Executive, legislature to take call on exclusion from reservation: SC

New Delhi: The Supreme Court on Thursday said the executive and the legislature would decide whether persons, who had availed quota benefits and were in a position to compete with others, were to be excluded from reservation. A bench of Justices B R Gavai and Augustine George Masih made the observation on a plea referring to a seven-judge Constitution bench judgment of the apex court in August last year.

"We have given our view that taking into consideration the past 75 years, such persons who have already availed benefits and are in a position to compete with others, should be excluded from reservation. But it is a call to be taken by the executive and the legislature," said Justice Gavai.

The Constitution bench, by a majority verdict, held states were constitutionally empowered to make sub-classifications within the scheduled castes (SC), which form a socially heterogeneous class, for granting reservation for the upliftment of castes that were socially and educationally more backward among them.


Justice Gavai, who was part of the Constitution bench and penned a separate verdict, had said states must evolve a policy for identifying the "creamy layer" even among the SCs and schedule tribes and deny them the benefit of reservation.

On Thursday, the counsel appearing for the petitioner referred to the apex court's verdict asking for the policy to identify such a "creamy layer".

Justice Gavai said the apex court's view was that the sub-classification was permissible.

The petitioner's counsel said the Constitution bench had directed states to formulate the policy and almost six months had passed since.

"We are not inclined," the bench said.

When the counsel requested to withdraw the plea to file a representation before the authority concerned, which could decide on the issue, the bench allowed it.

He argued states would not frame the policy and eventually the top court would have to intervene, to which the court said, "The legislators are there. Legislators can enact a law."

On August 1 last year, the apex court's verdict was clear on the states making a sub-classification on the basis of "quantifiable and demonstrable data" of backwardness and representation in government jobs and not on "whims" and as a matter of "political expediency".

The seven-judge bench, by a majority of 6:1, set aside the apex court's five-judge bench verdict of 2004 in the E V Chinnaiah v. state of Andhra Pradesh case which held no sub-classification of SCs could be allowed as they were a homogeneous class in themselves.