Constitutional Impermissibility of Justice Gavai’s Creamy Layer Concurrence in Davinder Singh v State of Punjab

This paper critically examines the constitutional impermissibility of Justice B.R. Gavai’s concurrence in Davinder Singh v State of Punjab (2024), particularly his observation that the creamy layer principle applicable to Other Backward Classes should extend to Scheduled Castes and Scheduled Tribes. It argues that the observation is constitutionally unsustainable on three principal grounds. First, the issue of applying the creamy layer principle to SCs and STs was not before the Court and therefore constitutes an obiter dictum rather than binding ratio decidendi. Second, the concurrence raises concerns regarding judicial hierarchy by seeking to reopen a question addressed by the nine-judge Bench in Indra Sawhney v Union of India, which cannot ordinarily be reconsidered by a smaller Bench. Third, the concurrence bypasses the institutional safeguard contained in Article 338(9), requiring consultation with the National Commission for Scheduled Castes on matters concerning SCs. The paper further examines the practical consequences of an otherwise non-binding observation influencing legislative policy and litigation, thereby highlighting broader concerns regarding constitutional adjudication and institutional integrity.