State Must Evolve Policy To Identify "Creamy Layer" To Exclude Them From Benefit Of SC & ST Reservation: Apex Court

The Supreme Court, while holding that the sub-categorisation and sub-division of the Scheduled Castes ('SCs') and Scheduled Tribes('STs') are permissible, has held that for the benefit of affirmative action, the "Creamy Layer" should be excluded from the reservations given to SCs/STs. 

The 7-Judges Bench today i.e. August 1, 2024, with 6:1 majority, has overruled the judgment in EV Chinniah v. State of Andhra Pradesh (2006 SC) and held that Sub-classification within the Scheduled Castes does not violate Article 341(2) because the castes are not per se included in or excluded from the List, hence, permissible. Justice Bela M Trivedi gave the dissenting opinion. 

Justice B.R. Gavai., Justice Vikram Nath, Justice Pankaj Mithal and Justice SC Sharma have also held that 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.

Justice Gavai, while referring to BR Ambedkar's What Gandhi and Congress have done to Untouchables, Chap. VII., has held, "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...I am therefore of the view that the State must evolve a policy for identifying the creamy layer even from the Scheduled Castes and Scheduled Tribes so as 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 Nath concurred, "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."

Similarly, Justice Mithal held, "It has rightly been stated by my brother Justice Gavai in his opinion that Justice Krishna Iyer in N. M. Thomas (supra) has repeatedly observed that State is entitled to take steps for weeding out socially, economically and educationally advanced sections of scheduled castes and scheduled tribes from the ambit of reservation...It has rightly been observed that a child studying in St. Stephen’s College or any good urban college cannot be equated with a child studying in a rural school/college and that he cannot be grouped into a same bracket...In these circumstances my brother Justice Gavai has rightly concluded that the State must evolve a policy of identifying the creamy layer even from the scheduled castes and scheduled tribes so as to exclude them from the benefit of reservation."

Justice Sharma added, "However, 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."

Justice Pankaj Mithal also held that the reservation must be limited only to the first generation and that it must be on some criteria other than caste since the Constitution does not have a caste system and the country has moved into a caste-less society.

Justice Bela M Trivedi pronounced the dissenting opinion, and started by saying that dissent is important to strengthen the law in future for the democratic functioning of the judiciary. The judge held that the manner in which the three-judge bench referred the matter to a larger bench without assigning reasons was not proper. The Judge held that only the Parliament can modify the list of SCs or STs and that even the President cannot modify the same with a notification. She held that the sub-classification by the state will amount to tinkering with the notification issued by the President. She also held that sub-classification will amount to discrimination against the excluded categories. Justice Trivedi held that the decision in E.V.Chinnaiah v. State of Andhra Pradesh is correct.

The judgment was reserved on February 8, 2024. The matter was referred to a 7-judge bench by a 5-judge bench in the year 2020 in the case of State of Punjab v. Davinder Singh. The 5-judge bench held that the judgment of the coordinate bench in the case of E.V.Chinnaiah v. State of Andhra Pradesh, (2005 SC) observing that sub-classification was not permissible, was required to be reconsidered.

Cause Title: The State of Punjab and Ors. v. Davinder Singh and Ors. (Neutral Citation: 2024 INSC 562)

Click here to read/download the Judgment