Opposing PILs seeking introduction of an income-based sub-quota within reserved categories, the Centre has told the Supreme Court that the principle of creamy layer was not applicable to reservation for Scheduled Castes (SCs) and Scheduled Tribes (STs).Filed by Ramashankar Prajapati and others, and advocate Ashwini Upadhyay, the PILs had sought implementation of the “creamy layer” principle in reservation for SCs and STs, and a direction to the Centre to frame policies for a more equitable system of reservation in government employment.Asserting that no direction can be issued to the executive to frame policy in a particular manner, which is beyond the judicial domain, the Centre requested the top court to dismiss PILs as they did not disclose any infringement of the fundamental rights under the Constitution.In an affidavit filed in the court, the Social Justice and Empowerment Ministry said, “That modification of reservation policy, particularly to introduce income-based preferences within reserved categories, should be preceded by a holistic review and thorough empirical study, including socio-economic data of reserved category beneficiaries.””It has nowhere specifically been held that the principle of creamy layer is applicable to SCs and STs. The reference made to the concept of creamy layer appears to be the general observation with regard to reservation in respect of OBCs (Other Backward Classes)/SEBCs (Socially and Educationally Backward Classes),” it said“The criteria for inclusion in the Scheduled Caste, Scheduled Tribe, and Socially and Educationally Backward Class lists are based on historical, social, and economic backwardness. Scheduled Castes face historical disadvantage from untouchability, while Scheduled Tribes exhibit distinct cultures, geographical isolation, and backwardness. Socially and Educationally Backward Classes are identified by social, educational, and economic disadvantages, along with a lack of representation in services.“These criteria are not spelt out in the Constitution but have become well established. Thus, the identification of Scheduled Castes (SCs), Scheduled Tribes (STs), and Socially and Educationally Backward Classes (SEBCs)/Other Backward Classes (OBCs) is based on historical and social criteria like caste, tribe, and social backwardness, not solely on economic status,” the Centre submitted.Currently, creamy layer criteria are applicable only to Other Backward Classes (OBCs) in order to exclude the better-offs among them from quota benefits, in terms of the 1992 nine-judge Constitution Bench verdict of the Supreme Court in the Indira Sawhney case.In its August 1, 2024 verdict, a seven-judge Constitution Bench of the Supreme Court had said the State must evolve a policy for identifying the creamy layer from the Scheduled Castes and Scheduled Tribes so as exclude them from the benefit of reservation.However, four of the six judges on the seven-judge Bench led by CJI DY Chandrachud (since retired) – which ruled by a 6:1 majority that sub-classification in Scheduled Castes and Scheduled Tribes was permissible for the purpose of reservation – had said the creamy layer among the Scheduled Castes and Scheduled Tribes should be identified and excluded from reservation.“In my view, only this and this alone can achieve the real equality as enshrined under the Constitution,” wrote Justice BR Gavai (since retired) in his verdict.Justice Gavai said that the criteria for exclusion of the creamy layer from the Scheduled Castes and Scheduled Tribes for the purpose of affirmative action could be different from those applicable to the Other Backward Classes.