Should Creamy Layer Be Excluded From SC/ST Reservations? What Supreme Court Said

Four Supreme Court judges opined in favour of excluding Schedule Caste creamy layer from reservation benefit

The Supreme Court in a significant judgment on Thursday held that sub-classification of Scheduled Castes/Scheduled Tribes is permissible by the state government

Source : PTI

In a significant development, four Supreme Court judges while allowing state governments to grant Scheduled Castes and Scheduled Tribe (SC/ST) reservations quota based on sub-classification favouring the more backward castes within those communities, opined that creamy layer principle must also apply to Scheduled Castes. So far, the creamy layer principle is only applicable to reservations for OBCs.

The Supreme Court in a significant judgment on Thursday held that sub-classification of Scheduled Castes/Scheduled Tribes is permissible by the state government to grant separate quotas for the more backwards within those categories. In a landmark verdict, a 7-judge constitutional bench of the apex court by a majority of 6:1 held that sub-classification of Scheduled Castes/Scheduled Tribes is permissible.

The Chief Justice of India (CJI) DY Chandrachud while pronouncing verdict said that there are 6 opinions and one dissent by justice Bela M Trivedi in the verdict. Four out of the six opinions favoured exclusion of creamy layer belonging to Scheduled Caste community from benefiting from reservations.

While six out of seven judges ruled in favour of sub-classification, Justice Bela Trivedi dissented and upheld the 2004 judgment in E V Chinnaiah vs State of Andhra Pradesh which said there cannot be sub-classification of SCs/ST for the purpose of reservation.

Four judges who propounded for excluding creamy layer are Justices BR Gavai, Vikram Nath, Satish Chandra Sharma and Justice Pankaj M Mithal.

Justice BR Gavai in his separate but concurring opinion said "that the the finding of M. Nagaraj, Jarnail Singh and Davinder Singh to the effect that creamy layer principle is also applicable to Scheduled Castes and Scheduled Tribes lays down the correct position of law; (viii) that the criteria for exclusion of the creamy layer from the Scheduled Castes and Scheduled Tribes for the purpose of affirmative action could be different from the criteria as applicable to the Other Backward Classes."

While agreeing with CJI DY Chandrachud and Justice Manoj Misra's opinion on permitting sub-classification for the purpose of reservations to more backwards in SC/ST community, Justice Gavai said that sub-classification amongst the Scheduled Castes for giving more beneficial treatment is permissible in law and for doing so, the State will have to justify that the group for which more beneficial treatment is provided is inadequately represented as compared to the other castes in the said List. He further added that while doing so, the State will have to justify the same on the basis of empirical data that a sub-class in whose favour such more beneficial treatment is provided is not adequately represented.

Justice Gavai further said that while providing for sub-classification, the State would not be entitled to reserve 100% seats available for Scheduled Castes in favour of a sub-class to the exclusion of other castes in the List and that such a sub-classification would be permissible only if there is a reservation for a sub-class as well as the larger class.

Justice Vikram Nath in his opinion said that he is generally in agreement with the reasons and conclusions arrived at in the opinions of Chief Justice DY Chandrachud and Justice Gavai in particular that the holding in E.V.Chinnaih verdict, that sub-classification within Scheduled Castes was impermissible, does not lay down good law and stands over-ruled.

"Further, any exercise involving sub-classification by the State must be supported by empirical data. 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 Vikram Nath opined.

Justice Satish Chandra Sharma said that he is fully in agreement with both opinions to the extent that the validity of sub-classification
within Scheduled Castes has been held to be constitutionally permissible and the sub-classification should be based on emperical data.

"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," Justice Sharma said in his opinion.

Justice Pankaj Mithal stated that reservation has to be only limited to the first generation and the policy of reservation as enshrined under the Constitution and by its various amendments requires a fresh re-look 

"Agreeing with the scholarly separate opinions authored by the Chief Justice and Brother Gavai, J., I summarise my views as under:

(i) The policy of reservation as enshrined under the Constitution and by its various amendments requires a fresh re-look and evolvement of other methods for helping and uplifting the depressed class or the downtrodden or the persons belonging to SC/ST/OBC communities. So long no new method is evolved or adopted, the system of reservation as prevailing may continue to occupy the field with power to permit subclassification of a class particularly scheduled caste as I would not be suggesting dismantling of an existing building without erecting a new one in its place which may prove to be more useful; (ii) In the Constitutional regime, there is no caste system and the country has moved into a casteless society except for the deeming provision under the Constitution for the limited purposes of affording reservation to the depressed class of persons, downtrodden or belonging to SC/ST/OBC. Therefore, any facility or privilege for the promotion of the above categories of persons has to be on a totally different criteria other than the caste may be on economic or financial factors, status of living, vocation and the facilities available to each one of them based upon their place of living (urban or rural);" Justice Mithal stated in his opinion.

He further stated that 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.

"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 Mithal said.

The question came up in the Supreme Court after the Punjab & Haryana High Court struck down the validity of the Punjab Scheduled Caste and Backward Classes (Reservation in Services) Act, 2006, which involved the sub-classification of reserved category communities. Following the high court verdict, the Punjab government moved the top court.

The top court today upheld the validity of the laws passed by the state of Punjab and held that state governments can provide sub-classification within the Scheduled Castes and Scheduled Tribes lists to give more reservations to those who are more backward within the SC/ST category. However, the court held that such an exercise has to be done on the basis of empirical data.