Faced criticism from my own community on creamy layer principle: Ex-CJI Gavai

Former Chief Justice of India BR Gavai has said he has been “widely criticised” by people from his own community for stating in a judgement that the creamy layer principle should be applied to reservation for the Scheduled Castes. In Dr BR Ambedkar’s view, affirmative action was like providing a bicycle to someone who is lagging behind, Gavai said, asking whether Ambedkar thought that such a person should never give up the bicycle. Ambedkar did not think so, he claimed.

Gavai, who retired as CJI recently, was delivering a lecture on “Role of Affirmative Action in Promoting Equal Opportunity” at Mumbai University on Saturday.

Paying tributes to Ambedkar on his death anniversary, Gavai said the iconic leader was the architect not only of the Indian Constitution but also of the affirmative action enshrined in it.

“Babasaheb, in so far affirmative action is concerned, was of the view that it is like providing a cycle to those who are lagging behind.... Suppose somebody is at the tenth km and somebody at zero, he (the latter) should be provided a cycle, so that he reaches faster till the tenth km. From there, he joins the person who is already there and walks along with him. Did he (Ambedkar) think that the person should not leave the cycle and carry forward and thereby ask the people who are at zero km to continue to be there?” he asked.

“In my view, that was not the vision of social and economic justice as contemplated by Babasaheb Ambedkar. He wanted to bring social and economic justice in the real sense and not in a formal sense,” the former CJI added. The Indra Sawhney and Others Vs Union of India case enunciated the creamy layer principle, and in another case, he himself held that the creamy layer should also be made applicable to the Scheduled Castes, said Gavai.

The principle demands that those who are sufficiently advanced economically and socially should not get the benefit of affirmative action, even though they are members of the backward community for which it is meant.

He was “widely criticised” by the people of his own community for this judgement, Gavai said, adding that he was accused of taking benefit of the reservation himself to become a Supreme Court judge and then advocating the exclusion of those who fell in the creamy layer. But these people did not even know that there is no reservation for the constitutional office of High Court or Supreme Court judge, Gavai said. Can applying the same yardstick to the son of a chief justice of India or chief secretary and the son of a labourer who has studied in a gram panchayat school satisfy the test of equality as enshrined in the Constitution, he asked. Gavai, however, emphasised that in the last 75 years, “no doubt affirmative action has played a positive role”.

“I have travelled across the country, travelled across the world, I have seen many people belonging to the Scheduled Caste becoming chief secretary or director general of police or ambassadors and high commissioners,” he said. Maharashtra is a land of social reformers, and the “region can truly be described as the birthplace of the idea of modern India”, Gavai said. “We are all aware of Jyotirao Phule and Savitribai Phule’s pioneering work in the eradication of inequalities in society,” he said.

When women were among the most oppressed in society, it was the Phule couple who opened the door of education for them, he noted.