CJI BR Gavai defends his judgment on creamy layer applicability to Scheduled Castes

Chief Justice of India (CJI) BR Gavai defended his August 2024 judgment in which he had batted for application of creamy layer principle to Scheduled Castes (SCs) so that the well placed among SCs do not get the benefits of reservation.

However, judicial pronouncements must be open to scrutiny, he added.

The Chief Justice was speaking at a felicitation organised by the Goa High Court Bar Association.

He noted that one of his critics on the judgment had been Justice Nelson J Rebello, who earlier served as a judge of the Allahabad High Court and later as a member of the Goa Legislative Assembly.

“Justice Rebello has some criticism about my views on applying creamy layer to the Scheduled Castes. The reason that weighed with me was I have seen that a person from first generation becomes IAS from reserved category and from second generation again his son becomes IAS from reserved category and again the third generation an IAS from the same category,” CJI Gavai said.

He elaborated that the equality principle under Article 14 required recognising real social differences.

“The question I put to myself was a son or daughter who gets education in best schools in Delhi or Mumbai, can they be equated with son or daughter of a mason or agricultural workers studying in gram panchayat schools. Article 14 does not mean equal treatment to everyone. What is contemplated is an unequal treatment to unequals so that they become equals. Thus, a child of a villager and another child studying in top Delhi school was against equality and thankfully my view was supported by other three judges of the Supreme Court,” the CJI said.

The Supreme Court, in its judgment delivered on August 1, 2024, had called for identification of creamy layer among the Scheduled Castes and Scheduled Tribes (SC/STs) to take them out of the fold of affirmative action (reservation).

Currently the principle of creamy layer applies only to Other Backwards Classes (OBCs) and not SC/STs.

However, four of the seven top court judges who were part of the bench which allowed sub-classification of SC/STs, had also called for creamy layer identification among SC/STs, so that benefits of reservation reach only the backward among such communities.

Justice BR Gavai in his concurring judgment said that the ultimate aim of reservation is to realise real equality in the country and creamy lawyer among SC/STs should be identified and excluded from the benefits of reservation.

"State must evolve a policy to identify creamy layer among the SC ST category and take them out of the fold of affirmative action (reservation). This is the only way to gain true equality," Justice Gavai had said in his judgment.

In his speech on August 22, Justice Gavai emphasised that judicial pronouncements must be open to scrutiny.

“As a High Court judge I have myself held two of my judgments as per incuriam and once in the Supreme Court. I feel judges are humans and they can also err,” he observed.

He added that High Courts are in no way inferior to the Supreme Court and remain fully independent on the administrative side.

Reflecting on the weight of his office, the CJI said he had always considered his position to be a constitutional trust rather than a personal honour.

Recalling B.R. Ambedkar’s words that the Constitution was an instrument of bloodless economic revolution, he stated:

“I have always considered my office as an opportunity given by destiny to serve society. This office is not for enjoyment but for discharging duties mandated under the Constitution for the public good and I am grateful I could contribute in the march for social and economic justice.”

He also spoke about significant rulings during his tenure as a Supreme Court judge. Referring to the demolition judgment delivered by his Bench, he said the Court was perturbed that homes were being razed on the basis of mere allegations, without any conviction.

“Even if a person is convicted they have rights. Rule of law is paramount and I am happy we could lay down guidelines and prohibit the executive from becoming a judge. If executive is allowed to become a judge we will be hitting at the very basic concept of separation of powers,” the Chief Justice said.

He also cited the Vidarbha Zudpi forests case, wherein the Court protected slum dwellers from eviction, as well as multiple orders passed as part of the green bench concerning sanctuaries and natural resources.

He underlined that natural resources must be preserved in trust for future generations and permission for developmental activities should be given only when there is minimal adverse impact.

On access to justice, the CJI recalled his support for circuit benches, including in Kolhapur, so that residents of smaller districts do not have to spend heavily for travellig to larger cities. He described this as another measure towards fulfilling the constitutional goal of social and economic justice.