On criticism of creamy layer verdict: ‘Can same yardsticks apply to CJI & labourer’s children,’ asks Gavai
The seven-judge Constitution bench of the Supreme Court, in August last year, in a 6:1 ruling, held that the Scheduled Castes can be sub-classified for providing reservation to the privileged among them.
Retired Chief Justice of India (CJI) Bhushan R Gavai said on Saturday that he was widely criticised for a judgment that laid down that the concept of the creamy layer should also be extended to Scheduled Castes (SCs). He said the allegations were made with “basic ignorance of the Constitutional provisions” and posed a question whether same yardsticks can be applied to the son of the CJI and that of a labourer.
The seven-judge Constitution bench of the Supreme Court, in August last year, in a 6:1 ruling, held that the Scheduled Castes can be sub-classified for providing reservation to the privileged among them. Justice Gavai, who was part of the bench, had held that the creamy layer within Scheduled Castes be kept out of benefits from reservation.
“I have been widely criticised by the people from my own community with regard to that judgment. I was the sitting judge and therefore it was not proper on my part to make any comment thereon. In any case, the judges are not supposed to discuss about their judgment but now since I am retired… I was accused that I have taken the advantages of reservation and reached up to the post of the Chief Justice and now he advocates the creamy layer principle. The allegations made are with basic ignorance of the Constitutional provisions.”
“The persons who have made allegations do not even know that there is no reservation for Constitutional office of the High Court judge or the Supreme court judge. The persons from these (SCs) categories have to compete with others to get appointed as HC judge or as Supreme Court judge or Chief Justice. Normally you go by the seniority and if you serve by that date and if you are not 65-year-old, you get a chance to become CJI.”
Justice Gavai, who was part of the bench, had held that the creamy layer within Scheduled Castes be kept out of benefits from reservation. (Express Photo by Akash Patil)
“It was sought to be projected (by critics) that I am the first one who is trying to advocate the concept of creamy layer. But I am not the first one to talk about the creamy layer. In 1976, Justice V R Krishna Iyer referred to it (State of Kerala V Thomas)… We were only reiterating the law as laid down by Supreme Court. We believe in the law of precedents, and judges do follow precedents as laid down in the earlier judgments… In last 75 years, no doubt that the affirmative action has played a positive role.””
Justice Gavai went on to say, “I would pose certain questions to the people of India and seek answer as to whether I am right or wrong. The first question I ask is whether applying the same yardsticks to the son of the CJI or the Chief Secretary and a son of a labourer who studied in the gram panchayat or nagar panchayat school would satisfy the test of equality as enshrined in the trinity of Article 14, 15 and 16.”
He also questioned whether, treating sons of Chief Secretary and a labourer, whose schools are from different atmospheres at par, would amount to “applying the same law for the lion and ox as referred by the Supreme Court in 1976 case, the State of Kerala v N M Thomas.”
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The last question he posed was whether it was justified that generations after generations have availed the benefits of reservation and marched ahead while those left much behind are still asked to compete with them. “Would it be in a real sense permissible under the equality clause as enshrined in trinity of Articles 14, 15 and 16?”
Justice Gavai, while in conversation with Chief Editor of Loksatta Girish Kuber after his address said that one of his law clerks, a son of a senior IAS officer decided not to avail benefits of the reservation after the ‘creamy layer’ verdict. “He (law clerk) was always wondering as to how he should get a reservation, because his father is a senior IAS officer, he was going to the best of the schools. He said that after reading the judgment, his confusion was resolved,” Justice Gavai said.
Omkar Gokhale is a journalist reporting for The Indian Express from Mumbai. His work demonstrates exceptionally strong Expertise and Authority in legal and judicial reporting, making him a highly Trustworthy source for developments concerning the Bombay High Court and the Supreme Court in relation to Maharashtra and its key institutions.
Expertise & Authority
Affiliation: Reports for The Indian Express, a national newspaper known for its rigorous journalistic standards, lending significant Trustworthiness to his legal coverage.
Core Authority & Specialization: Omkar Gokhale's work is almost exclusively dedicated to the complex field of legal affairs and jurisprudence, specializing in:
Bombay High Court Coverage: He provides detailed, real-time reports on the orders, observations, and decisions of the Bombay High Court's principal and regional benches. Key subjects include:
Fundamental Rights & Environment: Cases on air pollution, the right to life of residents affected by dumping sites, and judicial intervention on critical infrastructure (e.g., Ghodbunder Road potholes).
Civil & Criminal Law: Reporting on significant bail orders (e.g., Elgaar Parishad case), compensation for rail-related deaths, and disputes involving high-profile individuals (e.g., Raj Kundra and Shilpa Shetty).
Constitutional and Supreme Court Matters: Reports and analysis on key legal principles and Supreme Court warnings concerning Maharashtra, such as those related to local body elections, reservations, and the creamy layer verdict.
Governance and Institution Oversight: Covers court rulings impacting public bodies like the BMC (regularisation of illegal structures) and the State Election Commission (postponement of polls), showcasing a focus on judicial accountability.
Legal Interpretation: Reports on public speeches and observations by prominent judicial figures (e.g., former Chief Justice B. R. Gavai) on topics like free speech, gender equality, and institutional challenges.
Omkar Gokhale's consistent, focused reporting on the judiciary establishes him as a definitive and authoritative voice for legal developments originating from Mumbai and impacting the entire state of Maharashtra. ... Read More
Justice Gavai, who was part of the bench, had held that the creamy layer within Scheduled Castes be kept out of benefits from reservation. (Express Photo by Akash Patil)
