A ‘layered-take’ by Justice Gavai
Ever since the concept of ‘creamy layer’ was introduced by the Supreme Court way back in 1992, and the parameters and beneficiary criteria were demarcated, it was near certain that this would be a long-drawn subject of debates that would have as many supporters as would be critics. And it did happen that way. In fact, it continues to be debated, even decades later. Although, there have been major changes in the income ceiling from what was put at Rs one lakh in 1993 and the 27 per cent quota earmarked for Other Backward Classes (OBCs), albeit not those families who were prosperous (with an annual income in excess of Rs eight lakh), today the entire gamut of the original concept has undergone a sea-change across segments.
Creamy layer, per se, is used, while going about reservations for the socially and economically advanced segments of the Other Backward Classes (OBCs), who cannot derive the benefits. This implies that they are not eligible to receive government support in education, employment and other schemes that are essentially meant for the less privileged groups. Despite the subject being a contentious issue, a new twist came about on Sunday when the Chief Justice of India (CJI) B R Gavai gave a new dimension by airing his ‘personal’ opinion on it.
Justice Gavai recalled “I took a view that the concept of creamy layer, as has been found in the judgment of Indra Sawhney (vs Union of India & Others) that is applicable to OBCs, should also be made applicable to Scheduled Castes (SCs). My judgment has been widely criticised.” Due to retire in a week’s time, he held that ‘judges are not supposed to normally justify their judgments.”
Last year, he observed that states must evolve a policy for identifying the creamy layer even among the SCs and STs and deny them the benefit of reservation. To substantiate his point of view, Justice Gavai opined that children of an IAS officer cannot be equated with the offspring of a poor agricultural labourer when it comes to reservations. Apparently, he meant that the mindset of the two would be vastly different given their upbringing in two completely different
family environments. Putting them in the same bracket would obliviate the equality principle that is enshrined in the Constitution, he contended. The CJI proposed that States “must” identify the “creamy layer” among SCs and STs, including to exclude them from the benefits of affirmative action.
However, like earlier, even this time he has courted controversy from within the legal firmament and SC communities, who wondered why judges were trespassing into this space when they were supposed to be dealing with the vexed sub-categorisation issue. It may be recalled that in January, Justice Gavai had maintained that the ball was in the courts of the legislature and the government and they had to take a call on whether the ‘creamy layer’ of SCs and STs beneficiaries of reservation in education and public service must be excluded from quota benefits.
“Such persons who have already availed benefits and are in a position to compete with others on an equal footing, should be excluded from reservation,” Justice Gavai observed. Either way, his latest comments will take the debate to new levels as there can never be a consensus on such a crucial issue, which has societal, national, political and economic bearing.
