It’s for govt, Parliament to take call on excluding creamy layer from SC/ST reservation: SC

It’s for the Government and Parliament to decide if those from Scheduled Castes and Scheduled Tribes who availed of quota benefits and were in a position to compete with others should be excluded from the ambit of reservation, the Supreme Court said on Thursday.

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"We have given our view that taking into consideration the past 75 years, such persons who have already availed benefits (of reservation) and are in a position to compete with others, should be excluded from reservation. But it’s a call to be taken by the Executive and the Legislature," a Bench of Justice BR Gavai and Justice AG Masih said.

Currently, creamy layer criteria are applicable only to Other Backward Classes (OBCs) in order to exclude the better-offs among them from quota benefits, in terms of the 1992 nine-judge Constitution Bench verdict of the Supreme Court in the Indira Sawhney case.

The top court’s comments came after an advocate representing a petitioner referred to the top court's August 2024 verdict that favoured exclusion of creamy layer from SC/ST reservation and sought a direction to the government to come out with a policy to identify such creamy layer.

Contending that the government would not frame such a policy, the counsel submitted that eventually the top court would have to intervene.

However, the Bench said, "The legislators are there. The Legislature can enact a law."

Refusing to entertain the petition, it allowed the petitioner to withdraw it.

Holding that Scheduled Castes and Scheduled Tribes are not homogenous groups, a seven-judge Constitution Bench had on August 1, 2024 ruled that the State can sub-classify Scheduled Castes and Scheduled Tribes to ensure greater reservations for some SC/ST groups over others in public employment and admission to government-run educational institutions.

By a 6:1 majority, the Bench had overruled the top court’s five-judge Bench verdict in EV Chinnaiah vs State of Andhra Pradesh (2004) which had ruled that SC/ST communities which suffered ostracisation, discrimination and humiliation for centuries formed homogeneous groups, incapable of being sub-categorised. However, it said such sub-classification can't be based on the whims of governments.

Four of the six judges on the majority, including Justice Gavai, had said 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 reservation.

“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,” Justice Gavai had said.

He had said 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”.