Creamy Layer Clash: Senior Bureaucrat Explains Why Supreme Court Can't Force Quotas on SC/ST

New Delhi- Chief Justice of India BR Gavai's recent remarks endorsing the exclusion of the "creamy layer" from Scheduled Caste (SC) reservations have reignited a contentious discussion on affirmative action policies in India.

Speaking at the "India and the Living Indian Constitution at 75 Years" programme organised by AP High Court Advocates' Association (APHCAA) at CK Convention in Amaravati,  CJI Gavai reiterated his longstanding support for applying the creamy layer principle, originally introduced for Other Backward Classes (OBCs) to SC and Scheduled Tribe (ST) quotas.

He emphasized that reservations should prioritize the most disadvantaged within these communities, stating that the children of an Indian Administrative Service (IAS) officer cannot be equated with those of a poor agricultural laborer. Gavai recalled his observations from a 2024 Supreme Court judgment, where he had urged states to develop mechanisms for identifying and excluding economically advanced individuals from SC/ST benefits to ensure equitable distribution.

His speech has drawn both applause from proponents of reform and sharp criticism from those who view it as judicial overreach into legislative territory, especially given the court's historical stance that creamy layer principles do not apply to SC/ST reservations.

Senior civil servant Nethrapal, (IRS) an IIT-Madras alumnus and IIM-Bangalore graduate, penned a detailed public response on X (formerly Twitter) on Monday, humbly addressing the CJI and outlining why the Supreme Court lacks the authority to legislate on creamy layer implementation for SC/ST communities.

Nethrapal, with 16 years of experience in the Indian Revenue Service (IRS), is a seasoned tax enforcement leader, passionate about ensuring compliance and fairness in the tax system. Known for his writings on social justice and reservations, Nethrapal argued that the Davinder Singh case was narrowly referred to the court solely to determine the permissibility of sub-categorization, a legal barrier first erected by the 2004 EV Chinnaiah judgment and that creamy layer exclusion was never part of the terms of reference.

He described any judicial remarks on the issue as mere obiter dicta, lacking binding force, and pointed out that the lead opinion in the same Davinder Singh verdict, authored by then-CJI DY Chandrachud, explicitly affirmed that the creamy layer concept does not extend to SC/ST groups.

Nethrapal further highlighted the 1992 Indra Sawhney judgmenta - 13-judge bench decision that established the creamy layer for OBCs but deliberately excluded SC/STs due to their unique historical and social backwardness. He noted that post-Davinder Singh, the Union Cabinet, after consulting the Attorney General, reaffirmed this position, and multiple subsequent Supreme Court rulings have consistently upheld that creamy layer exclusion applies only to promotions in limited contexts, not routine reservations.

On the factual front, he invoked the 2023 Bihar Caste Census, which revealed stark income disparities, with over 42% of SC families earning less than Rs 6,000 monthly and only a minuscule fraction, less than 0.5% of the SC population, crossing Rs 66,000 per month, questioning the very existence of a substantial creamy layer to justify such a policy.

"Recent reports like State of working India 2023 published by Azim Premji Institute, clearly found that the monopolization of stable jobs by the so-called creamy layer is a myth. The report found that while many individuals from SC/ST communities obtain government jobs, their children often do not secure stable employment. In government jobs, the probability that a son/daughter of a stable government employee does not join a government job is fairly very very high", he added.

He also cited a Department of Personnel and Training (DoPT) analysis on OBC reservations, which recommended relaxing creamy layer criteria to address unfilled vacancies, a problem already acute for SC/ST quotas, where implementation could further erode representation in civil services and the judiciary.

In a nuanced take, Nethrapal stressed that the Supreme Court has itself ruled the creamy layer as a social rather than purely economic criterion, underscoring that Dalit individuals achieving financial stability often fail to attain corresponding social mobility in India's caste-ridden society.

He concluded by asserting that any shift toward creamy layer exclusion for SC/STs falls squarely in the legislature's domain, requiring parliamentary action backed by robust data, such as a comprehensive national caste census, especially since current vacancies in reserved posts render claims of elite capture moot.