New Delhi: The Supreme Court has called for the application and extension of the ‘Creamy Layer’ idea in reservations for the Scheduled Castes and the Scheduled Tribes (SCs & STs) in the country and exclude castes from the benefit of reservations.
Four of the seven judges, who were called on to decide the legal question if some castes in the SCs & STs can be given preferential treatment by state for reservations in public employment and admissions, said that sub-classification and preferential treatment in favour of weakest of the weaker was permitted, but “State must also evolve a policy for identifying the creamy layer even from the Scheduled Castes and Scheduled Tribes so as exclude them from the benefit of affirmative action.”
A bench of seven judges comprising Chief Justice of India DY Chandrachud, Justices BR Gavai, Vikram Nath, Bela M Trivedi, Pankaj Mithal, Manoj Misra and Satish Chandra Sharma were called on to decide the legality of law enacted by Punjab government, which had given preferential treatment to Balmikis and Mazahbi Sikhs, within the SC reservation.
While the idea of sub-classification has been supported by six of the seven judges, Justice Bela Trivedi delivered her dissenting verdict on the issue, holding that sub-classification as envisaged in the Indira Sawhney case for OBC reservation was not permissible.
Justice BR Gavai, who himself belongs to the Scheduled Caste community, has held, “I am therefore of the view that the State must evolve a policy for identifying the creamy layer even from the Scheduled Castes and Scheduled Tribes so as exclude them from the benefit of affirmative action. In my view, only this and this alone can achieve the real equality as enshrined under the Constitution.”
Justice Vikram Nath concurring with Justice Gavai has said, “I am also in agreement with the opinion of Brother Justice Gavai that ‘creamy layer’ principle is also applicable to Scheduled Castes and Scheduled Tribes, and that the criteria for exclusion of creamy layer for the purpose of affirmative action could be different from the criteria as applicable to the Other Backward Classes.”
Justice Pankaj Mithal goes a step ahead on SC/ST reservation policy and suggests, “The reservation, if any, has to be limited only for the first generation or one generation and if any generation in the family has taken advantage of the reservation and have achieved higher status, the benefit of reservation would not be logically available to the second generation.”
Justice Mithal also says, “State must evolve a policy of identifying the creamy layer even from the scheduled castes and scheduled tribes so as to exclude them from the benefit of reservation. It is reiterated that periodical exercise has to be undertaken to exclude the class of person who after taking advantage of reservation has come to march, shoulder to shoulder with the general category.”
Justice SC Sharma in his opinions has said, “However, on the question of applicability of the ‘creamy layer principle’ to Scheduled Castes and Scheduled Tribes, I find myself in agreement with the view expressed by Justice Gavai i.e., for the full realisation of substantive equality inter se the Scheduled Castes and Scheduled Tribes, the identification of the ‘creamy layer’ qua Scheduled Castes and Scheduled Tribes ought to become a constitutional imperative for the State.”
