States must exclude creamy layer from SC/ST quota: Justice Gavai

States must evolve a policy for identifying the creamy layer even among the Scheduled Castes and Schedule Tribes and deny them the benefit of reservation, Supreme Court judge Justice BR Gavai said on Thursday.

Justice Gavai penned a separate but concurring judgement in which the top court by a majority verdict said states are empowered to make sub-classifications of Scheduled Castes and Scheduled Tribes for granting quotas within the reserved category to uplift those who belong to the more underprivileged castes.

A seven-judge constitution bench headed by Chief Justice DY Chandrachud held by a 6:1 majority that further sub-classification of SCs and STs by states can be permitted to ensure quotas for castes that are more backward among them.

Four out of the six judges who agreed that states are empowered to make sub-classifications wrote in their separate judgments that those in the creamy layer must be excluded from enjoying the benefits of reservation.

Justice Gavai, who wrote a 281-page separate but concurring verdict, said it is the duty of the State to give preferential treatment to the backward class of citizens who are not adequately represented in government jobs.

"The State must evolve a policy for identifying the creamy layer even from the Scheduled Castes and Scheduled Tribes so as exclude them from the benefit of affirmative action. In my view, only this and this alone can achieve the real equality as enshrined under the Constitution," Justice Gavai said.

The top court judge said children belonging to Scheduled Caste people who have got the benefit of reservation cannot be put on the same pedestal as those who have not.

Justice Vikram Nath said he agreed with Justice Gavai that the creamy layer principle is also applicable to SCs and STs, and that the "criteria for exclusion of creamy layer for the purpose of affirmative action could be different from the criteria as applicable to the Other Backward Classes".

Justice Pankaj Mithal said a periodic exercise has to be undertaken to exclude the class of persons, who after taking advantage of reservation, has come to march shoulder to shoulder with the general category.

"The reservation, if any, has to be limited only for the first generation or one generation and if any generation in the family has taken advantage of the reservation and have achieved higher status, the benefit of reservation would not be logically available to the second generation," Justice Mithal said.

Concurring with the views of Justice Gavai, Justice Satish Chandra Sharma said identification of creamy layer with regard to SC/ST ought to become a constitutional imperative for the State.

The top court had reserved the verdict on February 8 on pleas seeking review of the EV Chinnaiah judgement, which had in 2004 held that all schedule caste communities that suffered ostracisation, discrimination and humiliation for centuries represented a homogeneous class incapable of being sub-categorised.

The verdict came on references to revisit the 2004 judgement by a five-judge constitution bench in the case of EV Chinnaiah vs State of Andhra Pradesh in which it was held that SCs and STs are homogeneous groups and states cannot further sub-classify them to grant quota inside quota for more deprived and weaker castes in these groups.