New Delhi:
The Supreme Court has refused to hear the creamy layer reservation issue. The Supreme Court said that it is the job of the executive and the legislature to decide who should be kept out of reservation and who not. The executive and the legislature will decide whether those who have taken advantage of the quota and are in a position to compete with others should be kept out of reservation or not.
A bench of Justices BR Gavai and Justice Augustine George Masih made this comment while hearing a petition citing the decision of a seven-judge Constitution bench of the Supreme Court in August last year. Justice Gavai said that we have given our view that keeping in mind the last 75 years, people who have already benefited and who are in a position to compete with others should be kept out of reservation. But this is a decision to be taken by the executive and the legislature.
In fact, the Constitution Bench had said in the judgment that the states have the constitutional right to make sub-classification within the Scheduled Castes (SC), so that reservation can be given for the upliftment of those castes which are more socially and educationally backward.
Justice Gavai, who was part of the Constitution bench and wrote a separate judgement, had said that states should also formulate a policy to identify the “creamy layer” among the Scheduled Castes and Scheduled Tribes and deny them the benefits of reservation.
On Thursday, the lawyer appearing for the petitioner cited the Supreme Court’s decision in which it had been asked to formulate a policy to identify such “creamy layer”. Justice Gavai said that the Supreme Court is of the view that sub-classification is allowed. The petitioner’s lawyer said that the Constitution Bench had directed the states to formulate the policy and almost six months have passed. On this the bench said that we are not willing to consider it. When the lawyer requested to withdraw the petition to go before the concerned authority, the bench allowed it.
The lawyer said that the state will not make the policy and ultimately the apex court will have to intervene. On this the court said that the law makers are there, only they can make laws.
On August 1 last year, the Supreme Court had made it clear in its decision that states can do sub-categorization on the basis of backwardness and figures of representation in government jobs, and not on the basis of their thinking and political gain.
The seven-judge bench by a majority (6:1) overruled the 2004 judgment of a five-judge bench of the Supreme Court in the case of EV Chinnaiah v. State of Andhra Pradesh, which had held that there was no sub-categorization of Scheduled Castes Can be known because they themselves are a homogeneous class.