CREAMY LAYER APPLICABLE IN SC/ST QUOTA: SC

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CREAMY LAYER APPLICABLE IN SC/ST QUOTA: SC

New Delhi.  In a landmark decision, the Supreme Court on Wednesday held that the concept of creamy layer shall be applicable in reservation in promotions for the Scheduled Castes and Scheduled Tribes.

A five-judge bench presided over by Chief Justice Dipak Misra ruled that a constitutional court is empowered to strike down any reservation for creamy layer among the most backward classes.

Justice Rohinton F Nariman, who authored the judgement on behalf of the bench, said the Presidential Lists under Articles 341 or 342 of the Constitution may include any group or community as SC or ST but the principle of creamy layer can be applied by a court on the touchstone of equality within the same group or sub-group. “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,” the bench said. “When it comes to the creamy layer principle, it is important to note that this principle sounds in Articles 14 and 16(1), as unequals within the same class are being treated equally with other members of that class,” the bench added. No tinkering It pointed out that when a court applies the creamy layer principle to SC and ST, it does not in any manner tinker with the Presidential List. “It is only those persons within that group or sub-group, who have come out of untouchability or backwardness by virtue of belonging to the creamy layer, who are excluded from the benefit of reservation,” the court said.

The court did not agree with a contention of the central government that the concept of a creamy layer cannot be applied to SC/ST grouping. Applying the principle of harmonious interpretation, the court said Parliament will have complete freedom to include or exclude persons from the Presidential Lists based on relevant factors. But the constitutional court would be within its jurisdiction to exclude the creamy layer from such groups or sub-groups, the court said.

The court said it does not agree with the views of former CJI K G Balakrishnan in Ashoka Kumar Thakur’s case that the creamy layer principle is merely a principle of identification and not a principle of equality. The bench also turned down the plea to refer the 2006 M Nagaraj judgement to a seven-judge bench for reconsideration in so far as it laid down various conditions.

The court maintained that while the previous judgement was absolutely right in laying down the concept of creamy layer among SC/ST groups, it was incorrect to prescribe a test of backwardness. The court said that states would no longer require to collect quantifiable data to determine backwardness of these groups as it was contrary to Indira Sawhney judgement (Mandal) by a nine-judge bench. Efficiency must However, the bench affirmed the other two conditions laid down in M Nagaraj’s judgement – quantifiable data on the inadequacy of representation and overall administrative efficiency. The court also declined a plea by the Union government that reservation for SCs and STs should be in proportion to their total population in promotional posts.

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