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 "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.)