http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 73  

CASE NO.: Writ Petition (civil)  265 of 2006

PETITIONER: ASHOKA KUMAR THAKUR

RESPONDENT: UNION OF INDIA & ORS

DATE OF JUDGMENT: 10/04/2008

BENCH: CJI K.G. BALAKRISHNAN

JUDGMENT: J U D G M E N T REPORTABLE

WRIT PETITION (CIVIL) NO. 265 OF 2006 WITH Writ Petition (C) No. 269/2006 Writ Petition (C) No. 598/2006 Writ Petition (C) No. 29/2007 Writ Petition (C) No. 35/2007 Writ Petition (C) No. 53/2007 Writ Petition (C) No. 336/2007 Writ Petition (C) No. 313/2007 Writ Petition (C) No. 335/2007 Writ Petition (C) No. 231/2007 Writ Petition (C) No. 425/2007 Writ Petition (C) No. 428/2007  Contempt Petition (Civil) No. 112/2007 in  Writ Petition (C) No. 265/2006

K.G. BALAKRISHNAN, C.J.I.          

1.      Reservation for admission in educational  institutions or for public  employment has been a matter of challenge in various litigations in  this Court as well as in the High Courts.  Diverse opinions have  been expressed in regard to the need for reservation.  Though  several grounds  have been raised to oppose any form of  reservation,   few in independent India have voiced disagreement  with the proposition that the disadvantaged sections of the  population deserve and need "special help".  But there has been  considerable disagreement  as to which category of disadvantaged  sections deserve  such help, about the form this help ought to take  and about the efficacy and propriety of what the government has  done in this regard.   

2.      Pandit Jawaharlal Nehru, who presided over the Congress Expert  Committee emphasized before the Constituent Assembly that the  removal of socio-economic inequalities was the highest priority. He  believed that only this could make India a casteless and classless  society, without which the Constitution will become useless and  purposeless . The Founding Fathers of the Constitution were thus  aware of the ripples of inequality present in society, decried the  notion of caste and ensured that the Constitutional framework  contained adequate safeguards that would ensure the upliftment of  the socially and educationally backward classes of citizens, thus  creating a society of equals. The interpretation of the term "socially  and educationally backward", and its constituent classes, was left  for future generations to decide.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 73  

3.      Regarding equality, Dr. Ambedkar stated in the Constituent  Assembly  :  

"\005We must begin by acknowledging the fact that  there is complete absence of two things in Indian  Society. One of these is equality. On the social  plane, we have in India a society based on the  principle of graded inequality which means elevation  for some and degradation for others. On the  economic plane, we have a society in which there  are some who have immense wealth as against  many who live in abject poverty."  

4.      Judge Lauterpacht of the International Court of Justice, writing in  1945, described the importance of the principle of equality in the  following words:-

"The claim to equality before the law is in substantial  sense the most fundamental of the rights of man. It  occupies the first place in most written constitutions. It  is the starting point of all other liberties."  

5.       Equality has also been enshrined in various international  instruments, such as the 1948 Universal Declaration of Human  Rights. Its Preamble speaks of  "the equal and inalienable rights of  all members of the human family", and of  "the equal rights of men  and women."  

6.      Reservation  is one of the many tools that are used to preserve  and promote the essence of equality, so that disadvantaged  groups can be brought to the forefront of civil life.  It is also the  duty of the State to promote positive measures to remove barriers  of inequality and enable diverse communities to  enjoy the  freedoms and share the benefits  guaranteed by the Constitution.  In the context of education, any measure that promotes the  sharing of knowledge, information and ideas, and  encourages and  improves learning,  among India’s vastly diverse classes deserves  encouragement. To cope with the modern world and its  complexities and turbulent problems, education is a must and it   cannot remain cloistered for the benefit of a privileged few.    Reservations provide that extra advantage to those persons who,  without  such support,  can  forever only dream of university,  education, without ever being  able to realize it. This advantage is  necessary. In the words of President Lyndon Johnson,  

"You do not take a person who, for years, has been  hobbled by chains and liberate him, bring him up to  the starting line and then say, ’You are free to  compete with all the others..."   

7.      Dr. Rajendra Prasad, at the concluding address of  the Constituent   Assembly, stated in the following words:-  

"\005To all we give the assurance that it will be our  endeavour to end poverty and squalor and its  companions, hunger and disease; to abolish  distinction and exploitation and to ensure decent  conditions of living.  We are embarking on a great  task. We hope that in this we shall have the  unstinted service and co-operation of all our people  and the sympathy and support of all the  communities..."  

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 73  

8.      It must also be borne in mind that many other democracies face  similar problems and grapple with issues of discrimination, in their  own societal context. Though their social structure may be  markedly different from ours, the problem of inequality in the larger  context and the tools used to combat it may be common. As stated  by Justice Ruth Bader Ginsburg at the 51st Cardozo Memorial  Lecture, in 1999 :   "In my view, comparative analysis emphatically is  relevant to the task of interpreting constitutions and  enforcing human rights. We are losers if we neglect  what others can tell us about endeavours to  eradicate bias against women, minorities and other  disadvantaged groups. For irrational prejudice and  rank discrimination are infectious in our world. In  this, reality, as well as the determination to counter  it, we all share."

9.       We are conscious of the fact that any reservation or preference  shall not lead to reverse discrimination.   The Constitution (Ninety- Third) Amendment Act, 2005 and the enactment of Act  5 of 2007   giving reservation to Other Backward Classes (OBCs), Scheduled  Castes (SCs) and Scheduled Tribes (STs) created mixed reactions  in the society.   Though the reservation in favour of SC and ST is  not opposed by the petitioners,  the reservation of 27% in favour of  Other Backward Classes/Socially and educationally backward  classes   is strongly opposed by various petitioners in these cases.     Eminent Counsel appeared both for the petitioners and  respondents.  The learned Solicitor General and Additional  Solicitor General appeared and expressed their views.   We have  tried to address, with utmost care and attention, the various  arguments advanced by the learned counsel and we are greatly  beholden to all of them for the manner in which they have  analysed and presented the case before us which is of great  importance, affecting large sections of the community.            10.     By The Constitution (Ninety-Third Amendment) Act, 2005,   clause (5)  was inserted in Article 15 of the Constitution which  reads as under :-

"Nothing in this article or in sub-clause (g) of clause  (1) of article 19 shall prevent the State from making  any special provision, by law, for the advancement of  any socially and educationally backward classes of  citizens or for the Scheduled Castes or the  Scheduled Tribes in so far as such special provisions  relate to their admission to the educational  institutions including private educational institutions,  whether aided or unaided by the State, other than  the minority educational institutions referred to in  clause (1) of article 30."

11.     In  Unni Krishnan, J.P. & Ors.  Vs.   State of Andhra  Pradesh & Ors. , it was held that right to establish educational  institutions can neither be a trade or business nor can it be a  profession within the meaning of Article 19(1)(g).  This was  overruled in T.M.A. Pai Foundation & Ors.   Vs. State of  Karnataka & Ors. , wherein it was held that all citizens have the  fundamental right to establish and administer educational  institutions  under Article 19(1)(g) and the term "occupation"  in  Article 19(1)(g) comprehends the establishment and running of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 73  

educational institutions and State regulation of admissions in such  institutions would not be regarded as an unreasonable restriction  on that fundamental right to carry on business under Article 19(6)  of the Constitution.   Education is primarily the responsibility of the  State Governments.  The Union Government also has certain  responsibility specified in the Constitution on matters relating to  institutions of national importance and certain other specified  institutions of higher education and promotion of educational  opportunities for the weaker sections of society. The Parliament  introduced Article 15(5) by The Constitution (Ninety-Third  Amendment) Act, 2005 to enable the State to make such provision  for the advancement of SC, ST and Socially and Educationally  Backward Classes (SEBC) of citizens in relation to a specific  subject, namely, admission to educational institutions including  private educational institutions whether aided or unaided by the  State notwithstanding the provisions of Article 19(1)(g). In the  Statement of Objects and Reasons of the Constitution (Ninety- Third  Amendment) Act, 2005 it has been stated that :-

"At present, the number of seats available in aided  or State maintained institutions, particularly in  respect of professional education, is limited in  comparison to those in private unaided institutions.

To promote the educational advancement of the  socially and educationally backward classes of  citizens, i.e., the OBCs or the Scheduled Castes ad  Scheduled Tribes in matters of admission of  students belonging to these categories in unaided  educational institutions other than the minority  educational institutions referred to Clause (1) of  Article 30 of the Constitution, it is proposed to  amplify Article 15.  The  new Clause (5) shall enable  the Parliament as well as the State Legislatures to  make appropriate laws for the purposes mentioned  above."

12.     After the above Constitution (Ninety-Third  Amendment) Act,  2005, the Parliament passed The Central Educational Institutions  (Reservation in Admission) Act, 2006 (No. 5 of 2007) (hereinafter  referred to as "the Act 5 of 2007").   

13.     Section 3 of Act 5 of 2007 provides for reservation of 15%  seats for Scheduled Castes,  7=% seats for Scheduled Tribes and  27% for Other Backward Classes in Central Educational  Institutions. The said section is extracted below : -  

"3.     The reservation of seats in admission and its  extent in a Central Educational Institution shall be  provided in the following manner, namely:-

(i)     out of the annual permitted strength in each  branch of study or faculty, fifteen per cent seats  shall be reserved for the Scheduled Castes; (ii)    out of the annual permitted strength in each  branch of study or faculty, seven and one-half per  cent seats shall be reserved for the Scheduled  Tribes; (iii)   out of the annual permitted strength in each  branch of study or faculty, twenty-seven per cent  seats shall be reserved for the Other Backward  Classes."

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 73  

14.     "Central Educational Institution" has been defined under  Section 2(d) of the Act as follows:

       2(d)    "Central Educational Institution" means \026          (i)     a university established or incorporated by  or under a Central Act; (ii)    an institution of national importance set up  by an Act of Parliament; (iii)   an institution, declared as a deemed  University under section 3 of the University  Grants Commission Act, 1956, and  maintained by or receiving aid from the  Central Government; (iv)    an institution maintained by or receiving aid  from the Central Government, whether  directly or indirectly, and affiliated to an  institution referred to in clause (i) or clause  (ii), or a constituent unit of an institution,  referred to in clause (iii); (v)     an educational institution set up by the  Central Government under the Societies  Registration Act, 1860.

15.     The percentage of reservation to various groups such as  Scheduled Castes, Scheduled Tribes and Other Backward  Classes are with reference to the annual permitted strength of the  Central Educational Institutions and the "annual permitted  strength" is defined under Section2(b) of the Act as follows:-

2(b)    "annual permitted strength" means the number of  seats, in a course or programme for teaching or  instruction in each branch of study or faculty authorized  by an appropriate authority for admission of students to  a Central Educational Institution

16.     Section 4 of the Act specifically says that the provisions of  Section 3 shall apply to certain institutions. Section 4 reads as  under:-

4.      The provisions of Section 3 of this Act shall not  apply to \026

(a)     a Central Educational Institution established in  the tribal areas referred to in the Sixth Schedule  to the Constitution; (b)     the institutions of excellence, research  institutions, institutions of national and strategic  importance specified in the Schedule to this Act;

Provided that the Central Government may, as and  when considered necessary, by notification in the  Official Gazette, amend the Schedule;

(c)     a Minority Educational Institution as defined in  this Act; (d)     a course or programme at high levels of  specialization, including at the post-doctoral level,  within any branch or study or faculty, which the  Central Government may, in consultation with the  appropriate authority, specify."

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 73  

17.     "Minority Educational Institution" is defined in Section 2(f) of  the Act as follows:-

"Minority Educational Institution" means an institution  established and administered by the minorities under  clause (1) of article 30 of the Constitution and so  declared by an Act of Parliament or by the Central  Government or declared as a Minority Educational  Institution under the National Commission for Minority  Educational Institutions Act, 2004"

18.     Section 2(g) defines "Other Backward Classes" as under:-

"Other Backward Classes" means the class or classes  of citizens who are socially and educationally  backward, and are so determined by the Central  Government"

19.     Clause 2(h) defines "Scheduled Castes" and clause 2(i)  defines "Scheduled Tribes"  as under:

"Scheduled Castes" means the Scheduled Castes  notified under article 341 of the Constitution;                  "Scheduled Tribes" means the Scheduled Tribes  notified under article 342 of the Constitution.

20.     Section 5 of the Act mandates the increase of seats in the  Central Educational Institutions by providing reservation to  Scheduled Castes, Scheduled Tribes and Other Backward  Classes. Section 5 reads as follows:-

"5.(1)  Notwithstanding anything contained in clause (iii)  of section 3 and in any other law for the time being in  force, every Central Educational Institution shall, with  the prior approval of the appropriate authority, increase  the number of seats in a branch of study or faculty over  and above its annual permitted strength so that the  number of seats, excluding those reserved for the  persons belonging to the Scheduled Castes, the  Scheduled Tribes and the Other Backward Classes, is  not less than the number of such seats available for the  academic session immediately preceding the date of  the coming into force of this Act.

(2)     Where, on a representation by any Central  Educational Institution, the Central Government, in  consultation with the appropriate authority, is satisfied  that for reasons of financial, physical or academic  limitations or in order to maintain the standards of  education, the annual permitted strength in any branch  of study or faculty of such institution cannot be  increased for the academic session following the  commencement of this Act, it may permit by notification  in the Official Gazette, such institution to increase the  annual permitted strength over a maximum period of  three years beginning with the academic session  following the commencement of this Act; and then, the  extent of reservation for the Other Backward Classes

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 73  

as provided in clause (iii) of section 3 shall be limited  for that academic session in such manner that the  number of seats available to the Other Backward  Classes for each academic session are commensurate  with the increase in the permitted strength for each  year."

21.      By virtue of definition of the "Central Educational Institutions"  under clause (d)(iv) of Section 2 of the Act, all institutions  maintained by or receiving aid from the Central Government  whether directly or indirectly, and affiliated to any university or  deemed university or institution of national importance, in addition  to universities which are established or incorporated under a  Central Act, institutions of national importance set up by Acts of  Parliament, deemed universities maintained or receiving aid from  Central Government  and institutions set up by the Central  Government with the Societies Registration Act, 1960, are brought  under the purview of reservation under Section 3 of the Act.  The  object of the Act is to introduce in reservation in only such  institutions which are defined as "Central Educational Institutions"  and not any other private unaided institutions.  

22.     The Statement of Objects and Reasons for the Act gives the  object of the Act thus :-

"Greater access to higher education including  professional education, to a large number of students  belonging to the socially and educationally backward  classes of citizens or for the Scheduled Castes and  Scheduled Tribes, has been a matter of major concern.   The reservation of seats for the Scheduled Castes, the  Scheduled Tribes and the Other Backward Classes of  citizens (OBCs) in admission to educational institutions  is derived from the provisions of clause (4) of article 15.   At present, the number of seats available in aided or  State maintained institutions, particularly in respect of  professional education, is limited in comparison to  those in private unaided institutions.

2.      It is laid down in article 46, as a directive principle  of State policy, that the State shall promote with special  care the educational and economic interests of the  weaker sections of the people and protect them from  social injustice.  Access to education is important in  order to ensure advancement of persons belonging to  the Scheduled Castes, the Scheduled Tribes and the  socially and educationally backward classes also  referred to as the OBCs.

3.      Clause (1) of article 30 provides the right to all  minorities to establish and administer educational  institutions of their choice.  It is essential that the rights  available to minorities are protected in regard to  institutions established and administered by them.   Accordingly, institutions declared by the State to be  minority institutions under clause (1) of article 30 are  omitted from the operation of the proposal.

4.      To promote the educational advancement of the  socially and educationally backward classes of citizens  i.e. the OBCs or of the Scheduled Castes and  Scheduled Tribes in matters of admission of students  belonging to these categories in unaided educational  institutions, other than the minority educational

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 73  

institutions referred to in clause (1) of article 30 of the  Constitution, it is proposed to amplify article 15.  The  new clause (5) shall enable the Parliament as well as  the State Legislatures to make appropriate laws for the  purposes mentioned above.

5.      The Bill seeks to achieve the above objects."

23.     The Constitution (Ninety-Third  Amendment) Act, 2005, by  which Article 15(5) was inserted in the Constitution, is challenged   in these petitions, on various grounds.  In some of the writ petitions  which have been filed after the passing of Act 5 of 2007,  the  challenge is directed against the various provisions of the Act 5 of  2007.  Initially, these writ petitions were heard by a Bench of two  Judges. Considering the constitutional importance of these  questions, all these writ petitions were referred to a Constitution  Bench.

24.     We have heard learned Counsel appearing for the various  petitioners.  The learned Senior Counsel, Shri Harish Salve,        Shri F.S. Nariman, Shri K.K. Venugopal, Shri P.P. Rao and                        Dr. Rajeev Dhavan and learned Counsel Shri Sushil Kumar Jain  addressed the main arguments on behalf of the petitioners.  Shri  Ashok Kumar Thakur appeared in person.  Supporting the  Constitution (Ninety-Third  Amendment) Act, 2005 and the  provisions of the said Act, learned Senior Counsel Shri K.  Parasaran, appearing for the Union of India, learned Solicitor  General Shri G.E. Vahanvati and learned Additional Solicitor  General Shri Gopal Subramanium submitted arguments. We have  also heard learned Senior Counsel Shri Ram Jethmalani, Shri T.R.  Andhyarujina, Ms. Indra Jaisingh, Shri Rakesh Dwivedi and            Shri Ravivarma Kumar.  We also had the advantage of the written  submissions made by these Counsel.

25.     The arguments advanced against the Constitution (Ninety- Third  Amendment) Act, 2005 and Act 5 of 2007 can be  summarized as follows.

26.     It was contended by Shri Harish Salve, learned Senior  Counsel, who confined his arguments to the constitutionality of the  provisions of the Act, especially sub-clause (3) of Section 3 of the  Act which deals with the reservation to the extent of 27% of the  total number of seats for the "socially and educationally backward  classes of citizens".    According to him,  the admission to  educational institutions should be based purely on merit and to  allow the State to prefer a student with lesser merit over those who  would have otherwise got admission,  is ex facie discriminatory.  It  is submitted that all  obviously discriminatory laws are violative of  the rule of equality and it is for the State to maintain the principles  of equality and to establish the need for such laws as well as their  validity. It was further argued that Article 15(5) does not protect the  validity of the Act and that the provision in the Act for preferential  admission solely on the basis of caste would violate Article 29(2) of  the Constitution, as has been laid down in The State of Madras    Vs.  Srimathi Champakam Dorairajan .  It was also argued that  Article 15(5) could be construed as an exception to Article 15(1)  and affirmative action, if excessive, is bound to result in reverse  discrimination which is not permissible.   According to the learned  Senior Counsel, this is not a genuine social engineering measure  but vote bank politics and would create permanent fissures in  society.  It was  argued that the provisions of the Act are facially  violative of Article 14 and it could only be justified on the basis of  compelling State necessity. A greater degree of  compulsion is  necessary to establish a compelling State necessity than what is

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 73  

ordinarily required to be shown in the case of economic legislation.   The learned Senior Counsel dealt in detail with the argument that  the backward classes cannot be defined solely on the basis of  caste and reference was made to various decisions of this Court.   The learned Senior Counsel particularly referred to various  decisions of the Supreme Court of the United States and  contended that this kind of legislation, that is, the impugned Act,  attempting affirmative action is to be treated as "suspect  legislation" and it has to undergo the tests of "strict scrutiny" and  "compelling state necessity".   Finally, the learned Counsel argued  that non-exclusion of creamy layer is per se illegal and contrary to  what has been laid down by this Court in Indra Sawhney   Vs.   Union of India & Ors. .

27.     The validity of Constitution (Ninety-Third  Amendment) Act,  2005 was seriously challenged by arguing that the amendment is  destructive of basic structure of the Constitution.  The learned  Counsel was of the view that both the Act as well as the  Constitution (Ninety-Third  Amendment) Act, 2005 have to be  declared ultra vires  the Constitution.

28.             Dr. Rajeev Dhavan, learned Senior Counsel appearing for  the petitioners in Writ Petition No. 53/2007 contended that the  affirmative action scheme under Article 15(4), 15(5) and 16(4) has  to comply with the mandate of Article 14, 15(1) and 16(1) of the  Constitution.  It was argued that these are only enabling provisions  and not part of the fundamental rights.  "Notwithstanding", as used  in Article 15(3), 15(4) and 15(5) cannot be construed as  "notwithstanding the declaration of equality principle".  In view of  the decision of this Court in Champakam Dorairajan (supra)  admission quotas are impermissible on any ground based solely  on religion, race, caste or any one of them.   It was argued that  there is a lack of criteria for identification of Other Backward  Classes (OBCs) and Socially and Educationally Backward Classes  (SEBCs).   The concept of creamy layer is applicable to Article 15  and Article 16 and non-exclusion of creamy layer in the Act is  illegal.  Further it was argued that quota should not be a  punishment for unreserved categories and there should not be any  reverse discrimination.   The learned Senior Counsel further  challenged the constitutional validity of Constitution (Ninety-Third   Amendment) Act, 2005 and contended that it is against the basic  structure of the Constitution.  The procedure laid down under  Article 368 has not been followed.  It was contended that the  proviso to Article 368 of the Constitution requires ratification of the  Constitution (Ninety-Third  Amendment) Act, 2005 by one half of  the States. The amendment seeks to nationalize the private  educational institutions which is unreasonable and impermissible  and reference was made in this regard to T.M.A. Pai Foundation  (supra).  It was argued that Act 5 of 2007 is unreasonable,  arbitrary, capricious and contrary to Articles 14 and 21 of the  Constitution.  He elaborated his arguments on the basis of the  tests laid down in the M. Nagaraj & Ors.   Vs.  Union of India &  Ors.  and  I.R. Coelho (Dead) by LRS.   Vs. State of T.N.   cases and lastly, submitted that both Act 5 of 2007 and The  Constitution (Ninety-Third Amendment) Act, 2005 are liable to be  declared as ultra vires the Constitution.

29.             Dr. Rajeev Dhavan elaborately argued that perusal of the  history of the reservations from 1880 to 2007 for OBCs and  SEBCs showed that there was no emphasis on communities by  the British regime and community based criteria was held to be  illegal in Champakam Dorairajan (supra).  From 1950 to 1970,  there was no proper inquiry for ascertaining the OBCs or SEBCs.  The learned Counsel emphasized that in Indra Sawhney’s  case  (supra), caste was excluded as a criteria and the identification of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 73  

SEBCs or OBCs based on caste could not operate for both Articles  15(4) and 16(4).  According to the learned Senior Counsel, the  criteria for identifying SEBCs should be based on the atrocities  inflicted on that class, discriminatory patterns followed against that  class, disadvantage suffered by that class and disempowerment in  respect of the power of the State and political non-representation.   The class should also be relatively homogeneous in nature.

30.     According to the learned Senior Counsel, there is a lack of  criteria for fixing SEBCs or OBCs and this case is being taken to  excite vote-banks.  It was argued that the 27% of reservation  under the Act of 2007 was based on criteria which did not exist.  It  was contended that the creamy layer principle is applicable to  OBCs and also to SCs and STs.  It was argued that historic  discrimination is not a valid criteria for determining the  beneficiaries of affirmative action and the correct approach is to  look at the continuing wrong and not past discrimination and that  the quotas should not be a punishment for the non-reserved  category resulting in reverse discrimination.  The learned Senior  Counsel contended that the Ninety-Third Amendment is against  the basic structure of the Constitution.  It was argued that the  Doctrine of Equality is adversely affected by giving a wide and  untrammeled enabling power to the Union Legislature that may  affect the rights of the non-OBCs, SCs and STs.  It was argued  that the balance between what was referred to as the "Golden  Triangle" in   Minerva Mills Ltd. & Ors.   Vs.  Union of India &  Ors.  has been totally nullified by the Ninety-Third Amendment.  It  was argued that the legislative declarations of facts are not beyond  judicial scrutiny and the court can tear the veil to decide the real  nature of the statute and decide the constitutional validity.  It was  argued that the Act 5 of 2007 is subject to judicial review on the  ground that its unreasonable and clear criteria have not been laid  down to identify OBCs and there was no compelling necessity  other than political patronage.

31.             Shri K.K. Venugopal, learned Senior Counsel appearing in  W.P. (Civil) No. 598 of 2006 contended that Articles 15(4) and  15(5) are mutually exclusive with the former concerning  admissions to aided institutions and the latter concerning  admissions to unaided institutions.  Article 15(5)  expressly used  the phrase "whether aided or unaided", making it clear that it is not  merely restricting itself to unaided institutions.  Therefore, it is  argued that from the very inception of the Constitution, Article  15(4) was a provision and was the source of legislative power for  the purpose of making reservation for the Scheduled Castes,  Scheduled Tribes as well as the Socially and Educationally  Backward Classes of citizens in aided minority educational  institutions. On the other hand, Article 15(5), which provides  reservation of seats for SCs and STs as well as SEBCs in aided  educational institutions expressly excludes such reservation being  made at all in minority educational institutions covered by Article  30(1) of the Constitution. According to him,  it would take away the  valuable rights of OBCs, SCs and STs given by the State under  Article 15(4) of the Constitution and this would result in annulling  the endeavour of the founding fathers of the Constitution and  would result in exclusion of SCs and STs from the mainstream of  the society and stall their development for centuries to come.  According to the learned Counsel for the petitioners, the argument  of the Union of India that Article 15(4) and 15(5) are both enabling  provisions and both will stand together and both can be complied  with is incorrect. It was argued that Article 15(4) operates with a  qualification that nothing in Article 15 or in Article 29(2) of the  Constitution shall prevent the State from making special provision  for SCs and STs as well as SEBCs while Article 15(5) operates  with a qualification that  "nothing in Article 15 or Article 19(1)(g)"  

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 73  

shall prevent the State from making such special provisions for  SCs and STs as well as SEBCs.  The qualifying words in Article  15(4) do not have any real meaning or effect for the reason that  both Article 15(1) as well as Article 29(2) prohibit discrimination on  grounds only of religion and/or for caste.  Therefore, it is argued  that there is a direct conflict between Article 15(4) and 15(5). As  both Articles contain an exclusionary clause excluding the  operation of the rest of Article 15.  It was contended that The  Constitution (Ninety-Third Amendment) Act, 2005 is violative of the  basic structure as it breaches the central character of the  Constitution by placing the minority educational institutions based  on religion on a special footing and exempting it from bearing the  common burden of reservation for SCs, STs and SEBCs.  It was  argued that such exclusion of minority institution is not severable  from Article 15(5).  As regards the validity of the Act 5 of 2007, it  failed to exclude the "creamy layer" from the caste which would  render the identification of the "caste" as "backward class" which is  unconstitutional and void.  Their inclusion would result in unequals  being treated as equals and result in giving the benefit of  reservation to the advanced sections in that caste.  The  consequences would be that the inclusion of the caste for the  benefit of reservations would be purely on the basis of caste only  thus violating Article 15(1) and Article 29(2) of the Constitution.   The doctrine of severability does not apply and therefore, the Act 5  of 2007 is unconstitutional and void to the extent that it does not  provide exclusion of ’creamy layer’ from the SEBCs.  Therefore, it  was prayed that both The Constitution (Ninety-Third Amendment)  Amendment Act, 2005 as well as the Act 5 of 2007 be struck down  as unconstitutional.

32.             Shri F.S. Nariman, learned Senior Counsel appearing for the  petitioners in W.P. (Civil) No. 35 of 2007, contended that the caste  cannot be the sole criteria for determining the socially and  educationally backward classes under Article 15(4) and 15(5)  of  the Constitution and the test for Article 15(5) has to be "occupation  cum income" where caste may or may not be one of the many  considerations having a nebulous weightage, and alternatively  without conceding if caste at all is taken as one of the many  considerations then it can only be those castes which satisfy the  test of similarity with Scheduled Castes/Scheduled Tribes.  It was  argued that the decision of this Court in  R. Chitralekha & Anr.   Vs.   State of Mysore & Ors.   still occupies the field for the  purpose of Article 15 and the decision in  R. Chitralekha’s  case  (supra) was affirmed by the Bench in  Indra Sawhney’s case  (supra).  It was argued that OBCs are already educationally  forward and no reservation in higher education is justified.  The  learned Senior Counsel relied on the literacy rate by age groups as  quoted in the Sachar Committee Report.  It was contended that in  data given in the judgment in Indra Sawhney’s case (supra),  OBCs were not taken as educationally backward.  According to the   learned Senior Counsel for the petitioners, there can only be  presumption of forwardness of OBCs and they are not backward.   The burden is on the Government to provide that the intended  beneficiaries are really backward citizens. The OBCs have not  suffered social inequalities or oppression that had been inflicted on  Scheduled Castes and Scheduled Tribes by the society and,  according to the learned Senior Counsel, the caste-occupation  nexus barely survives today and is a misleading guide.  The caste  based occupation association has been rapidly disappearing from  the Indian society.  For Articles 15(4) and 15(5), economic  consideration has to be the dominant criterion.  The non-exclusion  of "creamy layer" is illegal and it was intended to safeguard the  really deprived and backward people among the so-called OBCs.   It was contended that the Government has not published the list of  OBCs for Article 15(5) and the Union of India has not been able to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 73  

produce the list or the criteria for determining the SEBCs.  No time  frame has been fixed for such reservation.  Therefore, the Act 5 of  2007 is violative of Article 14 of the Constitution of India and is  thus unconstitutional.

33.             Appearing for the Writ Petitioner in W.P. (Civil) No. 231/2007  filed by the Citizens for Equality, the learned Senior Counsel       Shri P.P. Rao contended that the mandate of Article 45 to provide  free and compulsory education for all children until they complete  the age of 14 years has not been complied with by the  Government and therefore, there is clear violation of Article 20 of  the Constitution.  Although the Sarva Shiksha Abhiyan  (SSA)  Project was introduced with certain objectives, these objectives  were not fulfilled.  The Constitution seeks to achieve a casteless  and classless society.  Therefore, identification of socially and  educationally backward classes should be based on such criteria  which facilitate the eradication of the caste system.  The  educational backwardness of the backward classes and the  SEBCs should be removed and once this educational  backwardness is removed, clause 4 and 5 of Article 15 will  become redundant and unnecessary.  It was argued that without  ensuring that every child belonging to a backward class is provided  free and compulsory education upto 10+2 level any reservation  provided in higher education is discriminatory inter se between  members of the backward classes themselves and  violative of  Articles 14 and 15 of the Constitution.  Education upto secondary  school level should be the measure for determining educational  backwardness.  The social and educational backwardness referred  to in Article 15(4) requires separate identification of SEBCs.   Agricultural labourers, rickshaw pullers/drivers, street hawkers etc.  may well qualify for being designated as "backward classes"   According to petitioner’s learned Senior Counsel, a rational basis  would be to identify backward classes through occupations  traditionally considered to be inferior, yielding low income.  It was  argued that in any event, the "creamy layer" among the socially  and educationally backward classes is liable to be excluded.

34.             Shri Sushil Kumar Jain, learned Counsel appearing in W.P.  (Civil) No. 598 of 2006, elaborately argued the issues involved in  this case.  The main contention of the petitioner’s Counsel is that  the "affirmative action" policy of the Government of India is  discriminatory and against general public interest.  The policy is  intended to "uplift" the so called socially and educationally  backward sections of the society by the process of positive  discrimination.  It was argued that the Ninety-Third Constitutional  Amendment is destructive of the basic structure of the Constitution  as it destroys the delicate balance of the various fundamental  rights that the citizens of the country enjoy.  The provision of  Article 15(5) was inserted as a proviso to Article 19(6) which has  been held to be unreasonable and against the constitutional  scheme.  Article 15(5) makes an exception for the minority  institutions covered under Article 30 and therefore treats them  differently from other private institutions.  The Central Education  Institution (Reservation in Admission) Act, 2007 which has been  enacted in purported exercise of the said powers, is in excess of  the said powers.  Since the target beneficiaries of Article 15(5)  have not been identified with a necessary degree of specificity, the  Act 5 of 2007 is illegal. There ought to be a quantitative correlation  between the benefits conferred and the extent of the "problem"  sought to be remedied, the correlation being "reasonable" and not  "proportionate".  The Act 5 of 2007 does not provide the manner or  the principles on which the identification of OBC is to be made.   Therefore, it lacks the necessary nexus with the ultimate objects  sought to be achieved. The reservation of seats for the  "beneficiaries" for many years to come without any provision for

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 73  

review gives rigidity and permanency to such measures. This  would result in excessive reservation and thereby cause reverse  discrimination.  The 100% quota in the additional seats that will be  created in the educational institutions is facially discriminatory.   Identification of SEBCs on the basis of caste creates vested  interest in backwardness.  Therefore, the measures and means  chosen by the Government are therefore unethical to the  constitutional goals.  Failure to exclude "creamy layer" allows  conferment of benefits on undeserving persons.  The action of the  State Governments lacks in the basic details of the extent of the  measure.  The exact social malaise sought to be remedied is not  clear.

35.             The learned Counsel for the petitioner further contended that  the Ninety-Third Constitutional Amendment violates the basic  structure of the Constitution.  This Court clarified the rights of the  private educational institutions in terms of Article 19(1)(g) of the  Constitution in T.M.A. Pai Foundation case (supra) as explained  in P.A. Inamdar & Ors.  Vs. State of Maharashtra & Ors.           It was held in that case that fixation of quotas and reservation of  seats in private educational institutions amounts to "Nationalization  of Education". The Ninety-Third Constitutional Amendment is thus  an unreasonable action of the legislature.  It was argued that the  impugned amendment alters supremacy of the Constitution and  there was only limited constituent power to amend Article 368.   Article 15(5) would enable the State to make the law to provide  reservation to private educational institution which has been held  to be an unreasonable encroachment on the fundamental rights  and this amendment would alter the balance between Part III and  IV of the Constitution.  Reliance was placed on various decisions  by the petitioner’s learned Counsel.  The impugned amendment  specifically excludes the application of Article 19(1)(g),  whereas  the institutions governed by Article 26 and the minority institutions  governed by Article 30(1) have been left out. This, according to the  petitioner’s Counsel, is discriminatory and illegal and that there  was no justification to this differential treatment. The petitioner’s  learned Counsel also challenged the quantum of reservations  provided under the Act 5 of 2007.  Any determination of the extent  of reservation without considering the future impact of the  reservation would be unjust, arbitrary and unreasonable.  Caste  based reservation would not be in the larger interest of the national  unity and integrity.  The benefits could be given only to those  communities which are not adequately represented and not to  those which are socially and educationally advanced.  Reservation  in the form of quota is illegal and if some classes are to be given  some benefit and to be equalized with the general category they  could be awarded some additional marks like it is being given to  the women candidates seeking admission in colleges.  Many of the  castes included in SEBCs are not really backward classes and  some of them were even rulers of erstwhile States for a number of  years.  The benefits and privileges which are given to SCs/STs  should not be extended to OBCs.  The members of the OBC  communities are capable of competing with the general category  candidates and the increase in seats would entail a corresponding  increase in infrastructure, and it is submitted that an increase in  infrastructure would, therefore, to be financed through tax  collections and, therefore, every member of the public (including  the general category) is entitled to be considered for admission in  the said increase.  The learned Counsel also strongly objected to  "caste" being taken as a means of classification and identification  of SEBCs and OBCs.  It is contended that it is in complete  derogation of provisions of Article 15(1) and, according to the  petitioner’s learned Counsel, many of the castes which have been  included in SEBCs are really not SEBCs and thus past historical  discrimination is entirely irrelevant for conferment of benefits in the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 73  

present times.  It was also contended that there are no traditional  occupations now. It is submitted that the identification of castes as  a "class" to justify the same as being occupations on a  presumption that the persons belonging to a particular caste  continue to follow a particular occupation especially in the present  constitutional scheme which gives freedom to choose any  business, occupation or profession is entirely fallacious.  The  learned Counsel for the petitioner also contended that the               non-exclusion of creamy layer is illegal and relied on Indra  Sawhney’s case (supra) and  Indra Sawhney (II)  Vs. Union of  India & Others .

36.             Shri Ashoka Kumar Thakur, who appeared in person,  supported all the contentions raised by various learned Counsel  and urged that the Ninety-Third Constitution Amendment as well  as the Act 5 of 2007 are unconstitutional and they are liable to be  struck down.     

37.     On behalf of the respondents, several Senior Counsel appeared  and contended that the contentions of the petitioners challenging  the Ninety-Third Constitutional Amendment and the Act 5 of 2007  are without any merit and are liable to be dismissed.  The  contentions raised by the petitioners’ Counsel were refuted by the  respondents’ Counsel by raising the plea that affirmative action is  needed for promoting educational and economic interest  of  weaker section of society.  Shri K. Parasaran, learned Senior  Counsel appearing for the Union of India, submitted that the  Constitution is to be interpreted as an integral, logical whole, and  while construing one part, regard must be had to the provisions of  the other parts, rendering no portion as unnecessary or redundant.   It was argued that when constitutional provisions are interpreted, it  has to be borne in mind that the interpretation is such as to further  the object of their incorporation and they cannot be interpreted in a  manner that renders another provision redundant.   

38.     It was argued that the constitutional provision must not be  construed in a narrow and constricted sense but in a wide and  liberal manner so as to anticipate and take into account the  changing conditions and purposes so that the constitutional  provision does not get fossilized but remains flexible enough to  meet the newly emerging problems and challenges of this age.   Reference was made to various decisions rendered by this Court  regarding the interpretations of constitutional provisions.  It was  pointed out that when social welfare measures are sought to be  implemented and the Constitution has to be interpreted in such  context, it has to be kept in mind that the Preamble is the text  which sets out the goal that is to be attained; and that Part III is the  texture into which is woven a pattern of rights.

39.      Fundamental Rights and Directive Principles are both  complementary and supplementary to each other.  Preamble is a  part of the Constitution and the edifice of our Constitution is built  upon the concepts crystallized in the Preamble.  Reference was  made to the observations made by Chief Justice Sikri in               His Holiness Kesavananda Bharati Sripadagalvaru   Vs.   State  of Kerala , wherein it was argued that the Constitution should be  read and interpreted in the light of the grand and noble vision  expressed in the Preamble.  The Preamble secures and assures to  all citizens justice, social, economic and political and it assures the  equality of status and of opportunity.  Education and the economic  well-being of an individual give a status in society.  When a large  number of OBCs, SCs and STs get better educated and get into  Parliament, legislative assemblies, public employment, professions  and into other walks of public life, the attitude that they are inferior  will disappear.  This will promote fraternity assuring the dignity of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 73  

the individual and the unity and integrity of the nation.  The single  most powerful tool for the upliftment and progress of such diverse  communities is education.   

40.     The Fundamental Rights in Part III are not to be read in  isolation. All rights conferred in Part III of the Constitution are  subject to at least other provisions of the said Part III. The  Directive Principles of State Policy in Part IV of the Constitution are  equally as important as Fundamental Rights.  Part IV is made not  enforceable by Court for the reason inter alia as to financial  implications and priorities.  Principles of Part IV have to be  gradually transformed into fundamental rights depending upon the  economic capacity of the State.  Article 45 is being transformed  into a fundamental right by 86th Amendment of the Constitution by  inserting Article 21 A.  Clause 2 of Article 38 says that, "the State  shall, in particular, strive to minimize the inequalities in income and  endeavour to eliminate inequalities in status, facilities and  opportunities, not only amongst individuals but also amongst  groups of people residing in different areas or engaged in different  vocations".   Under Article 46, "the State shall promote with special  care the educational and economic interests of the weaker  sections of the people and, in particular, of the Scheduled Castes  and the Scheduled Tribes, and shall protect them from social  injustice and all forms of exploitation".   It is submitted that the  Ninety-Third Constitutional Amendment was brought into force to  bring about economic and social regeneration of the teeming  millions who are steeped in poverty, ignorance and social  backwardness.  Shri K. Parasaran, learned Senior Counsel,  contended that the concept of basic structure is not a vague  concept and it was illustrated in the judgment in Kesavananda  Bharati’s case (supra).  It was pointed out that the supremacy of  the Constitution, republican and democratic form of Government  and sovereignty of the country, secular and federal character of  the Constitution, demarcation of power between the legislature, the  executive and the judiciary, the dignity of the individual (secured by  the various freedoms and basic rights in Part III and the mandate  to build a welfare State contained in Part IV), the unity and the  integrity of the nation are some of the principles of basic structure  of the Constitution.  It was contended that when the constitutional  validity of a statute is considered, the cardinal rule to be followed is  to look at the Preamble to the Constitution as the guiding light and  the Directive Principles of State Policy as a book of interpretation.    On a harmonious reading of the Preamble, Part III and Part IV, it is  manifest that there is a Constitutional promise to the weaker  sections / SEBCs and this solemn duty has to be fulfilled.

41.     It was pointed out that the observations in Champakam  Dorairajan  (supra) that the Directive Principles are subordinate to  the Fundamental Rights is no longer good law after the decision of  the Kesavanda Bharati  (supra) case and other decisions of this  Court.  It was pointed out that the de facto inequalities which exist  in the society are to be taken into account and affirmative action by  way of giving preference to the socially and economically  disadvantaged persons or inflicting handicaps on those more  advantageously placed is to be made in order to bring about real  equality.  It is submitted that special provision for advancement of  any socially and educationally backward citizens may be made by  determining the socially and educationally backward classes on  the basis of caste.  Article 15(4) neutralized the decision in  Champakam Dorairajan’s case (surpa).  It was enacted by the  Provisional Parliament which consisted of the very same Members  who constituted the Constituent Assembly.   Our Constitution is not  caste blind and the Constitution prohibits discrimination based  ’only on caste’ and not ’caste and something else’.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 73  

42.     In    Unni Krishnan’s case (supra) it was held that Article  19(1)(g) is not attracted for establishing and running educational  institutions.  But this decision was overruled in T.M.A. Pai  Foundation (supra) and it was held that establishing and running  an educational institution is an "occupation" within the meaning of  Article 19(1)(g).   In P.A. Inamdar’s case (supra), it was held that  the private educational institutions, including minority institutions,  are free to  admit students of their own choice and the State by  regulatory measures cannot control the admission.  It was held  that the State cannot impose reservation policy to unaided  institutions.  The above ruling disabled the State to resort to its  enabling power under Article 15(4) of the Constitution.  It was  argued by Shri Parasaran that the above rulings necessitated the  enactment of The Constitution (Ninety-Third Amendment) Act,  2005 by inserting Article 15(5) through which enabling power was  conferred on the Parliament and the State Legislatures, so that  they would have the legislative competence to pass a law  providing for reservation in educational institutions which will not  be hit by Article 19(1)(g).  But rights of minorities under  Article  30   are not touched by Article 15(5).    43.     In Kesavananda Bharati (supra) it was held that the  fundamental rights may not be abrogated but they can be  abridged.  The validity of the 24th Amendment of the Constitution  abridging the fundamental rights was upheld by the Court.  The  right under Article 19(1)(f) has been completely abrogated by the  44th Amendment of the Constitution which is permissible for the  constituent power to abridge the Fundamental Rights especially for  reaching the goal of the Preamble of the Constitution.  It is an  instance of transforming the principles of Part IV into Part III  whereby it becomes enforceable.   All rights conferred in Part III of  the Constitution are subject to other provisions in the same Part.   Article 15(4) introduced by the 1st Amendment to the Constitution  is a similar instance of abridging of Fundamental Rights of the  general category of citizens to ensure the Fundamental Rights of  OBCs, SCs and STs.  Article 15(5) is a similar provision and is well  within the Constituent power of amendment.  Article 15(5) is an  enabling provision and vests power in the Parliament and the State  legislatures.   

44.     There is vital distinction between the vesting of a power and the  exercise of power and the manner of its exercise.  It would only  enable the Parliament and the State legislatures to make special  provisions by law for enforcement of any socially and educationally  backward class of citizens or for Scheduled Castes and Scheduled  Tribes relating to their admission to educational institutions  including private educational institutions.   

45.     As regards exemption of minority educational institutions in  Article 15(5), it was contended that this was done to conform with  the Constitutional mandate of additional protection for minorities  under Article 30.  It was argued that Article 15(5) does not override  Article 15(4).  They have to be read together as supplementary to  each other and Article 15(5) being an additional provision, there is  no conflict between Article 15(4) and Article 15(5).  Article 15(4),  15(5), 29(2), 30(1), and 30(2) all together constitute a Code in  relation to admission to educational institutions.  They have to be  harmoniously construed in the light of the Preamble and Part IV of  the Constitution.  It was also contended that the Article 15(5) does  not interfere with the executive power of the State and there is no  violation of the proviso to Article 368.  

46.     The Ninety-Third Constitutional Amendment does not  specifically or impliedly make any change in Article 162.  Article  15(5) does not seek to make any change in Article 162 either

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 73  

directly or indirectly.  The field of legislation as to "education" was  in Entry 11 of List II.  By virtue of the 42nd Amendment of the  Constitution, "education", which was in Entry 11 in List II, was  deleted and inserted as Entry 25 in List III.  The executive power of  the State is not touched by the present Constitutional Amendment.

47.     Article 15(5) does not abrogate the fundamental right enshrined  under Article 19(1)(g).  If at all there is an abridgement of  Fundamental Right, it is in a limited area of admission to  educational institutions and such abridgement does not violate the  basic structure of the Constitution.  In any way, Constitutional  Amendments giving effect to Directive Principles of the State  Policy would not offend the basic structure of the Constitution.

48.     The Right to Equality enshrined in our Constitution is not merely  a formal right or a vacuous declaration.  Affirmative action though  apparently discriminatory is calculated to produce equality on a  broader basis.  By eliminating de facto inequalities and placing the  weaker sections of the community on a footing of equality with the   stronger and more powerful sections so that each member of the  community whatever is his birth, occupation or social position may  be, enjoys equal opportunity of using to the full, his natural  endowments of physique, of character and of intelligence.

49.     Shri Parasaran, learned Senior Counsel, further contended that  the Act 5 of 2007 is a constitutionally valid piece of legislation.   Under Section 2(g) of Act 5 of 2007, there is no excessive  delegation. The plea of the petitioners that the Parliament itself  should have determined OBCs and that Act 5 of 2007 suffers from  excessive delegation or lack of guidelines is not tenable.  The  backward classes of citizens have to be identified on the materials  and evidence and therefore the Parliament necessarily has to  leave it to the Executive.  The determination of OBCs is a long- drawn process which would cause enormous delay.  Therefore, it  was appropriate to leave the identification to the Executive.  Such  determination of each class as backward class would be open to  judicial review.  And the scope of judicial review would be wider if  the same is made by the Executive rather than by the Parliament.   

50.     It is also contended that merely because no time limit is fixed,  Act 5 of 2007 cannot be rendered invalid.  The Parliament has got  the power to review periodically and either make modifications in  the Act or repeal the Act.  It is for the first time certain special  provisions are being made in favour of socially and educationally  backward classes of citizens, SCs and STs for reservation of seats  in Central Educational Institutions after 56 years of coming into  force of the Constitution.  At its very commencement, a time limit  may not be anticipated and fixed.  Over a period of time depending  upon the result of the measures taken and improvements in the  status and educational advancement of the SCs, STs and SEBCs,  the matter could always be reviewed.  The Act cannot be struck  down at the very commencement on the ground no time limit for its  operation has been fixed.   

51.     It was also submitted that the quantum of reservation provided  under the Act is valid.  The ratio of population is a relevant  consideration in fixing the quantum of reservation.  Reservation in  favour of OBCs is 27% and by adding the percentage of  reservation for SCs and STs, the total quantum of reservation does  not exceed 50%.  It is indisputable that the population of OBCs  exceeds 27% and SCs and STs constitute more than 22 =%.  The  quantum of reservation within 50% has been determined by the  Parliament based on facts considered by legislature and they are  conclusive and the Courts do not exercise the power of judicial  review by examining those facts.  

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 73  

52.     The learned Senior Counsel also contended that the contention  of the Petitioners that special provisions can only be made up to  10+2 stage is untenable.  If this plea is accepted, it would result in  higher education being the privilege of the higher classes only and  it would be a distortion of the concept of social advancement of the  downtrodden and the negation of the goal envisaged by the  Preamble.  It was also contended that the principle of reverse  discrimination is not applicable.  The Doctrine of Strict Scrutiny and  Narrow Tailoring are not applicable in India as they are American  doctrines which operate under different facts and circumstances.   This court on earlier occasion had rejected these pleas, when  dealing with admission to Post-graduate Medical Courses, when  75% of seats were being reserved on the basis of institutional  preference.  

53.     The learned Senior Counsel further contended that the  exclusion of creamy layer has no application to SCs and STs in  regard to employment and education.  Articles 341, 342, 366(24)  and 366(25) of the Constitution would militate against such course  of action.   

54.     It was held in E.V. Chinnaiah Vs. State of Andhra Pradesh &  Ors. , that the SCs and STs form a single class.  The  observations in Nagaraj’s case (supra) cannot be construed as  requiring exclusion of creamy layer in SCs and STs.  Creamy layer  principle was applied for the identification of backward classes of  citizens. And it was specifically held in Indra Sawhney’s case,  (supra) that the above discussion was confined to Other Backward  Classes and has no relevance in the case of Scheduled Tribes and  Scheduled Castes.  The observations of the Supreme Court in  Nagaraj’s case (supra) should not be read as conflicting with the  decision in Indra Sawhney’s case (supra).  The observations in  Nagaraj’s case  (supra) as regards SCs and STs are obiter.  In  regard to SCs and STs, there can be no concept of creamy layer.   

55.     Once the President of India has determined the list of  Scheduled Castes and Scheduled Tribes, it is only by a law made  by the Parliament that there can be exclusion from the list of  Scheduled Castes or Scheduled Tribes.  As far as OBCs are  concerned, the principle of exclusion of creamy lawyer is  applicable only for Article 16(4).  It has no application to Article  15(4) or 15(5) as education stands on a different footing.   

56.     Equality of opportunity of education is a must for every citizen  and the doctrine of "creamy layer" is inapplicable and inappropriate  in the context of giving opportunity for education.  In the matter of  education there cannot be any exclusion on the ground of creamy  layer.  Such exclusion would only be counter productive and would  retard the development and progress of the groups and  communities and their eventual integration with the rest of the  society.   

57.     It was further argued that Article 15(4) and 15(5) are provisions  of power coupled with duty.  It is the constitutional duty to apply  these principles in the governance of the country and in making  law for the reason that it is a constitutional promise of social justice  which has to be redeemed.   

58.     It was strongly contended by the learned Senior Counsel        Shri Parasaran that the validity of the constitutional amendment  and the validity of plenary legislation have to be decided purely on  the basis of constitutional law.  And the submission, as it was  contended that the Amendment has a vote catching mechanism is  inappropriate.  The contention that the Ninety-Third Constitutional

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 73  

Amendment is against the Universal Declaration of Human Rights  is also not tenable.  Right to Equality of Opportunity operates at  every level and it is being provided for a particular level either by a  legislative or an executive action.  The merit has to be interpreted  in the context of egalitarian equality and not formal equality.   

59.     It was also submitted that the speeches in the Parliament,  constitutional debates, text books of authors and views expressed  in articles do not normally constitute evidence before the Court to  determine the Constitutional validity of the legislations.

60.     Shri G.E. Vahanvati, learned Solicitor General of India  appearing on behalf of the Union of India, submitted that the  argument of Shri Harish Salve, learned Senior Counsel that the  American doctrine of "strict scrutiny" should be applied to the  affirmative action envisaged under Article 15(5) is not correct.  It  was argued that the impugned legislation is not ex facie  discriminatory and, therefore, it cannot be classified as a "suspect  legislation". It was argued that right that from the case of            The General Manager Southern Railway   Vs.  Rangachari,   Article 16(4) is an exception to Article 16(1) and this reasoning was  followed in M.R. Balaji & Others  Vs.  State of Mysore  by a five  Judge Bench.  Thereafter, the same view prevailed  in T.  Devadasan  Vs.  The Union of India & Anr.  But Subba Rao. J.  (as he then was) said that "the expression ’nothing in this article’   is a legislative device to express its intention in a most emphatic  way that the power conferred there under is not limited in any way  by the main provision but falls outside it" .   The view that Articles  15(4) and 16(4) are exceptions to Article 15(1) and 16(1)  respectively was again reiterated in Triloki Nath Vs.  State of  Jammu & Kashmir & Ors. (II)   and in The State of Andhra  Pradesh & Ors.   Vs.  U.S.V. Balram, Etc .  The learned Solicitor  General further pointed out that in State of Kerala & Anr. Vs   N.M. Thomas & Ors.   the majority opinion held that Articles 14,  15 and 16 are parts of the scheme of equality and that Articles  15(4) and 16(4) are not exceptions to Articles 15(1) and 16(1)  respectively.  The said change in N.M. Thomas’s case  (supra)  was noticed by Justice Chinnappa Reddy in K.C. Vasanth Kumar  & Anr.   Vs.  State of Karnataka   and the same view was upheld  in Indra Sawhney’s case (supra).  The learned Solicitor General  further contended that once it is accepted that Articles 15(4) and  16(4) are not exceptions to Articles 15(1) and 16(1) respectively,  then there is no question of treating the social welfare measure as  being ’facially discriminatory’ or  "ex facie"  violative of the rule of  equality.  It was argued that it is not simply a matter of legal  equality.  De jure equality must ultimately find its raison d’etre in de  facto equality.  The State must, therefore, resort to compensatory  State action for the purpose of uplifting people who are factually  unequal in their wealth, education or social environment.  Relying  on the observations of Subba Rao, J. in      T. Devadasan’s case  (supra), it was argued that centuries of calculated oppression and  habitual submission has reduced a considerable section of our  community to a life of serfdom and it would be well nigh impossible  to raise their standards if the doctrine of equal opportunity was  strictly enforced in their case and they would not have any change  if they were made to enter the open field of competition without  adventitious aids till such time when they could stand on their own  legs.  Laying reliance on the observations made in N.M. Thomas’s  case (supra) and also in Indra Sawhney’s case (supra), the  learned Solicitor General argued that under Articles 15(4) and  16(4) the State is obliged to remove inequalities and  backwardness from society.  It was further submitted that the  American doctrine of "strict scrutiny" had been expressly rejected  by this Court in Saurabh Chaudri & Ors.  Vs.   Union of India &  Ors.    As regards identification of backward classes, the learned

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 73  

Solicitor General  contended that while dealing with the aspect of  identification of backwardness for socially and educationally  backward classes, it cannot be denied that there is backwardness  in this country; that large sections of the country are socially and  educationally backward; that this problem is not new but is age old;  that such backwardness arose because of certain peculiarities of  the caste system which proceeded on the assumption that the  choice of occupation of members of a caste was pre-determined in  many castes; and that members of particular castes were  prohibited from engaging themselves in occupations other than  those certain occupations which were considered to be degrading  and impure and considered fit only for those castes.  It was pointed  out that Chief Justice Wanchoo in C.A. Rajendran   Vs.  Union of  India & Ors.   held that the main criteria for inclusion in the list is  social and educational backwardness of the castes based on the  occupation pursued by those castes.  Reference was made to  various decisions rendered by this Court on this issue, especially         Minor A. Peeriakaruppan & Anr.  Vs. State of Tamil Nadu &  Ors. ; U.S.V. Balram (supra); K.C. Vasanth Kumar (supra),  referred to earlier.  The learned Solicitor General also pointed out  that in  B. Venkataramana   Vs.  The State of Madras & Anr. ,   the list of backward classes as mentioned in Schedule 3 to the  Madras Provincial and Subordinate Services Rule, 1942  was  approved and which was also noticed in Indra Sawhney’s case  (supra).  Reference was also made to the debates in Parliament  where Dr. Ambedkar stated that "the backward classes are nothing  but collection of certain castes".  It was further contended that it is  incorrect to say that the majority in Indra Sawhney’s case (supra)  did not accept or approve the Mandal Commission Report.  That  Report was referred to in several places in that judgment and the  criterion adopted by the Mandal Commission to classify the  backward classes was more or less accepted.  The learned  Solicitor General also pointed out that it is not correct to say that  the State Lists are defective and that they ought not to have been  accepted by the Central Government.  It is pointed out that the  Central List has been operating for 14 years for the purposes of  reservations of posts and not a single person has challenged any  inclusion in the Central List as being void or illegal; that the State  Lists have also been operating both for the purposes of Articles  16(4) and 15(4) and there has been no challenge at all in any High  Court or in the Supreme Court with regard to the State List and  that there has not been a single complaint made before the State  Government or the National Commission with regard to over- inclusion of any caste or community.  The learned Solicitor  General pointed out that the allegations in relation to the working  of the National Commission for the Backward Classes are not true.  The National Commission has framed elaborate guidelines for  consideration of request for inclusion and complaints of non- inclusion in the Central List for other backward classes. The  guidelines have been framed after studying the criteria/indicators  framed by the Mandal Commission and the Commissions set up in  the past by different State Governments. The National  Commission held 236 public hearings at various places since its  inception. The National Commission had also prepared an  elaborate questionnaire for considering classes for inclusion in the  State Lists. Detailed data was required to be submitted with regard  to social, educational  and economic criteria of the communities  that were considered. It is pointed out that during the period of its  functioning the National Commission recommended 297 requests  for inclusion and at the same time rejected 288 requests for  inclusion of main castes. It was further pointed out that the  National Commission has not mechanically allowed all applications  for inclusion in the Central List.  The National Commission while  examining the applications had taken note of the ethnographic  history of the concerned castes/sub-groups/communities and it has

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 73  

also taken note of the recommendations of the various State  Commissions.  It was also submitted that the contention that the  inclusion of the caste in OBCs was motivated by political  considerations is erroneous and the National Commission had  emphatically rejected politically dominant castes such as the  Marathas from being included in the Central List and several other  castes were thus excluded from OBCs list.  The learned Solicitor  General also contended that the plea that reservation under Article  15(5) with reference to Article 29(2) would render 15(5)  constitutionally violative is incorrect.  Article 29(2) is a protection  given by the Constitution against denial of admission to  educational institutions on the ground of religion, race, caste,  language or any of them. It does not apply if provision is made for  backward classes when the basis for classification is not solely on  these grounds.  It was argued further that the American doctrines  and tests relating to "strict scrutiny", "compelling State necessity"    and "narrow tailoring" are tests which are not applicable to India at  all.  There is a presumption of constitutionality of the legislations  passed by Parliament. The Indian Constitution specifically provides  provisions like Articles 15(4) and 16(4) which permit special  provisions for backward classes.  It was also contended that it is  incorrect to suggest that there have been no efforts on the part of  successive Governments to concentrate on elementary education  towards universal elementary education.  "Sarva Shiksha Abhiyan"   (SSA)  had been launched by the Government in 2001-2002.  The  learned Solicitor General also pointed out that it is incorrect to say  that there has been no proper consideration of the Bill in  Parliament, particularly in relation to Financial Memorandum. It is  pointed that debates in Parliament are not usually relevant for  construction of the provisions of an Act.  The learned Solicitor  General also submitted that it cannot seriously be disputed that  large sections of the population are socially and educationally  backward and it is nobody’s case that the total population of OBCs  in this country is less than 27%.  Even on the basis of the facts  relied on by the petitioners, namely, National Sample Survey  Organisation (NSSO), the total population of OBCs in India is  around 36%.  The NSSO had conducted this survey for the  preparation of its 61st Round of survey which was published in  October 2006.  This survey indicated that the total number of  OBCs in India is around 41%.  27% reservation in relation to  admission had been upheld in Indra Sawhney’s case (supra) and  the Parliament has taken special care to see that this reservation  does not affect seats in the general category.  The learned  Solicitor General also pointed out that the policy of reservation  flows from the mandate of equality till the time the Constitutional  objective of real equality is achieved.  Moreover, the policy of  reservation has been introduced for the first time after 56 years of  coming into force of the Constitution. The learned Solicitor General  also pointed out that meticulous care has been taken for the  inclusion of certain castes in the OBCs list and reference was  made to cases in Rajasthan, Karnataka and Kerala.

61.     Shri Gopal Subramanium, the learned Additional Solicitor  General, supported the Constitution (Ninety-Third  Amendment)  Act, 2005 and also the provisions of Act 5 of 2007.  The learned  Additional Solicitor General submitted that the American doctrines  are not applicable to India.  In this regard, the observations of this  Court in A.K. Roy  Vs. Union of India & Ors. ,  that   "we cannot  transplant, in the Indian context and conditions, principles which  took birth in other soils, without a careful examination of their  relevance to the interpretation of our Constitution"   were cited.   It  is pointed by the learned Additional Solicitor General that  prepositions enunciated in the decisions of the United States  Supreme Court in Regents of the University of California  Vs.   Bakke , Grutter  Vs. Bollinger  and  Gratz  Vs.  Bollinger ,  

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 22 of 73  

and  Parents Involved in Community Schools   Vs.  Seattle  School District , that the Court will apply the standard of strict  scrutiny while reviewing legislation involving suspect classification;  that and such legislation would be effected if two conditions are  met, namely, (i)  there is a compelling governmental interest in  making the classification,  and (ii)  the legislation has been  narrowly tailored to meet that classification;  that the classification  based on race is a suspect classification and that  accordingly  while race can be a factor in admission policies of educational  institutions, it cannot be the sole factor and it cannot lead to the  imposition of quotas, which are per se unconstitutional -  each of  these propositions has been rejected in Indian law and the Indian  Constitution neither admits "suspect classification" nor "strict  scrutiny".  The constitutionality of quotas has been repeatedly  affirmed and reliance by the Petitioners on the United States  "affirmative action" judgments is wholly misconceived.  The  learned Additional Solicitor General  has made special reference to  various American decisions on the doctrine of "affirmative action".   The learned Additional Solicitor General  has also referred to the  decisions of this Court in N.M. Thomas’ case (supra) and   K.C.  Vasanth kumar’s case (supra) and other decisions to contend that  Articles 16(4) and 15(4) are not exceptions to Articles 16(1) and  15(1) respectively and these provisions have to be read together  with the principles of governance set out in Part IV of the  Constitution and it is beyond doubt that underlying constitutional  obligations are towards socially and educationally backward  classes and there is a positive obligation on the State to take steps  to eradicate their backwardness. The learned Additional Solicitor  General also refuted the contentions advanced by Shri P.P. Rao,  learned Senior Counsel, and contended that all efforts have been  made by the Government to improve primary and upper primary  education in India. The learned Additional Solicitor General also  contended that the argument advanced by Dr. Rajeev Dhavan is  not correct.  He relied upon Arjun Sen Gupta’s  Report   wherein it  is stated :-   "\005..Education can be a liberating capability but  access to it is made difficult, if not impossible, by  such inherited characteristics as lower social status,  rural origin, informal work status and gender or a  combination of these."

62.     Shri Ram Jethmalani, learned Senior Counsel  appearing for  the Intervener-Rashtriya Janta Dal Party in W.P. No. 313 of 2007  and W.P. No. 335 of 2007, contended that the attempt of the  petitioners in these writ petitions is to off-set the decision of the  Nine Judges Bench in Indra Sawhney’s case (supra). It is pointed  out that the equality of citizens is the basic feature of the Indian  Constitution but by "equality" is meant not "formal or technical  equality" but  "real and substantial equality".  The word "only" used  in Articles 15(1) and 16(2) is decisive.  Even if reservations are  made for castes, the classification will become invalid if it is only  on the basis of caste and if some other additional requirement is  imposed,  that case would be considered to be outside the  prohibition of Article 15(1).    Reference is made to B.  Venkataramana’s case (supra).  It was contended that a statute  cannot be declared ultra vires merely because backwardness is a  complex concept and no precise definition is possible.  The Court  is bound to assume that a state of facts existed at the time of the  enactment of the statute which would validate that statute and  when the Constitution of the United States came into effect it did  not contain the constitutional right of equality.  Even the Vth  Amendment of 1971 to the Constitution of the United States of  America did not introduce this concept.  The XIVth Amendment of  1868 provided that the "State shall not deny to any person the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 23 of 73  

equal protection of the laws".  Even after this injunction,  the United  States Supreme Court delivered the judgment in Plessy  Vs.   Ferguson ,  which laid down the doctrine of  "Equal but  Separate".    This doctrine was in force till it was reversed in 1954.   The learned Senior Counsel also contended that the policy of  reservation is not destructive of merit and that the Symbiosis  University is not covered by the statute.  

63.     Shri T.R. Andhyarujina, the learned Senior Counsel appearing  for the respondents in W.P. 265/2006, contended that Articles  15(4) and 16(4) operate in different fields and Article 15(4) enables  the State Government to make special provisions for backward  classes, SCs and STs which can be done both by law or by  executive order.  The special provision in Article 15(4) is not  restricted to advancement of SEBCs, SCs and STs in educational  institutions only and enables the State to make several kinds of  positive action programmes in addition to reservations.  As a  condition for giving aid, the State can make reservations for  SEBCs, SCs and STs in educational institutions which are State  owned or State aided.    The State, however, cannot make such  reservations in private unaided educational institutions, as held by  this Court in T.M.A. Pai Foundation  (supra) and P.A. Inamdar  (supra).  This disability was because of T.M.A. Pai Foundation  (supra) which provided that private unaided educational institutions  had a fundamental right to "occupation" of carrying on education  under Article 19(1)(g).  Therefore, the Parliament introduced Article  15(5) by the Constitution (Ninety-Third Amendment) Act to enable  the State to make special provisions for the advancement of SCs,  STs and SEBCs in relation to a specific subject, namely,  admission in educational institutions including private educational  institutions whether aided or unaided by the State notwithstanding  the provisions of Article 19(1)(g).  However,  Article 15(5) excluded  private educational institutions which are minority educational  institutions referred to in clause (1) of Article 30.  The saving for  minority educational institutions in Article 15(5) is really ex  abundandi cautela as minority educational institutions were  constitutionally protected and at all times considered different from  other private educational institutions.   Article 15(5) does not take  away the "basic structure" of the Constitution. The  "basic  structure" of the Constitution   should not be trivialized to mean  other features of the Constitution.  Reference was made to the  observations made by  Khanna, J. in Kesavananda Bharati’s  case (supra).  It was also submitted that Article 15(5) does not  amend Entry 25 List III to the extent that the State can no more  make laws for reservation of seats in minority educational  institutions and, therefore, it is incorrect to say that the amendment  in Article 15(5) required ratification under Article 368(2).  The  State’s power to legislate under Article 245 is always subject to the  other provisions of the Constitution, including fundamental rights.    Article 15(4) does not take away the power of the State to make  reservations in its own institutions by an executive action under  Article 162.  Right to carry on business is not a part of the basic  structure of the Constitution.  

64.     On behalf of the respondent/State of Bihar in Writ Petition (Civil)  No. 269/2007, learned Senior Counsel Shri Rakesh Dwivedi  submitted that the use of non-obstante clauses in Article 15(3), (4)  and (5) vis-a-vis Article 15(1) shows that the prohibition against  use of only caste as a ground for discrimination qua any citizen is  there in so far as making of a special provision for advancement of  prescribed categories is concerned.  There is no repugnance  between 15(4) and 15(5).  It was contended that in Kesavananda  Bharati’s case (supra), it was held that "Part III of the Constitution  could be amended subject to the basic structure doctrine".  The  view which was held in   I.C. Golak  Nath & Ors.   Vs. State of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 24 of 73  

Punjab & Anrs,  making Article 368 more restrictive, had been  overruled in Kesavananda Bharati’s case (supra).  The  Fundamental Rights are not absolute and are designed to suffer  reasonable restrictions and classifications.  Any sort of  abridgement by Constitutional Amendment is clearly permissible  so long as the invasion does not amount to total elimination or  emasculation.  Within the domain of equality there is distinction  between formal equality and real equality or equality in fact and  both are comprehended in Article 14 and both are part of the basic  structure.

65.     The learned Senior Counsel also contended that the judicial  review ideas of "suspect classification", "strict scrutiny",  "compelling State interest" and "narrow tailoring" are measures  propounded by the U.S. Supreme Court are not applicable and the  Supreme Court of India has consistently taken a view that the  judgments of the U.S. Supreme Court do not afford safe guidance  on account of differing structure of the provisions under the two  constitutions and the social conditions in these two countries being  different.   

66.     Reference was made to the various decisions of this court and it  was argued that the comparison of the 14th Amendment of the US  Supreme Court read with Civil Rights Act, 1964 on the one hand  and the fascicules of equality provisions in the Constitution of  India, i.e. Articles 14 to 18 on the other hand shows that the  equality provisions of our Constitution are not only differently  structured but it contains provisions for making special provisions  for the advancement of SEBCs & SCs/STs.  It is pointed out that  our Constitution additionally enshrines Directive Principles of State  Policy in Part-IV of the Constitution requiring the State to strive to  promote justice social, economic and political and to minimize the  inequalities in income and endeavour to remove inequalities in  status, facilities and opportunities (Article 38).

67.     Shri Ravivarma Kumar, learned Senior Counsel appearing for  Pattali Makkal Katchi, contended that the creamy layer principle  shall not be invoked for the purpose of Article 15(5).  According to  the Counsel, reservation in educational institutions is not a poverty  alleviation programme nor it is a programme to eradicate  unemployment.  Reservation under Article 15(5) is not even a  programme to educate all the backward classes.  According to the  Counsel the one and only goal of the reservation policy under  Clause 4 & 5 of Article 15 of the Constitution is to bring about  equality among various castes and unless all the castes are  brought to one level playing field, the caste system cannot be  eradicated.  It is intended for removal of inequality between castes  so that the castes will come together.  These provisions are  designed to bring together the leaders of each caste and  community together and the same can be achieved only if the best  teachers, the best administrators, the best doctors, the best  engineers and the best lawyers are brought together.  And so long  as the gap in education persists between castes, the castes will  not come together.  It is only when each backward caste is  permitted to advance educationally to meet the educational level of  upper castes, can there be a real egalitarian society.  According to  the Counsel, it is precisely for this reason that Clause (2) of Article  38 seeks to eliminate inequality in status, facilities and  opportunities, not only among individuals, but also among groups  of people.  Therefore, it is to provide for such equality in status,  facilities and opportunities, that reservation is contemplated to  those castes which are socially and educationally below other  castes.   If the best from the lower caste are deprived of these  facilities and opportunities in the name of "creamy layer", it will be  counter productive and frustrate the very object of reservation,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 25 of 73  

namely to achieve equality in status, facilities and opportunities.   

68.     The Counsel also contended that the question of prescribing  prior time limit for reservation under the impugned Act is immature  and should not be considered at this stage.  

69.     The link between "caste" and its occupation is an unbreakable  bondage to which the caste system has condemned the backward  classes.  Whether a backward caste man carries on his traditional  occupation or not, he continues to be socially identified with the  said occupation.  This link between the caste and the occupation  has not been severed for thousands of years and it cannot be  broken by arguments and theories.  The ground reality is that  every caste in every village is identified by its traditional  occupation.  And all the service communities continue to discharge  their traditional occupation.  It is pointed out that throughout the  country in 6.5 lakh villages, it is the barber communities and barber  communities alone, which carry on the traditional occupation of  hair cuttings and no other community has taken up the said  occupation. And they continue to labour without any social security  or whatsoever.   

70.     The Counsel pointed out that the last six decennial censuses  have eschewed recording of caste particulars, the three National  Commissions and scores of State Commissions have found these  Census data useless in identification of Backward Classes.   71.     The learned Counsel submitted that there is no justification for  not collecting details of caste identity at the decennial census  operation. According to the Counsel a massive exercise is  rendered useless for the all important work of identification of  Backward Classes.

72.     It is further submitted that the entire identification of backward  classes has not been done on the basis of 1931 Census data.  In  each State the identification of Backward Classes has been done  on the basis of criteria evolved by the State Commissions on  social, educational and economic parameters.  Each State has  adopted its own methodology.  The identification of backward  classes is essentially done at the State level on a very objective  criteria and a scientific methodology.    According to the Counsel,  origin of the term "classes of citizens" may be traced to the later  part of the 19th century.  Quite often classes have been  interchangeably used with castes, tribes and communities.  Some  of the earlier Committee reports referred to Depressed Classes.     Under the 1919 Act, Governors of the provinces give instruction to  take measures for the social and industrial welfare of the people  and tending to fit all classes of population.  And the Provincial  Governments prepared a list of Backward Classes with three parts  namely, Depressed Classes, Aboriginal Tribes and Backward  Communities.  Dr. Ambedkar demanded separate electorate for  the Depressed Classes at the Round Table Conference.

73.     The Counsel also pointed out that the building of a casteless  society is not the goal of the Constitution.  And that it is futile to  contend that caste should not be considered for any purpose  whatsoever.  In every conceivable activity of private life caste  system plays an important role.  There are hundreds of communal  hostels and educational institutions owned and managed by  certain communities.  Some castes and communities have  communal clubs, associations, cooperatives, banks etc.  Their  membership and admission are confined to a particular caste or  community.  Even carrying of the caste names is the guaranteed  right of every citizen.  There is nothing in the Constitution to  prohibit a person from discriminating on the ground only of caste or

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 26 of 73  

community in matters relating to marriage, electing candidates to  political position etc.  Most of the professional colleges like  medical, dental and engineering colleges are established and  administered by a body of persons exclusively belonging to a class  or a community.  Though Dr. Ambedkar intended to abolish caste  system by abolishing all the privileges and disabilities of the  forward classes, the plea was opposed by Shri K.M. Munshi and  the Draft Article 3(4) stated:

"Un-touchability is abolished and its practice thereof is  punishable by the law of the Union".

74.     The Constitution never prohibits the practice of caste and  casteism.  Every activity in Hindu society, from cradle to grave is  carried on solely on the basis of one’s caste.  Even after death, a  Hindu is not allowed to be cremated in the crematorium which is  maintained for the exclusive use of the other caste or community.   Dalits are not permitted to be buried in graves or cremated in  crematoriums where upper caste people bury or cremate their  dead.  Christians have their own graveyards.  Muslims are not  allowed to be buried in the Hindu crematoriums and vice-versa.   Thus, caste rules the roost in the life of a Hindu and even after his  death.  In such circumstances, it is entirely fallacious to advance  this argument on the ground that the Constitution has prohibited  the use of caste.  It was argued what the Constitution aims at is  achievement of equality between the castes and not elimination of  castes.   

75.     The learned Senior Counsel points out that it would be utopian  to expect that by ignoring caste, the castes will perish.  And the  Counsel contended the Constitution has not abolished the caste  system much less has it prohibited its use.  The Counsel pointed  out that the Constitutional Amendment under the impugned Act in  favour of backward classes is an unprecedented leap taking the  higher education in the country forward, without depriving a single  seat to the forward castes.  And the advanced castes, with a  population of less than 20% would still be able to get 50% of the  seats in the name of merit disproportionate to their known  proportion of their population.  It is contended that without the  advancement of SCs, STs and OBCs constituting over 80%  population and mainly living in rural areas, it will not be possible to  take the nation forward.  And the students who are admitted under  the reserved quota have performed much better than the students  admitted on the basis of merit.  The learned Counsel also placed  reliance on the Moily Report \026 Case studies from four States.

76.     The main challenge in these writ petitions is the constitutional  validity of the Act 5 of 2007. This legislation was passed by  Parliament consequent upon The Constitution (Ninety-Third  Amendment) Act, 2005, by which sub-article (5) was inserted in  Article 15 of the Constitution.  The constitutionality of this  amendment has also been challenged in the various writ petitions  filed by the petitioners.   As the Act itself is based on the  Constitution (Ninety-Third  Amendment) Act, 2005, the validity of  the Act depends on the fact whether the Constitution (Ninety-Third   Amendment) Act, 2005 itself is valid or not.  Article 15  of the  Constitution, after the Constitution (Ninety-Third Amendment) Act,  2005, reads as follows :-   

"15. Prohibition of discrimination on grounds of  religion, race, caste, sex or place of birth.\027 (1) The State shall not discriminate against any citizen  on grounds only of religion, race, caste, sex, place of  birth or any of them. (2)  No citizen shall, on grounds only of religion, race,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 27 of 73  

caste, sex, place of birth or any of them, be subject to  any disability, liability, restriction or condition with  regard to,--

(a)     access to shops, public restaurants, hotels and  places of public entertainment; or (b)     the use of wells, tanks, bathing ghats, roads and  places of public resort maintained wholly or partly out  of State funds or dedicated to the use of the general  public.

(3) Nothing in this Article shall prevent the State from  making any special provision for women and children. (4) Nothing in this Article or in clause (2) of Article 29  shall prevent the State from making any special  provision for the advancement of any socially and  educationally backward classes of citizens or for the  Scheduled Castes and the Scheduled Tribes  (5) Nothing in this Article or sub-clause (g) of clause  (1) of Article 19 shall prevent the State from making  any provision by law for the advancement of any  socially and educationally backward classes of  citizens or the Scheduled Castes or the Scheduled  Tribes in so far as such special provision relate to  their admission to the educational institutions,  including private educational institutions whether  aided or unaided by the State other minority  educational institutions referred to in clause (1) of  Article 30."

77.             T.M.A. Pai Foundation (supra) held that a private unaided  educational institution has the fundamental right under Article  19(1)(g) of the Constitution as the running of an educational  institution was treated as an "occupation"  and further that the  State’s regulation in such institutions would not be regarded as a  reasonable restriction on that fundamental right to carry on  business under  Article 19(6). This decision necessitated the  Ninety-Third  Amendment to the Constitution since as a result of  T.M.A. Pai Foundation  (supra) the State would not be in a  position to control or regulate the admission in private educational  institutions. At the outset, it may have to be stated that no  educational institution has come up to challenge the Constitution  (Ninety-Third Amendment) Act, 2005.  The challenge about the  constitutionality of the Constitution (Ninety-Third Amendment) Act,  2005 has been advanced by the petitioners, who based their  contentions on the equality principles enunciated in Articles 14, 15  and 16 of the Constitution.       78.     The Constitution (Ninety-Third  Amendment) Act, 2005 is  challenged on many grounds.  The first ground of attack is that if  the Constitution (Ninety-Third  Amendment) Act, 2005 is allowed to  stand it would be against the "basic structure"  of the Constitution  itself and this Amendment seriously abridges the equality  principles guaranteed under Article 15 and other provisions of the  Constitution.  Another contention raised by the petitioners’ Counsel  is that the Golden Triangle of Articles 14, 19 and 21 is not to be  altered and the balance and structure of these constitutional  provisions has been ousted by the Constitution (Ninety-Third   Amendment) Act, 2005.   Yet another contention urged by          Shri K.K. Venugopal, learned Senior Counsel, is that Article 15(4)  and 15(5) are mutually exclusive and under Article 15(5) the  minority educational institutions are excluded.  According to him,  this is a clear contravention of the secular and equality principles.   The learned Senior Counsel also pointed out that minority

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 28 of 73  

institutions are not severable from the purview of Article 15(5) and  therefore, the whole Constitution (Ninety-Third  Amendment) Act,  2005 is to be declared illegal.   Another argument advanced by the  learned Senior Counsel is that there is inconsistency between  Article 15(4) and Article 15(5) and by virtue of the Constitution  (Ninety-Third  Amendment) Act, 2005, the States are devoid of  their wide power under Article 15(5) to make reservation in  minority educational institutions which are getting aid from the  States and thus it is violative of the very essence of equality.  He  further argued that the Constitution (Ninety-Third Amendment) Act,  2005 could control the legislative and executive power of the State  and, therefore, it is not constitutionally valid.   The learned Counsel  had further challenged the validity of Act 5 of 2007, with which we  will deal separately.   

1.   Whether Ninety-Third  Amendment of the Constitution is  against the "basic structure" of the Constitution?          79.     The Constitution (Ninety-Third Amendment) Act, 2005, by  which clause (5) was added to Article 15 of the Constitution, is an  enabling provision which states that nothing in Article 15 or in     sub-clause (g) of clause (1) of article 19 shall prevent the State  from making any special provision, by law, for the advancement of  any socially and educationally backward classes of citizens or for  the Scheduled Castes or the Scheduled Tribes in so far as such  special provisions relate to their admission to the educational  institutions including private educational institutions, whether aided  or unaided by the State.  Of course, minority educational  institutions referred to in clause (1) of Article 30 are excluded.  Thus, the newly added clause (5) of Article 15 is sought to be  applied to educational institutions whether aided or unaided. In  other words, this newly added constitutional provision would  enable the State to make any special provision by law for  admission in private educational institutions whether aided or  unaided.  In all the petitions which have been filed before us the  main challenge is against Act 5 of 2007.  Act 5 of 2007 has been  enacted to provide reservation of seats for Scheduled Castes,  Scheduled Tribes and SEBCs of citizens in Central Educational  Institutions.  The "Central Educational Institution" has been defined  under Section 2(d) of the Act.  They are institutions established or  incorporated by or under the Central Act or set up by an Act of  Parliament or deemed Universities maintained by or receiving aid  from the Central Government or institutions maintained by or  receiving aid from the Central Government or educational  institutions set up by the Central Government under the Societies  Registration Act, 1860.  Act 5 of 2007 is not intended to provide  reservation in "private unaided" educational institutions.  None of  the private unaided educational institutions have filed petitions  before us challenging the Ninety-Third Constitutional Amendment.   Though the learned counsel appearing for the petitioners have  challenged the Ninety-Third Constitutional Amendment on various  grounds, they were vis-‘-vis the challenge to Act 5 of 2007.  The  counter to the challenge by the learned Solicitor General as well as  by Shri K. Parasaran, learned Senior Counsel was also in that  context.  We do not want to enter a finding as to whether the  Ninety-Third Constitutional Amendment is violative of the "basic  structure" of the Constitution so far as it relates to "private unaided"  educational institutions.  In the absence of challenge by private  unaided educational institutions, it would not be proper to  pronounce upon the constitutional validity of that part of the  Constitutional Amendment.  As the main challenge in these  various petitions  was only regarding the provisions of Act 5 of  2007, which related to state maintained institutions, the challenge  to the Ninety-Third Constitutional Amendment so far as it relates to  private unaided educational institutions, does not strictly arise in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 29 of 73  

these proceedings.  In the absence of challenge by private  unaided institutions, it may not be proper for this Court to decide  whether the Ninety-Third Constitutional Amendment is violative of  the "basic structure" of the Constitution so far as it relates to  private unaided educational institutions merely because we are  considering its validity in the context of Act 5 of 2007.

We feel that such questions could be decided as the main  questions that are involved in these petitions are specific regarding  Act 5 of 2007, we leave open the question as to whether the  Ninety-Third Amendment to the Constitution by which sub-clause  (5) was inserted is violative of the basic structure doctrine or not so  far as it relates to "private unaided" educational institutions to be  decided in other appropriate cases.  We deal only with the  question of whether the Ninety-Third Constitutional Amendment is  constitutionally valid so far as it relates to the state maintained  institutions and aided educational institutions.

80.     Several contentions have been advanced by the petitioners’  Counsel challenging the constitutional validity of the Constitution  (Ninety-Third Amendment) Act, 2005.  The main argument was on  the ground that this amendment is against the "basic structure" of  the Constitution.  In order to appreciate the contention of the  petitioners’ Counsel, it is necessary to understand the "basic  structure" theory that has been propounded in the celebrated case  of Kesavananda Bharati (supra).  This case was a decision of 13  Judge Bench of this Court. Though the Judges were not  unanimous about what the "basic structure" of the Constitution be,  however, Shelat J.  (at page 280) in his judgment had indicated the  following basic features of the Constitution :-

"The basic structure of the Constitution is not a  vague concept and the apprehensions expressed  on behalf of the respondents that neither the citizen  nor the Parliament would be able to understand it  are unfounded.  If the historical background, the  Preamble, the entire scheme of the Constitution, the  relevant provisions thereof including Article 368 are  kept in mind there can be no difficulty in discerning  that the following can be regarded as the basic  elements of the constitutional structure.  (These  cannot be catalogued but can only be illustrated) :-

1.      The supremacy of the Constitution. 2.      Republican and Democratic form of  Government and sovereignty of the country. 3.      Secular and federal character of the  Constitution. 4.      Demarcation of power between the  legislature, the executive and the judiciary. 5.      The dignity of the individual secured by the  various freedoms and basic rights in Part III  and the mandate to build a welfare State  contained in Part IV. 6.      The unity and the integrity of the nation."        

81.     Sikri, CJ (at page 165-166) held that :- "The true position is that every provision of the   Constitution can be amended provided in the result  the basic foundation and structure of the  constitution remains the same.  The basic structure  may be said to consist of the following features :-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 30 of 73  

(1)     Supremacy of the Constitution. (2)     Republication and Democratic form of  Government. (3)     Secular character of the Constitution. (4)     Separation of powers between the  Legislature, the executive and the judiciary. (5)     Federal character of the Constitution."

82.     The power of Parliament to amend the Constitution also was  dealt with in detail and majority of the Judges held that the  fundamental rights can be amended, altered or abridged.   The  majority decision in Kesavananda Bharati’s case (supra)  overruled the decision in I.C. Golak Nath  Vs. State of Punjab,   (supra).   Kesavananda Bharati indicates the extent to which  amendment of the Constitution could be carried out and lays down  that the legality of an amendment is no more open to attack than  the Constitution itself.   It was held that the validity of an ordinary  law can be questioned and when it is questioned it must be  justified by reference to a higher law. In the case of the  Constitution the validity is inherent and lies within itself.   The  Constitution generates its own validity.  The validity of the  Constitution lies in the social fact of its acceptance by the  community.  There is a clear demarcation between an ordinary law  made in exercise of the legislative power and the constituent law  made in exercise of constitutional power. Therefore, the power to  amend the Constitution is different from the power to amend  ordinary law.  The distinction between the legislative power and  the constitutional power is vital in a rigid or controlled Constitution  because it is that distinction which brings in the doctrine that a law  ultra vires the Constitution is void.  When the Parliament is  engaged in the amending process it is not legislating, it is  exercising a particular power bestowed upon it sui generis by the  amending clause in the Constitution.   Sikri, CJ, held that the  expression "amendment of this Constitution" does not enable  Parliament to abrogate or take away fundamental rights or to  completely change the fundamental features of the Constitution so  as to destroy its identity. Within these limits Parliament can amend  every article.   Shelat & Grover JJ. ( at p 291) concluded that : "Though the power to amend cannot be narrowly  construed and extends to all the Articles it is not  unlimited so as to include the power to abrogate or  change the identity of the Constitution or its basic  features."

83.     Hegde & Mukherjee, JJ.  finally concluded (at p 355) that : "The power to amend the Constitution under Article  368 as it stood before its amendment empowered  the Parliament by following the form and manner  laid down in that Article, to amend each and every  Article and each and every Part of the  Constitution\005.. Though the power to amend the  Constitution under Article 368 is a very wide power,  it does not yet include the power to destroy or  emasculate the basic elements or the fundamental  features of the Constitution."

84.     Ray J. (as he then was) (at p 461) held that :- "\005The Constitution is the supreme law.  Third, an  amendment of the Constitution is an exercise of the  constituent power.  The majority view in Golak Nath  case is with respect wrong.  Fourth, there are no  express limitations to the power of amendment.   Fifth,  there are no implied and inherent limitations  on the power of amendment.   Neither the Preamble  nor Article 13(2) is at all a limitation on the power of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 31 of 73  

amendment. Sixth,   the power to amend is wide  and unlimited.  The power  to amend means the  power to add, alter or repeal any provision of the  Constitution.  There can be or is no distinction  between essential and in-essential features of the  Constitution to raise any impediment to amendment  of alleged essential features."

85.     Palekar, J.  (at p. 632) concluded that :- "The power and the procedure for the amendment  of the Constitution were contained in the  unamended Article 368.  An Amendment of the  Constitution in accordance with the procedure  prescribed in that Article is not a ’law’ within the  meaning of Article 13.   An amendment of the  Constitution abridging or taking away a fundamental  right conferred by Part III of the Constitution is not  void as contravening the provisions of Article 13(2).   There were no implied or inherent limitations on the  amending power under the unamended Article 368  in its operation over the fundamental rights.  There  can be none after its amendment."

86.     Khanna, J. (at p. 758, 759) concluded that :- "The power to amendment under Article 368 does  not include power to abrogate the Constitution nor  does it include the power to alter the basic structure  or framework of the Constitution. Subject to the  retention of the basic structure or framework of the  Constitution, the power of amendment is plenary  and includes within itself the power to amend the  various articles of the Constitution, including those  relating to fundamental rights as well as those which  may be said to relate to essential features.  No part  of a fundamental right can claim immunity from  amendatory process by being described as the  essence or core of that right.  The power of  amendment would also include within itself the  power to add, alter or repeal the various articles."   

87.     Mathew, J. (at p. 857) held that :- "The only limitation is that the Constitution cannot  be repealed or abrogated in the exercise of the  power of amendment without substituting a  mechanism by which the State is constituted and  organized. That limitation flows from the language  of the article itself."

88.     Beg, J. (at p. 886) held that :- "The majority view in Golak Nath’s case (supra),  holding that Article 13 operated as a limitation upon  the powers of Constitutional amendment found in  Article 368, was erroneous." He upheld the 24th Amendment and the 25th Amendment Act  including addition of Article 31C. 89.     Dwivedi, J finally concluded that : "The word "amendment" in Article 368 is broad  enough to authorize the varying or abridging each  and every provision of the Constitution, including  Part III.  There are no inherent and implied  limitations of the amendment power in Article 368"

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 32 of 73  

90.     Finally, Chandrachud, J.  ( at p. 1000)  held that : " The power of amendment of the Constitution  conferred by the then Article 368 was wide and  unfettered. It reached every part and provision of  the Constitution."

91.             A survey of the conclusions reached by the learned Judges  in Kesavananda Bharati’s case (supra) clearly shows that the  power of amendment was very wide and even the fundamental  rights could be amended or altered.  It is also important to note  that the decision in RE : The Berubari Union and Exchange of  Enclaves, Reference under Article 143(1) of the Constitution  of India , to the effect that preamble to the Constitution was not  part of the Constitution was disapproved in Kesavananda  Bharati’s case (supra) and it was held that it is a part of the  Constitution and the Preamble to the Constitution is of extreme  importance and the Constitution should be read and interpreted in  the light of the grand and noble visions envisaged in the Preamble.   A close analysis of the decisions in Kesavananda Bharati’s case  (supra) shows that all the provisions of the Constitution, including  the fundamental rights, could be amended or altered and the only  limitation placed is that the basic structure of the Constitution shall  not be altered.    The judgment in Kesavananda Bharati’s case  (supra) clearly indicates what is the basic structure of the  Constitution.   It is not any single idea or principle like equality or  any other constitutional principles that are subject to variation, but  the principles of equality cannot be completely taken away so as to  leave the citizens in this country in a state of lawlessness.  But the  facets of the principle of equality could always be altered  especially to carry out the Directive Principles of the State Policy  envisaged in Part IV of the Constitution.  The Constitution (Ninety- Third Amendment) Act, 2005 is to be examined in the light of the  above position.

92.     The basic structure of the Constitution is to be taken as a larger  principle on which the Constitution itself is framed and some of the  illustrations given as to what constitutes the basic structure of the  Constitution would show that they are not confined to the alteration  or modification of any of the Fundamental Rights alone or any of  the provisions of the Constitution.  Of course, if any of the basic  rights enshrined in the Constitution are completely taken out, it  may be argued that it amounts to alteration of the Basic Structure  of the Constitution.  For example, the federal character of the  Constitution is considered to be the basic structure of the  Constitution. There are large number of provisions in the  Constitution dealing with the federal character of the Constitution.   If any one of the provisions is altered or modified, that does not  amount to the alteration of the basic structure of the Constitution.   Various fundamental rights are given in the Constitution dealing  with various aspects of human life.   The Constitution itself sets out  principles for an expanding future and is obligated to endure for  future ages to come and consequently it has to be adapted to the  various changes that may take place in human affairs.

93.     For determining whether a particular feature of the Constitution  is part of the basic structure or not, it has to be examined in each  individual case keeping in mind the scheme of the Constitution, its  objects and purpose and the integrity of the Constitution as a  fundamental instrument for the country’s governance.  It may be  noticed that it is not open to challenge the ordinary legislations on  the basis of the basic structure principle.  State legislation can be  challenged on the question whether it is violative of the provisions  of the Constitution.  But as regards constitutional amendments, if  any challenge is made on the basis of basic structure, it has to be  examined based on the basic features of the Constitution.  It may

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 33 of 73  

be noticed that the majority in Kesavananda Bharati’s case  (supra) did not hold that all facets of Article 14 or any of the  fundamental rights would form part of the basic structure of the  Constitution.  The majority upheld the validity of the first part of  Article 30(1)(c) which would show that the constitutional  amendment which takes away or abridges the right to challenge  the validity of an arbitrary law or violating a fundamental right  under that Article would not destroy or damage the basic structure.   Equality is a multi-coloured concept incapable of a single definition  as is also the fundamental right under Article 19(1)(g). The  principle of equality is a delicate, vulnerable and supremely  precious concept for our society.  It is true that it has embraced a  critical and essential component of constitutional identity.  The  larger principles of equality as stated in Article 14, 15 and 16 may  be understood as an element of the "basic structure" of the  Constitution and may not be subject to amendment, although,  these provisions, intended to configure these rights in a particular  way, may be changed within the constraints of the broader  principle.  The variability of changing conditions may necessitate  the modifications in the structure and design of these rights, but  the transient characters of formal arrangements must reflect the  larger purpose and principles that are the continuous and  unalterable thread of constitutional identity.  It is not the  introduction of significant and far-reaching change that is  objectionable, rather it is the content of this change in so far as it  implicates the question of constitutional identity.   

94.     The observations made by Mathew, J in Smt. Indra Gandhi Vs.  Raj Narain  are significant in this regard: "To be a basic structure it must be a terrestrial concept  having its habitat within the four corners of the  Constitution."  What constitutes basic structure is not  like "a twinkling star up above the Constitution."  It does  not consist of any abstract ideals to be found outside  the provisions of the Constitution.  The Preamble no  doubt enumerates great concepts embodying the  ideological aspirations of the people but these concepts  are particularised and their essential features delineated  in the various provisions of the Constitution.  It is these  specific provisions in the body of the Constitution which  determine the type of democracy which the founders of  that instrument established; the quality and nature of  justice, political, social and economic which they aimed  to realize, the content of liberty of thought and  expression which they entrenched in that document and  the scope of equality of status and of opportunity which  they enshrined in it.   These specific provisions enacted  in the Constitution alone can determine the basic  structure of the Constitution.  These specific provisions,  either separately or in combination, determine the  content of the great concepts set out in the Preamble.  It  is impossible to spin out any concrete concept of basic  structure out of the gossamer concepts set out in the  Preamble.  The specific provisions of the Constitution  are the stuff from which the basic structure has to be  woven".

95.     If any Constitutional amendment is made which moderately  abridges or alters the equality principle or the principles under  Article 19(1)(g), it cannot be said that it violates the basic structure  of the Constitution.  If such a principle is accepted, our Constitution  would not be able to adapt itself to the changing conditions of a  dynamic human society.  Therefore, the plea raised by the  Petitioners’ that the present Constitutional Ninety-Third  Amendment Act, 2005 alters the basic structure of the constitution

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 34 of 73  

is of no force.  Moreover, the interpretation of the Constitution shall  not be in a narrow pedantic way.  The observations made by the  Constitution Bench in Nagaraj’s case (supra) at page 240 are  relevant:

"Constitution is not an ephermal legal document  embodying a set of legal rules for the passing hour.   It sets out principles for an expanding future and is  intended to endure for ages to come and  consequently to be adapted to the various crisis of  human affairs.  Therefore, a purposive rather than a  strict literal approach to the interpretation should be  adopted.  A Constitutional provision must be  construed not in a narrow and constricted sense but  in a wide and liberal manner so as to anticipate and  take account of changing conditions and purposes  so that constitutional provision does not get  fossilized but remains flexible enough to meet the  newly emerging problems and challenges."

96.     It has been held in many decisions that when a constitutional  provision is interpreted, the cardinal rule is to look to the Preamble  to the Constitution as the guiding star and the Directive Principles  of State Policy as the ’Book of Interpretation’. The Preamble  embodies the hopes and aspirations of the people and Directive  Principles set out the proximate grounds in the governance of this  country.   

97.     Therefore, we hold that the Ninety-Third Amendment to the  Constitution does not violate the "basic structure" of the  Constitution so far as it relates to aided educational institutions.  Question whether reservation could be made for SCs, STs or  SEBCs in private unaided educational institutions on the basis of  the Ninety-Third Constitutional Amendment; or whether reservation  could be given in such institutions; or whether any such legislation  would be violative of Article 19(1)(g) or Article 14 of the  Constitution; or whether the Ninety-Third Constitutional  Amendment which enables the State Legislatures or Parliament to  make such legislation - are all questions to be decided in a  properly constituted lis between the affected parties and others  who support such legislation.

2.   Whether Articles 15(4) and 15(5) are mutually  contradictory, hence Article 15(5) is to be held ultra vires?

98.     The next contention raised by the petitioner’s Counsel is that  Article 15(4) and 15(5) are mutually exclusive and contradictory.   The Counsel for the petitioner, particularly the petitioner in Writ  Petition (C) No. 598 of 2006, submitted that Article 15(4) was a  provision and a source of legislative power for the purpose of  making reservation for Scheduled Castes (SCs) and Scheduled  Tribes (STs) as well as for Socially and Educationally Backward  Classes (SEBCs) of citizens in aided minority educational  institutions.  And Article 15(4) was inserted after the decision of  this Court in Champakam Dorairajan (supra) and Article 15(5)  provides for reservation of seats for SCs, STs and SEBCs in aided  or unaided educational institutions but expressly excludes all such  reservation being made in minority educational institutions covered  by Article 30(1) of the Constitution.  This, according to the  Petitioner’s learned Counsel, will lead to a situation where the  State would not be in a position to give reservation to SCs, STs  and SEBCs even in aided minority institutions which have got  protection under Article 30(1) of the Constitution.  It is argued that  in view of the express provision contained in Article 15(5), the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 35 of 73  

State would no more be able to give the reservation and this  according to the petitioner’s Counsel would result in annulling the  endeavour of the founding fathers and the various provisions for  neutralizing the exclusion of SCs & STs from the mainstream of  society and development for centuries.

99.     It is argued by petitioners’ learned Counsel that Article 15(4)  and 15(5) both commence with an exclusionary clause excluding  the operation of the rest of the Article 15, and hence would result  in a conflict to the extent of inconsistency. According to the  petitioners’, Article 15(5) is a special provision relating to  educational institutions and being a later amendment, it would  prevail over Article 15(4), thus in substance and effect resulting in  an amendment of Article 15(4) of the Constitution.  According to  the petitioner’s Counsel, "nothing in this Article" in Article 15(5)  would include Article 15(4) also and in view of this inconsistent  provision, Article 15(5) has to be held to be inconsistent with 15(4)  and thus non-operative.   

100.    Both Article 15(4) and 15(5) are enabling provisions.  Article  15(4) was introduced when the "Communal G.O." in the State of  Madras was struck down by this Court in Champakam  Dorairajan’s case (supra).  In Unni Krishnan  (supra), this Court  held that Article 19(1)(g) is not attracted for establishing and  running educational institutions.  However, in T.M.A. Pai  Foundation case, (supra), it was held that the right to establish  and running educational institutions is an occupation within the  meaning of Article 19(1)(g).  The scope of the decision in T.M.A.  Pai Foundation’s case was later explained in P.A. Inamdar’s  case, (supra).  It was held that as regards unaided institutions, the  State has no control and such institutions are free to admit  students of their own choice.  The said decision necessitated the  enactment of the Constitution Ninety-Third Amendment Act, 2005.   Thus, both Article 15(4) and 15(5) operate in different areas.  The  "nothing in this Article" [mentioned at the beginning of Article 15(5)]  would only mean that the nothing in this Article which prohibit the  State on grounds which are mentioned in Article 15(1) alone be  given importance.  Article 15(5) does not exclude 15(4) of the  Constitution.  It is a well settled principle of constitutional  interpretation that while interpreting the provisions of Constitution,   effect shall be given to all the provisions of the Constitution and no  provision shall be interpreted in a manner as to make any other  provision in the Constitution inoperative or otiose.  If the  intention  of the Parliament was to exclude Article 15(4), they could have  very well deleted Article 15(4) of the Constitution.  Minority  institutions are also entitled to the exercise of fundamental rights  under Article 19(1)(g) of the Constitution, whether they be aided or  unaided.  But in the case of Article 15(5), the minority educational  institutions, whether aided or unaided, are excluded from the  purview of Article 15(5) of the Constitution.  Both, being enabling  provisions, would operate in their own field and the validity of any  legislation made on the basis of Article 15(4) or 15(5) have to be  examined on the basis of provisions contained in such legislation  or the special provision that may be made under Article 15(4) or  15(5).  It may also be noticed that no educational institutions or  any aggrieved party have come before us challenging the  constitutional amendment on these grounds.  The challenge is  made by petitioners objecting to the reservations made under Act  5 of 2007.  Therefore, the plea that Article 15(4) and 15(5) are  mutually contradictory and, therefore, Article 15(5) is not  constitutionally valid cannot be accepted.  As has been held in  N.M. Thomas case (supra) and Indra Sawhney’s case (supra),  Article 15(4) and 16(4) are not exceptions to Article 15(1) and  Article 16(1) but independent enabling provision.  Article 15(5) also  to be taken as an enabling provision to carry out certain

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 36 of 73  

constitutional mandate and thus it is constitutionally valid and the  contentions raised on these grounds are rejected.

3.   Whether exclusion of minority educational institutions  from Article 15(5) is violative of Article 14 of Constitution?

101.    Another contention raised by the petitioner’s Counsel is that the  exclusion of minority institutions under Article 15(5) itself is  violative of Article 14 of the Constitution.  It was contended that the  exclusion by itself is not severable from the rest of the provision.   This plea also is not tenable because the minority institutions have  been given a separate treatment in view of Article 30 of  Constitution.  Such classification has been held to be in  accordance with the provisions of the Constitution.  The exemption  of minority educational institutions has been allowed to conform  Article 15(5) with the mandate of Article 30 of the Constitution.   Moreover, both Article 15(4) and Article 15(5) are operative and  the plea of non-severability is not applicable.

102.            Learned Senior Counsel Dr. Rajeev Dhavan and learned  Counsel Shri Sushil Kumar Jain appearing for the petitioners  contended that the Ninety-Third Constitutional Amendment would  violate the equality principles enshrined in Articles 14, 19 and 21  and thereby the "Golden Triangle" of these three Articles could be  seriously violated.  The learned counsel also contended that  exclusion of  minorities from the operation of Article 15(5) is also  violative of Article 14 of the Constitution.  We do not find much  force in this contention.  It has been held that Article 15(4) and  Article 16(4) are not exceptions to Article 15(1) and Article 16(1)  respectively.  It may also be noted that if at all there is any violation  of Article 14 or any other equality principle, the affected  educational institution should have approached this Court to  vindicate their rights.   No such petition has been filed before this  Court.  Therefore, we hold that the exclusion of minority  educational institutions from Article 15(5) is not violative of Article  14 of the Constitution as the minority educational institutions, by  themselves, are a separate class and their rights are protected by  other constitutional provisions.  

4.  Whether the Constitutional Amendment followed the  procedure prescribed under Article 368 of the Constitution?

103.    Another contention raised by the petitioner’s Counsel is that the  Ninety-Third Constitutional Amendment is invalid as it violates the   proviso to Article 368 of the Constitution.  According to the  petitioner’s Counsel, the procedure prescribed under the proviso to  Article 368 was not followed in the case of the Ninety-Third  Amendment.  According to the petitioner’s Counsel, Article 15(5) of  the Constitution interferes with the executive power of the States  as it impliedly takes away the power of the State Government  under Article 162 of the Constitution.

104.    This contention of the petitioner’s Counsel has no force.  The  powers of the Parliament and the State legislatures to legislate are  provided for under Article 245-255 of the Constitution.  Under the  proviso to Article 162, any matter with respect to which the  legislature of the State and the Parliament have power to make  laws, the executive power of the State shall be subject to and  limited by the executive power expressly conferred by the  Constitution or by any law made by Parliament upon the Union  authorities thereof.  The Ninety-Third Constitutional Amendment  does not expressly or impliedly take away any such power  conferred by Article 162.  It may also be noticed that by virtue of  the 42nd Amendment to the Constitution, "education" which was  previously in Entry No. 11 in List II was deleted and inserted in List

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 37 of 73  

III as Entry No. 25 as the field of legislation in List III.  Article 245  will operate and by reasons of proviso to Article 162, the executive  power of the State be subject to, limited by, the executive power  expressly conferred by the Constitution or by any law made by  Parliament upon the Union authorities thereof.  Subject to  restrictions imposed under the Constitution, it has been in  existence.  Such power of the State is not limited or curtailed by  the Ninety-Third Constitutional Amendment as it does not interfere  with the power of the State under Article 162.  The Ninety-Third    Constitutional Amendment does not fall within the scope of proviso  to Article 368.    Therefore, the plea raised by the petitioner’s  Counsel that the Ninety-Third Constitutional Amendment did not  follow the prescribed procedure of Article 368 is not correct and  the plea is only to be rejected.    5.   Whether the Act 5 of 2007 is constitutionally invalid in  view of definition of "Backward Class" and whether the  identification of such "Backward Class" based on "caste" is  constitutionally valid?

105.    The next important plea raised by the petitioner’s Counsel is  regarding the validity of the Act 5 of 2007.  The several contentions  have been raised regarding the validity of the Act 5 of 2007.  The  first contention which was raised by the petitioner’s Counsel that  this Act is ex-facie unconstitutional and is a suspect legislation and  violative of the Article 14, 15 and 19(1)(g) of the Constitution.  The  main attack against the Act was that the socially and educationally  backward classes of citizens were not properly identified and the  delegation of power to identify the socially and educationally  backward classes of citizens to the Central Government itself is  illegal and the delegation of such powers  by itself without laying  down any guidelines is arbitrarily illegal.  Elaborate arguments  were made by the petitioner’s Counsel and the first and foremost  contention was that "caste" is the sole basis on which the socially  and educationally backward classes of citizens were determined.   And this, according to the petitioner’s Counsel, is illegal.   Reference was made to a series of decisions of this Court on this  issue.

106.    There is a long jurisprudential history as to whether caste can  play any role in determining the socially and educationally  backward classes of citizens.  In Indra Sawhney’s case (supra),  which is a Nine Judge Bench decision, it was held that the "caste"  could be a beginning point and a determinative factor in identifying  the socially and educationally backward classes of citizens.  But  nevertheless, a brief survey of various decisions on this question  would give a history of the jurisprudential development on this  subject.  

107.    Reference to the earlier decisions is necessary because serious  doubt has been raised as to whether "caste" could be the basis for  recognizing backwardness.  Some of the earlier decisions have  stated that caste should not be a basis for recognizing  backwardness and gradually  there was a shift  in the views and  finally, in Indra Sawhney’s case (supra), it was held  that caste  could be the starting point for determining the socially and  educationally backward classes of citizen..

108.            In Champakam Dorairajan (supra),  this Court struck down  the classification made in the Communal G.O. of the then State of  Madras.  The G.O. was founded on the basis of religion and castes  and was struck down on the ground that it is opposed to the  Constitution and is in violation of the fundamental rights   guaranteed to the citizens.  The court held that Article 46 cannot  override  the provisions of Article 29 (2)  because of the Directive

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 38 of 73  

Principles of State Policy which were then taken subsidiary to  fundamental rights. This decision led to the first constitutional  amendment by which Article 15(4) was added to the Constitution.  

109.            The next important case is M.R. Balaji & Ors.   Vs.   State  of Mysore (supra).   In this case, the State of Mysore issued an  order that all the communities except the Brahmin community  would fall within the definition of socially and educationally  backward class and Scheduled Castes and Scheduled Tribes and  75% of the seats in educational institutions were reserved for  them.  It was observed that though caste in relation to Hindus may  be a relevant factor to consider while determining social  backwardness  of groups or classes of citizens, it cannot be made  the sole or dominant test.  It was held that the classes of citizens  who are deplorably poor automatically become socially backward.   Moreover, the occupation of citizens and the place of their  habitation also result in social backwardness. The problem of  determining who are socially backward classes is undoubtedly  very complex, but the classification of  socially backward citizens  on the basis of their caste alone is not permissible under Article 15  (4).  Learned Senior Counsel Shri Harish Salve drew our attention  to the various passages in the judgment.   Gajendragadkar, J.   speaking for the majority of the Judges, said :-

"The Problem  of determining who are socially  backward classes  is undoubtedly  very complex.   Sociological, social  and economic considerations   come into play in solving the problem and  evolving  proper criteria for determining which   classes are socially backward  is obviously a very  difficult task; it will need an elaborate  investigation  and collection of data and  examining the said data in a rational and  scientific way. That is the function of the State  which purports to act under Article 15 (4)."

        110.            The court drew a clear distinction between ’caste’ and ’class’  and tried to make an attempt to find a new basis for ascertaining  social and educational backwardness in place of caste and in this  decision  a  majority of Judges held that  in a broad way, a special  provision  of reservation should be less than 50%; how much less  than 50% would depend upon the relevant and prevailing  circumstances in each case.  

111.            In R. Chitralekha’s case (supra), the Government of Mysore,  by an order defining backward classes directed that 30% of the  seats in professional and technical colleges and institutions shall  be reserved for them and 18% to the SCs and STs. It was laid  down that classification of socially and educationally backward  classes should be made on the basis of economic  condition  and  occupation.  Suba Rao, J. (as he then was), speaking for the  majority,  held that a classification of backward classes based on  economic conditions and occupations is not bad in law and does  not offend Article 15 (4). The caste of a  group of citizens  may be  a relevant circumstance in ascertaining their social backwardness  and though it is a relevant factor to determine social backwardness  of a class, it cannot be the sole or dominant  test in that behalf. If,  in a given situation, caste is excluded in ascertaining a class within   the meaning of Article 15 (4), it does not vitiate the classification if  it satisfies other tests. The Court observed  that various provisions  of the Constitution  which recognized  the factual existence  of  backwardness  in the country and which make a sincere  attempt  to promote the welfare of the weaker sections thereof should be  construed  to effectuate that policy and not to give weightage to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 39 of 73  

progressive sections of the society under the false colour of caste  to which they happen to belong.  The Court held that under no  circumstance a ’class’ can be equated  to a ’caste’  though the  caste of an individual  or group of individuals  may be a relevant  factor in putting him in a particular class.  

112.            Minor P. Rajendran   Vs.   State of  Madras & Ors.  is  another Constitution Bench decision wherein the order of the State  Government providing reservation of seats for various categories   of candidates namely  Scheduled Tribes, Scheduled Castes and   SEBCs was challenged on various grounds. The main challenge  was that the reservation was based entirely on consideration of  caste and therefore it violates Article 15. Justice Wanchoo, held  that :-  "Now if the reservation in question had been  based only on caste and had not taken into  account the social and educational  backwardness of the castes in question, it would  be violative of Article 15 (1).  But it must not be  forgotten that a caste is also a class of citizens  and if the caste as a whole  is socially and  educationally backward  reservation can be made  in favour of such a caste on the ground that it is a  socially and educationally backward class of  citizens  within the meaning of Article 15 (4).  Reference in this connection may be made to the  observations of this Court in M.R. Balaji v. State  of Mysore to the effect that it was not irrelevant to  consider the caste of a class of citizens in  determining their social and educational  backwardness.  It was further observed that  though the caste of a class of citizens may be  relevant its importance should not be  exaggerated; and if classification of backward  classes of citizens was based solely on the caste  of the citizen, it might be open to objection.                                          (emphasis supplied)

113.    It may be noticed that the list prepared by the State showed  certain castes, and members of those castes according to the  State were really classes of socially and educationally backward   citizens.  It was observed in that case that the petitioners therein  did not make any attempt to show that any caste mentioned in the  list of educationally and socially backward classes of citizens was  not educationally and socially backward  and the list based on  caste was upheld by the Constitution Bench and held to be not  violative of Article 15(1).

114.    In Triloki Nath Tiku Vs. State of J & K (I) ,  50%  of the  gazetted posts were to be filled up by promotion in favour of the  Muslims of Jammu & Kashmir. The Court held that inadequate  representation in State services would  not be decisive for  determining the backwardness of a section. The Court accordingly  gave directions for collecting further material relevant to the  subject. And in a subsequent decision, Triloki Nath(II) (supra), the  court observed that the expression "backward class" is not used as  synonymous with "backward caste".

115.    In Minor A. Peerikaruppan   Vs.   State of Tamil Nadu & Ors.   (supra), this Court made reference to the earlier decisions  especially in M.R. Balaji case (supra) and R. Chitralekha case  (supra).  Hegde, J., at paragraph 29, observed :-

"There is no gainsaying the fact that there are

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 40 of 73  

numerous castes in this country which are socially  and educationally backward.  To ignore their  existence is to ignore the facts of life.  Hence we  are unable  to uphold the contention that the  impugned reservation  is not in accordance  with  Article 15 (4).  But all the same the Government  should not proceed on the basis  that once a class  is considered  as a backward class it  should  continue to be backward class for all times.  Such  an approach would defeat the very purpose of the  reservation because once  a class reaches a stage  of progress  which some modern writers call as  take off stage then competition is necessary for  their future progress.  The Government should  always keep under review the question  of  reservation of seats and only the classes which  are really socially and educationally backward  should be allowed to have the benefit of  reservation."   

116.            The learned Counsel for the petitioners also made reference  to  State of Uttar Pradesh & Ors.   Vs.  Pradip Tandon & Ors.    wherein  Chief Justice Ray observed  at paragraph 14 :-

"Socially and educationally backward classes   of citizens in Article 15 (4)  could not be  equated  with castes.  In M.R. Balaji v. State  of Mysore  and State of A.P. v. Sagar this  Court held that classification of backwardness  on the basis of castes would violate both  Articles 15 (1) and 15 (4)."

117.            Another important decision is that of State of Kerala & Anr.    Vs N.M. Thomas & Ors.  (supra), wherein the constitutional  validity of Rule 13-AA of the Kerala State & Subordinate Services  Rules was under challenge. The Rule gave exemption of 2 years  to members belonging to Scheduled Castes and Scheduled Tribes  in services, from passing the departmental test.  The High Court of  Kerala struck down the Rule and in an appeal by the State the  question of reservation was elaborately considered. Mathew, J. in  his concurring judgment, held that in order to give equality of  opportunity  for employment  to the members of Scheduled Castes  and Scheduled  Tribes, it is necessary to take note of their social,  educational and economic backwardness.  Not only is the Directive  Principle  embodied in Article 46 binding on the law-makers as  ordinarily understood, but it should equally inform and illuminate  the approach  of the court when it makes a decision, as the court   is also a  "State"  within the meaning of Article 12 and makes law  even though interstitially. Existence  of equality  depends  not  merely on the absence of disabilities  but on the presence of  disabilities.  To achieve  it,  differential  treatment of persons who  are unequal is permissible.  This is what is styled as compensatory  discrimination or affirmative  action.  

118.            In K.C. Vasanth Kumar   Vs.   State of Karnataka (supra)  the question of identifying socially and educationally backward  class  came up for consideration.  Desai, J., elaborately  considered this question in paragraph 20 and  observed  :-  

"By its existence over thousands of years, more  or less it was assumed that caste should be the  criterion for determining social and educational  backwardness.  In other words, it was said, look

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 41 of 73  

at the caste, its traditional functions, its position  in relation to upper  castes by the standard of  purity and pollution, pure and not so pure  occupation,  once these  questions are  satisfactorily answered without  anything more,  those who belong to that caste must be labeled  socially and educationally backward.  This over- simplified approach ignored a very realistic  situation existing in each caste that in every  such caste whose members claim to be socially  and educationally backward, had an  economically well-placed segments."

119.    Chinnappa Reddy, J., also dealt with the question elaborately  and observed :-  

"However we look at the question of  ’backwardness’,  whether from  the angle of  class, status or power, we find  the economic  factor at the bottom of it all and we find poverty,  the culprit-cause  and the dominant  characteristic. Poverty, the economic factor  brands all backwardness just as the erect  posture brands the homosapiens and  distinguishes  him from all other animals, in the  eyes of the beholder from Mars.  But, whether  his racial stock is Caucasian, Mongoloid,  Negroid, etc.,  further investigation will have to  be made.  So too the further question of social  and educational  backwardness requires   further scrutiny.  In India, the matter is further  aggravated, complicated  and pitilessly  tyrannized by the ubiquitous  caste system, a  unique and devastating system of gradation and  degradation which has divided the entire Indian  and particularly  Hindu society horizontally into  such distinct  layers as to be destructive of  mobility, a system which has penetrated and  corrupted the mind and soul of every Indian  citizen.  It is a notorious fact that there is an  upper crust of rural society  consisting  of the  superior castes, generally the priestly, the  landlord and the merchant castes, there is a  bottom strata consisting of the ’out-castes’ of  Indian Rural Society, namely the Scheduled  Castes, and, in between the highest and the  lowest, there are large segments of population  who because of the low gradation of the caste  to which they belong in the rural society  hierarchy, because of the humble occupation  which they pursue, because of their poverty and  ignorance are also condemned to  backwardness, social and educational,  backwardness which prevents them from  competing on equal terms to catch up with the  upper crust. "

120.    Reference was also made to other decisions, namely, State of  Andhra Pradesh & Anr.   Vs.  P. Sagar  and  T. Devadasan  Vs.    The Union of India & Anr. .  The earlier decisions took the view  that caste shall not be a basis for determining the socially and  educationally backward class of citizens.  But from the later

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 42 of 73  

decisions, we find a slight shift in the approach of the court.  If the  classification of SEBCs is done exclusively on the basis of caste, it  would fly in the face of Article 15(1) of the Constitution as it  expressly prohibits any discrimination on the grounds of religion,  race, caste, sex, place of birth or any of them.  After a careful  examination of the various previous decisions of this Court, in   Indra Sawhney   (supra),  while examining the validity of the  ’Backward Class List’ prepared by the Mandal Commisson, Jeevan  Reddy. J., speaking for the majority, held as under:-

"705. During the years 1968 to 1971, this Court had to  consider the validity of identification of backward  classes made by Madras and Andhra Pradesh  Governments.  P. Rajendran v. State of Madras 3 13  related to specification of socially and educationally  backward classes with reference to castes.  The  question was whether such an identification infringes  Article 15.  Wanchoo, CJ, speaking for the Constitution  Bench dealt with the contention in the following words:  (SCR p. 790-91)

"The contention is that the list of socially and  educationally backward classes for whom reservation  is made under Rule 5 is nothing but a list of certain  castes.  Therefore, reservation in favour of certain  castes based only on caste considerations violates  Article 15(1), which prohibits discrimination on the  ground of caste only.  Now if the reservation in  question had been based only on caste and had not  taken into account the social and educational  backwardness of the caste in question, it would be  violative of Article 15(1).  But it must not be forgotten  that a caste is also a class of citizens and if the caste  as a whole is socially and educationally backward  reservation can be made in favour of such a caste on  the ground that is a socially and educationally  backward class of citizens within the meaning of Article  15(4) .. .. It is true that in the present cases the list of  socially and educationally backward classes has been  specified by caste.  But that does not necessarily mean  that caste was the sole consideration and that persons  belonging to these castes are also not a class of  socially and educationally backward citizens .. .. As it  was found that members of these castes as a whole  were educationally and socially backward, the list  which had been coming on from as far back as 1906  was finally adopted for purposes of Article 15(4) .. ..

In view however of the explanation given by the State  of Madras, which has not been controverted by any  rejoinder, it must be accepted that though the list  shows certain castes, the members of those castes are  really classes of educationally and socially backward  citizens.  No attempt was made on behalf of the  petitioners/appellant to show that any caste mentioned  in this list was not educationally and socially backward.   In this state of the pleadings, we must come to the  conclusion that though the list is prepared caste-wise,  the castes included therein are as a whole  educationally and socially backward and therefore the  list is not violative of Article 15.  The challenge to Rule  5 must therefore fail."

        121.    In that decision it was further held that "Backward Class" in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 43 of 73  

Article 16(4) cannot be read as "Backward Caste".  And under  Article 340 of the Constitution, the President may by order appoint  a Commission consisting of such persons as he thinks fit to  investigate the conditions of socially and educationally backward  classes of citizens within the territory of India and the difficulties  under which they labour and to make recommendations as to the  steps that should be taken by the Union or any State to remove the  difficulties and to improve their condition.  The object of this  provision is to empower the President to appoint a Commission to  ascertain the difficulties and problems of socially and educationally  backward classes of citizens.  And in Indra Sawhney’s case  (supra), the majority held that the ideal and wise method would be  to mark out various occupations which on the lower level in many  cases amongst Hindus would be their caste itself and find out their  social acceptability and educational standard, weigh them in the  balance of economic conditions and, the result would be backward  class of citizens needing a genuine protective umbrella.  And after  having adopted occupation as the starting point, the next point  should be to ascertain their social acceptability.  A person carrying  on scavenging becomes an untouchable whereas others who were  as law in the social strata as untouchables became depressed.   The Court has cautioned that the backwardness should be  traditional.  Mere educational or social backwardness would not  have been sufficient as it would enlarge the field thus frustrating  the very purpose of the constitutional goal.  It was pointed out that  after applying these tests, the economic criteria or the means-test  should be applied since poverty is the prime cause of all  backwardness as it generates social and educational  backwardness.

122.            The learned Counsel for the petitioner contended that caste  cannot be used even as one of the criteria for identifying the  SEBCs as many persons have shifted their traditional occupations  and have become doctors, engineers and lawyers.  But these are  only a few cases and even such persons continue to suffer social  segregation based on caste.  In Pradip Tandon’s case (supra)  it  was held at para 17 that:

"The expression ’classes of citizens’ indicates a  homogenous section of the people who are grouped  together because of certain likenesses and common  traits and who are identifiable by some common  attributes.  The homogeneity of the class of citizens is  social and educational backwardness.  Neither caste  nor religion nor place of birth will be the uniform  element of common attributes to make them a class of  citizens."

123.    The above statement is not fully correct.  Caste plays an  important role in determining the backwardness of the individual.   In society, social status and standing depend upon the nature of  the occupation followed.  In paragraph 779 of Indra Sawhney’s  case, it is stated:

"Lowlier  the occupation, lowlier the social standing of  the class in the graded hierarchy.  In rural India,  occupation-caste nexus is true even today.  A few  members may have gone to cities or even abroad but  when they return \026 they do, barring a few exceptions \026  they go into the same fold again.  It does not matter if  he has earned money.  He may not follow that particular  occupation.  Still, the label remains.  His identity is not  changed for the purpose of marriage, death and all  other social functions, it is his social class \026 the caste \026

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 44 of 73  

that is relevant."

124.            "Caste" is often used interchangeably with "class" and can be  called as the basic unit in social stratification.  The most  characteristic thing about a caste group is its autonomy in caste  related matters.  One of the universal codes enforced by all castes  is the requirement of endogamy.  Other rules have to do with the  regulations pertaining to religious purity or cleanliness.  Sometimes  it restricts occupational choices as well.  It is not necessary that  these rules be enforced in particular classes as well, and as such a  "class" may be distinguished from the broader realm of "caste" on  these grounds.  Castes were often rated, on a purity scale, and not  on a social scale.    

125.            The observations made by Venkataramaiah J. in K.C.  Vasanth Kumar case  are relevant in this regard :

"We are aware of the meanings of the words caste,  race, or tribe or religious minorities in India.  A caste  is an association of families which practise the  custom of endogamy i.e. which permits marriages  amongst the members belonging to such families  only. Caste rules prohibit its members from  marrying outside their caste.  There are sub-groups  amongst the castes which sometimes inter-marry  and sometimes do not.  A caste is based on various  factors, sometimes it may be a class, a race or a  racial unit.  A caste has nothing to do with wealth.   The caste of a person is governed by his birth in a  family. Certain ideas of ceremonial purity are  peculiar to each caste.  Sometimes caste practices  even led to segregation of same castes in the  villages.  Even the choice of occupation of members  of castes was predetermined in many cases, and  the members of a particular caste were prohibited  from engaging themselves in other types of callings,  professions or occupations. Certain occupations  were considered to be degrading or impure.  A  certain amount of rigidity developed in several  matters and many who belonged to castes which  were lower in social order were made to suffer  many restrictions, privations and humiliations.   Untouchability was practised against members  belonging to certain castes. Inter-dining was  prohibited in some cases.  None of these rules  governing a caste had anything to do with either the  individual merit of a person or his capacity.  The  wealth owned by him would not save him from  many social discriminations practised by members  belonging to higher castes.  Children who grew in  this caste ridden atmosphere naturally suffered from  many social disadvantages apart from the denial of  opportunity to live in the same kind of environment  in which persons of higher castes lived.  Many  social reformers have tried in the last two centuries  to remove the stigma of caste from which people  born in lower castes were suffering.  Many laws  were also passed prohibiting some of the inhuman  caste practices." (p. 110)

126.            Rivers, the leading anthropologist, criticizes the use of the  terms "caste" and "class" as synonyms .  However, many others,  such as Lowie  and Kimball Young , use these terms as though

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 45 of 73  

they were identical.                                     

127.            Very common is the use of the word caste to indicate  hereditary status.  Cecil Clare North ,  the noted sociologist,  accepts the point of view that degrees of rigidity mark the  difference between class and caste systems.  His definition reads:  

"A group in which status, occupation, and culture  have become hereditary is known as a caste.  As a  matter of fact, however, the distinction between a  society based upon caste and one in which open  classes prevail is simply one of degree."

128.            North concludes by saying that the term "caste" applies to  classes that have become fixed, and that all such classes tend to  become castes.  

129.            MacIver , another leading authority in the field of social  class theory, also identifies caste with hereditary status.  He  attempts to tie his interpretation with the situation in India, a  procedure not often followed by the other sociologists.  He writes  thus,  

"Caste as unchangeable status: -- The feudal order  approximated to a caste system.  When status is  wholly predetermined, so that men are born to their  lot in life without hope of changing it, then class  takes the extreme form of caste.  This is the  situation in Hindu society.  ’Every Hindu necessarily  belongs to the caste of his parents, and in that caste  he inevitably remains.  No accumulation of wealth  and no exercise of talents can alter his caste status;  and marriage outside his caste is prohibited or  severely discouraged.’  Caste is a complete barrier  to the mobility of class."

130.            Therefore, a class always enjoys certain privileges or at least  certain advantages over others in society.  When it is more or less  rigorously closed, or enjoys hereditary privileges, it is called a  "caste".

131.            However, there are other sociologists who are of the opinion  that the Caste system has a hereditary function also.  Charles  Horton Cooley  opines that:

"if the transmission of function from father to son  has become established, a caste spirit, a sentiment  in favour of such transmission and opposed to the  passage from one class to another, may arise and  be shared even by the unprivileged classes.  The  individual then thinks of himself and his family as  identified with his caste\005"

132.            Therefore, according to the early sociological theories, the  term "caste" has been used to mean "class", hereditary or rigid  status, and hereditary occupation.

133.            The Mysore Census of 1901   is quoted, in this connection,  as follows:

"In any one of the linguistic divisions of India there  are as many as two hundred castes which can be  grouped in classes whose gradation is largely  acknowledged by all. But the order of social  precedence amongst the individual castes of any

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 46 of 73  

class cannot be made definite, because not only is  there no ungrudging acceptance of such rank but  also the ideas of the people on this point are very  nebulous and uncertain.  The following observations  vividly bring out this state of things."

...Excepting the Brahmin at one end and the  admittedly degraded castes like the Holeyas at the  other, the members of a large proportion of the  immediate castes think or profess to think that their  caste is better than their neighbours, and should be  ranked accordingly."

134.            On the other hand, it is possible that within a caste group  there is a marked inequality of status, opportunity, or social  standing \026 which then defines the "class" within that particular  "caste" system.  For example, all the Brahmins are not engaged in  highly respectable employment, nor are all very wealthy.  It may  even be that some Brahmins may be servants of members of a  lower caste, or it may also be so that the personal servant of a rich  Brahmin may be a poor Brahmin.

135.            Hence, there is every reason to believe that within a single  caste group there are some classes or groups of people to whom  good fortune or perseverance has brought more dignity, social  influence and social esteem than it has to others.

136.            In India, caste, in a socio-organizational manner would mean  that it is not characterized merely by the physical or occupational  characteristics of the individuals who make it up; rather, it is  characterized by its codes and its close-knit social controls.  In the  case of classes, however, there may not exist such close-knit unit  social controls, and there may exist great disparity in occupational  characteristics.

137.            A social class is therefore a homogeneous unit, from the  point of view of status and mutual recognition; whereas a caste is  a homogeneous unit from the point of view of common ancestry,  religious rites and strict organizational control.  Thus the manner in  which the caste is closed both in the organizational and biological  sense causes it to differ from social class.  Moreover, its emphasis  upon ritual and regulations pertaining to cleanliness and purity  differs radically from the secular nature and informality of social  class rules.  In a social class, the exclusiveness would be based  primarily on status.  Social classes divide homogeneous  populations into layers of prestige and esteem, and the members  of each layer are able to circulate freely with it.

138.    In a caste, however, the social distance between members is  due to the fact that they belong to entirely different organizations. It  may be said, therefore, that a caste is a horizontal division and a  class, a vertical division.

139.    The Solicitor General, Mr. G.E. Vahanvati, pointed out that for  the purpose of reservation under Article 16(4) of the Constitution,  the Central List has been in operation for the past 14 years and not  a single person has challenged any inclusion in the Central List as  void or illegal.   

140.    It was pointed out that the National Commission for the  Backward Classes and the State Commission for Backward  Classes have prepared a list based on elaborate guidelines and  these guidelines have been framed after studying the  criteria/indicators framed by the Mandal Commission and the  Commissions set up in the past by different State Governments.  

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 47 of 73  

Various Commissions held  public hearings at various places and  the National Commission held 236 public hearings before it  finalized the list.   It is also pointed out that during the period of its  functioning, the National Commission had recommended 297  requests for inclusion and at the same time rejected 288 requests  for inclusion of the main castes.   It is further pointed out that the  Commission took into consideration detailed data with regard to  social, educational  and economic criteria.  The Commission has  also looked into whether there has been any improvement or  deterioration in the condition of the caste or community being  considered for inclusion during the past twenty years.  

141.    It is pointed out that an elaborate questionnaire was prepared  by the Commission and the answers in this questionnaire were  considered in detail for inclusion/rejection in the list.  It is clear that  the lists of socially and educationally backward classes of citizens  are being prepared not solely on the basis of the caste and if caste  and other considerations are taken into account for determining  backwardness, it cannot be said that it would be violative of Article  15(1) of the Constitution.    

142.    We hold that the determination of SEBCs is done not solely  based on caste and hence, the identification of SEBCs is not  violative of Article 15(1) of the Constitution.

6.   Whether Creamy Layer is to be excluded from SEBCs?

143.    The SEBCs have been identified by applying various criteria.    Though for the purpose of convenience, the list is based on caste,  it cannot be said that ’Backward Class’ has been identified solely  on the basis of caste.  All the castes which suffered the social and  educational backwardness have been included in the list.   Therefore, it is not violative of Article 15(1).  The only possible  objection that could be agitated is that in many of the castes  included in this list, there may be an affluent section (Creamy  Layer) which cannot be included in the list of SEBCs.   

144.    When socially and educationally backward classes are  determined by giving importance to caste, it shall not be forgotten  that a segment of that caste is economically advanced and they do  not require the protection of reservation.  It was argued on behalf  of the petitioners that the principle of ’Creamy Layer’ should be  strictly applied to SEBCs while giving affirmative action and the  principles of exclusion of ’Creamy Layer’ applied in Indra  Sawhney’s case should be equally applied to any of the  legislations that may be passed as per Article 15(5) of the  Constitution.  The Counsel for the petitioners submitted that  SEBCs have been defined under section 2 (g) of the Act and the  Central Government has been delegated with the power to  determine Other Backward Classes. The Counsel for the  petitioners have pointed out that the definition given in section 2(g)  of the Act should be judicially interpreted.  That the backward class  so stated therein should mean to exclude the ’Creamy Layer’.  The  learned Senior Counsel appearing for Pattali Makkal Katchi (PMK)  stated that exclusion of ’Creamy Layer’ shall not apply for  reservation in educational institutions.  He pointed out that in case  the ’creamy layer’ is excluded, the other members of the backward  class community would not be in a position to avail the benefit of  reservation and the fee structure in many of these centrally  administered institutions is exorbitantly high and the ordinary  citizen would not be in a position to afford the payment of fees and  thus the very purpose of the reservation would be frustrated.    

145.    According to the learned Counsel for the respondents, the  creamy layer elimination will only perpetuate caste inequalities.  It

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 48 of 73  

would enable the advanced castes to eliminate any challenge or  competition to their leadership in the professions and services and  that they will gain by eliminating all possible beneficiaries of  reservation in the name of creamy layer especially in the  institutions of higher learning.   It was argued that  the analogy of  Creamy Layer applied in reservations to jobs cannot be applied in  reservations to educational institutions of higher learning.  The  position of a student getting admission to an institution of higher  learning is totally different and can never be compared to that of  backward class person to get a job by virtue of reservation.  The  study in any educational institution of higher learning is very  expensive and the non-creamy layer backward class parent cannot  afford his son or his daughter incurring such a huge expenditure.   Eliminating them from the Creamy Layer will frustrate the very  object of providing reservation. Therefore, it is wholly impracticable  and highly counter productive to import the policy of Creamy Layer  for reservation in these institutions.   And according to the learned  Counsel there is a difference between services and education and  that under the purview of Act 5 of 2007, around 3 lakh seats would  be filled up every year.  Whereas the jobs are limited and they will  not become vacant every year.     

146.    The learned Counsel pointed out that grouping of all castes  together may enable a less backward caste among the backward  classes to corner more seats than it deserves.  It is also possible  that more backward classes cannot afford to compete with the less  backward classes.  The only way to solve the said problem is by  categorization of Backward Classes and sub classifying them so  as to ensure that under each category only similarly circumstanced  castes are grouped together.  The categorization of backward  class has successfully worked in State of Tamil Nadu where most  backward class is provided 20% reservation and the most  backward castes and denotified tribes are grouped together and  the backward classes are provided 30% reservation.  In the State  of Karnataka, backward classes are divided into 5 categories and  separate reservations have been provided.  And in the State of  Andhra Pradesh, Backward Classes have been divided into 4  divisions and separate percentage of reservation has been  provided.

147.    As noticed earlier, determination of backward class cannot be  exclusively based on caste.  Poverty, social backwardness,  economic backwardness, all are criteria for determination of  backwardness.  It has been noticed in Indra Sawhney’s case that  among the backward class, a section of the backward class is a  member of the affluent section of society.  They do not deserve  any sort of reservation for further progress in life.  They are socially  and educationally advanced enough to compete for the general  seats along with other candidates.

148.    In Indra Sawhney’s case (supra)  Jeevan Reddy, J.,  has  observed  :

"In our opinion, it is not a question of permissibility  or desirability of such test but one of proper and  more appropriate identification of a class \026 a  backward class.  The very concept of a class  denotes a number of persons having certain  common traits which distinguish them from the  others. In a backward class under clause (4) of  Article 16, if the connecting link is the social  backwardness, it should broadly be the same in a  given class.  If some of the members are far too  advanced socially (which in the context, necessarily  means economically and, may also mean

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 49 of 73  

educationally) the connecting thread between them  and the remaining class snaps.  They would be  misfits in the class.  After excluding them alone,  would the class be a compact class.  In fact, such  exclusion benefits the truly backward." (p. 724)

149.     It is to be understood that  "creamy layer"  principle is  introduced merely to exclude a section of a particular caste on the  ground that they are economically advanced or educationally  forward.  They are excluded because unless this segment of caste  is excluded from that caste group, there cannot be proper  identification of the backward class.  If the "Creamy Layer"  principle is not applied,  it could easily be said that all the castes  that have been included among the socially and educationally  backward classes have been included exclusively on the basis of  caste.  Identification of SEBC for the purpose of either Article  15(4), 15(5) or 16(4) solely on the basis of caste is expressly  prohibited by various decisions of this Court and it is also against  Article 15(1) and Article 16(1) of the Constitution.  To fulfil the  conditions and to find out truly what is socially and educationally  backward class, the exclusion of "creamy layer" is essential.

150.    It may be noted that the "creamy layer" principle is applied not  as a general principle of reservation. It is applied for the purpose of  identifying the socially and educationally backward class. One of  the main criteria for determining the SEBC is poverty.  If that be so,  the principle of exclusion of "creamy layer" is necessary.   Moreover, the majority in Indra Sawhney’s case upheld the  exclusion of "creamy layer" for the purpose of reservation in Article  16(4).  Therefore, we are bound by the larger Bench decision of  this Court in Indra Sawhney’s case, and it cannot be said that the  "creamy layer" principle cannot be applied for identifying SEBCs.   Moreover, Articles 15(4) and 15(5) are designed to provide  opportunities in education thereby raising educational, social and  economical levels of those who are lagging behind and once this  progress is achieved by this section, any legislation passed  thereunder should be deemed to have served its purpose. By  excluding those who have already attained economic well being or  educational advancement, the special benefits provided under  these clauses cannot be further extended to them and,  if done so,  it would be unreasonable,  discriminatory or arbitrary,  resulting  in  reverse discrimination.  

151.    Sawant, J. also made observation in Indra Sawhney’s case to  ensure removal of ’creamy layer’.  He observed:-

"\005.at least some individuals and families in the  backward classes ---- gaining sufficient means to  develop their capacities to compete with others in  every field.... Legally, therefore, they are not entitled  to be any longer called as part of the backward  classes whatever their original birth mark --- to  continue to confer upon such advanced sections  from the backward classes the special benefits,  would amount to treating equals unequally violating  the equality provisions of the Constitution.   Secondly, to rank them with the rest of the  backward classes would equally violate the right to  equality of the rest in those classes, since it would  amount to treating the unequals equally\005. It will  lead to perverting the objectives of the special  constitutional provisions since the forwards among  the backward classes will thereby be enabled to tap  up all the special benefits to the exclusion and to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 50 of 73  

the cost of the rest in those classes, thus keeping  the rest in perpetual backwardness."          

152.            All these reasonings are equally applicable to the reservation  or any special action contemplated under Article 15(5).  Therefore,  we are unable to agree with the contention raised by the  respondent’s learned Counsel that if ’creamy layer’ is excluded,  there may be practically no representation for a particular  backward class in educational institutions because the remaining  members, namely, the non-creamy layer, may not have risen to  the level or standard necessary to qualify to get admission even  within the reserved quota.  If the creamy layer is not excluded, the  identification of SEBC will not be complete and any SEBC without  the exclusion of ’creamy layer’ may not be in accordance with  Article 15(1) of the Constitution.

7.   What should be the para-meters for determining the  "creamy layer" group ?

153.            After the decision in Indra Sawhney’s case (supra), the  Government of India, Ministry of Personnel, Public Grievances and  Pensions (Department of Personnel and Training) issued an Office  Memorandum dated 08.09.1993  providing for 27% reservation for  Other Backward Classes.  The Memorandum reads as follows :-

"OFFICE MEMORANDUM Subject : Reservation for Other Backward Classes in Civil  Posts and Services Under the Government of India --- regarding -----------         The undersigned is directed to refer to this  Department’s OM No. 36012/31/90-Estt. (SCT), dated the  13th August, 1990 and 25th September, 1991 regarding  reservation for Socially and Educationally Backward Classes  in Civil Posts and Services under the Government of India  and to say that following the Supreme Court judgment in the  Indra Sawhney  vs.  Union of India (Writ Petition (Civil) No.  930 of 1990) the Government of India appointed an Expert  Committee to recommend the criteria for exclusion of the  socially advanced persons/sections from the benefits of  reservations for Other Backward Classes in Civil Posts and  Services under the Government of India.

2.      Consequent to the consideration of the Expert  Committee’s recommendations this Department’s Office  Memorandum No. 36012/31/90-Estt. (SCT), dated 13.8.1990  referred to in para (1) above is hereby modified to provide as  follows :

       (a) 27% (twenty-seven per cent) of the vacancies in  Civil Posts and Services under the Government of  India, to be filled through direct recruitment, shall be  reserved for the Other Backward Classes.  Detailed  instructions relating to the procedure to be followed  for enforcing reservation will be issued separately.

(b)                     *                *              * (c) (i) The aforesaid reservation shall not apply to  persons/sections mentioned in Column 3 of the  Schedule to this office memorandum. (ii) The rule of exclusion will not apply to persons  working as artisans or engaged in hereditary  occupations, callings.  A list of such occupations,  callings will be issued separately by the Ministry of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 51 of 73  

Welfare. (d)-(e) *               *               *                 *               *               * 3.                                    SCHEDULE

       Description of category         To whom rule of exclusion                                                 will apply

1 2 3

    I. CONSTITUTIONAL  POSTS Son(s) and daughter(s) of (a) President of India; (b) Vice-President of India; (c.) Judges of the Supreme Court  and of the High Courts; (d) Chairman & Members of UPSC  and of the State Public Service  Commission; Chief Election  Commissioner; Comptroller and  Auditor General of India; (e) persons holding constitutional  positions of like nature.

II.

SERVICE  CATEGORY

Son(s) and daughter(s) of

A.

Group A/Class I  Officers of the All  India Central and  State Services  (Direct Recruits)

(a) parents, both of whom are  Class I Officers; (b) parents, either of whom is a  Class I officer; (c.) parents, both of whom are  Class I Officers, but one of them  dies or suffers permanent  incapacitation; (d) parents, either of whom is a  Class I officer and such parent dies  or suffers permanent incapacitation  and before such death or such  incapacitation has had the benefit  of employment in any International  Organisation like UN, IMF, World  Bank, etc. for a period of not less  than 5 years; (e) parents, both of whom are  Class I officers die or suffer  permanent incapacitation and  before such death or such

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 52 of 73  

incapacitation of the both, either of  them has had the benefit of  employment in any International  Organisation like UN, IMF, World  Bank, etc. for a period of not less  than 5 years.

Provided that the rule of exclusion  shall not apply in the following  cases : (a)     Son(s) and  daughter(s) of parents either of  whom or both of whom are class I  officers and such parent(s) dies/die  or suffer permanent incapacitation; (b)     A lady belonging  to OBC category has got married  to a Class I officer, and may herself  like to apply for a job.

B.

Group B/Class II  officers of the  Central and State  Services (Direct  Recruitment)

Son(s) and daughter(s) of (a) Parents both of whom are  Class II officers; (b) parents of whom only the  husband is a Class II officer and he  get into Class I at the age of 40 or  earlier; (c) parents, both of whom are  Class II officers and one of them  dies or suffers permanent  incapacitation and either one of  them has had the benefit of  employment in any International  Organisation like UN, IMF, World  Bank etc. for a period of not less  than 5 years before such death or  permanent incapacitation; (d) parents of whom the husband is  a Class I officer (direct recruit or  pre-forty promoted) and the wife is  a Class II officer and the wife dies;  or suffers permanent  incapacitation; and  (e) parents, of whom the wife is a  Class I officer (direct recruit or pre- forty promoted) and the husband is  a Class II officer and the husband  dies or suffers permanent  incapacitation:

Provided that the rule of exclusion  shall not apply in the following  cases:

              Son(s) and daughter(s) of  

(a)     parents both of whom are Class

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 53 of 73  

II officers and one of them dies or  suffers permanent incapacitation; (b)     parents, both of whom are  Class II officers and both of them  die or suffer permanent  incapacitation, even though either  of them has had the benefit of  employment in any International  Organisation like UN, IMF, World  Bank etc. for a period of not less  than 5 years before their death or  permanent incapacitation.

C. Employees in  Public Sector  Undertakings etc. The criteria enumerated in A and B  above in this category will apply  mutatis mutandis to officers holding  equivalent or comparable posts in  PSUs, Banks, Insurance  Organisations, Universities, etc.  and also to equivalent or  comparable posts and positions  under private employment, pending  the evaluation of the posts on  equivalent or comparable basis in  these institutions, the criteria  specified in Category VI below will  apply to the officers in these  institutions.

III. ARMED  FORCES  INCLUDING  PARAMILITARY  FORCES (Persons  holding civil posts  are not included)

Son(s) and daughter(s) of parents  either or both of whom is or are in  the rank of Colonel and above in  the Army and to equivalent posts in  the Navy and the Air Force and the  Paramilitary Forces:

Provided that:  

(i)     If the wife of an Armed  Forces officer is herself in the  Armed Forces (i.e. the category  under consideration) the rule of  exclusion will apply only when she  herself has reached the rank of  Colonel; (ii)    The service ranks below  Colonel of husband and wife shall  not be clubbed together; (iii)   If the wife of an officer in  the Armed Forces is in civil  employment, this will not be taken

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 54 of 73  

into account for applying the rule of  exclusion unless she falls in the  service category under Item No. II  in which case the criteria and  conditions enumerated therein will  apply to her independently.

IV.  PROFESSIONAL  CLASS AND  THOSE  ENGAGED IN  TRADE AND  INDUSTRY

(i) Persons  engaged in  profession as a  doctor, lawyer,  chartered   accountant,  Income Tax  consultant,  financial or  management  consultant, dental  surgeon, engineer,  architect,  computer  specialist, film  artists and other  film professional,  author, playwright,  sports  persons,  sports  professional,  media professional  or any other  vocations of like  status.

(ii) Persons  engaged in trade,  business and  industry.

Criteria specified against Category  VI will apply\027

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 55 of 73  

Criteria specified against Category  VI will apply- Explanation: (i)     Where the husband is in  same profession and the wife is in  a Class II or lower grade  employment, the income/wealth  test will apply only on the basis of  the husband’s income; (ii)    If the wife is in any  profession and the husband is in  employment in a Class II or lower  rank post, then the income/wealth  criterion will apply only on the basis  of the wife’s income and the  husband’s income will not be  clubbed with it.  

V. PROPERTY  OWNERS

A. Agricultural  holdings

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 56 of 73  

B. Plantations

(i) Coffee, tea,  rubber etc.

(ii) Mango, citrus,  apple plantations,  etc.

C. Vacant land  and/or buildings, in  urban areas or  urban  agglomerations

Son(s) and daughter(s) of persons  belonging to a family (father,  mother and minor children) which  owns only irrigated land which is  equal to or more than 85% of the  statutory area; or (a)     both irrigated and  unirrigated land, as follows :

(i)     The rule of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 57 of 73  

exclusion will apply where the  precondition exists that the  irrigated area (having been brought  to a single type under a common  denominator) 40% or more of the  statutory ceiling limit for irrigated  land (this being calculated by  excluding the unirrigated portion).   If this precondition of not less than  40% exists, then only the area of  unirrigated land will be taken into  account.  This will be done by  converting the unirrigated land on  the basis of the conversion formula  existing, into the irrigated type.   The irrigated area so computed  from unirrigated land shall be  added to the actual area of  irrigated land and if after such  clubbing together the total area in  terms of irrigated land is 80% or  more of the statutory ceiling limit  for irrigated land, then the rule of  exclusion will apply and  disentitlement will occur; (ii)    The rule of  exclusion will not apply if the land  holding of a family is exclusively  unirrigated.

Criteria of income/wealth specified  in Category VI below will apply

Deemed as agricultural holding  and hence criteria at A above  under this category will apply.

Criteria specified in Category VI  below will apply.

Explanation: Building may be used  for residential, industrial or  commercial purpose and the like  two or more such purposes.

VI. INCOME /  WEALTH TEST

Son(s) and daughter(s) of (a)     persons having gross  annual income of Rs. 1 lakh or  above or possessing wealth above  the exemption limit as prescribed in  the Wealth Tax Act for a period of  three consecutive years; (b)     persons in Categories I,  II, III and V-A who are not  disentitled to the benefit of  reservation but have income from  other sources of  wealth which will  bring them within the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 58 of 73  

income/wealth criteria mentioned in  (a) above.

Explanation.  (i)     Income from salaries or  agricultural land shall not be  clubbed; (ii)    The income criteria in  terms of rupee will be modified  taking into account the change in  its value every three years;  If the  situation, however, so demands,   the interregnum may be less.

Explanation: Wherever the expression ’permanent  incapacitation’ occurs in this Schedule, it shall mean  incapacitation which results in putting an officer out  of service."

154.    We make it clear that same principle of determining the creamy  layer for providing 27% reservation for backward classes for  appointment need not be strictly followed in case of reservation  envisaged under Article 15(5) of the Constitution.  As pointed by  Shri Ravivarma Kumar,  learned Senior Counsel,  if a strict income  restriction is made for identifying the "creamy layer", those who are  left in the particular caste may not be able to have a sufficient  number of candidates for getting admission in the central  institutions as per Act 5 of 2007.  Government can make a  relaxation to some extent so that sufficient number of candidates  may be available for the purpose of filling up the 27% reservation.    It is for the Union Government and the State Governments to issue  appropriate guidelines to identify the "creamy layer" so that SEBC  are properly determined in accordance with the guidelines given by  this Court.  If, even by applying this principle, still the candidates  are not available, the State can issue appropriate guidelines to  effectuate the implementation of the reservation purposefully.

155.    As noticed earlier, "backward class" defined in Section 2(g)  does not exclude "creamy layer".  Therefore,  we make  it clear  that backward class as defined in Section 2(g) of Act 5 of 2007  must be deemed to have been such backward class by applying  the principle of exclusion of "creamy layer".

8.   Whether the "creamy layer" principle is applicable to  Scheduled Tribes and Scheduled Castes ?

156.     Learned Senior Counsel Dr. Rajeev Dhavan submitted that  "creamy layer" principle is to be applied to SCs and STs. He drew  inspiration from the observations made by Justice Krishna Iyer in  N.M. Thomas’s case (supra)  and also from the observations  made in Nagaraj’s case and reference was made to paragraphs  80, 110 and 120 to 123 of Nagaraj’s case (supra).    157.    N.M. Thomas’s case (supra) does not state that "creamy layer"  principle should apply to SCs and STs. In K.C. Vasanth Kumar’s   case (supra) the "creamy layer" was used in the case of backward  caste or class.  In K.C. Vasanth Kumar   (supra), Desai J. quoted  from N.M. Thomas (supra) as follows :-

"In the light of experience, here and elsewhere, the  danger of ’reservation’, it seems to me, is threefold.   Its benefits, by and large, are snatched away by the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 59 of 73  

top creamy layer of the ’backward’ caste or class,  thus keeping the weakest among the weak always  weak and leave the fortunate layers to consume the  whole cake."   (N.M. Thomas (supra) p. 363, para 124)  

158.    In Nagaraj’s case (supra) in paragraph 80, it is stated that while  "applying the ’creamy layer’ test, this Court held that if roster-point  promotees are given consequential seniority, it will violate the  equality principle which is part of the basic structure of the  Constitution and in which even Article 16(4-A) cannot be of any  help to the reserved category candidates."  This was with  reference to the observations made in Indra Sawhney’s case  (supra)  and earlier in  M.G. Badappanavar & Anr.  Vs.  State of  Karnataka & Ors. ;  Ajit Singh & Ors. (II)   vs.  State of Punjab  & Ors.  and  Union of India & Ors.   Vs.  Virpal Singh Chauhan  & Ors. .   Virpal Singh Chauhan’s case (supra) dealt with  reservation of railway employees wherein it is held that once the  number of posts reserved for being filled by reserved category  candidates in a cadre, category or grade (unit for application of  rule of reservation) are filled by the operation of roster, the object  of the rule of reservation should be deemed to have been  achieved.  Ajit Singh II’s case (supra) dealt with consequential  seniority on promotion and held that roster points fixed at Level 1  are not intended to determine any seniority at Level 1 between  general candidates and the reserved candidates and the roster  point merely becomes operative whenever a vacancy reserved at  Level 2 becomes available.  Thereby holding that if promotion is  obtained by way of reservation, the consequential seniority will not  be counted.   M.G. Badappanavar’s case (supra) followed the  cases of Ajit Singh II   (supra) and Virpal Singh (supra).     

159.    In none of these decisions it is stated that the "creamy layer"  principle would apply to SCs and STs.  In Indra Sawhney’s case  (supra), it is specifically stated that the "creamy layer" principle will  not apply to STs and SCs.  In Nagaraj’s case (supra) , in  paragraphs 110 and 120 and finally in paragraphs 121, 122 and  123, it is only stated that when considering questions of affirmative  action, the larger principle of equality such as 50% ceiling  (quantitative limitation) and "creamy layer" (quantitative exclusion)  may be kept in mind.   In Nagaraj’s case (supra) it has not been  discussed  or decided that the creamy layer principle would be  applicable to SCs/STs.  Therefore, it cannot be said that the  observations made in Nagaraj’s case are contrary to the decision  in Indra Sawhney’s case (supra).

160.    Moreover, the "creamy layer" principle is not yet applied as a  principle of equality or as a general principle to apply for all  affirmative actions.  The observations made by Chinnappa Reddy,   J. in K.C. Vasanth Kumar case are relevant in this regard.  The  learned Judge observed as under :

"One cannot quarrel with the statement that social  science research and not judicial impressionism  should form the basis of examination, by courts, of  the sensitive question of reservation for backward  classes.  Earlier we mentioned how the assumption  that efficiency will be impaired if reservation  exceeds 50%, if reservation is extended to  promotional posts or if the carry forward rule is  adopted, is not based on any scientific data.  One  must, however, enter a caveat to the criticism that  the benefits of reservation are often snatched away

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 60 of 73  

by the top creamy layer of backward class or caste.  That a few of the seats and posts reserved for  backward classes are snatched away by the more  fortunate among them is not to say that reservation  is not necessary.  This is bound to happen in a  competitive society such as ours.  Are not the  unreserved seats and posts snatched away, in the  same way, by the top creamy layer of society itself?   Seats reserved for the backward classes are taken  away by the top layers amongst them on the same  principle of merit on which the unreserved seats are  taken away by the top layers of society." (p. 763)

161.    So far, this Court has not applied the "creamy layer" principle to  the general principle of equality for the purpose of reservation.   The "creamy layer" so far has been applied only to identify the  backward class, as it required certain parameters to determine the  backward classes. "Creamy layer" principle is one of the  parameters to identify backward classes. Therefore, principally, the  "creamy layer" principle cannot be applied to STs and SCs, as SCs  and STs are separate classes by themselves.  Ray, CJ., in an  earlier decisions, stated that "Scheduled Castes and Scheduled  Tribes are not a caste within the ordinary meaning of caste".  And  they are so identified by virtue of the Notification issued by the  President of India under Articles 341 and 342 of the Constitution.   The President may, after consultation with the Governor, by public  notification, specify the castes, races or tribes or parts of or groups  within castes, races or tribes which for the purpose of the  Constitution shall be deemed to be Scheduled Castes of  Scheduled Tribes.   Once the Notification is issued, they are  deemed to be the members of Scheduled Castes or Scheduled  Tribes, whichever is applicable.   In E.V. Chinnaiah  (supra),   concurring with the majority judgment, S.B. Sinha, J. said :-

"The Scheduled Castes and Scheduled Tribes occupy a  special place in our Constitution. The President of India  is the sole repository of the power to specify the castes,  races or tribes or parts of or groups within castes, races  or tribes which shall for the purposes of the Constitution  be deemed to be Scheduled Castes. The Constitution  (Scheduled Castes) Order, 1950 made in terms of Article  341(1) is exhaustive.  The object of Articles 341 and 342  is to provide for grant of protection to the backward class  of citizens who are specified in the Scheduled Castes  Order and Scheduled Tribes Order having regard to the  economic and education backwardness wherefrom they  suffer. Any legislation which would bring them out of the  purview thereof or tinker with the order issued by the  President of India would be unconstitutional.  (Paras 52,  111 and 84) (emphasis supplied)  

162.    A plea was raised by the respondent-State that categorization  of Scheduled Castes could be justified by applying the "creamy  layer" test as used in Indra Sawhney’s case (supra) which was  specifically rejected in paragraph 96 of the E.V. Chinnaiah’s case  (supra).  It is observed :-

But we must state that whenever such a situation  arises in respect of Scheduled Caste, it will be  Parliament alone to take the necessary legislative  steps in terms of clause (2)  of Article 341 of the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 61 of 73  

Constitution.  The States concededly do not have  the legislative competence therefor." (p. 430)

163.    Moreover, right from the beginning, the Scheduled Castes and  Scheduled Tribes were treated as a separate category and nobody  ever disputed identification of such classes.  So long as "creamy  layer" is not applied as one of the principles of equality, it cannot  be applied to Scheduled Castes and Scheduled Tribes. So far, it is  applied only to identify the socially and educationally backward  classes.  We make it clear that for the purpose of reservation, the  principles of "creamy layer" are not applicable for Scheduled  Castes and Scheduled Tribes.

9.   Whether the principles laid down by the United States  Supreme Court for affirmative action such as "suspect  legislation", "strict scrutiny" and "compelling State  necessity" are applicable to principles of reservation or other  affirmative action contemplated under Article 15(5) of the  Constitution of India ?

164.    Based on the Ninety-Third Constitutional Amendment Act, Act   5 of 2007 has been enacted.  According to the petitioner’s  Counsel, this is a "suspect legislation" and therefore, it is to be  subjected to "strict scrutiny"  as laid by the United States Supreme  Court and only by passing this test of "strict scrutiny", such  legislation could be put into practice.  

165.    At the outset, it must be stated that the decisions of the United  States Supreme Court were not applied in the Indian context as it  was felt that the structure of the provisions under the two  Constitutions and the social conditions as well as other factors are  widely different in both the countries.  Reference may be made to  Bhikaji Narain Dhakras & Ors.  Vs.  The State of Madhya  Pradesh & Anr.   and A.S. Krishna  Vs.  State of Madras   wherein this Court specifically held that the due process clause in  the Constitution of the United States of America is not applicable to  India.  While considering the scope and applicability of Article  19(1)(g) in Kameshwar Prasad and Others  Vs.  State of Bihar  and Another ,  it was observed "-

"As regards these decisions of the American Courts,  it should be borne in mind that though the First  Amendment to the Constitution of the United States  reading "Congress shall make no law \005.abridging  the freedom of speech\005." appears to confer no  power on the Congress to impose any restriction on  the exercise of the guaranteed right, still it has  always been understood that the freedom  guaranteed is subject to the police power \026 the  scope of which however has not been defined with  precision or uniformly. " (p. 378)

166.     In Kesavananda Bharati  case also, while considering the  extent and scope of the power of amendment under Article 368 of  the Constitution of India, the Constitution of the United States of  America was extensively referred to and Ray, J., held :-

"The American decisions which have been  copiously cited before us, were rendered in the  context of the history of the struggle against  colonialism of the American people, sovereignty of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 62 of 73  

several States which came together to form a  Confederation, the strains and pressures which  induced them to frame a Constitution for a Federal  Government and the underlying concepts of law and  judicial approach over a period of nearly 200 years,  cannot be used to persuade this Court to apply their  approach in determining the cases arising under our  Constitution".  (p. 615)

167.     It may also be noticed that there are structural differences in  the Constitution of India and the Constitution of the United States  of America.  Reference may be made to the 14th Amendment to  the U.S. Constitution.  Some of the relevant portions thereof are as  follows:

"All persons born or naturalized in the United  States, and subject to the jurisdiction thereof, are  citizens of the United States and of the State  wherein they reside. No State shall make or enforce  any law which shall abridge the privileges and  immunities of citizens of the United States; nor shall  any State deprive any person of life, liberty or  property without due process of law nor deny to any  person within its jurisdiction the equal protection of  the laws."

168.    Whereas in India, Articles 14 and 18 are differently structured  and contain express provisions for special provision for the  advancement of SEBCs, STs and SCs.  Moreover, in our  Constitution there is a specific provision under the Directive  Principles of State Policy in Part IV of the Constitution requiring the  State to strive for justice \026 social, economic and political \026 and to  minimize the inequalities of income and endeavour to eliminate  inequalities in status, facilities and opportunities (Article 38).    Earlier, there was a view that Articles 16(4) and 15(5) are  exceptions to Article 16(1) and 15(1) respectively.       This view  was held in The General Manager Southern Railways Vs.  Rangachari  and M.R. Balaji   Vs. State of Mysore .   

169.    In T. Devadasan  (supra), Subba Rao J., gave a dissenting  opinion wherein he held that Article 16(4) was not an exception to  Article 16(1).  He observed:-

"\005The expression ’nothing in this article’ is a  legislative device to express its intention in a most  emphatic way that the power conferred thereunder  is not limited in any way by the main provision but  falls outside it.  It has not really carved out an  exception, but has preserved a power untrammeled  by the other provisions of the Article."

170.    In two other subsequent decisions, i.e. in Triloki Nath (I)   (supra) and T. Devadasan case (supra), it was held that article  15(4) and 16(4) are exceptions to Article 15(1) and 16(1)  respectively.  But a 7-Judge Bench in State of Kerala Vs. N.M.  Thomas  (supra) held that Article 15(4) and 16(4) are not  exceptions to Article 15(1) and 16(1) respectively.  Fazal Ali J.,  said :

"This form of classification which is referred to as  reservation, is in my opinion, clearly covered by  Article 16(4) of the Constitution which is completely

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 63 of 73  

exhaustive on this point.  That is to say clause (4) of  Article 16 is not an exception to Article 14 in the  sense that whatever classification can be made, can  be done only through clause (4) of Article 16.   Clause (4) of Article 16, however, is an explanation  containing an exhaustive and exclusive provision  regarding reservation which is one of the forms of  classification."

171.    This brought out a drastic change in the view of this Court.  In  K.C. Vasanth Kumar  Vs.   State of Karnataka  (supra),  Venkatramaiah J. observed:

"Article 14 of the Constitution consists of two parts.   It asks the State not to deny to any person equality  before law.  It also asks the State not to deny the  equal protection of the laws.  Equality before law  connotes absence of any discrimination in law.  The  concept of equal protection required the State to  mete out differential treatment to persons in  different situations in order to establish an  equilibrium amongst all.  This is the basis of the rule  that equals should be treated equally and unequals  must be treated unequally if the doctrine of equality  which is one of the corner-stone of our Constitution  is to be duly implemented.  In order to do justice  amongst unequals, the State has to resort to  compensatory or protective discrimination.  Article  15(4) and Article 16(4) of the Constitution were  enacted as measures of compensatory or protective  discrimination to grant relief to persons belonging to  socially oppressed castes and minorities."  

172.    The amendment to Article 15 by inserting Article 15(5) and the  new Act (Act 5 of 2007) are to be viewed in the background of  these constitutional provisions.  It may also be recalled that the  Preamble to the Constitution and the Directive Principles of State  Policy give a positive mandate to the State and the State is obliged  to remove inequalities and backwardness from society. While  considering the constitutionality of a social justice legislation, it is  worthwhile to note the objectives which have been incorporated by  the Constitution makers in the Preamble of the Constitution  and  how they are sought to be secured by enacting fundamental rights  in Part III and Directives Principles of State Policy in Part IV of the  Constitution. The Fundamental Rights represent the civil and  political rights and the Directive Principles embody social and  economic rights.  Together they are intended to carry out the  objectives set out in the Preamble of the Constitution.  Granville  Austin, in his book , states :

"Both types of rights have developed as a common  demand, products of the national and social  revolutions, of their almost inseparable intertwining,  and of the character of Indian politics itself."

173.    From the constitutional history of India, it can be seen that from  the point of view of importance and significance, no distinction can  be made between the two sets of rights, namely, Fundamental  Rights which are made justiciable and the Directives Principles  which are made non-justiciable. The Directive Principles of State

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 64 of 73  

Policy are made non-justiciable for the reason that the  implementation of many of these rights would depend on the  financial capability of the State. Non-justiciable clause was  provided for the reason that an infant State shall not be made  accountable immediately for not fulfilling these obligations. Merely  because the Directive Principles are non-justiciable by the judicial  process does not mean that they are of subordinate importance.   In Champakam Dorairajan’s case (supra), it was observed that  "the Directive Principles have to conform to and run subsidiary to  the Chapter of Fundamental Rights."   But this view did not hold for  a long time and was later changed in a series of subsequent  decisions.  (See : In Re. Kerala Education Bill, 1957 ;    Minerava Mills (supra))

174.            In Minerva Mills   (supra)    Bhagwati, J observed :

"The Fundamental Rights are no doubt important  and valuable in a democracy, but there can be no  real democracy without social and economic justice  to the common man and to create socio-economic  conditions in which there can be social and  economic justice to every one, is the theme of the  Directive Principles.  It is the Directive Principles  which nourish the roots of our democracy, provide  strength and vigour to it and attempt to make it a  real participatory democracy which does not remain  merely a political democracy with Fundamental  Rights available to all irrespective of their power,  position or wealth.  The dynamic provisions of the  Directive Principles fertilise the static provisions of  the Fundamental Rights.  The object of the  Fundamental Rights is to protect individual liberty,  but can individual liberty be considered in isolation  from the socio-economic structure in which it is to  operate.  There is a real connection between  individual liberty and the shape and form of the  social and economic structure of the society.   Can  there be any individual liberty at all for the large  masses of people who are suffering from want and  privation  and who are cheated out of their individual  rights by the exploitative economic system?  Would  their individual liberty not come in conflict with the  liberty of the socially and economically more  powerful class and in the process, get mutilated or  destroyed?  It is exiomatic that the real  controversies in the present day society are not  between power and freedom but between one form  of liberty and another.  Under the present socio- economic system, it is the liberty of the few which is  in conflict with the liberty of the many.  The Directive  Principles therefore, impose an obligation on the  State to take positive action for creating socio- economic conditions in which there will be an  egalitarian social order with social and economic  justice to all, so that individual liberty will become a  cherished value  and the dignity of the individual a  living reality, not only for a few privileged persons  but for the entire people of the country.  It will thus  be seen that the Directive Principles enjoy a  very  high place in the constitutional scheme and it is only  in the framework of the socio-economic structure  envisaged in the Directive Principles that the  Fundamental Rights are intended to operate, for it is  only then they can become meaningful and  significant for the millions of our poor and deprived

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 65 of 73  

people who do not have been the bare necessities  of life and who are living below the poverty level."

175.    Article 46 enjoins upon the State to promote with special care  the educational and economic interests of the weaker sections of  the people and to protect them from social injustice and all forms  of exploitation whereas under the Constitution of the United States  of America, we get an entirely different picture. Though equality  was one of the solemn affirmations of the American Declaration of  Independence, slavery continued unabatedly and it was, to some  extent, legally recognized.  In Dred Scott Vs. Saunders  wherein  Chief Justice Taney held that [African-Americans] were not entitled  to get citizenship.  He was of the view that ’once a slave always a  slave’, and one slave never would become the citizen of America.   This view held by the Chief Justice Taney continued for a long time  and after the Civil War, the 14th amendment was enacted in 1868  and this amendment gave (equal protection of laws to all persons).   In Plassy Vs. Ferguson   which involved a challenge to a  Louisiana statute that provided for equal but separate  accommodations for black and white passengers in trains, the  United States Supreme Court was of the view that racial  segregation was a reasonable exercise of State police power for  the promotion of the public good and upheld the law.  Several  affirmative actions were challenged and the landmark decision of  Brown  Vs. Board of Education  was delivered in 1954.  In  many cases, the strict scrutiny doctrine was being applied to all  laws of racial classifications.  The learned Counsel for the  petitioner made reference to Gratz Vs. Bollinger (supra) and  some of the earlier decisions of the United States Supreme Court.   During the past two decades, the Court has become sceptical of  race-based affirmative action practiced or ordered by the State.   The Supreme Court of the US is of the view that affirmative action  plans must rest upon a sufficient showing or predicate of past  discrimination which must go beyond the effects of societal  discrimination.   

176.    The 14th Amendment to the Constitution of the United States of  America and Title VI of the 1964 Civil Rights Act, prohibit  universities to discriminate on the basis of classifications such as  race, colour, national origin and the like in all their operations. In a  number of decisions of the United States Supreme Court spanning  decades of jurisprudence, a heavy burden has been placed on  institutions whose affirmative action programmes are challenged  before the United States Supreme Court on grounds that have  been recognized as suspect or unconstitutional. According to the  United States Supreme Court, all such programmes are inherently  suspect since they rely on suspect forms of classification (such as  race). Therefore, because such forms of classification are  inherently suspect, the courts have subjected all affirmative action  programmes relying on them to a very high standard of scrutiny,  wherein those practicing these affirmative action programmes  have to adhere to a very high standard of proof, which we know as  the "strict scrutiny" test.  

177.    The case of Regents of the University of California  Vs.  Bakke   provided a starting point and from this case onwards,  affirmative action programmes can be justified only on two distinct  grounds, and only these grounds have been recognized as  compelling enough so as to satisfy the "strict scrutiny" test, as  developed by the United States Supreme Court. The two grounds  are as follows:  

1. Remedial Justification: All efforts aimed at remedying past  injustices against certain identified groups of people, who were

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 66 of 73  

unlawfully discriminated against in the past, serve as adequate  justifications and all affirmative action programmes that are  implemented with this aim serve the compelling institutional interest  in removing all vestiges of discrimination that occurred in the past.  In the case of City of Richmond  Vs.  J A Croson Co. , the United  States Supreme Court held that if a university is able to show "some  showing of prior discrimination" in its existing affirmative action  program furthering racial exclusion then the university may take  "affirmative steps to dismantle such a system". However, it is to be  noted that the US Supreme Court also attached a warning with the  above observation. While scrutinizing such programmes, it was held  that the Court would make "searching judicial inquiry into the  justification for such race-based measures... [and to] identify that  discrimination... with some specificity before they may use race- conscious relief". (Croson’s Case )

2. Diversity- All affirmative action programmes aimed at bringing  about racial diversity among the scholarship of the institution(s) may  be said to in furtherance of compelling institutional interest. The  starting point for this ground is Justice Powell’s detailed opinion  regarding the issue of diversity in the case of Regents of the  University of California Vs. Bakke  (supra). In this case, according  to Justice Powell, "[t]he attainment of a diverse student body is  clearly a constitutionally permissible goal for an institution of higher  education". He quoted from two of the Supreme Court’s decisions  regarding academic freedom [Sweezy Vs. New Hampshire  and  Keyishian Vs. Board of Regents ]  and observed:

"[I]t is the business of a university to provide that  atmosphere which is most conducive to speculation,  experiment and creation.........The atmosphere of  speculation, experiment and creation \027 so essential  to the quality of higher education \027 is widely believed  to be promoted by a diverse student body. ... [I]t is not  too much to say that the nation’s future depends upon  leaders trained through wide exposure to the ideas  and mores of students as diverse as this Nation of  many peoples."  

178.    The other part of the "strict scrutiny" test is the "narrow tailoring"  test. The University, whose affirmative action programme is in  question before the United States Supreme Court, is required to  prove that its affirmative action programme has been designed in the  narrowest possible manner, in order to benefit only those specific  people who are to be benefited, thus serving the "compelling  purposes" of the affirmative action programme. The program cannot  be made in a broad manner to encompass a large group of people,  and it has to serve the minimum possible requirement, in order to  achieve its goal. Otherwise, it may be possible that the rights of other  people may be infringed upon, which would make the affirmative  action programme unconstitutional.  

179.    Thus, the first limb of the strict scrutiny test that elucidates the  "compelling institutional interest" is focused on the objectives that  affirmative action programmes are designed to achieve. The second  limb, that of "narrow tailoring", focuses on the details of specific  affirmative action programmes and on the specific people it aims to  benefit.

180.    The United States Supreme Court has held that race may be one  of the many factors that can be taken into account while structuring  an affirmative action programme. At this stage, an analogy may be  drawn with the Indian situation wherein the Supreme Court of India,  in various cases, has held that caste may be one of the factors that

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 67 of 73  

can be taken into account, while providing for reservations for the  socially and educationally backward classes. However, caste cannot  be the "only" factor, just as race alone cannot be the only factor in the  United States, while structuring reservation or affirmative action  programmes.  

181.    Furthermore, the courts, both in India as well as in the United  States of America, have looked with extreme caution and care at any  legislation that aims to discriminate on the basis of race in the US  and caste in India. As the US Supreme Court elucidated in the case  of Grutter Vs. Bollinger (supra), "Because the Fourteenth  Amendment "protect[s] persons, not groups," all governmental action  based on race ought to be subjected to a very detailed and careful  judicial inquiry and scrutiny so as to ensure that the personal right to  equal protection of the laws has not been infringed. (See :  Adarand  Constructors Inc. Vs.  Peqa) .   

182.    It therefore follows that the government may treat people  differently because of their race but only for those reasons that serve  what is known as "compelling government interest".  

183.    Furthermore, for any affirmative action programme to survive the  strict standard of judicial scrutiny, the Courts want "compelling  evidence", that proves without any doubt that the affirmative action  program is narrowly tailored and serves only the most compelling of  interests. Thus, the bar for the State or institution that practices  affirmative action programmes based of suspect classifications has  been effectively raised. Therefore, in cases where a compelling  interest is found, race-based methods may be used only after all  other methods have been considered and found deficient, and that  too only to that limited extent which is required to remedy a  discrimination that has been identified, and only when it has been  shown that the identified beneficiaries have suffered previously in the  past, and lastly, only if all undue burdens that may impinge upon the  rights of other non- beneficiaries are avoided.

184.    The aforesaid principles applied by the Supreme Court of the  United States of America cannot be applied directly to India as the  gamut of affirmative action in India is fully supported by  constitutional provisions and we have not applied the principles of   "suspect legislation" and we have been following the doctrine that  every legislation passed by the Parliament is presumed to be  constitutionally valid unless otherwise proved.  We have  repeatedly held that the American decisions are not strictly  applicable to us and the very same principles of strict scrutiny and  suspect legislation were sought to be applied and this Court  rejected the same in Saurabh Chaudhari Vs. Union of India .     Speaking for the bench, V.N. Khare, CJI, said:

"The strict scrutiny test or the intermediate scrutiny  test applicable in the United States of America as  argued by Shri Salve cannot be applied in this case.   Such a test is not applied in Indian Courts.  In any  event, such a test may be applied in a case where a  legislation ex facie is found to be unreasonable.   Such a test may also be applied in a case where by  reason of a statute the life and liberty of a citizen is  put in jeopardy.  This Court since its inception apart  from a few cases where the legislation was found to  be ex facie wholly unreasonable proceeded on the  doctrine that constitutionality of a statute is to be  presumed and the burden to prove contra is on him  who asserts the same."

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 68 of 73  

185.    Learned Counsel Shri Sushil Kumar Jain contended that the  classification of OBCs was not properly done and it is not clear as  to whose benefit the legislation itself is made therefore, it is a  suspect legislation.  This contention  cannot be accepted.  We are  of the view that the challenge of Act 5 of 2007 on the ground that it  does not stand the "strict scrutiny" test and there was no  "compellable State necessity" to enact this legislation cannot be  accepted.

10.   Whether delegation of power to the Union Government to  determine as to who shall be the backward class is  constitutionally valid?

186.            The learned Counsel for the petitioners contended that  though "Backward Class"  is defined under Section 2(g) of Act 5 of  2007,  it is not stated in the Act how the "Backward Class" would  be identified and the delegation of such power to the Union of India  to determine as to who shall be the "backward class" without their  being proper guidelines is illegal as it amounts to excessive  delegation. According to the learned Counsel for the petitioners,  the Parliament itself should have laid down the guidelines and  decided that who shall be included in the backward class as  defined under Section 2(g) of the Act 5 of 2007.   "Backward class"  is not a new word.  Going by the Constitution, there are sufficient  constitutional provisions to have an idea as to what  "backward  class" is.  Article 340 of the Constitution specifically empowers the  President of India to appoint a Commission to investigate the  conditions of the socially and educationally backward classes  within the territory of India.  Socially and educationally backward  classes of citizens are mentioned in Article 15(4) of the  Constitution, which formed the First Amendment to the  Constitution.  Backward class citizens are also mentioned in Article  16(4) of the Constitution.  It is only for the purpose of Act 5 of 2007  that the Union of India has been entrusted with the task of  determining the backward class. There is already a National  Commission and also various State Commissions dealing with the  affairs of the backward class of citizens in this country.  For the  purpose of enforcement of the legislation passed under Article  16(4), the backward class of citizens have already been identified  and has been in practice since the past 14 years.  It is in this  background that the Union of India has been given the task of  determining the backward classes.  The determination of backward  classes itself is a laborious task and the Parliament cannot do it by  itself.  It is incorrect to say that there are no sufficient guidelines to  determine the backward classes.  Various parameters have been  used and it may also be noticed that if any undeserving caste or  group of persons are included in the backward class,  it is open to  any person to challenge the same through judicial review.   Therefore, it is incorrect to say that the Union of India has been  given wide powers to determine the backward classes.  The  challenge of Act 5 of 2007 on that ground fails.

 11.  Whether the Act is invalid as there is no time limit  prescribed for its operation and no periodical review is  contemplated?

187.            The learned Counsel for the petitioners contended that the  reservation of 27% provided for the backward classes in the  educational institutions contemplated under the Act does not  prescribe any time limit and this is opposed to the principle of  equality.  According to learned Counsel for the petitioners, this  affirmative action that is to bring about equality is  calculated to  produce equality on a broader  basis by eliminating de facto  inequalities and placing the weaker sections of the community on a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 69 of 73  

footing of equality with the stronger and more power section so  that each member of the community, whatever is his birth,  occupation or social position may enjoy equal opportunity of using  to the full, his natural endowments of physique, of character and of  intelligence.  This compensatory state action can be continued  only for a period till that inequality is wiped off.  Therefore, the  petitioners have contended that unless the period is prescribed,  this affirmative action will continue for an indefinite period and  would ultimately result in reverse discrimination.  It is true that  there is some force in the contention advanced by the learned  Counsel for the petitioners but that may happen in future if the  reservation policy as contemplated under the Act is successfully  implemented.  But at the outset, it may not be possible to fix a time  limit or a period of time. Depending upon the result of the  measures and improvements that have taken place in the status  and educational advancement of the socially and educationally  backward classes of citizens, the matter could be examined by the  Parliament at a future time but that cannot be a ground for striking  down a legislation. After some period, if it so happens that any  section of the community gets an undue advantage of the  affirmative action, then such community can very well be excluded  from such affirmative action programme. The Parliament can  certainly review the situation and even though a specific class of  citizens is in the legislation, it is the constitutional duty of the  Parliament to review such affirmative action as and when the  social conditions are required.  There is also the safeguard of  judicial review and the court can exercise its powers of judicial  review and say that the affirmative action has carried out its  mission and is thus no longer required.  In the case of reservation  of 27% for backward classes, there could be a periodic review  after a period  of  10  years  and  the Parliament could examine  whether the reservation has worked for the good of the country.   Therefore, the legislation cannot be held to be invalid on that  ground but a review can be made after a period of 10 years.

12.   What shall be the educational standard to be prescribed  to find out whether any class is educationally backward?

188.            Learned Senior Counsel Shri P.P. Rao contended that under  Article 15(5) of the Constitution, the reservation or any other  affirmative action could be made for the advancement of only  socially and educationally backward classes of citizens or  Scheduled Castes or Scheduled Tribes and the educational  standard to be assessed shall be matriculation or 10+2 and not  more than that.  It was argued that many castes included in the  backward class list have got a fairly good number of members who  have passed 10+2 and thus such castes are to be treated as  educationally forward and the present legislation, namely, Act 5 of  2007, is intended to give reservation to students in higher  institutions of learning and the same is not permissible under  Article 15(5) of the Constitution.  He contended that the Parliament  should not have made this legislation for reservation in the higher  institutions of learning as it is not part of the duty of the State under  Article 46 of the Constitution.  According to the learned Counsel,  education contemplated under Article 46 is only giving education  upto the standard of 10+2.  The learned Counsel argued that this  was the desire of the Founding Fathers of the Constitution.  The  learned Counsel contended further that the State is not taking  adequate steps to improve primary education.  

189.            In reply to Shri P.P. Rao’s arguments, learned Solicitor  General Shri G. E. Vahanvati drew our attention to various steps  taken by the Union Government to improve the primary school  education and also the upper primary school education.  It is  incorrect to suggest that there have been no efforts on the part of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 70 of 73  

successive Governments to concentrate on level of education  towards universal elementary education. "Sarva Shiksha Abhiyanm"   (SSA)  had been launched by the Government in 2001-2002.  The  major components of SSA include opening of new schools,  distribution of teaching equipments, school grant for teachers and  maintenance for schools, community participation & training,  carrying out civil works in school buildings, additional class rooms,  distribution of free text books for ST students and girls.   It was  pointed out that in the year 2006-2007, nearly Rs. 15,000 crores  had been spent for such education. The Integrated Child  Development Services (ICDS) scheme was started in 1975.  Latest  figures show that progress has been made in the field of  education.  It is pointed out that the primary school coverage has  increased from 86.96% (2002) to 96% and that of Upper Primary  School has increased from 78.11% to 85.3% with the opening of  1.34 Lakh Primary Schools and 1.01 lakh Upper Primary Schools.  The gross enrolment has also increased at the primary as well as  upper primary stage. Drop out rate has fallen by 11.3%.   It is also  pointed out that  girls enrolment has increased from 43.7% (2001)  to 46.7% (2004) at primary and from 40.9% to 44% at upper  primary stage.  The Union of India has granted funds to various  states for the purpose of meeting the education requirements.  The  entire details were furnished to the Court and we do not think it  necessary to go into these details.  Though at the time of attaining  Independence, the basic idea was to improve primary and  secondary level education, but now, after a period of more than 50  years, it is idle to contend that the backward classes shall be  determined on the basis of their attaining education only to the  level of 10+2 stage.  In India there are a large number of arts,  science and professional colleges and in the field of education, it is  anachronistic to contend that  primary education or secondary  education shall be the index for fixing backward class of  citizens.   We find no force in the contention advanced by the learned  Counsel for the petitioners and it is only to be rejected.    13.   Whether the quantum of reservation provided for in the  Act is valid and whether 27% of seats for SEBC was required  to be reserved?

190.            The main contention of the petitioner’s Counsel especially  that of Shri Sushil Kumar Jain is that the entire Act is liable to be  set aside as there was no necessity to provide any reservation to  socially and educationally backward classes and according to him  most of the castes included in the list which is prepared in  accordance with the Mandal Commission are educationally very  much advanced and the population of such group is not  scientifically collected and the population ratio of backward classes  is projected only on the basis of the 1931 census and the entire  legislation is an attempt to please a section of the society as part  of a vote catching mechanism.

191.            A legislation passed by the Parliament can be challenged  only on constitutionally recognized grounds.  Ordinarily, grounds of  attack of a legislation is whether the legislature has legislative  competence or whether the legislation is ultra vires of the  provisions of the Constitution.  If any of the provisions of the  legislation violates fundamental rights or any other provisions of  the Constitution, it could certainly be a valid ground to set aside  the legislation by invoking the power of judicial review.  A  legislation could also be challenged as unreasonable if it violates  the principles of equality adumbrated in our Constitution or it  unreasonably restricts the fundamental rights under Article 19 of  the Constitution.  A  legislation cannot be challenged simply on the  ground of unreasonableness because that by itself does not  constitute a ground.  The validity of a constitutional amendment

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 71 of 73  

and the validity of plenary legislation have to be decided purely as  questions of constitutional law.  This Court in State of Rajasthan  & Ors.   Vs.  Union of India and Others   said :

"\005if a question brought before the Court is purely a  politically question not involving determination of  any legal or constitutional right or obligation, the  court would not entertain it, since the Court is  concerned only with adjudication of legal rights and  liabilities."

192.            Therefore, the plea of the Petitioner that the legislation itself  was intended to please a section of the community as part of the  vote catching mechanism is not a legally acceptable plea and it is  only to be rejected.

193.            The quantum of reservation provided under the Act 5 of 2007  is based on the detailed facts available with the Parliament.   Various commissions have been in operation determining as to  who shall form the SEBCs.  Though a caste-wise census is not  available, several other data and statistics are available.  In the  case of Indra Sawhney  (supra), the Mandal Commission was  accepted in principle though the details and findings of the  commissions were not fully accepted by this Court.  27% of  reservation in the matter of employment was accepted by this  Court.  Petitioners have not produced any documents to show that  the backward class citizens are less than 27%, vis-‘-vis, the total  population of this country or that there was no requirement of 27%  reservation for them.  The Parliament is invested with the power of  legislation and must be deemed to have taken into consideration  all relevant circumstances when passing a legislation of this  nature.  It is futile to contend whether Parliament was not aware of  the statistical details of the population of this country and,  therefore, we do not think that 27% reservation provided in the Act  is illegal or on that account, the Act itself is liable to be struck  down.

Questions:

1.      Whether the Ninety-Third  Amendment of the Constitution is  against the "basic structure" of the Constitution?                        The Constitution (Ninety-Third Amendment) Act, 2005 does  not violate the "basic structure" of the Constitution so far as it  relates to the state maintained institutions and aided educational  institutions.  Question whether the Constitution (Ninety-Third  Amendment) Act, 2005 would be constitutionally valid or not so far  as "private unaided" educational institutions are concerned, is left  open to be decided in an appropriate case.       (Paragraph 79)

2.      Whether Articles 15(4) and 15(5) are mutually contradictory,  hence Article 15(5) is to be held ultra vires?   

Article 15(5) is constitutionally valid and Articles 15(4) and  15(5) are not mutually contradictory.                  (Paragraph 100)

3.      Whether exclusion of minority educational institutions from  Article 15(5) is violative of Article 14 of Constitution?        

Exclusion of minority educational institutions from Article  15(5) is not violative of Article 14 of the Constitution as the minority  educational institutions, by themselves, are a separate class and  their rights are protected by other constitutional provisions. (Paragraph 102)

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 72 of 73  

4.      Whether the Constitutional Amendment followed the  procedure prescribed under Article 368 of the Constitution?  

The Ninety-Third  Amendment of the Constitution does not  affect the executive power of the State under Article 162 of the  Constitution and hence, procedure prescribed under Proviso to  Article 368(2) is not required to be followed.                                                (Paragraph 103)

5.      Whether the Act 5 of 2007 is constitutionally invalid in view of  definition of "Backward Class" and whether the identification  of such "Backward Class" based on "caste" is  constitutionally valid?

               Identification of "backward class" is not done solely based on  caste.  Other parameters are followed in identifying the backward  class.  Therefore, Act 5 of 2007 is not invalid for this reason.         (Paragraph 142)

6.      Whether "Creamy Layer" is to be excluded from SEBCs?     

"Creamy Layer" is to be excluded from SEBCs.  The  identification of SEBCs will not be complete and without the  exclusion of "creamy layer" such identification may not be valid  under Article 15(1) of the Constitution.                  (Paragraph 152)

7.      What should be the para-meters for determining the "creamy  layer" group?    

The parameters contained in the Office Memorandum issued  by the Government of India, Ministry of Personnel, Public  Grievances and Pensions (Department of Personnel and Training)  on 08.09.1993 may be applied.  And the definition of "Other  Backward Classes" under Section 2(g) of the Act 5 of 2007 should  be deemed to mean class or classes of citizens who are socially  and educationally backward, and so determined by the Central  Government; and if the determination is with reference to caste,  then the backward class shall be after excluding the creamy layer.                                                         (Paragraphs 153 and 155)

8.      Whether the "creamy layer" principle is applicable to  Scheduled Tribes and Scheduled Castes?           

"Creamy Layer" principle is not applicable to Scheduled  Castes and Scheduled Tribes.                         (Paragraph 163)

9.      Whether the principles laid down by the United States  Supreme Court for affirmative action such as "suspect  legislation", "strict scrutiny" and "compelling State  necessity" are applicable to principles of reservation   or  other affirmative action contemplated under Article 15(5) of  the Constitution?

       The principles laid down by the United States Supreme  Court such as "suspect legislation", "strict scrutiny" and  "compelling State necessity" are not applicable for challenging the  validity of Act 5 of 2007 or reservations or other affirmative action  contemplated under Article 15(5) of the Constitution.                    (Paragraphs 184)

10.     Whether delegation of power to the Union Government to  determine as to who shall be the backward class is

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 73 of 73  

constitutionally valid?  

The delegation of power to the Union Government to  determine as to who shall be the "other backward classes" is not  excessive delegation.  Such delegation is constitutionally valid.                                                                         (Paragraph 186)

11.     Whether the Act is invalid as there is no time limit prescribed  for its operation and no periodical review is contemplated?  

The Act 5 of 2007 is not invalid for the reason that there is  no time limit prescribed for its operation, but a review can be made  after a period of 10 years.                                  (Paragraph 187)

12.     What shall be the educational standard to be prescribed to  find out whether any class is educationally backward?  The contention that educational standard of matriculation or  (10+2) should be the benchmark to find out whether any class is  educationally backward is rejected.                 (Paragraph 189)

13.     Whether the quantum of reservation provided for in the Act is  valid and whether 27% of seats for SEBC was required to be  reserved?

27% of seats for other backward classes is not illegal and  the Parliament must be deemed to have taken into consideration  all relevant circumstances when fixing the 27% reservation. (Paragraph 193)

These Writ Petitions are disposed off in light of the above  findings, and the "Other Backward Classes" defined in Section 2(g)  of Act 5 of 2007 is to be read as "Socially and Educationally  Backward Classes" other than Scheduled Castes and Scheduled  Tribes, determined as ’Other Backward Classes’ by the Central  Government and if such determination is with reference to caste, it  shall exclude "Creamy Layer" from among such caste.  In  Contempt Petition (Civil) No. 112/2007 in Writ Petition (C) No.  265/2006, no orders are required.  It is dismissed.