New Delhi | States must evolve a policy for identifying the creamy layer even among the Scheduled Castes (SC) and Schedule Tribes (ST) and deny them the benefit of reservation, Supreme Court judge Justice B R Gavai said on Thursday.
Justice Gavai penned a separate but concurring judgement in which the top court by a majority verdict said states are empowered to make sub-classifications of Scheduled Castes and Scheduled Tribes for granting quotas within the reserved category to uplift those who belong to the more underprivileged castes.
A seven-judge constitution bench headed by Chief Justice D Y Chandrachud held by a 6:1 majority that further sub-classification of SCs and STs by states can be permitted to ensure quotas for castes that are more backward among them.
Four out of the six judges who agreed that states are empowered to make sub-classifications wrote in their separate judgments that those in the creamy layer must be excluded from enjoying the benefits of reservation.
Justice Gavai, who wrote a 281-page separate but concurring verdict, said it is the duty of the State to give preferential treatment to the backward class of citizens who are not adequately represented in government jobs.
"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 Gavai said.
The top court judge said children belonging to Scheduled Caste people who have got the benefit of reservation cannot be put on the same pedestal as those who have not.
Justice Vikram Nath said he agreed with Justice Gavai that the creamy layer principle is also applicable to SCs and STs, 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 said a periodic exercise has to be undertaken to exclude the class of persons, who after taking advantage of reservation, has come to march shoulder to shoulder with the general category.
"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 said.
Concurring with the views of Justice Gavai, Justice Satish Chandra Sharma said identification of creamy layer with regard to SC/ST ought to become a constitutional imperative for the State.
The top court had reserved the verdict on February 8 on pleas seeking review of the E V Chinnaiah judgement, which had in 2004 held that all schedule caste communities that suffered ostracisation, discrimination and humiliation for centuries represented a homogeneous class incapable of being sub-categorised.
The verdict came on references to revisit the 2004 judgement by a five-judge constitution bench in the case of EV Chinnaiah vs. State of Andhra Pradesh in which it was held that SCs and STs are homogeneous groups and states cannot further sub-classify them to grant quota inside quota for more deprived and weaker castes in these groups.
New Delhi | The reservation policy requires a fresh relook and new methods are needed for the uplift of people belonging to Scheduled Castes (SC), Schedule Tribes (ST) and Other Backward Classes (OBC), Supreme Court judge Justice Pankaj Mithal said on Thursday.
While concurring with the majority verdict on the right of states to sub-categorise SCs for granting quotas, Justice Mithal said notwithstanding the success or failure of the reservation policy, one thing is for sure that it has burdened the judiciary at all levels, especially the high courts and the Supreme Court with enormous litigation.
"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," Justice Mithal wrote in a separate 51-page judgement.
Justice Mithal said in the constitutional regime, there is no caste system and the country has moved into a casteless society except 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 maybe 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).
"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," he said.
Justice Mithal said a periodic exercise has to be undertaken to exclude the class of persons, who after taking advantage of reservation has come to march shoulder to shoulder with the general category.
The top court had reserved the verdict on February 8 on pleas seeking review of the E V Chinnaiah judgement, which in 2004 had ruled that all schedule caste communities which suffered ostracisation, discrimination and humiliation for centuries represented a homogeneous class incapable of being sub-categorised.
The verdict came on references to revisit the five-judge constitution bench judgement of 2004 in the case of EV Chinnaiah vs. State of Andhra Pradesh in which it was held that SCs and STs are homogeneous groups and states cannot further sub-classify them to grant quota inside quota for more deprived and weaker castes in these groups.
New Delhi | The backwardness within the Scheduled Castes (SC) is a roadblock to achieving "substantive equality" and sub-classification is one of the means to realise it, the Supreme Court said on Thursday.
The remarks were made by Chief Justice D Y Chandrachud in his 140-page majority judgement by which the Supreme Court held that states are constitutionally empowered to make sub-classifications within the SCs for granting quota inside the quota as they form a socially heterogeneous class.
The CJI summarised the principles that underpin the objective and yardstick for identifying a beneficiary class under Articles 15(4) and 16(4) of the Constitution.
"The object of the special provisions in Articles 15(4) and 16(4) is to provide substantive equality to the beneficiary class. Inter-se backwardness within the class is a roadblock to achieving substantive equality. Sub-classification is one of the means to achieve substantive equality," Justice Chandrachud said.
Sub-article 15(4) stipulates that nothing shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes or for the Scheduled Castes and the Scheduled Tribes.
Sub-article 16(4) of the Constitution states that nothing shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens, which in the opinion of the state, is not adequately represented in the services.
"The beneficiary class in Article 15(4) must be a socially and educationally backward class. 'Socially and educationally backward' are not mutually exclusive concepts. The phrase constitutes a constitutional recognition of the sociological reality that educational backwardness is caused by the social backwardness of the class," he said.
"The beneficiary class in Article 16(4), similar to the class under Article 15(4), must predominantly be socially backward. The purpose of both the provisions is to ensure substantive equality of opportunity to the socially backward communities...," he said.
The adequacy of representation must be determined based on the standard of effective representation and not numerical representation, he said.
The apex court analysed the judgements and other details to hold that SCs are a "heterogenous class" capable of being sub-classified.
"The Constitution does not provide a definition of the Scheduled Castes. Article 366(24) states that castes/groups notified under Article 341 shall be Scheduled Castes. However, neither Article 341 nor Article 366(24) prescribes the criteria for their identification....," he said.
The heterogeneity is also evident from the Constitution (Scheduled Castes) Order 1950 where certain castes are notified as SCs in specific localities only.
"For example, in Madhya Pradesh, of the twenty-five castes, only nine are Scheduled Castes throughout the State. The criteria used to identify the Scheduled Castes itself indicates that the endeavor was not to include all castes that suffered from identical forms of untouchability. Thus, the Scheduled Castes are not a homogenous class,” Justice Chandrachud said.
