The idea of a ‘creamy layer’ seems to assume the notion of easy separability. It acknowledges the existence of an elite among the backward classes in India, expects to identify them in social and economic terms, and then to decide whether they might avail themselves of the benefits of reservation in Central government jobs, higher education and, in some cases, in the private sector. Originally, the Supreme Court, in an important 1992 judgment, had applied the concept to the other backward classes, eight out of the nine judges in the case arguing for this layer’s exclusion from reservations made for the OBCs. The apex court has — in a recent and crucial ruling — extended the idea of a ‘creamy layer’ to the scheduled castes and scheduled tribes as well. This was in the context of upholding the constitutional validity of reservation in promotion for the SC/STs, now qualified, however, by the ‘creamy layer’ stipulation made simultaneously. The court has also reiterated an earlier ruling that the total volume of reservations should not exceed 50 per cent. Both the checks are to ensure that the “overall efficiency of the state administration” is not compromised. More significantly, they seek “to maintain the structure of equality within the Backward Classes, i.e. between the OBCs on the one hand and the SCs and STs on the other”.

More than being a form of demographic or legal classification, the ‘creamy layer’ is now a loaded category in the Indian electoral realpolitik. It is a powerful vote-bank, and with assembly elections imminent in four states, the government and the various political parties with their stakes in it, are naturally disconcerted by this new politics of exclusion within the larger politics of backwardness. The complicated and multiple inequalities created by such discriminations are, therefore, already beginning to make themselves felt. As with presidential clemency and the demolitions in Delhi, the polity’s discomfiture arises from deeper rifts among the judiciary, the legislature and the executive. It remains to be seen how the government deals with the court ruling, whether it would appeal or amend to overrule. But “upholding” the Constitution — interpreting as well as implementing the principles of equality and justice enshrined in it — demands a balance of relations and powers among the judiciary and other branches of government. This needs to be reflected on in the light of the recent order.