Refer question of exclusion of creamy layer from SC/STs to 7-Judge Bench, AG KK Venugopal to SC
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Refer question of exclusion of creamy layer from SC/STs to 7-Judge Bench, AG KK Venugopal to SC

Shruti Mahajan

Attorney General for India KK Venugopal today asked the Supreme Court to refer the issue concerning exclusion of the creamy layer from the Scheduled Caste and Scheduled Tribes community to a larger Bench.

The matter came up before the Bench of Chief Justice of India SA Bobde and Justices BR Gavai and Surya Kant.

Senior Counsel Gopal Sankaranarayanan, appearing for the SC/ST groups, told the Court today that the issue was referred to a Constitution Bench in the past and has been settled on two occasions, in the Jarnail Singh case and the M Nagaraj case.

AG Venugopal, however, stressed the need for referring the issue to a larger Bench. The Court has now agreed to hear the matter after two weeks.

The petition has been filed by OP Shukla, President of the National Co-ordination Committee for Revision of Reservation Policy and head of the All India Harijan League. The plea seeks proper apportionment of benefits of affirmative action to genuinely needy and deserving SC/STs after identifying and removing those who, after enjoying long and continued benefit of reservation, are no longer identified as ‘backward classes’.

It goes on to state that so far, neither the Centre nor the state governments have sought to identify the creamy layer from amongst the SC/ST community. As a result, the creamy layer within the community has availed of benefits of reservation at the cost of their more marginalized counterparts, the petition states.

The petition clarifies that it is limited to reservations in government services and educational institutions covered under Articles 16(4) and 15(4) of the Constitution.

It is prayed that the Court direct the Government of India to amend the Constitution (Scheduled Castes) Order, 1950 and the Constitution (Scheduled Tribes) Order, 1950 after undertaking an objective and rational test to identify the creamy layer from amongst the SC/ST community. Once identified, it is prayed that the creamy layer be excluded from availing benefits under Articles 15(4) and 16(4).

In the case of M Nagaraj v. Union of India, the Supreme Court had held,

“It is made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling-limit of 50% or obliterate the creamy layer or extend the reservation indefinitely.”

In September last year, a five-judge Constitution Bench in Jarnail Singh v. Lacchmi Narain Gupta decided that the judgment in M Nagaraj is wrong to the extent that it directs the collection of quantifiable data for providing reservations. The Court also held that the M Nagaraj judgment need not be referred to a larger bench.

The Court in Jarnail Singh further held that the concept of “creamy layer”, which was applicable only for Other Backward Classes (OBC), can be made applicable by the Courts to SC/STs as well, in the interest of equality among the sub-groups.

Another observation made in the judgment was that the application of the creamy layer principle to the SC/ST community does not go against Articles 341 and 342 and the Presidential list which enumerates the Scheduled Castes and the Scheduled Tribes. It will only exclude those individuals from availing the benefit of the reservation who have come out of untouchability or backwardness on account of belonging to the creamy layer.

Read the petition:

SC-ST-creamy-layer-petition.pdf
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