The Centre urged the Supreme Court on Monday (December 2) to refer its last year’s verdict excluding the creamy layer within the SC/ST community from reservation benefits to a 7-judge bench for a review.
A 5-judge Constitution bench in 2018 held that the well-off members of the Scheduled Castes (SCs) and Scheduled Tribe (ST) communities cannot be granted the benefits of reservation in college admissions and government jobs.
The top court in the Jarnail Singh case had said that the Constitutional courts in implementing the principle of the reservation will be within their jurisdiction to exclude the creamy layer from such groups or sub-groups from quota benefits by applying the principle of equality.
A bench comprising Chief Justice SA Bobde and justices BR Gavai and Surya Kant took note of the submissions of Attorney General KK Venugopal, appearing for the Centre, that the matter be referred to a 7-judge bench as the creamy layer exclusion principle cannot be made applicable to SCs and STs.
“This a very emotive issue. I want this aspect to be referred to a larger seven judge bench as the creamy layer principle cannot be made applicable to these categories,” the top law officer said.
The principle distinguishes between well-off people from the disadvantaged sections for not according the benefits of quota and presently, it applies for backward classes in pursuance of the 9-judge bench judgement in the Indra Sawhney case, also known as the Mandal case.
Senior advocate Gopal Sankaranarayan, appearing for Samta Andolan Samiti, opposed the submissions.
The bench, which fixed the pleas for hearing after two weeks, meanwhile issued notices to the Centre and the National Commission for SCs on a fresh PIL filed by O P Shukla, President of National Coordination Committee for Revision of Reservation Policy, and M L Sarwan, a former IAS officer, on the issue.
The PIL has sought proper apportionment of benefits of affirmative action to “genuinely needy and deserving SC/STs” after identifying and removing those who, after enjoying long and continued benefit of reservation, are no longer identified as backward classes among the communities.
“Issue a writ to the Government of India to amend the Constitution (Scheduled Castes) Order, 1950 and the Constitution (Scheduled Tribes) order 1950, issued in exercise of the power vested under Articles 341 and 342 of the Constitution after evolving and undertaking an objective and rational test for identification of creamy layer amongst the SCs and STs and separating the same from the non-creamy layers SCs/STs,” the plea said.
The plea said that so far, the governments has not identified the creamy layer from amongst SCs/STs and as a result the well-off persons of these communities have availed of benefits of quota at the cost of under-privileged members of the same groups.
It said the plea was limited to the quota granted to SCs and STs in government jobs and admissions in public educational institutions.
The top court, in its September last year judgement, had paved the way for grant of quota for promotions in the government jobs to SCs and STs and held that the states were not required to “collect quantifiable data” reflecting the backwardness among these communities.
The matter had travelled to a 5-judge Constitution bench, which declined the demand to refer it to a seven-judge bench to reconsider its 2006 judgement that had put certain conditions for granting quota benefits in job promotions for SC/ST employees.
The apex court had clarified that there was no need to revisit its 12-year-old verdict in the M Nagaraj case which had said that the states were bound to provide quantifiable data on the backwardness of SC/ST, the facts about their inadequate representation in government jobs and the overall administrative efficiency, before providing them quota in promotions.