CJI Gavai Defends 'Creamy Layer' in SC/ST Reservations, Citing Article 14

On 22 August 2025, at a Goa High Court Bar Association event, Chief Justice of India (CJI) B.R. Gavai publicly defended his August 2024 judgment that opened the door to applying the “creamy layer” principle within Scheduled Caste (SC) and Scheduled Tribe (ST) reservations.

Revisiting the controversial decision, CJI Gavai explained that the ruling was rooted in Article 14 of the Constitution, which requires “unequals to be treated unequally.” He argued that the constitutional guarantee of equality would be undermined if a “wealthy Scheduled Caste individual” continued to receive the same affirmative action benefits as a “poor Scheduled Caste individual.”

CJI Gavai noted that while the majority judgment upheld sub-classification among SC/STs, four of the seven judges—including himself—went further in concurring opinions, urging governments to evolve criteria for excluding an SC/ST “creamy layer.” His remarks signal that the Court views reservation not as a static guarantee, but as an evolving tool of social justice—one that must adapt to new socio-economic realities.

From Indra Sawhney to SC/ST Reservations: Extending the Creamy Layer

The “creamy layer” doctrine originates from the landmark Indra Sawhney v. Union of India (1992) case, where a nine-judge bench upheld OBC reservations but excluded the more affluent OBC sections from the benefit. The Court reasoned that socially advanced individuals within backward classes no longer required state support.

For decades, this principle was confined to Other Backward Classes (OBCs), with SCs and STs treated differently because their disadvantage was seen as caste-based discrimination and untouchability, not merely economic or educational backwardness.

By extending this doctrine to SC/ST communities in 2024, the Supreme Court shifted the jurisprudential axis:

• It blurred the historical distinction between caste-based stigma and class-based disadvantage.

• It introduced the idea that intra-group inequality within SC/STs requires constitutional attention.

• It opened the way for reservation benefits to be more finely targeted at the most marginalized.

CJI Gavai’s Defence: Equality as Dynamic, Not Absolute

At Goa, CJI Gavai framed the issue through Article 14’s equality clause:

“If a rich person from a Scheduled Caste is given reservation and a poor Scheduled Caste person is denied opportunity, that will amount to discrimination.”

This reasoning underscores two jurisprudential points:

1. Affirmative action is not a permanent entitlement—it must be justified against the evolving realities of disadvantage.

2. Equality before law requires that reservation itself be subject to scrutiny, ensuring it does not ossify into privilege for an elite within marginalized groups.

Judicial Consensus and Legislative Vacuum

The 2024 judgment was not unanimous. While a majority endorsed the principle of creamy layer for SCs, dissenting judges warned that such an approach risks diluting the remedial purpose of Article 17 (abolition of untouchability) and Articles 15(4) and 16(4) (special provisions for backward classes).

However, as CJI Gavai pointed out, four of seven judges went further, urging Parliament and State legislatures to codify exclusionary criteria for SC/ST creamy layers.

This creates a doctrinal vacuum:

• The Court has articulated the principle, but no legislative framework currently operationalises it.

• States remain uncertain on income thresholds, occupation markers, or educational attainment that would define the creamy layer for SCs.

• Without statutory clarity, administrative action may invite litigation on grounds of arbitrariness.

Implications for Reservation Jurisprudence

The introduction of the creamy layer principle into SC/ST reservations carries far-reaching constitutional consequences:

1. Recalibrating Reservation Policy

   • Expect fresh legislative or executive guidelines specifying income cut-offs and exclusion criteria for SC/ST creamy layer.

   • This could mirror the ₹8 lakh annual income cap currently used for OBC creamy layer, though applying it to SCs raises unique issues of social stigma beyond economics.

2. Potential Litigation and Constitutional Challenges

   • Future challenges may argue that excluding affluent SC/ST individuals contradicts the spirit of Article 17, which treats caste stigma as distinct from economic status.

   • The judiciary will likely be asked to revisit whether economic advancement erases caste-based exclusion.

3. Shift in Social Justice Jurisprudence

   • Earlier judgments treated SCs as a homogeneous group subject to structural discrimination.

   • The creamy layer doctrine forces recognition that hierarchies exist within disadvantaged groups themselves.

4. Impact on Reservation in Promotions

   • If the creamy layer exclusion is extended to promotions (Article 16(4A)), it could substantially reduce the pool of eligible SC/ST candidates in government service.

Comparative Constitutional Perspectives

Globally, affirmative action debates echo similar concerns:

• United States: The U.S. Supreme Court in Students for Fair Admissions v. Harvard (2023) curtailed race-based admissions, holding that affirmative action must be narrowly tailored and subject to strict scrutiny.

• South Africa: The Constitutional Court has upheld broad-based Black Economic Empowerment (B-BBEE) policies but insists on measurable outcomes and periodic review.

• Brazil: Quota systems for Afro-Brazilians are periodically reassessed for effectiveness in addressing inequality.

India’s creamy layer doctrine aligns with this global trend of refining affirmative action to prevent elite capture while preserving constitutional commitments to substantive equality.

What You Should Watch

• Legislative Action: Will Parliament or State Assemblies codify creamy layer criteria for SC/STs, or leave it to administrative discretion?

• Judicial Review: Future benches may be asked to reconcile this approach with earlier rulings like E.V. Chinnaiah v. State of Andhra Pradesh (2004), which had struck down caste sub-classification within SCs.

• Policy Fallout: Exclusion of the creamy layer could reshape access to education, employment, and promotions within government institutions, triggering challenges under Articles 15 and 16.

A Turning Point in Reservation Law

CJI Gavai’s public defence underscores that the 2024 judgment was not a one-off experiment, but part of a deliberate judicial effort to refine India’s affirmative action framework. By situating the creamy layer within the equality mandate of Article 14, the Supreme Court has invited both legislative engagement and constitutional scrutiny.