A Comparative Analysis of Reservation and Affirmative Action Laws: Reassessing the Creamy Layer Doctrine in India through the Experiences of the United States and the United Kingdom

Literature Review

Research Gap

Although affirmative action has been studied extensively, several gaps remain in the existing scholarship.

•  Much of the literature treats affirmative action in India, the United States and the United Kingdom separately, without an integrated comparative constitutional perspective.

•  The creamy layer concept is rarely used as a comparative lens for examining intra-group inequality and elite capture in affirmative action.

•  There has been little study of whether multidimensional variables, such as socio-economic class, level of education, geographic location and social capital, would identify beneficiaries more accurately than existing identity-based criteria.

The present research therefore seeks to address these gaps by comparing the constitutional principles, mechanisms, judicial review and evolution of affirmative action across the three jurisdictions.

Problem Statement

Affirmative action is now a well-established constitutional means of tackling discrimination and of advancing substantive equality. India’s system of reservation, the affirmative action jurisprudence of the United States and the equality framework of the United Kingdom have each been studied, but largely in isolation. Comparative analysis engaging all three systems together remains scarce. The Indian creamy layer principle in particular has not been examined comparatively as a device for preventing elite capture of affirmative action benefits. The decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (2023) has reshaped international debate on affirmative action and invites renewed comparative study.

This paper seeks to address that gap by comparing the constitutional foundations, operational structures, judicial approaches and contemporary challenges of affirmative action in India, the United States and the United Kingdom, and by considering the applicability of the creamy layer doctrine to affirmative action more generally.

Research Questions

•  What is the constitutional understanding of affirmative action and substantive equality in India, the United States and the United Kingdom?

•  What distinguishes the creamy layer doctrine in India from the affirmative action models of the United States and the United Kingdom?

•  How far can the creamy layer doctrine prevent elite capture and secure a more equal distribution of the benefits of reservation?

•  What role have the constitutional courts played in developing affirmative action jurisprudence in the three jurisdictions?

•  Can India’s creamy layer doctrine serve as a model for other affirmative action systems?

•  Should the criteria for identifying beneficiaries become multidimensional in the future?

Research Methodology

This research adopts a qualitative comparative and doctrinal methodology. The doctrinal element examines constitutional provisions, statutory legislation, judicial decisions, law commission reports, parliamentary papers and relevant academic literature concerning affirmative action and reservation. Particular attention is paid to the constitutional provisions on equality, to the leading judicial decisions and to the doctrine of the creamy layer.

The comparative element assesses the constitutional and institutional architecture of India, the United States and the United Kingdom through their underlying theoretical frameworks, operational mechanisms, standards of judicial scrutiny and contemporary challenges. A functional comparative method is used to draw out similarities and differences between the systems and to identify lessons that each may offer the others in terms of constitutional principle.

The study relies solely on secondary sources, including peer-reviewed academic articles, books, official government reports, constitutions, statutes and judicial decisions. Analytical and critical approaches are used throughout to assess the existing legal framework and to propose improvements.

Introduction

Equality remains a central constitutional objective in democracies across the world, but the means by which different jurisdictions pursue substantive equality vary considerably. Each system balances its own history, the values written into its constitution and its social and political conditions, and this has produced distinct frameworks for confronting systemic discrimination: reservation, affirmative action and positive equality duties. Each framework seeks to redress disadvantage and to secure representation. Each also generates debate about fairness, the distribution of benefits, and the limits of constitutional authority and of the role of the State.¹

The affirmative action frameworks of India, the United States and the United Kingdom differ considerably. The Constitution of India entrenched affirmative action through its equality provisions and its remedies for caste-based exclusion. Affirmative action in the United States, by contrast, developed within the constitutional and civil rights framework, principally under the Equal Protection Clause, and is tested against strict scrutiny, the most exacting standard of judicial review. The United Kingdom relies instead on the Equality Act 2010, which is centred on anti-discrimination and permits only limited positive action rather than group preference.

The ruling in Indra Sawhney v. Union of India (1992) illustrates the distinctive character of the Indian system. That decision established the creamy layer doctrine, under which socially and economically advanced members of the Other Backward Classes are excluded from the benefit of reservation. The Court reasoned that the benefit of reservation should not become concentrated in the more advanced sections of a backward class and should instead reach those who remain socially and educationally disadvantaged. Whether the same exclusion extends to the Scheduled Castes and the Scheduled Tribes has been contested; the Supreme Court applied the principle to reservation in promotion for those groups in Jarnail Singh v. Lachhmi Narain Gupta (2018). It remains a mode of differentiation that neither the United States nor the United Kingdom has adopted.²

The United States confines affirmative action based on race, while the United Kingdom promotes equality through proportionate positive action. Neither system employs a distinction equivalent to the Indian creamy layer. These differences reflect divergent conceptions of equality and of the obligations of the State.

Against that background, this research analyses the affirmative action systems of India, the United States and the United Kingdom. It assesses India’s creamy layer doctrine as a mode of differentiation within a comparative constitutional frame and examines how each system addresses equality in its legal and social context.

Conceptual Foundations of Affirmative Action: A Comparative Perspective

Affirmative action is a constitutional and policy instrument for redressing historical disadvantage and for advancing the substantive inclusion of marginalised communities. The United States and the United Kingdom share with India the objective of advancing equality, but they differ significantly in their constitutional underpinnings, legal rationale and institutional architecture. Their approaches rest on different understandings of disadvantage, of state responsibility and of the relationship between equality and preferential treatment.

A. India: Affirmative Action as Substantive Equality and Social Justice

The Indian system of affirmative action is built on the ideas of social reform and equality contained in the Constitution. Where other systems treat preferential treatment as an exception to equality, the Indian constitutional scheme treats affirmative action as an instrument for achieving genuine equality in a society long marked by caste-based exclusion. Articles 15(4) and 15(5) empower the State to make special provision for socially and educationally backward classes and for the Scheduled Castes and the Scheduled Tribes. Article 16(4) permits reservation in public appointments for backward classes that are not adequately represented in the services of the State. Article 46 further directs the State to promote the educational and economic interests of the weaker sections.³

India’s affirmative action policy has its roots in the theory of compensatory discrimination. The framers of the Constitution recognised that exclusion on the basis of caste was not merely a question of economic inequality but a system of social stratification affecting dignity, status and access to opportunity. Formal equality was therefore regarded as an insufficient means of dismantling a structure built over centuries. That view has been confirmed in judicial decisions.

The introduction of the creamy layer doctrine by the Supreme Court in Indra Sawhney v. Union of India (1992) was a significant milestone in Indian law. Under the doctrine, the socially and economically advanced sections of the Other Backward Classes are to be excluded from reservation so that the benefit reaches those who remain genuinely disadvantaged. The principle is thus directed at intra-group equity while preserving the wider commitment to social justice.⁴

Despite its constitutional strength, the Indian model continues to face difficulties concerning the identification of backward classes, the periodic revision of eligibility conditions and the scope for extending the creamy layer concept to the Scheduled Castes and the Scheduled Tribes. The central aim of the model remains the achievement of equality through the active involvement of the State.

B. United States: Affirmative Action as a Remedial and Compelling State Interest

The United States approach to affirmative action rests on the guarantee of equal protection contained in the Fourteenth Amendment. Unlike India, the United States does not constitutionally mandate affirmative action. It developed instead as a judicial and political instrument for addressing the legacy of slavery, segregation and discrimination against African Americans and other minorities.⁵

The constitutionality of affirmative action in the United States is assessed under strict scrutiny, the most rigorous standard of judicial review. Race-based measures must serve a compelling governmental interest and must be narrowly tailored to that end, so affirmative action has been permitted only within closely defined constitutional limits. In Regents of the University of California v. Bakke (1978), for example, the Supreme Court invalidated the racial quota before it while accepting that diversity in higher education could be a permissible objective. The Court followed similar reasoning in Grutter v. Bollinger (2003).

American jurisprudence has nevertheless moved steadily towards colour-blind constitutionalism. That development culminated in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (2023), in which the Supreme Court held that race-conscious admissions programmes violated the Equal Protection Clause, signalling deep judicial mistrust of such programmes. The present American position is therefore marked by an unresolved tension between the aim of correcting past discrimination and a constitutional insistence on racial neutrality.⁶

A frequently noted feature of the American model is the absence of any counterpart to the Indian creamy layer doctrine. Once an applicant is identified as belonging to a protected racial group, socio-economic advantage does not remove that applicant from the scope of an affirmative action programme. Some scholars have argued, on that basis, that such programmes may operate without regard to relative economic disadvantage within a protected group.

C. United Kingdom: Equality of Opportunity and Proportionate Positive Action

The United Kingdom takes a comparatively cautious approach, grounded in formal equality, non-discrimination and equality of opportunity. The legislative basis is the Equality Act 2010, which consolidates anti-discrimination protection across the protected characteristics, including race, sex, disability, religion or belief and age. Rather than introducing reservation or quotas, the Act permits positive action intended to support disadvantaged or under-represented groups. The distinction matters: the Act authorises positive action, not positive discrimination, and selection on the basis of a protected characteristic alone remains unlawful.⁷

Section 158 of the Equality Act contains the general positive action power, permitting proportionate measures to meet the needs of, or to overcome disadvantage suffered by, persons who share a protected characteristic. Section 159 makes narrower provision for recruitment and promotion: an employer or educational institution may treat a candidate from a disadvantaged or under-represented group more favourably where that candidate is as qualified as the comparator. This ‘tie-break’ provision allows a proportionate intervention without creating an automatic preference based on group membership alone. Section 149 further imposes the Public Sector Equality Duty (PSED).

Theoretically, the British model reflects a liberal conception of equality in which removing barriers matters more than redistributing outcomes. In contrast with India, the United Kingdom does not recognise constitutionally entrenched group entitlements and does not deploy extensive redistributive tools to counteract historical discrimination. There is likewise no mechanism resembling the creamy layer, because positive action in the United Kingdom is neither categorical nor numerical.

Although the model has secured broad political acceptance and has avoided some of the controversies surrounding merit and preference, it has also attracted criticism. Commentators have argued that procedural equality may be insufficient to dislodge deep-rooted structures of inequality in employment, housing, education and criminal justice, and that the absence of redistributive measures limits the practical effect of the equality framework. The British model nevertheless remains significant for its emphasis on proportionality, institutional accountability and the promotion of equality through regulation.⁸

The discussion above may be understood more readily through the following tables.

Table 1: Creamy Layer Equivalent in Global Context

Table 2: Affirmative Action Justification: Legal and Philosophical Models

Table 3: Challenges Across Jurisdictions: A Cross-Jurisdictional Snapshot

Table 4: Affirmative Action in Practice: Tools and Scope

Targeting the Disadvantaged: Creamy Layer versus Broad Class Protection in India, the United States and the United Kingdom

Affirmative action seeks to address past discrimination by opening opportunities to marginalised social groups. The persistent problem is to ensure that those opportunities reach the intended beneficiaries rather than the relatively advantaged members of the protected group. India has developed the creamy layer doctrine for that purpose; the United States and the United Kingdom have no equivalent device.

A. India’s Creamy Layer Doctrine: Intra-Group Equity in Focus

India’s affirmative action policy, founded on the constitutional commitments to equality and social justice, has developed to take account not only of disadvantage between groups but also of disparities within backward classes themselves. In Indra Sawhney v. Union of India (1992), the Supreme Court formulated the creamy layer doctrine, under which socially and economically advanced members of the Other Backward Classes (OBCs) are excluded from the benefit of reservation so that those who remain genuinely disadvantaged are not displaced.⁹

The doctrine currently operates through parameters such as parental income, occupation and professional status. While this has improved distributive justice, it remains contested. Income alone may not capture social advancement in a society where caste-based disadvantage can persist even after economic circumstances improve. The exclusion was initially applied to the OBCs, and its extension to the Scheduled Castes and the Scheduled Tribes has been debated; in Jarnail Singh v. Lachhmi Narain Gupta (2018) the Supreme Court held that the creamy layer principle applies to reservation in promotion for those groups as well.

A multidimensional assessment that takes account of education, social capital, occupation and regional disadvantage would arguably improve the accuracy of the test.¹⁰

B. United States: Group Protection Without Internal Filters

In the United States, affirmative action has been treated principally as a response to racial discrimination under the Equal Protection Clause of the Fourteenth Amendment. Strict scrutiny requires that racial classifications serve a compelling governmental interest and be narrowly tailored. Decisions such as Grutter v. Bollinger (2003) and Fisher v. University of Texas at Austin (2013) permitted limited consideration of race within a holistic admissions process, while Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (2023) substantially foreclosed race-conscious admissions policies.¹¹

Unlike India, the American system has no analogue of the creamy layer doctrine. Where an applicant falls within a protected racial group, socio-economic advantage does not render that applicant ineligible for an affirmative action programme. Some academic commentators have criticised this feature as operating disproportionately in favour of more affluent applicants within protected groups. Although the scholarly literature has long discussed combining considerations of race and class, the prevailing judicial trend leaves limited room for such an approach.

C. United Kingdom: Formal Equality and Indirect Filtering

The Equality Act 2010 adopts a moderate approach centred on formal equality and anti-discrimination rather than reservation. Sections 149, 158 and 159 provide for proportionate positive action, including the tie-break rule under which preference may be exercised only where the candidate benefiting from it is as qualified as the comparator.

Unlike India, the United Kingdom has no constitutionally entrenched group rights and no express exclusionary device comparable to the creamy layer. In practice, positive action programmes tend to be targeted at groups with demonstrable socio-economic disadvantage, which may indirectly limit the concentration of benefits among relatively advantaged members of those groups. That filtering is incidental rather than systematic, and in the absence of socio-economic screening, inequalities within groups are likely to persist.¹²

The tables below may be referred to for an overview of the concepts discussed in this segment.

Table 5: Thematic Comparison

Table 6: Comparative Insights

Implementation Mechanisms and Judicial Oversight: India, the United States and the United Kingdom

The effectiveness of affirmative action depends not only on its constitutional validity but also on the institutional mechanisms that give it effect and on the intensity of judicial supervision. Although India, the United States and the United Kingdom share a commitment to equality, they differ markedly in institutional design, enforcement structure and the role of the courts. India operates an administratively managed system of reservation that is shaped by judicial interpretation, while the United States relies principally on constitutional adjudication.

A. India: Bureaucratic Filters and Judicial Ambiguity

Reservation policy in India is implemented through state agencies that identify backward classes, issue caste certificates and apply the creamy layer rule. Although rooted in the Constitution, the policy has encountered numerous administrative difficulties, including inconsistent identification of backward classes, failures in caste certification and the absence of uniform guidelines for determining eligibility. The creamy layer exclusion, which turns largely on parental occupation and income, operates without a comprehensive legislative framework, which has led to uneven application and infrequent revision of the eligibility criteria. The absence of a central registry has also been said to make repeated access to the benefit of reservation difficult to monitor.¹³

Judicial intervention has been central to shaping India’s affirmative action jurisprudence. The Supreme Court introduced the creamy layer concept in Indra Sawhney v. Union of India (1992) in order to prevent the benefit of reservation from being captured by the more advanced sections of the Other Backward Classes. The significance of the criterion was later reinforced in Jarnail Singh v. Lachhmi Narain Gupta (2018). Its lack of codification, however, has left implementation largely in the hands of the executive.¹⁴

B. United States: Judicially Driven Compliance with Minimal Administrative Oversight

The United States, by contrast, operates a system in which the constitutionality of affirmative action is assessed under the Equal Protection Clause of the Fourteenth Amendment. An affirmative action policy must satisfy strict scrutiny, requiring a compelling governmental interest and narrow tailoring. Decisions such as Regents of the University of California v. Bakke (1978), Grutter v. Bollinger (2003), Fisher v. University of Texas at Austin (2013) and Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (2023) have defined and progressively confined the permissible scope of affirmative action.¹⁵

Unlike India, the United States has no central administrative body governing affirmative action. Individual institutions and public employers adopt their own diversity programmes, and implementation proceeds largely through litigation and complaints made to the relevant offices for civil rights.¹⁶

C. United Kingdom: Procedural Compliance and Regulatory Oversight

The Equality Act 2010 is the principal instrument through which the United Kingdom regulates equality, emphasising anti-discrimination, equality of opportunity and proportionate positive action rather than reservation or quotas. The Public Sector Equality Duty (PSED) is set out in Section 149 and requires public bodies to have due regard to the equality implications of their policies, decisions and actions, often through Equality Impact Assessments.¹⁷

Compliance is overseen by the Equality and Human Rights Commission (EHRC), which is responsible for enforcement and for issuing guidance on equality obligations. Positive action under Section 159 applies only where candidates are equally qualified, which preserves procedural fairness without creating a category-based preference. While the system secures institutional accountability and legal clarity, it has been criticised for its limited capacity to address structural inequality because of its emphasis on process.¹⁸

The tables below summarise the discussion in this segment.

Table 7: Key Comparative Themes

Table 8: Enforcement Spectrum

Comparative Challenges and Emerging Trends: India, the United States and the United Kingdom

Affirmative action continues to generate constitutional, political and social debate because of the need to reconcile substantive equality with merit, equity and equal opportunity. Although India, the United States and the United Kingdom share the aim of redressing past injustice, the means of implementation differ considerably in light of their distinct constitutional premises. Recent developments suggest a movement away from broad group-based measures towards more finely calibrated approaches.

A. India: The Paradox of Representation and Elite Capture

The Indian reservation system has played an instrumental role in improving the representation of historically disadvantaged communities. A substantial body of scholarship nevertheless argues that the benefit of reservation tends to be captured by the more advanced sections within the beneficiary groups, and that this weakens its effectiveness. The creamy layer concept introduced in Indra Sawhney v. Union of India (1992) was designed to exclude the economically and socially advanced members of the Other Backward Classes (OBCs). Its operation is said to be hampered by dated income thresholds, inconsistent administration and the absence of adequate socio-economic data. Although Jarnail Singh v. Lachhmi Narain Gupta (2018) extended the judicial application of the concept, its lack of codification remains a difficulty. A growing number of scholars argue for a multidimensional understanding of backwardness that takes account of education, occupation, geography, social capital and access to technology.¹⁹

B. United States: Constitutional Retrenchment and Class-Based Alternatives

In the United States, affirmative action has undergone considerable constitutional retrenchment. The decision of the Supreme Court in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (2023) foreclosed race-based admissions policies and emphasised a colour-blind reading of the Equal Protection Clause. Educational institutions are consequently making greater use of non-racial proxies such as family income, neighbourhood disadvantage and first-generation college status in order to sustain diversity. Unlike the Indian model, the United States has never adopted a creamy layer doctrine, although it has long been argued in the literature that affirmative action may benefit the more advantaged members of protected groups.²⁰

C. United Kingdom: Formal Equality and Structural Limitations

The United Kingdom continues to rely on procedural equality under the Equality Act 2010, which permits only limited forms of positive action and no reservation or quotas. The approach has the advantage of preserving the merit principle and of retaining political legitimacy. It is nevertheless widely criticised as insufficiently effective against persistent structural inequality. Existing practices, such as Equality Impact Assessments and scrutiny by the Equality and Human Rights Commission, seldom take account of differences between members of the same protected group, and there is a growing argument for more targeted measures.

D. Emerging Trends: From Group Entitlements to Contextual Equity

In all three jurisdictions, affirmative action policy appears to be moving towards a more contextual and evidence-based conception of equality. In India, the trend is towards internal differentiation within the backward classes; in the United States, institutions are exploring alternative methods in light of recent judicial restrictions; and in the United Kingdom, there is increasing scepticism as to whether procedural equality can address the structural disadvantage that certain groups continue to face. These developments reflect a growing interest in multidimensional approaches to affirmative action.²¹

Table 9: Challenges Across Jurisdictions

Table 10: Emerging Global Trend: Toward Contextual, Data-Driven Equity

Table 11: Lessons and Future Directions

Conclusion

The reservation and affirmative action regimes of India, the United States and the United Kingdom show that the pursuit of equitable outcomes takes a distinct form in each jurisdiction, shaped by constitutional philosophy, historical experience and legislative and institutional arrangement. Although all three seek to address structural disadvantage, the systems they have produced are legally very different.

India presents the most developed system of group-based affirmative action, because reservation is entrenched in its Constitution. Through the creamy layer doctrine, the courts have sought to exclude the socially advanced members of backward classes so that the benefit of reservation is more fairly distributed. The doctrine is not legislatively defined and has been operated largely through economic rather than social indicators, which has created problems of implementation. It would arguably be more effective and more defensible if the class to which it applies were constructed by reference to social capital, educational disadvantage and historical disadvantage.

In the United States, race-conscious affirmative action was developed over time to address structural inequality. In its movement towards a racially neutral reading of the Constitution, the United States has now sharply curtailed it. The limited use of socio-economic indicators means that inequalities within racial groups have gone largely unaddressed. In the United Kingdom, affirmative action is not a legally mandated policy. Its equality and non-discrimination framework centres on formal equality, and its critics argue that, without stronger measures, it has little effect on systemic inequality.

Taken together, these jurisdictions suggest that a responsive affirmative action policy must move beyond fixed legal categories. India would benefit from a codified, empirically grounded creamy layer test. The United States would benefit from incorporating socio-economic disadvantage within its equality jurisprudence. The United Kingdom would benefit from responsive, proportionate and group-sensitive measures where exclusion is entrenched. The aim in each case is to strike the right balance between the equality and justice provisions of a constitution, so that the enforcement of law delivers genuine social justice.

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Footnotes

1. Sandra Fredman, Discrimination Law 15–48 (2d ed. 2011).

2. Marc Galanter, Competing Equalities: Law and the Backward Classes in India 541–79 (Univ. of Cal. Press 1984).

3. Granville Austin, The Indian Constitution: Cornerstone of a Nation 50–83 (Oxford Univ. Press 1966).

4. Pavan Srinivas, Affirmative Action and the Marginalized Population: A Study on the Creamy Layer and Its Relevance Today, 5 Christ U. L.J. 45 (2016).

5. Owen M. Fiss, Groups and the Equal Protection Clause, 5 Phil. & Pub. Aff. 107 (1976).

6. Randall Kennedy, For Discrimination: Race, Affirmative Action, and the Law 183–231 (Pantheon Books 2013).

7. Bob Hepple, Enforcing Equality Law: Two Steps Forward and Two Steps Backwards for Reflexive Regulation, 40 Indus. L.J. 315 (2011).

8. Christopher McCrudden, Rethinking Positive Action, 15 Indus. L.J. 219 (1986).

9. Satish Deshpande, Exclusive Inequalities: Merit, Caste and Discrimination in Indian Higher Education Today, 46 Econ. & Pol. Wkly. 49 (2011).

10. Sukhadeo Thorat & Katherine S. Newman, Blocked by Caste: Economic Discrimination in Modern India 1–28 (Oxford Univ. Press 2010).

11. Randall Kennedy, Persuasion and Distrust: A Comment on the Affirmative Action Debate, 99 Harv. L. Rev. 1327 (1986).

12. Sandra Fredman, Substantive Equality Revisited, 14 Int’l J. Const. L. (2016).

13. Nat’l Comm’n for Backward Classes, Annual Report 2021–2022, at 18–34 (Gov’t of India 2022).

14. M. P. Singh, Reservation, Creamy Layer and the Constitutional Quest for Equality, 2 Indian J. Const. L. 1 (2008).

15. Ian Ayres & Sydney Foster, Don’t Tell, Don’t Ask: Narrow Tailoring After Grutter and Gratz, 85 Tex. L. Rev. 517 (2007).

16. Susan Sturm & Lani Guinier, The Future of Affirmative Action: Reclaiming the Innovative Ideal, 84 Cal. L. Rev. 953 (1996).

17. Aileen McColgan, The Equality Act 2010: Strengthening the Protection Against Discrimination?, 40 Indus. L.J. 343 (2011).

18. Colm O’Cinneide, The Public Sector Equality Duty: A Catalyst for Change?, 35 Indus. L.J. 362 (2011).

19. Satish Deshpande & Yogendra Yadav, Redesigning Affirmative Action: Castes and Benefits in Higher Education, 44 Econ. & Pol. Wkly. 49 (2009).

20. Neil Goldsmith, Class-Based Affirmative Action: Creating a New Model of Diversity in Higher Education, 29 Wash. U. J.L. & Pol’y 289 (2009).

21. Tarunabh Khaitan, A Theory of Discrimination Law 203–32 (Oxford Univ. Press 2015).