The recent Supreme Court ruling of August 1, has permitted sub-classification of Scheduled Castes and Scheduled Tribes with the intention of granting separate quotas for those more backward within these communities. The 7-member bench comprising Chief Justice of India DY Chandrachud along with Justices BR Gavai, Vikram Nath, Bela Trivedi, Pankaj Mithal, Satish Chandra Sharma, and Manoj Misra, saw a majority of six judges in favour of sub-classification, with Justice Trivedi dissenting. Justice B R Gavai observed that, “the State must evolve a policy for identifying the creamy layer even from the Scheduled Castes (SCs) and Scheduled Tribes (STs) so as to exclude them from the benefit of affirmative action.” The term creamy layer which refers to those from among the SCs and STs who have benefitted from the reservation policy and so too their children, was first mentioned in the Indra Sawhney ruling of 1992. Based on the recommendation of the Mandal Commission, the V P Singh government had on August 13, 1990, notified 27% reservation for Socially and Educationally Backward Classes (OBC reservation) in civil posts and services. This was challenged in the Supreme Court by Indra Sawhney and others
In November 16, 1992 However, a nine-judge Bench headed by Justice B P Jeevan Reddy, upheld the 27% OBC reservation subject to exclusion of the creamy layer, or the more socially, economically, and educationally advanced members among the OBCs. This was done in order to ensure that reservation benefits go to those who need it the most.The logic of determining the creamy layer was made by an expert committee headed by the retired Justice Ram Nandan Prasad, which was constituted following the Indra Sawhney judgement. Based on the committee’s report (March 10, 1993), the Department of Personnel and Training (DoPT) listed six categories of people whose children would be considered to fall in the creamy layer. These are: Constitutional/statutory post; Group ‘A’ and group ‘B’ officers of central and state governments, employees of PSUs and statutory bodies, universities; Colonel and above in armed forces and equivalent in paramilitary forces; Professionals like doctors, lawyers, management consultants, engineers etc; Property owners with agricultural holdings or vacant land and/or buildings; and Income/wealth tax assessee
Justice Pankaj Mithal’s opinion on the issue is 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 child cannot be grouped into the same bracket. That said, the apex court ruling leaves the final decision to states on whether to create a creamy layer exception and if so, how to do it. They will likely have to constitute a committee on the lines of the Justice R N Prasad Committee for OBC reservations.The judgement, delivered by. Justice Pankaj Mithal argued that reservations should be limited to the first generation. Once a member of the first generation attains a higher status through reservations, the subsequent generation should not be entitled to the same benefits.The recent judgment bends towards ensuring social justice because today in tribal societies there is a yawning gap between the haves and have- nots. And it is only fair that those deprived since decades should get their share of the reservation quota. This is an imperative that can no longer be ignored.
