'Creamy layer has to be implemented': Ex-CJI BR Gavai on SC/ST quota

Former Chief Justice of India BR Gavai said in a recent interview that the 'creamy layer' principle should apply to Scheduled Castes and Scheduled Tribes in reservations for education and jobs, a position he said drew heavy criticism from people from his own community. Answering whether a creamy layer provision should be applied for the Scheduled Tribes and Scheduled Castes, Gavai cited the view he expressed in the Davinder Singh case.

"Out of the seven (judges on that bench), four of us took a view that even in Scheduled Caste, Scheduled Tribe, the creamy layer concept has to be implemented," he said. He noted that such a provision already existed in the Other Backward Classes quota. Referring to the Supreme Court's 2024 ruling in State of Punjab v Davinder Singh, he told NDTV, "Unfortunately, society, at least the people from the Scheduled Castes, are not ready for that conversation."

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Gavai, only the second person from a Scheduled Caste community to have served as Chief Justice of India, also said he had seen misuse of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, but added that such cases were rare and could not be a ground to strike down the law.

He added that Parliament, and not the court, should consider amending the law to provide stringent penal action against those who file false complaints. The former CJI said, "Merely because the law is being misused can't be a ground to do away with that law. The better course would be to find out the ways and means as to how the people are prevented from misusing the law."

Asked more generally whether the law was misused in some cases, Gavai referred to provisions beyond the SC/ST Act and drew on his experience as a lawyer and a judge. He said that this happens even with Section 498A of the Indian Penal Code on dowry and harassment, now known as Sections 85 and 86 of the Bharatiya Nyaya Sanhita.

He added, "Similarly, in the Domestic Violence Act also, we find that many, many false allegations without any basis are made." At the same time, he said misuse of a law could not by itself make the law invalid.

Gavai said that it is upon the Parliament to come up with a stringent penal action against persons misusing the law by way of an amendment. His remarks came amid a row over the death of an IIT Bombay student by suicide, a case that has reignited debate over the alleged misuse of the SC/ST Act after the police registered a case of abetment to suicide and invoked the SC/ST Act against professor Suryanarayana Doolla and other unnamed officials. 

Asked about the IIT Bombay case, Gavai said that he would not comment on the case because he was opposed to media trials. "Any such comments, in my view, would turn the case into a media trial, and I have always been opposed to media trials," he said.

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On claims by some faculty members at IIT Bombay that they were afraid to take classes, Gavai said those fears were overstated. "I don't think that the Act has been so misused that every professor in a particular institution should be scared of going to those colleges. Fortunately, such incidents of misuse are not that common. We have seen it in very, very rare cases," he said.

He also said it was for political leaders to ensure that the issue did not turn into a conflict between communities. "It should not be permitted to be converted into a clash between one section and the other section. Because the unity of the country is paramount," he said.

Gavai also rejected the suggestion that the judiciary should step in to change the law. Stating the Supreme Court's powers are "very limited" under judicial review, he said, "We are not supposed to enact the laws. Enacting the law is the domain of the Parliament, the legislature." Only when such an Act has been found to be ultra vires the Constitution, the court can strike down such a law. And the provisions of the SC/ST Act have been found to be valid by the judgments of this court," he added.

On whether arrest was mandatory once an FIR was registered under the Act, Gavai said, "No, no, if they find that these provisions have been misused only to harass them, the person can always knock the doors of the court, and the court is not powerless to give its protection."

He said, "Persons who have reached a particular level, if they continue to enjoy the reservation, that is against the concept of social and economic justice as envisioned by Dr Ambedkar."