Tata Institute of Social Sciences, Mumbai
In a run up to the last week of Ex Chief Justice of India (CJI) Dipak Misra’s tenure which ended on October 2, 2018, a Constitution bench of the Supreme Court of India headed by him introduced a direction to include “creamy layer” in the Scheduled Caste (SC)/Scheduled Tribe (ST) reservations. The “creamy layer” was formulated on the basis that economic criterion holds a significant place for certain groups and classes which falls outside the Dalits and Adivasis groups. It is on this understanding that “creamy layer” was being put forth to determine the backwardness of identified groups.[i] The concept of “Creamy layer” has since been applicable in reservation for Other Backward Classes (OBCs). The direction to include “creamy layer” for SC/ST reservations from the bench headed by ex CJI Dipak Misra, is a blot in the path for SC/ST to claim what is rightful to them. This strips away the identity of SC and ST without addressing and making an exceptional remedial process to historical injustices and discrimination meted out to SC and ST communities, and it is not to say that it has stopped, it still continues. The bench went on to add that people belonging to “creamy layer” are out of untouchability and they are at par with anyone including the upper castes/(superior race). This can be inferred from the words of the bench headed by Misra: “The caste or group or sub-group named in the said List [for reservations] continues exactly as before. It is only those persons within that group or sub-group, who have come out of untouchability or backwardness by virtue of belonging to the creamy layer, who are excluded from the benefit of reservation.”[ii]This contradicts the 2008 Ashok Thakur judgement wherein it held that “creamy layer” should not be applied for SCs and STs. The economic well being criterion is a disruptive intervention to infuse that everything has to be seen from class angle.
Discrimination towards SCs and STs does not stop at well being of people from SCs and STs based on economic status. Economic status is only a means to material well being. The social, cultural, and religious based discrimination is and will continue to take on SCs and STs community irrespective of economic wellbeing.This clearly tells that the bench believes in skirting its responsibilities by treading the equality argument where everyone is being seen as equal beings. Reality is that we are far from reaching this utopia, in the name of equality one should not evade in addressing and fixing the historical injustices and the perpetual discrimination- casteism and racism. The CJI led bench argued that “the whole object of reservation is to see that backward classes of citizens move forward so that they may march hand in hand with other citizens of India on an equal basis.”[iii]By resorting to equality via creamy layer, a new order does not arise where casteism and racism end on its own. A deeper understanding on how discrimination towards SCs and STs operates is required. Unequal power relation rooted in history is central in discrimination towards SCs and STs. The direction to include “creamy layer” in reservations for SC/ST is nothing less than unwillingness to address the deep rooted casteism and racism. The creamy layer direction will only strengthen the existing casteism and racism. It also indicates that the experiences of casteism and racism by elite SCs and STs will be counted as class-based discrimination.
Further to the creamy layer approach, the emphasis on economic status is to link and embrace historically oppressed groups under the fold of class based society where the economic well being will be seen as a step towards emancipation and empowerment. The bench is tacitly endorsing Marxist framework where every societal problem has to be seen and solved from the class angle. The case of identity politics being stripped off by “creamy layer” discourse is a reminder of long held incompatible intersection between the identity politics proponents and the left, and with the right wing (dominant identity) group and liberal lots. This will pave way to class based society or either an embracing and coming under the fold of dominant racial group (the usage of racial here is based on the author’s social location as Naga tribe).
To self-reflect on my background as Rongmei Naga tribe, it is pertinent to locate identity in history, ethnic contestation and interface with mainstream societies, culture, religion and geographical barrier. The historical wrong doings on us by outsiders starting from the colonial period and our unpreparedness on beingintegrated or assimilated into mainstream societies define our present beings. It is in affirmative policy like SC/ST reservation that it offers one of the many corrective steps to providing justice and reconciliation processes in our ancestral names. Advancement in economic status is taking us forward only in material well being where class consciousness is at its core. The social, cultural and religious aspects have to go hand in hand, in this affirmative action to provide a sense of justice and in realising it. The fact that many tribal students in prestigiousuniversities/institutes and tribal peoplein corporates, continue to face racism and exclusion are a testimony to the discourse that identity is important. “Creamy layer” discourse must incorporate this reality and continue to strive towards providing justice for the historically marginalised groups. Inferring those who comes under creamy layer as coming out of untouchability (discriminations being meted, in the case of tribal communities) is a misplaced understanding. The emerging elite or class society within tribes is a recent phenomenon, if those tribal elites are an indicator of the advancement of tribal societies then the under representation of tribals in the top rank posts in India like in Supreme Court, media houses, civil services, corporates etc tell something else. It is all in these facets that “creamy layer” as a yardstick to define tribals reality is disingenuous and can push them backfurther into the margins.
What does the recent rulings on Section 377, Aadhaar, adultery, and so on mean to SCs and STs community without hearing their voices on reservation for SC/ST issue? People may resort to calling them as being sexist, homophobic and regressive for being ambivalent on these rulings, the path to “just society” is not only in including historically oppressed groups but also to acknowledge that class based approach will exclude them further. The social, religious and cultural, and historical contexts are very significant for ST community, and also for SC community.These factors form the basis of their identity and to blur the boundary between identity and class consciousness by making economic advancement as absolute, is going to be seen as another historical wrongdoings in the future. It is now to be seen how the Centre takes up this direction from the Constitution bench, and concerns of SCs and STs.
[i] See“Indra Sawhney Etc. Etc vs Union Of India And Others”https://indiankanoon.org/doc/1363234/
[ii] See “With ‘creamy layer’ in SC/ST quotas, Supreme Court fundamentally changes how caste reservations work”https://scroll.in/article/895981/with-creamy-layer-in-sc-st-quotas-supreme-court-fundamentally-changes-how-caste-reservations-work
[iii] See “SC extends ‘creamy layer’ to SCs & STs, but drops backwardness test”