Govt. seeks re­view of SC/ST creamy layer

It urges the Supreme Court to re­fer the matter to a seven-judge Bench

The Hindu - - FRONT PAGE - Kr­ish­nadas Ra­jagopal

The Cen­tre on Mon­day asked the Supreme Court to re­fer to a seven-judge Bench the ques­tion whether the creamy layer con­cept should ap­ply or not to the Sched­uled Castes/Sched­uled Tribes while pro­vid­ing them reser­va­tion in pro­mo­tions.

On Septem­ber 26 last year, a five-judge Bench in the Jar­nail Singh case unan­i­mously agreed with a 2006 judg­ment of an­other five­judge Bench in the M. Na­garaj case, which had up­held the ap­pli­ca­tion of the creamy layer prin­ci­ple in pro­mo­tions. The 2018 judg­ment, au­thored by Jus­tice Ro­hin­ton F. Na­ri­man, had also re­fused the govern­ment’s plea to re­fer the 2006 Na­garaj case judg­ment to a seven-judge Bench.

On Mon­day, how­ever, At­tor­ney Gen­eral K.K. Venugopal urged the court to re­con­sider the rul­ing and re­fer the Na­garaj case judg­ment to a seven-judge Bench. A Bench, led by Chief Jus­tice of In­dia Sharad A. Bobde, agreed to hear the case af­ter two weeks.

Plea re­jected

The 2018 judg­ment, mod­i­fy­ing the part of the Na­garaj case ver­dict which re­quired the States to show quan­tifi­able data to prove the “back­ward­ness” of a Sched­uled Caste/Sched­uled Tribe in or­der to pro­vide quota in pro­mo­tion in public em­ploy­ment, had, how­ever, re­jected the Cen­tre’s ar­gu­ment that the Na­garaj case rul­ing had mis­read the creamy layer con­cept by ap­ply­ing it to the SCs/STs.

“The whole ob­ject of reser­va­tion is to see that the 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,” Jus­tice Na­ri­man had said, up­hold­ing the Na­garaj case rul­ing.

The 2018 judg­ment said that when a court ap­plies the creamy layer prin­ci­ple to the Sched­uled Castes and the Sched­uled Tribes, it does not in any man­ner tinker with the Pres­i­den­tial List un­der Ar­ti­cle 341 or 342 of the Con­sti­tu­tion. The caste or group or sub-group named in the list con­tin­ues ex­actly as be­fore, Jus­tice Na­ri­man had rea­soned.

“It is only those 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,” he had ex­plained.

He had ob­served that un­less the creamy layer prin­ci­ple was ap­plied, those gen­uinely de­serv­ing reser­va­tion would not ac­cess it and those who were un­de­serv­ing within the same class would con­tinue to get it. The court held that the prin­ci­ple was based on the fun­da­men­tal right to equal­ity. “The ben­e­fits, by and large, are snatched away by the top creamy layer of the back­ward caste or class, keep­ing the weak­est among the weak al­ways weak and leav­ing the for­tu­nate lay­ers to con­sume the whole cake,” Jus­tice Na­ri­man had ob­served.

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