4 min readMumbaiDec 7, 2025 08:45 AM IST
First published on: Dec 7, 2025 at 08:45 AM IST
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.”
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.
Chief Justice Bhushan Gavai in Mumbai for Loksatta Lecture Series 2025. (Express Photo by Akash Patil) 
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)
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