Can't equate child of chief secy with labourer's kid, says CJI on creamy layer

Panaji: Chief Justice of India B R Gavai said on Saturday that Article 14 of the Constitution doesn’t provide that there has to be equal treatment for everyone. "What is contemplated is unequal treatment to unequals, so that they become equal,” he said.

Gavai, India's second Dalit CJI, said he was “widely criticised” by people belonging to his own community for his judgment recognising the need to apply the creamy layer principle within scheduled castes and scheduled tribes. “But I always believed that I have to write my judgments not by the demands or desires of people, but as I understand the law and as per my own conscience,” he said.

Gavai was speaking in Dona Paula at a programme organised by the Goa high court bar association to felicitate him.
Explaining his stance, he said, “The reason that weighed with me was that I have seen a first-generation person become an IAS officer from a reserved category. In the second generation, his son again becomes an IAS officer from the reserved category, and again in the third generation, a person becomes IAS from the same category. The question I put to myself was this: Is the son or daughter of a person who gets their education from the best of schools in Mumbai or New Delhi to be equated with the son or daughter of a mason or agricultural labourer residing in a village and receiving their education from a zilla parishad or gram panchayat school?”

“Therefore, putting the child of a labourer residing in a village and a child of a chief secretary residing in Mumbai and studying in the best of schools with the best of facilities (at the same level), in my view, hits at the very basic concept of equality, and fortunately, my view was supported by three other judges of the Supreme Court,” he said.
Gavai also spoke about the landmark judgment on bulldozer demolitions in Uttar Pradesh, in which his bench protected the rights of citizens whose houses were being demolished without following procedure of law. He said that if the executive itself is permitted to be a judge, this would hit at the very concept of separation of power recognised by the Constitution.

“I am happy we could lay down guidelines and could prohibit the executive from becoming a judge. The Constitution recognises separation of powers—of the executive, judiciary, and legislature—and if the executive itself is permitted to be a judge, then we will be hitting at the very concept of separation of power,” he said.
He said that the houses of people who were not even tried but only accused of certain charges were being demolished without due procedure of law, and families of the accused also living in the houses were made to suffer for no fault of theirs. “Even if a person is convicted, he is still entitled to the rule of law, and the rule of law is paramount in our country,” he said. “I’m really happy that we could do something as the custodian of the Constitution for protecting the rights of citizens whose houses were being demolished without following any procedure prescribed by law.”



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