New Delhi: Delivering the landmark judgment clearing sub-classification within Scheduled Castes and Scheduled Tribes to extend reservation to the more marginalised, Justice BR Gavai said the State must come up with a policy to identify the creamy layer among these communities and take them out of the fold of affirmative action.
Justice Gavai is from the Dalit community and is set to become Chief Justice next year. He will be the second Dalit Chief Justice of India after KG Balakrishnan. In today's judgment, he made strong observations on how people from the creamy layer of backward communities were cornering quota benefits and depriving the majority.
"When a person gets into a compartment, he tries all means to stop others from getting into that compartment. Only on account of social justice they have got the benefit, but when state decides to give that benefit to the ones who are not adequately represented, then the same cannot be denied," Justice Gavai said.
"State must evolve a policy to identify creamy layer among the SC/ST category and take them out of the fold of affirmative action. This is the only way to gain true equality," he added.
The judge referred to a speech by Dr BR Ambedkar in 1949 in which he said that political democracy cannot last unless social democracy is at the base of it.
"Only a section within Scheduled Castes and Scheduled Tribes are enjoying the benefits of reservation. The ground reality cannot be denied that there are classes within SC/ST communities that are facing harassment. The basis of sub-classification is that a large section is facing discrimination," he said.
The judge noted that comparing a child from the creamy layer of Scheduled Castes with a child from the same community who picks rags in a village would amount to "cheating".
Three other judges on the seven-judge bench agreed to Justice Gavai's position on the creamy layer.
Justice Pankaj Mithal said, "Reservation should be meant for only the first generation among a category. If the second generation has come up, then benefits of reservation shall not be given. The State should see if, after reservation, the second generation has come shoulder to shoulder with the general category," he said.
Justice SC Sharma agreed. "The identification of creamy layer among SC/ STs must become a Constitutional imperative."
Justice Vikram Nath said that creamy layer principle, which applies to OBC communities, must apply to Scheduled Castes too.