequals. 

Scheduled Caste and Scheduled Tribe,The most vulnerable sections of the society, may get job but their social recognition is based on their societal acceptance and therefore caste shall always be important factor for their social acceptance. Therefore, an introspection from policy perspective and judicial scrutiny is inevitable. Although, creamy layer was not the substantial question of law in this recent judgement but when Supreme Court expressly discussed creamy layer, this opened a pandora box for future litigation because unless government shows quantifiable data regarding representation of SC/ST’s, creamy layer is not a feasible policy. The Dissenting order of the judgement may be a futuristic way in this direction.