Dalhousie Law Journal


Canada, India, equality, constitutional law, Other Backward Classes, Supreme Court of India, race, affirmative action, overinclusive, creamy layer, Canadian Charter of Rights and Freedoms


Canada and India are both pluralistic democracies with diverse populations. Both countries have drafted constitutional provisions which enshrine equality rights and permit affirmative action. In India, various disadvantaged groups receive special protection from the Constitution of India, such as the Other Backward Classes (OBC). The Supreme Court of India has held that States and the Central government must identify the "creamy layer" within the OBC category so that reservations target members who are most in need. Otherwise, the OBC category is overinclusive. The creamy layer includes those who are socially and economically advanced and who no longer require the benefits of the reservation system. Race-based affirmative action may be overinclusive in Canada. For this reason, the author argues that the Supreme Court of Canada should explore the concept of creamy layer in any of its future decisions on s. 15(2) of the Canadian Charter of Rights and Freedoms