On November 16 at Mangalagiri in Andhra Pradesh, Chief Justice B R Gavai backed the “creamy layer” exclusion for Scheduled Castes (SCs) in reservation. His comment has sparked a discussion. The concept of the creamy layer is a judicial invention — it is found neither in Western literature nor the Constitution of India.
The first reference to the creamy layer is seen in the Sattanathan Commission report, which was appointed by then Chief Minister of Tamil Nadu, M Karunanidhi, in 1969. One of the most important recommendations of the Commission was the creamy layer exclusion, excluding better-off families from availing the benefits of the Backward Classes (BCs) reservations. The idea was floated, but not implemented.
The judicial predicament around the creamy layer concept emerged in State of Kerala v. KS Jayasree in 1976, when the BC reservation policy of the state government, with the income criterion, was challenged in court. Similarly, in K C Vasanth Kumar & Another v. State of Karnataka (1986), while referring to BCs, the Supreme Court held that it is essential to prevent the privileged among an underprivileged community from monopolising benefits for an indefinite period. The Court also stated that the state government should introduce the “means test” to extend reservations to BCs.
The aforementioned examples are part of a thread which argues that while the reservation policy is meant to address inequality and backwardness in society, it is the most marginalised among these sections who are supposed to be the beneficiaries. Further, to identify the “deserving”, there should be an economic criterion to exclude the creamy layer. The idea of excluding advanced BCs from reservation came into existence in the context of challenging the reservation policy, which was introduced by the state governments during the 1960s, ’70s and ’80s, specifically in southern states.
A similar argument was extended in the Supreme Court in a nine-judge bench in the Indra Sawhney case, which challenged the 27 per cent reservation for BCs in central government jobs announced by the VP Singh government in 1989. The Supreme Court, in its verdict, directed the government of India to introduce the means test in the implementation of the OBC quota.
Following the Supreme Court judgment, the Centre constituted the Justice R N Prasad Commission to examine the creamy layer issue. It recommended two criteria to exclude the creamy layer among OBCs from reservation. These include those people who occupied constitutional positions like President, Vice-President, Supreme Court and high court judges, Group A service category, Colonel and above rank in the armed forces, professionals in service, trade, business and industry, and property owners. The second criterion is the income/wealth test that takes into account the annual income of the individual: Above Rs 8 lakh as of now, makes a family for the creamy layer.
Justice BR Gavai reiterated his stand, which was expressed at the time of judgment on sub-classification of SC reservations in 2024, that the creamy layer should be applied even to SCs. However, the experience from OBC reservation reveals that the creamy layer has been the constraint in filling the 27 per cent quota: Barely 17 per cent has been filled for over three decades, as per data from the Ministry of Social Justice. A deprivation points policy to fill the entire quota rather than a creamy layer exclusion might be a better solution.
The writer is professor, Department of Political Science, University of Hyderabad
