CJI backs exclusion of creamy layer in reservation to SCs

Chief Justice of India BR Gavai on Sunday affirmed that he is still for exclusion of creamy layer in reservations to the Scheduled Castes.

Addressing a programme titled “India and the Living Indian Constitution at 75 Years”, Gavai said the children of an IAS officer could not be equated with the children of a poor agricultural labourer when it came to reservation.

“I also went further and took the view that the concept of the creamy layer, as laid down in the “Indra Sawhney vs Union of India & Others” judgment, which is applicable to Other Backward Classes, should also be applied to the Scheduled Castes — though my judgment has been widely criticised on that issue,” Gavai said.

“But I still hold that judges are not supposed to normally justify their judgments, and I still have about a week to go (retirement),” Justice Gavai further said.

The CJI said over the years, equality and women’s empowerment had gained momentum in the country, and the discrimination once meted out to women was now being strongly criticised.

He noted that, as he was set to conclude his tenure as Chief Justice in a couple of days, the last function he attended was again in Amaravati, Andhra Pradesh — while the first event he attended after becoming the CJI was in his hometown, Amravati in Maharashtra.

In 2024, Justice Gavai had observed that states must evolve a policy for identifying the creamy layer even among the Scheduled Castes (SCs) and Scheduled Tribes (STs) and deny them the benefit of reservation.

Asserting that the Indian Constitution is not “static”, Justice Gavai said Dr BR Ambedkar had always maintained that it must remain an evolving, organic and state-of-the-art living document, as reflected in Article 368, which provides for its amendment.

“On one hand, Dr Ambedkar was criticised for making the powers to amend the Constitution too liberal; on the other, it was argued that certain amendments requiring ratification by half the states and a two-thirds majority in Parliament made the process too difficult,” he said.

According to him, Dr Ambedkar’s addresses during the presentation of the draft Constitution in the Constituent Assembly were the most important speeches that every student of law should read.

Quoting Dr Ambedkar, he said equality without liberty would deprive a person of the incentive to excel, while liberty without equality would result in the dominance of the powerful over the weak. The trinity of equality, liberty and fraternity, he noted, is essential for the country to advance towards social and economic justice.

He said because of the Constitution, India has had two Presidents from the Scheduled Castes, and the incumbent is a woman from the Scheduled Tribe.

“Coming from a humble background — studying in a municipal school in a predominantly semi-slum area of Amravati — I could rise to the highest office in the judiciary and contribute, in my humble way, to nation-building only because of the Constitution of India,” Gavai said.

He added that the Indian Constitution stands on four pillars — justice, liberty, equality and fraternity.