The Centre on Monday urged the Supreme Court to set up a seven-judge bench to revisit the 2018 ruling that sought to exclude “creamy layer” within the Scheduled Castes and Scheduled Tribes from reservation benefits, reported Bar and Bench. The court will take up the request after two weeks.
The term “creamy layer” is used for those above an income ceiling in an otherwise reserved category, and hence, ineligible for reservations in government jobs and education. This was earlier only applicable for reservations only under the Other Backward Classes quota. Dalits and Adivasis were excluded since it was argued that their backwardness was based purely on untouchability, for which economic improvement was not a remedy.
However, in September 2018, a five-judge Constitution Bench hearing the Jarnail Singh case held that the concept of “creamy layer” can be applied to Scheduled Castes and Scheduled Tribes also.
On Monday, Attorney General KK Venugopal expressed doubt over the correctness of the September 2018 judgement. “We want the matter to be now heard by a seven-judge bench,” he told a bench headed by Chief Justice of India SA Bobde. “The creamy layer concept cannot be applied to SC/ST.”
Senior lawyer Gopal Sankaranarayanan, appearing for Samta Andolan Samiti that represents the poor and downtrodden strata of SC/ST communities in Rajasthan, opposed Venugopal. He said the 2018 ruling was unequivocal. “This cannot become an annual affair,” he said, according to News18. “The 2018 judgment is absolutely clear on the concept of creamy layer within SC/ST communities. This cannot be reopened.”
Last year’s judgement said that the application of the principle to the SC/STs does not go against Articles 341 and 342 of the Constitution. “It will only exclude those individuals from availing the benefit of the reservation who have come out of untouchability or backwardness on account of belonging to the creamy layer,” read the judgement.
The 2018 judgement came after the court revisited its 2006 ruling in the M Nagaraj vs Union of India case. In 2006, the court had held that the state is not bound to make reservations for Scheduled Castes and Scheduled Tribes in promotions in government jobs. But if the government wishes to introduce such quotas, it needs to collect quantifiable data showing the backwardness of these classes, the top court had said. The order said that if reservation is brought in, it must not breach the 50% ceiling or “obliterate” the “creamy layer”.