'Creamy Layer' Must Be Excluded From Scheduled Castes/Scheduled Tribes For Reservations : Supreme Court

In the judgment allowing sub-classification of Scheduled Castes, the Supreme Court expressed the need to exclude the 'creamy layer' among the Scheduled Castes from the reservation benefits meant for the SC categories.

At present, the concept of 'creamy layer' is applicable only to the reservation for Other Backward Classes.

The judgment was delivered by a bench comprising Chief Justice of India DY Chandrachud, Justices BR Gavai, Vikram Nath, Bela Trivedi, Pankaj Mithal,Satish Chandra Sharma and Manoj Misra. Six judges upheld sub-classification, with Justice Trivedi dissenting. 

Four out of the six judges, who supported sub-classification, expressly stated in their judgments that creamy layer exclusion must be applied to SCs.

Justice BR Gavai, in his judgment, 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 affirmative action. In my view, only this and this alone can achieve the real equality as enshrined under the Constitution."

Justice Gavai stated that the children of an SC category person who has got the benefit of reservation cannot be put on the same pedestal as the children of a person who has not availed of reservation.

He opined that the yardsticks for identifying creamy layers among the SCs/STs must be different from that of the OBCs.

Justice Vikram Nath also endorsed Justice Gavai's view, saying, that the creamy layer principle as applicable to OBCs also applies to the SCs.

Justice Pankaj Mithal stated that reservation has to be only limited to the first generation. If any member of the first generation has reached a higher status through reservation, then the 2nd generation should not be entitled to reservation, Justice Mithal stated.

Justice Satish Chandra Sharma agreed with the view of Justice Gavai and said that the issue of identification of creamy layer qua SC/STs ought to become a constitutional imperative for the State.

Important quotes from the judgment on creamy layer issue.

Justice Gavai stated that it was appropriate to consider the issue of creamy layer since the Court is dealing with the with the question about equality among the group of unequals.

He observed :

"The question that will have to be posed is, whether equal treatment to unequals in the category of Scheduled Castes would advance the constitutional objective of equality or would thwart it? Can a child of IAS/IPS or Civil Service Officers be equated with a child of a disadvantaged member belonging to Scheduled Castes, studying in a Gram Panchayat/Zilla Parishad school in a village?"

"The education facilities and the other facilities that would be available to a child of a parent of the first category would be much higher, maybe the facilities for additional coaching would also be available; the atmosphere in the house will be far superior and conducive for educational upliftment"

"Per contra, the child of parent of the second category would be having only the bare minimum education; the facilities of coaching, etc., would be totally unavailable to him. He will be living in the company of his parents who do not have education and have not even been in a position to guide such a child"

"It is also commonly known that disparities and social discrimination, which is highly prevalent in the rural areas, start diminishing when one travels to the urban and metropolitan areas. 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."

"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."

"However, I may observe that taking into consideration that the Constitution itself recognizes the Scheduled Castes and Scheduled Tribes to be the most backward section of the society, the parameters for exclusion from affirmative action of the person belonging to this category may not be the same that is applicable to the other classes. If a person from such a category, by bagging the benefit of reservation achieved a position of a peon or maybe a sweeper, he would continue to belong to a socially, economically and educationally backward class. At the same time, the people from this category, who after having availed the benefits of reservation have reached the high echelons in life cannot be considered to be socially, economically and educationally backward so as to continue availing the benefit of affirmative action. They have already reached a stage where on their own accord they should walk out of the special provisions and give way to the deserving and needy."

Justice Gavai stated that finding of M. Nagaraj & others v. Union of India and others (2006), Jarnail Singh v. Lacchmi Narain Gupta and State of Punjab v. Davinder Singh(2020) to the effect that creamy layer principle is also applicable to Scheduled Castes and Scheduled Tribes lays down the correct position of law. He added that the criteria for exclusion of the creamy layer from the Scheduled Castes and Scheduled Tribes for the purpose of affirmative action could be different from the criteria as applicable to the Other Backward Classes.

Justice Vikram Nath said : "I am also in agreement with the opinion of Brother Justice Gavai that 'creamy layer' principle is also applicable to Scheduled Castes and Scheduled Tribes, and that the criteria for exclusion of creamy layer for the purpose of affirmative action could be different from the criteria as applicable to the Other Backward Classes."

System of reservation needs a fresh relook : Justice Mithal

"The policy of reservation as enshrined under the Constitution and by its various amendments requires a fresh re-look and evolvement of other methods for helping and uplifting the depressed class or the downtrodden or the persons belonging to SC/ST/OBC communities. So long no new method is evolved or adopted, the system of reservation as prevailing may continue to occupy the field with power to permit sub- classification of a class particularly scheduled caste as I would not be suggesting dismantling of an existing building without erecting a new one in its place which may prove to be more useful."

"The reservation, if any, has to be limited only for the first generation or one generation and if any generation in the family has taken advantage of the reservation and have achieved higher status, the benefit of reservation would not be logically available to the second generation."

"It is reiterated that periodical exercise has to be undertaken to exclude the class of person who after taking advantage of reservation has come to march, shoulder to shoulder with the general category."

Justice Sharma said : "On the question of applicability of the 'creamy layer principle' to Scheduled Castes and Scheduled Tribes, I find myself in agreement with the view expressed by Justice Gavai i.e., for the full realisation of substantive equality inter se the Scheduled Castes and Scheduled Tribes, the identification of the 'creamy layer' qua Scheduled Castes and Scheduled Tribes ought to become a constitutional imperative for the State."

In 2018, a 5-judge bench of the Supreme Court, in Jarnail Singh v. Lacchmi Narain Gupta, had observed in the context of reservation in promotions that creamy layer exclusion can be applied to SCs/STs.

"The whole object of reservation is to see that backward classes of citizens move forward so that they may march hand in hand with other citizens of India on an equal basis. This will not be possible if only the creamy layer within that class bag all the coveted jobs in the public sector and perpetuate themselves, leaving the rest of the class as backward as they always were. This being the case, it is clear that when a Court applies the creamy layer principle to Scheduled Castes and Scheduled Tribes, it does not in any manner tinker with the Presidential List under Articles 341 or 342 of the Constitution of India," Justice RF Nariman wrote in Jarnail Singh.

Case Details : State Of Punjab And Ors. v Davinder Singh And Ors. C.A. No. 2317/2011