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

PETITIONER: Ashoka Kumar Thakur

RESPONDENT: Union of India and Ors

DATE OF JUDGMENT: 10/04/2008

BENCH: Dr. ARIJIT PASAYAT & C.K. THAKKER

JUDGMENT: J U D G M E N T

WRIT PETITION (CIVIL) NO. 265 OF 2006 (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)

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

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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.

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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

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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

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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-

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"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

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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

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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

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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

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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

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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

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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’s       case  (supra) where it was observed:  "If  the  effect  of  the  amendment   made  in         the fundamental rights

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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 about a  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

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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

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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

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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

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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.

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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

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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 \026 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" \026 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

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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 \026  "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

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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 \005\005 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

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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.

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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 \026 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

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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  \026 an edge which can propel India into a position of  global leadership.

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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 naove 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)

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       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. Existing  Student  Intake Annual  Addl.  Student  Intake Addl.  Facility  Required Non  Recurring  Ex. Recur

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ring  Exp.  (5Yrs) Total  Exp.  In 5  Yrs.

Agricu lture 5 825 454 187 102.75 92.71 195.46

Central  Univers ities 17 92011 49689 6609 2702.11 2455. 92 5158. 03 Manag ement 7 1791 966 139 511.32 177.      48 688.     80

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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 18197. 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

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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

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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\005It is  required in the performance of our  most basic responsibilities, even  service in the armed forces. It is the

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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

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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

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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.  Xx                      xx                      xx     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

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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 \027 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

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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

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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  2=  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:

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"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.          xx                      xx                      xx 629. More backward and backward is an  illusion. No constitutional exercise is called for

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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.          Xx                      xx                      xx    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 \027 as  forward as any other forward class member \027  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

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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 \027 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

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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 \027 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 \027 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 \027 whether on the basis  of income, extent of holding or otherwise \027 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

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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.  xx              xx                      xx    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

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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\005\005   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.                    xx                      xx              xx    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.                  xx              xx              xx    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. \027 (i.e. six learned Judges out of nine), \027  they specifically refer to those in higher  services like IAS, IPS and All India Services or

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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.          Xx              xx              xx    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.  Xx                      xx              xx    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

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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

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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.                 xx                      xx              xx 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

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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

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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

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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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       xx                      xx              xx

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.                   xx                      xx                      xx 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

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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

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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

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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

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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.         xx                      xx              xx         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

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the attainment of equality in all its aspects.

       Xx                      xx                      xx

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

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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

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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

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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

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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

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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

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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.

               xx              xx                      xx

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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 \026 No teacher

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

(vi)    In more than 60,000 schools the pupil :

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Teacher ratio is greater than 100 :1 while the  acceptable ratio is  less than 40:1.

(vii)   In 84,848 schools \026 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;

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(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

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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

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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

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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

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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

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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

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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

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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

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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 \026 one relating to casus  omissus and the other in regard to reading the statute as a  whole \026 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."

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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.           xx                      xx                      xx 46. The point which we are emphasising is

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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.  xx                      xx                      xx   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.

xx                      xx                      xx   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.

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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\027whether 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

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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\027 "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.  xx                      xx                      xx 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)

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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 \027 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".

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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

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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

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and Space application, provision for  reservation would not be advisable.         xx                      xx                      xx 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.                 xx              xx                      xx 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’ \026 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

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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.

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(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

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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.

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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

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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

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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 \027 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

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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 \027 we may  reiterate \027 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

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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 \026 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,

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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

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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

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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\005\005The 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

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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

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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

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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.

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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

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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\005\005In 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

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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 \027  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,

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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 \027 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\005..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

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compassion\005..."

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

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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

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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

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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-‘-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

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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

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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

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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.