A seven-judge bench of the Supreme Court on Thursday allowed sub-classification within the Scheduled Castes and Scheduled Tribes, creating sub-quotas to ensure that more disadvantaged sections within those groups get greater access to seats in educational institutes and government jobs.

Of the six judges who were in favour of this verdict, four went on to suggest that the principle of the “creamy layer” be extended to reservations for Scheduled Castes and Scheduled Tribes – even though that question did not come up before the court.

Activists from the Scheduled Castes and Scheduled Tribes communities reacted sharply to the suggestion. They told Scroll that it was unnecessary for the court to have waded into the matter.

The “creamy layer” principle is currently applied in the case of reservations for Other Backward Classes and excludes from affirmative action programmes individuals whose families have accumulated social and economic privileges over the years. In their verdict on Thursday, judges said that a member of the Scheduled Caste or Scheduled Tribes community should not get the benefits of reservation if she belonged to the “creamy layer”.

Since the court did not hear arguments related to creamy layer within Scheduled Caste and Scheduled Tribe communities, the judges’ observations are not legally enforceable.

Prabhakar Nisargandh, an associate professor of sociology at Vijaysinha Yadav College in Maharashtra’s Kolhapur, critised the judges for making this suggestion. “This shows that the court’s intention was not to ensure equity within Dalit representation, but to dilute Dalit representation altogether,” he said.

Others questioned the lack of evidence behind the court’s observations.

“Is there any data to show that creamy layer even exists among Dalits and Adivasis?” asked Ashok Bharti, the chairman of the National Confederation of Dalit and Adivasi Organisations.

What have the judges said?

In his judgement, Justice BR Gavai observed that the matter of creamy layer within Scheduled Castes and Scheduled Tribes needed to be considered since the court was dealing with the question of “equality among a group of unequals”.

“Can a child of IAS/IPS [Indian Administrative and Police Services] 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?” asked Gavai, the only judge on the bench who belongs to a Scheduled Caste community.

The facilities available to a child belonging to the first category would be “far superior and conducive for educational upliftment”, Gavai said. Therefore, Gavai reasoned, that children of persons belonging to the Scheduled Castes and Scheduled Tribes categories who have benefited from reservations cannot be put on the same pedestal as children of those who have not.

“The state must evolve a policy to identify creamy layer among the SC-ST category and take them out of the fold of affirmative action,” Gavai concluded. “This is the only way to gain true equality.”

However, Gavai said that the criteria for determining the creamy layer within the Scheduled Castes and Scheduled Tribes should be different from that for the Other Backward Classes.

Justices Vikram Nath, Pankaj Mithal and Satish Chandra Sharma concurred with Gavai’s judgement.

Mithal went a step further to say that benefits of reservation should be “limited only for the first generation or one generation” within a category. “If any generation in the family has taken advantage of the reservation and has achieved higher status, the benefit of reservation would not be logically available to the second generation,” Mithal said.

Objections against the judgement

Activists and leaders from Dalit and Adivasi communities told Scroll that the court’s suggestions went against the principle that reservations are meant to ensure proportional representation for historically disadvantaged groups and not to alleviate poverty.

Pranab Doley, a youth leader and activist from the Mising community in Assam, said this made the very concept of the creamy layer antithetical to the idea of reservations. He noted that there were thousands of vacancies in job posts reserved for Scheduled Tribes and thus, any eligible person from a tribe or caste group should be given the opportunity to fill them.

In Bihar, Mahendra Suman, an academician and social worker from the Musahar community, made a similar argument.

Musahars are among the most backward caste groups in Bihar, and were among the 18 Scheduled Castes in Bihar recognised as Mahadalits in 2007. The category was introduced by Chief Minister Nitish Kumar to identify the most backward among the Scheduled Castes.

Suman said that the question of the creamy layer was valid only if proper representation of castes was ensured to begin with. “There is a creamy layer criteria for Other Backward Classes already, but we see that the 27% representation they should get is not fulfilled in government institutions,” he said. “How can someone be excluded on the basis of the creamy layer when the first criteria of ensuring proportional representation is not even met?”

Bharti, the chairman of the National Confederation of Dalit and Adivasi Organisations, said it was irresponsible of the Supreme Court to say that the creamy layer principle should be implemented among Scheduled Caste and Scheduled Tribes without prescribing the criteria for this.

Satish Prakash, a Meerut-based activist of the All India Backward and Minority Communities Employees Federation, or Bamcef, objected to Justice Mithal’s argument that only one generation of Scheduled Castes and Scheduled Tribes should get the benefits of reservations.

“The judiciary and government institutions are full of children of Brahmin, Baniya and Thakur judges and officials,” he said. “If creamy layer has to be applied, first ensure that successive generations of these castes do not get government jobs.”

Ambanna Arolikar, a Madiga community activist from Karnataka and a prominent advocate for sub-classification, also told Scroll that there was no evidence that a creamy layer existed among Scheduled Caste communities. “At least in South India, no [Scheduled] Castes will be eligible to be called creamy layer,” he told Scroll.

The Madigas are considered to be a backward community even among Dalits.

However, of the Adivasi activists Scroll spoke to, at least two expressed their support for implementation of the creamy layer principle. “The families who earlier benefitted from reservations have continued to benefit, whereas the number of deprived people who are unemployed is growing,” said Arvind Netam, former Union minister and president of the Sarva Adivasi Samaj in Chhattisgarh.

Poet and activist Sushma Asur from Jharkhand also said the implementation of the creamy layer principle would be beneficial. She belongs to the Asur community in Jharkhand, classified as a particularly vulnerable tribal group.

“Several years ago, the Bihar government had given jobs to some Asur people,” she told Scroll. “Their children continue to have jobs. But today there are many Asur children sitting unemployed at home after completing their matriculation or graduation.”