New Delhi: Supreme Court judge Justice B R Gavai, who is from the Dalit community, on Thursday said that the state must evolve a policy for identifying the creamy layer even from the Scheduled Castes and Scheduled Tribes so as to exclude them from the benefit of affirmative action. Currently, the creamy layer applies only to Other Backwards Classes (OBCs) and not SC/STs.
Justice Gavai is part of a seven-judge bench, led by Chief Justice of India D Y Chandrachud, which, in a path-breaking judgement, held that sub-classification of SCs is permissible to provide preferential treatment to the disadvantaged groups among them.
The top court stressed that it should be based upon empirical data on inadequacy of representation in reservation for jobs and admission to educational institutions. Justice Vikram Nath, Justice Pankaj Mithal, and Justice Satish Chandra Sharma, agreed with Justice Gavai's opinion. Justice Gavai will become Chief Justice next year.
Justice Gavai, who authored a separate 281-page judgment, said: "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”.
He said nearly 75 years have elapsed from the day on which the Constitution was brought into effect and special provisions have been made for the advancement of the Scheduled Castes and Scheduled Tribes and backward class of citizens.
"By judicial interpretation, the equality enshrined in the trinity of Articles 14 to 16 of the Constitution has been considered to be equal treatment among equals and unequal treatment among unequals," he said.
Justice Gavai said the question that will have to be posed is, whether equal treatment to unequals in the category of Scheduled Castes would advance the constitutional objective of equality or would thwart it? Can a child of IAS/IPS or Civil Service Officers be equated with a child of a disadvantaged member belonging to Scheduled Castes, studying in a Gram Panchayat/Zilla Parishad school in a village?
He said the judgment in E.V. Chinnaiah, which held that sub-classification amongst the Scheduled Castes for the purpose of giving more beneficial treatment to a group in the larger group of the Scheduled Castes is not permissible, does not lay down a good law.
"sub-classification amongst the Scheduled Castes for giving more beneficial treatment is permissible in law….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. 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 Gavai concluded.
"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," he said.
Justice Gavai observed that SCs and STs are recognised to be the most backward section of the society, the parameters for exclusion from affirmative action of the person belonging to this category may not be the same that is applicable to the other classes.
He said if a person from such a category, by bagging the benefit of reservation achieved a position of a peon or maybe a sweeper, he would continue to belong to a socially, economically and educationally backward class.
He added that at the same time, the people from this category, who after having availed the benefits of reservation have reached the high echelons in life cannot be considered to be socially, economically and educationally backward so as to continue availing the benefit of affirmative action.
"They have already reached a stage where on their own accord they should walk out of the special provisions and give way to the deserving and needy", said Justice Gavai.
He stressed that putting the children of the parents from the Scheduled Castes and Scheduled Tribes who on account of benefit of reservation have reached a high position and ceased to be socially, economically and educationally backward and the children of parents doing manual work in the villages in the same category would defeat the constitutional mandate.
"It is also commonly known that disparities and social discrimination, which is highly prevalent in the rural areas, start diminishing when one travels to the urban and metropolitan areas. I have no hesitation to hold that putting a child studying in St. Paul's High School and St. Stephen's College and a child studying in a small village in the backward and remote area of the country in the same bracket would obliviate the equality principle enshrined in the Constitution," he said.
Justice Gavai said the categories in the Presidential List who have already enjoyed a major chunk of reservations should not object to the state providing a special treatment to those who have been deprived of such a benefit and particularly when such a benefit is not being taken away from them. "Only part of that benefit is being reserved for percolating the same to the more disadvantageous and less represented," he said.
Stand in the shoes of those who oppressed them
Justice Gavai said in fact, what the people belonging to the categories who are availing of large chunk of reservations and denying a special treatment to the less privileged among them are doing, is what the people from the higher castes have done to these people for centuries as a result of which backward classes were kept away from the mainstream of society for ages, for no fault of theirs.
He said only on account of the principle of social and economic justice as enshrined under the Constitution, they have availed themselves of the benefits of special treatment. "However, when the State endeavours to ensure that the said benefit percolates to the more underprivileged and less adequately represented, the sections from the Scheduled Castes who oppose them, stand in the shoes of those who oppressed them," said Justice Gavai.
Issue with treating SCs and STs as homogenous groups
Justice Gavai said if a classification is made, it will have to be established that the group carved out from the larger group is more disadvantageous and not adequately represented. He added that the result of classification would be to provide more preferential treatment to this more disadvantageous and less represented group. “The ultimate object would be to achieve real equality among all the sub-groups in the larger group”, he said.
Justice Gavai rejected that the concept of sub-classification would lead to giving reservation for political reasons and a political party in power to gain political advantage may provide special treatment to a particular class in the list of Scheduled Castes.
Justice Gavai said even among the Scheduled Castes, there are some categories who have received more inhuman treatment for centuries and generations as compared to the other categories. “The hardships and the backwardness which these categories have suffered historically would differ from category to category. In my view, therefore, merely because they are part of a single or a combined Presidential List, it cannot be said that they form part of a homogeneous group. I therefore have no hesitation in holding that E.V. Chinnaiah has been wrongly decided," he said.
A seven-judge bench led by Chief Justice of India D Y Chandrachud by a majority view of 6:1 overruled the 2004 judgment of a five-judge Constitution bench in case of 'E V Chinnaiah vs State of Andhra Pradesh'. The judgment had held the SCs and STs are homogenous groups and hence, States cannot further sub-classify them to grant a quota within a quota for the more deprived and weaker castes in these groups. The lead judgment was authored by the CJI on behalf of himself and Justice Manoj Misra. Justice Trivedi dissented.
The bench delivered the judgment on close to two dozen petitions, led by the Punjab Government against the 2010 verdict of the Punjab and Haryana High Court. The High Court had struck down Section 4(5) of the Punjab law, which gave 50% quota to ‘Valmikis’ and ‘Mazhabi Sikhs’, as unconstitutional on grounds, including that the provision violated a five-judge constitution bench judgment of 2004 of the Supreme Court in the case of EV Chinnaiah vs. State of Andhra Pradesh.
