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

PETITIONER: Ashoka Kumar Thakur

RESPONDENT: Union of India and Others etc.

DATE OF JUDGMENT: 17/05/2007

BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T

[With WP (C) Nos. 269/2006, 598/2006, 29/2007, 35/2007 and 53/2007]

Dr. ARIJIT PASAYAT, J.

1.      During the hearing of these petitions it was submitted by  learned Solicitor General that in view of the mandate of Article  145(3) of the Constitution of India, 1950 (in short the  ’Constitution’) and  Order 35 of Supreme Court Rules, 1966 (in  short the ’Rules’), these cases should be heard by a Bench of  at least five Hon’ble Judges.  It was submitted that not only  petitions raise substantial questions of law but also  interpretation of the Constitution is involved.   

2.      Learned counsel for the petitioners on the other hand  submitted that in the counter affidavit filed by the Union of  India it has been specifically stated that, according to it, there  was no question of law much less of substantial nature  involved and the issues raised are covered by various  decisions of this Court, more particularly, Indra Sawhney v.  Union of India and Ors. (1992 Supp. (3) SCC 217). If that be  so, learned counsel for the petitioners submitted, there is no  substance in the present stand of learned Solicitor General  that substantial questions of law are involved. According to  him, the cases can be decided on the pleadings made and the  acceptability of stands.  

3.      Mr. K. Parasaran and Mr. Ram Jethmalani, learned  Senior counsel for one of the respondents, submitted that they  support the stand of learned Solicitor General that the matter  should be heard by a Bench of at least five Hon’ble Judges.  They, however, stated that the stand taken in the counter  affidavit cannot be determinative. The interpretation of the  provisions of the Constitution and/or the Central Educational  Institutions (Reservation in Admission) Act, 2006 (in short the  ’Act’) fall for interpretation in these cases.   

4.       Learned counsel for the petitioners, however, stated    that the complex issues relating to the scope and ambit of  Article 15(5) of the Constitution and the validity of 93rd  Constitution Amendment Act, 2005 are involved.  It is pointed  out that behind the so called anxiety which is nothing but a  fagade, to provide better educational facilities for socially and  educationally backward classes, the objective is to play a  political game and what is commonly accepted as "Vote

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politics".  The objective is not so much for social empowerment  as creating a vote bank.  In the name of social empowerment,  what is intended to be done is to create a caste divide which  shall have catastrophic  implications.  The object is not social  empowerment and/or to extend help to the deprived. If that  was really so, the stress should have been on social and  economic backwardness.  If any class needs protection, it is  the socially and economically backward class of people.  It is  also pointed out that the framers of the Constitution had  indicated a specific period for reservation. They had felt that  the period is good enough to take care of any injustice they  may have been hypothetically meted out to socially and  educationally backward castes.  But with oblique motives the  period is being extended.  It is submitted that the same cannot  be the objective of the Constitution.  It has also been  submitted that there is no scope for reservation in higher  education and the Act empowers reservation in educational  institutions imparting higher education and that itself is  unconstitutional.  Further, the basic data for identifying the  "backward classes" has not yet been placed before this Court  though at the threshold the inadequacy and non-availability of  such data was highlighted by this Court. It is submitted that  this Court in Jagdish Negi, President, Uttarakhand Jan  Morcha and Anr. V. State of U.P. and Anr. (1997 (7) SCC 203)   held that the State cannot be bound in perpetuity to treat  some classes of citizens for all time as socially and  educationally backward classes of citizens. In these  circumstances, it is submitted that the writ petitions should  be disposed of on the material as existing presently.   

5.      We shall first deal with the effect of the counter affidavit  filed by the Union of India. In Sanjeev Coke Manufacturing  Company v. M/s Bharat Coking Coal Ltd. And Anr. (1983 (1)  SCC 147) it was inter-alia held as follows:

"25. Shri Ashoke Sen drew pointed attention to  the earlier affidavits filed on behalf of Bharat  Coking Coal Limited and commented severely  on the alleged contradictory reasons given  therein for the exclusion of certain coke oven  plants from the Coking Coal Mines  (Nationalisation) Act. But, in the ultimate  analysis, we are not really to concern ourselves  with the hollowness or the self-condemnatory  nature of the statements made in the affidavits  filed by the respondents to justify and sustain  the legislation. The deponents of the affidavits  filed into court may speak for the parties on  whose behalf they swear to the statements.  They do not speak for the Parliament. No one  may speak for the Parliament and Parliament  is never before the court. After Parliament has  said what it intends to say, only the court may  say what the Parliament meant to say, None  else. Once a statute leaves Parliament House,  the Court is the only authentic voice which  may echo (interpret) the Parliament. Thus the  court will do with reference to the language of  the statute and other permissible aids. The  executive Government may place before the  court their understanding of what Parliament  has said or intended to say or what they think  was Parliament’s object and all the facts and  circumstances which in their view led to the  legislation. When they do so, they do not speak

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for Parliament. No Act of Parliament may be  struck down because of the understanding or  mis-understanding of parliamentary intention  by the executive Government or because their  (the Government’s) spokesmen do not bring  out relevant circumstances but indulge in  empty and self-defeating affidavits. They do  not and they cannot bind Parliament. Validity  of legislation is not to be judged merely by  affidavits filed on behalf of the State, but by all  the relevant circumstances which the Court  may ultimately find and more especially by  what may be gathered from what the  legislature has itself said. We have mentioned  the facts as found by us and we do not think  that there has been any infringement of the  right guaranteed by Article 14."  

6.      To quote Justice Holmes: The life of law has not been  logic; it has been experience. The felt necessities of law, the  prevalent moral and political theories, intuitions of public  policy, avowed and unconscious, even the prejudices which  Judges share with their followmen have had a good dear more  to do than the syllogism in determining the rules by which the  men should be governed.                   7.       Untrammeled by the effect of Article 145(3) and Order 35  of the Rules, considering considerable importance of the  issues involved and its likely impact in the social life of the  country as a whole and the complexities of the questions, it is  appropriate that the matter should be heard by a larger  Bench.  The pivotal challenges in the writ petitions are as  follows:  (1) Challenge to the Constitution 93rd Amendment Act,  2005 by which Article 15(5) has been inserted in Part III  of the Constitution. (2) Challenge to the policy of reservation as a form of  "affirmative action".  (3) Challenge to the "caste based" reservation or the  "caste based" affirmative action. (4) Challenge to the Act.   8.      The basic issues which need to be considered by the  larger Bench, are as follows: 93rd  Constitution Amendment Act, 2005 (1) Whether the 93rd Constitution Amendment Act, 2005  and Article 15(5) are unconstitutional as being violative of  the basic structure of the Constitution?  (2) If the Amendment is valid, how is it to be interpreted  and implemented?  (3) Whether the 93rd Amendment insofar as it empowers  the government to make special provisions by way of  reservations in educational institutions (including private  educational institutions) is violative of the basic structure  of the Constitution? (4) Whether the 93rd Amendment confers on the State an  unbridled power to make special provisions for "socially  and educationally backward classes", without indicating  the circumstances when such provision may be made,  and without imposing any limit either on the contents or  duration of such special provisions and is, therefore,   wholly destructive of the right of equality of the citizens  and thereby violative of basic structure?  (5) Whether depriving the protection of Art. 19(1)(g) to  non-minority institutions (while excluding minority

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institutions from Art. 15(5)), after the decision in P.A.  Inamdar v. State of Maharashtra (2005 (6) SCC 537)  which held that non-minority institutions enjoyed a  similar protection, upsets the delicate balance of the  Constitution, and is inconsistent inter-alia with the  principles of secularism and thereby is violative of the  basic structure? Scope of Articles 15(4) and 15(5) (1) What is the true ambit and scope of Articles 15(4) and  15(5) of the Constitution?  (2) If Article 15(5) is valid, what is its true scope and ambit? (3) What is the meaning of the term "special provisions"  in Articles 15(4) and 15(5) of the Constitution? Does it  include ’quotas’ by reservation of seats especially in  higher educational institutions and professional and  technical education (particularly those of national stature  or importance and in courses categorized as speciality or  super speciality). Is it a permissible measure of  advancement of socially and educationally backward  classes? (4) If the answers to above questions are in the  affirmative, then what are the necessary ingredients of  any "Affirmative Action" programme of the State  including the "nature and extent" of the benefits  proposed and the limitations thereon, in order to balance  the rights between Articles, 14, 15, 29(2) and its "facet"  in Articles 15(4) and 15(5)?  (5)  Whether a rational policy of affirmative action that  would ensure imparting free and compulsory education  to the illiterate sections among all the citizens including  the backward classes, is absent and if so, whether  affirmative action in favour of SEBCs is discriminatory  and unconstitutional? (6)  What is the meaning of the words "for the  advancement of any socially and educationally backward  classes of citizens" in Articles 15(4) and 15(5)? What is  the yardstick for measuring educational backwardness in  Clauses (4) and (5) of Article 15?  (7) Whether substitution of the expression "socially and  educationally backward classes of citizen" by "socially  and economically backward classes" would result in  fulfilling constitutional intentions and objectives?  Scope of Judicial Review (1) Having regard to the fact that special provision by way  of reservation in Central Educational Institutions has  been made by law enacted by Parliament and the  enabling provision of Article 15(5) vesting the power in  the State to make such provision by law, is the scope of  judicial review restricted or not?  (2)     What are the parameters and limits of judicial  review of a law enacted by the Parliament providing for  reservation in pursuance of the mandate of Articles 15(4)  and 15(5), having regard, inter-alia to the order of  reference to the Constitution Bench on Subramanian  Swamy (Dr.) vs. Director, CBI & Ors. (2005) 2 SCC 317)? Listing of Socially and Educationally Backward Classes  in terms of units of caste/communities (1) Whether reservations based solely or principally upon  the basis of caste are impermissible under Article 15? (2) Whether a reservation that relies significantly on  "caste" to identify its beneficiaries is inherently divisive  and incompatible with the Unity and integrity of the  Nation? (3) If the answer to Questions (1) and (2) above is in the  affirmative, then how, in what way and on what basis are

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the beneficiaries of "special provisions" to be identified,  selected, included or excluded? (4) Does the Union of India’s method, manner and extent  of identifying and compensating beneficiaries of ’special  provisions’ perpetuate caste and backwardness?  (5) Whether "caste based" reservations are a permissible  form of affirmative action under Article 15? If the answer  to the question above is in the affirmative, then what are  the permissible criteria for the identification of the "class"  to whom the benefits under an affirmative action  programme are to be extended under Article 15? (6) Whether the reservation policy of the State which  lacks a Continuous Review Mechanism is violative of  Articles 14, 15, 21 and 29(2)?  (7) Whether, after the judgment in Indra Sawhney’s case  (supra), the classification of backward classes on the  basis of caste for the purposes of Article 16(4) would  equally apply to Articles 15(4) and Article 15(5) of the  Constitution?   Whether 27% reservation in Socially Educational  Backward Classes/Other Backward Classes is justified (1) Whether the Act insofar as it mandates reservation of  27% in all educational institutions (including private  aided institutions) irrespective of and unrelated to the  "compelling need" of the State and without any limit of  time and without any computable data for identification  of persons as OBCs,  is violative of Articles 14,15, 21A  and 29(2) of the Constitution?  (2) Special provision by way of reservation of 27% for  OBCs in Central Educational Institutions being within  the percentage authorized by Indra Sawhney’s case  (supra) and it having been ensured that there will be  increase of seats so as not to diminish the number of  seats available for non reserved category, could such  provision be held to be unconstitutional? (3)     Whether the Central Educational Institutions  (Reservation in Admission) Act, 2006 (Act No.5 of 2007) is  violative of Articles 14, 15(1), 19, 21 and 29(2) of the  Constitution?  Socially Advanced Persons/Sections or creamy layer of  SEBC/OBC (1) Would at all the concept of "creamy layer" propounded  in the context of public employment in Indra Sawhney’s  case (supra) be applicable to special provision by way of  reservation for education provided for by law made by the  State? (2)     Whether in balancing formal equality vis-‘-vis  defacto equality under Article 14 and Article 15(5)  "creamy layer" should or should not be excluded?   (3) Whether the concept of Socially Advanced  Persons/Sections or creamy layer of SEBC  castes/communities formulated in the Indra Sawhney’s   case (supra) for the purpose of exclusion from reservation  of appointments or posts under Article 16(4) is applicable  in relation to reservation in education including higher  education and admission to seats in educational  institutions under Article 15(4) and Article 15(5)?  (4) Whether the provisions of the Act insofar as it does  not exclude or make provision for the identification and  exclusion of the "creamy layer" from the beneficiaries of  reservation fall foul of Articles 15 and 29(2)?   Constitutionality/Validity of the 2006 Act  (1)  Whether the reasons given by the Union and the data  furnished by it in order to justify and sustain Act No. 5 of  2007 satisfies the requirements of a valid exercise of

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affirmative action as laid down in various judgments (e.g.   M. Nagaraj and Ors. v. Union of India and Ors. (2006 (8)  SCC 212) and can provide a valid basis for reservation of  the kind sought to be attained by the impugned Act? (2)     Whether the Act is in violation of Article 26 of the  Universal Declaration of Human Rights which postulates  that technical and professional education shall be made  generally available and higher education shall be equally  accessible to all on the basis of merit? 9.      It is needless to say that the larger Bench hearing the  matter can consider further issues or questions involved.   10.      Let records be placed before the Hon’ble Chief Justice of  India for appropriate orders.