Ashoka Kumar Thakur Vs Union of India

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 265 OF 2006

ASHOKA KUMAR THAKUR ….PETITIONER

Versus

UNION OF INDIA & ORS. ….RESPONDENTS

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

J U D G M E N T

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

purposeless1. 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

1 II Constituent Assembly Debates 317 (Wednesday, January 22, 1947)

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.

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

Assembly2 :

“…We 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.”3

5. Equality has also been enshrined in various international

2 XI Constituent Assembly Debates 979 (Friday, November 25, 1949) 3 Lauterpacht, An International Bill of the Rights of the Man (New York, Columbia University Press,

1945)

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.”4

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

4 Universal Declaration of Human Rights, pmbl., G.A. Res. 217A, U.N. GAOR, 3rd Sess., pt. 1, at 71, U.N. Doc A/810 (1948)

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...”5

7. Dr. Rajendra Prasad, at the concluding address of the Constituent

Assembly, stated in the following words:-

“…To 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...”6

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

5 President Lyndon B. Johnson, Howard University Commencement Address, "To Fulfill These Rights", June 4, 1965

6 V Constituent Assembly Debates 2 (Thursday, the 14th August 1947)

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.7, 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.8, 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 educational institutions and State regulation of

admissions in such institutions would not be regarded as an

7 1993 (1) SCC 645 8 2002 (8) SCC 481

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, 7½% 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.”

14. “Central Educational Institution” has been defined under

Section 2(d) of the Act as follows:

2(d) “Central Educational Institution” means –

(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 –

(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.”

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 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 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 Dorairajan9. 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 9 1951 SCR 525

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 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.10.

27. The validity of Constitution (Ninety-Third Amendment) Act, 2005

was seriously challenged by arguing that the amendment is 10 1992 Supp. (3) SCC 215

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.11 and I.R. Coelho (Dead) by LRS.

Vs. State of T.N.12 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.

11 (2006) 8 SCC 212 12 (2007) 2 SCC 1

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 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.13 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. 13 AIR 1980 SC 1789 = (1980) 3 SCC 625

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)” 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 not 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.14 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 14 (1964) 6 SCR 368

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-

execution 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

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 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 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.15 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 (2005) 6 SCC 537

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 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 & Others16.

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 16 (2000) 1 SCC 168, at p. 190

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 Kerala17,

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 17 [1973] Supp. SCR 1 = (1973) 4 SCC 225

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 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 86 th

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’.

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 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 ½%. 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.

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.18, 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 18 (2005) 1 SCC 394

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 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,19 Article 16(4) is an exception to Article 16(1) and this

reasoning was followed in M.R. Balaji & Others Vs. State of

Mysore20 by a five Judge Bench. Thereafter, the same view

prevailed in T. Devadasan Vs. The Union of India & Anr.21 But

19 1962 (2) SCR 586 at p. 607 20 (1963) Supp. 1 SCR 439 at 455 = AIR 1963 SC 649 21 1964 (4) SCR 680

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)22 and in The State of Andhra

Pradesh & Ors. Vs. U.S.V. Balram, Etc23. The learned Solicitor

General further pointed out that in State of Kerala & Anr. Vs N.M.

Thomas & Ors.24 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

Karnataka25 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

22 1969 (1) SCR 103 23 1972 (1) SCC 660 24 1976 (2) SCC 310 25 (1985) Supp SCC 714

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.26 As regards

identification of backward classes, the learned 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.27 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 &

26 (2003) 11 SCC 146 27 (1968) 1 SCR 721

Anr. Vs. State of Tamil Nadu & Ors.28; 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.29, 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

28 1971 (1) SCC 38 29 AIR 1951 SC 229 = 1951 1 MLJ 625

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 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.30, 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. Bakke31, Grutter Vs. Bollinger32 and

Gratz Vs. Bollinger33, and Parents Involved in Community

Schools Vs. Seattle School District34, 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,

30 1982 (1) SCC 271 31 438 US 265 (1978) 32 539 US 306 (2003) 33 539 US 244 (2003) 34 127 S.Ct. 2738 (2007)

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

Report35 wherein it is stated :-

“…..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

35 Arjun Sen Gupta Report on “Conditions of Work and Promotion of Livelihood in the Unorganised Sector (July 2007)

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 equal protection of the

laws”. Even after this injunction, the United States Supreme Court

delivered the judgment in Plessy Vs. Ferguson36, 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. 36 (1896) 41 L.Ed. 256

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 Punjab & Anrs,37 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 37 (1967) 2 SCR 762

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.

Article 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,

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 19 th

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 Depresses 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 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 – 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.— (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, 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 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-à-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 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 kind thee 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 :-

(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….. 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 :-

“…The 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 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”

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 India38, 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

38 (1960) 3 SCR 250

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 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 Narain39 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 39 (1976) 2 SCR 347 : (AIR 1975 SC 2299)

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 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 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 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 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 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 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.40 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. 40 (1968) 2 SCR 786

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) 41 , 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 41 (1967) 2 SCR 265

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 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.42 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

42 (1975) 1 SCC 267

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 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. Sagar43 and T. Devadasan Vs.

The Union of India & Anr.44. The earlier decisions took the view that

caste shall not be a basis for determining the socially and

43 (1968) 3 SCR 595 44 (1964) 4 SCR 680

educationally backward class of citizens. But from the later

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

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 – they do, barring a few exceptions – 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 – the caste – 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 synonyms45. However, many others,

45 W.H.R. Rivers, Social Organization (New York, 1924) p. 143

such as Lowie46 and Kimball Young47, use these terms as though

they were identical.

127. Very common is the use of the word caste to indicate

hereditary status. Cecil Clare North48, 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. MacIver49, 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

46 Robert H. Lowie, The Origin of the State (New York, 1927) p. 21; Lowie, An Introduction to Cultural Anthropology (New York, 1940) p. 268

47 Kimball Young, An Introductory Sociology (New York, 1924) 48 Cecil Clare North, Social Differentiation (Chapel Hill, 1926) p. 254 49 R.N. MacIver, Society: A textbook of Sociology (New York 1937) p. 171. 9

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 Cooley50 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…”

50 Charles Horton Cooley, Social Organization (New York, 1909) p. 215

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 51 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 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

– which then defines the “class” within that particular “caste” system.

For example, all the Brahmins are not engaged in highly respectable

51 G.S. Ghurye, Caste and Race in India (Bombay, 1979) p. 6, Quoting from Mysore Census, 1901, p. 400

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. 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

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 – 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 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 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:-

“….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…. 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 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 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 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 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

Son(s) and daughter(s) of parents either or both of whom is or are in the rank of Colonel and above in the

FORCES (Persons holding civil posts are not included)

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 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

Criteria specified against Category VI will apply—

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- 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

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 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.

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

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 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 Kumar52 (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 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)

52 (supra) p. 733

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.53; Ajit

Singh & Ors. (II) vs. State of Punjab & Ors.54 and Union of India

& Ors. Vs. Virpal Singh Chauhan & Ors.55. 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

53 (2001) 2 SCC 666 54 (1999) 7 SCC 209 55 (1995) 6 SCC 684

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 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 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.56 and A.S. Krishna Vs. State of Madras57 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

Another58, 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 ….abridging the freedom of speech….” 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 – the scope of which however has not been defined with precision or uniformly. “ (p. 378)

166. In Kesavananda Bharati 59 case also, while considering the

56 [1955] 2 SCR 589 57 [1957] SCR 399 58 1962 Supp. (3) SCR 369 59 (1973) 4 SCC 225

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 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 14 th 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 – social, economic and political – 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. Rangachari60 and M.R. Balaji Vs. State of

Mysore61.

169. In T. Devadasan62 (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:-

60 (supra) at p. 607 61 (supra) at 455 62 (supra) at 700

“…The 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)63

(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 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 Karnataka64 (supra),

63 (supra) at 104 64 (supra) at 800

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 book65, 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 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

65 Granville Austin : The Indian Constitution : Corner-stone of a Nation, p. 52

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, 195766;

Minerava Mills (supra))

174. In Minerva Mills67 (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

66 1959 SCR 995 67 AIR 1980 SC 1789, at p. 1847

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 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. Saunders68 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. Ferguson69 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 Education70 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

68 60 US 393(1856) 69 163 US 537(1896) 70 347 US 483

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.

Bakke71 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 to 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 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.72, the United

71 438 US 265 (1978) 72 488 U.S. 469 (1989)

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 Case73)

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.

Bakke74 (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

73 (supra), p. 492-93 74 (supra) at 311-313

[Sweezy Vs. New Hampshire75 and Keyishian Vs. Board of

Regents76] 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 — so essential to the quality of higher education — 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.

75 (1957) 354 US 234 at 263 76 (1967) 385 US 589 at 603

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 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.

Peña)77.

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

77 (1995) 515 US 200 at 227

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 India78. Speaking for the bench,

V.N. Khare, CJI, said:

78 2003 (11) SCC 146

“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.”

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

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 successive

Governments to concentrate on level of education towards universal

elementary education. “Sarva Shiksha Abhiyaní” (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 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 Others79 said :

“…if a question brought before the Court is purely a politically question not involving determination of any legal or constitutional 79 (1977) 3 SCC 592 at p. 660

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-à-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)

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

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.

………………………………C.J.I. (K.G. BALAKRISHNAN)

NEW DELHI; APRIL 10, 2008

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 265 OF 2006

Ashoka Kumar Thakur ….Petitioner

Versus

Union of India and Ors. …Respondents

(With WP (C) Nos. 269/2006, 598/2006, 29/2007, 35/2007, 53/2007 Contempt Petition (C)No.112/2007 in WP © No.265/2006, 336/2007, 313/2007, 335/2007, 231/2007, 425/2007 and 428/2007)

J U D G M E N T

Dr. ARIJIT PASAYAT, J

1. The issues involved in the present writ petitions have far

reaching consequences and in essence pose several questions

of seminal importance. In essence, they raise questions which

have no easy answers. The complexity can be gauged from the

fact that on one hand the petitioners have questioned the logic

of providing reservations/quotas for a class of people whom

they described as “unidentifiable” or “undetermined” while the

respondents justify their action by labelling them as measures

taken for upliftment of vast majority of people who have

suffered social humiliation and sneer for the social

backwardness. Complex questions like whether the

expressions ‘class’ and ‘castes’ are synonyms, whether

reservations provide the only solution for social empowerment

measures, alleged lack of concern for the economically weaker

group of citizens are some of the basic issues which need to be

addressed. It has been emphatically highlighted by the

petitioners that when the ultimate objective is classless and

casteless in Indian democracy, there is no question of

unendingly providing the reservation and that too without any

definite data regarding backwardness. In essence, they

contend that these measures perpetuate backwardness and do

not remove them. On the epicenter of challenge is the Central

Educational Institutions (Reservation in Admission) Act 2006

(in short the ‘Act’) and the 93rd Amendment to the Constitution

of India, 1950 (in short the ‘Constitution’). Interestingly, both

the petitioners and the respondents rely strongly on certain

observations made by this Court in Indra Sawhney v. Union of

India 1992 (Suppl. 3) SCC 217 (commonly known as ‘Indra

Sawhney No.1’)

2. When the writ petitions were placed before a Bench of

two Judges, considering the importance of the matter they

were referred to be heard by a larger bench and certain

questions which arise for consideration were formulated. That

is how these cases are before this Bench.

3. Arguments have been advanced by both the sides as to

whether Constitution contemplates casteless society. While

the respondents submit that the Constitution really does not

think of a casteless society, it prohibits untouchability in the

background of Article 17. It has to be noted that both in

Articles 15 and 16 the stress is on non-discrimination on the

ground of castes. The Preamble of the Constitution also

throws light on this aspect. Ultimately if the social status of a

man goes in the higher direction because of his education, the

difference in status gets obliterated. Education is a great

levellor. In that sense, the ultimate object is that every Indian

citizen should have the social status which is not inferior to

another and that would be obliteration of the difference in

status. The ultimate objective is to see that no person gets

discriminated because of his caste. If that be so, it would not

be right to say that the ultimate objective is not the casteless

society.

4. Various Articles of the Constitution of India and the

Preamble provide an insight to the monumental document i.e.

the Constitution of India. Article 14 guarantees equality before

the law in addition to equal protection of law. Article 15(1)

mandates that there shall not be any discrimination against

any citizen on the grounds of religion, caste, sex, race, or place

of birth. Article 16(1) makes the fundamental right of equality

specific relating to job opportunities. Article 16(2) significantly

speaks of government employment by providing that no citizen

shall be ineligible only on the grounds of religion, race, caste,

sex, descent, place of birth or any of them or discriminated

against in respect of any employment or office under the State.

Article 16(4) is an important provision which empowers the

State permitting the provision for the reservation of

appointments and posts in favour of any backward class of

citizens which in the opinion of the State is not adequately

represented in the services of the State. The stress is on

backwardness of the citizens and inadequate representation in

the services under the State.

5. If one takes a walk on the pathway relating to the views

expressed by this Court in the matter of reservation or quotas

for the other backward classes one comes across many

milestones. Some of them were noted extensively in Indra

Sawhney No.1. They are: The State of Madras v. Sm.

Champakam Dorairajan & Anr. (AIR 1951 SC 226), Minor A

Peeriakaruppan v. Sobha Joseph (1971 (1) SCC 38), The State

of Andhra Pradesh and Ors. v. U.S.V. Balram, etc. (1972 (1)

SCC 660), Shri Janki Prasad Parimoo and Ors. v. State of

Jammu and Kashmir and Ors. (1973(1) SCC 420), State of

Uttar Pradesh and Ors. v. Pradip Tandon and Ors. (1975 (1)

SCC 267), State of Kerala and Anr. v. N.M. Thomas and Ors.

(1976(2) SCC 310), Kumari K.S. Jayashree and Anr. v. The

State of Kerala and Anr. (1976 (3) SCC 730), K.C. Vasanth

Kumar and Anr. v. State of Karnataka (1985 (Supp) SCC 714)

and Indra Sawhney v. Union of India and Ors. (2000 (1) SCC

168) (known as Indra Sawhney No.2).

6. Two recent decisions have also been highlighted by the

parties. They are M. Nagaraj and Ors. v. Union of India and

Ors. (2006 (8) SCC 212) and Nair Service Society v. State of

Kerala (2007 (4) SCC 1). It is to be noted that some of the

arguments which have been raised relate to broad principles

of law and the jurisprudential approach. They are the

applicability of the foreign decisions, more particularly, the

decisions of the American Courts. They relate to the principles

of strict scrutiny and narrow tailoring.

7. Learned counsel for the petitioners have stressed on

these decisions to show as to what should be the approach in

matters relating to social empowerment. Learned counsel for

the respondents have however submitted that the approach is

to be different because the problems before the American

Courts essentially related to individual rights while the Indian

Courts are more concerned with group rights i.e. rights of

class of citizens. We shall deal with this in some length later.

8. The other issue which was hotly contested related to the

exclusion of the creamy layer.

9. One of the major challenges raised by the petitioners is

based on the allegation that there is no acceptable data for

fixing the percentage of other backward classes. This has been

highlighted to show that there is no rational basis for fixing

the percentage of reservation at 27% for the other backward

classes. It is pointed out that the figures appear to have been

culled out from some survey done more than seven decades

back i.e. 1931 to be precise. Thereafter, there seems to be no

definite data to know the actual percentage. It is pointed out

that in Indra Sawhney No.1 (supra) this Court had laid

considerable stress on having a Commission to identify and

determine the criteria for determining the socially and

educationally backward classes. Very little appears to have

been done. It is surprising, it was contended, that there has

been not even a single case of exclusion but on the other hand

more than 250 new castes/sub-castes have been added. This

shows that there is really no serious attempt to identify the

other backward classes. On the other hand, there has been

over-jealous anxiety to include more number of people so that

they can get the benefits of reservations/quotas and this has

been termed as “vote bank politics”. It is highlighted that even

when a serious matter relating to adoption of the Act was

under consideration there was hardly any discussion and

every political party was exhibiting its anxiety to get the

Statute passed. Crocodile tears were shed to show lip

sympathy for the backwardness of the people. In reality, the

object was to give a wrong impression to the people that they

were concerned about the backwardness of the people and

they were the ‘Messiahs’ of the poor and the down trodden. In

reality, in their hearts the ultimate object was to grab more

votes. The lack of seriousness of the debate exhibits that the

debate was nothing but a red-herring to divert attention from

the sinister, politically motivated design masked by the

“tearful” faces of the people masquerading as champions of

the poor and down trodden. It is pointed out that contrary to

what was being projected by the parties when the discussions

were going on, in an impassioned speech by late Rajeev

Gandhi who was the leader of opposition at an earlier point of

time, the fallacies in adopting the Mandal Report were

highlighted. It is surprising, it is submitted, that those very

people who were the champions of anti-reservation and anti-

quota as members of opposition, have done summersault and

were saying just the opposite. It is pointed out that when one

member Shri P.C. Alexandar exhibited real courage and

highlighted the fallacies in the stand taken, his view appears

to have been lightly brushed aside and the Statute hustled

through. It is also submitted that the objectivity and sanctity

of the report submitted in the Parliament commonly known as

“Oversight Committee Report” has been lightly brushed aside.

This only indicates that there was no serious debate about the

consequences. The foresight of late Rajiv Gandhi in saying

that the country will be divided on caste basis and that would

lead to disaster has been prophetically proved to be correct

and it is a reality. It is submitted that the enactment has

created a sharp divide amongst the citizens of the country and

it has not even an iota of good results flowing from it. On the

contrary, the country will be divided sharply leading to social

unrest and caste-wars. It is pointed out that in the recent past

such caste wars have resulted in large scale loss of life and

destruction of public properties.

10. The relevance of the parliamentary debate or the speech

of the Minister has been highlighted by this Court in many

cases. It is a settled position in law that there can be only

limited use of the parliamentary debate. The Courts should

not normally critically analyse the proceedings of Parliament.

This flows from a very fundamental aspect i.e. mutual respect

of the Parliament and the Judiciary for each other. Each of

these great institutions in a democracy operates in different

fields. It is not expected that one wing of democracy would

criticize the manner of functioning of another wing. That

would be against the basic desirability of mutual respect. Any

opinion or comment or criticism about the manner of

functioning of one by the other would be not only undesirable

but imperatively avoidable. The citizens of this country expect

a great deal from the Parliament and the Judiciary. It is but

natural that the people of this country would be disappointed

and dis-heartened and their hopes will be shattered if instead

of showing respect for each other, there is mudslinging,

unwanted criticism or impermissible criticism about the

manner of functioning or the rationale of a decision or a view

taken. In this context, it would be relevant to take note of what

this Court said in Builders Association of India v. Union of

India and Ors. (1995 Supp (1) SCC 41), and K. Nagaraj and

Ors. v. State of Andhra Pradesh and Anr. (1985 (1) SCC 523).

In State of Mysore v. R.V. Bidap (1974 (3) SCC 337), it was

observed as follows:

“5. Anglo-American jurisprudence, unlike other systems, has generally frowned upon the use of parliamentary debates and press discussions as throwing light upon the meaning of statutory provisions. Willes, J. in Miller v. Tayler, [1769] 4 Burri, 2303, 2332., stated that the sense and meaning of an Act of Parliament must be collected from what it says when passed into law, and not from the history of changes it underwent in the House where it took its rise. That history is not known to the other House or to the Sovereign. In Assam Railways and Trading Company Ltd. v. I.R.C., [1935] A.C. 445 at p. 458, Lord Writ in the Privy Council said :

“It is clear that the language of a Minister of the Crown in proposing in Parliament a measure which eventually becomes law is inadmissible and the report of commissioners is even more removed from value as evidence of intention, because it does not follow that their recommendations were accepted.”

The rule of grammatical construction has been accepted in India before and after Independence. In the State of Travancore-Cochin and Ors. v. Bombay Company Ltd., Alleppey, (AIR 1952 S.C. 366), Chief Justice Patanjali Sastri delivering the judgment of the Court, said :-

“It remains only to point out that the use made by the learned Judges below of the speeches made by the members of the Constituent Assembly in the course of the debates on the draft Constitution is unwarranted. That this form of extrinsic aid to the interpretation of statutes is not admissible has been generally accepted in England, and the same rule has been observed in the construction of Indian statutes-see Administrator-General of Bengal v. Prem Lal Mullick, 22 Ind. Appl. 107 (P.C.) at p. 118. The reason behind the rule was explained by one of us in Gopalan v. State of Madras, (1950) S.C.R. 88 thus :

A speech made in the course of the debate on a bill could at best be indicative of the subjective intent of the speaker, but it could not reflect the inarticulate mental process lying behind the majority vote which carried the bill. Nor is it reasonable to assume that the minds of all those legislators were in accord".

Or, as it is more tersely put in an American case-

“Those who did not speak may not have agreed with those who did; and those who spoke might differ from each other-United States v. Trans-Missouri Freight Association, (1897) 169 U.S. 290 at p. 318 (sic).

This rule of exclusion has not always been adhered to in America, and sometimes distinction is made between using such material to ascertain the purpose of a statute and using it for ascertaining its meaning. It would seem that the rule is adopted in Canada and Australia-see Craies on Statute Law, 5th Edn. p. 122 (pp. 368-9)".

11. In the American jurisdiction, a more natural note has

sometimes been struck. Mr. Justice Frankfurter was of the

view that-

“If the purpose of construction is the ascertainment of

meaning, nothing that is logically relevant should be excluded, and yet, the Rule of Exclusion, which is generally followed in England, insists that, in interpreting statutes, the proceedings in the Legislatures, including speeches delivered when the statute was discussed and adopted, cannot be cited in courts.”

12. Crawford on Statutory Construction at page 388 notes that-

“The judicial opinion on this point is certainly not quite uniform and there are American decisions to the effect that the general history of a statute and the various steps leading up to an enactment including amendments or modifications of the original bill and reports of Legislative Committees can be looked at for ascertaining the intention of the legislature where it is in doubt; but they hold definitely that the legislative history is inadmissible when there is no obscurity in the meaning of the statute.”

The Rule of Exclusion has been criticised by jurists as artificial. The trend of academic opinion and the practice in the European system suggest that interpretation of a statute being an exercise in the ascertainment of meaning, everything which is logically relevant should be admissible. Recently, an eminent Indian jurist has reviewed the legal position and expressed his agreement with Julius Stone and Justice Frankfurter. Of course, nobody suggests that such extrinsic materials should be decisive but they must be admissible. Authorship and interpretation must mutually illumine and interact. There is authority for the proposition that resort may be had to these sources with great caution and only when incongruities and ambiguities are to be resolved. A.K. Gopalan v. State of Madras (1950 SCR 88). There is a strong case for whittling down the Rule of Exclusion followed in the British courts and for less apologetic reference to legislative proceedings and like materials to read the meaning of the

words of a statute. Where it is plain, the language prevails, but where there is obscurity or lack of harmony with other provisions and in other special circumstances, it may be legitimate to take external assistance such as the object of the provisions, the mischief sought to be remedied, the social context, the words of the authors and other allied matters. The law of statutory construction is a strategic branch of jurisprudence which must, it may be felt, respond to the great social changes but a conclusive pronouncement on the particular point arising here need not detain us because nothing decisive as between the alternative interpretations flows from a reliance on the Constituent Assembly proceedings or the broad purposes of the statutory scheme.

13. One thing however needs to be noted here that mere

short length of debate cannot and does not become a ground

for invalidity of the decision and the reverse is also not true.

14. Elaborate arguments have been advanced about the

applicability of the foreign decisions, more particularly, the

American Courts. It is to be noted that the American cases

which have been highlighted by the petitioners relate

essentially to strict classification, strict scrutiny and narrow

tailoring. This issue is of considerable importance when so

much debate is taking place about respect being shown by

courts of a country to a decision of another country. The

factual scenario and the basic issues involved in the cases

sometimes throw light on the controversy. It has been rightly

contended by Mr. Vahanvati and Mr. Gopal Subramanium

that there is a conceptual difference between the cases

decided by the American Supreme Court and the cases at

hand. In Saurabh Chaudri and Ors. v. Union of India and Ors.

(2003 (11) SCC 146) it was held that the logic of strict

classification and strict scrutiny does not have much

relevance in the cases of the nature at hand. If one looks at

the different Statutes in India, Article 14 of the Constitution is

conceptually different from 14th Amendment to the American

Constitution as was noted in State of West Bengal vs. Anwar

Ali Sarkar (1952 SCR 284) and State of Bombay and Anr. v.

F.N. Balsara (1952 SCR 682). In Anwar Ali’s case (supra) at

pages 363 and 364 it was noted as follows:

“I find it impossible to read these portions of the Constitution without regard to the background out of which they arose. I cannot blot out their history and omit from consideration the brooding spirit of the times. They are not just dull, lifeless words static and hide- bound as in some mummified manuscript, but, living flames intended to give life to a great nation and order its being, tongues of dynamic fire, potent to mould the future as well as guide the present. The

Constitution must, in my judgment, be left elastic enough to meet from time to time the altering conditions of a changing world with its shifting emphasis and differing needs. I feel therefore that in each case judges must look straight into the heart of things and regard the facts of each case concretely much as a jury would do; and yet, not quite as a jury, for we are considering here a matter of law and not just one of fact; Do these "laws" which have been called in question offend a still greater law before which even they must bow?

99. Doing that, what is the history of these provisions? They arose out of the fight for freedom in this land and are but the endeavour to compress into a few pregnant phrases some of the main attributes of a sovereign democratic republic as seen through Indian eyes. There was present to the collective mind of the Constituent Assembly, reflecting the mood of the peoples of India, the memory of grim trials by hastily constituted tribunals with novel forms of procedure set forth in Ordinances promulgated in haste because of what was then felt to be the urgent necessities of the moment. Without casting the slightest reflection of the judges and the Courts so constituted, the fact remains that when these tribunals were declared invalid and the same persons were retired in the ordinary Courts, many were acquitted, many who had been sentenced to death were absolved. That was not the fault of the judges but of the imperfect tools with which they were compelled to work. The whole proceedings were repugnant to the peoples of this land, and to my mind, article 14 is but a reflex of this mood.

100. What I am concerned to see is not whether there is absolute equality in any academical sense of the term but whether the collective conscience of a sovereign democratic republic can regard the impugned law, contrasted with the ordinary law of the land, as the sort of substantially equal treatment which men of resolute minds and unbiased views can regard as right and proper in a democracy of the kind we

have proclaimed ourselves to be. Such views must take into consideration the practical necessities of government, the right to alter the laws and many other facts, but in the forefront must remain the freedom of the individual from unjust and unequal treatment, unequal in the broad sense in which a democracy would view it. In my opinion, 'law' as used in Article 14 does not mean the "legal precepts which are actually recognised and applied in tribunals of a given time and place" but "the more general body of doctrine and tradition from which those precepts are chiefly drawn, and by which we criticise, them."

15. It needs no emphasis that the formal equality concept

came to be recognized in U.S.A. after about 10 years of its

inception. In the first phase of the U.S.A. Constitutional Law

there was only affirmative action but in the Indian

Constitution right from the beginning affirmative action has

been provided, for example, provisions made for Scheduled

Castes and Schedules Tribes. A distinction has been noted in

para 640 of Indra Sawhney No.1. Articles 38(1) and 38(2)

read with Article 46 of the Constitution make the position

clear that the State is charged with the duty to secure

interests of the weaker sections of the people and minimize the

inequalities in income. The Constitution from its inception

contained Article 17 which abolishes untouchability.

16. In this context the following paras need to be noted.

17. In Minerva Mills Ltd. and Ors. v. Union of India and Ors.

(1980) 3 SCC 625) in para 63 it was held as follows:

“63. The learned Attorney General argues that the State is under an obligation to take steps for promoting the welfare of the people by bringing about a social order in which social, economic and political justice shall inform all the institutions of the national life. He says that the deprivation of some of the fundamental rights for the purpose of achieving this goal cannot possibly amount to a destruction of the basic structure of the Constitution. We are unable to accept this contention. The principles enunciated in Part IV are not the proclaimed monopoly of democracies alone. They are common to all polities, democratic or authoritarian. Every State is goal- oriented and claims to strive for securing the welfare of its people. The distinction between the different forms of Government consists in that a real democracy will endeavour to achieve its objectives through the discipline of fundamental freedoms like those conferred by Articles14 and 19. Those are the most elementary freedoms without which a free democracy is impossible and which must therefore be preserved at all costs. Besides, as observed by Brandies, J., the need to protect liberty is the greatest when Government's purposes are beneficent. If the discipline of Article 14 is withdrawn and if immunity from the operation of that article is conferred, not only on laws passed by the Parliament but on laws passed by the State Legislatures also, the political pressures exercised by numerically large groups can tear the country asunder by leaving it to the legislature to pick and choose favoured areas and favourite classes for preferential treatment.”

18. In His Holiness Kesavananda Bharati Sripadagalvaru v.

State of Kerala and Anr. (1973 (4) SCC 225) it was held as

under:

“531. According to Mr. Palkhivala, the test of the true width of a power is not how probable it is that it may be exercised but what can possibly be done under it; that the abuse or misuse of power is entirely irrelevant; that the question of the extent of the power cannot be mixed up with the question of its exercise and that when the real question is as to the width of the power, expectation that it will never be used is as wholly irrelevant as an imminent danger of its use. The court does not decide what is the best and what is the worst. It merely decides what can possibly be done under a power if the words conferring it are so construed as to have an unbounded and limitless width, as claimed on behalf of the respondents.

532. It is difficult to accede to the submission on behalf of the respondents that while considering the consequences with reference to the width of an amending power contained in a Constitution any question of its abuse is involved. It is not for the courts to enter into the wisdom or policy of a particular provision in a Constitution or a statute. That is for the Constitution makers or for the parliament or the legislature. But that the real consequences can be taken into account while judging the width of the power is well settled. The Court cannot ignore the consequences to which a particular construction can lead while ascertaining the limits of the provisions granting the power. According to the learned Attorney General, the declaration in the preamble to our Constitution about the resolve of the people of India to constitute it into a Sovereign, Democratic Republic is only a declaration of an intention which was made in 1947 and it is open to the amending body now under Article 368 to change

the Sovereign Democratics Republic into some other kind of polity. This by itself shows the consequence of accepting the construction sought to be put on the material words in that article for finding out the ambit and width of the power conferred by it.”

19. In Sajan Singh v. Maharashtra Sugar Mills Ltd. (AIR

1965 SC 845) it was held as follows:

“6. It is obvious that the fundamental rights enshrined in Part III are not included in the proviso, and so, if Parliament intends to amend any of the provisions contained in Articles 12 to 35 which are included in Part III, it is not necessary to take recourse to the proviso and to satisfy the additional requirements prescribed by it. Thus far, there is no difficulty. But in considering the scope of Art. 368, it is necessary to remember that Art. 226, which is included in Chapter V of Part VI of the Constitution, is one of the constitutional provisions which fall under clause (b) of the proviso; and so, it is clear that if Parliament intends to amend the provisions of Art. 226, the bill proposing to make such an amendment must satisfy the requirements of the proviso. The question which calls for our decision is : what would be the requirement about making an amendment in a constitutional provision contained in Part III, if as a result of the said amendment, the powers conferred on the High Courts under Art. 226 are likely to be affected? The petitioners contend that since it appears that the powers prescribed by Art. 226 are likely to be affected by the intended amendment of the provisions contained in Part III, the bill introduced for the purpose of making such an amendment, must attract the proviso, and as the impugned Act has admittedly not gone through the procedure prescribed by the proviso, it is invalid; and that raises the question about

the construction of the provisions contained in Art. 368 and the relation between the substantive part of Art. 368 with its proviso.

8. On the other hand, if the substantive part of Art. 368 is very liberally and generously construed and it is held that even substantial modification of the fundamental rights which may make a very serious and substantial inroad on the powers of the High Courts under Art. 226 can be made without invoking the proviso, it may deprive clause (b) of the proviso of its substance. In other words, in construing both the parts of Art. 368, the rule of harmonious construction requires that if the direct effect of the amendment of fundamental rights is to make a substantial inroad on the High Courts' powers under Art. 226, it would become necessary to consider whether the proviso would cover such a case or not. If the effect of the amendment made in the fundamental rights on the powers of the High Courts prescribed by Art. 226, is indirect, incidental, or is otherwise of an insignificant order, it may be that the proviso will not apply. The proviso would apply where the amendment in question seeks to make any change, inter alia, in Art. 226, and the question in such a case would be : does the amendment seek to make a change in the provisions of Art. 226? The answer to this question would depend upon the effect of the amendment made in the fundamental rights.

9. In dealing with constitutional questions of this character, courts generally adopt a test which is described as the pith and substance test. In Attorney-General for Ontario v. Reciprocal Insurers ([1924] A.C. 328), the Privy Council was called upon to consider the validity of the Reciprocal Insurance Act, 1922 (12 & 13 Geo. 5, Ont., c. 62) and s. 508c which had been added to the Criminal Code of Canada by ss. 7 & 8 Geo. 5, c. 29 Dom. Mr. Justice Duff, who spoke for the Privy Council, observed that in an enquiry like the one with which the Privy Council was concerned in that case, "it has

been formally laid down in judgments of this Board, that in such an inquiry the Courts must ascertain the 'true nature and character' of the enactment : Citizens' Insurance Co. of Canada v. Parsons ([1881] 7 AC 96); its 'pith and substance' : Union Colliery Co. of British Columbia Ltd. v. Bryden ([1899] A.C. 580); and it is the result of this investigation, not the form alone, which the statute may have assumed under the hand of the draughtsman, that will determine within which of the categories of subject matters mentioned in ss. 91 and 92 the legislation falls; and for this purpose the legislation must be 'scrutinised in its entirety' : "Great West Saddlery Co. v. The King" ([1921] 2 A.C. 91,117). It is not necessary to multiply authorities in support of the proposition that in considering the constitutional validity of the impugned Act, it would be relevant to inquire what the pith and substance of the impugned Act is. This legal position can be taken to be established by the decisions of this Court which have consistently adopted the view expressed by Justice Duff, to which we have just referred.

14. Thus, it would be seen that the genesis of the amendments made by Parliament in 1951 by adding Articles 31A and 31B to the Constitution, clearly is to assist the State Legislatures in this country to give effect to the economic policy in which the party in power passionately believes to bring about much needed agrarian reform. It is with the same object that the second amendment was made by Parliament in 1955, and as we have just indicated, the object underlying the amendment made by the impugned Act is also the same. Parliament desires that agrarian reform in a broad and comprehensive sense must be introduced in the interests of a very large section of Indian citizens who live in villages and whose financial prospects are integrally connected with the pursuit of progressive agrarian policy. Thus, if the pith and substance test is applied to the amendment made by the impugned Act, it would be clear that Parliament is seeking to amend fundamental rights solely with the object of removing any possible obstacle in the fulfilment of the socio-economic

policy in which the party in power believes. If that be so, the effect of the amendment on the area over which the High Courts' powers prescribed by Art. 226 operate, is incidental and in the present case can be described as of an insignificant order. The impugned Act does not purport to change the provisions of Art. 226 and it cannot be said even to have that effect directly or in any appreciable measure. That is why we think that the argument that the impugned Act falls under the proviso, cannot be sustained. It is an Act the object of which is to amend the relevant Articles in Part III which confer fundamental rights on citizens and as such it falls under the substantive part of Art. 368 and does not attract the provisions of clause (b) of the proviso. If the effect of the amendment made in the fundamental rights on Art. 226 is direct and not incidental and is of a very significant order, different considerations may perhaps arise. But in the present case, there is no occasion to entertain or weigh the said considerations. Therefore the main contention raised by the petitioners and the interveners against the validity of the impugned Act must be rejected.”

20. In Kihoto Hollohan v. Zachillhu and Ors. (1992 Supp. (2)

SCC 651) it was observed as follows:

“61. The propositions that fell for consideration in Sankari Prasad Singh's and Sajjan Singh's cases are indeed different. There the jurisdiction and power of the Courts under Articles 136 and 226 were not sought to be taken away nor was there any change brought about in those provisions either "in terms or in effect", since the very rights which could be adjudicated under and enforced by the Courts were themselves taken away by the Constitution. The result was that there was no area for the jurisdiction of the Courts to

operate upon. Matters are entirely different in the context of paragraph 7. Indeed the aforesaid cases, by necessary implication support the point urged for the petitioners. The changes in Chapter IV of Part V and Chapter V of Part VI envisaged by the proviso need not be direct. The change could be either "in terms of or in effect". It is not necessary to change the language of Articles 136 and 226 of the Constitution to attract the proviso. If in effect these Articles are rendered ineffective and made inapplicable where these articles could otherwise have been invoked or would, but for Paragraph 7, have operated there is `in effect' a change in those provisions attracting the proviso. Indeed this position was recognised in Sajjan Singh'scase (supra) where it was observed:

"If the effect of the amendment made in the fundamental rights on Article 226 is direct and not incidental and is of a very significant order, different considerations may perhaps arise."

62. In the present cases, though the amendment does not bring in any change directly in the language of Article 136, 226 and 227 of the Constitution, however, in effect paragraph 7 curtails the operation of those Articles respecting matters falling under the Tenth Schedule. There is a change in the effect in Article 136, 226 and 227 within the meaning of clause (b) of the proviso to Article 368(2). Paragraph 7, therefore, attracts the proviso and ratification was necessary. Accordingly, on Point B, we hold:

"That having regard to the background and evolution of the principles underlying the Constitution (52nd Amendment) Act, 1985, in so far as it seeks to introduce the Tenth Schedule in the Constitution of India, the provisions of Paragraph 7 of the Tenth Schedule of the constitution in terms and in effect bring abouta change in the operation and effect to Articles 136, 226 and 227 of the Constitution of

India and, therefore, the amendment would require to be ratified in accordance with the proviso to sub-Article (2) of Article 368 of the Constitution of India.”

21. In Shri Sarwan Singh and Anr. v. Shri Kasturi Lal (1977

(1) SCC 750) it was observed as follows:

“20. Speaking generally, the object and purpose of a legislation assume greater relevance if the language of the law is obscure and ambiguous. But, it must be stated that we have referred to the object of the provisions newly introduced into the Delhi Rent Act in 1975 not for seeking light from it for resolving in ambiguity, for there is none, but for a different purpose altogether. When two or more laws operate in the same field and each contains a non obstante clause stating that its provisions will override those of any other law, stimulating and incisive problems of interpretation arise. Since statutory interpretation has no conventional protocol, cases of such conflict have to be decided in reference to the object and purpose of the laws under consideration. A piquant situation, like the one before us, arose in Shri Ram Narain v. Simla Banking & Industrial Co. Ltd. competing statutes being the Banking Companies Act, 1949 as amended by Act 52 of 1953, and the Displaced Persons (Debts Adjustment) Act, 1951. Section 45A of the Banking Companies Act, which was introduced by the amending Act of 1953, and Section 3 of the Displaced Persons Act 1951 contained such a non obstante clause, providing that certain provisions would have effect "notwithstanding anything inconsistent therewith contained in any other law for the time being in force”. This Court resolved the conflict by considering the object and purpose of the two laws and giving precedence to the Banking Companies Act by observing : "It is, therefore, desirable to determine the

overriding effect of one or the other of the relevant provisions in these two Acts, in a given case, on much broader considerations of the purpose and policy underlying the two Acts and the clear intendment conveyed by the language of the relevant provisions therein." (p. 615) As indicated by us, the special and specific purpose which motivated the enactment of Section 14A and Chapter IIIA of the Delhi Rent Act would be wholly frustrated if the provisions of the Slum Clearance Act requiring permission of the competent authority were to prevail over them. Therefore, the newly introduced provisions of the Delhi Rent Act must hold the field and be given full effect despite anything to the contrary contained in the Slum Clearance Act.

21. For resolving such inter se conflicts, one other test may also be applied though the persuasive force of such a test is but one of the factors which combine to give a, fair meaning to the language of the law. That test is that the later enactment must prevail over the earlier one. Section 14A and Chapter IIIA having been enacted with effect from December 1, 1975 are later enactments in reference to Section 19 of the Slum Clearance Act which, in Its present form, was placed on the statute book with effect from February 28, 1965 and in reference to Section 39 of the same Act, which came into force in 1956 when the Act itself was passed. The legislature gave overriding effect to Section 14A and Chapter IIIA with the knowledge that Sections 19 and 39 of the Slum Clearance Act contained non obstante clauses of equal efficacy. Therefore the later enactment must prevail over the former. The same test was mentioned with approval by this Court in Shri Ram Narain's case at page 615.

23. The argument of implied repeal has also no substance in it because our reason for according priority to the provisions of the Delhi Rent Act is not that the Slum Clearance Act stands impliedly repealed protanto. Bearing in mind the language of the two laws, their object and purpose, and the fact that one of

them is later in point of time and was enacted with the knowledge of the non obstante clauses in the earlier law, we have come to the conclusion that the provisions of Section 14A and Chapter IIIA of the Rent Control Act must prevail over those contained in Sections 19 and 39 of the Slum Clearance Act.

22. In J.K. Cotton Spinning and weaving co. Ltd. v. State of

U.P. and Anr. (1961 (3) SCR 185) it was observed as under:

“There will be complete harmony however if we hold instead that clause 5(a) will apply in all other cases of proposed dismissal or discharge except where an inquiry is pending within the meaning of clause 23. We reach the same result by applying another well known rule of construction that general provisions yield to special provisions. The learned Attorney- General seemed to suggest that while this rule of construction is applicable to resolve the conflict between the general provision in one Act and the special provision in another Act, the rule cannot apply in resolving a conflict between general and special provisions in the same legislative instrument. This suggestion does not find support in either principle or authority. The rule that general provisions should yield to specific provisions is not an arbitrary principle made by lawyers and judges but springs from the common understanding of men and women that when the same person gives two directions one covering a large number of matters in general and another to only some of them his intention is that these latter directions should prevail as regards these while as regards all the rest the earlier direction should have effect. In Pretty v. Solly [(1859-53 ER 1032) (quoted in Craies on Statute Law at p. 205, 5th Edition) Romilly, M. R. mentioned the rule thus :-

"The rule is, that whenever there is a particular enactment and a general enactment in the same statute and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply". The rule has been applied as between different provisions of the same statute in numerous cases some of which only need be mentioned : De Winton v. Brecon [(1858) 28 L.J. Ch. 598], Churchill v. Crease [(1828) 5 Bing. 177], United States v. Chase [(1889) 135 U.S. 255] and Carroll v. Greenwich Ins. Co. [(1905) 199 U.S. 401].”

23. In R.M.D. Chamarbaugwalla v. UOI (1957 SCR 930) it

was held as under:

“The question whether a statute which is void in part is to be treated as void in toto, or whether it is capable of enforcement as to that part which is valid is one which can arise only with reference to laws enacted by bodies which do not possess unlimited powers of legislation, as, for example, the legislatures in a Federal Union. The limitation on their powers may be of two kinds: It may be with reference to the subject- matter on which they could legislate, as, for example, the topics enumerated in the Lists in the Seventh Schedule in the Indian Constitution, ss. 91 and 92 of the Canadian Constitution, and s. 51 of the Australian Constitution; or it may be with reference to the character of the legislation which they could enact in respect of subjects assigned to them, as for example, in relation to the fundamental rights guaranteed in Part III of the Constitution and similar constitutionally protected rights in the American and other Constitutions. When a legislature whose authority is subject to limitations aforesaid enacts a law which is wholly in excess of its powers,

it is entirely void and must be completely ignored. But where the legislation falls in part within the area allotted to it and in part outside it, it is undoubtedly void as to the latter; but does it on that account become necessarily void in its entirety? The answer to this question must depend on whether what is valid could be separated from what is invalid, and that is a question which has to be decided by the court on a consideration of the provisions of the Act. This is a principle well established in American Jurisprudence, Vide Cooley's Constitutional Limitations, Vol. I, Chap. VII, Crawford on Statutory Construction, Chap. 16 and Sutherland on Statutory Construction, 3rd Edn, Vol. 2, Chap. 24. It has also been applied by the Privy Council in deciding on the validity of laws enacted by the legislatures of Australia and Canada, Vide Attorney-General for the Commonwealth of Australia v. Colonial Sugar Refining Company Limited [[1914] A.C. 237] and Attorney-General for Alberta v. Attorney-General for Canada [L.R. [1947] A.C. 503]. It was approved by the Federal Court in In re Hindu Women's Rights to Property Act [[1941] F.C.R. 12] and adopted by this Court in The State of Bombay and another v. F. N. Balsara [[1951] S.C.R. 682] and The State of Bombay v. The United Motors (India) Ltd., and others [[1953] S.C.R. 1069]. These decisions are relied on by Mr. Seervai as being decisive in his favour. Mr. Palkhiwala disputes this position, and maintains that on the decision of the Privy Council in Punjab Province v. Daulat Singh and others [[1946] F.C.R. 1] and of the decisions of this Court in Romesh Thappar v. State of Madras [[1950] S.C.R. 594] and Chintaman Rao v. State of Madhya Pradesh [[1950] S.C.R. 759], the question must be answered in this favour. We must now examine the precise scope of these decisions.

The resulting position may thus be stated : When a statute is in part void, it will be enforced as regards the rest, if that is severable from what is invalid. It is immaterial for the purpose of this rule whether the invalidity of the statute arises by reason of its subject-matter being outside the competence of

the legislature or by reason of its provisions contravening constitutional prohibitions.

That being the position in law, it is now necessary to consider whether the impugned provisions are severable in their application to competitions of a gambling character, assuming of course that the definition of 'prize competition' in s. 2(d) is wide enough to include also competitions involving skill to a substantial degree. It will be useful for the determination of this question to refer to certain rules of construction laid down by the American Courts, where the question of severability has been the subject of consideration in numerous authorities. They may be summarised as follows :

1. In determining whether the valid parts of a statute are separable from the invalid parts thereof, it is the intention of the legislature that is the determining factor. The test to be applied is whether the legislature would have enacted the valid part if it had known that the rest of the statute was invalid. Vide Corpus Juris Secundum, Vol. 82, p. 156; Sutherland on Statutory Construction, Vol. 2, pp. 176-177.

2. If the valid and invalid provisions are so inextricably mixed up that they cannot be separated from one another, then the invalidity of a portion must result in the invalidity of the Act in its entirety. On the other hand, if they are so distinct and separate that after striking out what is invalid, what remains is in itself a complete code independent of the rest, then it will be upheld notwithstanding that the rest has become unenforceable. Vide Cooley's Constitutional Limitations, Vol. 1 at pp. 360-361; Crawford on Statutory Construction, pp. 217- 218.

3. Even when the provisions which are valid are distinct and separate from those which are invalid, if they all form part of a single scheme which is intended to be operative as a whole,

then also the invalidity of a part will result in the failure of the whole. Vide Crawford on Statutory Construction, pp. 218-219.

4. Likewise, when the valid and invalid parts of a statute are independent and do not form part of a scheme but what is left after omitting the invalid portion is so thin and truncated as to be in substance different from what it was when it emerged out of the legislature, then also it will be rejected in its entirety.

5. The separability of the valid and invalid provisions of a statute does not depend on whether the law is enacted in the same section or different sections; (Vide Cooley's Constitutional Limitations, Vol. 1, pp. 361-362); it is not the form, but the substance of the matter that is material, and that has to be ascertained on an examination of the Act as a whole and of the setting of the relevant provisions therein.

6. If after the invalid portion is expunged from the statute what remains cannot be enforced without making alterations and modifications therein, then the whole of it must be struck down as void, as otherwise it will amount to judicial legislation. Vide Sutherland on Statutory Construction, Vol. 2, p. 194.

7. In determining the legislative intent on the question of separability, it will be legitimate to take into account the history of the legislation, its object, the title and the preamble to it. Vide Sutherland on Statutory Construction, Vol. 2, pp. 177-178.”

24. In AIIMS Students Union v. AIIMS (2002 (1) SCC 428) in

para 35 it was observed as follows:

“35. The principle of institutional continuity while seeking admission to higher levels of study as propounded by the learned counsel for the appellants though argued at length does not have much room available for innovative judicial zeal to play, for the ground already stands almost occupied by a set of precedents, more so when we are dealing with professional or technical courses of study. It would suffice to have a brief resume thereof noticing the details wherever necessary”.

It was again highlighted in para 44 as follows:

“44. When protective discrimination for promotion of equalisation is pleaded, the burden is one the party who seeks to justify the ex facie deviation from equality. The basic rule is equality of opportunity for every person in the country, which is a constitutional guarantee. A candidate who gets more marks than another is entitled to preference for admission. Merit must be the test when choosing the best, according to this rule of equal chance for equal marks. This proposition has greater importance when we reach the higher levels and education like post-graduate courses. Reservation, as an exception, may be justified subject to discharging the burden of proving justification in favour of the class which must be educationally handicapped-the reservation geared up to getting over the handicap. The rationale of reservation in the case of medical students must be removal of regional or class inadequacy or like disadvantage. Even there the quantum of reservation should not be excessive or societally injurious. The higher the level of the speciality the lesser the role of reservation.”

25. A bare reading of the provision goes to show that the

burden is on the person who justifies deviation from equality.

26. Even then, this doctrine was upheld by the Supreme

Court of U.S.A. in Plessy v. Ferguson (163 U.S. 537(1896).

This case involved a challenge to a Louisiana statute that

provided for equal but separate accommodations for black and

white passengers in trains. The Court rejected the challenge.

Justice Brown famously observed:

If one race be inferior to the other socially, the constitution of the United States cannot put them upon the same plane. (163 U.S. at 552)

27. He held that racial segregation was a reasonable exercise

of State police power for the promotion of the public good and

upheld the law.

28. Thus, even in this second phase, affirmative action was

never truly initiated – the country was still struggling to

establish even a formally equal society.

29. At the same time, another very important development in

its constitutional law was taking place, which would later have

a serious impact on affirmative action programmes. This was

the birth of the doctrine of strict scrutiny.

30. ‘Strict scrutiny’ is one of the three standards for judicial

review of legislative and administrative action developed in the

United States, the other being “rational basis” and

“intermediate scrutiny”.

31. The origin of this standard can be traced to the decision

in United States v Carolene Products (304 U.S. 144 (1938).

The question before the Court was whether the Filled Milk Act,

1923 which prohibited the shipment in interstate commerce of

skimmed milk compounded with any fat or oil other than milk

fat, so as to resemble milk or cream, transcended the power of

Congress to regulate inter state commerce or infringed the

Fifth Amendment. Justice Harlan Stone, writing the opinion

for the Court, upheld the law, holding that the existence of

facts supporting the legislative judgment was to be presumed,

for regulatory legislation affecting ordinary commercial

transactions was not to be pronounced unconstitutional

unless in the light of the facts made known or generally

assumed it was of such a character as to preclude the

assumption that it rested upon some rational basis within the

knowledge and experience of the legislators. However, he

added what has been described as “the most celebrated

footnote in constitutional law”.

“There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments, which are deemed equally specific when held to be embraced within the Fourteenth.”

32. What the Court was saying was that economic legislation

would be judged by a standard of “rational basis” – so long as

the law was a rational way of furthering a legitimate

governmental purpose, it was valid. However, where the

legislation “on its face” appeared to be violating any of the

fundamental rights, a more exacting standard would be

applied.

33. The precise term “strict scrutiny” was used by the Court

for the first time in Skinner v. Oklahoma (316 U.S. 535 (1942).

The Oklahoma Habitual Criminal Sterilisation Act provided for

vasectomy to be performed on any person convicted two or

more times for crimes amounting to “felonies involving moral

turpitude”. Justice Douglas, giving the opinion of the Court,

described the statute as violating the right to have offspring –

“a right which is basic to the perpetuation of a race”. The

question before the Court was whether this statute violated

the 14th Amendment. Holding that it did, Justice Douglas

observed:

“Strict scrutiny of the classification which a State makes in a sterilization law is essential, lest unwittingly or otherwise invidious discriminations are made against groups or types of individuals in violation of the constitutional guarantee of just and equal laws.”

34. In India there has to be collective commitment for

upliftment of those who needed it. In that sense, the question

again comes back to the basic issue as to whether the action

taken by the Government can be upheld after making judicial

scrutiny. Much assistance is not available to the petitioners

from the American decisions.

35. It is to be noted that the doctrine of separation as is

prevalent in the American Society is not of much consequence

in the Indian scenario. It needs to be clarified that the

expression ‘strict scrutiny’ has also been used by the Indian

Courts in Narendra Kumar and Ors. v. Union of India and Ors.

(1960 (2) SCR 375) but it appears to have been used in

different context. What really appears to be the intention for

the use of the expression is “careful and deeper scrutiny” and

not in the sense of strict scrutiny of the provisions as is

prevalent in the American jurisprudence. It is used in

different sense. The application appears to be in technical

sense in the American Courts, for example, Regents of

University of California v. Allan Bakke (438 U.S. 265).

36. Some of the judgments of American Courts throwing light

on the controversy need to be noted:

37. In Allan Bakke’s case (supra) it was held as follows:

“Hence, the purpose of helping certain groups whom the faculty of the Davis Medical School perceived as victims of “societal discrimination” does not justify a classification that imposes disadvantages upon persons like respondent, who bear no responsibility for whatever harm the beneficiaries of the special admissions”.

“The fatal flaw in petitioner’s preferential program is its disregard of individual rights as guaranteed by the Fourteenth Amendment. Shelley v. Kraemer, 334 US, at 22, 92 L Ed 1161, 68 S Ct 836, 3 ALRd 441. Such rights are not absolute. But when a State’s distribution of benefits or imposition of burdens hinges on ancestry or the color of a person’s skin or ancestry, that individual is entitled to a demonstration that the challenged classification is necessary to promote a substantial state interest. Petitioner has failed to carry this burden.”

38. In Grutter v. Bollinger (539 U.S. 306) it was held as

follows:

[21, 22a] “We acknowledge that “there are serious problems of justice connected with the idea of preference itself.” Bakke, 438 US, at 298, 57 L Ed 2d 750, 98 S Ct 2733 (opinion of Powell, J). Narrow tailoring, therefore, requires that a race- conscious admissions program not unduly harm members of any racial group. Even remedial race-based governmental action generally “remains subject to continuing oversight to assure that it will work the least harm possible to other innocent persons competing for the benefit.” Id., at 308, 57 L Ed 2d 750, 98 S Ct 2733. To be narrowly tailored, a race- conscious admissions program must not “unduly burden individuals who are not members of the favored racial and ethnic groups.” Metro Broadcasting, Inc. v. FCC, 497 Us 547, 630, 111 L Ed 2d 445, 110 S Ct 2997 (1990) (O’ Connor, J.,

dissenting). [22b, 23] We are satisfied that the Law School’s admissions program does not. Because the Law School considers “all pertinent elements of diversity,” it can (and does) select non- minority applicants who have greater potential to enhance student body diversity over underrepresented minority applicants. See Bakke, supra, at 317, 57 L Ed 2d 750, 98 S Ct 2733 (opinion of Powell, J). As Justice Powell recognized in Bakke, so long as a race-conscious admissions program uses race as a “plus” factor in the context of individualized consideration, a rejected applicant “will not have been foreclosed from all consideration for that seat simply because he was not the right color or had the wrong surname …… His qualifications would have been weighed fairly and competitively, and he would have no basis to complain of unequal treatment under the Fourteenth Amendment.” 438 US, at 318, 57 L Ed 2d 750, 98 S Ct 2733. [13f, 22C] We agree that, in the context of its individualized inquiry into the possible diversity contributions of all applicants, the Law School’s race-conscious admissions program does not unduly harm nonminority applicants.

[24, 25a, 26] We are mindful, however, that “[a] core purpose of the Fourteenth Amendment was to do away with all governmentally imposed discrimination based on race” Palmore v Sidoti, [539 US 342] 466 US 429, 432, 80 L Ed 2d, 421, 104 s Ct 1879 (1984). Accordingly, race-conscious admissions policies must be limited in time. This requirement reflects that racial classifications, however, compelling their goals are potentially so dangerous that they may be employed no more broadly than the interest demands. Enshrining a permanent justification for racial preferences would offend this fundamental equal protection principle. We see no reason to exempt race-conscious admissions programs from the requirement that all governmental use of race must have a logical end point. The Law School, too, concedes that all “race-conscious programs must have reasonable durational limits.” Brief for Respondent Bollinger et al. 32. [25b] In the context of higher education, the durational requirement can

be met by sunset provisions in race-conscious admissions policies and periodic reviews to determine whether racial preferences are still necessary to achieve student body diversity. Universities in California, Florida, and Washington State, where racial preferences in admissions are prohibited by state law, are currently engaged in experimenting with a wide variety of alternative approaches. Universities in other States can and should draw on the most promising aspects of these race-neutral alternatives as they develop. Cf. United States v. Lopez, 514 US 549, 581, 131 L Ed 2d 626, 115 S Ct 1624 (1995) (Kennedy, J., concurring) (“[T] he States may perform their role as laboratories for experimentation to devise various solutions where the best solution is far from clear”). The requirement that all race-conscious admissions programs have a termination point “assure[s] all citizens that the deviation from the norm of equal treatment of all racial and ethnic groups is a temporary matter, a measure taken in the service of the goal of equality itself.” Richmond v. J.A. Croson Co., 488 US, at 510, 102 L Ed 2d 854, 109 S Ct 706 (plurality opinion); see also Nathanson & Bartnik. The Constitutionality of Preferential Treatment for Minority Applicants to Professional Schools, [539 US 343] 58 Chicago Bar Rec. 282, 293 (May-June 1977) (“It would be a sad day indeed, were America to become a quota-ridden society, with each identifiable minority assigned proportional representation in every desirable walk of life. But that is not the rationale for programs of preferential treatment; the acid test of their justification will be their efficacy in eliminating the need for any racial or ethnic preferences at all.”

39. The provisions of the American Constitution in United

States relating to formal equality concept do not appear to

have operated from the beginning of the American

Constitution.

40. Although even under the 1919 and 1935 Government of

India Acts the rights of certain class of people like Scheduled

Castes, Scheduled Tribes and the deprived classes have been

recognized, in America, the rights have been conferred on

individuals and so much on the groups. The freedoms

contemplated by the Indian Constitution originally related to

seven categories which presently stand at six after the

property rights were deleted. The stand of Mr. Vahanvati and

Mr. Gopal Subramanium is that the logic of strict scrutiny,

compelling the Government and narrow tailoring do not have

relevance so far as the present case is concerned.

41. In Thomas’s case (supra) it was clearly noticed by this

Court that American conditions do not apply adequately for

the Indian scenario. Unlike U.S.A., the targeted beneficiaries

are alien to our Constitution. In India cognizance has been

taken constitutionally. The victims of untouchability,

identifying social and economic backwardness have been

accepted as permissible measures. However, the question how

long they can be continued is another aspect which shall be

dealt with separately. Rationality in that sense is a measure

for the special provisions. But the question that still needs to

be addressed is whether these groups are really identifiable.

While formulating the policy all factors need not be specifically

expressed but there must be some criteria to identify social

and educational backwardness.

42. In A.K. Roy v. Union of India (1982 (1) SCC 271) it was

noted as follows:

“8. We are not, as we cannot be, unmindful of the danger to people’s liberties which comes in any community from what is called the tyranny of the majority. Uncontrolled power in the executive is a great enemy of freedom and therefore, eternal vigilance is necessary in the realm of liberty. But 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. No two Constitutions are alike, for it is not mere words that make a Constitution. It is the history of a people which lends colour and meaning to its Constitution. We must therefore turn inevitably to the historical origin of the ordinance making power conferred by our Constitution and consider the scope of that power in the light of the restraints by which that power is hedged. Neither in England nor in the United States of America does the executive enjoy anything like the power to issue ordinances. In India, that power has a historical origin

and the executive, at all times, has resorted to it freely as and when it considered it necessary to do so. One of the larger States in India has manifested its addiction to that power by making an overgenerous use of it – so generous indeed, that ordinances which lapsed by efflux of time were renewed successively by a chain of kindred creatures, one after another. And, the ordinances embrace everything under the sun, from Prince to pauper and crimes to contracts. The Union Government too, so we are informed passed about 200 Ordinances between 1960 and 1980, out of which 19 were passed in 1980”.

43. One of the grey areas focused by learned counsel for the

petitioners and the respondents is the ever perplexing

question “how long”. The respondents say that so long as the

problems of backwardness exist they can be continued. The

petitioners have highlighted that notwithstanding the

concerns shown in Indra Sawhney No.1 and in a large number

of cases that the reservations are not meant to be a

permanent feature there is a case for concern. Admittedly,

there is no deletion from the list of other backward classes. It

goes on increasing. Learned counsel for the respondents have

stated that in large number of cases where applications were

made for inclusion they have been turned down. But that is no

answer to the question as to why and how there has been no

exclusion. Is it that backwardness has increased instead of

decreasing. If the answer is ‘yes’, as contended by the

respondents, then one is bound to raise eyebrows as to the

effectiveness of providing reservations or quotas.

44. The ultimate object is to bring those who are

disadvantaged to a level where they no longer continue to be

dis-advantaged. It needs no emphasis that individual rights

are superior to the social rights. All fundamental rights are to

be read together. The inequalities are to be removed. Yet the

fact that there has been no exclusion raises a doubt about the

real concern to remove inequality.

45. The ultimate objective is to bring people to a particular

level so that there can be equality of opportunity. In that

context, one has to keep in view the justice and redress

principles. There should not be mere equality in law but

equality in fact.

46. The necessary ingredients of equality essentially involve

equalization of unequals. Linked with this question the

problem posed by the petitioners is whether reservation is the

only way to equalize unequals? There are several methods and

modes. If reservation really does not work as contended by the

petitioners, then the alternative methods can be adopted. It is

the stand of the respondents that not only reservations but

other incentives like free lodging and boarding facilities have

been provided in some States.

47. Learned counsel for the respondents have stated that

the measures under challenge are nothing but a much needed

leap towards attainment of the objectives. If it is true, the leap

has to end somewhere. It cannot hang in the air as there is

nothing immortal in this world; much less, a progressive

measure purportedly intended to benefit the other backward

classes. If after nearly six decades the objectives have not been

achieved, necessarily the need for its continuance warrants

deliberations. It is to be noted that some of the provisions were

intended to be replaced after a decade but have continued. It

indirectly shows that backwardness appears to have

purportedly increased and not diminished. It would therefore

be rational and logical to restrict operation of the impugned

Statute for a period of 10 years from its inception.

48. At this juncture, report of the Oversight Committee

throws considerable light on the controversy. Some parts of

the Report need to be noted.

This report seeks to expand the provision of Higher Education while at the same time ensuring social inclusion and academic excellence. A society which excludes a significant section of its population from access to higher education cannot be said to be providing equality of opportunity. Equally, if academic excellence gets compromised in the process of expansion, it would lose its competitive edge in the emerging knowledge society – an edge which can propel India into a position of global leadership.

Page X and XI of the report

A simpler way of implementing reservations was to steamroll our way through, in the name of social equity, regardless of its impact on quality and excellence. We have deliberately chosen the more difficult way which delivers equity in a manner that enhances excellence i.e. by making concomitant investments in faculty & infrastructure and by bringing much needed governance related reforms involving institutional, financial and administrative autonomy and process re-engineering in our Higher Educational Governance system. It is easy to equalize by “mindlessly leveling everyone down to lowest common-denominator”. Our effort has been to

create an upward moving equalization process- where the disabilities are overcome by the erstwhile excluded sections and the system brings out the best in them.

Besides the many out of the box innovative ideas concerning faculty and infrastructure related issues, I believe three of our recommendations, which cut horizontally across the five groups, are critical to the establishment of the goal of an “inclusive society, in pursuit of excellence”. These four programmes are considered by the Oversight Committee to be integral to the above vision and should be considered to be inseverable part of our core recommendations. (page-x)

We have to acknowledge that the challenges facing us in the entire education sector are enormous and in the Tertiary Education Sector these can be met, only if both public and private funding to educational institutions increased several fold. The need for private participation in this mammoth task cannot be over-emphasized but market forces themselves cannot deliver justice. The relative importance of public vs. private funding is brought out very strongly by Joseph Stiglitz when he opined “I had studied the failures of both markets and governments, and was not so naïve to think that the government could remedy every failure. Neither was I so foolish as to believe that markets by themselves solved every societal problem. Inequality, unemployment, pollution: these are all important issues in which Government has to take an importance role.”

“Expansion, Inclusion and Excellence” has been our credo. They have remained the abiding theme guiding all our deliberations. I will be failing in my duty if the Oversight Committee does not acknowledge the source of inspiration for our deliberations. It is the Prime Minister’s speech giving the overpowering vision of the “need to create the second wave of nation building” which has inspired us in our thoughts and deliberations. I would also like to express my gratitude to Hon’ble HRD Minister, Sri Arjun Singhji for his affection and guidance right through. (Page-xi)

Treatment of the creamy Layer (Chapter IV- Report of Oversight Committee Vol.-I)

4.2 (b) The true benefit of reservations will be realized only when the high school enrolment of OBCs, especially in rural areas, increases significantly. Attention will need to be paid to this issue in the coming years.

Chapter VI- Estimate of Resources required for the expansion

6.1 In overall terms, the total estimated expenditure on the expansion has now been assessed by the five Sub-Groups in their final reports at Rs.18,197.83 crore, as compared to the

amount of Rs.16,563.34 crore, that was included by the Oversight Committee in its interim report. The summary statement of additional student strength, faculty required and estimates of recurring and non-recurring expenditure that have been projected by the Groups are as at Table 6.1 and the year-wise break up is at table 6.2.

6.3 The Committee in its discussions with the individual Groups, had stressed the need to estimate the additional infrastructure and manpower that would be required after taking into account the slack, if any, in the existing facilities as also the scope for using IT as a resource multiplier. While the Groups seems to have accepted this in principle, their expenditure projections, and the

norms on which they are based seems to have just extrapolated past trends. The Committee has had some input regarding global trends and the best practices being followed in the world’s leading institutions. Based on this, and in consultation with experts, the Committee has developed a plan for a “Gyan Vahini” project, as has been explained in an earlier Chapter in this report. The total expenditure on this component of the expansion and upgradation project would be Rs.1752 crore in 5 years. Apart from significantly enhancing the quality of instruction and learning, and brining it close to the best levels in the world, this investment will certainly contribute to efficiency and to reducing the conventional costs of the higher education system.

Summary Statement of Expenditure Requirements

(As given in the Final Reports of the Groups)

Sector No. of Instns .

Existin g Student Intake

Annual Addl. Studen t Intake

Addl. Facility Require d

Non Recurrin g Ex.

Recu rring Exp. (5Yrs)

Total Exp. In 5 Yrs.

Agricu lture

5 825 454 187 102.75 92.71 195.4 6

Centr al Univer sities

17 92011 49689 6609 2702.11 2455. 92

5158. 03

Manag ement

7 1791 966 139 511.32 177. 48

688. 80

Medic al

11 993 565 N.A. 1783.98 1027. 69

2811. 67

Engin eering

38 29671 16440 4919 5503.83 3840. 04

9343. 87

Grand

Total

125291 68114 11854 10603.99 7593. 84

1819 7.83

Chapter VII- The Way Forward

7.1 As indicated earlier in this report, this opportunity for expansion, inclusion and excellence should only be the beginning of a larger process, which is to build a knowledge society in India and allow the country to take its rightful place in the comity of nations. Our recent economic growth and the

values of knowledge and education carried forward by a billion diverse people, point to India’s potential future as a knowledge society. Other countries that visualize a similar future have planned massive investments in order to enhance both the quality and quantity of higher education and research. China, for example, has made substantial increase in its allocation of resources of higher education. In the first phase, China has provided a grant of US $ 125 million to each of the 10 leading universities and US $ 225 million to Beijing and Tsinghua Universities. In the second phase, China proposes to provide additional grants to 30 universities, with the objective of having 100 high quality universities in China in the 21st century and with 15% of the citizens in the age group 18-22 receiving tertiary education.

7.2 India has suffered in the past because of severe under investment in higher education. This has been caused partly by the thinking that looks at primary and higher education in an either or manner. It is very clear however that large public investment is needed in both sectors. As Prime Minister Dr. Manmohan Singh said, while launching the Knowledge Commission, “At the bottom of the knowledge pyramid, the challenge is one of improving access to primary education. At the top of the pyramid there is need to make our institutions of higher education and research world class. The time has come for India to embark on a second wave of nation building. Denied this investment, the youth will become a social and economic liability.

49. It was emphasized by learned counsel for the petitioners

that the massive financial burden question finds no place in

the parliamentary debate. In response, Mr. Vahanvati has

submitted that before the Parliamentary Standing Committee,

the report of the Oversight Committee was available. When the

Oversight Committee’s report was discussed in detail, needless

to say the financial aspect was also considered.

50. It has been highlighted by Mr. P.P. Rao that unmindful of

the duty to focus on primary and elementary education, large

sums of money are intended to be used for implementation of

Statute. Various figures and datas have been highlighted to

show that there is really no concern for the primary and

elementary education. Repelling these contentions Mr.

Vahanvati has highlighted that there is no laxity so far as

primary and elementary education is concerned. He has

referred to voluminous details relating to Sarva Shiksha

Abhiyan. It is contended that uniform policy of elementary

education and the progress made upto 31.3.2007 shows the

concern of the Government to translate into reality the

constitutional objective of providing adequate education to all

citizens. It is true that there has been considerable effort in

this regard. But one question still remains to be answered.

There has to be balancing of priorities. Mr. Vahanvati has said

that this balancing is prerogative of the Government. It is true

that Government has a large area of discretion in choosing its

priorities. But one factor cannot be lost sight of. The

fundamental stress has to be on elementary education. If that

is done, as a consequence there would be reduction in the

need for spending more money on higher education. Stress on

primary and elementary education would be a leap forward

towards higher education. There has been considerable

number of drop outs in the higher classes. This is a reality in

spite of all steps which the Government claims to have

adopted to ensure that every child of a particular age group

has education as warranted by the Constitution as a

fundamental right.

51. Unni Krishnan, J.P. and Ors. v. State of A.P. and Ors.

(1993 (1) SCC 645) emphasized on the importance of

education in the following words:

“166. In Bandhua Mukti Morcha this Court held that the right to life guaranteed by Article 21 does take in "educational facilities". (The relevant portion has been quoted herein before). Having regard to the fundamental significance of education to the life of, an individual and the nation, and adopting the reasoning and logic adopted in the earlier decisions of this Court referred to herein before, we hold, agreeing with the statement in Bandhua Mukti Morcha, that right to education is implicit in and flows from the right to life guaranteed by Article 21. That the right to education has been treated as one of transcendental importance in the life of an individual has been recognised not only in this country since thousands of years, but all over the world. In Mohini Jain, the impatience of education has been duly and rightly stressed. The relevant observations have already been set out in para 7 herein before. In particular, we agree with the observation that without education being provided to the citizens of this country, the objectives set forth in the Preamble to the Constitution cannot be achieved. The Constitution would fail. We do not think that the importance of education could have been better emphasised than in the above words. The importance of education was emphasised in the "Neethishatakam' by Bhartruhari (First Century B.C. in the following words:

Translation: Education is the special manifestation of man; Education is the treasure which can be preserved without the fear of loss; Education secures material pleasure, happiness and fame; Education is the teacher of the teacher; Education is God incarnate; Education secures honour at the hands of the State, not money. A man without education is equal to animal.

168. In Brown v. Board of Education (347 US 483 (1954) Earl Warren, C.J., speaking for the U.S. Supreme Court emphasized the right to education in the following words:

“Today, education is perhaps the most important function of State and local governments…It is required in the performance of our most basic responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is the principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful any child may reasonably be expected to succeed in life if he is denied the opportunity of an education.”

52. Observations of this Court in AIIMS Students’ Union case

(supra) highlight the importance of higher education and the

modalities to be adopted for ensuring excellence are in the

following words:

“58. The Preamble to the Constitution of India secures, as one of its objects, fraternity assuring the dignity of the individual and the unity and integrity of the nation to 'we he people of India'. Reservation unless protected by the constitution itself, as given to us by the founding fathers and as adopted by the people of India, is sub-version of fraternity, unity and integrity and dignity of the individual. While dealing with Directive Principles of State Policy, Article 46 is taken note of often by overlooking Articles 41 and 47. Article 41 obliges the State inter alia to make effective provision for securing the right to work and right to education. Any reservation in favour of one, to the extent of reservation, is an inroad on the right of others to work and to learn. Article 47 recognises the improvement of public health as one of the primary duties of the State. Public health can be improved by having the best of doctors, specialists and super specialists. Under-graduate level is a primary or basic level of education in medical sciences wherein reservation can be understood as the fulfilment of

societal obligation of the State towards the weaker segments of the society. Beyond this, a reservation is a reversion or diversion from the performance of primary duty of the State. Permissible reservation at the lowest or primary rung is a step in the direction of assimilating the lesser fortunates in mainstream of society by bringing them to the level of others which they cannot achieve unless protectively pushed. Once that is done the protection needs to be withdrawn in the own interest of protectees so that they develop strength and feel confident of stepping on higher rungs on their own legs shedding the crutches. Pushing the protection of reservation beyond the primary level betrays bigwigs' desire to keep the crippled crippled for ever. Rabindra Nath Tagore's vision of a free India cannot be complete unless "knowledge is free" and "tireless striving stretches its arms towards perfection". Almost a quarter century after the people of India have given the Constitution unto themselves, a chapter on fundamental duties came to be incorporated in the Constitution. Fundamental duties, as defined in Article 51A, are not made enforceable by a writ of court just as the fundamental rights are, but it cannot be lost sight of that 'duties' in Part IVA - Article 51A are prefixed by the same word 'fundamental' which was prefixed by the founding fathers of the Constitution to 'rights' in Part III. Every citizen of India is fundamentally obliged to develop the scientific temper and humanism. He is fundamentally duty bound to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievements. State is, all the citizens placed together and hence though Article 51A does not expressly cast any fundamental duty on the State, the fact remains that the duty of every citizen of India is the collective duty of the Sate. Any reservation, apart from being sustainable on the constitutional anvil, must also be reasonable to be permissible. In assessing the reasonability one of the factors to be taken into consideration would be -- whether the character and quantum of reservation would stall or accelerate achieving the ultimate goal of excellence enabling the nation constantly rising to higher levels. In the era of globalisation, where the nation as a

whole has to compete with other nations of the world so as to survive, excellence cannot be given an unreasonable go by and certainly not compromised in its entirety. Fundamental duties, though not enforceable by a writ of the court, yet provide a valuable guide and aid to interpretation of constitutional and legal issues. In case of doubt or choice, people's wish as manifested through Article 51A, can serve as a guide not only for resolving the issue but also for constructing or moulding the relief to be given by the courts. Constitutional enactment of fundamental duties, if it has to have any meaning, must be used by courts as a tool to tab, even a taboo, on State action drifting away from constitutional values”.

53. Respondents have vehemently contended that the

concept of creamy layer may have relevance for the purpose of

Article 16(4), but is really inconsequential so far as Articles

15(4) and 15(5) are concerned. It is submitted that Article

16(4) is relatable to inadequate representation in Government

services and in that context the well to do in the socially and

educationally backward classes have to be excluded in view of

the decisions of this Court. But that logic cannot apply to the

present dispute which relates to admissions to educational

institutions. Before considering the question as to the

desirability of excluding ‘creamy layer’ the concept of creamy

layer needs to be focused upon. Observations of this Court in

various cases on this concept need to be noted.

54. In N.M. Thomas’s case (supra) at page 363, it was inter

alia observed as follows :

“124. A word of sociological caution. 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 top creamy layer of the “backward” caste or class, thus keeping the weakest among the weak always weak and leaving the fortunate layers to consume the whole cake. Secondly, this claim is overplayed extravagantly in democracy by large and vocal groups whose burden of backwardness has been substantially lightened by the march of time and measures of better education and more opportunities of employment, but wish to wear the “weaker section” label as a means to score over their near-equals formally categorised as the upper brackets. Lastly, a lasting solution to the problem comes only from improvement of social environment, added educational facilities and cross-fertilisation of castes by inter-caste and inter-class marriages sponsored as a massive State programme, and this solution is calculatedly hidden from view by the higher “backward” groups with a vested interest in the plums of backwardism. But social science research, not judicial impressionism, will alone tell the whole truth and a constant process of objective re-evaluation of progress registered by the “underdog” categories is essential lest a once deserving “reservation” should be degraded into “reverse discrimination”. Innovations in administrative strategy to help the really untouched, most backward classes also emerge from such socio-legal studies and audit exercises, if dispassionately made. In fact, research conducted by the A.N. Sinha Institute of Social Studies, Patna, has revealed a dual society among

harijans, a tiny elite gobbling up the benefits and the darker layers sleeping distances away from the special concessions. For them, Articles 46 and 335 remain a “noble romance”, the bonanza going to the “higher” harijans. I mention this in the present case because lower division clerks are likely to be drawn from the lowest levels of harijan humanity and promotion prospects being accelerated by withdrawing, for a time, “test” qualifications for this category may perhaps delve deeper. An equalitarian breakthrough in a hierarchical structure has to use many weapons and Rule 13/AA perhaps is one.

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139. It is platitudinous constitutional law that Articles 14 to 16 are a common code of guaranteed equality, the first laying down the broad doctrine, the other two applying it to sensitive areas historically important and politically polemical in a climate of communalism and jobbery.

55. In Vasant Kumar’s case (supra) at page 732 the view

was re-iterated in the following words :

“24. In order to appreciate the view point advanced by Mr Desai which appeals to me both for its indepth study of the problem, and a fresh outlook on this vexed problem, at the outset let me take a look at the futuristic view of the Indian Society as envisaged in the Constitution. No one is left in any doubt that the future Indian Society was to be casteless and classless. Pandit Jawaharlal Nehru the first Prime Minister of India said that Mahatma Gandhi has shaken the foundations of caste and the masses have been powerfully affected. But an even greater power than Gandhi is at work, the conditions of

modern life — and it seems at last this hoary and tenacious ralic of past times must die. Mahatma Gandhi, the Father of the Nation said, “The caste system as we know is an anachronism. It must go if both Hinduism and India are to live and grow from day to day”. In its onward march towards realising the constitutional goal, every attempt has to be made to destroy caste stratification. Article 38(2) enjoins the State to strive to minimise the inequality 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. Article 46 enjoins duty to promote with special care the educational and economic interests of the weaker sections of the people, and in particular of the Scheduled Castes and Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation. Continued retention of the division of the society into various castes simultaneously introduces inequality of status. And this inequality in status is largely responsible for retaining inequality in facilities and opportunities, ultimately resulting in bringing into existence an economically depressed class for transcending caste structure and caste barrier. The society therefore was to be classless casteless society. In order to set up such a society, steps have to be taken to weaken and progressively eliminate caste structure. Unfortunately, the movement is in the reverse gear. Caste stratification has become more rigid to some extent, and where concessions and preferred treatment schemes are introduced for economically disadvantaged classes, identifiable by caste label, the caste structure unfortunately received a fresh lease of life. In fact there is a mad rush for being recognized as belonging to a caste which by its nomenclature would be included in the list of socially and educationally backward classes. To illustrate: Bakshi Commission in Gujarat recognized as many as 82 castes as being socially and educationally backward. On the publication of its report, Government of Gujarat received representations by members of those castes who had not made any representation to the Bakshi Commission for treating them as socially and educationally backward. This phenomenon was

noticed by Mandal Commission when it observed: “Whereas the Commission has tried to make the State-wise lists of OBCs as comprehensive as possible, it is quite likely that several synonymy of the castes listed as backward have been left out. Certain castes are known by a number of synonymy which vary from one region to the other and their complete coverage is almost impossible”. Mandal Commission found a way out by recommending that if a particular caste has been listed as backward then all its synonyms whether mentioned in the State lists or not should also be treated as backward. Gujarat Government was forced to appoint a second commission known as Rane Commission. Rane Commission took note of the fact that there was an organised effort for being considered socially and educationally backward castes. Rane Commission recalled the observations in Balaji case that “Social backwardness is on the ultimate analysis the result of poverty to a very large extent”. The Commission noticed that some of the castes just for the sake of being considered as socially and educationally backward, have degraded themselves to such an extent that, they had no hesitation in attributing different types of vices to and associating other factors indicative of backwardness, with their castes. The Commission noted that the malaise requires to be remedied. The Commission therefore, devised a method for determining socially and educationally backward classes without reference to caste, beneficial to all sections of people irrespective of the caste to which they belong. The Commission came to an irrefutable conclusion that amongst certain castes and communities or class of people, only lower income groups amongst them are socially and educationally backward. We may recall here a trite observation in case of N.M. Thomas which reads as under (SCC pg.363 para 124):

“A word of sociological caution. 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 top creamy layer of the ‘backward’ caste or class, thus keeping the weakest among the weak always weak and leaving the

fortunate layers to consume the whole cake. Secondly, this claim is overplayed extravagantly in democracy by large and vocal groups whose burden of backwardness has been substantially lightened by the march of time and measures of better education and more opportunities of employment, but wish to wear the ‘weaker section’ label as a means to score over their near-equals formally categorised as the upper brackets.”

25. A few other aspects for rejecting caste as the basis for identifying social and educational backwardness may be briefly noted. If State patronage for preferred treatment accepts caste as the only insignia for determining social and educational backwardness, the danger looms large that this approach alone would legitimise and perpetuate caste system. It does not go well with our proclaimed secular character as enshrined in the Preamble to the Constitution. The assumption that all members of same caste a re equally socially and educationally backward is not well-founded. Such an approach provides an over-simplification of a complex problem of identifying the social and educational backwardness. The Chairman of the Backward Classes Commission, set up in 1953, after having finalised the report, concluded that “it would have been better if we could determine the criteria of backwardness on principles other than caste”. Lastly it is recognised without dissent that the caste based reservation has been usurped by the economically well-placed section in the same caste. To illustrate, it may be pointed that some years ago, I came across a petition for special leave against the decision of the Punjab and Haryana High Court in which the reservation of 2½ per cent for admission to medical and engineering colleges in favour of Majhabi Sikhs was challenged by none other than the upper crust of the members of the Scheduled castes amongst Sikhs in Punjab, proving that the labeled weak exploits the really weaker. Add to this, the findings of the Research Planning Scheme of sociologists assisting the Mandal Commission when

it observed: “while determining the criteria of socially and educationally backward classes, social backwardness should be considered to be the critical element and educational backwardness to be the linked element though not necessarily derived from the former”. The team ultimately concluded that “social backwardness refers to ascribed status, and it considered social backwardness as the critical element and educational backwardness to be the linked though not derived element”. The attempt is to identify socially and educationally backward classes of citizens. The caste, as is understood in Hindu Society, is unknown to Muslims, Christians, Parsis, Jews etc. Caste criterion would not furnish a reliable yardstick to identify socially and educationally backward group in the aforementioned communities though economic backwardness would.

28. Reservation in one or other form has been there for decades. If a survey is made with reference to families in various castes considered to be socially and educationally backward, about the benefits of preferred treatment, it would unmistakably show that the benefits of reservations are snatched away by the top creamy layer of the backward castes. This has to be avoided at any cost.

56. Significantly in Indra Sawhney No.1 it was emphatically

noted as follows:

“520. Society does not remain static. The industrialisation and the urbanisation which necessarily followed in its wake, the advance on political, social and economic fronts made particularly after the commencement of the Constitution, the

social reform movements of the last several decades, the spread of education and the advantages of the special provisions including reservations secured so far, have all undoubtedly seen at least some individuals and families in the backward classes, however small in number, gaining sufficient means to develop their capacities to compete with others in every field. That is an undeniable fact. Legally, therefore, they are not entitled to be any longer called as part of the backward classes whatever their original birthmark. It can further hardly be argued that once a backward class, always a backward class. That would defeat the very purpose of the special provisions made in the Constitution for the advancement of the backward classes, and for enabling them to come to the level of and to compete with the forward classes, as equal citizens. On the other hand, 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. What is more, it will lead to perverting the objectives of the special constitutional provisions since the forwards among the backward classes will thereby be enabled to lap up all the special benefits to the exclusion and at the cost of the rest in those classes, thus keeping the rest in perpetual backwardness. The object of the special constitutional provisions is not to uplift a few individuals and families in the backward classes but to ensure the advancement of the backward classes as a whole. Hence, taking out the forwards from among the backward classes is not only permissible but obligatory under the Constitution. However, it is necessary to add that just as the backwardness of the backward groups cannot be measured in terms of the forwardness of the forward groups, so also the forwardness of the forwards among the backward classes cannot be measured in terms of the backwardness of the backward sections of the said classes. It has to be judged on the basis of the social capacities gained by them to compete with the forward

classes. So long as the individuals belonging to the backward classes do not develop sufficient capacities of their own to compete with others, they can hardly be classified as forward.

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629. More backward and backward is an illusion. No constitutional exercise is called for it. What is required is practical approach to the problem. The collectivity or the group may be backward class but the individuals from that class may have achieved the social status or economic affluence. Disentitle them from claiming reservation. Therefore, while reserving posts for backward classes, the departments should make a condition precedent that every candidate must disclose the annual income of the parents beyond which one could not be considered to be backward. What should be that limit can be determined by the appropriate State. Income apart, provision should be made that wards of those backward classes of persons who have achieved a particular status in society either political or social or economic or if their parents are in higher services then such individuals should be precluded to avoid monopolisation of the services reserved for backward classes by a few. Creamy layer, thus, shall stand eliminated. And once a group or collectivity itself is found to have achieved the constitutional objective then it should be excluded from the list of backward class. Therefore,

(1) No reservation can be made on economic criteria.

(2) It may be under Article 16(4) if such class satisfies the test of inadequate representation.

(3) Exclusion of creamy layer is a social purpose. Any legislative or executive action to remove such persons individually or collectively cannot be constitutionally invalid.

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790. ‘Means-test’ in this discussion signifies imposition of an income limit, for the purpose of excluding persons (from the backward class) whose income is above the said limit. This submission is very often referred to as the “creamy layer” argument. Petitioners submit that some members of the designated backward classes are highly advanced socially as well as economically and educationally. It is submitted that they constitute the forward section of that particular backward class — as forward as any other forward class member — and that they are lapping up all the benefits of reservations meant for that class, without allowing the benefits to reach the truly backward members of that class. These persons are by no means backward and with them a class cannot be treated as backward. It is pointed out that since Jayasree almost every decision has accepted the validity of this submission.

791. On the other hand, the learned counsel for the States of Bihar, Tamil Nadu, Kerala and other counsel for respondents strongly oppose any such distinction. It is submitted that once a class is identified as a backward class after applying the relevant criteria including the economic one, it is not permissible to apply the economic criteria once again and sub- divide a backward class into two sub-categories. Counsel for the State of Tamil Nadu submitted further that at one stage (in July 1979) the State o f Tamil Nadu did indeed prescribe such an income limit but had to delete it in view of the practical difficulties encountered and also in view of the representations received. In this behalf, the learned counsel invited our

attention to Chapter 7-H (pages 60 to 62) of the Ambashankar Commission (Tamil Nadu Second Backward Classes Commission) Report. According to the respondents the argument of ‘creamy layer’ is but a mere ruse, a trick, to deprive the backward classes of the benefit of reservations. It is submitted that no member of backward class has come forward with this plea and that it ill becomes the members of forward classes to raise this point. Strong reliance is placed upon the observations of Chinnappa Reddy, J in Vasanth kumar to the following effect (SCC p.763, para 72)

“ .. .. One must, however, enter a caveat to the criticism that the benefits of reservation are often snatched away 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. How can it be bad if reserved seats and posts are snatched away by the creamy layer of backward classes, if such snatching away of unreserved posts by the top creamy layer of society itself is not bad?”

792. 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 — 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 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. Difficulty, however, really lies in drawing the line — how and where to draw the line? For, while drawing the line, it should be ensured that it does not result in taking away with one hand what is given by the other. The basis of exclusion should not merely be economic, unless, of course, the economic advancement is so high that it necessarily means social advancement. Let us illustrate the point. A member of backward class, say a member of carpenter caste, goes to Middle East and works there as a carpenter. If you take his annual income in rupees, it would be fairly high from the Indian standard. Is he to be excluded from the Backward Class? Are his children in India to be deprived of the benefit of Article 16(4)? Situation may, however, be different, if he rises so high economically as to become — say a factory owner himself. In such a situation, his social status also rises. He himself would be in a position to provide employment to others. In such a case, his income is merely a measure of his social status. Even otherwise there are several practical difficulties too in imposing an income ceiling. For example, annual income of Rs.36,000 may not count for much in a city like Bombay, Delhi or Calcutta whereas it may be a handsome income in rural India anywhere. The line to be drawn must be a realistic one. Another question would be, should such a line be uniform for the entire country or a given State or should it differ from rural to urban areas and so on. Further, income from agriculture may be difficult to assess and, therefore, in the case of agriculturists, the line may have to be drawn with reference to the extent of holding. While the income of a person can be taken as a measure of his social advancement, the limit to be prescribed should not be such as to result in taking away with one hand what is given with the other. The income limit must be such as to mean and signify social

advancement. At the same time, it must be recognised that there are certain positions, the occupants of which can be treated as socially advanced without any further enquiry. For example, if a member of a designated backward class becomes a member of IAS or IPS or any other All India Service, his status is society (social status) rises; he is no longer socially disadvantaged. His children get full opportunity to realize their potential. They are in no way handicapped in the race of life.

793. Keeping in mind all these considerations, we direct the Government of India to specify the basis of exclusion — whether on the basis of income, extent of holding or otherwise — of ‘creamy layer’. This shall be done as early as possible, but not exceeding four months. On such specification persons falling within the net of exclusionary rule shall cease to be the members of the Other Backward Classes (covered by the expression ‘backward class of citizens’) for the purpose of Article 16(4). The impugned Office Memorandums dated August 13, 1990 and September 25, 1991 shall be implemented subject only to such specification and exclusion of socially advanced persons from the backward classes contemplated by the said O.M. In other words, after the expiry of four months from today, the implementation of the said O.M. shall be subject to the exclusion of the ‘creamy layer’ in accordance with the criteria to be specified by the Government of India and not otherwise”.

57. In Indra Sawhney v. Union of India (1996) 6 SCC 506)

at page 508) it was noted as follows :

“3. Thereafter the matter again came up before the Court on 20-3-1995. Finding that the State of Kerala has not taken any

steps, this Court issued notice to show cause why action should not be taken for non-compliance of this Court’s order. Again the matter came up on 10-7-1995. Even on that date no report of compliance was submitted to the Court; instead an affidavit sworn to by the Chief Secretary to the State was handed over explaining the circumstances why the implementation of the judgment was delayed.

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5. In the circumstances, out of sheer exhaustion and having regard to the fact that the constitutionality of the Kerala Act 16 of 1995 is pending disposal before this Court, we have decided to get the information ourselves regarding “creamy layer” issue through a High Level Committee.

6. Accordingly, we request the learned Chief Justice of the Kerala High Court to appoint a retired Judge of the High Court to be the Chairman of the High Level Committee who will induct not more than 4 members from various walks of life to identify the “creamy layer” among “the designated other backward classes” in Kerala State in the light of the ruling of this Court in Mandal case and forward the report to this Court within 3 months from the date of receipt of this order.”

58. In Indra Sawhney No. 2 it was observed as follows:

“7. Our Constitution is wedded to the concept of equality and equality is a basic feature. Under Article 15(2), there is a prohibition that the State shall not discriminate against any citizen on the grounds only of religion, race, caste, sex and place of birth or any of them. It is equally true that ours is a

caste-ridden society. Still, it is a constitutional mandate not to discriminate on the basis of caste alone. Provisions can be made for the upliftment of socially and educationally backward classes, Scheduled Castes or Scheduled Tribes or for women and children. Article 16(4) empowers the States for making any provision for reservation in appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State. Reservation is permissible ( i ) in favour of any backward class of citizens; and ( ii ) if it is not adequately represented in services under the State.

8. Caste only cannot be the basis for reservation. Reservation can be for a backward class citizen of a particular caste. Therefore, from that caste, the creamy layer and the non- backward class of citizens are to be excluded. If the caste is to be taken into consideration then for finding out the socially and economically backward class, the creamy layer of the caste is to be eliminated for granting benefit of reservation, because that creamy layer cannot be termed as socially and economically backward. These questions are exhaustively dealt with by a nine-Judge Bench of this Court in Indra Sawhney v. Union of India and it has been specially held that “only caste” cannot be the basis for reservation.

9. Inclusion of castes in the list of backward classes cannot be mechanical and cannot be done without adequate relevant data. Nor can it be done for extraneous reasons…… Likewise, periodic examination of a backward class could lead to its exclusion if it ceases to be socially backward or if it is adequately represented in the services. Once backward, always backward is not acceptable. In any case, the “creamy layer” has no place in the reservation system.

10. If forward classes are mechanically included in the list of backward classes or if the creamy layer among backward classes is not excluded, then the benefits of reservation will not reach the really backward among the backward classes. Most of the benefits will then be knocked away by the forward castes and the creamy layer. That will leave the truly backward, backward forever.

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13. In Indra Sawhney on the question of exclusion of the “creamy layer” from the backward classes, there was agreement among eight out of the nine learned Judges of this Court. There were five separate judgments in this behalf which required the “creamy layer” to be identified and excluded.

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22. As appears from the judgments of six out of the eight Judges, viz. Jeevan Reddy (for himself and three others), Sawant and Sahai, JJ. — (i.e. six learned Judges out of nine), — they specifically refer to those in higher services like IAS, IPS and All India Services or near about as persons who have reached a higher level of social advancement and economic status and therefore as a matter of law, such persons are declared not entitled to be treated as backward. They are to be treated as creamy layer “without further inquiry”. Likewise, persons living in sufficient affluence who are able to provide employment to others are to be treated as having reached a higher social status on account of their affluence, and therefore outside the backward class. Those holding higher levels of agricultural landholdings or getting income from property, beyond a limit, have to be excluded from the

backward classes. This, in our opinion, is a judicial “ declaration ” made by this Court.

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27. As the “creamy layer” in the backward class is to be treated “on a par” with the forward classes and is not entitled to benefits of reservation, it is obvious that if the “creamy layer” is not excluded, there will be discrimination and violation of Articles 14 and 16(1) inasmuch as equals (forwards and creamy layer of backward classes) cannot be treated unequally . Again, non-exclusion of creamy layer will also be violative of Articles 14, 16(1) and 16(4) of the Constitution of India since unequals (the creamy layer) cannot be treated as equals , that is to say, equal to the rest of the backward class. These twin aspects of discrimination are specifically elucidated in the judgment of Sawant, J. where the learned Judge stated as follows: (SCC p. 553, para 520)

“To continue to confer upon such advanced sections special benefits, would amount to treating equals unequally. Secondly, to rank them with the rest of the backward classes would amount to treating the unequals equally.”

Thus, any executive or legislative action refusing to exclude the creamy layer from the benefits of reservation will be violative of Articles 14 and 16(1) and also of Article 16(4). We shall examine the validity of Sections 3, 4 and 6 in the light of the above principle.

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64. The Preamble to the Constitution of India emphasises the principle of equality as basic to our Constitution. In Kesavananda Bharati v. State of Kerala it was ruled that even constitutional amendments which offended the basic structure of the Constitution would be ultra vires the basic structure. Sikri, C.J. laid stress on the basic features enumerated in the Preamble to the Constitution and said that there were other basic features too which could be gathered from the constitutional scheme (para 506-A of SCC). Equality was one of the basic features referred to in the Preamble to our Constitution. Shelat and Grover, JJ. also referred to the basic rights referred to in the Preamble. They specifically referred to equality (paras 520 and 535-A of SCC). Hegde and Shelat, JJ. also referred to the Preamble (paras 648, 652). Ray, J. (as he then was) also did so (para 886). Jaganmohan Reddy, J. too referred to the Preamble and the equality doctrine (para 1159). Khanna, J. accepted this position (para 1471). Mathew, J. referred to equality as a basic feature (para 1621). Dwivedi, J. (paras 1882, 1883) and Chandrachud, J. (as he then was) (see para 2086) accepted this position.

65. What we mean to say is that Parliament and the legislature in this country cannot transgress the basic feature of the Constitution, namely, the principle of equality enshrined in Article 14 of which Article 16(1) is a facet. Whether the creamy layer is not excluded or whether forward castes get included in the list of backward classes , the position will be the same, namely, that there will be a breach not only of Article 14 but of the basic structure of the Constitution. The non-exclusion of the creamy layer or the inclusion of forward castes in the list of backward classes will, therefore, be totally illegal. Such an illegality offending the root of the Constitution of India cannot be allowed to be perpetuated even by constitutional amendment. The Kerala Legislature is, therefore, least competent to perpetuate such an illegal

discrimination. What even Parliament cannot do, the Kerala Legislature cannot achieve.”

59. Though in M. Nagaraj’s case (supra) some observations of

general nature have been made so far as the applicability of

the principles to Scheduled Castes and Scheduled Tribes are

concerned, really that case did not concern with Scheduled

Castes and Scheduled Tribes. Similar is the position here. The

focus on the identity test in M. Nagaraj’s case (supra) is

unexceptionable. At paras 80 and 110, it was noted as follows:

“80. Before concluding, we may refer to the judgment of this Court in M.G. Badappanavar. In that case the facts were as follows. Appellants were general candidates. They contended that when they and the reserved candidates were appointed at Level-1 and junior reserved candidates got promoted earlier on the basis of roster- points to Level-2 and again by way of roster-points to Level-3, and when the senior general candidate got promoted to Level-3, then the general candidate would become senior to the reserved candidate at Level-3. At Level-3, the reserved candidate should have been considered along with the senior general candidate for promotion to Level- 4. In support of their contention, appellants relied upon the judgment of the Constitution Bench in Ajit Singh (II). The above contentions raised by the appellants were rejected by the tribunal. Therefore, the general candidates came to this Court in appeal. This Court found on facts that the Service Rule concerned did not contemplate computation of seniority in respect of roster promotions. Placing reliance on the judgment of this Court in Ajit Singh (I) and in Virpal Singh,

this Court held that roster promotions were meant only for the limited purpose of due representation of backward classes at various levels of service and, therefore, such roster promotions did not confer consequential seniority to the roster-point promotee. In Ajit Singh (II) , the circular which gave seniority to the roster-point promotees was held to be violative of Articles 14 and 16. It was further held in M.G. Badappanavar that equality is the basic feature of the Constitution and any treatment of equals as unequals or any treatment of unequals as equals violated the basic structure of the Constitution. For this proposition, this Court placed reliance on the judgment in Indra Sawhney while holding that if creamy layer among backward classes were given some benefits as backward classes, it will amount to equals being treated unequals. 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 event, even Article 16(4A) cannot be of any help to the reserved category candidates. This is the only judgment of this Court delivered by three-Judge bench saying that if roster-point promotees are given the benefit of consequential seniority, it will result in violation of equality principle which is part of the basic structure of the Constitution. Accordingly, the judgment of the tribunal was set aside.

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110. As stated above, the boundaries of the width of the power, namely, the ceiling-limit of 50% (the numerical benchmark), the principle of creamy layer, the compelling reasons, namely, backwardness, inadequacy of representation and the overall administrative efficiency are not obliterated by the impugned amendments. At the appropriate time, we have to consider the law as enacted by various States providing for reservation if challenged. At that time we have to see whether limitations on the exercise of power are violated. The State is

free to exercise its discretion of providing for reservation subject to limitation, namely, that there must exist compelling reasons of backwardness, inadequacy of representation in a class of post(s) keeping in mind the overall administrative efficiency. It is made clear that even if the State has reasons to make reservation, as stated above, if the impugned law violates any of the above substantive limits on the width of the power the same would be liable to be set aside.”

60. There is an interesting article by an author dealing with

Affirmative Action which reads as follows:

“In his much referred to speech on 26 November 1949, Dr. Ambedkar said that India was wanting in its recognition of the principle of fraternity. What does fraternity mean? Fraternity means a sense of common brotherhood of all Indians - of India being one people. The virtues of liberty by themselves do not create fraternity. This is why several liberal theorists are unsure about whether or not state interventions should be allowed for when the issue of overcoming disprivileges are concerned. The central concern then is how to inculcate a sense of `common brotherhood' among people with divergent histories and who occupy vastly different positions in the economic and social structure of a society.

Before we go further on discussing the specifics of caste and reservations in India it is worth recording that liberty and equality can sometimes be contradictorily positioned. This is why it is important for democracy to redress these community-based grievances within a framework that does not violate liberal principles. While the individual needs to be protected, there are individuals in certain groups and communities that need safeguards and support as well. After all it must be remembered that communities do not create citizens, but that there are citizens within communities. Also, while it is rather risky to say that communities have rights,

there is no doubt at all that within liberal democracies, individuals have rights. Indeed, these rights were secured historically so that individuals did not have to be burdened by community and ascriptive pressures on them.

The rationale behind affirmative action is that it releases suppressed talents and expands the pool of social assets in society for the general good. If today we are looking for a justification for affirmative action in this fashion, several decades ago it was precisely this enlarging of the social pool of talents that recommended equal treatment for women. As L.T. Hobhouse argued then that when women are repressed then there is a loss of all the elements in the common stock which the free play of the woman's mind would contribute. By increasing the sum of realized talents in society individuals can actually gain greater inter-subjectivity in their everyday lives. As the set of resemblances between them is now so much larger, they can practice, pace Rawls, the moral precept of participating in one another's fate. In this process, fraternal values of citizenship gain materiality and fulfilment. It should be recognized that fraternity can only come about through a basic set of resemblances between citizens. This conception of resemblances is about citizens being equally able to avail of institutional facilities that ensure their acquisition of those skills that are considered to be socially valuable. In other words, social opportunities exist for individual self-expansion, and it is only individuals now who can exclude themselves. If grinding poverty comes in the way of acquiring such socially valuable skills, then those blocks should be met by developmental interventions such as the anti-poverty programmes. But on no account should the removal of poverty be made synonymous with reservations. Reservations are only meant to create a measure of confidence and dignity among those who didn't dare dream of an alternative life. But that alone cannot create structural conditions that address the root causes of poverty.

If quality education and the imparting of socially valuable skills are provided across the board through reservations, then

that would take care of the complaint that affirmative action is largely about the equality of results. Rawls' principle of justice as fairness only says that offices should be open to all. But what if people do not qualify for these offices because their potentialities have remained unrealized on account of inadequate qualifications arising from a history of discrimination compounded by poverty, or, indeed, because of sub-standard education? Does it mean that, through positive discrimination and reservations, they should be given these jobs anyway regardless of the welfare of institutions? In this connection, Andre Beteille's warning that affirmative action should be sensitive to institutional well-being as well needs to be recalled. Beteille sifted between the various imperatives that different organizations are subsumed under and accordingly advised a careful calibration of reservations such that these provisions of performance do not undermine efficiency of performance. The resemblances that are being advocated in the context of affirmative action should not be interpreted in terms of homogeneous `sameness'. Sameness is what medieval religious fundamentalists aim for. On the other hand, the set of resemblances in a constitutional democracy enhances equality and not sameness by providing identical opportunities to all for self-expression and development. Citizenship is not about the sameness of lifestyles or of income. Marshall's notion of citizenship as a status that tends towards equality should be interpreted in this light. According to Marshall, the equality that citizenship guarantees should be the foundation on which other kinds of differences can develop.

It will no doubt be the case that differences will exist even after a minimum set of resemblances is established. But these will no longer be outcomes of the accidents of birth. When diversity exists outside of choice then that is not a state of affairs that a democratic society can rejoice in. Affirmative action is instrumental in enlarging the scope of difference and diversity, but it succeeds in doing so by first ensuring that citizens resemble one another at a very critical level namely in their ability to acquire socially valuable skills.

Affirmative action gets somewhat complicated in India on account of caste politics.

Undeniably, India is the most stratified society in the world. Over and above caste differentiations there are huge income disparities, religious and community differences that are deeply engraved into everyday social relations. No doubt, the nature of caste and community interactions has changed over time, but considerations along ascriptive lines still remain important markers, both at the public and private domains.

Not only are we now confronted by identity assertions of earthy peasant castes, that were earlier ranked as lowly shudras (or menials), but also, of those who, till recently, were called ‘untouchables’. Now we also know that none of these castes had ever ideologically accepted their degraded status. Yet they lived out their humble lives quietly for generations for fear of offending the privileged strata.

We now know more of their origin tales that boast of the elevated positions they once held before an unsuspected chicanery, a lost war, or a mercurial god, demoted them to lowly rungs in popular perceptions. Today these tales are an important source of symbolic energy for caste mobilizations and identity assertions. Now that the Mandal recommendations are in place, reservations are not just for the Scheduled Castes and Tribes, but for the so-called other Backward Castes as well. While there are a large number of castes listed as Backward, the demand for reservations for this category has been spearheaded by the class of owner- cultivators, or peasant proprietors. Before we assess Mandal reforms it would be useful to know how these peasant castes emerged.

After the zamindari abolition came into effect, adult franchise and land-to-the-tiller programme together forced the earlier

landed castes slowly to cede ground in the villages. Soon, however, traditional peasant castes such as the Ahirs, Kurmis, Koeris, Lodhs, Rajputs and Jats began to dominate the political scape of northern India. In the southern State of Tamil Nadu, the Vanniyars and Thevars have become assertive, and in Karnataka control was wrested in the mid- 1950s from the traditional rural elite within the Congress Party by the Vokkaligas and Linagayats.

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In pursuance of Article 340 of the Constitution, the Kalelkar Commission was set up in 1955 but it could not come to any satisfactory conclusion about who should be legitimately considered as OBCs. The Mandal Commission came into existence in 1980 and it promptly came up with a long list of 3,743 backward castes on the basis of social, economic and educational backwardness. The Mandal Commission's recommendations were implemented in 1990 by the then Prime Minister VP Singh. This meant that a further 29 per cent of seats in educational institutions and government jobs would now be reserved for OBCs.

The implementation of reservations for OBCs set off a furore of protests, including a few suicides, all over the country by those who are considered to be members of forward castes. Many felt that reservations for OBCs were not warranted for two reasons. First, this would make India a caste society by law; and, second, because many of those who are considered as OBCs are really quite powerful and dominant in rural India. The obvious reference was to Jats and Yadavs. A majority of social anthropologists wrote against reservations for OBCs primarily on these grounds. Andre Beteille's criticism of the Mandal Commission recommendations was widely commented upon. He distinguishes between reservations for OBCs

following Mandal recommendations and the reservations that were already granted in the Constitution for Scheduled Castes and Tribes. While provisions for Scheduled Castes and Tribes were with the intention of reaching towards greater equality, reservations for OBCs were really to bring about a balance of power on the calculus of caste. The kind of deprivations that ex-untouchables (Scheduled Castes) and Adivasis (Scheduled Tribes) encountered for centuries can in no way be compared to the traditional condition of the OBCs. Besides, many OBCs are quite powerful in rural India, both economically and politically. In fact, the Mandal Commission recommendations were actually giving in to a powerful rural lobby that did not really care for equality of opportunities as much as it did for equality of results.

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There are two considerations that escape many uncritical applications of affirmative action. First, affirmative action must resist any tendency whereby its beneficiaries become vested interests. And secondly, it must eventually seek its own dissolution. While the second may be far away, it is by paying attention to the first issue that it is possible for affirmative action to eventually annihilate itself. Paradoxical as it may appear, but when this happens it is then that positive discrimination has finally triumphed.

Affirmative action fails to reach this final destination when it is inconsistently applied, or when its beneficiaries form vested interest bloc within a democratic electoral system on the basis of ascriptive identity alone. The latter poses a stronger practical and intellectual challenge to the policy of affirmative action. As long as historical disprivileges and economic backwardness go together and the relationship between them is statistically very strong, colour or caste membership can act as ready reckoners for targeting beneficiaries of affirmative

action. This, however, does not mean that membership in these communities should advantage individuals in perpetuity once they are able to develop the minimum set of resemblances. Therefore, as and when those who belong to targeted categories for affirmative action acquire socially useful talents and attributes, they should contribute them to the society as a whole, and not employ them only for sectional advantages.

Consequently, those who benefit from this policy owe it to society to put their newly acquired social talents back into the collective social pool. This would mean that they would automatically fall outside the scope of affirmative action programme in the future. The net would no longer cover them as they already have socially useful assets. Indeed the society will be richer and better endowed on account of it as the beneficiaries of affirmative action will now begin to contribute to the social pool of talents. This would both release and add to social and material resources required for continuing with the policy aimed at the enhancement of resemblances. As a result, society will progressively acquire a higher strike rate with the policy of affirmative action by reaching out to those who have thus far fallen outside its ambit. By increasing the number of those who possess the minimum set of resemblances, the society has now a larger wealth of talents in a variety of fields and specialities than it had before. This is how affirmative action, which is aimed at the historically most disadvantaged sections, ultimately improves the lot of everybody in society. If, on the other hand, either colour or race, which are only ready reckoners, become permanent considerations, without taking into account biographical profiles of actual and potential beneficiaries, then that would inhibit fraternity and sow seeds of permanent divisions in society.

Affirmative action begins by placing the assets of the better off in a collective pool, not for redistribution, but to create the infrastructure that is needed to enhance the minimum set of resemblances necessary for substantive citizenship. With the

help of this capital, socially valuable assets are now created in sites where there were none. This measure has a strong practical dimension for out of this collective pooling new assets are being created. The creation of such new assets is possible because the initial pooling of assets of the privileged section allows the society to underwrite the expenses incurred for the establishment of certain baseline similarities in society as a whole. As the most important feature in this case is not one's ascriptive badge, but the creation of socially valuable assets, it is expected that those who have been the beneficiaries of the scheme will gradually slip out of the net. They will cease to receive from the collective pool and instead will begin to contribute to it. As far as public policy is concerned they are no long members of certain designated castes or communities. They are now simply citizens.

In passing it is worth putting in perspective that the difference between reservations in India and affirmative action in America is that the former talks about extirpating caste whereas the latter is interested primarily in representing races. If the accent is on representation then the ascriptive factor becomes a permanent badge that can never be overcome. Again, Americans believe in race representation, not in quotas, and in not sacrificing standards for social justice. But the great similarity between the two forms of preferential policy is that in both cases it is the public sector where positive discrimination is effectively realized. In America, the State encourages private sector units to employ people of diverse backgrounds without specifying quotas for different races. If these enterprises can show a fair racial mix then they can get preferential contracts from the government. The State cannot force any private sector unit to implement affirmative action. It is a combination of goodwill and rewards that takes affirmative action forward in the private sector of America. For example, Bob Jones University does not receive any public money and, therefore, it refuses to accept affirmative action, even of the most muted kind. It is only when organizations depend on state funding, or when they want to be rewarded by the State, that policy of affirmative action comes to life.”

61. It has been rightly observed in Indra Sawhney No. 2

(supra) whether creamy layer is not excluded or whether

forward classes can be excluded in the list of backward

classes, the position would be the same and there will be

breach not only of Article 14 but of the basic structure of the

Constitution. As was rightly observed in the said case, non

exclusion of the creamy layer or inclusion of forward castes in

the lists of backward classes will be totally illegal. The illegality

offends the roots and foundation of the Constitution and

cannot be allowed to be perpetuated.

62. In Nair Service Society’s case (supra) this Court observed

as follows:

“54. This Court, thus, has categorically laid down the law that determination of creamy layer is a part of the constitutional scheme.”

63. In our view, even non exclusion of the creamy layer for

the purpose of admission to the educational institutions

cannot be countenanced. It is inconceivable that a person who

belongs to the creamy layer is socially and educationally

backward. The backward status vanishes when somebody

becomes part of the creamy layer.

64. In Vasant Kumar’s case (supra) it was aptly described

that the benefits of reservation are snatched away by the top

creamy layer of the backward classes and this has to be

avoided at any cost. By inclusion of the creamy layer or in

other words non inclusion thereof a fresh lease of life to those

who should have been left out is given. Their continuance

would mean keeping weakest amongst the weak always weak

and leaving the fortunate ones to enjoy the benefits. If the

ultimate aim is a casteless and classless society in line with

the dream of the Constitution framers that has to be chewed

out. As Father of the Nation had once said if the caste system

as we know is an anchronism, then it must go. There is a

feeling and it cannot be said without reason that reservation

hits at the root of this belief and instead of its obliteration

there is perceivable perpetuation. It is true that obliteration

cannot be done immediately or within a short span of time but

that is no answer to the lack of seriousness in seeking

obliteration.

65. In Indra Sawhney No.1 (supra) the following observations

on the question of giving priority over reservation are of

significance. It was held:

“293. Preference without reservation may be adopted in favour of the chosen classes of citizens by prescribing for them a longer period for passing a test or by awarding additional marks or granting other advantages like relaxation of age or other minimum requirements. (See the preferential treatment in State of Kerala and Anr. v. N.M. Thomas and Ors. (1976) 1 SCR 906). Furthermore, it would be within the discretion of the State to provide financial assistance to such persons by way of grant, scholarships, fee concessions etc. Such preferences or advantages are like temporary crutches for additional support to enable the members of the backward and other disadvantaged classes to march forward and compete with the rest of the people. These preferences are extended to them because of their inability otherwise to compete effectively in open selections on the basis of merits for appointment to posts in public services and the like or for selection to academic courses. Such preferences can be extended to all disadvantaged classes of citizens, whether or not they are victims of prior discrimination. What qualifies persons for preference is backwardness or disadvantage of any kind which the State has a responsibility to ameliorate. The blind and the deaf, the dumb and the maimed, and other

handicapped persons qualify for preference. So do all other classes of citizens who are at a comparative disadvantage for whatever reason, and whether or not they are victims of prior discrimination. All these persons may be beneficiaries of preferences short of reservation. Any such preference, although discriminatory on its face, may be justified as a benign classification for affirmative action warranted by a compelling state interest.

294. In addition to such preferences, quotas may be provided exclusively reserving posts in public services or seats in academic institutions for backward people entitled to such protection. Reservation is intended to redress backwardness of a higher degree. Reservation prima facie is the very antithesis of a free and open selection. It is a discriminatory exclusion of the disfavoured classes of meritorious candidates: M.R. Balaji (supra). It is not a case of merely providing an advantage or a concession or preference in favour of the backward classes and other disadvantaged groups. It is not even a handicap to disadvantage the forward classes so as to attain a measure of qualitative or relative equality between the two groups. Reservation which excludes from consideration all those persons falling outside the specially favoured groups, irrespective of merits and qualifications, is much more positive and drastic a discrimination - albeit to achieve the same end of qualitative equality - but unless strictly and narrowly tailored to a compelling constitutional mandate, it is unlikely to qualify as a benign discrimination. Unlike in the case of other affirmative action programmes, backwardness by itself is not sufficient to warrant reservation. What qualifies for reservation is backwardness which is the result of identified past discrimination and which is comparable to that of the Scheduled Castes and the Scheduled Tribes. Reservation is a remedial action specially addressed to the ill effects stemming from historical discrimination. To ignore this vital distinction between affirmative action short of reservation and reservation by a predetermined quota as a remedy for past inequities is to ignore the special characteristic of the constitutional grant of

power specially addressed to the constitutionally recognised backwardness.

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319. Reservation should be avoided except in extreme cases of acute backwardness resulting from prior discrimination as in the case of the Scheduled Castes and the Scheduled Tribes and other classes of persons in comparable positions. In all other cases, preferential treatment short of reservation can be adopted. Any such action, though in some respects discriminatory, is permissible on the basis of a legitimate classification rationally related to the attainment of equality in all its aspects.

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323 (16). In the final analysis, poverty which is the ultimate result of inequities and which is the immediate cause and effect of backwardness has to be eradicated not merely by reservation as aforesaid, but by free medical aid, free elementary education, scholarships for higher education and other financial support, free housing, self- employment and settlement schemes, effective implementation of land reforms, strict and impartial operation of the law-enforcing machinery, industrialization, construction of roads, bridges, culverts, canals, markets, introduction of transport, free supply of water, electricity and other ameliorative measures particularly in areas densely populated by backward classes of citizens.

(underlined for emphasis)

66. Following observations in M.R. Balaji v. State of Mysore

(AIR 1963 SC 649) are also relevant:

“In this connection, it is necessary to remember that the reservation made by the impugned order is in regard to admission in the seats of higher education in the State. It is well-known that as a result of the awakening caused by political freedom, all classes of citizens are showing a growing desire to give their children higher university education and so, the Universities are called upon to face the challenge of this growing demand. While it is necessary that the demand for higher education which is thus increasing from year to year must be adequately met and properly channelised, we cannot overlook the fact that in meeting that demand standards of higher education in Universities must not be lowered. The large demand for education may be met by starting larger number of educational institutions vocational schools and polytechnics. But it would be against the national interest to exclude from the portals of our Universities qualified and competent students on the ground that all the seats in the Universities are reserved for weaker elements in society. As has been observed by the University Education Commission, "he indeed must be blind who does not see that mighty as are the political changes, far deeper are the fundamental questions which will be decided by what happens in the universities" (p. 32). Therefore, in considering the question about the propriety of the reservation made by the impugned order, we cannot lose sight of the fact that the reservation is made in respect of higher university education. The demand for technicians, scientists, doctors, economists, engineers and experts for the further economic advancement of the country is so great that it would cause grave prejudice to national interests if considerations of merit are completely excluded by whole-sale reservation of seats in all Technical, Medical or Engineering colleges or institutions of that kind. Therefore, considerations of national interest and the interests of the community or society as a whole cannot be ignored in determining the question as to whether the special provision contemplated by Art. 15(4) can be special provision which excludes the rest of the society altogether. In this connection, it would be relevant to mention that the University Education Commission which considered the problem of the assistance

to backward communities, had observed that the percentage of reservation shall not exceed a third of the total number of seats, and it has added that the principle of reservation may be adopted for a period of ten years. (p. 53).

We have already noticed that the Central Government in its communication to the State has suggested that reservation for backward classes, Scheduled Castes and Scheduled Tribes may be up to 25% with marginal adjustments not exceeding 10% in exceptional cases.

The learned Advocate-General has suggested that reservation of a large number of seats for the weaker sections of the society would not affect either the depth or efficiency of scholarship at all, and in support of this argument, he has relied on the observations made by the Backward Classes Commission that it found no complaint in the States of Madras, Andhra, Travancore-Cochin and Mysore where the system of recruiting candidates from other Backward Classes to the reserve quota has been in vogue for several decades. The Committee further observed that the representatives of the upper classes did not complain about any lack of efficiency in the offices recruited by reservation (p. 135). This opinion, however, is plainly inconsistent with what is bound to be the inevitable consequence of reservation in higher university education. If admission to professional and technical colleges is unduly liberalised it would be idle to contend that the quality of our graduates will not suffer. That is not to say that reservation should not be adopted; reservation should and must be adopted to advance the prospects of the weaker sections of society, but in providing for special measures in that behalf care should be taken not to exclude admission to higher educational centres to deserving and qualified candidates of other communities. A special provision contemplated by Art. 15(4) like reservation of posts and appointments contemplated by Art. 16(4) must be within reasonable limits. The interests of weaker sections of society

which are a first charge on the states and the Centres have to be adjusted with the interests of the community as a whole. The adjustment of these competing claims is undoubtedly a difficult matter, but if under the guise of making a special provision, a State reserves practically all the seats available in all the colleges, that clearly would be subverting the object of Art. 15(4). In this matter again, we are reluctant to say definitely what would be a proper provision to make. Speaking generally and in a broad way, a special provision should be less than 50%; how much less than 50% would depend upon the relevant prevailing circumstances in each case. In this particular case it is remarkable that when the State issued its order on July 10, 1961, it emphatically expressed its opinion that the reservation of 68% recommended by the Nagan Gowda Committee would not be in the larger interests of the State. What happened between July 10, 1961, and July 31, 1962, does not appear on the record. But the State changed its mind and adopted the recommendation of the Committee ignoring its earlier decision that the said recommendation was contrary to the larger interests of the State. In our opinion, when the State makes a special provision for the advancement of the weaker sections of society specified in Art. 15(4) it has to approach its task objectively and in a rational manner. Undoubtedly, it has to take reasonable and even generous steps to help the advancement of weaker elements; the extent of the problem must be weighted, the requirements of the community at large must be borne in mind and a formula must be evolved which would strike a reasonable balance between the several relevant considerations. Therefore, we are satisfied that the reservation of 68% directed by the impugned order is plainly inconsistent with Art. 15(4).

The petitioners contend that having regard to the infirmities in the impugned order, action of the State in issuing the said order amounts to a fraud on the Constitutional power conferred on the State by Art. 15(4). This argument is well- founded, and must be upheld. When it is said about an executive action that it is a fraud on the Constitution, it does

not necessarily mean that the action is actuated by mala fides. An executive action which is patently and plainly outside the limits of the constitutional authority conferred on the State in that behalf is struck down as being ultra vires the State's authority. If, on the other hand, the executive action does not patently or overtly transgress the authority conferred on it by the Constitution, but the transgression is covert or latent, the said action is struck down as being a fraud on the relevant constitutional power. It is in this connection that courts often consider the substance of the matter and not its form and in ascertaining the substance of the matter, the appearance or the cloak, or the veil of the executive action is carefully scrutinized and if it appears that notwithstanding the appearance, the cloak or the veil of the executive action, in substance and in truth the constitutional power has been transgressed, the impugned action is struck down as a fraud on the Constitution. We have already noticed that the impugned order in the present case has categorised the Backward Classes on the sole basis of caste which, in our opinion, is not permitted by Art. 15(4); and we have also held that the reservation of 68% made by the impugned order is plainly inconsistent with the concept of the special provision authorised by Art. 15(4). Therefore, it follows that the impugned order is a fraud on the Constitutional power conferred on the State by Art. 15(4). The learned Advocate- General has made an earnest and strong plea before us that we should not strike down the order, but should strike down only such portions of the order which appear to us to be unconstitutional on the doctrine of severability. He has urged that since 1958, the State has had to make five orders to deal with the problem of advancing the lot of the Backward Classes and the State is anxious that the implementation of the impugned order should not be completely prohibited or stopped. We do not see how it would be possible to sever the invalid provisions of the impugned order. If the categorisation of the Backward Classes is invalid, this Court cannot and would not attempt the task of enumerating the said categories; and if the percentage of reservation is improper and outside Art. 15(4), this Court would not attempt to lay down definitely

and in an inflexible manner as to what would be the proper percentage to reserve. In this connection, it may be relevant to refer to one fact on which the petitioners have strongly relied. It is urged for them that the method adopted by the Government of Maharashtra in exercising its power under Art. 15(4) is a proper method to adopt. It appears that the Maharashtra Government has decided to afford financial assistance, and make monetary grants to students seeking higher education where it is shown that the annual income of their families is below a prescribed minimum. The said scheme is not before us and we are not called upon to express any opinion on it. However, we may observe that if any State adopts such a measure, it may afford relief to and assist the advancement of the Backward Classes in the State, because backwardness, social and educational, is ultimately and primarily due to poverty. An attempt can also be made to start newer and more educational institutions, polytechnics, vocational institutions and even rural Universities and thereby create more opportunities for higher education. This dual attack on the problem posed by the weakness of backward communities can claim to proceed on a rational, broad and scientific approach which is consistent with, and true to, the noble ideal of a secular welfare democratic State set up by the Constitution of this country. Such an approach can be supplemented, if necessary by providing special provision by way of reservation to aid the Backward classes and Scheduled castes and Tribes. It may well be that there may be other ways and means of achieving the same result. In our country where social and economic conditions differ from State to State, it would be idle to expect absolute uniformity of approach; but in taking executive action to implement the policy of Art. 15(4), it is necessary for the States to remember that the policy which is intended to be implemented is the policy which has been declared by Art. 46 and the preamble of the Constitution. It is for the attainment of social and economic justice Art. 15(4) authorises the making of special provisions for the advancement of the communities there contemplated even if such provisions may be inconsistent with the fundamental rights guaranteed under Art. 15 or 29(2). The context,

therefore, requires that the executive action taken by the State must be based on an objective approach, free from all extraneous pressures. The said action is intended to do social and economic justice and must be taken in a manner that justice is and should be done.

Whilst we are dealing with this question, it would be relevant to add to that the provisions of Art. 15(4) are similar to those of Art. 16(4) which fell to be considered in the case of The General Manager, Southern Railway v. Rangachari (1962 (2) SCR 586). In that case, the majority decision of this Court held that the power of reservation which is conferred on the State under Art. 16(4) can be exercised by the State in a proper case not only by providing for reservation of appointments, but also by providing for reservation of selection posts. This conclusion was reached on the basis that it served to give effect to the intention of the Constitution makers to make adequate safeguards for the advancement of Backward Classes and to secure their adequate representation in the Services. The judgment shows that the only point which was raised for the decision of this Court in that case was whether the reservation made was outside Art. 16(4) and that posed the bare question about the construction of Art. 16(4). The propriety, the reasonableness or the wisdom of the impugned order was not questioned because it was not the respondent's case that if the order was justified under Art. 16(4), it was a fraud on the Constitution. Even so, it was pointed out in the judgment that the efficiency of administration is of such a paramount importance that it would be unwise and impermissible to make any reservation at the cost of efficiency of administration; that, it was stated, was undoubtedly the effect of Art. 335. Therefore, what is true in regard to Art. 15(4) is equally true in regard to Art. 16(4). There can be no doubt that the Constitution-makers assumed, as they were entitled to, that while making adequate reservation under Art. 16(4), care would be taken not to provide for unreasonable, excessive or extravagant reservation, for that would, by eliminating general competition in a large

field and by creating wide-spread dissatisfaction amongst the employees, materially affect efficiency. Therefore, like the special provision improperly made under Art. 15(4), reservation made under Art. 16(4) beyond the permissible and legitimate limits would be liable to be challenged as a fraud on the Constitution. In this connection it is necessary to emphasize that Art. 15(4) is an enabling provision; it does not impose an obligation, but merely leaves it to the discretion of the appropriate government to take suitable action, if necessary.”

67. To similar effect is the view expressed in K.C. Vasanth

Kumar’s case (supra) at para 150:

“At this stage it should be made clear that if on a fresh determination some castes or communities have to go out of the list of backward classes prepared for Article 15(4) and Article 16(4) the Government may still pursue the policy of amelioration of weaker sections of the population amongst them in accordance with the directive principle contained in article 46 of the Constitution. There are in all castes and communities poor people who if they are given adequate opportunity and training may be able to compete successfully with persons belonging to richer classes. The Government may provide for them liberal grants of scholarships, free studentship, free boarding and lodging facilities, free uniforms, free mid day meals etc. to make the life of poor students comfortable. The Government may also provide extra tutorial facilities, stationery and books free of costs and library facilities. These and other steps should be taken in the lower classes so that by the time a student appears for the qualifying examination he may be able to attain a high degree of proficiency in his studies.”

It has also been noted as follows:

“I wish to add that the doctrine of protective discrimination embodied in Article 15(4) and 16(4) and the mandate of Article 29(2) cannot be stretched beyond a particular limit. The State exists to serve its people. There are some services where expertise and skill are of the essence. For example, a hospital run by the State serves the ailing members of the public who need medical aid. Medical services directly affect and deal with the health and life of the populace. Profession expertise, born of knowledge and experience, of a high degree of technical knowledge and operation skill is required of pilots and aviation engineers. The lives of citizens depend on such persons. There are other similar fields of governmental activity where professional, technological, scientific or other special skill is called for. In such services or posts under the Union or State, we think where can be no room for reservation of posts; merit alone must be the sole and decisive consideration for appointments.”

(underlined for emphasis)

68. Lengthy arguments have been advanced as to the

seriousness in identifying the backward classes. On the basis

of Indra Sawhney No.1’s judgment, the Government of India

issued orders in respect of reservations of appointments or on

posts under the Government of India in favour of backward

classes of citizens. It was the subject matter of challenge in

Indra Sawhney No.1. In its judgment dated 16.11.1992 this

Court directed the Government to constitute a permanent

body by 15.3.1993 for entertaining and examining and

recommending upon requests made for inclusion or

complaints of over inclusion and under inclusion in the lists of

backward classes of citizens.

69. Constituent Assembly Debates 1951 have also relevance

for adjudicating the controversy. The following portion needs

to be extracted:

70. Parliamentary Standing Committee Report at paras 36,

37 and 46 read as follows:

“36. The committee notes that there is a major limitation on data about the social economic and educational profile of our population in general and about OBCs in particular. The last caste-based census in India was done in 1931. Accordingly there are no periodic data available on the demographic spread of OBCs and their access to amenities. Even the Mandal Commission had used the 1931 Census data. Whatever limited data are available, pertain to surveys conducted by NSSO from 1998-99 onwards, which are only ‘sample surveys’.

37. The Committee found that there exists no accepted mechanism/criteria to group the people into different categories. As a result, existing list of backward

castes/communities are termed in some cases, as inaccurate. Besides, any regular process of review is also not in place. Such a review implies both ‘inclusion’ and ‘exclusion’. The Committee, therefore, emphasizes the need for taking urgent measures/steps for identifying and removing all such lacunae and removing all such lacunae and problems by putting in place scientific and objective mechanism/benchmarks for this purpose.

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46. There have been suggestions/counter-suggestions on the issue of exclusion of the 'creamy layer amongst OBCs in the proposed legislation. On the one hand, it was argued that the concept of creamy layer did not apply in the case of reservation in admission. It was pointed out that the debate on the exclusion of the creamy layer was misplaced as the Supreme Court's observation regarding the exclusion of the creamy layer within the SCs and STs from the purview of reservation was only for public employment and promotion. The other view in this regard was that the inclusion of the creamy layer in reservation would defeat the very purpose of providing reservation to the backward classes. It was also stated that the exclusion of the creamy layer would ensure that the intended benefits of the reservation reach to the really deserving among the backward classes. It was further stated that this in itself would not suffice and should be supplemented by categorization of the backward classes in various groups depending upon their degree of backwardness and apportioning of appropriate percentage of reservation to each group. It was also brought to the committee that similar experiments in States of Andhra Pradesh, Kerala, Karnataka, Tamil Nadu, Maharashtra etc. have, in fact, stood the test of time and yielded the desired results.”

71. One of the petitioners “Youth for Equality” had filed a

representation before the Parliamentary Committee giving

certain important data. Relevant portions read as follows:

“TOP WITHOUT BASE

The condition of infrastructure and staff at the primary and secondary level is of some concern and the government - especially the Ministry for Human Resource and Development which has proposed increased reservations, should work towards improvement in this area for "Real" affirmative action. According to the National Institute of Educational Planning and Administration (in 2003) the state of affairs at the primary level was as under:-

(i) In 62 996 schools in country do not have school

building and are operating in tents or under the trees.

(ii) In 70,739 Primary Schools - No class room.

(iii) In 95,003 primary Schools - Single Class room. (iv) In 8,269 Primary Schools – No teacher

(v) In 1,15,267 Primary schools -Single teacher

(vi) In more than 60,000 schools the pupil : Teacher ratio is greater than 100 :1 while the acceptable ratio is less than 40:1.

(vii) In 84,848 schools – No black board

(viii) In More than 1 00 000 Schools - No electricity.

Apart from the above, according to the NCERT (In 1998), Only 34.6% of Govt. Schools had safe Drinking water, 13.2% had urinal and 4.9% had urinals for girls and only 6.0% had a

lavatory. While the government promises a spending of about 6% of GDP for the development of education, the reality has been to the contrary. The Government spending in the years was as under:

2000-2001 4.1%

2001-2002 4.3%

2002-2004 3.8%

2004-2005 3.5%

72. The National Commission for Backward Classes Act,

1993 (in short ‘Backward Classes Act’) was accordingly

enacted. Few provisions of this Act need to be noted.

73. Section 2 (c) defines lists as follows:

“Lists means lists prepared by the Government of India from time to time for purposes of making provisions for the reservation of appointments or posts in favour of backward classes of citizens which, in the opinion of that Government, are not adequately represented in the services under the Government of India and any local or other authority within the territory of India or under the control of the Government of India”.

74. Important provisions are Sections 9 and 10 which read

as follows:

“9. Functions of the Commission (1) The Commission shall examine requests for inclusion of any class of citizens as a backward class in such lists and hear complaints of over- inclusion or under inclusion of any backward class in such lists and tender such advice to the Central Government as it deems appropriate. (2) The advice of the Commission shall ordinarily be binding upon the Central Government.

10. Powers of the Commission- The Commission shall, while performing its functions under sub- section (1) of Section 9, have all the powers of a civil court trying a suit and in particular, in respect of the following matters, namely:-

(a) summoning and enforcing the attendance of any person from any part of India and examining him on oath;

(b) requiring the discovery and production of any document;

(c) receiving evidence on affidavits;

(d) requisitioning any public record or copy thereof from any court of office;

(e) issuing commissions for the examination of witnesses and documents; and

(f) any other matter which may be prescribed.”

75. A periodic revision of the lists by the Central Government

is a statutory mandate. Petitioners have highlighted that there

is no exclusion and on the other hand there has been

inclusion. On the question of castes enumeration it is

emphasized that 1931 Census was not the basis for

identification of other backward classes. In fact the central

OBC List is not drawn up on the basis of 1931 Census. Each

State has different modalities for identification. Only for the

purpose of quantum the population provides a foundation.

76. It needs no emphasis that if ultimately and indisputably

the constitutional goal is the casteless and classless society,

there has to be more effective implementation of the Backward

Classes Act. The exercise required to be undertaken under

Section 11 of the said Act is not intended to be a routine

exercise and also not an exercise in futility. It has to be not

only effective but also result oriented. The petitioners have

highlighted the lack of seriousness of the Government in

carrying out the exercise. Voluminous datas have been

brought on record in this regard. With reference to the reports

of the Commission, learned counsel for the respondents on the

other hand have stressed on the fact that the Commission has

been working with all sincerity and with the object of

effectively implementing the Backward Classes Act. One

thing needs to be noted here. Concrete data about the number

of backward classes in the country does not appear to be

available. The survey conducted by the National Sample

Survey reveals that the percentage is not 52% as is highlighted

by the respondents.

77. Section 2(g) of the Act is relevant in this regard. It reads

as follows:

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

78. At this juncture, it is to be noted that the Backward

Classes Act in order to be wholly functional mandates

determination by the Central Government of the backward

classes for whom the Statute is intended. Undisputedly, such

determination has not been done. The plea is that for more

than half a century enough attention has not been given for

the benefit of the other backward classes in the matter of

admissions to higher educational institutions. That cannot be

a ground to act with hurry and with un-determined datas. It

may be as rightly contended by learned counsel for the

respondents that the percentage can certainly be not less than

27%. But that is no answer to the important question as to the

identity test. In the background loom the socially and

economically backward class of citizens. Poverty knows no

caste. Poor has no caste. It is an unfortunate class. It is a

matter of common knowledge that the institution of caste is a

peculiarity of Indian institution when there is considerable

controversy amongst the scholars as to how the caste system

originated in this country. Originally, there were four main

castes known as Varnas . But gradually castes and sub-castes

multiplied as the social fabric expanded with the absorption of

different groups of people who belong to various cults and

professing different religious faiths. The caste system in its

earlier stage was quite elastic but in course of time it gradually

hardened into a rigid framework based upon heredity. The

inevitable result was social inequality. At some point of time

occupation was the background for determination of castes.

May be, at some point of time it depended on the income of the

individual. But it appears to have taken disastrous turn with

difference of status of various castes. But passage of time

shows that the occupational label has lost much of its

significance. But at the same time, the poor and down

trodden who belong to the caste of their own were the

founders of poor. In Indra Sawhney No.1 this factor was

noticed.

79. It is said that one must take life in ones stride, let today

embrace the past with remembrance and the future with

longing.

80. Don’t look for the path far away, the path exists under

your feet.

81. What is past and what cannot be prevented should not

be grieved for.

82. With reference to the Office Memorandum which provides

for preference in favour of “poorer sections” over other

members of the backward classes, the expression was held to

be relatable to those who are socially and economically more

backward. The use of the word ‘poorer’ in the context was held

to be a measure of the social backwardness. It is therefore

unmistakenly recognized that economic backwardness is a

factor which can never be lost sight of. There are only two

families in the world; the haves and the have nots said Miquel

De Cervantes Don Qutxote de ta Mancha. Tolstoy has

emphatically said “We will do anything for the poor man

anything but get of his back” (quoted in Huntington

Philanthrophy and Morality).

83. William Cobbett had said “to be poor and independent is

very nearly an impossibility. (See His book ‘Advise to Young

Men’). We cannot turn Nelson’s eye to the poor, those covered

by all encompassing expression “economically backward

classes”.

84. Should this class of people be kept out of the mainstream

of governmental priorities and policies because they belong to

a particular caste? As noted above, the poor have no caste. A

person belonging to a higher caste should not be made to

suffer for what his forefathers had done several generations

back.

85. Franklin D Roosevelt in a speech in 1940 had said “It is

an unfortunate human failing that a full pocket book often

groans more loudly than an empty stomach”. The haves and

the have nots have to co-exist. If the creamy layer has to be

excluded the economically backward classes have to be

included. That would be social balancing and that would be

giving true meaning of the objectives of the Constitution.

Social empowerment cannot be and is certainly not a measure

for only socially and educationally backward classes. It also

has to be for the socially and economically backward classes.

Unless this balance, which is very delicate, is maintained the

system inevitably will develop a crack and this crack may after

a certain point of time be difficult to be joined. Instead of

lightening the society from castes or classes it will be over

burdened and a point of time may come when we shall not be

able to bear the burden any further. Timely steps in this

regard will save the Indian society and democracy from a

catastrophe of collapse because of something which the

Constitution wants to obliterate.

86. On the question of time period for the reservation, it is

submitted that length of the leap to be provided depends

upon the gap to be filled. It is fairly accepted by learned

counsel for the respondents that as and when castes reach a

higher level it is to be excluded from the zone of consideration.

It is further submitted that traditional occupation is being

pursued by persons belonging to some castes and the system

still subsists and has not broken down. In the absence of

alternative occupation which may not be lucrative, the persons

who used to previously carry on the traditional occupation

find it difficult to take up any other occupation.

87. It has been averred that consequent to several efforts,

India has made enormous progress in terms of increase in

institutions, teachers and students in elementary education.

But despite all the efforts large population of the children in

the country still remain out of school.

88. One of the contentions is that by passage of time

prolonged reservation becomes illicit. In Motor General

Traders and Anr. v. State of Andhra Pradesh and Ors. (1984

(1) SCC 222) following observations were made:

“16. What may be unobjectionable as a transitional or temporary measure at an initial stage can still become discriminatory and hence violative of Article 14 of the Constitution if it is persisted in over a long period without any justification. The trend of decisions of this Court on the above question may be traced thus. In Bhaiyalal Shukla v. State of Madhya Pradesh [1962] Supp. 2 S.C.R. 257 one of the contentions urged was that the levy of sales tax in the area which was formerly known as Vindhya Pradesh (a Part 'C' State) on building materials used in a works contract was discriminatory after the merger of that area in the new State of Madhya Pradesh which was formed on November 1,1956 under the States Reorganisation Act, 1956 as the sale of building materials in a works contract was not subject to any levy of sales tax in another part of the same new State namely the area which was formerly part of the area known as State of Madhya Pradesh (the Central Provinces and Berar area). That contention was rejected by this Court with the following observations at pages 274-275 :

The laws in different portions of the new State of Madhya Pradesh were enacted by different Legislatures, and under

Section 119 of the States Reorganisation Act all laws inforce are to continue until repealed or altered by the appropriate Legislature. We have already held that the sales tax law in Vindhya Pradesh was validly enacted, and it brought its validity with it under Section 119 of the States Reorganisation Act, when it became a part of the State of Madhya Pradesh. Thereafter, the different laws in different parts of Madhya Pradesh can be sustained on the ground that the differentiation arises from historical reasons, and a geographical classification based on historical reasons has been upheld by this Court in M.K. Prithi Rajji v. The State of Rajasthan (Civil Appeal No. 327 of 1956 decided on November 2, 1960) and again in The State of Madhya Pradesh v. The Gwalior Sugar Co. Ltd. (Civil Appeals Nos. 98 and 99 of 1957 decided on November 30, 1960). The latter case is important, because the sugarcane cess levied in the former Gwalior State but not in the rest of Madhya Bharat of which it formed a part, was challenged on the same ground as here, but was upheld as not affected by Article14. We, therefore, reject this argument.

89. In N.M. Thomas’s case (supra) the parameters of various

clauses of Article 16 were highlighted as follows:

“37. The rule of equality within Articles 14 and 16(1) will not be violated by a rule which will ensure equality of representation in the services for unrepresented classes after satisfying the basic needs of efficiency of administration. Article 16(2) rules out some basis of classification including race, caste, descent, place of birth etc. Article 16(4) clarifies and explains that classification on the basis of backwardness does not fall within Article 16(2) and is legitimate for the purposes of Article 16(1). If preference shall be given to a particular under-represented community other than a backward class or under-represented State in an All India Service such a rule will contravene Article 16(2). A similar rule

giving preference to an under-represented backward community is valid and will not contravene Articles 14, 16(1) and 16(2). Article 16(4) removes any doubt in this respect.

xx xx xx

44. Our Constitution aims at equality of status and opportunity for all citizens including those who are socially, economically and educationally backward. The claims of members of backward classes require adequate representation in legislative and executive bodies. If members of Scheduled Castes and Tribes, who are said by this Court to be backward classes, can maintain minimum necessary requirement of administrative efficiency, not only representation but also preference may be given to them to enforce equality and to eliminate inequality. Articles 15(4) and 16(4) bring out the position of backward classes to merit equality. Special provisions are made for the advancement of backward classes and reservations of appointments and posts for them to secure adequate representation. These provisions will bring out the content of equality guaranteed by Articles 14, 15(1) and 16(1). The basic concept of equality is equality of opportunity for appointment. Preferential treatment for members of backward classes with due regard to administrative efficiency alone can mean equality of opportunity for all citizens. Equality under Article 16 could not have a different content from equality under Article 14. Equality of opportunity for unequals can only mean aggravation of inequality. Equality of opportunity admits discrimination with reason and prohibits discrimination without reason. Discrimination with reasons means rational classification for differential treatment having nexus to the Constitutionally permissible object. Preferential representation for the backward classes in services with due regard to administrative efficiency is permissible object and backward classes are a rational classification recognised by our Constitution. Therefore, differential treatment in standards of selection is within the concept of equality.

xx xx xx

56. If we are all to be treated in the same manner, this must carry with it the important requirement that none of us should be better or worse in upbringing, education, than any one else which is an unattainable ideal for human beings of anything like the sort we now see. Some people maintain that the concept of equality of opportunity is an unsatisfactory concept For, a complete formulation of it renders it incompatible with any form of human society. Take for instance, the case of equality of opportunity for education. This equality cannot start in schools and hence requires uniform treatment in families which is an evident impossibility. To remedy this, all children might be brought up in state nurseries, but, to achieve the purpose, the nurseries would have to be run on vigorously uniform lines. Could we guarantee equality of opportunity to the young even in those circumstances? The idea is well expressed by Laski:

‘Equality means, in the second place, that adequate opportunities are laid open to all. By adequate opportunities we cannot imply equal opportunities in a sense that implies identity of original chance. The native endowments of men are by no means equal. Children who are brought up in an atmosphere where things of the mind are accounted highly are bound to start the race of life with advantages no legislation can secure. Parental character will inevitably affect profoundly the equality of the children whom it touches. So long, therefore, as the family endures - and there seems little reason to anticipate or to desire its disappearance - the varying environments it will create make the notion of equal opportunities a fantastic one’.

xx xx xx

60. Bernard A.O. Williams, in his article 'The Idea of Equality" (supra) gives an illustration of the working of the principle of equality of opportunity:

‘Suppose that in a certain society great prestige is attached to membership of a warrior class, the duties of which require great physical strength. This class has in the past been recruited from certain wealthy families only, but egalitarian reformers achieve a change in the rules, by which warriors are recruited from all sections of the society, on the result of a suitable competition. The effect of this, however, is that the wealthy families still provide virtually all the warriors, because the rest of the populace is so undernourished by reason of poverty that their physical strength is inferior to that of the wealthy and well nourished. The reformers protest that equality of opportunity has not really been achieved; the wealthy reply that in fact it has, and that the poor now have the opportunity of becoming warriors - it is just bad luck that their characteristics are such that they do not pass the test- "We are not", they might say, "excluding anyone for being poor; we exclude people for being weak, and it is unfortunate that those who are poor are also weak’.

xx xx xx

67. Today, the political theory which acknowledges the obligation of government under Part IV of the Constitution to provide jobs, medical care, old age pension, etc., extends to human rights and imposes an affirmative obligation to promote equality and liberty. The force of the idea of a state with obligation to help the weaker sections of its members seems to have increasing influence in Constitutional law. The idea finds expression in a number of cases in America involving social discrimination and also in the decisions requiring the state to offset the effects of poverty by providing counsel, transcript of appeal, expert witnesses, etc. Today, the sense that government has affirmative responsibility for elimination of inequalities, social, economic or otherwise, is one of the dominant forces in Constitutional law. While special

concessions for the under-privileged have been easily permitted, they have not traditionally been required. Decisions in the areas of criminal procedure, voting rights and education in America suggest that the traditional approach may not be completely adequate. In these areas, the inquiry whether equality has been achieved no longer ends with numerical equality; rather the equality clause has been held to require resort to a standard of proportional equality which requires the state, in framing legislation, to take into account the private inequalities of wealth, of education and other circumstances.

xx xx xx

89. The ultimate reason for the demand of equality for the members of backward classes is a moral perspective which affirms the intrinsic value of all human beings and calls for a society which provides these conditions of life which men need for development of their varying capacities. It is an assertion of human equality in the sense that it manifests an equal concern for the well being of all men. On the one hand it involves a demand for the removal of those obstacles and impediments which stand in the way of the development of human capacities, that is, it is a call for the abolition of unjustifiable inequalities. On the other hand, the demand itself gets its sense and moral driving force from the recognition that "the poorest he that is in England hath a life to live, as the greatest he".

90. `Equality' and `excellence' are two conflicting claims

difficult to be reconciled. The Constitution, in order to ensure

true equality provides for special treatment to socially and

educationally backward classes of citizens which is obviously

desirable for providing social justice, though at the cost of

merit. However, the Constitution does not provide at all for

‘institutional reservation.' Therefore, it's constitutionality is to

be judged on the touchstone of Article 14. A large number of

cases cropped up in this area concerning the institutional

preference for admission into postgraduate medical education

and super specialties. The judiciary came forward and laid

down detailed principles covering the need of such preference

and to limit the extent of such reservation in view of the

importance of merit in the context of national interest and

international importance of universal excellence in super

specialties.

91. It is to be noted that the foundation for fixing 27%

appears to be the view that 52% of the population belong to

OBC. There is no supportable data for this proposition. In fact,

different Commissions at different points of time have different

figures. It is the stand of the respondents that no Commission

has fixed the percentage below 52% and, therefore, there is

nothing wrong in fixing the percentage at 27%. This is not the

correct approach. It may be that in no case the percentage of

persons belonging to OBC is less than 27% but supposing in a

given case considering the fact that the actual percentage is

40% a figure less than 27% should have been fixed. The

Commission set out pursuant to the directions of this Court

seems to have somewhat acted on the petitions filed by the

people claiming exclusion or inclusion. That was not the real

purpose of this Court’s decision to direct appointment of

Commission. The very purpose was to identify the classes.

This was the exercise which was to be undertaken apart from

considering the applications for inclusion or exclusion as the

case may be. As has been conceded at the beginning of the

case affirmative action is not under challenge. Affirmative

action is nothing but a crucial component of social justice in

the constitutional dispensation but at the same time it has to

be kept in view that the same does not infringe the principles

of equality of which it is a part and/or unreasonably restraint

or restrict other fundamental freedoms and that it does not

violate the basic structure of the Constitution.

92. It needs no emphasis that Articles 15(4), 15(5) and 16(4)

have to comply with the requirements of Article 14 and the

discipline imposed in several other provisions like Articles

15(4)(a) and 15(4)(b), though, they form a part of the equality

concept, each of which is so found in our Constitution.

93. It is a well settled principle in law that the Court cannot

read anything into a statutory provision which is plain and

unambiguous. A statute is an edict of the Legislature. The

language employed in a statute is the determinative factor of

legislative intent.

94. Words and phrases are symbols that stimulate mental

references to referents. The object of interpreting a statute is

to ascertain the intention of the Legislature enacting it. (See

Institute of Chartered Accountants of India v. M/s Price

Waterhouse and Anr. (AIR 1998 SC 74). The intention of the

Legislature is primarily to be gathered from the language used,

which means that attention should be paid to what has been

said as also to what has not been said. As a consequence, a

construction which requires for its support, addition or

substitution of words or which results in rejection of words as

meaningless has to be avoided. As observed in Crawford v.

Spooner (1846 (6) Moore PC 1 ), Courts, cannot aid the

Legislatures’ defective phrasing of an Act, we cannot add or

mend, and by construction make up deficiencies which are left

there. (See The State of Gujarat and Ors. v. Dilipbhai

Nathjibhai Patel and Anr. (JT 1998 (2) SC 253). It is contrary

to all rules of construction to read words into an Act unless it

is absolutely necessary to do so. (See Stock v. Frank Jones

(Tiptan) Ltd. (1978 1 All ER 948 (HL). Rules of interpretation

do not permit Courts to do so, unless the provision as it

stands is meaningless or of doubtful meaning. Courts are not

entitled to read words into an Act of Parliament unless clear

reason for it is to be found within the four corners of the Act

itself. (Per Lord Loreburn L.C. in Vickers Sons and Maxim Ltd.

v. Evans (1910) AC 445 (HL), quoted in Jamma Masjid,

Mercara v. Kodimaniandra Deviah and Ors.(AIR 1962 SC 847).

95. The question is not what may be supposed and has been

intended but what has been said. “Statutes should be

construed not as theorems of Euclid”. Judge Learned Hand

said, “but words must be construed with some imagination of

the purposes which lie behind them”. (See Lenigh Valley Coal

Co. v. Yensavage 218 FR 547). The view was re-iterated in

Union of India and Ors. v. Filip Tiago De Gama of Vedem

Vasco De Gama (AIR 1990 SC 981).

96. In D.R. Venkatchalam and Ors. etc. v. Dy. Transport

Commissioner and Ors. etc. (AIR 1977 SC 842), it was

observed that Courts must avoid the danger of a priori

determination of the meaning of a provision based on their

own pre-conceived notions of ideological structure or scheme

into which the provision to be interpreted is somewhat fitted.

They are not entitled to usurp legislative function under the

disguise of interpretation.

97. While interpreting a provision the Court only interprets

the law and cannot legislate it. If a provision of law is misused

and subjected to the abuse of process of law, it is for the

legislature to amend, modify or repeal it, if deemed necessary.

(See Commissioner of Sales Tax, M.P. v. Popular Trading

Company, Ujjain (2000 (5) SCC 511). The legislative casus

omissus cannot be supplied by judicial interpretative process.

98. Two principles of construction – one relating to casus

omissus and the other in regard to reading the statute as a

whole – appear to be well settled. Under the first principle a

casus omissus cannot be supplied by the Court except in the

case of clear necessity and when reason for it is found in the

four corners of the statute itself but at the same time a casus

omissus should not be readily inferred and for that purpose all

the parts of a statute or section must be construed together

and every clause of a section should be construed with

reference to the context and other clauses thereof so that the

construction to be put on a particular provision makes a

consistent enactment of the whole statute. This would be more

so if literal construction of a particular clause leads to

manifestly absurd or anomalous results which could not have

been intended by the Legislature. “An intention to produce an

unreasonable result”, said Danackwerts, L.J. in Artemiou v.

Procopiou (1966 1 QB 878), “is not to be imputed to a statute

if there is some other construction available”. Where to apply

words literally would “defeat the obvious intention of the

legislature and produce a wholly unreasonable result” we

must “do some violence to the words” and so achieve that

obvious intention and produce a rational construction. (Per

Lord Reid in Luke v. IRC (1963 AC 557) where at p. 577 he

also observed: “this is not a new problem, though our

standard of drafting is such that it rarely emerges”.

99. It is then true that, “when the words of a law extend not

to an inconvenience rarely happening, but due to those which

often happen, it is good reason not to strain the words further

than they reach, by saying it is casus omissus, and that the

law intended quae frequentius accidunt.” “But,” on the other

hand, “it is no reason, when the words of a law do enough

extend to an inconvenience seldom happening, that they

should not extend to it as well as if it happened more

frequently, because it happens but seldom” (See Fenton v.

Hampton (1858) XI Moore, P.C. 347). A casus omissus ought

not to be created by interpretation, save in some case of strong

necessity. Where, however, a casus omissus does really occur,

either through the inadvertence of the legislature, or on the

principle quod semel aut bis existit praeterunt legislatores

(legislators says pass over that which happens only once or

twice), the rule is that the particular case, thus left unprovided

for, must be disposed of according to the law as it existed

before such statute - Casus omissus et oblivioni datus

dispositioni communis juris relinquitur; “a casus omissus,”

observed Buller, J. in Jones v. Smart (1 T.R. 52), “can in no

case be supplied by a court of law, for that would be to make

laws.”

100. The golden rule for construing wills, statutes, and, in

fact, all written instruments has been thus stated: “The

grammatical and ordinary sense of the words is to be adhered

to unless that would lead to some absurdity or some

repugnance or inconsistency with the rest of the instrument,

in which case the grammatical and ordinary sense of the

words may be modified, so as to avoid that absurdity and

inconsistency, but no further” (See Grey v. Pearson (1857 (6)

H.L. Cas. 61). The latter part of this “golden rule” must,

however, be applied with much caution. “if,” remarked Jervis,

C.J., “the precise words used are plain and unambiguous in

our judgment, we are bound to construe them in their

ordinary sense, even though it lead, in our view of the case, to

an absurdity or manifest injustice. Words may be modified or

varied where their import is doubtful or obscure. But we

assume the functions of legislators when we depart from the

ordinary meaning of the precise words used, merely because

we see, or fancy we see, an absurdity or manifest injustice

from an adherence to their literal meaning” (See Abley v. Dale

11, C.B. 378).

101. Classifications on the basis of castes in the long run has

tendency of inherently becoming pernicious. Therefore, the

test of reasonableness has to apply. When the object is

elimination of castes and not perpetuation to achieve the goal

of casteless society and a society free from discrimination of

castes judicial review within the permissible limits is not ruled

out. But at the same time compelling State interest can be

considered while assessing backwardness. The impact of

poverty on backwardness cannot be lost sight of. Economic

liberation and freedom are also important. In Nagaraj’s case

(supra) it was inter alia observed as follows:

“44. The above three concepts are independent variable concepts. The application of these concepts in public employment depends upon quantifiable data in each case. Equality in law is different from equality in fact. When we construe Article 16(4), it is equality in fact which plays the dominant role. Backward Classes seek justice. General class in public employment seeks equity. The difficulty comes in when the third variable comes in, namely, efficiency in service. In the issue of reservation, we are being asked to find a stable equilibrium between justice to the backwards, equity for the forwards and efficiency for the entire system. Equity and justice in the above context are hard concepts. However, if you add efficiency to equity and justice, the problem arises in the context of the reservation. This problem has to be examined, therefore, on the facts of each case. Therefore, Article 16(4) has to be construed in the light of Article 335 of the Constitution. Inadequacy in representation and backwardness of the Scheduled Castes and Scheduled Tribes are circumstances which enable the State Government to act under Article 16(4) of the Constitution. However, as held by this Court the limitations on the discretion of the Government

in the matter of reservation under Article 16(4) as well as Article 16(4-A) come in the form of Article 335 of the Constitution.

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46. The point which we are emphasising is that ultimately the present controversy is regarding the exercise of the power by the State Government depending upon the fact situation in each case. Therefore, “vesting of the power” by an enabling provision may be constitutionally valid and yet “exercise of the power” by the State in a given case may be arbitrary, particularly, if the State fails to identify and measure backwardness and inadequacy keeping in mind the efficiency of service as required under Article 335.

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48. It is the equality “in fact” which has to be decided looking at the ground reality. Balancing comes in where the question concerns the extent of reservation. If the extent of reservation goes beyond cut-off point then it results in reverse discrimination. Anti-discrimination legislation has a tendency of pushing towards de facto reservation. Therefore, a numerical benchmark is the surest immunity against charges of discrimination.

49. Reservation is necessary for transcending caste and not for perpetuating it. Reservation has to be used in a limited sense otherwise it will perpetuate casteism in the country. Reservation is underwritten by a special justification. Equality in Article 16(1) is individual-specific whereas reservation in Article 16(4) and Article 16(4-A) is enabling. The discretion of

the State is, however, subject to the existence of “backwardness” and “inadequacy of representation” in public employment. Backwardness has to be based on objective factors whereas inadequacy has to factually exist. This is where judicial review comes in. However, whether reservation in a given case is desirable or not, as a policy, is not for us to decide as long as the parameters mentioned in Articles 16(4) and 16(4-A) are maintained. As stated above, equity, justice and merit (Article 335)/efficiency are variables which can only be identified and measured by the State. Therefore, in each case, a contextual case has to be made out depending upon different circumstances which may exist State-wise.

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102. In the matter of application of the principle of basic structure, twin tests have to be satisfied, namely, the “width test” and the test of “identity”. As stated hereinabove, the concept of the “catch-up” rule and “consequential seniority” are not constitutional requirements. They are not implicit in clauses (1) and (4) of Article 16. They are not constitutional limitations. They are concepts derived from service jurisprudence. They are not constitutional principles. They are not axioms like, secularism, federalism, etc. Obliteration of these concepts or insertion of these concepts does not change the equality code indicated by Articles 14, 15 and 16 of the Constitution. Clause (1) of Article 16 cannot prevent the State from taking cognizance of the compelling interests of Backward Classes in the society. Clauses (1) and (4) of Article 16 are restatements of the principle of equality under Article 14. Clause (4) of Article 16 refers to affirmative action by way of reservation. Clause (4) of Article 16, however, states that the appropriate Government is free to provide for reservation in cases where it is satisfied on the basis of quantifiable data

that Backward Class is inadequately represented in the services. Therefore, in every case where the State decides to provide for reservation there must exist two circumstances, namely, “backwardness” and “inadequacy of representation”. As stated above, equity, justice and efficiency are variable factors. These factors are context-specific. There is no fixed yardstick to identify and measure these three factors, it will depend on the facts and circumstances of each case. These are the limitations on the mode of the exercise of power by the State. None of these limitations have been removed by the impugned amendments. If the State concerned fails to identify and measure backwardness, inadequacy and overall administrative efficiency then in that event the provision for reservation would be invalid. These amendments do not alter the structure of Articles 14, 15 and 16 (equity code). The parameters mentioned in Article 16(4) are retained. Clause (4- A) is derived from clause (4) of Article 16. Clause (4-A) is confined to SCs and STs alone. Therefore, the present case does not change the identity of the Constitution. The word “amendment” connotes change. The question is—whether the impugned amendments discard the original Constitution. It was vehemently urged on behalf of the petitioners that the Statement of Objects and Reasons indicates that the impugned amendments have been promulgated by Parliament to overrule the decisions of this Court. We do not find any merit in this argument. Under Article 141 of the Constitution the pronouncement of this Court is the law of the land. The judgments of this Court in Virpal Singh, Ajit Singh (I), Ajit Singh (II) and Indra Sawhney were judgments delivered by this Court which enunciated the law of the land. It is that law which is sought to be changed by the impugned constitutional amendments. The impugned constitutional amendments are enabling in nature. They leave it to the States to provide for reservation. It is well settled that Parliament while enacting a law does not provide content to the “right”. The content is provided by the judgments of the Supreme Court. If the appropriate Government enacts a law providing for reservation without keeping in mind the parameters in Article 16(4) and Article 335 then this Court will certainly set aside and strike

down such legislation. Applying the “width test”, we do not find obliteration of any of the constitutional limitations. Applying the test of “identity”, we do not find any alteration in the existing structure of the equality code. As stated above, none of the axioms like secularism, federalism, etc. which are overarching principles have been violated by the impugned constitutional amendments. Equality has two facets— “formal equality” and “proportional equality”. Proportional equality is equality “in fact” whereas formal equality is equality “in law”. Formal equality exists in the rule of law. In the case of proportional equality the State is expected to take affirmative steps in favour of disadvantaged sections of the society within the framework of liberal democracy. Egalitarian equality is proportional equality.

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107. It is important to bear in mind the nature of constitutional amendments. They are curative by nature. Article 16(4) provides for reservation for Backward Classes in cases of inadequate representation in public employment. Article 16(4) is enacted as a remedy for the past historical discriminations against a social class. The object in enacting the enabling provisions like Articles 16(4), 16(4-A) and 16(4-B) is that the State is empowered to identify and recognise the compelling interests. If the State has quantifiable data to show backwardness and inadequacy then the State can make reservations in promotions keeping in mind maintenance of efficiency which is held to be a constitutional limitation on the discretion of the State in making reservation as indicated by Article 335. As stated above, the concepts of efficiency, backwardness, inadequacy of representation are required to be identified and measured. That exercise depends on availability of data. That exercise depends on numerous factors. It is for this reason that enabling provisions are required to be made because each competing claim seeks to achieve certain goals. How best one should optimise these

conflicting claims can only be done by the administration in the context of local prevailing conditions in public employment. This is amply demonstrated by the various decisions of this Court discussed hereinabove. Therefore, there is a basic difference between “equality in law” and “equality in fact” (see Affirmative Action by William Darity). If Articles 16(4- A) and 16(4-B) flow from Article 16(4) and if Article 16(4) is an enabling provision then Articles 16(4-A) and 16(4-B) are also enabling provisions. As long as the boundaries mentioned in Article 16(4), namely, backwardness, inadequacy and efficiency of administration are retained in Articles 16(4-A) and 16(4-B) as controlling factors, we cannot attribute constitutional invalidity to these enabling provisions. However, when the State fails to identify and implement the controlling factors then excessiveness comes in, which is to be decided on the facts of each case. In a given case, where excessiveness results in reverse discrimination, this Court has to examine individual cases and decide the matter in accordance with law. This is the theory of “guided power”. We may once again repeat that equality is not violated by mere conferment of power but it is breached by arbitrary exercise of the power conferred”.

102. In Minerva Mills Ltd. v. Union of India (1980) 3 SCC

625) it was observed as follows:

“57. This is not mere semantics. The edifice of our Constitution is built upon the concepts crystallised in the preamble. We resolved to constitute ourselves into a Socialist State which carried with it the obligation to secure to our people justice — social, economic and political. We, therefore, put Part IV into our Constitution containing directive principles of State policy which specify the socialistic goal to

be achieved. We promised to our people a democratic polity which carries with it the obligation of securing to the people liberty of thought, expression, belief, faith and worship; equality of status and of opportunity and the assurance that the dignity of the individual will at all costs be preserved. We, therefore, put Part III in our Constitution conferring those rights on the people. Those rights are not an end in themselves but are the means to an end. The end is specified in Part IV. Therefore, the rights conferred by Part III are subject to reasonable restrictions and the Constitution provides that enforcement of some of them may, in stated uncommon circumstances, be suspended. But just as the rights conferred by Part III would be without a radar and a compass if they were not geared to an ideal, in the same manner the attainment of the ideals set out in Part IV would become a pretence for tyranny if the price to be paid for achieving that ideal is human freedoms. One of the faiths of our founding fathers was the purity of means. Indeed, under our law, even a dacoit who has committed a murder cannot be put to death in the exercise of right of self-defence after he has made good his escape. So great is the insistence of civilised laws on the purity of means. The goals set out in Part IV have, therefore, to be achieved without the abrogation of the means provided for by Part III. It is in this sense that Parts III and IV together constitute the core of our Constitution and, combine to form its conscience. Anything that destroys the balance between the two parts will ipso facto destroy an essential element of the basic structure of our Constitution”.

103. The view was affirmed in T.M.A. Pai Foundation and Ors.

v. State of Karnataka and Ors. (2002 (8) SCC 481)

104. It has been highlighted that Articles 15(4) and 15(5) are

irreconcilable. It is pointed out that Article 30 is not intended

to pamper any class of people, but is intended to assure

minorities regarding the right to establish. In that sense,

Article 19(1)(g) is applicable. The said right is an inalienable

and sacrosanct right. According to Mr. Venugopal, Article

15(5) carved out an area from Article 15(4). Article 29(2) has to

be read into Article 15(5) as Articles 15(4) and 15(5) operated

side by side. As a result of Article 15(5) by special provision

minorities unaided rights are excluded. Article 30 does not

relate to any special right for protection against majority and it

cannot be termed to be any higher right and, therefore, Article

19(1)(g) restriction is not there. The object is not to create

inequality.

105. It is pointed out that both Articles 15(4) and 15(5) begin

with non obstante provision. Article 15(5) is a later

introduction. It is stated that Article 15(1) has to prevail over

Article 15(4) and the right given to certain class of people in

Article 15(4) gets eliminated because of Article 15(5).

106. Provisions of the Constitution have to be read

harmoniously and no part can be treated to be redundant. In

our considered view both the provisions operate in different

areas though there may be some amount of overlapping but

that does not in any way lead to the conclusion that Article

15(5) takes away what is provided in Article 15(4).

107. A construction which reduces the statute to a

futility has to be avoided. A statute or any enacting provision

therein must be so construed as to make it effective and

operative on the principle expressed in the maxim ut res magis

valeat quam pereat i.e. a liberal construction should be put

upon written instruments, so as to uphold them, if possible,

and carry into effect the intention of the parties. [See Broom’s

Legal Maxims (10th Edn.), p. 361, Craies on Statutes (7th

Edn.), p. 95 and Maxwell on Statutes (11th Edn.).

108. A statute is designed to be workable and the

interpretation thereof by a court should be to secure that

object unless crucial omission or clear direction makes that

end unattainable. (See Whitney v. IRC (1926 AC 37) at p. 52

referred to in CIT v. S. Teja Singh (AIR 1959 SC 352) and

Gursahai Saigal v. CIT (AIR 1963 SC 1062).

109. The courts will have to reject that construction

which will defeat the plain intention of the legislature even

though there may be some inexactitude in the language used.

(See Salmon v. Duncombe (1886) 11AC 627 at p.634, Curtis v.

Stovin (1889) 22 QBD 513) referred to in S. Teja Singh case .)

110. If the choice is between two interpretations, the

narrower of which would fail to achieve the manifest purpose

of the legislation, we should avoid a construction which would

reduce the legislation to futility, and should rather accept the

bolder construction, based on the view that Parliament would

legislate only for the purpose of bringing about an effective

result. (See Nokes v. Doncaster Amalgamated Collieries (1940

(3) All ER 549) referred to in Pye v. Minister for Lands for NSW

(1954) 3 All ER 514. The principles indicated in the said cases

were reiterated by this Court in Mohan Kumar Singhania v.

Union of India (1992 Supp (1) SCC 594).

111. The statute must be read as a whole and one

provision of the Act should be construed with reference to

other provisions in the same Act so as to make a consistent

enactment of the whole statute.

112. The court must ascertain the intention of the

legislature by directing its attention not merely to the clauses

to be construed but to the entire statute; it must compare the

clause with other parts of the law and the setting in which the

clause to be interpreted occurs. (See R.S. Raghunath v. State

of Karnataka (1992) 1 SCC 335) Such a construction has the

merit of avoiding any inconsistency or repugnancy either

within a section or between two different sections or provisions

of the same statute. It is the duty of the court to avoid a head-

on clash between two sections of the same Act. (See Sultana

Begum v. Prem Chand Jain 1997 (1) SCC 373.)

113. Whenever it is possible to do so, it must be done to

construe the provisions which appear to conflict so that they

harmonise. It should not be lightly assumed that Parliament

had given with one hand what it took away with the other.

114. The provisions of one section of the statute cannot be

used to defeat those of another unless it is impossible to effect

reconciliation between them. Thus a construction that reduces

one of the provisions to a “useless lumber” or “dead letter” is

not a harmonized construction. To harmonise is not to

destroy.

115. The Constitution of India is not intended to be

static. It is by its very nature dynamic. It is a living and

organic thing. It is an instrument which has greatest value to

be construed. “Ut Res Valeat Potius Quam Pereat” (the

construction should be preferred which makes the machinery

workable). Our Constitution reflects the beliefs and political

aspirations of those who had framed it. It is therefore desirable

that while considering the question as to whether 27% fixed

for the other backward classes to be maintained without

definite data the rights of those who belong to the unfortunate

categories of other economic backward classes deserve to be

concerned, else there shall be no definite determination of

number of other backward classes. While fixing the measure

for creamy layer it would not be difficult also to fix the norms

for the socially and economically backward classes rather the

latter exercise would be easier to undertake.

116. In Indra Sawhney’s No.1 the desirability of excluding

some posts from the zone of reservation was highlighted. It

was also emphasized that periodic review of policy of

reservation was imperative. It was inter-alia observed as

follows:

“838. While on Article 335, we are of the opinion that there are certain services and positions where either on account of the nature of duties attached to them or the level (in the hierarchy) at which they obtain, merit as explained hereinabove, alone counts. In such situations, it may not be advisable to provide for reservations. For example technical

posts in research and development organizations/departments/institutions, in specialties and super-specialties in medicine, Engineering and other such courses in physical sciences and mathematics in defence services and in the establishment connected therewith. Similarly, in the case of posts at the higher echelons e.g. Professors (in Education), Pilots in Indian Airlines and Air India, Scientists and Technicians in Nuclear and Space application, provision for reservation would not be advisable.

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840. We may point out that the services/posts enumerated above, on account of their nature and duties attached, are such as call for highest level of intelligence, skill and excellence. Some of them are second level and third level posts in the ascending order. Hence, they form a category apart. Reservation therein may not be consistent with “efficiency of administration” contemplated by Article 335.

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859. “We may summarise our answers to the various questions dealt with and answered hereinabove;

(1) (a) It is not necessary that the ‘provision’ under Article 16(4) should necessarily be made by the Parliament/Legislature. Such a provision can be made by the Executive also. Local bodies, statutory Corporations and other instrumentalities of the State falling under Article 12 of the Constitution are themselves competent to make such a provision, if so advised.

(b) An executive order making a provision under Article 16(4) is enforceable the moment it is made and issued.

(2) (a) Clause (4) of Article 16 is not an exception to clause (1). It is an instance and an illustration of the classification inherent in clause (1).

(b) Article 16(4) is exhaustive of the subject of reservation in favour of backward class of citizens, as explained in this judgment.

(c) Reservations can also be provided under clause (1) of Article 16. It is not confined to extending of preferences, concessions or exemptions alone. These reservations, if any, made under clause (1) have to be so adjusted and implemented as not to exceed the level of representation prescribed for ‘backward class of citizens’ – as explained in this judgment.

3. (a) A caste can be and quite often is a social class in India. If it is backward socially, it would be a backward class for the purposes of Article 16(4). Among non-Hindus, there are several occupational groups, sets and denominations, which for historical reasons are socially backward. They too represent backward, social collectivities for the purposes of Article 16(4).

(b) Neither the Constitution nor the law prescribes the procedure or method of identification of backward classes. Nor is it possible or advisable for the court to lay down any such procedure or method. It must be left to the authority appointed to identify. It can adopt such method/procedure as it thinks convenient and so long as its survey covers the entire populace, no objection can be taken to it. Identification of the

backward classes can certainly be done with reference to castes among, and alongwith, other occupational groups, classes and sections of people. One can start the process either with occupational groups or with castes or with some other groups. Thus one can start the process with castes, wherever they are found, apply the criteria (evolved for determining backwardness) and find out whether it satisfy the criteria. If it does-what emerges is a “backward class of citizens” within the meaning of and for the purposes of Article 16(4). Similar process can be adopted in the case of other occupational groups, communities and classes so as to cover the entire populace. The central idea and overall objective should be to consider all available groups, sections and classes in society. Since caste represents an existing, identifiable social group/class encompassing an overwhelming minority of the country’s population, one can well begin with it and then go to other groups, sections and classes.

(c) It is not correct to say that the backward class of citizens contemplated in Article 16(4) is the same as the socially and educationally backward classes referred to in Article 15(4). It is much wider. The accent in Article 16(4) is on social backwardness. Of course, social, educational and economic backwardness are closely inter-twined in the Indian context.

(d) ‘Creamy layer’ can be, and must be excluded.

(e) It is not necessary for a class to be designated as a backward class that it is situated similarly to the Scheduled Castes/Scheduled Tribes.

f) The adequacy of representation of a particular class in the services under the State is a matter within the subjective satisfaction of the appropriate Government. The judicial scrutiny in that behalf is the same as in other matters within the subjective satisfaction of an authority.

(4) (a) A backward class of citizens cannot be identified only and exclusively with reference to economic criteria.

(b) It is, of course, permissible for the Government or other authority to identify a backward class of citizens on the basis of occupation cum income, without reference to caste, if it is so advised.

5. There is no constitutional bar to classify the backward classes of citizens into backward and more backward categories.

6. (a) and (b) The reservations contemplated in clause (4) of Article 16 should not exceed 50%. While 50% shall be the rule, it is necessary not to put out of consideration certain extra ordinary situation inherent in the great diversity of this country and the people.

117. In Vasanth Kumar’s case (supra) at para 2(4), it was

observed as follows:

“2(4). The policy of reservations in employment, education and legislative institutions should be reviewed every five years or so. That will at once afford an opportunity (i) to the State to rectify distortions arising out of particular facets of the reservation policy and (ii) to the people, both backward and non-backward, to ventilate their views in a public debate on the practical impact of the policy of reservations.”

118. In State of A.P. & Anr. v. P. Sagar (1968 (3) SCR 595)

at para 15, it was observed as follows:

“Article 15 guarantees by the first clause a fundamental right of far-reaching importance to the public generally. Within certain defined limits an exception has been engrafted upon the guarantee of the freedom in cl. (1), but being in the nature of an exception, the conditions which justify departure must be strictly shown to exist. When a dispute is raised before a Court that a particular law which is inconsistent with the guarantee against discrimination is valid on the plea that it is permitted under clause (4) of Art. 15 the assertion by the State that the officers of the State had taken into consideration the criteria which had been adopted by the Courts for determining who the socially and educationally backward classes of the Society are, or that the authorities had acted in good faith in determining the socially and educationally backward classes of citizens, would not be sufficient to sustain the validity of the claim. The Courts of the country are invested with the power to determine the validity of the law which infringes the fundamental rights of citizens and others and when a question arises whether a law which prima facie infringes a guaranteed fundamental right is within an exception, the validity of that law has to be determined by the Courts on materials placed before them. By merely asserting that the law was made after full consideration of the relevant evidence and criteria which have a bearing thereon, and was within the exception, the jurisdiction of the Courts to determine whether by making the law a fundamental right has been infringed is not excluded.”

119. Significant observations were made in Kumari K.S.

Jayasree and Anr. v. The State of Kerala and Anr. (1976 (3)

SCC 730 ). At para 22 it was noted as follows:

.“The problem of determining who are socially and educationally backward classes is undoubtedly not simple. Sociological and economic considerations come into play in evolving proper criteria for its determination. This is the function of the State. The Court's jurisdiction is to decide whether the tests applied are valid. If it appears that tests applied are proper and valid the classification of socially and educationally backward classes based on the tests will have to be consistent with the requirements of Article 15(4). The Commission has found on applying the relevant tests that the lower income group of the communities named in Appendix VIII of the Report constitute the socially and educationally backward classes. In dealing with the question as to whether any class of citizens is socially backward or not, it may not be irrelevant to consider the caste of the said group of citizens. It is necessary to remember that special provision is contemplated for classes of citizens and not for individual citizens as such, and so though the caste of the group of citizen may be relevant, its importance should not be exaggerated. If the classification is based solely on caste of the citizen, it may not be logical. Social backwardness is the result of poverty to a very large extent. Caste and poverty are both relevant for determining the backwardness. But neither caste alone nor poverty alone will be the determining tests. When the Commission has determined a class to be socially and educationally backward it is not on the basis of income alone, and the determination is based on the relevant criteria laid down by the Court. Evidence and material are placed before the Commission. Article 15(4) which speaks of backwardness of classes of citizens indicates that the accent is on classes of citizens. Article 15(4) also speaks of Scheduled Castes and

Scheduled Tribes. Therefore, socially and educationally backward classes of citizens in Article 15(4) cannot be equated with castes. In R. Chitralekha and Anr. v. State of Mysore and Ors. ( 1964 (6) SCR 368 ) this Court said that the classification of backward classes based on economic conditions and occupations does not offend Article 15(4).”

120. Further, in Minor A. Peeriakaruppan, Sobha Joseph v.

State of Tamil Nadu and Ors. (1971 (1) SCC 38) at para 29 it

was observed as follows:

“Rajendran's case (1968 (2) SCR 786) is an authority for the proposition that the classification of backward classes on the basis of castes is within the purview of Article 15(4) if those castes are shown to be socially and educationally backward. No further material has been placed before us to show that the reservation for backward classes with which we are herein concerned is not in accordance with Article 15(4). There is no gainsaying the fact the there are 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 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. Reservation of seats should not be allowed to become a vested interest. The fact that candidates of backward classes have secured about 50% of the seats in the general pool does show that the time has come for a de novo comprehensive examination of the question. It must be remembered that the Government's decision in this regard is open to judicial review.”

121. It has been highlighted that the Act has been made

applicable to Central Educational Institutions established,

maintained or aided by the Central Government. Central

Educational Institutions have been defined in Section 2(d) as

follows:

“2(d) Central Educational Institution” means-

(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.”

122. It is pointed out that there cannot be any reservations

in respect of super specialities and institutions imparting

education of highly complex subjects. The example of All India

Institute of Medical Sciences has been given. It has been

pointed out that its status as an institution for super

speciality has been judicially recognized. It needs to be noted

that in terms of Section 4(b) of the Act certain educational

institutions have been excluded from the operation of the Act.

123. The Act has been made inapplicable to them. It is to be

noted that in the said provision, institutions of research,

institutions of excellence, institutions of national and strategic

importance have been specified in the Schedule to the Act.

The proviso permits the Central Government as and when

considered necessary to amend the Schedule. In other words,

on an appropriate case being presented and established before

the Central Government that the Institution is of excellence

and/or a research institute and/or an institution of national

and strategic importance, the Central Government can amend

the Schedule and include such institution in the Schedule. In

other words, it is permissible for the petitioners and anybody

else to highlight to the Government about the desirability to

include an Institution in the Schedule of the Act.

124. One of the major issues highlighted by Mr. P.P. Rao was

that in several cases the matriculation standard of education

was considered to be the measure for measuring

backwardness. It is, therefore, submitted that when at least

half of the persons belonging to a particular caste have

reached the matriculation level of education, they cannot be

considered to be educationally backward any longer. It is

therefore submitted that if that be taken as a yardstick for

measuring backwardness then the reservation of seats for

technical education or in higher studies cannot be sustained.

It has also been highlighted that the shift of emphasis from

primary and basic education to higher education is against the

constitutional mandate making education compulsory in

terms of Article 21-A of the Constitution. It is not correct to

contend that in fixing the priorities the Government is the best

Judge as contended by the respondents. It may be correct in

matters relating to simple policy decisions but when the

constitutional mandate is under consideration the underlying

object has also to be kept in view. In this context reference is

made to Article 46 of the Constitution. It is in that background

pointed out by learned counsel for the petitioners that what

cannot be lost sight of is the fact that is the foundation for

basic, elementary and primary education. The educational

backwardness can be obliterated when at least half of the

persons belonging to a particular caste come up to a

matriculation level.

125. There is substance in this plea. It is not merely the

existence of schemes but the effective implementation of the

schemes that is important. It is to be noted that financial

constraint cannot be a ground to deny fundamental rights and

the provision for the schemes and the utilization of the funds

are also relevant factors. It appears that better coordination

between the funds provider and the utiliser is necessary. It is

suggested that putting stress on cut off limit by shifting from

matriculation to Class XII level education as a benchmark of

gauging educational backwardness will be a step in the right

direction. Though as rightly contended by Mr. P.P. Rao that in

several decisions, for example, M.R. Balaji’s case (supra),

Balram’s case (supra) and Kumari K.S. Jayasree’s case

(supra) the secondary education was taken to be the

benchmark, ground reality cannot be lost sight of that with

the limited availability of jobs and the spiraling increase in

population, secondary or matriculation examination can no

longer be considered to be an appropriate bench mark. It has

to be at the most graduation. But the question arises whether

technical education can be included while considering

educational backwardness. A delicate balancing has to be

done in this regard. While technical education cannot be the

sole criteria for gauging educational backwardness it

definitely will form part of 50 per cent norms fixed by this

Court. Slightly variable plus or minus would be the

appropriate standard to gauge educational backwardness.

126. One of the grey areas which have been highlighted by

learned counsel for the petitioners is that caste is not a

substitute for class and nevertheless the two terms are not

synonyms. Much of the argument in this regard is centred

round the paragraphs 782 and 783 of Indra Sawhney No.1

(supra). The same read as under:

“782. Coming back to the question of identification, the fact remains that one has to begin somewhere — with some group, class or section. There is no set or recognised method. There is no law or other statutory instrument prescribing the methodology. The ultimate idea is to survey the entire populace. If so, one can well begin with castes, which represent explicit identifiable social classes/groupings, more particularly when Article 16(4) seeks to ameliorate social backwardness. What is unconstitutional with it, more so when caste, occupation poverty and social backwardness are so closely intertwined in our society? [Individual survey is out of question, since Article 16(4) speaks of class protection and not individual protection]. This does not mean that one can wind up the process of identification with the castes. Besides castes (whether found among Hindus or others) there may be other communities, groups, classes and denominations which may qualify as backward class of citizens. For example, in a particular State, Muslim community as a whole may be found socially backward. (As a matter of fact, they are so treated in the State of Karnataka as well as in the State of Kerala by their respective State Governments). Similarly, certain sections and denominations among Christians in Kerala who were included among backward communities notified in the former princely State of Travancore as far back as in 1935 may also

be surveyed and so on and so forth. Any authority entrusted with the task of identifying backward classes may well start with the castes. It can take caste ‘A’, apply the criteria of backwardness evolved by it to that caste and determine whether it qualifies as a backward class or not. If it does qualify, what emerges is a backward class, for the purposes of clause (4) of Article 16. The concept of ‘caste’ in this behalf is not confined to castes among Hindus. It extends to castes, wherever they obtain as a fact, irrespective of religious sanction for such practice. Having exhausted the castes or simultaneously with it, the authority may take up for consideration other occupational groups, communities and classes. For example, it may take up the Muslim community (after excluding those sections, castes and groups, if any, who have already been considered) and find out whether it can be characterised as a backward class in that State or region, as the case may be. The approach may differ from State to State since the conditions in each State may differ from State to State since the conditions in each State may differ. Nay, even within a State, conditions may differ from region to region. Similarly, Christians may also be considered. If in a given place, like Kerala, there are several denominations, sections or divisions, each of these groups may separately be considered. In this manner, all the classes among the populace will be covered and that is the central idea. The effort should be to consider all the available groups, sections and classes of society in whichever order one proceeds. Since caste represents an existing, identifiable, social group spread over an over whelming majority of the country’s population, we say one may well begin with castes, if one so chooses, and then go to other groups, sections and classes. We may say, at this stage, that we broadly commend the approach and methodology adopted by the Justice O. Chinnappa Reddy Commission in this respect.

783. We do not mean to suggest — we may reiterate — that the procedure indicated hereinabove is the only procedure or

method/approach to be adopted. Indeed, there is no such thing as a standard or model procedure/approach. It is for the authority (appointed to identify) to adopt such approach and procedure as it thinks appropriate, and so long as the approach adopted by it is fair and adequate, the court has no say in the matter. The only object of the discussion in the preceding para is to emphasise that if a Commission/Authority begins its process of identification with castes (among Hindus) and occupational groupings among others, it cannot by that reason alone be said to be constitutionally or legally bad. We must also say that there is no rule of law that a test to be applied for identifying backward classes should be only one and/or uniform. In a vast country like India, it is simply not practicable. If the real object is to discover and locate backwardness, and if such backwardness is found in a caste, it can be treated as backward; if it is found in any other group, section or class, they too can be treated as backward.”

127. On a closer reading of the paragraphs it appears that

this Court took note of the fact that several religions do not

have any caste. Therefore, the first sentence of para`782 lays

emphasis to begin somewhere – with some group, class or

section. It also states that there is no set or recognized method

and there is no law or other statutory instrument prescribing

the methodology. In this context, it has also been stated that

one can well begin with castes which represent explicit

identifiable social classes or groupings. Therefore, the

emphasis was on beginning with castes which represent as

explicit identifiable social classes or grouping. Again in

paragraph 783, it has been stated that in a vast country like

India it is simply not practicable to fix the test for identifying

backward classes. In that background it was held that if the

real objective is to discover and locate the real backwardness

and if such backwardness is found in a caste it can be

considered as backwardness. Similarly if it is found in any

other group, section or class they too can be treated as

backward. The intention therefore is clear that if caste is

found to be backward it can certainly be treated as backward.

To give any other meaning would be adding or subtracting to

what has been specifically stated in the decision.

128. It is also relevant to take note of certain earlier

decisions referred to in Indra Sawhney No.1 case (supra)

which throw beacon light on the issue. They are as under:

1. M.R. Balaji v. State of Mysore,1963 Supp (1) SCR 439 “Article 15(4) authorises the State to make a special provision for the advancement of any socially and educationally

backward classes of citizens, as distinguished from the Scheduled Castes and Scheduled Tribes. No doubt, special provision can be made for both categories of citizens, but in specifying the categories, the first category is distinguished from the second. Sub-clauses (24) and (25) of Article 366 define Scheduled Castes and Scheduled Tribes respectively, but there is no clause defining socially and educationally backward classes of citizens, and so, in determining the question as to whether a particular provision has been validly made under Article 15(4) or not, the first question which falls to be determined is whether the State has validly determined who should be included in these Backward Classes. It seems fairly clear that the backward classes of citizens for whom special provision is authorised to be made are, by Article 15(4) itself, treated as being similar to the Scheduled Castes and Scheduled Tribes. Scheduled Castes and Scheduled Tribes which have been defined were known to be backward and the Constitution-makers felt no doubt that special provision had to be made for their advancement. It was realised that in the Indian Society there were other classes of citizens who were equally, or may be somewhat less, backward than the Scheduled Castes and Tribes and it was thought that some special provision ought to be made even for them.

Let us take the question of social backwardness first. By what test should it be decided whether a particular class is socially backward or not? The group of citizens to whom Article 15(4) applies are described as “classes of citizens”, not as castes of citizens. A class, according to the dictionary meaning, shows division of society according to status, rank or caste. In the Hindu social structure, caste unfortunately plays an important part in determining the status of the citizen. Though according to sociologists and vedic scholars, the caste system may have originally begun on occupational or functional basis, in course of time, it became rigid and inflexible. The history of the growth of caste system shows that its original functional and occupational basis was later over-burdened with considerations of purity based on ritual concepts, and that led

to its ramifications which introduced inflexibility and rigidity. This artificial growth inevitably tended to create a feeling of superiority and inferiority, and to foster narrow caste loyalties. Therefore, in dealing with the question as to whether any class of citizens is socially backward or not, it may not be irrelevant to consider the caste of the said group of citizens. In this connection it is, however, necessary to bear in mind that the special provision is contemplated for classes of citizens and not for individual citizens as such, and so, though the caste of the group of citizens may be relevant, its importance should not be exaggerated. If the classification of backward classes of citizens was based solely on the caste of the citizen, it may not always be logical and may perhaps contain the vice of perpetuating the castes themselves.

xx xx xx Besides, if the caste of the group of citizens was made the sole basis for determining the social backwardness of the said group, that test would inevitably break down in relation to many sections of Indian society which do not recognise castes in the conventional sense known to Hindu society. How is one going to decide whether Muslims, Christians or Jains, or even Lingayats are socially backward or not? The test of castes would be inapplicable to those groups, but that would hardly justify the exclusion of these groups in toto from the operation of Article 15(4). It is not unlikely that in some States some Muslims or Christians or Jains forming groups may be socially backward. That is why we think that though castes in relation to Hindus may be a relevant factor to consider in determining the social backwardness of groups or classes of citizens, it cannot be made the sole or the dominant test in that behalf. Social backwardness is on the ultimate analysis the result of poverty to a very large extent. The classes of citizens who are deplorably poor automatically become socially backward. They do not enjoy a status in society and have, therefore, to be content to take a backward seat. It is true that social backwardness which results from poverty is likely to be aggravated by considerations of caste to which the poor

citizens may belong, but that only shows the relevance of both caste and poverty in determining the backwardness of citizens.

2. R. Chitralekha v State of Mysore AIR 1964 SC 1823

Justice Subba Rao referred to the observations in M.R. Balaji v. State of Mysore and observed:

“15. Two principles stand out prominently from the said observations, namely, (i) the caste of a group of citizens may be a relevant circumstance in ascertaining their social backwardness; and (ii) though it is a relevant factor to determine the social backwardness of a class of citizens, it cannot be the dole or dominant test in that behalf. The observations extracted in the judgment of the High Court appear to be in conduct with the observations of this Court. While this Court said that caste is only a relevant circumstance and that it cannot be the dominant test in ascertaining the backwardness of a class of citizens, the High Court said that it is an important basis in determining the class of backward Hindus and that the Government should have adopted caste as one of the tests. As the said observations made by the High Court may lead to some confusion in the mind of the authority concerned who may be entrusted with the duty of prescribing the rules for ascertaining the backwardness of classes of citizens within the meaning of Art. 15(4) of the Constitution, we would hasten to make it clear that caste is only a relevant circumstance in ascertaining the backwardness of a class and there is nothing in the judgment of this Court which precludes the authority concerned from determining the social backwardness of a group of citizens if it can do so without reference to caste. While this Court has not excluded caste from ascertaining the backwardness of a class of citizens, it has not made it one of the compelling circumstances affording a basis for the ascertainment of backwardness of a class. To put it differently,

the authority concerned may take caste into consideration in ascertaining the backwardness of a group of persons; but, if it does not, its order will not be bad on that account, if it can ascertain the backwardness of a group of persons on the basis of other relevant criteria.

19……The important factor to be noticed in Art. 15(4) is that it does not speak of castes, but only speaks of classes. If the makers of the Constitution intended to take castes also as units of social and educational backwardness, they would have said so as they have said in the case of the Scheduled Castes and the Scheduled Tribes. Though it may be suggested that the wider expression "classes" is used in clause (4) of Art. 15 as there are communities without castes, if the intention was to equate classes with castes, nothing prevented the makers of the Constitution from using the expression "backward classes or castes". The juxtaposition of the expression "backward classes" and "Scheduled Castes" in Art. 15(4) also leads to a reasonable inference that the expression "classes" is not synonymous with castes. It may be that for ascertaining whether a particular citizen or a group of citizens belong to a backward class or not, his or their caste may have some relevance, but it cannot be either the sole or the dominant criterion for ascertaining the class to which he or they belong.

20. This interpretation will carry out the intention of the Constitution expressed in the aforesaid Articles. It helps the really backward classes instead of promoting the interests of individuals or groups who, though they belong to a particular caste a majority whereof is socially and educationally backward, really belong to a class which is socially and educationally advanced. To illustrate, take a caste in a State which is numerically the largest therein. It may be that though a majority of the people in that caste are socially and educationally backward, an effective minority may be socially and educationally far more advanced than another small sub- caste the total number of which is far less than the said

minority. If we interpret the expression "classes" as "castes", the object of the Constitution will be frustrated and the people who do not deserve any adventitious aid may get it to the exclusion of those who really deserve. This anomaly will not arise if, without equating caste with class, caste is taken as only one of the considerations to ascertain whether a person belongs to a backward class or not. On the other hand, if the entire sub-caste, by and large, is backward, it may be included in the Scheduled Castes by following the appropriate procedure laid down by the Constitution.

21. We do not intend to lay down any inflexible rule for the Government to follow. The laying down of criteria for ascertainment of social and educational backwardness of a class is a complex problem depending upon many circumstances which may vary from State to State and even from place to place in a State. But what we intend to emphasize is that under no circumstances a "class" can be equated to a "caste", though the caste of an individual or a group of individual may be considered along with other relevant factors in putting him in a particular class. We would also like to make it clear that if in a given situation caste is excluded in ascertaining a class within the meaning of Art. 15(4) of the Constitution, it does not vitiate the classification if it satisfied other tests.

3. Minor P. Rajendran v State of Madras (1968 (2) SCR 787)

“The first challenge is to r. 5 on the ground that it violates Art. 15 of the Constitution. Article 15 forbids discrimination against any citizen on the grounds only of religion, race, caste, sex, place of birth or any of them. At the same time Art. 15(4) inter alia permits the State to make any special provision for the advancement of any socially and educationally backward classes of citizens. The contention is that the list of socially and educationally backward classes for whom reservation is made under r. 5 is nothing but a list of certain castes.

Therefore, reservation in favour of certain castes based only on caste considerations violates Art. 15(1), which prohibits discrimination on the ground o 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 Art. 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 Art. 15(4). Reference in this connection may be made to the observations of this Court in M. R. Balaji v. State of Mysore ([1963] Supp. 1 S.C.R. 439 at p. 459-460) 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. 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. In its reply, the State of Madras has given the history as to how this list of backward classes was made, starting from the year 1906 and how the list has been kept upto date and necessary amendments made therein. It has also been stated that the main criterion for inclusion in the list was the social and educational backwardness of the caste based on occupations pursued by these castes. Because the members of the caste as a whole were found to be socially and educationally backward, they were put in the list. The matter was finally examined after the Constitution came into force in the light of the provisions contained in Art. 15(4). 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 Art. 15(4). In short the case of the State of Madras is that the castes included in the list are only a compendious indication of the class of people in those castes and these classes of people had been put in the list for the purpose of Art. 15(4) because they had been found to be socially and educationally backward.

This is the position as explained in the Affidavit filed on behalf of the State of Madras. On the other hand the only thing stated in the petitions is that as the list is based on caste alone it is violative of Art. 15(1). 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. No such averment was made in the affidavit in support of their cases, nor was any attempt made to traverse the case put forward on behalf of the State of Madras by filing a rejoinder affidavit to show that even one of the castes included in the 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 violate of Art. 15. The challenge to r. 5 must therefore fail.

4) State of Andhra Pradesh v P. Sagar (1968 (3) SCR 595)

“In the context in which it occurs the expression "class" means a homogeneous section of the people grouped together because of certain likenesses or common traits and who are identifiable by some common attributes such as status, rank, occupation, residence in a locality, race, religion and the like. In determining whether a particular section forms a class, caste cannot be excluded altogether. But in the determination of a class a test solely based upon the caste or community

cannot also be accepted. By cl. (1) Art. 15 prohibits the State from discriminating against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. By cl. (3) of Art. 15 the State is, notwithstanding the provision contained in cl. (1), permitted to make special provision for women and children. By cl. (4) a special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes is outside the purview of cl. (1). But cl. (4) is an exception to cl. (1). Being an exception, it cannot be extended so as in effect to destroy the guarantee of cl. (1). The Parliament has by enacting cl. (4) attempted to balance as against the right of equality of citizens the special necessities of the weaker sections of the people by allowing a provision to be made for their advancement. In order that effect may be given to cl. (4), it must appear that the beneficiaries of the special provision are classes which are backward socially and educationally and they are other that the Scheduled Castes and Scheduled Tribes, and that the provision made is for their advancement.”

5. Minor A. Peeriakaruppan (Minor) v. State of T.N., (1971) 1 SCC 38 : “25. A caste has always been recognized as a class. In construing the expression “classes of His Majesty’s subject” found in Section 153-A of the Indian Penal Code, Wassoodew, J., observed in Narayan Vasudev v. Emperor AIR 1940 Bomb 379 “In my opinion, the expression ‘classes of His Majesty’s subjects’ in Section 153-A of the Code is used in restrictive sense as denoting a collection of individuals or groups bearing a common and exclusive designation and also possessing common and exclusive characteristics which may be associated with their origin, race or religion, and that the term ‘class’ within that section carries with it the idea of numerical strength so large as could be grouped in a single homogeneous community.”

26. In para 10, Chapter V of the Backward Classes Commission’s Report, it is observed: “We tried to avoid caste but we find it difficult to ignore caste in the present prevailing conditions. We wish it were easy to dissociate caste from social backwardness at the present juncture. In modern time anybody can take to any profession. The Brahman taking to tailoring, does not become a tailor by caste, nor is his social status lowered as a Brahman. A Brahman may be a seller of boots and shoes, and yet his social status is not lowered thereby. Social backwardness, therefore, is not today due to the particular profession of a person, but we cannot escape caste in considering the social backwardness in India.

In para 11 of that Report it is stated:

“It is not wrong to assume that social backwardness has largely contributed to the educational backwardness of a large number of social groups.”

27. Finally in para 13, the committee concludes with following observations: “All this goes to prove that social backwardness is mainly based on racial, tribal, caste and denominational differences.” 28. The validity of the impugned list of backward classes came up for consideration before this Court in Rajendran case and this is what this Court observed therein: “The contention is that the list of socially and educationally backward classes for whom reservation is made under Rule 5 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 justice 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).”

29. Rajendran case is an authority for the proposition that the classification of backward classes on the basis of castes is within the purview of Article 15(4) if those castes are shown to be socially and educationally backward. No further material has been placed before us to show that the reservation for backward classes with which we are herein concerned is not in accordance with Article 15(4). There is no gainsaying the fact that there are 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. Reservation of seats should not be allowed to become a vested interest. The fact that candidates of backward classes have secured about 50% of the seats in the general pool does show that the time has come for a de novo comprehensive examination of the question. It must be remembered that the Government’s decision in this regard is open to judicial review.”

6. State of A.P. v. U.S.V. Balram, (1972) 1 SCC 660, at page 685 :

“82……In the determination of a class to be grouped as backward, a test solely based upon caste or community cannot be accepted as valid. But, in our opinion, though Directive Principles contained in Article 46 cannot be enforced by courts. Article 15(4) will have to be given effect to in order to assist the weaker sections of the citizens, as the State has been charged with such a duty. No doubt, we are aware that any provision made under this clause must be within the well defined limits and should not be on the basis of caste alone. But it should not also be missed that a caste is also a class of citizens and that a caste as such may be socially and educationally backward. If after collecting the necessary data, it is found that the caste as a whole is socially and educationally backward, in our opinion, the reservation made of such persons will have to be upheld notwithstanding the fact that a few individuals in that group may be both socially and educationally above the general average. There is no gainsaying the fact that there are numerous castes in the country, which are socially and educationally backward and therefore a suitable provision will have to be made by the State, as charged in Article 15(4) to safeguard their interest”.

xx xx xx

94. To conclude, though prima facie the list of Backward Classes which is under attack before us may be considered to be on the basis of caste, a closer examination will clearly show that it is only a description of the group following the particular occupations or professions, exhaustively referred to by the Commission. Even on the assumption that the list is based exclusively on caste, it is clear from the materials before the Commission and the reasons given by it in its report that the entire caste is socially and educationally backward and therefore their inclusion in the list of Backward Classes is warranted by Article 15(4). The groups mentioned therein have been included in the list of Backward Classes as they satisfy the various tests, which have been laid down by this Court for ascertaining the social and educational backwardness of a

class.”

7. Janki Prasad Parimoo v. State of J&K, (1973) 1 SCC 420, at page 432 : “22. Article 15(4) speaks about “socially and educationally backward classes of citizens” while Article 16(4) speaks only of “any backward class citizens”. However, it is now settled that the expression “backward class of citizens” in Article 16(4) means the same thing as the expression “any socially and educationally backward class of citizens” in Article 15(4). In order to qualify for being called a “backward class citizen” he must be a member of a socially and educationally backward class. It is social and educational backwardness of a class which is material for the purposes of both Articles 15(4) and 16(4).”

xx xx xx 24. It is not merely the educational backwardness or the social backwardness which makes a class of citizens backward; the class identified as a class as above must be both educationally and socially backward. In India social and educational backwardness is further associated with economic backwardness and it is observed in Balaji case referred to above that backwardness, socially and educationally, is ultimately and primarily due to proverty. But if proverty is the exclusive test, a very large proportion of the population in India would have to be regarded as socially and educationally backward, and if reservations are made only on the ground of economic considerations, an untenable situation may arise. Even in sectors which are recognised as socially and educationally advanced there are large pockets of poverty. In this country except for a small percentage of the population the people are generally poor — some being more poor, others less poor. Therefore, when a social investigator tries to identify socially and educationally backward classes, he may do it with confidence that they are bound to be poor. His chief concern

is, therefore, to determine whether the class or group is socially and educationally backward. Though the two words “socially” and “educationally” are used cumulatively for the purpose of describing the backward class, one may find that if a class as a whole is educationally advanced it is generally also socially advanced because of the reformative effect of education on that class. The words “advanced” and “backward” are only relative terms — there being several layers or strata of classes, hovering between “advanced” and “backward”, and the difficult task is which class can be recognised out of these several layers as been socially and educationally backward.”

25…..Indeed all sectors in the rural areas deserve encouragement but whereas the former by their enthusiasm for education can get on without special treatment, the latter require to be goaded into the social stream by positive efforts by the State. That accounts for the raison-d’etre of the principle explained in Balaji case which pointed out that backward classes for whose improvement special provision was contemplated by Article 15(4) must be comparable to Scheduled Castes and Scheduled Tribes who are standing examples of backwardness socially and educationally. If those examples are steadily kept before the mind the difficulty in determining which other classes should be ranked as backward classes will be considerably eased.”

8. State of Kerala v. N.M. Thomas, (1976) 2 SCC 310, at page 367 : “135. We may clear the clog of Article 16(2) as it stems from a confusion about caste in the terminology of scheduled castes and scheduled tribes. This latter expression has been defined in Articles 341 and 342. A bare reading brings out the quintessential concept that they (sic there) are no castes in the Hindu fold but an amalgam of castes, races, groups, tribes,

communities or parts thereof found on investigation to be the lowliest and in need of massive State aid and notified as such by the President. To confuse this backwardmost social composition with castes is to commit a constitutional error, misled by a compendious appellation. So that, to protect harijans is not to prejudice any caste but to promote citizen solidarity. Article 16(2) is out of the way and to extend protective discrimination to this mixed bag of tribes, races, groups, communities and non-castes outside the four-fold Hindu division is not to compromise with the acceleration of castelessness enshrined in the sub-article. The discerning sense of the Indian Corpus Juris has generally regarded scheduled castes and scheduled tribes, not as caste but as a large backward group deserving of societal compassion…...”

9. State of U.P. v. Pradip Tandon, (1975) 1 SCC 267, at page 273 : “14. Article 15(4) speaks of socially and educationally backward classes of citizens. The State described the rural, hill and Uttrakhand areas as socially and educationally backward areas. The Constitution does not enable the State to bring socially and educationally backward areas within the protection of Article 15(4). The Attorney-General however submitted that the affidavit evidence established the rural, hill and Uttrakhand areas to have socially and educationally backward classes of citizens. The backwardness contemplated under Article 15(4) is both social and educational. Article 15(4) speaks of backwardness of classes of citizens. The accent is on classes of citizens. Article 15(4) also speaks of Scheduled Castes and Scheduled Tribes. Therefore, 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).

15. Broadly stated, neither caste nor race nor religion can be made the basis of classification for the purposes of determining social and educational backwardness within the meaning of Article 15(4). When Article 15(1) forbids discrimination on grounds only of religion, race, caste, caste cannot be made one of the criteria for determining social and educational backwardness. If caste or religion is recognised as a criterion of social and educational backwardness Article 15(4) will stultify Article 15(1). It is true that Article 15(1) forbids discrimination only on the ground of religion, race, caste, but when a classification takes recourse to caste as one of the criteria in determining socially and educationally backward classes the expression “classes” in that case violates the rule of expressio unius est exclusio alterius. The socially and educationally backward classes of citizens are groups other than groups based on caste.

16. The expression “socially and educationally backward classes” in Article 15(4) was explained in Balaji case to be comparable to Scheduled Castes and Scheduled Tribes. The reason is that the Scheduled Castes and Scheduled Tribes illustrated social and educational backwardness. It is difficult to define the expression “socially and educationally backward classes of citizens”. The traditional unchanging occupations of citizens may contribute to social and educational backwardness. The place of habitation and its environment is also a determining factor in judging the social and educational backwardness.

17. The expression “classes of citizens” indicates a homogeneous 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.”

10. K.S. Jayasree (Kumari) v. State of Kerala, (1976) 3 SCC 730, at page 733 : “13. Backward classes for whose improvement special provisions are contemplated by Article 15(4) are in the matter of their backwardness comparable to scheduled castes and scheduled tribes. This Court has emphasised in decisions that the backwardness under Article 15(4) must be both social and educational. In ascertaining social backwardness of a class of citizens, the caste of a citizen cannot be the sole or dominant test. Just as caste is not the sole or dominant test, similarly poverty is not the decisive and determining factor of social backwardness.

xx xx xx 21. In ascertaining social backwardness of a class of citizens it may not be irrelevant to consider the caste of the group of citizens. Caste cannot however be made the sole or dominant test. Social backwardness is in the ultimate analysis the result of poverty to a large extent. Social backwardness which results from poverty is likely to be aggravated by considerations of their caste. This shows the relevance of both caste and poverty in determining the backwardness of citizens. Poverty by itself is not the determining factor of social backwardness. Poverty is relevant in the context of social backwardness. The commission found that the lower income group constitutes socially and educationally backward classes. The basis of the reservation is not income but social and educational backwardness determined on the basis of relevant criteria. If any classification of backward classes of citizens is based solely on the caste of the citizen it will perpetuate the vice of caste system. Again, if the classification is based solely on poverty it will not be logical. The society is taking steps for uplift of the people. In such a task groups or classes who are socially and educationally backward are helped by the society. That is the philosophy of our Constitution. It is in this context that social backwardness which results from poverty is likely to be magnified by caste considerations. Occupations, place of

habitation may also be relevant factors in determining who are socially and educationally backward classes. Social and economic considerations come into operation in solving the problem and evolving the proper criteria of determining which classes are socially and educationally backward. That is why our Constitution provided for special consideration of socially and educationally backward classes of citizens as also scheduled castes and tribes. It is only by directing the society and the State to offer them all facilities for social and educational uplift that the problem is solved. It is in that context that the commission in the present case found that income of the classes of citizens mentioned in Appendix VIII was a relevant factor in determining their social and educational backwardness.”

129. In Chitrelekha’s case (supra) it was stated that the caste

is the starting point. This is subject of course to the

parameters that if the caste itself satisfies the test of

backwardness which is implicit and inherent as noted in para

782 of Indra Sawhney No.1 (supra). In that case caste

becomes the relevant factor. The view expressed in

Chitralekha’s case (supra) was not dissented from in Indra

Sawhney No.1 (supra). In fact Justice Jeevan Reddy in the

majority judgment in Indra Sawhney No.1 (supra) referred to

Chitrelekha’s case (supra) at para 704. As noted above in para

782 of Indra Sawhney No.1 (supra) it has not been held that

caste is class. In the said paragraph it has been stated that

individual survey is out of question since Article 16(4) speaks

of class protection and not individual protection. In that

context also it has been said that it does not mean that one

can wind up the process of identification for the castes. It has

also been emphasized in the said paragraph that having

exhausted the castes or simultaneously with it, the authority

may take up for consideration other occupational groups,

communities and classes. If caste is a substitute for class, the

question of any simultaneous consideration of others does not

arise. Therefore, the Court observed that one may well begin

with castes if one chooses and then go to other groups,

sections and classes. If the Court meant to substitute the

word caste with class the question of going to other classes

would not arise.

130. Reference may also be made to Akhil Bharatiya Soshit

Karamchari Sangh (Railway) v. Union of India (UOI) and Ors.

(1981(1) SCC 246) where at para 22 it was noted as follows:

“This is not mere harmonious statutory construction of Article 16(1) and (4) but insightful perception of our constitutional

culture, reflecting the current of resurgent India bent on making, out of a sick and stratified society of inequality and poverty, a brave new Bharat. If freedom, justice and equal opportunity to unfold one's own personality, belong alike to bhangi and brahmin, prince and pauper, if the panchama proletariat is to feel the social transformation Article 16(4) promises, the State must apply equalising techniques which will enlarge their opportunities and thereby progressively diminish the need for props. The success of State action under Article 16(4) consists in the speed with which result-oriented reservation withers away as, no longer a need, not in the everwidening and everlasting operation of an exception [Article 16(4)] as if it were a super-fundamental right to continue backward all the time. To lend immortality to the reservation policy is to defeat its raison de'etre; to politicise this provision for communal support and Party ends is to subvert the solemn undertaking of Article16(1), to casteify 'reservation' even beyond the dismal groups of backward-most people, euphemistically described as SC & ST, is to run a grave constitutional risk. Caste, ipso facto, is not class in a secular State.”

131. Much emphasis has been laid on the use of the word

‘only’. It is to be noted that while the respondents contend that

where it is demonstrated that caste is not the only

consideration the permissible provision will operate.

Reference was made to Venkataraman’s case (supra). As has

been rightly contended by learned counsel for the petitioners

the true effect of the word ‘only’ has been clarified in the

decision itself.

132. It is unnecessary to decide as it has been contended

by learned counsel for the petitioners whether the concept of

strict scrutiny is a measure of judicial scrutiny as highlighted

by the conditions in India. It is submitted that label is not

relevant.

133. The ultimate object is the eradication of castes and that

is the foundation for reservation. While considering the

method adopted for eradication by adopting the process of

reservation indirectly the facet of strict scrutiny comes in. The

strict scrutiny test was applied in the background of Article 19

vis-à-vis compelling State needs. The principle was recognized

in Chintaman Rao v. The State of Madhya Pradesh (1950 SCR

759). It was inter-alia quoted as follows:

“The question for decision is whether the statute under the guise of protecting public interests arbitrarily interferes with private business and imposes unreasonable and unnecessarily restrictive regulations upon lawful occupation; in other words, whether the total prohibition of carrying on the business of manufacture of bidis within the agricultural season amounts

to a reasonable restriction on the fundamental rights mentioned in article 19 (1)(g) of the Constitution. Unless it is shown that there is a reasonable relation of the provisions of the Act to the purpose in view, the right of freedom of occupation and business cannot be curtailed by it.

The phrase "reasonable restriction" connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The word "reasonable" implies intelligent care and deliberation, that is, the choice of a course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in Article 19(1)(g) and the social control permitted by clause (6) of Article19, it must be held to be wanting in that quality”.

134. Again in State of Madras v. V.G. Row (AIR 1952 SC 196)

it was observed as follows:

“13. Before proceeding to consider this question we think it right to point out, what is sometimes overlooked, that our Constitution contains express provisions for judicial review of legislation as to its conformity with the constitution unlike as in America where the Supreme Court has assumed extensive power of reviewing legislative acts under cover of the widely interpreted "due process" clause in the Fifth and Fourteenth Amendments. If, then, the courts in this country face up to such important and none too easy task, it is not out of any desire to tilt at legislative authority in a crusader's spirit, but in discharge of a duty plainly laid upon them by the

Constitution. This is especially true as regards the "fundamental rights" as to which this Court has been assigned the role of a sentinel on the qui vive. While the Court naturally attaches great weight to the legislative judgment, it cannot dessert its own duty to determine finally the constitutionality of an impugned statute. We have ventured on these obvious remarks because it appears to have been suggested in some quarters that the courts in the new set up are out to seek clashes with the legislatures in the country”.

135. At the outset, it may be pointed out that the stand of

petitioners is that the primary consideration in selection of

candidates for admission to the higher educational

institutions must be merit. The object of any rules, which

may be made for regulating admissions to such institutions

therefore, must be to secure the best and most meritorious

students. The national interest and the demand of universal

excellence may even override the interests of the weaker

sections. In this context, Krishna Iyer J aptly observed:

“To sympathise mawkishly with the weaker sections by selecting substandard candidates, is to punish society as a whole by denying the prospect of excellence, say, in hospital service. Even the poorest, when stricken by critical illness, needs the attention of super-skilled specialists not humdrum second rates”.

136. Thus, the interest of no person, class or region can be

higher than that of the nation. The philosophy and

pragmatism of universal excellence through equality of

opportunity for education and advancement across the nation

is part of the constitutional creed. It is, therefore, the best and

most meritorious students that must be selected for admission

to technical institutions and medical colleges and no citizen

can be regarded as outsider in the constitutional set-up

without serious detriment to the `unity and integrity' of the

nation. The Supreme Court has laid down that so far as

admissions to post graduate course such as MS, MD and the

like are concerned, it would be imminently desirable not to

provide for any reservation based on residence or institutional

preference. However, a certain percentage of seats are allowed

to be reserved on the ground of institutional preference. But

even in this regard, so far as super specialties such as

neurosurgery and cardiology are concerned there should be no

reservation at all even on the basis of institutional preference

and admissions should be granted purely on all-India basis.

Further, classification made on the basis of super-specialties

may serve the interests of the nation better, though interests

of individual states may to a small extent, be affected.

137. The need of a region or institution cannot prevail at the

highest scale of specialty where the best skill or talent must be

hand-picked by selecting them according to capability. At the

level of Ph.D., M.D. or levels of higher proficiency where

international measure of talent is made, where losing one

great scientist or technologist in the making is a national loss,

the considerations we have expanded upon as important, lose

their potency.

138. The inevitable conclusion is that the impugned Statute

can be operative only after excluding the creamy layer from

identifiable OBCs. There has to be periodic review of the

classes who can be covered by the Statute. The periodicity

should be five years. To strike constitutional balance there is

need for making provision for suitable percentage for socially

and economically backward classes in the 27% fixed.

I

139. To sum up, the conclusions are as follows:

(1) For implementation of the impugned Statute

creamy layer must be excluded.

(2) There must be periodic review as to the

desirability of continuing operation of the Statute. This shall

be done once in every five years.

(3) The Central Government shall examine as to

the desirability of fixing a cut off marks in respect of the

candidates belonging to the Other Backward Classes (OBCs).

By way of illustration it can be indicated that five marks grace

can be extended to such candidates below the minimum

eligibility marks fixed for general categories of students. This

would ensure quality and merit would not suffer. If any seats

remain vacant after adopting such norms they shall be filled

up by candidates from general categories.

(4) So far as determination of backward classes

is concerned, a Notification should be issued by the Union of

India. This can be done only after exclusion of the creamy

layer for which necessary data must be obtained by the

Central Government from the State Governments and Union

Territories. Such Notification is open to challenge on the

ground of wrongful exclusion or inclusion. Norms must be

fixed keeping in view the peculiar features in different States

and Union Territories.

(5) There has to be proper identification of Other Backward

Classes (OBCs.). For identifying backward classes, the

Commission set up pursuant to the directions of this Court in

Indra Sawhney No.1 has to work more effectively and not

merely decide applications for inclusion or exclusion of castes.

While determining backwardness, graduation (not technical

graduation) or professional shall be the standard test

yardstick for measuring backwardness.

(6) To strike the constitutional balance it is necessary and

desirable to ear-mark certain percentage of seats out of

permissible limit of 27% for socially and economically

backward classes.

(7) In the Constitution for the purposes of both Articles 15

and 16, caste is not synonyms with class and this is clear

from the paragraphs 782 and 783 of Indra Sawhney No.1.

However, when creamy layer is excluded from the caste, the

same becomes an identifiable class for the purpose of Articles

15 and 16.

(8) Stress has to be on primary and secondary education so

that proper foundation for higher education can be effectively

laid.

(9) So far as the constitutional amendments are concerned:

(i) Articles 16(1) and 16(4) have to be harmoniously

construed. The one is not an exception to the other.

(ii) Articles 15(4) and 15(5) operate in different fields.

Article 15(5) does not render Article 15(4) inactive or

inoperative.

(10) While interpreting the constitutional provisions, foreign

decisions do not have great determinative value. They may

provide materials for deciding the question regarding

constitutionality. In that sense, the strict scrutiny test is not

applicable and indepth scrutiny has to be made to decide the

constitutionality or otherwise, of a statute.

(11) If material is shown to the Central Government that the

Institution deserves to be included in the Schedule, the

Central Government must take an appropriate decision on the

basis of materials placed and on examining the concerned

issues as to whether Institution deserves to be included in the

Schedule.

(12) Challenge relating to private un-aided educational

institutions has not been examined because no such

institution has laid any challenge. It is to be noted that the

petitioners have made submissions in the background of

Article 19(6) of the Constitution. Since none of the affected

institutions have made any challenge we do not propose to

consider it necessary to express any opinion or decide on the

question.

140. In view of the above-said conclusions, the writ

petitions and the Contempt Petition (Civil) No.112/2007 in

W.P. (C) No.265/2006 are disposed of.

…...........................J. (Dr. ARIJIT PASAYAT)

…………………………J. (C.K. THAKKER)

New Delhi, April 10, 2008

IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO.265 OF 2006

Ashoka Kumar Thakur ……. Petitioner

Versus

Union of India & Ors. …… Respondents

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.33/2007 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 (C) No.112/2007 in Writ Petition (C) No.265/2006

J U D G M E N T

R. V. Raveendran J.

It has been my privilege to read the drafts of the Judgments proposed

by the learned Chief Justice, learned brothers Pasayat J. and Bhandari J. I

respectfully agree with them as indicated below :

A. Validity of 93rd Amendment to the Constitution of India.

I agree with the learned Chief Justice and Pasayat, J. that clause (5) of

Article 15 is valid with reference to state maintained educational institutions

and aided educational institutions; and that the question whether Article

15(5) would be unconstitutional on the ground that it violates the basic

structure of the Constitution by imposing reservation in respect of private

unaided educational institutions is left open.

I have indicated an additional reason for rejecting the challenge to Article

15(5) on the ground that it renders Article 15(4) inoperative/ineffective .

B. Validity of Central Educational Institutions (Reservation in Admissions) Act, 2006 – Act No.5 of 2007 :

I agree with the learned Chief Justice and Pasayat J. that (i)

identification of other backward classes solely on the basis of caste will be

unconstitutional; (ii) failure to exclude the ‘creamy layer’ from the benefits

of reservation would render the reservation for other backward classes under

Act 5 of 2007 unconstitutional; and (iii) Act 5 of 2007 providing for

reservation for other backward classes will however be valid if the definition

of ‘other backward classes’ is clarified to the effect that if the identification

of other backward classes is with reference to any caste considered as

socially and economically backward, ‘creamy layer’ of such caste should be

excluded.

I have indicated briefly my reasons for the same.

I agree with the decision of learned Chief Justice that the Act is not

invalid merely because no time limit is prescribed for caste based

reservation, but preferably there should be a review after ten years by

change of circumstances. A genuine measure of social reservation may not

be open to challenge when made. But during a period of time, if the

reservation is continued in spite of achieving the object of reservation, the

law which was valid when made, may become invalid.

(C). What should be parameters for determining the creamy layer in respect of OBCs?

I agree with the learned Chief Justice that OM dated 8.9.1993 of the

Government of India can be applied for such determination.

(D) Whether reservation to an extent of 27% in regard to other backward class under Act 5 of 2007 is valid?

I agree with the decision of learned Chief Justice that reservation of 27%

for other backward classes is not illegal.

I would however leave open the question whether members belonging to

other backward classes who get selected in the open competition field on the

basis of their own merit should be counted against the 27% quota reserved

for other backward classes under an enactment enabled by Article 15(5) of

the Constitution.

2. Let me now briefly add a few words on two aspects as indicated

above.

Whether Article 15(5) renders Article 15(4) are in conflict with each other?

3. This Court has held that clause (4) of Article 15 is neither an

exception nor a proviso to clause (1) of Article 15. Clause (4) has been

considered to be an instance of classification inherent in clause (1) and an

emphatic restatement of the principle implicit in clause (1) of Article 15 (see

: State of Kerala v. N.M. Thomas - 1976 (2) SCC 310, K.C. Vasanth Kumar

v. State of Karnataka - 1985 Supp. SCC 714 and Indra Sawhney v. Union of

India - 1992 Supp. (3) SCC 217). Clauses (1) and (2) of Article 15 bars

discrimination. Clause (1) contains a prohibition that State shall not

discriminate against any citizen on grounds only on religion, caste, creed,

sex or birth. Clause (2) declares that no citizen shall, on grounds only of

religion, race, caste, sex, place of birth or any of them be subject to any

disability, liability, restriction or condition with regard to access to shops,

public restaurants, hotels and places of public entertainment, or 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. Clauses (3) to (5) enable the State to make special provisions in

specified areas. The words ‘Nothing in this article’ occurring in clauses (3),

(4) and (5) therefore refer to clauses (1) and (2) of Art. 15. When clause (4)

starts with those words, it does not obviously refer to clause (3). Similarly

when clause (5) starts with those words, it does not refer to clauses (3) and

(4). Clauses (3) (4) and (5) of Article 15 are not to be read as being in

conflict with each other, or prevailing over each other. Nor does an

exception made under clause (5) operate as an exception under clause (4).

While clauses (4) and (5) may operate independently, they have to be read

harmoniously.

The need for exclusion of creamy layer.

4. Section 3 of Act 5 of 2007 mandates reservation of seats in central

educational institutions for other backward classes to an extent of 27%. The

term ‘other backward classes’ is defined as meaning the class or classes of

citizens who are socially and economically backward, and are so determined

by the central Government. The Act does not define the term ‘socially and

educationally backward classes’, nor does it contain any norms or guidelines

as to how the central Government should determine any class or classes as

socially and educationally backward, so as to entitle them to the benefit of

reservation under the Act. The petitioners contend that the Act vests

unguided power in the executive to pick and choose arbitrarily certain

classes for the benefit of reservation. The Central Government however

intends to proceed on the basis that castes which have been identified for the

benefit of reservations under Article 16(4) by the Mandal Commission with

the additions thereto made by the National Commission for Backward

Classes, from time to time, will constitute the socially and educationally

backward classes for the purpose of availing the benefit of 27% reservation

under the Act. This again is challenged by the petitioners on the ground that

identification of any class of citizens as ‘backward’, for the purpose of

Article 16(4), cannot be considered as identification of ‘socially and

educationally backward classes of citizens’ under Article 15(5). It is pointed

out that the term ‘backward classes’ in Article 16(4) is much wider than

‘socially and educationally backward classes of citizens’ occurring in Article

15(4) and (5).

5. Article 15(4) provides that nothing in that 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 class of citizens or

for Scheduled Castes and Scheduled Tribes. Article 29(2) provides that no

citizen shall be denied admission into any educational institution managed

by the State or receiving aid out of State funds, on grounds only of religion,

race, caste, language or any of them. On the other hand, clause (5) of Article

15 provides that notwithstanding anything contained in that Article or in

Article 19(1)(g), State may make a special provision for advancement of

socially and educationally backward class of citizens or for Scheduled

Castes and Scheduled Tribes by providing for reservation relating to

admission in any educational institution either aided or unaided by the State,

other than the minority educational institutions referred to in Article 30(1).

While clause (4) excluded the application of Article 29(2), clause (5) does

not exclude Article 29(2). It is therefore contended that in regard to a law

made in exercise of power under Article 15(5), the bar Article 29(2) will

apply, and if so, there cannot be any affirmative action by way of reservation

on the ground of caste alone.

6. It is submitted on behalf of the petitioners that the Constitution

prohibits any kind of special provision including reservation, merely on the

ground of caste. The object of the Constitution is to achieve an egalitarian

society and any attempt to divide the citizens or the society on the ground of

race, religion or caste should be straightaway rejected. It is submitted that

the Constitution nowhere recognizes or refers to ‘caste’ (except Scheduled

Castes and Tribes) as a criterion for conferment of any right or benefit; that

both clauses (4) and (5) of Article 15 refer to socially and educationally

backward ‘classes’ and not ‘castes’; that Constitution has always referred to

caste in a negative sense, that is to prohibit any discrimination or affirmative

action on the basis of ‘caste’ - [Vide Article 15(1) and (2), 16(2) and 29(2)];

that when Constitution discourages caste, it is paradoxical that caste is

sought to be made the criterion by the State for purposes of making a special

provision for socially and educationally backward classes. It is submitted

that there cannot be any special provision for any group of citizens merely

on the ground that they belong to a particular caste or community (except

Scheduled Castes and Tribes who are separately mentioned in Articles

15(4), 15(5), 16(4), 335, 340, 346 etc).

7. This Court in a series of decisions commencing from M.R. Balaji v.

State of Mysore [1963 Supp. (1) SCR 439], R.Chitralekha v. State of Mysore

[1964 (6) SCR 368], Minor P.Rajendran v. State of Madras [1968 (2) SCR

786], State of Andhra Pradesh v. P.Sagar [1968 (3) SCR 595], Janki

Prasad Parimoo v. State of Jammu & Kashmir [1973 (1) SCC 420], State of

Kerala v. N.M.Thomas [1976 (2) SCC 310] and K.C.Vasanth Kumar v. State

of Karnataka [1985 Supp. SCC 714] has explained what is social and

educational backwardness. All these decisions have laid down the principle

that caste cannot be made the sole or dominant test to determine

backwardness, and any classification determining backwardness only with

reference to caste will be invalid. These decisions recognized the fact that

caste is not equated to class and all backwardness, either social or

educational, is ultimately and primarily due to poverty or economic

conditions.

8. However, in Rajendran (supra), it was held that if a caste, as a whole,

is socially and educationally backward then reservation can be made in

favour of such a caste on the ground that it is a socially and educationally

backward class within the meaning of Article 15(4). The decision followed

Balaji and therefore proceeded on the basis that where the extent of social

and educational backwardness of the caste in question is virtually the same

as the social and educational backwardness of Scheduled Castes and

Scheduled Tribes, reservation can be made on the basis of caste itself. In that

case, it was found as a question of fact that members of certain castes as a

whole, were socially and educationally backward, and therefore it was held

that the reservation the basis of caste was permissible in respect of those

castes.

9. In A.Peeriakaruppan v. Sobha Joseph [1971 (1) SCC 38], this Court

referred to the cases starting from Balaji to Rajendran. It reiterated the

principle stated in Rajendran that if a 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). It also cautioned that the

Government should not proceed on the basis that once a class is considered

as a backward class, it will continue to be backward class for all times.

10. Therefore neither Rajendran nor Periakaruppam really departed from

or diluted the principle laid down in Balaji. On the other hand, the principle

laid down in Balaji was reiterated. Rajendran and Periakaruppam only

show that in extreme cases where it is found that the caste under

consideration was, as a whole, socially and educationally backward, and

therefore akin to a Scheduled Caste, reservation could be made only on the

basis of caste alone.

11. Vasanth Kumar (supra) held that only a caste comparable to the

Scheduled Castes and Scheduled Tribes in the matter of backwardness,

could be considered to be a socially and educationally backward class in

favour of which reservation could be made merely on the basis of caste.

Vasanth Kumar therefore, reiterated Balaji. Then came to the decision of

nine Judges in Indra Sawhney v. Union of India [1992 Supp. (3) SCC 217].

This Court held that the use of the word 'class' in Article 16(4) refers to

social class, and that reservation under Article 16(4) is in favour of a

backward class and not a caste. It held that ‘ backward class of citizens’

contemplated in Article 16(4) is not the same as ‘socially and educationally

backward classes’ referred to in Article 15(4), but much wider. It held that

there was no reason to qualify or restrict the meaning of the expression

'backward class of citizens' by saying that it means only those other

backward classes who are situated similarly to Scheduled Castes and/or

Scheduled Tribes (para 795). This Court held :

"If any group of class is situated similarly to the Scheduled Castes, they may have a case for inclusion in that class but there seems to be no basis either in fact or in principle for holding that other classes/groups must be situated similarly to them for qualifying as backward classes. There is no warrant to import any such a priori notions into the concept of Other Backward Classes. At the same time, we think it appropriate to clarify that backwardness, being a relative term, must in the context be judged by the general level of advancement of the entire population of the country or the State, as the case may be. More than this, it is difficult to say."

In the context of Article 16(4) this Court also observed that a caste can be

and quite often is a social class in India (as in the case of Scheduled Castes)

and if it is backward socially, it would be a ‘backward class’ for the

purposes of Article 16(4). It held that the accent in Article 16(4) is on social

backwardness, whereas the accent in Article 15(4) is on ‘social and

educational backwardness’. Ultimately, this Court held :

" Neither the Constitution nor the law prescribes the procedure or method of identification of backward classes. Nor is it possible or advisable for the court to lay down any such procedure or method. It must be left to the authority appointed to identify. It can adopt such method/procedure as it thinks convenient and so long as its survey covers the entire populace, no objection can be taken to it. Identification of the backward classes can certainly be done with reference to castes among, and along with, other occupational groups, classes and sections of people.

The Court however made it clear that a caste can be the starting point for

determining a backward class; and that if a caste or class should be

designated as ‘a backward class’ then the creamy layer from such class or

caste should be excluded. This Court observed :

"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 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.

12. It is thus seen that Indra Sawhney certainly went a step further than

Balaji and other cases in holding that a caste can be the starting point for

determination of backwardness -- social and economic. But it is clear from

the decision that caste itself is not the final destination, that is, a caste by

itself, cannot be determinative of social and educational backwardness. A

caste can be identified to be socially and economically backward, only when

the creamy layer is removed from the caste and a compact class emerges

which can be identified as a socially and educationally backward class. Thus

the determination is not by first identifying a caste as a socially and

educationally backward class and, thereafter, remove or exclude the creamy

layer for the purpose of enjoying the benefits flowing to such class. On the

other hand, until and unless, the creamy layer is removed from a caste, there

is no compact class which can be termed as socially and educationally

backward class at all. Thus, while the process of identifying socially and

educationally backward class can conveniently start with a socially and

educationally backward caste, remove the creamy layer therefrom results in

the emergence of compact class which can be termed as a socially and

educationally backward class. In this sense, it can be said that Indra

Sawhney is only a development of the principles laid down in Balaji,

R.Chitralekha, Parimoo, Pradip Tandon, N.M.Thomas N.M. and Vasanth

Kumar, which pointed out that the advanced section of a backward caste

constituting the creamy layer is virtually the same as forward class. If the

creamy layer is not excluded the benefit of reservation will be appropriated

by such advanced sections. Referring to this aspect, Indra Sawhney (supra)

said :

“To continue to confer upon such advanced sections, special benefits, would

amount to treating equals unequally. Secondly, to rank them with the rest of the backward classes would amount to treating the unequals equally.”

This Court directed that a permanent mechanism in the nature of a

Commission to be created to examine the requests for inclusion, and

complaints of over-inclusion and under-inclusion in the lists of OBCs of

citizens, and to advise the Government and such advice should normally be

binding upon the Government. There is therefore, no doubt that only when a

caste identified or perceived as a socially and educationally backward caste

sheds its creamy layer, it becomes a socially and educationally backward

class. The need for exclusion of creamy layer is also evident from the

subsequent decision in Ashoka Kumar Thakur v. State of Bihar – 1995 (5)

SCC 403, Indra Sawhney v. Union of India (II) – 1996 (6) SCC 506,

M.Nagaraj v. Union of India – 2006 (8) SCC 212. When Indra Sawhney has

held that creamy layer should be excluded for purposes of Article 16(4),

dealing with ‘backward class’ which is much wider than ‘socially and

educationally backward classes occurring in Article 15(4) and (5), it goes

without saying that without the removal of creamy layer there cannot be a

socially and educationally backward class.

13. Caste has divided this country for ages. It has hampered its growth.

To have a casteless society will be realization of a noble dream. To start

with, the effect of reservation may appear to perpetuate caste. The

immediate effect of caste based reservation has been rather unfortunate. In

the pre-reservation era people wanted to get rid of the backward tag -- either

social or economical, and were keen to be known as forward. But post

reservation, every one, including those who are considered ‘forward’ fight

for ‘backward’ tag, in the hope of enjoying the benefits of reservations.

When more and more people aspire for ‘backwardness’ instead of

‘forwardness’ the country itself stagnates. Reservation as an affirmative

action is required only for a limited period to bring forward the socially and

educationally backward classes by giving them a gentle supportive push.

But if there is no review after a reasonable gap and there is any tendency to

continue reservations indefinitely, the country will become a caste divided

society permanently. Instead of developing into an united society with

diversity, we will end up as a fractured society for ever suspicious of each

other. While affirmative discrimination is a road to equality, care should be

taken that the road does not become a rut in which the vehicle of progress

gets entrenched and stuck. Any provision for reservation should not become

crutches which themselves create a permanent disability. They should

merely be temporary aid to achieve normalcy. Though the constitutional

goal is a casteless society, Constitution advisedly does not specifically

prescribe a casteless society nor try to abolish caste. But by barring

discrimination in the name of caste and by providing for affirmative action

Constitution seeks to remove the difference in status on the basis of caste.

When the differences in status among castes are removed, all castes will

become equal and gradually lose their importance. A beginning will thus be

made for a casteless egalitarian society.

14. I agree that the petitions shall stand disposed of in the manner stated

by the learned Chief Justice.

………………………J (R. V. Raveendran)

New Delhi; 10th April, 2008

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO.265 OF 2006

Ashoka Kumar Thakur …… Petitioner

Versus

Union of India & Others …… Respondents

WITH

Writ Petition (Civil) Nos.269 AND 598 of 2006, Writ Petition (Civil) Nos.29, 35, 53, 336, 313, 335, 231, 425, 428 of 2007 AND Contempt Petition (C) No.112 of 2007 in Writ Petition (C) No.265 of 2006.

* * * * *

J U D G M E N T

Dalveer Bhandari, J.

1. The 93rd Amendment to the Constitution directly or

indirectly affects millions of citizens of this country. It has

been challenged in a number of writ petitions. This Court

heard these petitions intermittently over the course of several

months. Appearing on behalf of petitioners and respondents,

the country’s finest legal minds assisted us.

2. The fundamental question that arises in these writ

petitions is: Whether Article 15(5), inserted by the 93rd

Amendment, is consistent with the other provisions of the

Constitution or whether its impact runs contrary to the

Constitutional aim of achieving a casteless and classless

society?

3. On behalf of the petitioners, Senior Advocate Mr. F.S.

Nariman, eloquently argued that if Article 15(5) is permitted to

remain in force, then, instead of achieving the goal of a

casteless and classless society, India would be converted into

a caste-ridden society. The country would forever remain

divided on caste lines. The Government has sought to

repudiate this argument. Petitioners’ argument, however,

echoes the grave concern of our Constitution’s original

Framers.

4. On careful analysis of the Constituent Assembly and the

Parliamentary Debates, one thing is crystal clear: our leaders

have always and unanimously proclaimed with one voice that

our constitutional goal is to establish a casteless and classless

society. Mahatma Gandhi said: “The caste system as we know

is an anachronism. It must go if both Hinduism and India are

to live and grow from day to day.” The first Prime Minister,

Pt. Jawahar Lal Nehru, said that “no one should be left in any

doubt that the future Indian Society was to be casteless and

classless”. Dr. B. R. Ambedkar called caste “anti-national”.

5. After almost four decades of independence, while

participating in the Parliamentary Debate on the Mandal

issue, then Prime Minister Shri Rajiv Gandhi on 6th

September, 1990 again reiterated the same sentiments: “I

think, nobody in this House will say that the removal of

casteism is not part of the national goal, therefore, it would be

in the larger interest of the nation to get rid of the castes as

early as possible”. It is our bounden duty and obligation to

examine the validity of the 93rd Amendment in the background

of the Preamble and the ultimate goal that runs through the

pages of the Constitution.

6. To attain an egalitarian society, we have to urgently

remove socio-economic inequalities. All learned counsel for

the petitioners asserted that we must deliver the benefits of

reservation to only those who really deserve it. This can only

be done if we remove the creamy layer. Learned counsel for

the Union of India and other respondents opposed this

assertion. The principle of creamy layer emanates from the

broad doctrine of equality itself. Unless the creamy layer is

removed from admissions and service reservation, the benefits

would not reach the group in whose name the impugned

legislation was passed – the poorest of the poor. Therefore,

including the creamy layer would be inherently unjust.

7. Creamy layer exclusion, however, is just one of the many

issues raised by the parties. I need to examine various facets

of this case in order to decide the validity of the 93rd

Amendment and the Central Educational Institutions

(Reservation in Admission) Bill, 2006 (passed as Act 5 of 2007)

(hereinafter called the “Reservation Act”). I shall focus my

analysis on the following issues:

1A. Whether the creamy layer be excluded from the 93rd Amendment (Reservation Act)?

1B. What are the parameters for creamy layer exclusion? 1C. Is creamy layer exclusion applicable to SC/ST?

2. Can the Fundamental Right under Article 21A be accomplished without great emphasis on primary education?

3. Does the 93rd Amendment violate the Basic Structure of the Constitution by imposing reservation on unaided institutions?

4. Whether the use of caste to identify SEBCs runs afoul of the casteless/classless society, in violation of Secularism.

5. Are Articles 15(4) and 15(5) mutually contradictory, such that 15(5) is unconstitutional?

6. Does Article 15(5)’s exemption of minority institutions from the purview of reservation violate Article 14 of the Constitution?

7. Are the standards of review laid down by the U.S. Supreme Court applicable to our review of affirmative action under Art 15(5) and similar provisions?

8. With respect to OBC identification, was the Reservation Act’s delegation of power to the Union Government excessive?

9. Is the impugned legislation invalid as it fails to set a time-limit for caste-based reservation?

10. At what point is a student no longer Educationally Backward and thus no longer eligible for special provisions under 15(5)?

11. Would it be reasonable to balance OBC reservation with societal interests by instituting OBC cut-off marks that are slightly lower than that of the general category? 8. I have carefully examined the pleadings and written

submissions submitted at length. Admittedly, the provisions

of the Constitution and the Preamble lead to the irresistible

conclusion that the Nation has always wanted to achieve a

casteless and classless society. If we permit this impugned

legislation to be implemented, I am afraid, instead of a

casteless and classless India, we would be left with a caste-

ridden society.

9. The first place where caste can be eradicated is the

classroom. It all starts with education. In other words, if you

belong to a lower caste but are well qualified, hardly anyone

would care about your caste. Free and compulsory education

is now a fundamental right under Article 21A. The State is

duty bound to implement this Article on a priority basis.

There has been grave laxity in its implementation. This laxity

adversely affects almost every walk of life. In my opinion,

nothing is more important for the Union of India than to

implement this critical Article.

10. I direct the Union of India to set a time-limit within which

this Article is going to be completely implemented. This time-

limit must be set within six months. In case the Union of

India fails to fix the time-limit, then perhaps this work will

also have to be done by the Court.

11. The Union of India should appreciate in proper

prospective that the root cause of social and educational

backwardness is poverty. All efforts have to be made to

eradicate this fundamental problem. Unless the creamy layer

is removed, the benefit would not reach those who are in need.

Reservation sends the wrong message. Everybody is keen to

get the benefit of backward class status. If we want to really

help the socially, educationally and economically backward

classes, we need to earnestly focus on implementing Article

21A. We must provide educational opportunity from day one.

Only then will the casteless/classless society be within our

grasp. Once children are of college-going age, it is too late for

reservation to have much of an effect. The problem with the

Reservation Act is that most of the beneficiaries will belong to

the creamy layer, a group for which no benefits are necessary.

Only non-creamy layer OBCs can avail of reservations in

college admissions, and once they graduate from college they

should no longer be eligible for post-graduate reservation.

27% is the upper limit for OBC reservation. The Government

need not always provide the maximum limit. Reasonable cut

off marks should be set so that standards of excellence are not

greatly affected. The unfilled seats should revert to the

general category.

12. These issues first arise out of the text of the impugned

Amendment. Reservation for Socially and Educationally

Backward Classes of Citizens (SEBCs) was introduced by the

93rd Amendment. Article 15(5) states:

“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 educational institutions including private educational institutions, whether aided or unaided by the State, other than minority educational institutions referred to in clause (1) of article 30.”

• Excluding the Creamy Layer from receiving special benefits:

13. Affirmative action is employed to eliminate substantive

social and economic inequality by providing opportunities to

those who may not otherwise gain admission or employment.

Articles 14, 15 and 16 allow for affirmative action. To promote

Article 14 egalitarian equality, the State may classify citizens

into groups, giving preferential treatment to one over another.

When it classifies, the State must keep those who are unequal

out of the same batch to achieve constitutional goal of

egalitarian society.

• Arguments of the Union of India in regard to the creamy layer:

14. Mr. G.E. Vahanvati, learned Solicitor General and Mr K.

Parasaran, Senior Advocate appearing for the Government

contend that creamy layer exclusion is a bad policy. They

argue that if you exclude the creamy layer, there would be a

shortage of candidates who can afford to pay for higher

education. This argument harms rather than helps the

Government. It cannot be seriously disputed that most of the

college-going OBCs belong to the creamy layer for whom

reservations are unnecessary; they have the money to attend

good schools, tuitions and coaching courses for entrance

exams. Naturally, these advantages result in higher test

scores vis-à-vis the non-creamy layer OBCs. The result is that

creamy OBCs would fill the bulk of the OBC quota, leaving the

non-creamy no better off than before. If the creamy get most of

the benefit, why have reservations in the first place? Learned

Senior Counsel for petitioners, Mr. Harish Salve, is justified in

arguing that before carrying out Constitutional Amendments

the Union of India must clearly target its beneficiaries. He

rightly submitted that we should not make law first and

thereafter target the law’s beneficiaries. Failure to exclude the

creamy layer is but one example of this problem.

15. The Government further submitted that the creamy layer

should be included to ensure that enough qualified candidates

fill 27% of the seats reserved to OBCs. The Oversight

Committee disagreed. The Committee relied on data from

Karnataka to disprove the contention that seats go unfilled

when the creamy is excluded: “… the apprehension that seats

will not be filled up if the creamy layer is excluded has been

comprehensively shown to be unfounded.” [See: Oversight

Committee, Vol. 1, Sept. 2006, p. 69, para 1.7.] We shall later

review the Oversight Committee opinion in greater detail.

• The reasons for which the creamy layer should be excluded: 16. At the outset, I note that the Parliament rejected the

Hindi version of the Reservation Act. The Hindi version of the

Reservation Act would have expressly excluded the creamy

layer. [See: Prof. Rasa Singh Rawat’s comments in the

Parliamentary Debate on the Reservation Act, 14 December

2006]

17. The Parliament eventually passed the English version in

which the creamy layer is not mentioned, making its intention

clear. It wanted to include the creamy layer. For all practical

purposes, it did so. Therefore, I will treat it as included.

Counsel for the Union of India argued that it is still

theoretically possible for the executive to exclude the creamy

layer. Much is possible in theory. Given the executive’s failure

to take action since the time the Act was passed, I find this

argument unavailing.

18. With the Parliament’s intention in view, I will deal in

some detail with the reasons as to why the creamy layer

should be excluded from reservation. I do so because I want

to emphasize that the creamy layer must never be included in

any affirmative action legislation. It also becomes imperative

to gather the original Framers’ and the Framers’ intention. At

the outset, we recognise a distinction between the original

Framers and the Framers, i.e., Members of the First

Parliament. Members of the Constituent Assembly and the

First Parliament were one in the same. But the distinction is

necessary to the extent that the First Parliament deviated from

its constitutional philosophy. By examining the debate on

Article 15(4), I may ascertain whether the Framers wanted to

exclude the creamy layer.

19. The First Parliament believed that “economic” was

included in the “social” portion of “socially and educationally

backward.” Prime Minister Nehru said as much:

“One of the main amendments or ideas put forward is in regard to the addition of the word “economical”. Frankly, the

argument put forward, with slight variation, I would accept, but my difficult is this that when we chose those particular words there, “for the advancement of any socially and educationally backward classes”, we chose them because they occur in article 340 and we wanted to bring them bodily from there. Otherwise I would have had not the slightest objection to add “economically”. But if I added “economically” I would at the same time not make it a kind of cumulative thing but would say that a person who is lacking in any of these things should be helped. “Socially” is a much wider word including many things and certainly including economically. Therefore, I felt that “socially and educationally” really cover the ground and at the same time you bring out a phrase used in another part of the Constitution in a slightly similar context.” (See: the Parliamentary Debates on First Amendment Bill, 1 June 1951, p. 9830.)

Had it not been for a desire to achieve symmetry in drafting,

“economically” would have been included. Had this been

done, the creamy layer would have been excluded ab initio.

20. In the 15(4) debate, Shri M.A. Ayyangar’s wanted to add

“economic” to ensure that the rich SEBCs would not receive

special provisions.

“I thought “economic” might be added so that rich men may not take advantage of this provision. In my part of the country there are the Nattukkottai Chettiars who do not care to have English education, but they are the richest of the lot … should there be special reservation for them?” (See: The Parliamentary Debates on First Amendment Bill, 1 June 1951, p. 9817.)

(emphasis added).

This hesitation aside, Shri M.A. Ayyangar was satisfied that

the term “economic” was included in the term “social.” The

Framers were worried about creamy layer inclusion, albeit

under a different name. They wanted to ensure that the

“richest of the [backward] lot” would not benefit from special

provisions. With their sentiment on our side, we are even

more confident that we should strike out in the direction that

strikes down laws that include the creamy layer.

• Including the creamy layer means unequals are treated as equals in violation of the right to equality under Articles 14, 15 and 16.

21. In the present case, Dr. Rajeev Dhavan, the learned

Senior Counsel and Mr. S.K. Jain, the learned counsel

vehemently argued on behalf of petitioners that it is precisely

because equality is at issue that the creamy layer must be

removed. The creamy layer has been the subject matter of a

number of celebrated judgments of this Court. In a seven

Judge Bench in State of Kerala & Another v. N. M. Thomas

& Others (1976) 2 SCC 310, Justice Mathew, in his

concurring judgment, dealt with the right to equality in the

following words:

“66. The guarantee of equality before the law or the equal opportunity in matters of employment is a guarantee of something more than what is required by formal equality. It implies differential treatment of persons who are unequal. Egalitarian principle has therefore enhanced the growing belief that Government has an affirmative duty to eliminate inequalities and to provide opportunities for the exercise of human rights and claims. ………”

(emphasis added)

22. In Indra Sawhney & Others v. Union of India &

Others (1992) Supp (3) SCC 217, (hereinafter referred to as

Sawhney I), this Court has aptly observed that reservation is

given to backward classes until they cease to be backward,

and not indefinitely. This Court in para 520 (Sawant, J.) has

stated as under:

“Society does not remain static. The industrialisation and the urbanisation which necessarily followed in its wake, the advance on political, social and economic fronts made particularly after the commencement of the Constitution, the social reform movements of the last several decades, the spread of education and the advantages of the special provisions including reservations secured so far, have all undoubtedly seen at least some individuals and families in the backward classes, however small in number, gaining sufficient means to develop their capacities to compete with others in every field. That is an undeniable fact. Legally, therefore, they are not entitled to be any longer called as part of the backward

classes whatever their original birthmark. It can further hardly be argued that once a backward class, always a backward class. That would defeat the very purpose of the special provisions made in the Constitution for the advancement of the backward classes, and for enabling them to come to the level of and to compete with the forward classes, as equal citizens.”

(emphasis supplied).

23. For our purposes, creamy layer OBCs and non-creamy

layer OBCs are not equals when it comes to moving up the

socio-economic ladder by means of educational opportunity.

Failing to remove the creamy layer treats creamy layer OBCs

and non-creamy layer OBCs as equals. In the same

paragraph, Justice Sawant stated that “… to rank [the creamy

layer] with the rest of the backward classes would … amount

to treating the unequals equally...” violating the equality

provisions of the Constitution.

24. According to the Kerala Legislature, there was no creamy

layer in Kerala. The legislation was challenged in Indra

Sawhney v. Union of India & Others (2000) 1 SCC 168,

(hereinafter referred to as Sawhney II). The Court struck the

two provisions that barred creamy layer exclusion, concluding

that non-inclusion of the creamy-layer and inclusion of

forward castes in reservation violates the right to equality

under Article 14 and the basic structure.

25. In Sawhney II at para 65, the Court had gone to the

extent of observing that not even the Parliament, by

constitutional amendment, could dismantle the basic structure

by including the creamy layer in reservation:

“What we mean to say is that the Parliament and the legislature in this country cannot transgress the basic feature of the Constitution, namely, the principle of equality enshrined in Article 14 of which Article 16(1) is a facet. Whether the creamy layer is not excluded or whether forward castes get included in the list of backward classes, the position will be the same, namely, that there will be a breach not only of Article 14 but of the basic structure of the Constitution. The non- exclusion of the creamy layer or the inclusion of forward castes in the list of backward classes will, therefore, be totally illegal. Such an illegality offending the root of the Constitution of India cannot be allowed to be perpetuated even by constitutional amendment.”

26. By definition, the creamy and non-creamy are unequal

when it comes to schooling. Relative to their non-creamy

counterparts, the creamy have a distinct advantage in gaining

admission. While the creamy and non-creamy are given equal

opportunity to gain admission in the reserved category, this

equality exists in name only. Will the OBC daughter of a

Minister, IAS officer or affluent business owner attend better

schools than her non-creamy counterpart? Yes. Will she go to

private tuitions unaffordable to her non-creamy counterpart?

Certainly. And where will she cram for the all-decisive

entrance exams? In a coaching center? Of course. Will she

come home from school to find a family member waiting?

Probably. And when she seeks help from her parents, are they

educated and able to give superior assistance with

schoolwork? Most likely.

27. I take judicial notice of these anecdotes, for they flesh out

a simple fact: she has all the resources that her non-creamy

counterpart lacks. It is no surprise that she will outperform

the non-creamy. On average, her lot will take the reserved

seats.

28. I cannot consider the OBC Minister’s daughter and the

non-creamy OBC as equals in terms of their chances at

earning a university seat; nor can I allow them to be treated

equally. To lump them in the same category is an

unreasonable classification. Putting them in head-to-head

competition for the same seats violates the right to equality in

Articles 14, 15 and 16.

29. In its conclusion at para 122, M. Nagaraj & Others v.

Union of India & Others (2006) 8 SCC 212, a Constitution

Bench of this Court while dealing with Article 16(4A) and

16(4B) with regard to SC and ST observed as under:-

“We reiterate that the ceiling limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse.”

It was contended that Nagraj is obiter in regard to creamy

layer exclusion. According to Nagraj, reservation in promotion

for SC/ST is contingent on exclusion of the creamy layer.

(paras 122, 123 and 124). The contention of the Union of

India cannot be accepted. The discussion regarding creamy

layer is far from obiter in Nagraj. If the State fails to exclude

the SC/ST creamy layer, the reservation must fall. Placing

this contingency in the conclusion makes the discussion of

creamy layer part of the ratio.

30. In sum, creamy layer inclusion violates the right to

equality. That is, non-exclusion of creamy layer and inclusion

of forward castes in reservation violates the right to equality in

Articles 14, 15 and 16 as well as the basic structure of the

Constitution.

• If you belong to the creamy layer, you are not SEBC.

31. One of the prominent questions raised in the writ

petitions is whether creamy layer OBCs should be considered

socially and educationally backward under the provisions of

Article 15(5). While interpreting this provision, a basic

syllogism must govern our decision. If you belong to the

creamy layer, you are socially advanced and cannot be given

the benefit of reservation. (See: Sawhney I).

32. Once one is socially advanced, he cannot be socially and

educationally backward. He who is socially forward is likely to

be educationally forward as well. If either condition (social or

educational) goes unmet, one cannot qualify for the benefit of

reservation as SEBC. Being socially advanced, the creamy

layer is not socially backward pursuant to Articles 15(4) and

15(5) of the Constitution.

33. Even the text of Articles 15(4) and 15(5) provides for

creamy layer exclusion. In this sense, one could say that the

term “creamy layer” is synonymous with “non-SEBC”.

34. Similar interpretation is given to “backward classes”

under Article 16(4). The Parliament could not reasonably

make reservation for non-backwards. Such a Bill on the face

of it would violate the Constitution. In Sawhney I, the

Government of India issued an O.M. on 13 August 1990,

reserving 27% of Government posts to SEBCs. Writing for the

majority, at para 792 of page 724, Justice Reddy explained

that the creamy layer was not SEBC.

“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 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”

Even though the O.M. was silent on the issue of creamy layer,

Justice Reddy excluded the creamy layer at para 859(3)(d).

The O.M. could not go into effect until the creamy layer was

excluded. [para 861(b)]. Exclusion was only in regard to OBC;

SC/ST were not touched. (para 792). In Sawhney I, the

entire discussion was confined only to Other Backward

Classes. Similarly, in the instant case, the entire discussion

was confined only to Other Backward Classes. Therefore, I

express no opinion with regard to the applicability of exclusion

of creamy layer to the Scheduled Castes and Scheduled

Tribes.

• Creamy Layer OBCs are not educationally backward

35. In addition to social backwardness, the text of 15(5)

demands that recipients are also educationally backward.

Even though the creamy layer’s status as socially advanced is

sufficient to disqualify them for preferential treatment, the

creamy layer from any community is usually educated and will

want the same for its children. They know that education is

the key to success. For most, it made them. People belonging

to this group do not require reservation.

• Creamy Layer Inclusion Robs the Poor and Gives to the Rich:

36. In a number of judgments, the view has been taken that

the creamy layer’s inclusion takes from the poor and gives to

the rich.

37. Our Courts in following cases had taken the same view.

[See: N.M Thomas (supra), para 124 (seven-Judge Bench);

K.C. Vasanth Kumar & Another v. State of Karnataka,

1985 (Supp) SCC 714, paras 2, 24 and 28 (five-Judge Bench);

Sawhney I., paras 520, 793 and 859(3)(d) (nine-Judge

Bench); Ashoka Kumar Thakur v. State of Bihar & Others

(1995) 5 SCC 403, paras 3, 17 and 18 (two-Judge Bench);

Sawhney II, paras 8-10, 27, 48 and 65-66 (three-Judge

Bench); Nagaraj (supra), paras, 120-124 (five-Judge Bench);

Nair Service Society v. State of Kerala, (2007) 4 SCC 1;

paras 31 and 49-54 (two-Judge Bench)].

38. In Akhil Bharatiya Soshit Karamchari Sangh

(Railway) v. Union of India & Others (1981) 1 SCC 246,

Justice Iyer had this to say about the creamy layer:

“92. … Maybe, some of the forward lines of the backward classes have the best of both the worlds and their electoral muscle qua caste scares away even radical parties from talking secularism to them. We are not concerned with that dubious brand. In the long run, the recipe for backwardness is not creating a vested interest in backward castes but liquidation of handicaps, social and economic, by constructive projects. All this is in another street and we need not walk that way now.

94. … Nor does the specious plea that because a few harijans are better off, therefore, the bulk at the bottom deserves no jack-up provisions merit scrutiny. A swallow does not make a summer. Maybe, the State may, when social conditions warrant, justifiably restrict harijan benefits to the harijans among the harijans and forbid the higher harijans from robbing the lowlier brethren.”

39. Creamy layer inclusion was not enough to strike an

entire provision in this case. He suggests that creamy layer

exclusion is an issue to be dealt with at a later time.

“98. The argument that there are rich and influential harijans who rob all the privileges leaving the serf-level sufferers as suppressed as ever. The Administration may well innovate and

classify to weed out the creamy layer of SCs/STs but the court cannot force the State in that behalf.”

Thus, Justice Iyer does not mandate creamy layer exclusion;

rather, he leaves the question to the State.

40. Apart from judicial pronouncements, the Oversight

Committee suggested that failure to exclude the creamy layer

would lead to unfair results. The Committee was cautious to

reach a conclusion.

41. In its Report, it stated that “… the decision taken was to

leave the matter to the Government of India, keeping in mind

the fact that the ‘creamy layer’ is not covered in the

Reservation Act, 2006.” (See: Oversight Committee, Vol. 1, p.

33 and 4.2.)

42. Before “leaving” the matter to the Government, the

Committee nevertheless made its recommendation: “In case it

is decided not to exclude the ‘creamy layer’, the poorest among

the OBCs will be placed at a disadvantage.” (emphasis added).

(See: Oversight Committee at Appendix I in its Report at p. 70,

para 1.13). At page 69 of Vol. I of its Report, the Committee

offered data to support this conclusion:

“1.6: Appendix-2 examines in detail the status of the socio- economic development of OBCs in respect of such parameters as relate to poverty, health, education, unemployment, workforce participation, land ownership etc. The analysis of the NSS data clearly brings out that inclusion of the creamy layer will result in reserved seats getting pre-empted by the OBCs from the top two deciles at the cost of the poorer income deciles of the OBCs. Thus almost all rural OBCs as well as Urban OBCs from the Northern, Central and Eastern regions of India will be deprived of the intended benefits of reservation. [emphasis added]

1.7: On the other hand, it was argued that if the creamy layer of OBCs is denied access to reservation in education pari- passau with the principle applied in the case of employment, the reserved seats may not get filled up, again defeating the purpose of bringing in reservation for the OBCs. In a case study from Karnataka (included in Annexure X), it has been clearly shown that the OBC quotas have been utilized without any compromise with academic excellence in a situation where the creamy layer has been excluded. The apprehension that seats will not be filled up if the creamy layer is excluded has been comprehensively shown to be unfounded. The case study shows that the performance of students from below the creamy layer is outstanding and much better than general category students.”

43. The Committee could have played it safe. Despite some

opposition, the Committee included its opinion on the matter.

And that opinion is unequivocal: the creamy must be

excluded.

44. What is allegedly for the poor goes to the rich. Is that

reasonable? Trumpeted by the Parliament as a “…boost to the

morale of the downtrodden” and “… in the right direction of

ensuring social justice to other backward classes …” and

“ensuring social justice to those weaker sections …”, Article

15(5) dupes those who actually need preferential treatment.

(See: Prof. Basudeb Barman, M.P., the Parliamentary Debates,

p. 531, December 21, 2005; Prof. M. Ramadass, M.P., at p.

510; and Shri C.K. Chandrappan, M.P., at p. 494 respectively).

For the poorest of the poor, reservation in college is an empty

promise. Few of the financially poor OBCs attend high school,

let alone college. Instead of rewarding those that complete Plus

2, the 93rd Amendment (Art 15(5)) poses another barrier: they

will have to compete with the creamy layer for reserved seats.

45. As explained, the poor lack the resources to compete with

the creamy, who “snatch away” those seats. {N. M. Thomas

(supra), para 124 (Iyer, J.)}. With the creamy excluded, poor

OBCs would compete with poor OBCs – the playing field

levelled. As it stands, the Amendment and Act serve one

purpose: they provide a windfall of seats to the rich and

powerful amongst the OBCs. It is unreasonable to classify

rich and poor OBCs as a single entity. As noted, this violates

the Article 14 right to equality.

46. Unless the creamy layer is removed, OBCs cannot

exercise their group rights. The Union of India and other

respondents argued that creamy layer exclusion is wrong

because the text of the 93rd Amendment bestows a benefit on

“classes”, not individuals. While it is a group right, the group

must contain only those individuals that belong to the group. I

first take the entire lot of creamy and non creamy layer OBCs.

I then remove the creamy layer on an individual basis based

on their income, property holdings, occupation, etc. What is

left is a group that meets constitutional muster. It is a group

right that must also belong to individuals, if the right is to

have any meaning. If one OBC candidate is denied special

provisions that he should have received by law, it is not the

group’s responsibility to bring a claim. He would be the one to

do so. He has a right of action to challenge the ruling that

excluded him from the special provisions afforded to OBCs. In

this sense, he has an individual right. Group and individual

rights need not be mutually exclusive. In this case, it is not

one or the other but both that apply to the impugned

legislation.

• Whether the Creamy Layer exists outside India?:

47. An interesting question arises: does the concept of

creamy layer exist outside India? A 2003 study carried out in

the United States suggests that it does. The study by William

Bowen, former president of Princeton University, found that

when you look at students with the same Scholastic Aptitude

Test (SAT) scores, certain groups have a better chance of being

admitted to college. “The New Affirmative Action,” by David

Leonhardt, New York Times, 30 September 2007, p. 3. All

things being equal, one’s chance of gaining admission is

augmented by belonging to one of the preferred groups.

Individuals belonging to these groups are given preferential

treatment over those who do not.

48. The study demonstrated that Black, Latino and Native-

Americans with the same SAT scores as White or Asian

students had a 28% better chance than the White or Asian

students at gaining admission; those whose parents attended

the college had a 20% advantage over those whose parents did

not; and the poor received no advantage whatsoever over the

rich. (See: New York Times article, p. 3.)

49. The statistics indicate that the failure to exclude the

creamy layer ultimately leads to a situation in which deserving

students are excluded. When we revert to the Indian scenario,

as long as the Government gives handouts to certain groups,

the creamy layer therein will “lap” them up. A scheme in

which the poor receive no advantage can be remedied by

excluding the creamy layer.

50. Even the Mandal Commission, which was established in

1979 with a mandate to identify the socially and educationally

backward, admitted that the creamy layer was robbing fellow

OBCs of reservation. In reference to Tamil Nadu, it said: “In

actual operation, the benefits of reservation have gone

primarily to the relatively more advanced castes amongst the

notified backward classes.” (See: P.37, 8.13 of the Report of

the Backward Classes Commission, First Part, Vols. 1-2,

1980). It also stated that: “it is no doubt true that the major

benefits of reservation…..will be cornered by the more

advanced sections…..” but reasoned that this was acceptable

because reform is presumably slow and should start with the

more advanced of the backward. (See: Page 62, para 13.7

(recommendations)).

51. In N. M. Thomas & Others case (supra), Krishna Iyer,

J. in his concurring judgment in para 124 noted that the

research conducted by the A.N. Sinha Institute of Social

Studies, Patna, had revealed a dual society among harijans in

which a tiny elite gobbles up the benefits.

• Severing the Creamy Layer

52. Technically speaking, I am severing the implied inclusion

of the creamy layer. It is severable for two reasons. First, a

nine-Judge Bench in Sawhney I severed a similar provision

wherein the creamy layer was not expressly included,

upholding the rest of the O.M.’s reservation scheme. Second,

because the Parliament must have known that Sawhney I

had excluded the creamy layer, it seems likely that the

Parliament also realized that this Court may do the same. A

cursory review of the Parliamentary Debates regarding Article

15(5) clearly reveals that the Parliament discussed the

Sawhney I judgment in detail. (See: for example, comments

made by Shri Mohan Singh, p.474 and Shri Devendra Prasad,

pages 478-479 on 21 December 2005). Had the Parliament

insisted on creamy layer inclusion, it could have said as much

in the text of 15(5). Instead, the Parliament left the text of

15(5) silent on the issue, delegating the issue of OBC

identification to the executive in Section 2(g) of the Reservation

Act.

53. The test for severability asks a subjective question: had

the Parliament known its provision would be struck would it

still have passed the rest of the legislation? (See: R.M.D.

Chamarbaugwalla & Another v. Union of India &

Another, AIR 1957 SC 628 at page 637 at para 23). It is never

easy to say what the Parliament would have done had it

known that part of its amendment would be severed.

Nevertheless, I find it hard to imagine that the Parliament

would have said, “if the creamy is excluded, the rest of the

OBCs should be denied reservation in education.” It seems

unlikely that it would have been an all-or-nothing proposition

for the Parliament, when the very goal of the impugned

legislation of promoting OBC educational advancement does

not depend on creamy layer inclusion. For these reasons, I

sever or exclude the implied inclusion of the creamy layer.

• Identification of Creamy Layer

54. Income as the criterion for creamy layer exclusion is

insufficient and runs afoul of Sawhney I. (See: page 724 at

para 792). Identification of the creamy layer has been and

should be left to the Government, subject to judicial direction.

For a valid method of creamy layer exclusion, the Government

may use its post-Sawhney I criteria as a template. (See: O.M.

of 8-9-1993, para 2(c)/Column 3, approved by this Court in

Ashoka Kumar Thakur (supra), para 10). This schedule is a

comprehensive attempt to exclude the creamy layer in which

income, Government posts, occupation and land holdings are

taken into account. The Office Memorandum is reproduced

hereunder:

“No. 36012/22/93- Estt (SCT) Government of India

Ministry of Personnel, Public Grievances & Pension (Department of Personnel & Training) New Delhi, the 8th September, 1993

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 O.M. No.36012/31/90-Estt(SCT) dated 13th August, 1990 and

25th September, 1991 regarding reservation for Socially and Economically Backward Classes in Civil Posts and Services under the Government of India and to say that following the Supreme Court judgment in Indra Sawhney v. Union of India & Others (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 reservation for Other Backward Classes in civil posts and services under Government of India.

2. Consequent to the consideration of the Expert Committee’s recommendation 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 percent) 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) Candidates belonging to OBCs recruited on the basis of merit in an open competition on the same standards prescribed for the general candidates shall not be adjusted against the reservation quota of 27%.

(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 Welfare.

(d) The OBCs for the purpose of the aforesaid reservation would comprise, in the first phase, the castes and communities which are common to both the lists in the report of the Mandal Commission and the State Government’s Lists. A list of such castes and communities is being issued separately by the Ministry of Welfare.

(e) The aforesaid reservation shall take immediate effect. However, this will not apply in vacancies where the recruitment process has already been initiated prior to the issue of this order.

3. Similar instructions in respect of public sector undertakings and financial institutions including public sector banks will be issued by the Department of Public Enterprises and by the Ministry of Finance respectively from the date of this Office Memorandum.

SCHEDULE

Description of Category

To whom rule of exclusion will apply.

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 & Auditor General of India;

(e) Persons holding Constitutional positions of like nature.

II.

SERVICE CATEGORY

A. Group A/Class 1 officers of the All India Central and State Services (Direct Recruits)

Son(s) and daughter(s) of

(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 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.

(f) Provided that the rule of exclusion shall not apply in the following cases :-

(a) Sons and daughters 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.

Group B/Class II officers of the Central & 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 gets 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: Sons and daughters of

(a) Parents both of whom are Class 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

The criteria enumerated in A & B above in this Category will apply

etc. mutatis mutandi 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 Para Military 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 services 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 into account for applying the rule of exclusion unless the 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 ENGANGED 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 person, sports professional, media professional or any other vocations of like status. Criteria specified against Category VI will apply:

(II) Persons engaged in trade, business and industry

Criteria specified against Category VI will apply:

Explanation:

(i) Where the husband is in some 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

Son(s) and daughter(s) of persons belonging to a family (father, mother and minor children) which owns

(a) only irrigated land which is equal to or more than 85% of the statutory ceiling area, or

(b) both irrigated and unirrigated land, as follows:

(i) The rule of exclusion will apply where the pre-condition 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 pre- condition 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 dis-entitlement will occur.

(ii) The rule of exclusion will not apply if the land holding of a family is exclusively unirrigated.

B. Plantations

(i) Coffee, tea, rubber, etc.

(ii) Mango, citrus, apple plantations etc.

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.

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

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 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 years.

(b) Persons in Categories I, II, III and VA who are not disentitled to the benefit of reservation but have income from other sources of wealth which will bring them within the 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” occur in this schedule, it shall mean incapacitation which results in putting an officer out of service.

Smt. Sarita Prasad Joint Secretary to the Government of India.”

55. In sum, the schedule excludes the children of those who

hold constitutional posts, e.g., the children of the President of

India, Supreme Court Judges, Chairman and Members of

UPSC and others are excluded. Class 1 Officers’ children are

not eligible for OBC perks either. When both parents are

Class-II Officers, their children are excluded. The same

criteria that apply to Class-I and II officers apply to children of

parents who work at high levels within the private sector.

Agricultural owners are excluded when their irrigated holdings

are more than or equal to 85% of the statutory ceiling. The

O.M. further excludes persons having a gross annual income

of Rs.2.5 lakh or more. The Government raised the income

limit from Rs.1 to Rs.2.5 lakh on 09.03.2004 vide O.M.

36033/3/2004.

56. The creamy layer schedule of the O.M. dated 8.9.93, in

my opinion, is not comprehensive. This should be revised

periodically - preferably once in every 5 years, in order to

ensure that creamy layer criteria take changing circumstances

into account.

57. Apart from the people who have been excluded vide the

office memo, I urge the Government to make it more

comprehensive. The Government should consider excluding

the children of sitting and former Members of Parliament (MP)

and Members of Legislative Assemblies (MLA) from special

benefits. If constitutional authorities have been excluded from

benefits because of their status or resources, the same should

apply to children of former and sitting MPs and MLAs. I hope

the judiciary will not have to involve itself in this matter.

2. Applying Article 21A to the Reservation Act

58. On 18 December 2006, in the Rajya Sabha Debate on the

Reservation Act, Member of Parliament and former Governor,

Dr. P.C. Alexander summed up what would become one of

Petitioners’ arguments. Should Rs.17,000 crores be spent on

implementing the Reservation Act for higher education when

primary/secondary schooling is in such bad shape? Dr.

Alexander stated:

“Sir, this spending Rs.17,000 crores or whatever amount is needed for adding seats in the Engineering colleges, IIMs and IITs is reversing our priorities. If you have the money for education, spend it on schools. Spend it on the rural areas for primary schools; spend it on the schools, which are poorly starved in the urban areas. Instead of doing that, you spend it by adding to the numbers because you want to appease the so-called poorer sections in the higher castes. So, we have taken care of you and you tell the backward classes we are taking care of all of you. This is where we land ourselves in trouble. We have cash resources. They should be spent where priorities are fixed clearly in our eyes and we don’t want to do that.”

Spending on higher at the expense of lower education raises

the specter of conflict with Article 21A. By the 86th

Amendment, Article 21A was inserted in our Constitution.

Article 21A reads as follows:

“The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.”

59. Under Article 21A, it is a mandatory obligation of the

State to provide free and compulsory education to all children

aged six to fourteen. In order to achieve this constitutional

mandate, the State has to place much greater emphasis on

allocating more funds for primary and secondary education.

There is no corresponding constitutional right to higher

education. The entire Nation’s progress virtually depends

upon the proper and effective implementation of Article 21A.

60. This Court in Unni Krishnan, J.P. & Others v. State of

Andhra Pradesh & Others (1993) 1 SCC 645 para 166 held

as under:

“… right to education is implicit in and flows from the right to life guaranteed by Article 21. That the right to education has been treated as one of transcendental importance in the life of an individual [and] has been recognized not only in this country since thousands of years, but all over the world. … without education being provided to citizens of this country, the objectives set forth in the Preamble to the Constitution cannot be achieved. The Constitution would fail.”

This observation encouraged the Parliament to insert Article

21A into the Constitution.

61. In Unni Krishnan (supra), Justice Reddy observed that

the quality of education in Government schools was extremely

poor and that the schools were woefully inadequate to the

needs of the children. He noted that many countries spend

6% to 8% of Gross Domestic Product on education. Our

expenditure on education is just 4% of GDP.

62. Though an improvement over past performance, the

overall education picture leaves much to be desired. The bad

news is really bad. Even where we have seen improvement,

there is still failure. A survey by Pratham, an NGO, fleshes

out the acute problems found in rural schools. (See: ASER

2007 – Rural Annual Status of Education Report for 2007,

published on January 16, 2008). The survey covered 16,000

villages. As Pratham indicates, there are an estimated 140

million children in the age group 6 to 14 years in primary

schools. Of these 30 million cannot read, 40 million can

recognize a few alphabets, 40 million can read some words,

and 30 million can read paragraphs. Over 55 million of these

children will not complete four years of school, eventually

adding to the illiterate population of India. The national

literacy rate is 65%.

63. 24 districts with more than 50,000 out of school children

means we have failed 24 times over. 71 districts in which

there are 60 students per teacher is just as bad, if not worse.

According to Pratham (and in line with the Ministry of HRD’s

six-month review), the number of out of school children has

hovered around 7,50,000. [page 6]. Moreover, it goes without

saying that children need proper facilities. Today, just 59% of

schools can boast of a useable toilet. [page 49].

64. The quality of education is equally troubling. For

standards I and II, only 78.3% of students surveyed could

recognize letters and read words or more in their own

language. [page 47]. In 2006, it was even worse – only 73.1%

could do so. It is disheartening to peruse the statistics for

standards III to V, where only 66.4% could read Standard I

text or more in their own language in 2007. [page 47]. As

Pratham stated at page 7:

“What should be more worrying though, is the fact that in class 2, only 9 percent children can read the text appropriate to them, and 60 percent cannot even recognise numbers between 10 and 99.”

65. In the third to fifth standards, 40% of students surveyed

could not subtract. The latest figures indicate that 58.3%

children in the fifth standard read at the level appropriate for

second Standard students. [page 32]. In both 2005 and 2007,

only 74.1% of enrolled children were in attendance. [page 49].

66. The learned Solicitor General, Mr Vahanvati, submitted

that the Government has now placed sufficient emphasis on

primary education. In 2001-2002, the Government launched

Sarva Shiksha Abhiyan (SSA). This national programme’s goal

is to universalize elementary education. It supplements

Governmental spending on education. As the Solicitor

General explained, it was founded on the idea that education

for those between the ages of six to fourteen is a fundamental

right. In this way, SSA seeks to fulfill the Government’s

obligation under Article 21A to provide free and compulsory

education to this age group. Some of the SSA’s

accomplishments merit mention.

67. By March 2007, 2,03,577 toilets had been constructed or

were under construction, covering 87% of the goal; more than

six crore free textbooks had been supplied – 96% of the goal;

1,93,220 new schools had been completed or were under

construction, i.e., 80% of the desired mark. The learned

Solicitor General further provided that enrolment for all

districts in 2004-05 for classes I-V was 11,82,96,540. In

2005-06, the number increased to 12,46,15,546. A similar

increase was seen in Classes VI-VII/VIII: from 3,77,17,490 to

4,36,67,786. The total number of teachers increased from

36,67,637 in 2003-04 to 46,90,176 in 2005-06.

68. It is the learned Solicitor General’s contention that SSA

was responsible for many of the gains cited above. This

includes the improved statistics on the student-teacher ratio,

out of school children and enrollment rate for girls.

69. While the Government is on the right track with regard to

improving the infrastructure of our system, books and

buildings only go so far. They are necessary but not sufficient

for achieving the ultimate goals of (1) keeping children in

school, (2) ensuring that they learn how to think critically and

(3) ensuring that they learn skills that will help them secure

gainful employment. The quality of education provided in the

majority of primary schools is woeful. That is why I find it

necessary to review Government spending on education –

especially at the primary/secondary level.

70. Undoubtedly, the Government has allocated more funds

of late for education, but we need to have far more allocation

of funds and much greater emphasis on free and compulsory

education. Anything less would flout Article 21A’s mandate.

According to H.R.D. Annual Reports read with the Union of

India Budget 2008-09, we spend roughly seven times as much

on the individual college student than the individual primary

or secondary student.

Spending per Student: Comparing that which is spent on each primary/secondary student versus each higher education student

Year & Level of Schooling

Estimated # of Enrolled Students*

Total Rs. Allocated** Expenditure per student in Rs.

2006-2007 School Education/

Literacy

219083879 168970000000 771

2006-2007 Tertiary Education

11777296 69120900000 5868

2007-2008 School Education/

Literacy

219083879 231913500000 1059

2007-2008 Tertiary Education

11777296 63973600000 5432

2008-2009 School Education/

Literacy

219083879 278500000000 1271

2008-2009 Tertiary Education

11777296 108528700000 9215

* = Estimated number of students for primary/secondary level is taken from 2004-2005 Annual Report, p. 250 at http://www.education.nic.in/AR/AR0607-en.pdf. In the same Annual Report, 11777296 students were enrolled in higher education in 2004- 2005. For consistency’s sake, I have used the 2004-2005 estimates. I have found no information that suggests that enrolment for one has significantly outpaced the other.

** = Government of India, Expenditure Budget Vol. 1, 2008-2009, p. 6, Total Expenditure of Ministries/Departments (school education/literacy and higher education have been added).

71. In a country where only 18% of those in the relevant age

group make it to higher education, this is incredible. See

NSSO 1999-2000. It is not suggested that higher education

needs to be neglected or that higher education should not

receive more funds, but there has to be much greater

emphasis on the primary education. Our priorities have to be

changed. Nothing is really more important than to ensure

total compliance with Article 21A. How can a sizeable portion

of the population be precluded from realizing the benefits of

development when almost everyone acknowledges that the

children are our future?

1. Education for children up to the age of fourteen years

should be free. This has also been suggested in the

recommendations of the Kothari Commission on Education in

1966. Taking the country’s rampant poverty into account, free

education up to the age 14 years is absolutely imperative.

There is no other way for the poor to climb their way out of

this predicament.

2. Mr. P.P. Rao, learned Senior Advocate, rightly

submitted that when you lack a school building, teachers,

books and proper facilities, your schooling might be “free” but

it is not an “education” in any proper sense. Adequate

number of schools must be established with proper

infrastructure without further delay. In order to achieve the

constitutional goal of free and compulsory education, we have

to appreciate the reality on the ground. A sizeable section of

the country is still so poor that many parents are compelled to

send their children to work. The State must carve out

innovative policies to ensure that parents send their children

to school. The Mid-Day Meal Scheme will go a long way in

achieving this goal. But, apart from Mid-Day Meals, the

Government should provide financial help to extremely poor

parents.

74. In addition to free education and/or other financial

assistance, they should also be given books, uniforms and any

other necessary benefits so that the object of Article 21A is

achieved. Time and again, this Court, in a number of

judgments, has observed that the State cannot avoid its

constitutional obligation on the ground of financial inabilities.

(See: Hussainara Khatoon & Others (III) v. Home

Secretary, State of Bihar, Patna (1980) 1 SCC 98, 107 at

para 10).

75. In Vasanth Kumar (supra) at para 150, Justice

Venkataramiah suggested that the State provide preferential

treatment such as tuition, scholarships, free boarding and

lodging, etc. According to UNESCO’s Education for All, Global

Monitoring Report (2008) at page 115, at least fourteen

countries have cash-transfer programmes that target poor

households with school-age children. The largest programme

is in Brazil, where 46 million people receive an education

transfer of up to $44 USD monthly per household in extreme

poverty with children below age 16. According to the Report,

the programme has reduced drop-out rates by up to 75%

among beneficiaries in its more recent stage.

76. Such a programme is not foreign to India. According to

UNICEF, the State of Gujarat put the idea of financial

incentives for youth into action:

“Figures indicate that the school enrolment drive of the state Government supported by incentives like Vidyalaxmi bond of Rs.1,000 given to each girl who completes primary education and 60 kg of wheat for tribal girls attending school, has met with significant success. In addition to the various incentives by the Government, many a corporate houses and community have also come forward to motivate parents and children by donating school bags, uniforms, stationery, etc. As a result, the drop-out rate has come down from 35.31 % in 1997-1998 to 3.24% in 2006-2007 in class 1-5. In girls, this rate has dropped from 38.95% to 5.97 in the same time period.”

77. In January 2008, Haryana Chief Minister Mr. Bhupinder

Singh Hooda unfurled an incentive scheme for SC students in

which students would receive a one-time payment in addition

to a monthly stipend for attending school. (See: “Incentives

announced to curb dropout rate”, The Tribune, 5 Jan. 2008).

The relevant portion is mentioned hereinbelow:

“Secretary, education, Rajan Gupta said a one-time allowance of Rs.740 to Rs.1,450 would be given to SC students from class I to XII. … Under the monthly incentive scheme, boys and girls studying in class I to V would be given Rs100 and Rs.150, respectively, per month and boys and girls of class VI to VIII Rs.150 and Rs.200. Similarly, boys and girls of class IX to XII would be given Rs.200 and Rs.300, respectively, and boys and girls studying science subjects in class XI and XII Rs.300 and Rs.400, respectively. … This monthly incentive to the students would be deposited in their bank accounts to maintain transparency in the scheme, he added.”

78. In the name of transparency, students’ attendance

records could be made available to administrators and

parents. Students would be paid to attend school. They

would receive a sum for each day of school that they attended.

If you only attend 7 out of 10 school days, you would only

receive 70% of the stipend.

79. Ultimately, this is the most important aspect of

implementing Article 21A, incentives should be provided to

parents so that they are persuaded to send their children to

school. More than punishment, creative incentive programmes

will go a long way in the implementation of the fundamental

right enshrined under Article 21A.

• Historical Perspective on Compulsory Education:

80. Almost two centuries ago, Clause 43 of The Charter Act

of 1813 made education a State responsibility. [See: “Free

and Compulsory Education: Genesis and Execution of

Constitutional Philosophy”, Dr. P.L. Mehta and Rakhi Poonga,

Deep and Deep Publications, New Delhi (1997)]. [pages 42-47].

The Hunter Commission (1882-83) was the first to recommend

universal education in India. Thereafter, the Patel Bill, 1917

was the first compulsory education legislation. It proposed to

make education compulsory from ages 6 to 11.

81. The Government of India Act, 1935 provided that

“education should be made free and compulsory for both boys

and girls.” Free and compulsory education got a further boost

when the Zakir Hussain Commission recommended that the

State should provide it. The 1944 Sargent Report strongly

recommended free and compulsory education for children

aged six to fourteen. By 1947, primary education had been

made compulsory in 152 urban areas and 4995 rural areas.

82. The State has been making some endeavour to provide

free and compulsory education since 1813 in one form or the

other. When the original Framers gathered at the Constituent

Assembly, their desire to provide free and compulsory

education was well established. The real question in the

Debate was whether the original Framers would make free and

compulsory education justiciable or not. They oscillated

between the options, first placing it in the fundamental rights

and later moving it to the directive principles of State policies

under Article 45 of the Constitution.

83. Over 50 years later, the Parliament revisited the subject.

The Parliamentary debate on Article 21A offers a glimpse into

the history of compulsory education in other countries. The

then Minister of Human Resource Development, Dr. M.M.

Joshi, referred to the speech of Shri Gopal Krishna Gokhale on

compulsory education. While debating a bill in the imperial

legislative council in 1911, Shri Gokhale said that in most

countries:

“…elementary education is both compulsory and free, and in a few, though the principle of compulsion is not strictly enforced or has not been introduced it is either wholly or for the most part gratitutious, in India alone it is neither compulsory nor free. Thus in Great Britain and Ireland, France, Germany, Switzerland, Austria, Hungary, Italy, Belguim, Norway, Sweden, the United States of America, Canada, Australia and Japan it is compulsory and free. …. In Spain, Portugal, Greece, Bulgaria, Servia and Rumania, it is free, and in theory, compulsory, though compulsion is not strictly enforced.” [Lok Sabha Debates, 28 November, 2001, Vol.20, page 476].

84. In 1948, the United Nations made its own

pronouncement on compulsory education. Article 26(1) of the

Universal Declaration of Human Rights made free and

compulsory education a lofty if not enforceable goal. While

many states consider it an authoritative interpretation of the

United Nations Charter, the Declaration is not a treaty and is

not intended to be legally binding. Article 26(1) states:

“Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.”

85. Our original Framers put a similar emphasis on the

matter, placing free and compulsory education in the Directive

Principles. The un-amended Article 45 provided that:

“The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years.”

86. At this juncture, I deem it appropriate to refer to the

Parliamentary Debate on the aspect of free and compulsory

education. In the Lok Sabha debate of 28 November 2001 at

Vol. 20, Shri M.V.V.S. Murthi, at page 499, stated:

“Unless the Government makes primary education compulsory, no village can develop. If I say what they are doing in Andhra Pradesh, some Members may again cry foul. In Andhra Pradesh, we are having Education Committees. If there are any dropouts, the Committee will go to the village and find out the reason as to why they have dropped out. It is very important.”

87. The Report of the Kothari Commission, 1964-1966,

headed by Prof. D. S. Kothari, provided important

recommendations on compulsory education. Nevertheless, the

circumstances of the day compelled it to soften its

suggestions. The Nation was relatively poor and could not

afford drastic increases in education spending. Some excerpts

of this report are reproduced as under:

“5.01. …But in any given society and at a given time, the decisions regarding the type, quantity and quality of educational facilities depend partly upon the resources available and partly upon the social and political philosophy of the people. Poor and traditional societies are unable to develop even a programme of universal primary education. But rich and industrialized societies provide universal secondary education and expanding and broad-based programmes of higher and adult education. Feudal and aristocratic societies emphasize education for a few. But democratic and socialistic societies emphasize mass education and equalization of educational opportunities. The principal problem to be faced in the development of human resources, therefore, is precisely this: How can available resources be best deployed to secure the most beneficial form of educational development? How much education, of what type or level of quality, should society strive to provide and for whom?

5.03 Increasing the Educational Level of Citizens. In the next two decades the highest priority must be given to programmes aimed at raising the educational level of the average citizen. Such programmes are essential on grounds of social justice, for making democracy viable and for improving the productivity of the average worker in agriculture and industry. The most crucial of these programmes is to provide, as directed by Article 45 of the Constitution, free and compulsory education of good quality to all children up to the age of 14 years. In view of the immense human and physical resources needed, however, the implementation of this programme will have to be phased over a period of time.”

88. When Article 21A was introduced, some Members of

Parliament argued that financially poor parents who fail to

send their children to school should not be punished and that

the word “compulsion” in this Article should be understood to

apply exclusively to the State.

89. Let me examine this argument. The 86th Amendment

made three changes to the Constitution. It added Articles 21A

and 51A(k) and amended Article 45. I turn my focus to Article

51A(k). In addition to rejecting an amendment that would

have neutered compulsory education, the Parliament made a

positive gesture. Though it never passed legislation seeking to

implement compulsory education, it had not completely

ignored the subject. From Article 51A(k), it becomes clear that

parents would be responsible for sending their children to

school. Article 51A read with 51A(k) is reproduced as under:

“It shall be the duty of every citizen of India – who is a parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years.”

90. Just as Article 51A(a) does not penalize disrespect of the

National Flag, Article 51A(k) does not penalize

parents/guardian for failing to send children to school. There

is, of course, legislation that gives teeth to Article 51A(a). (See:

The Prevention of Insults to National Honour Act, 1971,

Section 3A).

91. Article 51A(k) indicates that it is parents, not the State,

who are responsible for making sure children wake up on time

and reach school. Thus, Article 21A read with Article 51A(k)

distributes an obligation amongst the State and parents: the

State is concerned with free education, parents with

compulsory. Notwithstanding parental duty, the State also

has a role to play in ensuring that compulsory education is

feasible – a topic I will cover below.

92. The Central Government has made some effort to fulfill

its obligation under Article 21A with regard to “free education.”

Sarva Shiksha Abhiyan is one such example. When it comes

to “compulsory education,” the Central Government has made

no such effort. The Parliament has not passed any legislation.

The executive has not issued any order. What we have is a

patchwork of different State and Union Territory laws. These

States/UTs (and NCR) include:

Assam, Andhra Pradesh, Bihar, Chhatisgarh, Goa, Gujarat, Haryana, Himachal Pradesh, Jammu & Kashmir, Karnataka, Kerala, Madhya Pradesh, Maharashtra, Orissa, Punjab, Rajasthan, Sikkim, Tamil Nadu, Uttar Pradesh, West Bengal, Delhi, Andaman & Nicobar Islands.

93. The majority of the States and Union Territories levy very

small fines on parents. I note that these laws do not go into

effect with one unexcused absence. Notice is given to the

parents, giving them time to remedy the problem. Of course,

enforcement is almost always a different story.

94. In contrast to the relatively light aforementioned

sentences, the Compulsory Education Bill, 2006 introduced in

the Rajya Sabha would provide six months imprisonment as a

penalty for those who preclude children from going to school.

If this Bill becomes law, Section 7 would dictate the following:

"If any person including parents of children prevents any boy or girl child from going to school or causes hindrance or obstruction in any way, he shall be punishable with imprisonment, which may extend to six months."

95. It seems that the Bill simultaneously targets employers

and parents. Employers would be punished when they hire a

child to work too much or during school hours. Similarly,

parents would also be punished for allowing this to happen.

The Bill would also provide for scholarships, free hostel

facilities and other incentives, “whenever necessary” and “as

may be prescribed".

96. In Bandhua Mukti Morcha v. Union of India &

Others, (1997) 10 SCC 549 at page 557 at para 11, the Court

explained why education should be compulsory. In essence, a

citizen is only free when he can make a meaningful challenge

to his fellow citizens or Government’s attempt to curtail his

natural freedom. For this to happen, he needs a certain

degree of education. This is why Article 21A may be the most

important fundamental right. Without it, a citizen may never

come to know of his other rights; nor would he have the

resources to adequately enforce them. The relevant passage at

para 11 reads as under:-

“A free educated citizen could meaningfully exercise his political rights, discharge social responsibilities satisfactorily and develop a spirit of tolerance and reform. Therefore, education is compulsory. Primary education to the children,

in particular, to the child from poor, weaker sections, Dalits and Tribes and minorities is mandatory. The basic education and employment-oriented vocational education should be imparted so as to empower the children within these segments of the society to retrieve them from poverty and, thus, develop basic abilities … to live a meaningful life … Compulsory education, therefore, to these children is one of the principal means and primary duty of the State for stability of the democracy, social integration and to eliminate social tensions.”

97. In contrast to Article 51A(k), State and Union Territory

laws and Parliamentary intent with regard to Article 21A, the

Court in Mukti Morcha was inclined to suggest, not hold, that

the State was exclusively responsible for compulsory

education. It went on to reaffirm M.C. Mehta v. State of

Tamil Nadu & Others (child labour matter) (1996) 6 SCC

756. In that case, the Court took up the issue of child labour

in hazardous fields when it learnt of an accident in a cracker

factory in Sivakasi.

98. The said case at para 28 identified poverty as the root

cause of child labour:

“Of the aforesaid causes, it seems to us that … poverty is basic reason which compels parents of a child, despite their unwillingness, to get it employed. The Survey Report of the Ministry of Labour (supra) had also stated so. Otherwise, no parents, specially no mother, would like that a tender-aged

child should toil in a factory in a difficult condition, instead of its enjoying its childhood at home under the paternal gaze.”

99. In other words, parents send children to work because

parents have no other choice. Food comes first. If the State

does not provide extra income so as to remove the incentive to

send children to work, it is wasting its time on mere gesture.

The Court in para 29 concluded that action must be taken:

“It may be that [child labour] would be taken care of to some extent by insisting on compulsory education. Indeed, Neera [Burns] thinks that if there is at all a blueprint for tackling the problem of child labour, it is education. Even if it were to be so, the child of a poor parent would not receive education, if per force it has to earn to make the family meet both the ends. Therefore, unless the family is assured of income aliunde, problem of child labour would hardly get solved; and it is this vital question which has remained almost unattended. We are, however, of the view that till an alternative income is assured to the family, the question of abolition of child labour would really remain will-o’-the-wisp.” (emphasis added).

100. It is interesting to note that compulsory education has

been introduced in one form or the other in various countries.

From the historical experience of these nations, we learn that

the legislation pertaining to compulsory education has played

an important role in improving educational outcomes.

• Compulsory education’s roots in the United States

101. Compulsory education has had a long history outside of

India. In 1852, the State of Massachusetts enacted the first

compulsory attendance law in the United States; though

compulsory education laws existed much earlier in many

states, the first dating back to 1642 in Massachusetts. “Were

Compulsory Attendance and Child Labor Laws Effective? (See:

An analysis from 1915 to 1939.” (2001) at p. 2. Prof. Adriana

Lleras-Muney of Princeton University.)

• Reasons from abroad for implementing compulsory education:

102. Prof. Lleras-Muney explains that those who advocated

for compulsory education believed that universal education

was necessary to promote democracy and guarantee a

common American culture. (Page 11). Given the influx of

immigrants, some of whom came from undemocratic

countries, many supporters of legislation viewed compulsory

education as an instrument for assimilation.

103. Other reasons cited by compulsory education proponents

in the United States included the reduction of crime, racism

and inequality. Prof. Oreopoulos of the University of Toronto

cites to sources that make it appear as though the reasons for

adopting compulsory education in Canada mirrored those

cited in the United States: the emphasis was on good

citizenship and economic development:

“Archibald Macallum, an Ontario teacher, summarized the latter argument vigorously in an 1875 report favouring the introduction of compulsory schooling in Canada: ‘Society has suffered so cruelly from ignorance, that its riddance is a matter of necessity, and by the universal diffusion of knowledge alone can ignorance and crime be banished from our midst; in no other way can the best interests of society be conserved and improved than by this one remedy – the compulsory enforcement of this great boon – the right of every Canadian child to receive that education that will make him a good, loyal subject, prepared to serve his country in the various social functions which he may be called on to fill during his life; and prepare him, through grace, for the life to come’ (Annual Report of the Ontario Teachers’ Association, 1875, as cited in Prentice and Houston 1975, 175–6). (See: The Canadian Journal of Economics, Vol. 39, No.1, February (2006) “The compelling effects of compulsory schooling: the evidence from Canada,” Prof. Oreopoulos, at page 23).”

• Empirical data indicating that compulsory education has a positive effect:

104. Prof. Oreopoulos provides data that show the fruits of

imposing education on citizens. Crime may be lowered, health

improved and civic activity increased. Compulsory education

may also lead to a substantial increase in income for

individuals. Moreover, compulsory education, if it does not

cause, may at least contribute to an increase in bilingualism

and employment and a reduction in poverty. The relevant

portion is reproduced hereunder:

“(Page 24). Other papers find evidence of social returns, but for non-pecuniary outcomes. Lochner and Moretti (2002), for example, find that compulsory schooling lowers crime, while Lleras-Muney (2002) finds a correlation with improved health. In studies of the United States and United Kingdom, Dee (2003) and Milligan, Moretti, and Oreopoulos (2003) estimate that tighter restrictions on leaving school early correspond to increased levels of civic activity (like voting and discussing politics). … My analysis suggests that students compelled to complete an extra grade of school have historically experienced an average increase of 9–15% in annual income.

(Page 48). I find that the introduction of tighter provincial restrictions on leaving school between 1920 and 1990 raised average grade attainment and incomes. Students compelled to attend an extra year of school experienced an average increase in annual income of about 12%. I also find that compulsory schooling is associated with significant benefits in terms of other socio-economic outcome measures ranging from bilingualism, employment, and poverty status. These results hold up against many specifications checks and are entirely consistent with previous studies.”

105. In addition to increased income, Prof. Lleras-Muney

found that legally requiring a child to attend school for one

more year increased educational attainment by roughly five

percentage points. (Page 8). Educational attainment refers to

time spent in school.

• Example of compulsory education statutes

106. The causes of low enrolment, high drop-out rates and

frequent truancy in the U.S. and India differ, but the

consequences thereof do not. In either case, citizens who lack

education are at an extreme disadvantage. In India, poverty

has been identified as the ultimate cause of lackluster

enrolment and attendance rates. Children are compelled to

work. In developed countries like the United States or

Canada, children rarely fail to attend school because of

economic constraints. Instead, a number of different factors

may contribute to truancy. High school students may drop

out “… because they detest school, lack motivation, or

anticipate little reward from graduation.” (See: The Canadian

Journal of Economics, “The compelling effects of compulsory

schooling: the evidence from Canada,” Prof. Oreopoulos, p. 23,

(quoting from Eckstein, Zvi, and Kenneth I. Wolpin (1999)

“Why youths drop out of high school: the impact of preferences,

opportunities, and abilities,” Econometrica 67, 1295–339).

107. As I detail below, students and parents in the United

States often face the same fines when students fail to attend

school. Fines for students make more sense when low self-

control is the reason for which they fail to attend school. At

the same time, punishing Indian students who have no choice

but to work would make no sense. Such a punishment should

not be borrowed from the United States.

108. In many jurisdictions in the United States, the

attendance officer is responsible for enforcing compulsory

attendance laws for his area or school. Given the

overwhelming problem of sub-par enrolment and attendance

in India, we doubt that one school official could sufficiently do

the work of inspecting places of employment for children who

have violated attendance laws.

109. Indeed, existing legislation in India already envisages the

employment of attendance officers. The Delhi Primary

Education Act, 1960, Sec. 7. Yet, there is nothing to suggest

that these employees have adequately dealt with truancy. As

mentioned, this is, in part, due to the economic conditions in

which many parents find themselves. Financial assistance or

incentives must be given. Only then, may the Government

actively enforce compulsory attendance legislation.

110. We must also remember that it is not only the child who

fails to attend but also the child who fails to enroll that has

violated an attendance law.

111. Before taking issue with State/Union Territory

compulsory education statutes, I note that education has

traditionally been reserved for the States. Only in 1976, vide

the 42nd Amendment of the Constitution, did education

become a part of Concurrent List of Schedule 7. In its 165 th

Report, the Law Commission of India has also recommended

enactment of Central Legislation in this respect. Putting

education in the Concurrent List turns out to be a positive

development, given the States’ failure to provide effective

legislation.

112. The States’ laws fail on two accounts. First, they are too

lenient to have a deterrent effect. Second, the legislation is

not adequately enforced, in part, because it does not require

police officers to do the job. If we analyze the legislation

passed by different States, another conclusion becomes

obvious: no State has provided for an adequate punishment

whose effect would be to deter citizens from committing a

violation.

113. It is necessary to reproduce some of the various

compulsory education laws of the States.

114. Under Section 7 of The Tamil Nadu Compulsory

Elementary Education Act, 1994:

“Every parent or guardian of a child of school age who fails to discharge his duty under section 4 [duty of parent to cause child to attend elementary school] shall be punishable with fine which may extend to one hundred rupees.”

115. Section 18(1) of The Delhi Primary Education Act, 1960

states:

“If any parent fails to comply with an attendance order passed under Section 13, he shall be punishable with fine not exceeding two rupees, and, in the case of continuing contravention, with an additional fine not exceeding fifty naye

paise for every day during which such contravention continues after conviction for the first of such contraventions. Provided that the amount of fine payable by any one person in respect of any child in any one year shall not exceed fifty rupees.”

116. Analysis of these State laws reveals that they are weak

in character and perhaps have never been implemented. If we

compare these laws with their sister statutes in United States,

we realize that the U.S. laws are far stronger.

117. In Wisconsin, parents who fail to send their children to

school may have to pay a fine of not more than $500 or face

imprisonment for not more than 30 days or both. [Wisconsin

Statute Sections 118.15(1)(a) and 118.15(5)(a)1.a]. For a

second or subsequent offense, they may face a fine of not more

than $1,000 or imprisonment for not more than 90 days or

both. [Wisconsin Statute Sections 118.15(1)(a) and 118.15(5)

(a)1.b]. Alternatively, they may be sentenced to perform

community service. [Wisconsin Statute Sections 118.15(1)(a)

and 118.15(5)(a)2] .

Unlike Wisconsin, Tamil Nadu and Delhi’s laws have no teeth.

118. The other main problem is implementation of these laws.

Neither the State Governments nor their police agencies are at

all serious about implementing these compulsory laws. There

are hardly any cases where even fines have been imposed.

Some form of compulsory education has been on the statute

books since 1917. We have seen Western countries enforce

these laws. Most Western countries enjoy almost universal

literacy while 35% of our population is illiterate. While a

robust financial incentive programme may not have been

possible in 1917, it is today. If we wish to develop further, we

must educate each and every citizen aged six to fourteen.

119. In order to give effect to the constitutional right under

Article 21A, it is imperative that the Central Government pass

suitable legislation. The fine should be suitably increased.

Imprisonment should be a sentencing option as well. The

current patchwork of State/UT legislation on compulsory

education is insufficient. Small monetary fines do not go far

enough to ensure the implementation of Article 21A.

120. A disclaimer is attached to these recommendations.

The recommendations for the enforcement of compulsory

education are contingent upon the implementation of a

financial incentive program that would make education viable

for the poor. The carrot must come before the stick. If there

is no financial incentive program in place, the Government

cannot expect the poorest of the poor to send their children to

school.

121. The Parliament should criminally penalize those parents

who receive financial benefits and, despite such payments,

send their children to work and penalize those employers who

preclude children from attending school or completing

homework. It has become necessary that the Government set

a realistic target within which it must fully implement Article

21A regarding free and compulsory education for the entire

country. The Government should suitably revise budget

allocations for education. The priorities have to be set

correctly. The most important fundamental right may be

Article 21A, which, in the larger interest of the nation, must be

fully implemented. Without Article 21A, the other fundamental

rights are effectively rendered meaningless. Education stands

above other rights, as one’s ability to enforce one’s

fundamental rights flows from one’s education. This is

ultimately why the judiciary must oversee Government

spending on free and compulsory education.

122. At the same time, spending is an area in which the

judiciary must not overstep its constitutional mandate. The

power of the purse is found in Part V, Chapter II of the

Constitution, which is dedicated to the Parliament. (See:

Articles 109 and 117 for “Money Bills.”) Nevertheless, it

remains within the judiciary’s scope to ensure that the

fundamental right under Article 21A of Part III is upheld. In

M.C. Mehta v. Union of India (vehicular pollution) (1998) 6

SCC 63, this Court did not ignore the Article 21 right to life

when deadly levels of pollution put the right at stake. Nor will

this Court ignore the Article 21A right to education, when a

dearth of quality schooling put it in jeopardy. The

Government’s education programmes and expenditures,

wanting in many respects, are an improvement over past

performance. They nearly fall short of the constitutional

mark. Lackluster performance in primary/secondary schools

is caused in part because Government places college students

on a higher pedestal. Money will not solve all our education

woes, but a correction of priorities in step with the

Constitution’s mandate will go a long way.

• Opposition to Compulsory Education

123. “Compulsory” connotes enforcement. The Parliament

rejected an amendment that would have saved parents from

penal penalties. If education were not compulsory, who checks

in with parents who have sent their children to work? If no

authorities inquire, the message is clear: We, the State, do

not care if your child goes to school. Taking the opposing

view, Shri G.M. Banatwalla wanted to make sure parents were

not punished:

“…this word ‘compulsion’ needs to be properly defined. The word, ‘compulsion’ is not to be related to the student or the parents. Parents cannot be penalized for being too poor to send their children to school. The word, ‘compulsion’ has to be understood in relation to the State and the obligation of the State to provide for free education. p. 523.” (See: The Parliamentary Debates on Article 21A, p. 523, 28 November

2001 at Vol. 20, No. 6-10)

124. The Parliament had the opportunity to accept such a

definition of “compulsory.” But they chose otherwise.

Amendment number four, moved by Shri G.M. Banatwalla at

p. 548, stated that:

“Provided that in making any law to provide for free and compulsory education under this article, the State shall not… (b) enforce any penal sanctions on a parent or guardian.”

1. Of paramount importance, this Amendment was

“negatived.” [See p. 548]. Those who wanted a safe-haven

from penal sanction for parents lost. From this vote, we know

that the Parliament intended to allow for future legislation that

would impose penal sanctions for violations of legislation

under Article 21A.

• Conclusion on Free and Compulsory Education

2. Given that so many children drop out of, or are absent

from, school before they turn fourteen, “free education” alone

cannot solve the problem. The current patchwork of laws on

compulsory education is insufficient. Monetary fines do not go

far enough to ensure that Article 21A is upheld.

3. A carrot-and-stick approach appears to be the best way

to implement Article 21A. Financial incentive programmes

have worked well in other countries. We should follow their

lead. Once that is done, the Government should strictly

enforce effective compulsory education laws. Such a policy is

bound to pay off.

In sum, the Central Government should enact legislation

that:

(a) provides low-income parents/guardians with financial

incentives such that they may afford to send their children to

school;

(b) criminally penalizes those who receive financial

incentives and despite such payment send their children to

work;

(c) penalizes employers who preclude children from

attending school or completing homework;

(d) the penalty should include imprisonment; the

aforementioned Bill would serve as an example. The State is

obligated under Article 21A to implement free and compulsory

education in toto;

(e) Until we have achieved the object of free and compulsory

education, the Government should continue to increase the

education budget;

(f) the Parliament should set a deadline by which time free

and compulsory education will have reached every child. This

must be done within six months.

128. With regard to (a), the state cannot cite budgetary

constraints or lack of resources as an excuse for failing to

provide financial assistance/incentives to poor parents. See

Hussainara Khatoon (supra), at page 107, para 10.

129. Article 21A’s reference to “education” must mean

something. This conclusion is bolstered by the Parliament’s

Statement of Objects and Reasons for Article 21A:

“The Constitution of India in a Directive Principle contained in

article 45, has made a provision for free and compulsory education for all children up to the age of fourteen years within ten years of promulgation of the Constitution. We could not achieve this goal even after 50 years of adoption of this provision. The task of providing education to all children in this age group gained momentum after the National Policy of Education (NPE) was announced in 1986. The Government of India, in partnership with the State Governments, has made strenuous efforts to fulfill this mandate and, though significant improvements were seen in various educational indicators, the ultimate goal of providing universal and quality education still remains unfulfilled. In order to fulfill this goal, it is felt that an explicit provision should be made in the Part relating to Fundamental Rights of the Constitution.

1. With a view to making right to free and compulsory education a fundamental right, the Constitution (Eighty-third Amendment) Bill, 1997 was introduced in the Parliament to insert a new article, namely, article 21A conferring on all children in the age group of 6 to 14 years the right to free and compulsory education. The said Bill was scrutinized by the Parliament Standing Committee on Human Resource Development and the subject was also dealt with in its 165th Report by the Law Commission of India.

2. After taking into consideration the report of the Law Commission of India and the recommendations of the Standing Committee of the Parliament, the proposed amendments in Part III, Part IV and Part IVA of the Constitution are being made which are as follows …

3. The Bill seeks to achieve the above objects”

130. The Article seeks to usher in “the ultimate goal of

providing universal and quality education.” (emphasis

supplied). Implied within “education” is the idea that it will be

quality in nature. Current performance indicates that much

improvement needs to be made before we qualify “education”

with “quality.” Of course, for children who are out school,

even the best education would be irrelevant. It goes without

saying that all children aged six to fourteen must attend

school and education must be quality in nature. Only upon

accomplishing both of these goals, can we say that we have

achieved total compliance with Article 21A.

131. Though progress has been made, the Parliament’s

observation upon passing Art 21A still applies: the goal of

providing universal and quality education “… still remains

unfulfilled.”

3. Does the 93 rd Amendment violate the Basic Structure of the Constitution by imposing reservation on unaided institutions?

132. Imposing reservation on unaided institutions violates the

basic structure by obliterating citizens’ 19(1)(g) right to carry

on an occupation. Unaided entities, whether they are

educational institutions or private corporations, cannot be

regulated out of existence when they are providing a public

service like education. That is what reservation would do.

That is an unreasonable restriction. When you do not take a

single paisa of public money, you cannot be subjected to such

restriction. The 93rd Amendment’s reference to unaided

institutions must be severed.

133. No unaided institution filed a writ petition in this case.

Had either this Court or respondents had an objection, they

could have raised it at any time during the proceedings. We

listened to the parties for months. We received voluminous

written submissions from the parties, yet no objection was

made with regard to the fact that no unaided institution had

filed a writ petition. While we would usually implead a party if

we felt their presence was necessary to the resolution of the

dispute, the facts of this case are peculiar. The best lawyers

in the country argued the case for both sides, and a brief from

an unaided institution would not have added much if anything

to the substance of the arguments. The Government will likely

target unaided institutions in the future. At that time, this

Court will have to go through this entire exercise de novo to

determine if unaided institutions should be subject to

reservation. Such an exercise would unnecessarily cause

further delay. The fate of lakhs of students and thousands of

institutions would remain up in the air. (See: Minerva Mills

Ltd. & Others v. Union of India & Others (1980) 3 SCC

625). Therefore, looking to the extraordinary facts, I have

decided to proceed with this aspect of the matter in the larger

public interest.

134. Amendments by their very nature are often enabling

provisions. If they clear the way for future legislation that

would in fact violate the basic structure, the Court need not

wait for a potential violation to become an actual one. It can

strike the entire amendment ab initio. The question of

potential width was resolved in Minerva Mills (supra), paras

38-39. The Court acknowledged that it generally does not

anticipate constitutional issues before they arise, but it held

that circumstances required it to act before unconstitutional

provisions could be passed under the authority of an

unconstitutional amendment.

“38. But, we find it difficult to uphold the preliminary objection because, the question raised by the petitioners as regards constitutionality of Sections 4 and 55 of the 42nd Amendment is not an academic or a hypothetical question. The 42 nd Amendment is there for anyone to see and by its Sections 4 and 55 amendments have been made to Articles 31-C and 368 of the Constitution. An order has been passed against the petitioners under Section 18-A of the Industries (Development and Regulation) Act, 1951, by which the petitioners are aggrieved.”

“39. Besides there are two other relevant considerations which must be taken into account while dealing with the preliminary objection. There is no constitutional or statutory inhibition against the decision of questions before they actually arise for consideration. In view of the importance of the question raised and in view of the fact that the question has been raised in many a petition, it is expedient in the interest of justice to settle the true position. Secondly, what we are dealing with is not an ordinary law which may or may not be passed so that it could be said that our jurisdiction is being invoked on the hypothetical consideration that a law may be passed in future which will injure the rights of the petitioners. We are dealing with a constitutional amendment which has been brought into operation which, of its own force, permits the violation of certain freedoms through laws passed for certain purposes. We, therefore, overrule the preliminary objection and proceed to determine the point raised by the petitioners.”

[emphasis added]

There is not one precise definition of the width test, however.

The test asks if an amendment is so wide that in effect (actual

or potential), it goes beyond the Parliament’s amending power.

Kesavananda, paras 531-532: “But that the real

consequences can be taken into account while judging the

width of the power is settled. The Court cannot ignore the

consequences to which a particular construction can lead …”

To make such a determination, it follows that the Court

should ask whether an amendment infringes constitutional

limitations as opposed to those evolved from mere common

law. (See: Nagaraj, para 103).

135. As a preliminary matter, I turn to the cases by which the

basic structure doctrine has been established. It has been

stated that, “Kesavananda had propounded the doctrine, the

Indira Gandhi Election case had upheld it, and Minerva

engraved it on stone.” (See: Granville Austin, “Working a

Democratic Constitution”, at page 506].

136. Kesavananda and its progeny provide that an

amendment to the Constitution must not alter the

Constitution’s basic structure. To reach a conclusion

regarding a basic structure challenge, I employ the following

general standard: an amendment alters the basic structure if

its actual or potential effect would be to damage a facet of the

basic structure to such an extent that the facet’s original

identity is compromised.

137. To determine if legislation infringes constitutional

limitations and is thus invalid, we use the two-step effect test

(also known as the impact or rights test). Step One requires

us to first ask if legislation affects a facet of the basic

structure.

If it does, then at Step Two we ask if the effect on the facet of

the structure is to such an extent that the facet’s original

identity has been altered. Applying the effect test is another

way of saying that the form of an amendment is irrelevant; it

is the consequence thereof that matters. (See: Kesavanda at

para 532 and I.R. Coelho v. State of Tamilnadu (2007) 2

SCC 1 at Conclusion (ii) at page 111).

138. The terms “abridge” and “abrogate” have been employed

by this Court to distinguish between acceptable and

unacceptable legislation. Whether legislation abridges or

abrogates is a question of degree. Using these terms is

another way of asking whether the legislation had such an

effect that it changed the basic structure of the Constitution.

If legislation merely abridges the basic structure, the

structure’s identity remains. The legislation is upheld. In this

sense, the Parliament may take away or destroy fundamental

rights by amending the Constitution, provided that the basic

structure is not altered.

139. If it abrogates the basic structure, the structure and thus

the Constitution lose their identities. The legislation must be

struck down. This is determined on a case-by-case basis by

applying the effect test (impact/rights tests). (See: Coehlo). I

further note that a total deprivation of fundamental rights,

even in one limited area, may amount to an abrogation of the

basic structure. (See: Minerva Mills, para 59).

• Step One: Does Article 15(5) affect a facet of the basic structure?

140. In the instant case, Article 15(5) expressly precludes the

application of Article 19(1)(g). Whenever reservations are

implemented under Article 15(5), citizens are stripped of their

fundamental rights under Article 19(1)(g). By excluding Article

19(1)(g), Article 15(5) obviously affects Article 19(1)(g), a facet

of the basic structure of the Constitution. Step One is

therefore cleared. What is more, Article 19(1)(g) belongs to the

Golden Triangle – Articles 14, 19 and 21 are the three

fundamental rights that stand above the rest. Writing for the

majority in Minerva Mills, Justice Chandrachud provides an

eloquent justification for shielding the Golden Triangle from

attack. To achieve a more egalitarian society, individual

liberty must be protected:

"Para 74 of Minerva Mills: Three Articles of our Constitution, and only three, stand between the heaven of freedom into which Tagore wanted his country to awake and the abyss of unrestrained power. They are Articles 14, 19 and 21. Article 31C has removed two sides of that golden triangle which affords to the people of this country an assurance that the promise held forth by the Preamble will be performed by ushering an egalitarian era through the discipline of fundamental rights, that is, without emasculation of the rights to liberty and equality which alone can help preserve the dignity of the individual.”

141. The Golden Triangle’s significance becomes clear when

we consider that Government may suspend Article 14 and 19

rights in order to implement an emergency. (See: Articles 358

and 359) (prior to the 44th Amendment, all Part III rights could

be curtailed during emergency; this Amendment precludes the

State from denying Articles 20 and 21 to citizens during

emergency). In a sense, democracy is only restored when the

Triangle is returned to the citizens. Without the Triangle,

democracy is impossible:

“para 63… Every State is goal-oriented and claims to strive for securing the welfare of its people. The distinction between the different forms of Government consists in that a real democracy will endeavour to achieve its objectives through the discipline of fundamental freedoms like those conferred by Articles 14 and 19. Those are the most elementary freedoms without which a free democracy is impossible and which must therefore be preserved at all costs. Besides, as observed by Brandies, J., the need to protect liberty is the greatest when Government's purposes are beneficent. If the discipline of Article 14 is withdrawn and if immunity from the operation of that article is conferred, not only on laws passed by the Parliament but on laws passed by the State Legislatures also, the political pressures exercised by numerically large groups can tear the country asunder by leaving it to the legislature to pick and choose favoured areas and favourite classes for preferential treatment.”

142. United States Supreme Court Justice Brandeis’ word of

caution is relevant to today’s dispute wherein the Government

trumpets reservation in higher education as an answer to our

age-old problems of poverty and caste. At first blush, it

sounds as if reservation in higher education would help the

backward help themselves. The road out of poverty is paved

with education. However, the “devil is the details.” With

elementary freedom on the line, I must carefully scrutinize

those details.

143. The right to freedom under Article 19 has been long

recognized as a natural and inalienable right that belongs to

all citizens. Indeed, what would Independence mean without

it? Chief Justice Sikri cites the following passage in

Kesavananda at para 300:

"That article (Article 19) enumerates certain freedoms under the caption "right to freedom" and deals with those great and basic rights which are recognised and guaranteed as the natural rights inherent in the status of a citizen of a free country." (Per Patanjali Sastri, C.J., in State of West Bengal v. Subodh Gopal Bose [1954] S.C.R. 587, 596).”

144. With fundamental rights in jeopardy, I shall review the

cases in which the basic structure doctrine has been

implemented to invalidate constitutional amendments. By

looking at these cases synoptically, we get a sense as to how

much damage the basic structure can withstand before

crumbling. In Kesavananda, the second part of Article 31C

precluded courts from reviewing whether a law under Article

39(b) or (c) promoted the policy for which it was enacted. This

violated the basic structure. Article 31C was introduced by

the 25th Amendment.

145. In Indira Nehru Gandhi v. Raj Narain & Another

(1975) Supp SCC 1, the Court struck Article 329A(4) as

violative of the basic structure. This provision appropriated

the Court’s power to adjudicate election laws, encroaching on

the judiciary in violation of separation of powers. See Justice

Matthew’s opinion at para 325. It was introduced by the 39th

Amendment. In Minerva Mills, the Court held sections 4 and

55 of the 42nd Amendment in violation of the basic structure.

Section 4 sought to expand 31C such that all laws giving effect

to Directive Principles, not just those intended to promote

Article 39(b) or (c), would be immune to an Article 14 or 19

challenge. Section 55 would have barred judicial review of

constitutional amendments.

146. In P. Sambamurthy v. State of A.P. (1987) 1 SCC 362,

the Court invalidated Article 371-D(5), finding that the

Parliament had violated the rule of law and consequently the

basic structure, by removing judicial review from the High

Court and placing it in the hands of one of the parties – the

State Government. In L. Chandra Kumar v. Union of India

(1997) 3 SCC 261, the Court held that Articles 323A-2D and

323B-3D violated the basic structure in that they removed

judicial review of the High Courts and Supreme Court under

Articles 226/227 and 32, respectively. These articles were

introduced by the 42nd Amendment to empower the Parliament

or the State Legislatures to establish Tribunals for various

substantive areas of law: tax, labour, criminal, etc.

147. Two broad themes surface from these cases. When

judicial review is barred, democracy evaporates. And when

Fundamental Rights are at stake, they must be harmonized

with, not made subject to, the Directive Principles. Sections 4

and 55 of the 42nd Amendment were especially egregious

violations of the basic structure. Had Section 4 been upheld,

citizens’ fundamental rights would have been at the mercy of

one organ of Government. “If Governments always could be

trusted, there would have been no need for Fundamental

rights.” Mr Palkhivala in oral arguments in Kesavananda,

quoting from the learned Mr H.M. Seervai, who was opposing

counsel in that case. Mr Palkhivala was reading from Seervai,

H.M., “Fundamental Rights: A Basic Issue,” published in three

installments in the Times of India, 14, 15, 16 February 1955.

(See: Granville Austin at pages 263-264 in “Working a

Democratic Constitution”)

148. Government cannot be trusted; that is precisely why we

divide its powers into separate organs. If it could be trusted,

there would be no need for co-equal branches in which power

is shared. Separation of powers is an axiom of democracy.

149. Had Section 55 of the 42nd Amendment been upheld, the

basic structure of the Constitution could have been destroyed

by a single slash. Future constitutional amendments would

not have been reviewed. The impugned Amendment looks

rather mild in comparison to the damage that would have

been wrought by the 42nd Amendment. The impugned

legislation limits one fundamental right in one limited

circumstance. Yet an amendment need not be as invidious as

the 42nd Amendment for us to invalidate it. If the standard

were that high, amendments could destroy the basic structure

or the essence of the Constitution by a thousand slashes.

150. Since Kesavananda’s time, many amendments have

been passed and many challenges under the basic structure

have been made. This Court has used caution and has

refrained from using the doctrine, even when it may have been

justified. For example, there were grounds for striking the

entire 10th Schedule as violative of the basic structure in

Kihoto Hollohan v Zachillhu & Others 1992 Supp (2) SCC

651. Rather than resort to the basic structure, this Court

made a narrow ruling on procedural grounds. (See: S.P.

Sathe, Judicial Activism in India: Transgressing Borders and

Enforcing Limits, 2nd Edn., 2002 (Oxford University Press)

pages 92-93). The Court upheld the 10th Schedule, only

severing a paragraph from the same. I agree that an

abundance of caution ought to be taken before employing the

basic structure doctrine. The violation must truly abrogate

the basic structure. Anything short of this standard must be

upheld – the will of the people, through their elected

representatives, heard.

151. Before making such a determination, it is prudent to

briefly revisit the rulings of two landmark cases: P.A.

Inamdar & Others v. State of Maharashtra & Others,

(2005) 6 SCC 537; T.M.A. Pai Foundation & Others v. State

of Karnataka & Others (2002) 8 SCC 481. In Inamdar

(supra), paras 26-27 (seven-Judge Bench), unaided (minority

and non-minority) professional institutions filed petitions to

determine, inter alia, whether the State could impose quotas

on unaided (minority and non-minority) institutions. A seven-

Judge Bench was constituted such that Islamic Academy’s

clarification of Pai could be reviewed. Islamic Academy was

a five-Judge Bench. Given that Pai was an eleven-Judge

Bench, Inamdar could clarify but not overrule Pai.

152. At para 124, Inamdar held that the State cannot impose

quotas on unaided (minority and non-minority) institutions.

To do so would nationalize seats, contrary to Pai. (See:

Inamdar at para 125). In dictum, Pai suggested that the

State could compel unaided institutions to admit a reasonable

percentage of students via reservation. (Pai, para 68).

Inamdar clarified this point, stating that Pai should be read

to mean that the State and unaided institutions may enter

into consensual agreement regarding reservation. (See:

Inamdar at para 126). Unaided institutions (minority and

non-minority) can admit as they choose, provided their

process is fair, transparent, non-exploitative and merit-based.

Inamdar stated:

“124: So far as appropriation of quota by the State and enforcement of its reservation policy is concerned, we do not see much of difference between non-minority and minority unaided educational institutions. We find great force in the submission made on behalf of the petitioners that the States have no power to insist on seat sharing in the unaided private professional educational institutions by fixing a quota of seats between the management and the State. The State cannot insist on private educational institutions which receive no aid from the State to implement State's policy on reservation for granting admission on lesser percentage of marks, i.e. on any criterion except merit.

125. As per our understanding, neither in the judgment of Pai Foundation nor in the Constitution Bench decision in Kerala Education Bill, which was approved by Pai Foundation, there is anything which would allow the State to regulate or control admissions in the unaided professional educational institutions so as to compel them to give up a share of the available seats to the candidates chosen by the State, as if it was filling the seats available to be filled up at its discretion in such private institutions. This would amount to nationalization of seats which has been specifically disapproved in Pai Foundation. Such imposition of quota of State seats or enforcing reservation policy of the State on available seats in unaided professional institutions are acts constituting serious encroachment on the right and autonomy of private professional educational institutions.

Such appropriation of seats can also not be held to be a regulatory measure in the interest of minority within the meaning of Article 30(1) or a reasonable restriction within the meaning of Article 19(6) of the Constitution . Merely because the resources of the State in providing professional education are limited, private educational institutions, which intend to provide better professional education, cannot be forced by the State to make admissions available on the basis of reservation policy to less meritorious candidate. Unaided institutions, as they are not deriving any aid from State funds, can have their own admissions if fair, transparent, non-exploitative and based on merit.”

To the extent that Islamic Academy had approved of quotas

in unaided institutions, a scheme in which the States could fix

quota for seat sharing between management and the State,

Islamic was overruled. [Inamdar at para 130]

153. In T.M.A. Pai Foundation (supra) para 2 (eleven- Judge

Bench), private educational institutions, aided and unaided,

filed writ petitions to challenge regulations that impeded their

rights. They wanted to establish and administer educational

institutions, unfettered by Government interference. [para 2].

Reading Article 29(2) and 30(1) harmoniously, the six-Justice

majority held that (1) unaided institutions could admit

students free of Government interference, as long as their

admission process was transparent and merit-based; (2)

minority aided institutions may still admit their own students,

contingent upon admitting a reasonable number of non-

minority students per the percentage provided by the State

Government.

154. For our purposes, it is important to note that education

falls within the meaning of “occupation” under 19(1)(g). This

is so because a large number of persons are employed as

teachers and administrative staff. For them, education is an

occupation. Pai stated:

“20: “Article 19(1)(g) employs four expressions, viz., profession,

occupation, trade and business. Their fields may overlap, but each of them does have a content of its own. Education is per se regarded as an activity that is charitable in nature [See The State of Bombay v. R.M.D. Chamarbaugwala, … Education has so far not been regarded as a trade or business where profit is the motive. Even if there is any doubt about whether education is a profession or not, it does appear that education will fall within the meaning of the expression "occupation". Article 19(1)(g) uses the four expressions so as to cover all activities of a citizen in respect of which income or profit is generated, and which can consequently be regulated under Article 19(6) .

25 The establishment and running of an educational institution where a large number of persons are employed as teachers or administrative staff, and an activity is carried on that results in the imparting of knowledge to the students, must necessarily be regarded as an occupation, even if there is no element of profit generation. It is difficult to comprehended that education, per se, will not fall under any of the four expressions in Article 19(1)(g). "Occupation" would be an activity of a person undertaken as a means of livelihood or a mission in life. ...”

[emphasis added]

155. Stripping private unaided institutions of their right to

select students would be unreasonable:

“para 40: Any system of student selection would be unreasonable if it deprives the private unaided institution of the right of rational selection, which it devised for itself, subject to the minimum qualification that may be prescribed and to some system of computing the equivalence between different kinds of qualifications, like a common entrance test. Such a system of selection can involve both written and oral tests for selection, based on principle of fairness.”

156. Like Article 15(5) in the instant case, Unni Krishnan

effectively nationalized education. Pai overturned Unni

Krishnan. (See: para 45).

“38: The scheme in Unni Krishnan's case has the effect of nationalizing education in respect of important features, viz., the right of a private unaided institution to give admission and to fix the fee. By framing this scheme, which has led to the State Governments legislating in conformity with the scheme the private institutions are undistinguishable from the Government institutions; curtailing all the essential features of the right of administration of a private unaided educational institution can neither be called fair or reasonable.”

157. Pai traces the autonomy of institutions back to

Chitralekha and Rajendran. The proposition is simple: he

who funds or runs the institution holds the power to select

students. The State cannot ask these institutions to abridge

this right in exchange for affiliation/recognition. The relevant

paragraphs are reproduced hereunder:

“36: The private unaided educational institutions impart education, and that cannot be the reason to take away their choice in matters, inter alia, of selection of students and fixation of fees. Affiliation and recognition has to be available to every institution that fulfills the conditions for grant of such affiliation and recognition. The private institutions are right in submitting that it is not open to the Court to insist that statutory authorities should impose the terms of the scheme

as a condition for grant of affiliation or recognition; this completely destroys the institutional autonomy and the very objective of establishment of the institution.

42. In R. Chitralekha and Anr. v. State of Mysore and Ors. [citation omitted], while considering the validity of a viva-voce test for admission to a Government medical college, it was observed at page 380 that colleges run by the Government, having regard to financial commitments and other relevant considerations, would only admit a specific number of students. It had devised a method for screening the applicants for admission. While upholding the order so issued, it was observed that "once it is conceded, and it is not disputed before us, that the State Government can run medical and engineering colleges, it cannot be denied the power to admit such qualified students as pass the reasonable tests laid down by it. This is a power which every private owner of a College will have, and the Government which runs its own Colleges cannot be denied that power." (italics added by Pai; underscore is mine).

43. Again, in Minor P. Rajendran v. State of Madras and Ors … , it was observed at page 795 that "so far as admission is concerned, it has to be made by those who are in control of the Colleges, and in this case the Government, because the medical colleges are Government colleges affiliated to the University. In these circumstances, the Government was entitled to frame rules for admission to medical colleges controlled by it subject to the rules of the university as to eligibility and qualifications." The aforesaid observations clearly underscore the right of the colleges to frame rules for admission and to admit students. The only requirement or control is that the rules for admission must be subject to the rules of the university as to eligibility and qualifications. The Court did not say that the university could provide the manner in which the students were to be selected.

61. In the case of unaided private schools, maximum autonomy has to be with the management with regard to administration, including the right of appointment,

disciplinary powers, admission of students and the fees to be charged.”

158. Unaided institutions may admit students of their choice,

subject to an objective and rational procedure of selection.

They might admit a small percentage of students belonging to

the weaker sections of the society by granting those sections

freeships or scholarships, if not granted by the Government.

[See: Pai at para 53]. Given a transparent and reasonable

selection process, it is up to the institution to define “merit”

according to its own values. Pai stated:

“65. The reputation of an educational institution is established by the quality of its faculty and students, and the educational and other facilities that the colleges has to offer. The private educational institutions have a personality of their own, and in order to maintain their atmosphere and traditions, it is but necessary that they must have the right to choose and select the students who can be admitted to their courses of studies. If is for this reason that in the St. Stephen's College case, this Court upheld the scheme whereby a cut-off percentage was fixed for admission, after which the students were interviewed and thereafter selected. While an educational institution cannot grant admission on its whims and fancies, and must follow some identifiable or reasonable methodology of admitting the students, any scheme, rule or regulation that does not give the institution the right to reject candidates who might otherwise be qualified according to say their performance in an entrance test, would be an unreasonable restriction under Article 19(6), though appropriate guidelines/modalities can be prescribed for holding the

entrance test a fair manner. Even when students are required to be selected on the basis of merit, the ultimate decision to grant admission to the students who have otherwise qualified for the grant of admission must be left with the educational institution concerned. However, when the institution rejects such students, such rejection must not be whimsical or for extraneous reasons.”

159. The Court distinguishes between reasonable and

unreasonable regulations by asking which functions lie at the

heart of an institution’s autonomy. Regulations that strike at

the core of autonomy are unreasonable. For example,

prescribing minimum qualifications for teachers is a

reasonable regulation; actually selecting the teachers is not.

“55. But the essence of a private educational institution is the autonomy that the institution must have in its management and administration. There, necessarily, has to be a difference in the administration of private unaided institutions and the Government-aided institutions. Whereas in the latter case, the Government will have greater say in the administration, including admissions and fixing of fees, in the case of private unaided institutions, maximum autonomy in the day-to-day administration has to be with the private unaided institutions. Bureaucratic or Governmental interference in the administration of such an institution will undermine its independence. While an educational institution is not a business, in order to examine the degree of independence that can be given to a recognized educational institution, like any private entity that does not seek aid or assistance from the Government, and that exists by virtue of the funds generated by it, including its loans or borrowings, it is important to note that the essential ingredients of the management of the private

institution include the recruiting students and staff, and the quantum of fee that is to be charged.”

160. The same argument was framed in similar terms in St.

Stephen’s College v. University of Delhi, 1992 (1) SCC 558.

In that case, the Court distinguished regulations based on

whether they directly or indirectly affected management.

Those that indirectly affected management were reasonable;

those that directly affected the management of the institution

were not. [Pai at para 125].

161. In St. Stephen’s, this Court referred to the earlier

decisions, and with regard to Article 30(1) observed at page

596, paragraph 54, as follows:

"… But the standards of education are not a part of the management as such. The standard concerns the body politic and is governed by considerations of the advancement of the country and its people. Such regulations do not bear directly upon management although they may indirectly affect it. The State, therefore has the right to regulate the standard of education and allied matters.”

162. Once a private institution (non-minority) takes aid, it is

subject to (1) reservation and (2) regulation of administration

and maintenance of the institution. Pai stated:

“71: “While giving aid to professional institutions, it would be permissible for the authority giving aid to prescribe by rules or regulations, the conditions on the basis of which admission will be granted to different aided colleges by virtue of merit, coupled with the reservation policy of the state. …

72: “Once aid is granted to a private professional educational institution, the Government or the state agency, as a condition of the grant of aid, can put fetters on the freedom in the matter of administration and management of the institution. The state, which gives aid to an educational institution, can impose such conditions as are necessary for the proper maintenance of the high standards of education as the financial burden is shared by the state. …”

163. I now query if the Parliament may subject Article 19(1)(g)

to Article 15(5), when this Court has held that reservation in

unaided institutions is an unreasonable restriction that

cannot be saved by Article 19(6).

164. I answer this question in the affirmative. The structure

of our Constitution permits fundamental rights, and even the

Golden Triangle of Articles 14, 19 and 21, to be abridged in

limited circumstances. To say that subjecting Articles 19(1)(g)

to 15(5) violates the basic structure per se is to ignore the

examples in which the most fundamental of rights is limited.

Article 16(4) expressly limits the right to formal equality in

16(1), a specific facet of Article 14. In this light, Article 16(4)

impliedly limits the general right to formal equality in Article 14.

The right to equality is expressed in the negative in 15(1): the

State shall not discriminate based on religion, race, caste, etc.

In other words, the State shall treat citizens of different

religions, races and castes equally. Like Article 16(4), Article

15(4) limits 15(1) -- another facet of Article 14 formal equality

-- such that egalitarian equality may be pursued. Generally

speaking, Articles 15(3) and (4) and 16(4) allow the State to

impose affirmative action programs on the public sector. Such

provisions necessarily limit the right to formal equality. If the

right to equality, considered by some as a basic postulate of

the Constitution, has been limited, a fortiori Article 19(1)(g)

can be too.

165. Along these lines, I could turn to Articles 31A, 31B and

31C for further support. Those Articles exclude challenges

under Articles 14 and 19. In agreement with Dr. Dhavan’s

submission, I decline to rely on Articles 31A, 31B and 31C for

support. As explained in Minerva Mills, the Court had

previously upheld Article 31A out of concern for stare decisis.

The Court never approved of the exclusion of Articles 14 and

19 on a principled basis. Nor did it make a ruling as to

whether the exclusion violated the basic structure. (See: para

71-72 of Minerva Mills. See also para 43 of Waman Rao,

(1981) 2 SCC 362).

166. A basic structure challenge becomes an issue of

institutional competence. Is it for the legislature to decide

what is a reasonable restriction under 19(1)(g) read with 19(6)?

Or is it for the judiciary? It is well established that the

Parliament, expressing the will of the people, may enact

amendments to overrule a judgment of this Court. The First

Parliament added Article 15(4) to the Constitution to overrule

State of Madras v. Champakam Dorairajan, AIR 1951 SC

226. Other examples include the 77th Amendment, which

overruled Sawhney I by adding Article 16(4-A); the 81st

Amendment further overruled Sawhney I by adding Art 16

(4-B); the 82nd Amendment overruled S. Vinod Kumar &

Another v. Union of India & Another (1996) 6 SCC 580 by

amending Article 335; and the 85th Amendment overruled

Virpal Singh Chauhann and Ajit Singh I by amending

Article 16(4-A), (1995) 6 SCC 684 and (1996) 2 SCC 715,

respectively. Nevertheless, the duty to interpret the content of

our fundamental rights has been left to the Courts. “The

important point to be noted is that the content of a right is

defined by the Courts. The final word on the content of the

right is of this Court.” (Nagaraj at para 21). (emphasis added).

While the Parliament may amend the Constitution, it cannot

alter the Constitution’s basic structure. (See: Kesavananda,

Indira Nehru Gandhi (Election Case), Minerva Mills,

Sambamurthy, L. Chandra Kumar and Coelho).

• Step Two: Does Article 15(5) affect Article 19(1)(g) to such an extent that Article 19(1)(g)’s original identity has been altered?

167. In other words, does Art 15(5) in effect merely abridge or

completely abrogate Article 19(1)(g). If the former, 15(5)

stands. If the latter, it falls. As noted above, Coelho directs

me to apply the impact/rights test to determine whether the

basic structure has been violated. [See Coehlo at Conclusion

(ii) at page 111]. Thus, my query is whether to consider the

impact on the entire constitutional framework, or to examine

the effect on citizens engaged in unaided education as an

occupation. I think it is the latter. I am not concerned here

with those engaged in education in aided institutions. One is

naturally subject to greater regulation when one relies on

Government funding. (See: Pai/Inamdar). Individual liberty

and freedom, as protected by the Golden Triangle, must carry

greater weight for those who set off on their own and refuse

Government money.

168. This brings me to the question as to how large I should

draw the circle when I ask who is affected by reservation in

unaided institutions. Justice Chandrachud provides that “[a]

total deprivation of fundamental rights, even in a limited area,

can amount to abrogation of fundamental right just as a

partial deprivation in every area can.” (See: Minerva Mills,

para 59).

169. Freedom under Article 19 belongs to individual citizens.

Article 19(1)(g) provides that “all citizens shall have the right to

practice any profession, or to carry on any occupation, trade

or business.” The reference to “all citizens” means that each

and every individual citizen possesses Article 19 rights. For

the impugned legislation to fall, it need not touch every sphere

of society. If even one individual’s freedom has been curtailed,

this Court is duty bound to entertain his or her claim. It is he

or she who possesses the Article 19(1)(g) right to carry on an

occupation.

170. If 15(5) were implemented, the educator in unaided

institutions would still have students to educate. I use

“educator” in the broadest sense of the term and include

teachers, professors, lecturers, faculty, staff, administrators

and those who finance institutions. Without one of the

aforementioned, the institution cannot function properly.

171. Though affected by reservation, the educator still has a

job. His occupation remains intact. Students will come.

Classes will commence. Marks will be distributed. The

greatest impact on the educator is that neither he nor his

institution will choose whom to teach.

172. Almost half of the time (49.5%), the State would decide

for them. Selecting students or employees goes to the heart of

an organization’s autonomy. The essence of an unaided

educational institution is the freedom to manage its affairs,

according to Pai at paragraph 55. That is, “… the essential

ingredients of the management of the private institution

include the recruiting [of] students and staff … .” The same

argument was framed in similar terms (at para 54) in St.

Stephen’s College (regulations imposing standards of

education upheld, because they “… do not bear directly upon

management although they may indirectly affect it …”). This

Court has stated in Pai as clarified by Inamdar that

subjecting unaided institutions is an unreasonable restriction.

As noted, Article 19(6) provides no safe haven for reservations.

173. The Government-imposed selection of students in turn

has wide-ranging consequences for unaided institutions and

their educators. I am required to examine the effect of the

impugned Amendment. At least four problems will likely arise:

(1) academic standards suffer;

(2) attracting and retaining good faculty becomes more difficult;

(3) the incentive to establish a first rate unaided institution is diminished;

(4) and ultimately the global reputation of our unaided institutions is severely compromised.

174. First, once the State tells them whom to teach, standards

of excellence will suffer. This is because those institutions will

no longer be able to admit the highest-scoring students. As

good as some of our institutions are, they do not teach blank

slates. The best universities are the best, in part, because

they attract the best students. The same can be said for

almost any organization. In the case of higher education, the

universities that admit the best will likely churn out the best.

The precise extent to which the university made the best so

good cannot be qualified. The point is that universities alone

cannot produce qualified job candidates. Forced to admit

students with lower marks, the university’s final product will

not be as strong. Once the creamy is excluded, cut-off marks

would likely drop considerably in order to fill the 27% quota

for non creamy layer OBCs. When the creamy layer is not

removed, as in the case of Tamil Nadu, the difference in cut off

marks for the general and backward categories may be

insignificant. (See para 408 of Sawhney I). Of course, the

extent to which standards of excellence would suffer would

vary by institution. As I mention below, I urge the

Government to set OBC cut off marks no lower than 10 marks

below that of the general category. This is only a

recommendation, however. It may never be adopted.

175. Second, reservations weaken the incentive to establish

unaided institutions: if the State usurps the right to select

students, would one still spend the time and money to

establish an unaided institution? The question is all the more

relevant today. Counsel for petitioners posit that tomorrow’s

knowledge economy requires a well-educated populace. “Well-

educated” does not imply a string of degrees from less than

taxing institutions. Rather, it means that one will possess the

skills, knowledge and creativity to compete globally. Our

unaided institutions must remain places where these traits

are refined.

176. Third, those inclined to teach the brightest students have

even less of a reason to leave private sector jobs for the

teaching profession or to join the profession in the first place.

“Brightest” would come with an asterisk. They would be the

brightest available under the Government’s reservation

scheme. These potential teachers may ask themselves: how

will I teach a class in which half the students are advanced

relative to the other half? In many institutions, the shortage

of top-rate faculty will only get worse. Fourth, reservations

may have a negative impact on students seeking employment

in the burgeoning knowledge economy. Recruiters have begun

to trickle into campuses. They hail from domestic as well as

international entities, and they too may take note of

reservations in unaided institutions. The effect on educators,

from the top down, would be felt. For them, little more than a

semblance of occupation would remain.

177. Given the dramatic effect that reservations would have on

educators, the unaided institutions in which they teach and,

consequently, society as a whole, Article 19(1)(g) has been

more than abridged. When education is effectively

nationalized, freedom stands obliterated. The identity of the

Constitution is altered when unreasonable restrictions make a

fundamental right meaningless. The 93rd Amendment’s

imposition of reservation on unaided institutions has

abrogated Article 19(1)(g), a basic feature of the Constitution,

in violation of our Constitution’s basic structure. Therefore, I

sever the 93rd Amendment’s reference to “unaided” institutions

as ultra vires of the Constitution.

178. The case law on severability asks the following question:

had the Parliament known its provision would be severed

would it still have passed the rest of the legislation? (See:

R.M.D. Chamarbaugwalla (supra)).

179. At page 943 of R.M.D. Chamarbaugwalla (supra), the

Court relied in part on The State of Bombay & Another v.

F.N. Balsara (1951) SCR 682, where the question at issue

was whether the Bombay Prohibition Act was valid:

Sections 12 and 13 of the Act imposed restrictions on the

possession, consumption and sale of liquor, which had been defined in s. 2(24) of the Act as including “(a) spirits of wine, methylated spirits, wine, beer, toddy and all liquids consisting of or containing alcohol, and (b) any other intoxicating substance which the Provincial Government may, by notification in the Official Gazette, declare to be liquor for the purposes of this Act”. Certain medicinal and toilet preparations had been declared liquor by notification issued by the Government under s. 2(24)(b). The Act was attacked in its entirety as violative of the rights protected by Art. 19(1)(f). But this Court held that the impugned provisions were unreasonable and therefore void in so far as medicinal and toilet preparations were concerned, but valid as to the rest. Then, the contention was raised that “as the law purports to authorise the imposition of a restriction on a fundamental right in language wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting such right, it is not possible to uphold it even so far as it may be applied within the constitutional limits, as it is not severable”. In rejecting this contention, the Court observed:

‘These items being thus treated separately by the legislature itself and being severable, and it is not being contended, in view of the directive principles of State policy regarding prohibition, that the restrictions imposed upon the right to possess or sell or buy or consume or use those categories of properties are unreasonable, the impugned sections must be held valid so far as these categories are concerned.’

This decision is clear authority that the principle of severability is applicable even when Act’s invalidity arises by reason of its contravention of constitutional limitations.”

180. At page 944, the court in R.M.D. Chamarbaugwalla

sought guidance from American case law on severability:

“In discussing the effect of a severability clause, Brandies, J.

observed in Dorchy v. State of Kansas (1924) 264 US 286 that it “provides a rule of construction, which may sometimes aid in determining that intent. But it is an aid merely; not an inexorable command”. The weight to be attached to a classification of subjects made in the statute itself cannot, in our opinion, be greater than that of a severability clause.”

181. The court in R.M.D Chambarbaugwalla went on to cite

Patanjali Sastri, C.J., in The State of Bombay & Another v.

The United Motors (India) Ltd. & Others (1953) SCR 1069:

“dealing with the contention that a law authorizing the imposition of a tax on sales must be declared to be wholly void because it was bad in part as transgressing constitutional limits observed:

‘It is a sound rule to extend severability to include separability in enforcement in such cases, and we are of opinion that the principle should be applied in dealing with taxing statutes in this country.’”

182. Here, I believe the Parliament would have gone forward

without unaided institutions. While some Members of

Parliament sought to overrule Pai and Inamdar, the

Parliament’s actions speak louder than its words. Once it had

passed Article 15(5), it limited itself to imposing greater

reservations on aided institutions. Had unaided institutions

been the Parliament’s priority, it could have included them in

the Reservation Act. It seems that the Parliament’s intent is to

pass as much reservation as possible. That would explain why

it has gone forward with 27% reservation for OBCs without

confirming that at least 27% of the population is OBC. For

these reasons, I conclude that had the Parliament known that

unaided institutions were going to be severed, it would have

nevertheless carried out its reservation scheme for aided

institutions.

1. The Casteless and Classless Society versus Caste-based Reservation:

183. The caste system is peculiar to this country. Perhaps

the entire society has been divided on the basis of caste. This

social problem can be compared to some extent with that of

American society. In the U.S., the problem of racial

discrimination has existed for centuries. The cases of

affirmative action decided in the United States are relevant.

They show us how that society has dealt with the problem of

racial discrimination. At the outset, I would like to make it

clear that decisions of foreign countries are not binding on

Indian courts. Indian Courts have not adopted American

standards of review. But the judgments delivered by U.S.

courts on affirmative action have great persuasive value and

they may provide broad guidelines as to how we should tackle

our prevailing condition. A large number of English laws have

been inherited by India and America. English and American

cases are frequently cited by our courts. We need to keep our

window open and permit the light of knowledge to enter from

any source. In this light, I shall refer to some US decisions.

• Affirmative Action cases and standards of review from the United States:

184. In 1978, Regents of the University of California v.

Bakke put an end to reservation (“quotas”) in education

(reserving 16 out of 100 seats for minorities in medical school

deemed unconstitutional). (438 U.S. 265). Justice Powell’s

concurring judgment is considered the key opinion in the

case.

185. Justice Powell concluded that diversity was a compelling

State interest that could withstand strict scrutiny. Relying on

Bakke, the court later reaffirmed preferential treatment in

college admissions as a means to ensure diversity in the

classroom – racial diversity being just one among many types

of diversity (“overcoming personal adversity and family

hardship” was another form of diversity), (See: Grutter v.

Bollinger, 539 U. S. 306, 338 (2003)). The Grutter Case

insisted that universities make an individualized evaluation of

a student seeking admission, rather than one that

mechanically accepted or rejected students on the basis of

race. (Grutter at 337). Such an evaluation would ensure that

race was only considered as one type of diversity, rather than

a pretext for achieving racial balance. Quotas could not be

covertly installed in the name of diversity. This reasoning led

the court to strike down an admission scheme that

automatically assigned more points to minority students than

to residents of the State or to athletes, for example. (Gratz v.

Bollinger, 539 U.S. 244, 270).

186. Justice O’Conner for the majority in Grutter came to a

very significant conclusion. She suggested that there was time

limit on preferential treatment for certain races as a means of

promoting diversity. Justice O’Connor stated: “we expect that

25 years from now, the use of racial preferences will no longer

be necessary to further the interest approved today.”

187. In Parents Involved in Community Schools v. Seattle

School District No.1 et al, reported in 168 Lawyers Ed. 2d

508 & 517 (2007), school districts used a student’s race to

assign that student to a particular school within the district.

In Seattle, this was done to achieve racial balance amongst the

district’s schools. One school should not be overwhelmingly

white, another all non-white. Unlike the system approved in

Grutter, race was not just one among many types of diversity

that was considered by the district in assigning students.

Seattle at 525. Instead, it was, at times, the decisive factor.

The court held the programmes unconstitutional. Chief

Justice Roberts summed up the plurality’s view on racial

classifications: “the way to stop discrimination on the basis of

race is to stop discriminating on the basis of race.”

188. This was far from a complete victory for the plurality. In

his concurring opinion, Justice Kennedy found the

programmes unconstitutional. However, he would not go so

far as to treat all racial balancing as per se unconstitutional.

He considered the plurality opinion to represent “… an all-too-

unyielding insistence that race cannot be a factor in instances,

when, in [his] view, it may be taken into account.” (Seattle at

565).

189. Justice Kennedy found that schools have a compelling

interest to prevent racial isolation or achieve a diverse student

population. (Seattle at 572). Like Justice Powell’s concurring

opinion in Bakke, Justice Kennedy’s concurring opinion

leaves the door open for further use of racial classification for

so-called benign purposes in school admissions.

190. More important than any one case are the standards by

which the court scrutinized discriminatory legislation. Of

course, Indian courts have not accepted the principles of

narrow tailoring and strict scrutiny. Nevertheless, we should

seek guidance from any corner and permit the light from any

quarter.

191. Whenever legislation is challenged as unconstitutional,

courts must ask themselves how much deference they will give

to the legislature. The answer is that it depends on the nature

of the impugned legislation. The United States Supreme Court

has evolved three standards of review for Government action

that treats different people differently. The first is the rational

basis standard. When the classification is rationally related to

any legitimate Government purpose, the court defers to the

State and upholds the classification. This is the most

deferential of the three standards. The second standard is

intermediate scrutiny, which is less deferential to Government.

Here, the court asks whether the classification is substantially

related to any important Government purpose. The third and

highest level of review is known as strict scrutiny, whereby the

court requires that the classification are narrowly tailored to a

compelling state interest. Strict scrutiny test is the least

deferential to Government.

192. Of the classifications on which there is case law, the one

that most closely resembles caste is race. This is because

both are immutable traits. They are used by the powerful, or

those seeking power, to justify oppression. Racism and

casteism have long haunted both Nations. In the United

States, race raises red flags. It is often, though not always,

reviewed under strict scrutiny: “Government action dividing

people by race is inherently suspect because such

classifications promote ‘notions of racial inferiority and lead to

a politics of racial hostility,’ (Croson at 102 L. Ed. 2d 854) and

“racial classifications are simply too pernicious to permit any

but the most exact connection between the justification and

the classification.” (Gratz v. Bollinger, 539 U.S. 244, 270

(quoting J. Stevens’ dissent in Fullilove v. Klutznick, 448

U.S. 448, 537)).

193. Legislation whose text does not classify based on race is

considered facially neutral. When facially neutral legislation

has a disproportionate impact on a particular race, American

courts ask whether it was passed with an intention to

discriminate. If no intention is found, the rational basis test

applies. [See: Hernandez v New York, 500 U.S. 352 (1991)

(quoting from Arlington Heights v. Metropolitan Housing

Development Corp., 429 U.S. 252, 264-265 (1977)]:

“A court addressing this issue must keep in mind the fundamental principle that "official action will not be held unconstitutional solely because it results in a racially disproportionate impact. . . . Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.”

See also Washington v. Davis, 426 U.S. 229, 239 (1976). The

exception to this rule is Yick Wo v. Hopkins, 118 U.S. 356

(1886), where extreme disproportionate impact warranted

greater scrutiny. Where there is disproportionate impact and

discriminatory intention, then even facially neutral legislation

triggers strict scrutiny. However, in this framework,

affirmative action classifies on the face of legislation and

automatically gets strict scrutiny treatment.

194. As I have observed, American courts carefully review

racial classifications. Given that the 93rd Amendment on its

face discriminates against general category students, we

should give it careful scrutiny. The Article 14 right to formal

equality deserves as much. If 49.5% caste-based reservation

was upheld in Sawhney I for Government employment, it

follows that 49.5% caste-based reservation is permitted in

aided educational institutions. While I compelled by

Sawhney I to hold that the impugned legislation passes

careful scrutiny with respect to reservation in aided

institutions, its implementation is contingent upon the

directions given in this opinion.

• The Framers’ ultimate goal: the Classless and Casteless society:

195. Did the original Framers intend to provide caste-based

reservation in education to the lower classes? No, the original

Framers did not. Soon after the Constitution was adopted, the

very same Framers acted quickly to permit reservation for

SC/ST/SEBCs in education by adding Art 15(4), vide the First

Amendment, to the Constitution. In doing so, they deviated

from their own goal – the casteless society would have to wait.

In Sawhney I, the Court upheld this decision and bound us to

a certain degree on this point. I have no choice but to uphold

the impugned legislation by which the Government may still

identify SEBCs, in part, by using caste.

196. Caste-based reservation was initially a temporary

measure that was to only last for ten years. The original

Framers considered caste-based reservation a necessary evil.

Thus, they limited it in time. Extending this time limit has

only exacerbated casteism.

197. The Parliamentary Debates clearly reflect that the

ultimate aim of reservation was a casteless and classless

society for India. To this end, reservation should only be given

for a specific period of time. If these reservations or benefits

have to continue perpetually, then the basic goal of achieving

casteless and classless society would never be accomplished.

198. The need for caste-based reservation has “worn out” over

time. Evidence for the proposition that caste is no longer a

valid determinant of one’s ability to move up in society is

strong. More than the way society judges you based on caste,

the relevant question is whether caste precludes you from

rising. If caste doesn’t, then what does? The answer is

simple: money.

199. Income is a much better determinant of educational

achievement than caste. The table below was derived from the

Reproductive Child and Health Survey, 2002-2004 (600,000

households surveyed).

Average years of schooling: SC OBC Upper caste Hindu

Poorest Rural Quintile 1.6 1.7 2.2 Richest Rural Quintile 5.1 5.5 6.1

For the upper caste, caste barely helps. These numbers

indicate that it is one’s income, not caste, that makes a real

difference in determining how much schooling one completes.

Therefore, if income be the bar to education, economic criteria

should be the means by which we identify beneficiaries of

special provisions under Article 15(5).

• No original intent to provide caste-based quotas in education:

200. As drafters, the original Framers were prolific. They

made our Constitution the world’s longest – removing as many

doubts as possible and in that way limiting the Court’s role.

The Constitution contains a number of Articles that reserve

seats for various groups. The original Framers, however,

imposed various limitations on reservation. These limitations

provide insight into the original Framers’ compromise between

formal and substantial/egalitarian equality.

201. Reservation is only provided for certain groups (SC, ST

and backward classes) in certain areas of the public sector.

(See: Article 16(4) (reservation of posts in Government service

for backward classes), Article 330 (reservation of seats for SC

and ST in the Lok Sabha) and Article 332 (reservation of seats

for SC and ST in Legislative Assemblies of the States)).

202. Dr Ambedkar stated that “the report of the Minorities

Committee provided that all minorities should have two

benefits or privileges, namely representation in the legislatures

and representation in the services.” (emphasis added) (See:

CAD, 26 August 1949, vol. 9, p. 702). Given this limitation,

we must take extra caution when reviewing the

constitutionality of adding additional benefits.

203. Article 334 fixed a 10-year time limit on the legislative

reservations provided in Articles 330 and 332. In the

discussion regarding draft Article 292, Sardar Hukam Singh

said, “we are accepting this reservation of seats [in legislative

bodies] as an unavoidable evil for the present, thought it is

only for the Scheduled Castes and scheduled tribes.” (See: p.

645, Constituent Assembly Debates, Vol. 9, 24 August 1949).

204. Shri Singh’s comment sums up the limitations on

legislative reservation. OBC/SEBCs were excluded, and

reservations were limited in time. Unlike the legislative

reservations, Article 16(4) contains no fixed time limit. It does,

however, preclude the State from making reservations in

Government service if the backward classes are adequately

represented. The idea is that, at some point in time, the

backward classes would no longer need reservations.

205. In discussing draft Article 10 (Article 16(4) of the

Constitution), Pandit Hirday Nath Kunzru stated:

“We are all aware that when the Report of the Minorities Committee was considered by the House, the entire House was anxious that reservations of whatever kind should be done away with as quickly as possible. … whatever protection might be considered necessary now, should be granted temporarily only, so that the population of the county might become fully integrated, and no community or class might be tempted to claim special advantage for itself.” (CAD Vol.7 dated 30th November 1948, p. 681)”

(emphasis supplied)

Instead of moving to remove reservations, the Parliament has

gone the other way by extending time limits and adding

beneficiaries. Article 15(5) is just the latest example.

206. While the original Framers went out of their way to put

SC/ST in the Parliament and State Assemblies and

SC/ST/backward classes in Government service, they did not

reserve a single classroom seat. Instead, Article 29(2)

prohibited caste-based discrimination in admissions, and

Article 15(2) prohibited caste-based discrimination in general.

Education was to remain reservation-free.

207. When preferential treatment was given in regard to

education, it was limited to educational grants. There was no

question of doling out reservations for special groups. Article

337 provided educational grants to Anglo-Indian schools for

the benefit of that community. In the spirit of conciliation, the

original Framers allowed the grants that were already going to

those schools to continue for 10 years. (See: p 936-941 of

Constituent Assembly Debates, Vol. 8 1949).

208. Rather than advocate for reservation, the original

Framers preferred free/compulsory education and

scholarships. In the debate on Draft Article 294, Shri

Brajeshwar Prasad stated that reservation in legislative bodies

would fail to uplift SC/ST. Instead, he suggested that:

“it should be laid down clearly in express terms that … free education shall be imparted to them. … [and] for the tribals and Harijans provision must be made in the constitution that free agricultural lands should be given to them. If we cannot give any one of these, I am quite clear in my own mind that by giving them a few seats here and there, their economic condition and their educational level will in no way be improved. (CAD, Vol. 9, 24 August 1948, pages 663-664)”

(emphasis supplied) 209. Shri Prasad’s comments are relevant because he

recognizes the limited effect of reservation. Rather than

reserve seats for a few, he advocated for free education for all.

210. In the debate regarding Article 15 of the Constitution,

Syed Abdur Rouf summed up the essence of the provision:

“The intention of this article is to prohibit discrimination

against citizens.” (See: p. 650 of CAD, Vol.7, 29 Nov 1948).

This intention was only qualified for women and children. In

fact, the original Framers rejected an amendment that would

have watered down Article 15’s prohibition against

discrimination. Prof. K. T. Shah sought special protection for

SC/ST. He wanted to ensure that Article 15 would allow

SC/ST to benefit from affirmative action. To this end, he

introduced an amendment that would have altered 15(3) to

read as follows: “Nothing in this article shall prevent the State

from making any special provision for women and children or

for the Scheduled Castes or backward tribes, for their

advantage, safeguard or betterment.” (Shah amendment in

italics). Prof. Shah proposed the amendment:

“… so that any special discrimination in favour of them may not be regarded as violating the basic principles of equality for all classes of citizens in the country. They need and must be given for some time to come at any rate, special treatment in regard to education , in regard to opportunity for employment, and in many other cases where their present inequality, the

present backwardness is only a hindrance to the rapid development of the country. … equality is not to be equality of name only or on paper only, but equality of fact. [pages 655- 656 CAD, Vol. 7, 29 November 1948].”

(emphasis supplied)

211. Relevant to the instant case, he explains that his

amendment would allow the State to provide SC/ST special

treatment in regard to education. In other words, Prof. Shah

effectively wanted the equivalent to 15(4) and 15(5) but did not

get it. His amendment was negated. (p. 664 of Constituent

Assembly Debates, Vol. 7, 29 November, 1948).

212. Dr. Ambedkar disagreed with Prof. Shah on the limited

ground that it would have given States the green light to

segregate SC/ST from general category students:

“The object which all of us have in mind is that the Scheduled Castes and Scheduled tribes should not be segregated from the general public. For instance, none of us, I think, would like that a separate school should be established for the Scheduled Castes … If these words are added, it will probably give a handle for a State to say, ‘Well, we are making special provision for the Scheduled Castes.’ To my mind they can safely say so by taking shelter under the article if it is amended in the manner the Professor wants it.” [page 661, CAD, Vol. 7, 29 November 1948].

213. Dr Ambedkar did not reject the Shah amendment

because it would have allowed the States to implement

affirmative action for SC/ST in education. He was concerned

that special provisions would lead to negative discriminatory

action in the guise of affirmative action. Whether or not this

would have happened is unclear, but his concern seems well

placed. A similar problem arises today, when the general

category looks down upon or questions the qualifications of

SC/ST/OBC professionals. Though the individual may have

earned admission on marks alone, others may presume that

reservation was a factor. Such a belief, regardless of veracity,

cannot bode well for the career prospects of SC/ST/SEBCs.

Irrespective of the reason for which the Shah amendment was

rejected, the original Framers contemplated special provisions

for SC/ST that would have included education. At the end of

the day, they decided that only women and children should

benefit from discriminatory provisions.

214. Article 15(4) and the Shah amendment only differ in that

Article 15(4) provides special provisions to SC/ST and SEBC,

while Shah only gave the same to SC/ST. Of course, if the

original Framers rejected special provisions for SC/ST, they

would have done the same with respect to SEBC/SC/ST. In

sum, by limiting Article 15(3) to women and children and

rejecting an amendment equivalent to Article 15(4), the

original Framers’ intent was clear: no special provisions for

backward classes (SEBC/SC/ST) in education were to dilute

Article 15(1)’s prohibition against discrimination based on

caste.

215. In the instant case, the Union of India argued that Article

15(4), the First Amendment to the Constitution, reflects the

intent of the original Framers because it was passed by the

same members that drafted the original Constitution. In the

Parliamentary debates in 1951, Prime Minister Nehru argued

in favour amending the Constitution. He and other Framers,

as distinguished from the original Framers who had drafted

the original Constitution, did not hide their disapproval of

Champakam Dorairajan (supra). Article 15(4) was to

overturn that judgment. To justify Article 15(4), which

represented a dramatic departure from equality as envisaged

in Articles 15(2), (3) and 29(2), Pandit Nehru said that Article

15(4) would give effect to “what … was really intended or

should be intended.” Yet, the original Framers, as explained

above, had no intention of providing special provisions for

SC/ST in education (and a fortiori if not for them, nor for

SEBC). What “should be intended” is a far cry from what they

specifically enacted and specifically rejected. It follows that

Article 15(4) deviated from the original Framers’ original

intent.

• Limitations on Reservation must be seen in the light of providing a casteless society:

216. Seeking to remove the blight created by caste, the

original Framers were social reformers. “The social revolution

meant ‘to get (India) out of the medievalism based on birth,

religion, custom, and community and reconstruct her social

structure on modern foundations of law, individual merit, and

secular education’.” (See: Granville Austin, Indian Constitution:

Cornerstone of a Nation at page 26, 1st Ed, 1972, Oxford

University press: (quoting from: K. Santhanam (an Assembly

member) in Magazine Section, The Hindustan Times New

Delhi, 8 September 1946).

217. India’s first President Rajendra Prasad assured the

Nation that the assembly and the Government’s aim was to

“end poverty and squalor … to abolish distinction and

exploitation and to ensure decent conditions of living”.

[Cornerstone at page 27, fn. 5 (quoting from Prasad in CAD V,

I, 2)]. The original Framers took steps to abolish caste-based

distinction. For example, they outlawed untouchability in

Article 17, promised all equal treatment before the law in

Article 14, prohibited discrimination based on caste in 15(1)

and 29(2) and selected joint over separate electorates. The

legislative reservations for SC/ST were an exception to

overarching goal of creating a casteless society; that is why

they were set to expire in 1960. With respect to electorates,

Granville Austin explains:

“Desiring above all to promote national unity, members of the Constitutional Assembly rejected these devices by substituting direct elections for indirect in lower houses, by rejecting separate electorates in favour of joint electorates and by abolishing … except for Scheduled Castes and Tribes … reserved seats. The Assembly believed, in Jenning’s words, that ‘to recognize communal claims . . . is to strengthen communalism’. [see: Austin, p. 323 of Cornerstone.]”

(emphasis added)

The same can be said today. Reservation based on caste

strengthens communalism. Non-SEBCs naturally seek SEBC

status so that they may capture SEBC benefits. Upper castes,

denied a seat, harbor ill will against lower castes who gain

admission (whether it was by merit or not).

218. These feelings are the basis for discriminatory action. On

16 September 2006, The Hindu reported: “While medical

students at the All India Institute of Medical Sciences (AIIMS)

have complained of caste discrimination, now doctors from the

reserved category at the Guru Teg Bahadur Hospital (GTBH)

too have written about ‘biased attitude towards reserved

category junior residents’.”

219. Discrimination is not the only problem exacerbated by

reservation. Given that reserved category students gain

admission with lower marks, it also stands to reason that they

would exhibit less confidence in their studies when pitted

against the general category. In her work on the unintended

consequences of preferential treatment for minorities in college

admissions in the United States, Marie Gryphon, a policy

analyst for the Cato Institute (Washington, D.C.), writes:

“…recent research shows that affirmative action impedes academic achievement by undermining minority students’ confidence. …

Preferences harm students’ self-images, and this harm has practical costs in terms of grades and graduation rates. Both studies build on earlier work by Stanford University sociologist Claude Steele, who coined the term “stereotype threat” to refer to the decline in performance suffered by members of groups who become afraid of confirming negative group stereotypes. Steele tested his theory by giving standardized exams to groups of white and African-American undergraduates at Stanford University.

Testers told some groups that the exam evaluated psychological factors related to testing, and that it was not a measure of ability. They told other groups that the exam measured their intellectual abilities, and in some instances had them indicate their race on the exam. The African- American students who had been implicitly “threatened” with the stereotype of minority academic inferiority did markedly worse on the exam than black students in the other groups. …

Even minority students who do not need preferences respond to an environment characterized by the relative academic weakness of minorities by worrying about confirming a negative stereotype. [Researchers] also determined that vulnerability to Claude Steel’s stereotype threat is related to lower grades earned by minority students.” (See: p. 9-10 (internal citations omitted), Executive Summary, No. 540, April 6, 2005, “The Affirmative Action Myth.”)

The point is that affirmative action produces consequences

that may outweigh its supposed benefits.

220. To rid ourselves of reservation and its unintended

consequences like casteism, we must focus our efforts on

strengthening education at the primary and secondary level.

Only then will we achieve the casteless/classless society the

original Framers envisaged. And only then will there be

reason to scrap reservation altogether.

221. In his speeches to the Parliament regarding 15(4), Prime

Minister Nehru could not have been clearer: “After all the

whole purpose of the Constitution, as proclaimed in the

Directive Principles is to move towards what I may say a

casteless and classless society” … and in an attempt to

achieve an egalitarian society, “… we want to put an end to all

those infinite divisions that have arisen in our social life; I am

referring to the caste system and other religious divisions, call

them by whatever name you like.” (emphasis added).

[Parliamentary Debates on 13 June, 1951 and 29 May, 1951

respectively].

• If reservation is allowed, then how can a

casteless society still be realized?

222. This raises the issue of how beneficiaries of special

provisions are to be classified. As mentioned above, Mr Salve

and other learned counsel for petitioners pleaded that the

Government cannot go forward with the Reservation Act when

it has yet to identify its beneficiaries. No one can say with

certainty what percentage of the population is OBC, yet the

Government is content with giving OBCs 27% of the seats in

universities. We do not know what proportion of the

population is OBC because the census does not count OBCs.

It has been Central Government policy practically since

Independence to avoid the question. Eminent American

Professor Mark Galanter writes that the absence of caste data

was the deliberate policy of Sardar Patel, the Home Minister

until 1950. Mr. Patel rejected caste tabulation as a device to

confirm the British theory that India was a caste-ridden

country and as an expedient “to meet the needs of

administrative measures dependent on caste division” (See:

Professor Marc Galanter, (1978)“Who are the OBCs?” An

Introduction to a Constitutional Puzzle. 13 Economic and

Political Weekly 1812 at page 1824 at footnote 78 (quoting

from Mr. Patel’s 1950 address to the census conference).

Taking an OBC census is horrifying because it encourages

Government to enact policy on the basis of caste. Doing so

only furthers the caste-divide, contrary to our constitutional

aim. This has been recognized since 1950. If the Central

Governments have consistently rejected an OBC census

because it would promote casteism, how can this Central

Government make reservation on the same ground? It is one

thing to ask a citizen his caste, it is even worse to grant or

reject his college application on that ground. The Government

is between a rock and a hard place. The only way out is to use

exclusively economic criteria. This would negate the need for a

caste-based census while ensuring that reservation go to the

poor, the group for which the Reservation Act was purportedly

passed. The Parliament eventually settled on enabling States

to provide provisions for “socially and educationally backward

classes.” Article 15(4). This Court has interpreted “backward

classes” to include caste as one of the criteria of classification

under Article 16(4). Sahwney I, para 859(3)(b). In other

words, caste falls under class according to Sawheny I, para

859(3)(a).

• Economic criteria allows for reservation on grounds other than caste:

223. Despite the goal of a casteless society, the Parliament

allowed for caste-based reservation and, consequently, caste-

based discrimination. Ultimately, they subjected Articles 29(2)

and Article 15 to Article 15(4). Dr. Ambedkar saw no choice

but to discriminate based on caste, stating that “if you make a

reservation in favour of what are called backward classes

which are nothing else but collection of certain castes, those

who are excluded are persons who belong to certain castes.

Therefore, in the circumstances of this country, it is

impossible to avoid reservation without excluding some people

who have got a caste.”

224. In draft article 10, Dr. Ambedkar tried to reconcile the

view of those who were in favour of equality of opportunity

with the demand of certain communities who remained

neglected and who wanted to have a share in the

administration. In doing so, he was clear that the concept of

equality, which is the very basis of democracy, should not be

violated. Part of his compromise meant that reservation had

to remain reasonable. Explaining his views on the matter, he

said:

“Supposing, for instance, we were to concede in full the demand of those communities who have not been so far employed in the public services to the fullest extent, what would really happen is, we shall be completely destroying the first proposition upon which we are all agreed, namely, that there shall be an equality of opportunity. Let me give an illustration. Supposing, for instance, reservations were made for a community or a collection of communities, the total of which came to something like 70 per cent of the total posts under the State and only 30 per cent are retained as the unreserved. Could anybody say that the reservation of 30 per cent as open to general competition would be satisfactory from the point of view of giving effect to the first principle, namely, that there shall be equality of opportunity? It cannot be in my judgment. Therefore the seats to be reserved, if reservation is to be consistent with sub-clause (1) of Article 10, must be confined to a minority of seats. (see CAD, Vol.7, 30th November, 1948 pp 701-02).”

225. On 17th November, 1949, the Constituent Assembly

began the third reading of the Constitution Bill. While

replying to the debate, Dr. Ambedkar stated:

“This anxiety is deepened by the realization of the fact that in addition to our old enemies in the form of castes and creeds we are going to have many political parties with diverse and

opposing political creeds. Will Indians place the country above their creed or will they place creed above country? I do not know. But this much is certain that if the parties place creed above country, our independence will be put in jeopardy a second time and probably be lost forever. This eventuality we must all resolutely guard against. We must be determined to defend our independence with the last drop of our blood. (See: CAD on 25th November, 1949 pp 977-978)”

(emphasis supplied).

226. Exhibiting tunnel vision, our First Parliament failed to

look beyond caste. Another option was available, an option

that adhered to the original Framers’ ideals. Contrary to Dr

Ambedkar’s view, it was possible to provide reservation to

backward classes without discriminating based on caste.

Economic criteria target the poorest of the poor, irrespective of

caste. As noted, these criteria also simultaneously remove the

creamy layer.

227. One of the other prominent advocates of reservation later

realised that the policy did more harm than good. Prime

Minister Nehru wrote the following letter to the Chief Ministers

on June 27th, 1961:

“I have referred above to efficiency and to our getting out of our traditional ruts. This necessitates our getting out of the old habit of reservations and particular privileges being given to this caste or that group. The recent meeting we held here,

at which the chief ministers were present, to consider national integration, laid down that help should be given on economic considerations and not on caste. It is true that we are tied up with certain rules and conventions about helping Scheduled Castes and Tribes. They deserve help but, even so, I dislike any kind of reservation, more particularly in service. I react strongly against anything which leads to inefficiency and second-rate standards. I want my country to be a first class country in everything. The moment we encourage the second- rate, we are lost.

The only real way to help a backward group is to give opportunities for good education. This includes technical education, which is becoming more and more important. Everything else is provision of some kind of crutches which do not add to the strength or health of the body. We have made recently two decisions which are very important: one is, universal free elementary education, that is the base; and the second is scholarships on a very wide scale at every grade of education to bright boys and girls, and this applies not merely to literary education, but, much more so, to technical, scientific and medical training. I lay stress on bright and able boys and girls. I have no doubt that there is a vast reservoir of potential talent in this country if only we can give it opportunity.

But if we go in for reservations on communal and caste basis, we swamp the bright and able people and remain second-rate or third-rate. I am grieved to learn of how far this business of reservation has gone based on communal consideration. It has amazed me to learn that even promotions are based sometimes on communal and caste considerations. This way lies not only folly, but disaster. Let’s help the backward groups by all means, but never at the cost of efficiency. How are we going to build our public sector or indeed any sector with second-rate people?”

• Upon expiry of the time limit, the criteria for

identifying OBCs should only be economic in nature because our ultimate aim is to establish a casteless and classless society

228. I am not the first to propose economic criteria as the

exclusive means of identifying SEBCs. In Vasanth Kumar’s

case, counsel sought an opinion from the Court regarding

reservations in employment and education for SC/STs and

OBCs. The opinion would guide the Karnataka Government in

implementing reservation. [para 1]. It serves our purposes to

review their thorough analysis of the identification issue.

229. The Court in Vasanth Kumar observed as under:

“24. ... No one is left in any doubt that the future Indian Society was to be casteless and classless. Pandit Jawaharlal Nehru the first Prime Minister of India said that Mahatma Gandhi has shaken the foundations of caste and the masses have been powerfully affected. But an even greater power than Gandhi is at work, the conditions of modern life — and it seems at last this hoary and tenacious ralic of past times must die. (Discovery of India by Pandit Nehru, Ch VI, p 234) Mahatma Gandhi, the Father of the Nation said, “The caste system as we know is an anachronism. It must go if both Hinduism and India are to live and grow from day to day”. In its onward march towards realising the constitutional goal, every attempt has to be made to destroy caste stratification. Article 38(2) enjoins the State to strive to minimise the inequality 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. Article 46 enjoins duty to promote with special care the educational and economic interests of the weaker sections of the people, and in particular, of the Scheduled Castes and Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation. Continued retention of the division of the society into various castes simultaneously introduces inequality of status. And this inequality in status is largely responsible for retaining inequality in facilities and opportunities, ultimately resulting in bringing into existence an economically depressed class far transcending caste structure and caste barrier. The society therefore, was to be classless casteless society. In order to set up such a society, steps have to be taken to weaken and progressively eliminate caste structure. Unfortunately, the movement is in the reverse gear. Caste stratification has become more rigid to some extent, and where concessions and preferred treatment schemes are introduced for economically disadvantaged classes, identifiable by caste label, the caste structure unfortunately received a fresh lease of life. In fact there is a mad rush for being recognised as belonging to a caste which by its nomenclature would be included in the list of socially and educationally backward classes. ... Rane Commission took note of the fact that there was an organised effort for being considered socially and educationally backward castes. Rane Commission recalled the observations in Balaji case [(1963) Supp (1) SCR 439] that “Social backwardness is on the ultimate analysis the result of poverty to a very large extent”. … The Commission came to an irrefutable conclusion that amongst certain castes and communities or class of people, only lower income groups amongst them are socially and educationally backward. …”

230. In this judgment, this Court further observed that if State

patronage for preferred treatment accepts caste as the only

insignia for determining social and educational backwardness,

the danger looms large that this approach alone would

legitimize and perpetuate the caste system. Caste-based

reservation does not go well with our secular character as

enshrined in the Preamble to the Constitution.

231. That said, the majority in Sawhney I later sided with

Justice Chinnappa Reddy’s view: caste can be a factor in

identifying SEBCs. This view should not hold the day forever.

Eventually, the words of Justice Desai should be revived.

232. Justice Desai wanted to achieve two goals with one fell

swoop of the pen. Had his opinion prevailed (1) the creamy

layer would have been removed ensuring that the truly

deserving get the benefit and (2) the casteless society would

have been furthered. To these ends, he would have applied

economic criteria to remove the creamy layer and

simultaneously rid reservation of caste.

233. He explained that poverty is the bane of Indian society.

Given rampant poverty, it comes as no surprise that “… the

bank balance, the property holding and the money power

determine the social status of the individual and guarantee

the opportunities to rise to the top echelon.” [Vasanth

Kumar at para 27]. As a result, the way “…wealth is acquired

has lost significance.” And “upper caste does not enjoy the

status or respect … any more even in rural areas what to

speak of highly westernised urban society.” Finally, his

Lordship recognized that creamy layer exclusion is inherently

linked with identification based on economic criteria, i.e.,

“occupation, income and land holdings”:

“30. … If economic criterion for compensatory discrimination or affirmative action is accepted, it would strike at the root cause of social and educational backwardness, and simultaneously take a vital step in the direction of destruction of caste structure which in turn would advance the secular character of the Nation. This approach seeks to translate into reality the twin constitutional goals: one, to strike at the perpetuation of the caste stratification of the Indian Society so as to arrest progressive movement and to take a firm step towards establishing a casteless society; and two, to progressively eliminate poverty by giving an opportunity to the disadvantaged sections of the society to raise their position and be part of the mainstream of life which means eradication of poverty.”

234. Economic criteria must include occupation and land

holdings because income alone is insufficient. To decrease the

likelihood that the undeserving evade identification, it is wise

to employ more than one criterion.

235. In Vasanth Kumar, Justice Chinnappa Reddy departs

from Justice Desai’s use of economic criteria as the sole

means of identification. Nevertheless, he recognizes that “ …

attainment of economic equality is the final and only solution

to the besetting problems.” In Justice Chinnappa Reddy’s

opinion, it is easier to classify based on caste than economic

criteria:

“80: Class poverty, not individual poverty, is therefore the primary test. Other ancillary tests are the way of life, the standard of living, the place in the social hierarchy, the habits and customs, etc. etc. Despite individual exceptions, it may be possible and easy to identify socially backwardness with reference to caste, with reference to residence, with reference to occupation or some other dominant feature. Notwithstanding our antipathy to caste and sub-regionalism, these are facts of life which cannot be wished away. If they reflect poverty which is the primary source of social and educational backwardness, they must be recognised for what they are along with other less primary sources.”

It all depends on how one defines “class.” Once economic

criteria remove the relatively wealthy families (from all castes

and communities), a “class” will remain. This “class” is known

as “the poor.” The class would share the same characteristic,

irrespective of caste. They would all lack money.

236. In a number of judgments, this Court has spelt out our

constitutional philosophy regarding caste. On numerous

occasions, this Court has proclaimed that the cherished goal

of the Nation is to realise a casteless society. In Shri V. V.

Giri v. Dippala Suri Dora & Others (1960) 1 SCR 426 at

442, the Court observed as under:-

“……..The history of social reform for the last century and more has shown how difficult it is to break or even to relax the rigour of the inflexible and exclusive character of the caste system. It is to be hoped that this position will change, and in course of time the cherished ideal of casteless society truly based on social equality will be attained under the powerful impact of the doctrine of social justice and equality proclaimed by the Constitution and sought to be implemented by the relevant statutes and as a result of the spread of secular education and the growth of a rational outlook and of proper sense of social values; but at present it would be unrealistic and utopian to ignore the difficulties which a member of the depressed tribe or caste has to face in claiming a higher status amongst his co-religionists. It is in the light of this background that the alternative plea of the appellant must be considered.”

237. In N M. Thomas (supra), a seven Judge Bench observed

as under:

“This consummation is accomplished only when the utterly depressed groups can claim a fair share in public life and economic activity, including employment under the State, or when a classless and casteless society blossoms as a result of positive State action.”

238. In his dissenting opinion, in Sawhney I Justice Kuldip

Singh observed as under:

“339. Secularism is the basic feature of the Indian Constitution. It envisages a cohesive, unified and casteless society. ... The prohibition on the ground of caste is total, the mandate is that never again in this country caste shall raise its head. Even access to shops on the ground of caste is prohibited. The progress of India has been from casteism and egalitarianism from feudalism to freedom.

340. The caste system which has been put in the grave by the framers of the Constitution is trying to raise its ugly head in various forms. Caste poses a serious threat to the secularism and as a consequence to the integrity of the country. Those who do not learn from the events of history are doomed to suffer again.”

239. In Akhil Bhartiya Soshit Karamchari Sangh

(Railway) (supra), it was observed as under::

“14. These forces nurtured the roots of our constitutional values among which must be found the fighting faith in a casteless society, not by obliterating the label but by advancement of the backward …

240. Returning to Vasanth Kumar, one of Justice Reddy’s

arguments deals with the level of effort required to identify the

poor compared to the effort expended on identifying caste. In

the current context, a number of factors, including economic,

are measured to determine SEBC status. (See: the National

Commission of Backward Classes’ Guidelines for

considerations of Requests for inclusion and complaints of

under-inclusion in the Central List of Other Backward

Classes).

241. The National Commission for Backward Classes aside, I

have set out to eventually install a system that only takes

cognizance of economic criteria. Using purely economic criteria

would lighten the identification load, as ascertaining caste

would no longer be required. Respondents and others level a

common criticism against the exclusive use of economic

criteria. Most of the country is poor.

242. Thus, too many people would be eligible for the benefit.

This is only a problem if you hand out reservations based on

the group’s proportion of the total population. Such a

reservation would be excessively unreasonable and would

likely violate the Balaji cap of 50% [see M.R. Balaji & Ors. v.

State of Mysore [(1963) Supp (1) SCR 439]. If economic

reservation were limited to a reasonable number, it could be

upheld.

243. In addition to the problem of extending the benefit to too

many, Reddy, J. cannot contemplate the idea of bestowing

reservation on an economically poor Brahmin. “The idea that

poor Brahmins may also be eligible for the benefits of Articles

15(4) and 16(4) is too grotesque even to be considered.” He

says that they are not “socially backward”, thus they should

not receive the benefit. But can one call a Brahmin sweeper,

poor by occupation, socially forward? To do so would be a

stretch.

244. The majority in Sawhney I reiterates Justice Chinnappa

Reddy’s message in Vasanth Kumar. They rejected the sole

use of economic criteria to exclude the creamy layer, deeming

it to be just one measure of advancement. Justice Jeevan

Reddy qualified that sentiment to an extent. If income were

extremely high, it could be the sole factor. In such a case,

income alone would ensure that one were socially forward.

Justice Jeevan Reddy was convinced that caste mattered more

than money – especially in rural areas. He makes his point by

way of example at para 792:

“A member of backward class, say a member of carpenter caste, goes to Middle East and works there as a carpenter. If you take his annual income in rupees, it would be fairly high from the Indian standard. Is he to be excluded from the Backward Class? Are his children in India to be deprived of the benefit of Article 16(4)?”

245. Unless the carpenter became a factory owner, where his

income would be a reflection of his status, Justice Reddy

would answer his own question in the negative. This is where

we part ways. Today, the NRI carpenter’s children will have

likely attended the best schools, tuitions and coaching classes

that money can buy. These children do not need special

provisions. That is why I am removing the creamy layer,

calling for a time-limit on caste-based reservation and urging

the Government to use exclusively economic criteria to identify

OBCs who may avail of special provisions.

246. The United States Supreme Court has taken a similar

position with regard to setting a time-limit on race-based

affirmative action. As mentioned above, Justice Sandra Day

O’Connor opined that there may be a time-limit to promoting

diversity via preferential treatment for certain races: “We

expect that 25 years from now, the use of racial preferences

will no longer be necessary to further the interest approved

today.” (See: Grutter at 343).

247. In our context, one need not look past the Parliament’s

affinity with extending time-limits on reservation to see that

only the judiciary can put a stop to caste-based reservation.

Article 334 originally said that reservation for SC/ST/Anglo-

Indians in the Lok Sabha and State Legislative Assemblies

would expire on the Constitution’s tenth birthday. The

Parliament later substituted “ten” for “thirty years” vide the

45th Amendment. When that was to expire, the Parliament

extended it for another ten years vide the 62nd Amendment.

When that was to expire, it extended it for another ten years

vide the 79th Amendment. History has shown that it is not

politically feasible for the Parliament to say “no” to reservation

– especially when caste is involved.

248. Nevertheless, I have noted that Sawhney I rejects purely

economic criteria (occupation/income/property holdings/or

similar measures of economic power) with respect to

classification under 16(4). [para 859, 4(a)]. Sawhney I’s

nine-Judge holding precludes us from striking the impugned

legislation to the extent that it has not yet ruled out the use of

caste-based criteria for identifying SEBC status. It also

precludes us from forcing the Government to wean itself off

caste-based reservation by a certain date. In order to achieve a

casteless and classless society, after a lapse of ten years,

special preference or reservation should be granted only on

the basis of economic criteria as long as grave disparity and

inequality persist.

• Secularism is Part of the Basic Structure

249. To be clear, there is no claim arising out of the goal to

promote a casteless society. No right of action exists. The

right of action is found in secularism. Though not explicitly

found in the un-amended Constitution, the original Framers

made it clear that India was to be a secular democracy.

Discrimination based on religion is prohibited by Articles 14,

15(1) and 15(2), 16(1) and 16(2), 29(2) and 325. The original

Framers went out of their way to ensure that minorities would

be able to maintain their identity. (See: Articles 28, 29 and

30). Article 27 precludes the state from adopting a state

religion, whereas Article 25 grants citizens the right to profess,

practice and propagate religion. With rights come

responsibilities. One of them is found at Article 51A(3), which

instructs citizens “… to promote harmony and spirit of

brotherhood amongst all people … transcending religious …

diversities.”

250. Relying on these provisions, Bommai (1994) 3 SCC 1 at

para 304 declared secularism “….a constitutional goal and a

basic feature of the Constitution as affirmed in Kesavananda

Bharati and Indira N. Gandhi v. Raj Narain. Any step

inconsistent with this constitutional policy is, in plain words,

unconstitutional.” The Court reasoned that the original

Framers adopted Articles 25, 26 and 27 so as to further

secularism. (See: Bommai at para 28 (Ahmadi, J.)).

Secularism was very much embedded in their constitutional

philosophy. [para 29]. During the Constituent Assembly

Debates, Pandit Laxmikantha Mitra stated (as quoted at para

28 of Bommai):

“By secular State, as I understand it, it is meant that the State is not going to make any discrimination whatsoever on the ground of religion or community against any person professing any particular form of religious faith. … no citizen … will have any preferential treatment … simply on the ground that he professed a particular form of religion.” This is relevant today because quotas are state-sponsored

discrimination against those who are not deemed SEBCs -

caste being a by-product of religion. Though affirmative action

is allowed, there is a point at which it violates secularism.

Finally, I note that the 42nd Amendment, which formally

inserted secularism into the Preamble, merely made what was

already implicit explicit. (See Bommai at para 29).

• Conclusion on the Casteless Society

251. In conclusion, the First Parliament, by enacting Article

15(5), deviated from the original Framers’ intent. They passed

an amendment that strengthens, rather than weakens

casteism. If caste-based quotas in education are to stay, they

should adhere to a basic tenet of secularism: they should not

take caste into account. Instead, exclusively economic criteria

should be used. For a period of ten years, other factors such

as income, occupation and property holdings etc. including

caste, may be taken into consideration and thereafter only

economic criteria should prevail. Sawhney I has tied our

hands. I nevertheless believe that caste matters and will

continue to matter as long as we divide society along caste-

lines. Caste-based discrimination remains. Violence between

castes occurs. Caste politics rages on. Where casteism is

present, the goal of achieving a casteless society must never

be forgotten. Any legislation to the contrary should be

discarded.

5. Are Articles 15(4) and 15(5) mutually contradictory, such that 15(5) is unconstitutional?

252. While contradictory, I am able to read them

harmoniously. Learned senior counsel for petitioners, Mr.

K.K. Venugopal, argued that Articles 15(5) and 15(4) are

inconsistent to the extent that 15(5) exempts minority

institutions from reservation and 15(4) incorporates aided

minority institutions in the reservation scheme. Because both

provisions contain “non-obstante clauses”, they render each

other void. He further submitted that the Court is in the

position of having to choose between them in regard to this

inconsistency. He provided three tests of statutory

interpretation that give us guidance in resolving such a

conflict.

253. First, if the Court cannot harmonize the two provisions, it

must invalidate the one that completely destroys the other’s

purpose. Sarwan Singh & Another v. Kasturi Lal (1977) 1

SCC 750, pages 760-761, at para 20). In the instant case, one

of the express purposes of 15(5) was to exempt minority

institutions and thus avoid conflict with Article 30(1). This is

found in the text of Article 15(5) itself.

254. With nothing in the text of 15(4) to guide us, we turn to

its Statement of Objects and Reasons:

“……The Act also amplifies Article 15(3) so as to ensure that any special provisions that the State may make for the educational, economic or social advancement of any backward class citizens may not be challenged on the ground of being discriminatory. “ 255. Thus, Article 15(4) was not passed with an express

intention to include minority institutions; nor did it arise out

of a case in which minority institutions were a party. Then

again, it was open to the First Parliament to exclude minority

institutions from the beginning. Articles 15(4) and 15(5)’s

purposes do not necessarily conflict. I find the first test

inconclusive and thus turn to the other ones. The second test

asks which provision came into effect at a later date (i.e., was

“later in time?”)? That which is later shall prevail. Here, 15(5)

was enacted later in time. In J.K. Cotton Spinning and

Weaving Mills Co. Ltd. v. State of Uttar Pradesh & Others

AIR 1961 SC 1170 at page 1174, para 9, I find the third test; it

provides that the specific clause must trump the general.

Article 15(5) is specific in that it refers to special provisions

that relate to admission in educational institutions, whereas

15(4) makes no such reference to the type of entity at which

special provisions are to be enjoyed.

256. Because 15(5) is later in time and specific to the question

presented, it must neutralize 15(4) in regard to reservation in

education. Mr K. Parasaran, learned senior counsel for the

respondents, correctly pointed out that constitutional articles

are to be read harmoniously, not in isolation. (See: T.M.A.

Pai (supra) at page 582, para 148). Our interpretation is

harmonious because Article 15(4) still applies to other areas in

which reservation may be passed.

6. Does Article 15(5)’s exemption of minority institutions from the purview of reservation violate Article 14 of the Constitution?

257. Given the inherent tension between Articles 29(2) and

30(1), I find that the overriding constitutional goal of realizing

a casteless/classless society should serve as a tie-breaker.

We will take a step in the wrong direction if we subject

minority institutions (even those that are aided) to reservation.

258. Minority aided institutions were subject to a limited form

of reservation. In order to preserve the minority character of

the institution, reservation could only be imposed to a

reasonable extent. Minority aided institutions could select

their own students, contingent upon admitting a reasonable

number of non-minority students per the percentage provided

by the State Government. This conclusion was derived from

two conflicting constitutional articles. Of course, I am only

concerned with minority aided institutions because I have

already determined that the State shall not impose reservation

on unaided institutions (minority or non-minority).

259. Article 30(1) provides that “all minorities, whether based

on religion or language, shall have the right to establish and

administer educational institutions of their choice.” Article

29(2) states that “no citizen shall be denied admission into any

educational institution maintained by the State or receiving

aid out of State funds on grounds only of religion, race, caste,

language or any of them.”

260. In other words, 30(1) by itself would allow minority aided

institutions to reject all non-minority candidates, and 29(2) by

itself would preclude the same as discrimination based solely

on religion. Yet neither provision exists by itself. Rather than

disturb the Constitution, this Court struck a compromise and

diluted each provision in order to uphold both. Reading

Articles 30(1) and 29(2) harmoniously, Kerala Education Bill

provided that once minority institutions receive aid, a

sprinkling of outsiders must be admitted.

261. “Sprinkling” ensured that the minority character of the

institution would not be lost. In regard to the “sprinkled”

seats, minority institutions cannot discriminate based on

religion in violation of Article 29(2). At the same time, if the

State compelled aided minority institutions to take too many

non-minority students, the institution would be “minority” in

name only. But what does “too many” mean? Can “sprinkling”

be quantified? Clearing up the ambiguity, St. Stephen’s held

that minority institutions must make 50% of their seats

available to outsiders and that admission for the other 50%

(its own community) must be done on merit. Pai later rejected

the rigidity attached to this fixed percentage. Along these

lines, Pai returned to a more flexible standard, one akin to

“sprinkling” in Kerala Education Bill: the moment a minority

institution takes aid, it has to admit non-minority students to

a reasonable extent, whereby the character of the institution

was maintained and yet citizens’ Article 29(2) rights were not

subverted. (Also see: Pai at para 149).

Thus, two admission pools were created for aided minority

institutions: minority and non-minority. In the minority

pool, merit was to be observed. From the non-minority pool,

reservations for the weaker sections may be made while the

remaining seats, if any, would be distributed based on merit to

non-minority students.

“… It would be open to the state authorities to insist on allocating a certain percentage of seats to those belonging to weaker sections of society, from amongst the non-minority seats.” [Pai at para 152].

262. With regard to the percentage of reservation, the State

Governments were to determine the percentage of non-

minority seats according to the needs of that State. As a

compliment to reservation, aided minority institutions were

also subject to regulation of administration and management.

Pai declared at para 72 as noted above that:

“Once aid is granted to a private professional educational institution, the Government or the state agency, as a condition of the grant of aid, can put fetters on the freedom in the matter of administration and management of the institution. The state, which gives aid to an educational institution, can impose such conditions as are necessary for the proper maintenance of the high standards of education as the financial burden is shared by the state. …”

263. In addition to the general power to impose conditions

that seek to maintain high standards or “excellence in

education,” the State could implement the same under a

related but different rationale. That is, said regulations could

be upheld in the name of national interest. [Pai at para 107].

Yet the Government could not destroy the minority character

of an institution. [para 107]. Nor could it obliterate the

establishment or administration of a minority institution.

[para 107]. A balance was to be struck between (a)

maintaining academic quality and (b) preserving the minority

right to establish/administer educational institutions.

Regulations that embraced these two objectives were

considered reasonable. [Pai at para 122].

264. A question of great import is whether Article 30 was

designed to put minorities on equal or higher footing than

non-minorities. This question played out in detail in a debate

between Khare, C.J. and Justice Sinha in Islamic Academy.

Writing for the majority, Chief Justice Khare takes issue with

Pai. The Chief Justice says that Pai has wrongly categorized

minority rights as equal to those of the non-minority. He has

a point. Minorities can establish and administer institutions

for their communities per Article 30; non-minorities cannot.

His Lordship observed: (para 9 page 723)

“…We do not read these paragraphs to mean that non- minority educational institutions would have the same rights as those conferred on minority educational institutions by Article 30 of the Constitution of India. Non-minority educational institutions do not have the protection of Article 30. Thus, in certain matters they cannot and do not stand on a similar footing as minority educational institutions. Even though the principle behind Article 30 is to ensure that the minorities are protected and are given an equal treatment yet the special right given under Article 30 does give them certain advantages…”

Relying on St. Xavier’s case (1975) 1 SCR 173, Pai

concluded that the object of Article 30 was to ensure

minorities of equal treatment and nothing more.

265. It was observed in St. Xaviers College case, at page 192,

that "the whole object of conferring the right on minorities

under Article 30 is to ensure that there will be equality

between the majority and the minority. If the minorities do not

have such special protection, they will be denied equality." The

minority institutions must be allowed to do what the non-

minority institutions are permitted to do. [Pai at para 138].

266. In contrast to the majority in Islamic, Justice Sinha

concludes that Article 30(1) raises minorities to an equal

platform and no higher. Relevant portion is reproduced

hereinbelow:

“The statement of law contained in paras 138 and 139 is absolutely clear and unambiguous and no exception can be taken thereto. The doubt, if any, that the minorities have a higher right in terms of Article 30(1) of the Constitution of India may be dispelled in clearest terms inasmuch as the right of the minorities and non-minorities is equal. Only certain additional protection has been conferred under Article 30(1) of the 'Constitution of India to bring the minorities on the same platform as that of non-minorities as regards the right to establish and administer an educational institution for the purpose of imparting education to members of their own community whether based on religion or language. [see: Islamic Academy at para 105].”

267. Justice Sinha considers it constitutionally immoral to

discriminate against non-minorities in the guise of protecting

the constitutional rights of minorities. [See: Islamic Academy

at para 118]. Even in the face of Articles that provide

preferential treatment to minority or weaker sections, e.g.,

30(1), 15(4) and 16(4), the right to equality must mean

something.

268. Justice Khare, as he then was, concludes that original

Framers conferred Article 30(1) on minorities in order to instill

in them a sense of confidence and security. [Pai at page 615

at para 229]. Their right to establish and administer

educational institutions could not be usurped by mere

legislation. Khare, J. stated at para 229 p.615:-

“Thus, while maintaining the rule of non-discrimination envisaged by Article 29(2), the minorities should have also right to give preference to the students of their own community in the matter of admission in their own institution. Otherwise, there would be no meaningful purpose of Article 30(1) in the Constitution. True, the receipt of State aid makes it obligatory on the minority educational institution to keep the institution open to non-minority students without discrimination on the specified grounds. But, to hold that the receipt of State aid completely disentitles the management of minority educational institutions from admitting students of their community to any extent will be to denude the essence of Article 30 of the Constitution. It is, therefore, necessary that the minority be given preferential rights to admit students of

their own community in their own institutions in a reasonable measure otherwise there would be no meaningful purpose of Article 30 in the Constitution.”

269. Minorities possess one right or privilege that non-

minorities do not: establishing and administering institutions

for their community. The right to admit your own students in

aided minority institutions was subject to admitting a

reasonable number of outsiders. In the instant case, aided

minority institutions stand to benefit from the Reservation Act:

instead of having to admit a reasonable number of outsiders

they would be exempted from reservation. However, their non-

minority counterparts would not. Does this elevate their

status? While it does to a certain extent, however, we must

also keep our constitutional goal and philosophy in mind.

Given the ultimate goal of furthering a classless/casteless

society, there is no need to go out on a limb and rewrite them

into the Amendment. Such a ruling would subject even more

institutions to caste-based reservation. This would be a step

back for the Nation, furthering the caste divide. I refuse to go

in that direction.

7) Are the standards of review laid down by the U.S. Supreme Court applicable to our review of affirmative action under Article 15(5) and similar provisions?

270. As noted above, U.S. law is, of course, not binding but

does have great persuasive value. This is because their

problem of race is akin to our problem of caste. Where others

have reviewed similar issues in great detail, it behooves us to

learn from their mistakes as well as accomplishments.

Mr. R. Venkataraman, former President of India in a

foreword to a book of eminent constitutional expert Dr. L.M.

Singhvi “Democracy And Rule of Law : Foundation And

Frontiers”, has aptly observed which reads as under:

“Society progresses only by exchange of thoughts and ideas. Imagine what a sorry state the world would have been in had not thoughts and ideas spread to all corners of the globe. Throughout history, philosophers, reformers, thinkers, and scholars have recorded their thoughts, regardless of whether they were accepted or not in their times, and thus contributed towards progress of humankind. India was the first to encapsulate this seminal global thought. The Rig Veda says:

Ano bhadrah Krtavo yantu Viswatah

Let noble thought come to us from every side.”

8) With respect to OBC identification, was the Reservation Act’s delegation of power to the Union Government excessive?

271. It is not an excessive delegation. I agree with the Chief

Justice’s reasoning at para 185 of his judgment.

9) Is the impugned legislation invalid as it fails to set a time-limit for caste-based reservation?

272. It is not invalid because it fails to set a time-limit. Given

the Parliament’s history of extending time-limits on other

reservation schemes, there is much force to the argument that

the Parliament will forever continue to extend reservations. As

noted above, it is consistent with our constitutional goal of

achieving a classless/casteless society that a time-limit be set.

But I am bound by Sawhney I and believe that only a larger

bench could make such a ruling. A larger bench could

certainly hold that only economic criteria could be used to

identify SEBCs and that it should be done by a certain date.

10) At what point is a student no longer Educationally Backward and thus no longer eligible for special provisions under 15(5)?

273. Once a candidate graduates from a university, he must

be considered educationally forward. Senior counsel for

petitioners, Mr. P.P. Rao, contended that those who have

completed Plus 2 should be considered educationally forward.

In other words, they would no longer be eligible for reservation

in university or post-graduate studies. There is some force in

this argument where only 18% in the relevant age-group have

completed Plus 2. From this vantage point, this means that

they are educationally elite. But the answer to most questions

in law is not so simple. The answer often depends on the

circumstances surrounding the issue. In the marketplace, a

candidate who has completed higher secondary education

cannot be considered “forward”. The real value of the higher

secondary degree is that it is a prerequisite for college

admissions. The general quality of education imparted upto

Plus 2 is of extremely indifferent quality and apart from that,

today some entry-level Government positions only accept

college graduates. One is educationally backward until the

candidate has graduated from a university. Once he has, he

shall no longer enjoy the benefits of reservation. He is then

deemed educationally forward. For admission into Master’s

programmes, such as, Master of Engineering, Master of Laws,

Master of Arts etc., none will be a fortiori eligible for special

benefits for admission into post graduation or any further

studies thereafter.

11. Would it be reasonable to balance OBC reservation with societal interests by instituting OBC cut-off marks that are slightly lower than that of the general category? 274. Balaji (supra) concluded that reservation must be

reasonable. The Oversight Committee has made a

recommendation that will ensure the same. At page 34 of

Volume I of its Report, the Oversight Committee recommended

that institutions of excellence set their own cut off marks such

that quality is not completely compromised. Cut offs or

admission thresholds as suggested by the Oversight

Committee are reproduced:

“4.4.2 The Committee recognizes that those institutions of higher learning which have established a global reputation (e.g. IITs, IIMs, IISc, AIIMS and other such exceptional quality institutions), can only maintain that if the highest quality in both faculty and students is ensured. Therefore, the committee recommends that the threshold for admission should be determined by the respective institutions alone, as is done today, so that the level of its excellence is not compromised at all.

4.4.3 As regards ‘cut-offs’ in institutions other than those mentioned in para 7, these may be placed somewhere midway between those for SC/ST and the unreserved category, carefully, calibrated so that the principles of both equity and excellence can be maintained.

4.4.4 The Committee strongly feels that the students who currently tend to get excluded must be given every single opportunity to raise their own levels of attainment, so that they can reach their true potential. The Government should invest heavily in creating powerful, well designed and executed remedial preparatory measures to achieve this objective fully.”

275. Standards of excellence however should not be limited to

the best aided institutions. The Nation requires that its

citizens have access to quality education. Society as a whole

stands to benefit from a rational reservation scheme.

276. Finding 68% reservation in educational institutions

excessive, Balaji at pages 470-471 (supra) admonished States

that reservation must be reasonable and balanced against

other societal interests. States have “… to take reasonable

and even generous steps to help the advancement of weaker

elements; the extent of the problem must be weighted, the

requirements of the community at large must be borne in

mind and a formula must be evolved which would strike a

reasonable balance between the several relevant

considerations.” To strike such a balance, Balaji slashed the

impugned reservation from 68 to less than 50%.

277. Balaji thus serves as an example in which this Court

sought to ensure that reservation would remain reasonable.

We heed this example. There should be no case in which the

gap of cut off marks between OBC and general category

students is too large. To preclude such a situation, cut off

marks for OBCs should be set no lower than 10 marks below

the general category.

278. To this end, the Government shall set up a committee to

look into the question of setting the OBC cut off at nor more

than 10 marks below that of the general category. Under such

a scheme, whenever the non-creamy layer OBCs fail to fill the

27% reservation, the remaining seats would revert to general

category students.

SUMMARY OF FINDINGS

1A. Whether the creamy layer be excluded from the 93 rd Amendment (Reservation Act) ?

Yes, it must. The 93rd amendment would be ultra vires and

invalid if the creamy layer is not excluded.

See paras 22, 25, 27, 30, 34, 35, 43, 44.

1B. What are the parameters for creamy layer exclusion?

For a valid method of creamy layer exclusion, the Government

may use its post-Sawhney I criteria as a template. (See: Office

Memorandum dated 8-9-1993, para 2(c)/Column 3). I urge

the Government to periodically revise the O.M. so that

changing circumstances can be taken into consideration while

keeping our constitutional goal in view.

I further urge the Government to exclude the children of

former and present Members of the Parliament and Members

of Legislative Assemblies and the said O.M. be amended

accordingly.

See paras 55-57.

1C. Is creamy layer exclusion applicable to SC/ST?

In Indra Sawhney-I, creamy layer exclusion was only in

regard to OBC. Justice Reddy speaking for the majority at

para 792 stated that “this discussion is confined to Other

Backward Classes only and has no relevance in the case of

Scheduled Tribes and Scheduled Castes”. Similarly, in the

instant case, the entire discussion was confined only to Other

Backward Classes. Therefore, I express no opinion with

regard to the applicability of exclusion of creamy layer to the

Scheduled Castes and Scheduled Tribes.

See para 34.

2. Can the Fundamental Right under Article 21A be accomplished without great emphasis on primary education?

No, it cannot.

An inversion in priorities between higher and

primary/secondary education would make compliance with

Article 21A extremely difficult. It is not suggested that higher

education needs no encouragement or that higher education

should not receive more funds, but there has to be much

greater emphasis on primary education. Our priorities have to

be changed. Nothing is really more important than to ensure

total compliance of Article 21A. Total compliance means good

quality education is imparted and all children aged six to

fourteen regularly attend schools. I urge the Government to

implement the following:

The current patchwork of laws on compulsory education is

insufficient. Monetary fines do not go far enough to ensure

that Article 21A is implemented. The Central Government

should enact legislation that:

(a) provides low-income parents/guardians with financial incentives such that they may afford to send their children to schools;

(b) criminally penalizes those who receive financial incentives and despite such payment send their children to work;

(c) penalizes employers who preclude children from attending schools;

(d) the penalty should include imprisonment; the aforementioned Bill would serve as an example. The State is obligated under Article 21A to implement free and compulsory education in toto.

(e) until we have accomplished for children from six to fourteen years the object of free and compulsory education, the Government should continue to increase the education budget and make earnest efforts to ensure that children go to schools and receive quality education;

(f) The Parliament should fix a deadline by which time free and compulsory education will have reached every child. This must be done within six months, as the right to free and compulsory education is perhaps the most important of all the fundamental rights. For without education, it becomes extremely difficult to exercise other fundamental rights.

See paras 126-131.

3. Does the 93 rd Amendment violate the Basic Structure of the Constitution by imposing reservation on unaided institutions?

Yes, it does. Imposing reservation on unaided

institutions violates the Basic Structure by stripping citizens

of their fundamental right under Article 19(1)(g) to carry on an

occupation. T.M.A. Pai and Inamdar affirmed that the

establishment and running of an educational institution falls

under the right to an occupation. The right to select students

on the basis of merit is an essential feature of the right to

establish and run an unaided institution. Reservation is an

unreasonable restriction that infringes this right by destroying

the autonomy and essence of an unaided institution. The

effect of the 93rd Amendment is such that Article 19 is

abrogated, leaving the Basic Structure altered. To restore the

Basic Structure, I sever the 93rd Amendment’s reference to

“unaided” institutions.

See paras 132-182.

4. Whether the use of caste to identify SEBCs runs afoul of the casteless/classless society, in violation of Secularism.

Sawhney I compels me to conclude that use of caste is valid.

It is said that if reservation in education is to stay, it should

adhere to a basic tenet of Secularism: it should not take caste

into account. As long as caste is a criterion, we will never

achieve a casteless society. Exclusively economic criteria

should be used. I urge the Government that for a period of ten

years caste and other factors such as

occupation/income/property holdings or similar measures of

economic power may be taken into consideration and

thereafter only economic criteria should prevail; otherwise we

would not be able to achieve our constitutional goal of

casteless and classless India.

See paras 194, 195, 231, 248, 251.

5. Are Articles 15(4) and 15(5) mutually contradictory, such that 15(5) is unconstitutional?

I am able to read them harmoniously.

See paras 252-256.

6. Does Article 15(5)’s exemption of minority institutions from the purview of reservation violate Article 14 of the Constitution?

Given the inherent tension between Articles 29(2) and

30(1), I find that the overriding constitutional goal of realizing

a casteless/classless society should serve as a tie-breaker.

We will take a step in the wrong direction if minority

institutions (even those that are aided) are subject to

reservation.

See paras 268-269.

7) Are the standards of review laid down by the U.S. Supreme Court applicable to our review of affirmative action under Art 15(5) and similar provisions?

The principles enunciated by the American Supreme Court,

such as, “Suspect Legislation” “Narrow Tailoring” “Strict

Scrutiny” and “Compelling State necessity” are not strictly

applicable for challenging the impugned legislation.

Cases decided by other countries are not binding but do have

great persuasive value. Let the path to our constitutional

goals be enlightened by experience, learning, knowledge and

wisdom from any quarter. In the words of Rigveda, let noble

thoughts come to us from every side.

See para 183.

8) With respect to OBC identification, was the Reservation Act’s delegation of power to the Union Government excessive?

It is not an excessive delegation. With respect to this issue, I

agree with the reasoning of the Chief Justice in his judgment.

9) Is the impugned legislation invalid as it fails to set a time-limit for caste-based reservation?

It is not invalid because it fails to set a time-limit.

See para 272.

10) At what point is a student no longer Educationally Backward and thus no longer eligible for special provisions under 15(5)?

Once a candidate graduates from a university, the said

candidate is educationally forward and is ineligible for special

benefits under Article 15(5) of the Constitution for post

graduate and any further studies thereafter.

See para 273.

11. Would it be reasonable to balance OBC reservation with societal interests by instituting OBC cut-off marks that are slightly lower than that of the general category?

It is reasonable to balance reservation with other societal

interests. To maintain standards of excellence, cut off marks

for OBCs should be set not more than 10 marks out of 100

below that of the general category.

See paras 274-278.

These Writ Petitions and Contempt Petition are accordingly

disposed of. In the facts and circumstances, the parties are

to bear their own costs.

…...............................J. (Dalveer Bhandari) New Delhi; April 10, 2008

ASHOKA KUMAR THAKUR Vs UNION OF INDIA

ASHOKA KUMAR THAKUR Vs UNION OF INDIA

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