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Chief Justice of India B R Gavai Friday said he faced severe criticism from his own community for the judgment that the creamy layer principle in reservation should be extended to Scheduled Castes too.
Speaking at his farewell organised by the Supreme Court Bar Association (SCBA) on Friday, his last day in office, CJI Gavai also called out the politics over the issue saying, “at times politics plays more important role than logic”. CJI Gavai will retire on November 23 and CJI-designate Justice Surya Kant will succeed him on November 24.
In a 6:1 ruling, an SC bench headed by the then CJI, D Y Chandrachud, had on August 1, 2024 held that Scheduled Castes can be sub-classified for the purpose of providing reservation to the less-privileged among them. CJI Gavai who was part of the bench had also ruled that creamy layer among SCs be kept out of reservation benefits.
“I have been very severely criticised in my community with regard to that judgment. Fortunately three of my colleagues… supported my view…,” the CJI said. “I gave an example as to whether the son of a chief secretary studying in the best of colleges in Delhi, say St Stephen’s, can be made to compete with the son of an agricultural labourer studying in a gram panchayat or zilla parishad school? Article 14 speaks of equality but equality does not mean equal treatment to all. Dr Ambedkar said if we give equal treatment to all rather than reducing inequality it will lead to further inequality. Therefore, a special treatment to those lagging behind is what the equality concept requires to be done.”
“…However, at times, politics plays a more important role than logic…. I am happy that when I penned down that judgment, one of my own law clerks, who is the son of a senior officer from Maharashtra and belongs to a Scheduled Caste, said all the while this issue troubled (him)… ‘I am getting the best of education then why should I get benefit of Scheduled Castes?’ He said hereinafter he will not take any benefit of (being an) SC. That one boy understood what politicians refuse to understand for reasons best known to them,” the CJI said.
On his recent verdict quashing key provisions of the 2021 Tribunals Reforms law, the CJI said freedom of tribunals cannot be compromised. Hearing the plea challenging the Tribunal Reforms (Rationalisation and Conditions of Service) Act, 2021, CJI Gavai had expressed displeasure with Attorney General R Venkataramni for seeking adjournment in the matter and asked if it was because the government does not want him to hear it.
On Friday he said: “In a recent matter where the Attorney General was appearing, we had some awkward situations but there was nothing personal. We held that independence of the judiciary is one of the basic features of the Constitution… Tribunals are…part of the judicial system and their independence cannot be compromised.”
Recalling his journey from a humble background to the top court, CJI Gavai, the only second Dalit Chief Justice of India after K G Balakrishnan, said the Constitution and the values of his parents made it possible. “I am very satisfied with the journey which started 40 years ago,” the CJI said, recalling the incidents and cases which he dealt with in his career.
He said “one of the most important judgments that I considered with regard to importance of rule of law…” was the one against what is “popularly known as bulldozer justice or demolition justice”.
The CJI said, “Right to shelter is a fundamental right and merely because somebody is suspected or for that matter, somebody is convicted, his family who are residing in that house cannot be thrown away. Their office cannot be demolished.”
Liberty is another pillar of the Constitution which is close to my heart”, CJI Gavai said. In an apparent reference to the instance when a bench comprising him and Justices A S Bopanna (since retired) and Dipankar Datta sat after 9 pm on July 1, 2023, to grant interim protection to activist Teesta Setalvad, he said: “I was surprised as to when a person was given interim bail by this court, the learned judge had refused to grant protection even for 48 hours. The order was passed on Saturday… In such matters if the Supreme Court does not interfere, then can it have a right to be called custodian of the liberty of citizens?” The bench went on to stay the Gujarat High Court order passed earlier in the day, rejecting her plea for regular bail and asking her to surrender immediately in a case linked to the 2002 Gujarat riots.
Justice Surya Kant was effusive in his praise for the outgoing CJI during the farewell proceedings in the forenoon before the ceremonial bench. “He (CJI Gavai) was more than a colleague… he was my brother and a confidant, and a man of immense integrity,” Justice Surya Kant said. “He handled cases with patience and dignity. He encouraged young lawyers. His firmness was always laced with humour… Not a single day went by when he didn’t threaten an insistent lawyer with costs but he never imposed one,” he said
Speaking at the farewell function, SCBA president Vikas Singh said CJI Gavai restored the dignity of the bar and always believed that bar and bench were two sides of the same coin. “When he (CJI Gavai) became the Chief Justice of India, he immediately restored the mentioning which was stopped earlier. He restored the letter circulation, which was a big problem at the bar.”
He said CJI Gavai and CJI-designate Justice Surya Kant are both first-generation lawyers, and this fact would encourage budding lawyers who had no family members in the legal profession. “This is important because a lot of people talk about nepotism in the profession and about elevation (as judges). If there had been nepotism, then this could never have happened,” Singh said.
