Exclusion principleWhile the CJI did not get into the creamy layer debate, the lone Dalit on the bench, Justice Gavai, dwelt at length on it and ruled that it should apply to SC/STs as well. He built his argument by citing a 1981 ruling of Justice V R Krishna Iyer in the Akhil Bharatiya Soshit Karamchari Sangh case, where the latter had observed that “A swallow does not make a summer. Maybe, the State may, when social conditions warrant, justifiably restrict Harijan benefits to the Harijans among the Harijans and forbid the higher Harijans from robbing the lowlier brethren.” Justice Iyer went on to suggest that the administration could innovate to weed out the creamy layer among the SC/STs, but it shall not be imposed by the court.Justice Chinnappa Reddy in the K C Vasanth Kumar case ruling in 1985 said, “a few members of those caste or social groups (SC/STs) may have progressed far enough and forged ahead so as to compare favourably with the leading forward classes economically, socially and educationally. In such cases, perhaps an upper income ceiling would secure the benefit of reservation to such of these members of the class who really deserve it.”In the M Nagaraj verdict in 2006, the court applied the principle of quantifiable data and creamy layer even for SC/STs. But the Jarnail Singh case verdict in 2021, held M Nagaraj’s requirement of quantifiable data of backwardness of SC/STs as invalid. But it upheld the applicability of the creamy layer principle even to SC/STs taken in M Nagaraj. In doing so, Jarnail Singh was basically relying on the judgment of a seven-judge bench in N M Thomas case in 1975 that considered the question of affirmative action for SC/STs.In N M Thomas, Justice Krishna Iyer observed that the state is entitled to take steps to weed out the socially, economically and educationally advanced sections of the SC/STs from the applicability of reservation.
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