Kalpana Kannabiran  
 
The concept of creamy layer obfuscates the fact of caste discrimination within  
institutions of education, employment, and justice.  
 
THE RECENT Supreme Court judgment limiting reservation for Scheduled Castes and  
Scheduled Tribes forces us to review the notion of "creamy layer," which over  
the past decade or so appears to have become the cornerstone of jurisprudence  
on affirmative action in India. And by that token the concept has gained  
acceptance in dominant mainstream discourse as well — from job interviews to  
casual conversation.  
 
There are fundamental flaws in the concept itself. First, a concept can only  
become operative if there is an attempt at definition — and there is some  
deliberation and argumentation about definition. The concept of creamy layer  
was first declared as part of majoritarian common sense, validated by the fact  
of its conception, and extended, interpreted, and applied in different contexts  
in an apparently self explanatory manner. While there was an attempt to  
identify defining criteria for the creamy layer after "the concept" was  
declared, both the declaration and the identification of defining criteria was  
in relation to the OBCs, itself a contentious exercise. It has now been used in  
relation to the Scheduled Castes and the Scheduled Tribes, again without  
definition.  
 
What is the concept of the creamy layer in this context? What are the signposts  
of this concept, beyond the fact that a small section of Dalit and Adivasi  
people over the past two generations at best has managed to secure tertiary  
education and enter the professions and public employment? The crux of  
affirmative action rests on the fact of caste-based discrimination — that is,  
on grave social disabilities arising from caste status. The very formulation of  
the concept of creamy layer, an exercise in dominance, disaggregates  
discrimination and narrows its articulation down to economic status alone, thus  
distorting the realities of disadvantaged castes, Dalit and Adivasi realities.  
 
Secondly, and linked to the problem of the lack of definition, instead of  
enabling understanding of a situation, as concepts should, it obstructs  
understanding by equating knowledge to stereotype. A powerful dominant  
stereotype being that Dalits do not share benefits at the community level and  
therefore must be "ruled" in this matter by the non-inclusive public domain of  
which institutions of justice are a part. What this discursive perpetuation of  
the stereotype does is that it also masks the unwillingness of dominant castes  
to share resources equally with Dalits and Adivasis. In fact, this stereotype  
serves to divert attention away from the exclusionary practices of dominant  
castes.  
 
In the interests of equality, the concept of creamy layer must be tested for  
its general applicability. From the Dalit and Adivasi standpoint, let us deploy  
the concept of creamy layer without fear or favour. What do we find? The entire  
public domain — in education, industry, employment — has been captured by  
the creamy layers of Indian society — the cream of the cream, men of these  
classes — that seek to consolidate their intergenerational concentration of  
privilege by whittling down claims to affirmative action to a bare minimum and  
absolving themselves of any responsibility for the continuing oppressions that  
Dalit communities face in contemporary India. In fact, there is a denial that  
such oppressions even exist. What we have then is the monopolising of resources  
by the dominant creamy layers and the exclusion of families with one generation  
of tertiary education and secure employment from access to reservation. This  
then perpetuates inequality in the so-called open category as well — which  
from the Dalit standpoint is a 50 per cent or more reservation for the dominant  
castes, which few are willing to acknowledge.  
 
Thirdly, it furthers an anti-historical view of discrimination, by rejecting  
the relevance of past experience of violent exclusion as the basis of  
affirmative action, thus turning the historical logic of constitutionalism on  
its head. This heightened visibility of the concept of creamy layer with  
reference to affirmative action goes hand-in-hand with the failure by  
governments and courts to provide justice to victims of gruesome violence by  
the creamy layers of our society — Karamchedu, Chunduru, Melavalavu, Jhajjar,  
the list is long. How does one explain the unequal application of the concept?  
Or is the equality of the concept located in the fact of the denial of justice  
claims?  
 
The systematic denial of justice with respect to atrocities is inextricably  
linked to the whittling down of entitlements through the arbitrary application  
of undefined concepts. It is necessary not to lose sight of the totality of the  
Dalit and Adivasi experience — across generations. And an experience that  
continues well into the present, whether one looks at the performance of the  
most degrading forms of labour, the use of violence with impunity, and their  
daily struggles against discrimination once they enter public employment or  
tertiary education.  
 
The concept of creamy layer obfuscates the fact of caste discrimination within  
institutions of education, employment, and justice. It is assumed that once a  
person enters public employment, promotions will be a matter of merit. Yet, we  
have been witness to the systematic obstruction of promotional opportunities  
and normal career advancement routes to Dalits even at the highest levels —  
even constitutional posts are known to have needed ministerial or presidential  
intervention before they opened out to Dalit people, not to speak of the  
ordinary employee in a government office. Reports about the ways in which  
Dalits and Adivasis in these public domains are obstructed from performing  
their routine responsibilities abound.  
 
Fourthly, it is a concept that is applied on the other, not on the self.  
Essentially, what the creamy layer jurisprudence reveals is that the architects  
of the concept and its proponents — both in the judiciary and in civil  
society — are principally from non-Scheduled Caste and Scheduled Tribe  
backgrounds, and are, therefore, outside the sphere of application of the  
concept. They apply the concept to describe the worlds of those unlike them,  
lives that reflect the consequences and costs of their own privilege. We are  
back then to the caste system of the pre-Constitution era where the  
interpretation of the law is not a matter of deliberation or argumentation (to  
echo Amartya Sen), but is a matter of diktat — meanings are assigned and  
declared to be true.  
 
There are, of course, a few exceptions — even in the current debate — where  
votaries are not from dominant sections but from the very marginalised groups  
that are being &quo
t;ruled." Herein lies the irony — the very presence of a  
miniscule number of Dalits and Adivasis in the propagation of the concept of  
creamy layer results in the exclusion of themselves, a consequence that  
dominant votaries do not bear. This last group then applies the concept on the  
self and by that token excludes the self as an unworthy claimant of affirmative  
action. They, by their very presence in the propagating spaces, are the creamy  
layer that must be excluded. The effort is to deny an opportunity for a  
critical mass to develop among Dalit communities, the most effective way of  
ensuring this is by articulating a concept as vacuous yet insidious as the  
creamy layer.  
 
Within Dalit and Adivasi communities, groups in the spirit of our argumentative  
traditions have engaged in animated deliberation on the distribution of  
benefits. Notwithstanding the inconclusiveness of the debates, the fact is that  
there is debate and contestation — the struggles of the Madiga Reservation  
Porata Samiti is an excellent example. And yet when the resolution of these  
claims has been before the government, there has been no attempt to resolve the  
issue, the major consideration being the political stakes of dominant parties  
involved. What sets these processes of deliberation apart from the blanket  
declaration of the concept of creamy layer is that Dalit groups in each State  
or region engage in political dialogue on this issue with a painstaking  
documentation of why, how, and to whom benefits must be distributed in each  
sector in their contexts. More importantly, it is a debate between groups  
positioned similarly on the social scale, and subject to similar practices of  
exclusion by the dominant society. There is within Dalit and Adivasi  
communities a diversity of responses to affirmative action, and the need to  
distribute privileges both at the individual and collective level, which must  
enter the account. It is important to recognise the difference between this  
contestation within Dalit communities and the resolutions thereof and the  
proclamation of inequality from without. It is a question of legitimate voice  
and responsibility.  
 
This brings us to the final point, which is that we cannot afford to forget the  
consistency of Dalit and Adivasi engagement in resistance and deliberative  
politics and their critique, across several generations of the systems that  
oppressed them at enormous cost personally and collectively. It is also  
extremely important not to lose sight of the spirit of Dr. Ambedkar's legacy  
especially with respect to the Constitution. Thinking about affirmative action  
is about memory and forgetting. Amnesia in this instance is a privilege that  
emanates from dominance.  
 
(The writer is Professor of Sociology, NALSAR University of Law, Shameerpet,  
Andhra Pradesh.)