http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

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

PETITIONER: Ashoka Kumar Thakur

RESPONDENT: Union of India & Ors

DATE OF JUDGMENT: 10/04/2008

BENCH: R. V. Raveendran

JUDGMENT: J U D G M E N T

WRIT PETITION (CIVIL) NO.265 OF 2006 WITH Writ Petition (C) No.269/2006 Writ Petition (C) No.598/2006 Writ Petition (C) No.29/2007 Writ Petition (C) No.35/2007 Writ Petition (C) No.53/2007 Writ Petition (C) No.33/2007 Writ Petition (C) No.313/2007 Writ Petition (C) No.335/2007 Writ Petition (C) No.231/2007 Writ Petition (C) No.425/2007 Writ Petition (C) No.428/2007 Contempt Petition (C) No.112/2007 in Writ Petition (C) No.265/2006

R. V. Raveendran J.

       It has been my privilege to read the drafts of the Judgments proposed  by the learned Chief Justice, learned brothers Pasayat J. and Bhandari J. I  respectfully agree with them as indicated below :           A.      Validity of 93rd Amendment to the Constitution of India.  

I agree with the learned Chief Justice and Pasayat, J. that clause (5) of  Article 15 is valid with reference to state maintained educational institutions  and aided educational institutions; and that the question whether Article  15(5) would be unconstitutional on the ground that it violates the basic  structure of the Constitution by imposing reservation in respect of private  unaided educational institutions is left open.  I have indicated an additional reason for rejecting the challenge to  Article 15(5) on the ground that it renders Article 15(4)  inoperative/ineffective .  

B.      Validity of Central Educational Institutions (Reservation in  Admissions) Act, 2006 \026 Act No.5 of 2007 :  

       I agree with the learned Chief Justice and Pasayat J. that (i)  identification of other backward classes solely on the basis of caste will be  unconstitutional; (ii) failure to exclude the ’creamy layer’ from the benefits  of reservation would render the reservation for other backward classes under  Act 5 of 2007 unconstitutional; and (iii) Act 5 of 2007 providing for  reservation for other backward classes will however be valid if the definition  of ’other backward classes’ is clarified to the effect that if the identification  of other backward classes is with reference to any caste considered as  socially and economically backward, ’creamy layer’ of such caste should be  excluded. I have indicated briefly my reasons for the same.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

       I agree with the decision of learned Chief Justice that the Act is not  invalid merely because no time limit is prescribed for caste based  reservation, but preferably there should be a review after ten years to take  note of the change of circumstances. A genuine measure of reservation may  not be open to challenge when made. But during a period of time, if the  reservation is continued in spite of achieving the object of reservation, the  law which was valid when made, may become invalid.   

(C).    What should be parameters for determining the creamy layer in  respect of OBCs?

I agree with the learned Chief Justice that OM dated 8.9.1993 of the  Government of India can be applied for such determination.  

(D)     Whether reservation to an extent of 27% in regard to other backward  class under Act 5 of 2007 is valid?

I  agree with the decision of learned Chief Justice that reservation of 27% for  other backward classes is not illegal.  

I would however leave open the question whether members belonging to  other backward classes who get selected in the open competition field on the  basis of their own merit should be counted against the 27% quota  reserved  for other backward classes under an enactment enabled by Article 15(5) of  the Constitution, for consideration in an appropriate case.  

2.      Let me now briefly add a few words on two of the questions.  

Whether Article 15(5) renders Article 15(4)  ineffective?

3.      This Court has held that clause (4) of Article 15 is neither an  exception nor a proviso to clause (1) of Article 15. Clause (4) has been  considered to be an instance of classification inherent in clause (1) and an  emphatic restatement of the principle implicit in clause (1) of Article 15 (see  : State of Kerala v. N.M. Thomas - 1976 (2) SCC 310, K.C. Vasanth Kumar  v. State of Karnataka - 1985 Supp. SCC 714 and Indra Sawhney v. Union of   India  - 1992 Supp. (3) SCC 217). Clauses (1) and (2) of Article 15 bar  discrimination. Clause (1) contains a prohibition that State shall not  discriminate against any citizen on grounds only on religion, caste, creed,  sex or birth. Clause (2) declares that no citizen shall, on grounds only of   religion, race, caste, sex, place of birth or any of them be subject to any  disability, liability, restriction or condition with regard to access to shops,  public restaurants, hotels and places of public entertainment, or the use of  wells, tanks, bathing ghats, roads and places of public resort maintained  wholly or partly out of State funds or dedicated to the use of the general  public. Clauses (3) to (5) enable the State to make special provisions in  specified areas. While clause (3) is a part of the Article as originally framed,  Clause (4) was added by Constitution (First Amendment) Act, 1951. Clause  (5) was added by Constitution (Ninety-third Amendment) Act, 2005. Each  of these three enabling provisions operate independent of each other. The  opening words ’Nothing in this article’ occurring in each of these clauses  (3), (4) and (5) obviously refer to clauses (1) and (2) of Art. 15 and not to the  other enabling  clauses. Clauses (3), (4) and (5) of Article 15 are not to be  read as being in conflict with each other, or prevailing over each other, but  are to be read harmoniously.  

The need for exclusion of creamy layer.  

4.      Section 3 of Act 5 of 2007 mandates reservation of seats in central  educational institutions for other backward classes to an extent of 27%. The  term ’other backward classes’ is defined as meaning the class or classes of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

citizens who are socially and economically backward, and are so determined  by the central Government. The Act does not define the term ’socially and  educationally backward classes’, nor does it contain any norms or guidelines   as to how the central Government should determine any class or classes as  socially and educationally backward, so as to entitle them to the benefit of  reservation under the Act. The petitioners contend that the Act vests  unguided power in the executive to pick and choose arbitrarily certain  classes for the benefit of reservation. The Central Government has however  indicated that it intends to proceed on the basis that castes which have  already been identified for the benefit of reservations under Article 16(4) by  the Mandal Commission with the additions thereto made by the National  Commission for Backward Classes, from time to time, will be considered,  for the present, to constitute the  socially and educationally backward classes  for the purpose of availing the benefit of 27% reservation under the Act.  This again is challenged by the petitioners on the ground that identification  of any class of citizens as ’backward’, for the purpose of Article 16(4),  cannot be considered as identification of ’socially and educationally  backward classes of citizens’ under Article 15(5). It is contended that the  term ’backward classes’ in Article 16(4) is much wider than ’socially and  educationally backward classes of citizens’ occurring in clauses (4) and (5)  of Article 15.

5.      Article 15(4) provides that nothing in that Article or in clause (2) of  Article 29 shall prevent the State from making any special provision for the  advancement of any socially and educationally backward class of citizens or  for Scheduled Castes and Scheduled Tribes. Article 29(2) provides that no  citizen shall be denied admission into any educational institution managed  by the State or receiving aid out of State funds, on grounds only of religion,  race, caste, language or any of them. On the other hand, clause (5) of Article  15 provides that notwithstanding anything contained in that Article or in  Article 19(1)(g), State may make a special provision for advancement of  socially and educationally backward class of citizens or for Scheduled  Castes and Scheduled Tribes by providing for reservation relating to  admission in any educational institution either aided or unaided by the State,  other than the minority educational institutions referred to in Article 30(1).   It is submitted that as clause (5) of Article 15 does not override or exclude  Article 29(2), any law made in exercise of power under Article 15(5) will be  subject to Article 29(2), and consequently there cannot be any affirmative  action by way of reservation on the ground of caste alone.  

6.      It is submitted on behalf of the petitioners that the object of the  Constitution is to achieve an egalitarian society and any attempt to divide the  citizens or the society on the ground of race, religion or caste should be  straightaway rejected. It is further submitted that the Constitution nowhere  recognizes or refers to ’caste’ (except Scheduled Castes and Tribes) as a  criterion for conferment of any right or benefit; that both clauses (4) and (5)  of Article 15 refer to ’socially and educationally backward classes’ and not  ’socially and educationally backward castes’; that Constitution has always  referred to caste in a negative sense, that is to prohibit any discrimination or  affirmative action on the basis of ’caste’  - [Vide Article 15(1) and (2), 16(2)  and 29(2)]; and that when Constitution bars discrimination in admissions to  educational institutions on ground only of caste, it is surprising that caste is  sought to be made the criterion by the State for purposes of making a special  provision for socially and educationally backward classes in regard to such  admissions. It is submitted that there cannot be any special provision for any  group of citizens merely on the ground that they belong to a particular caste  or community (except Scheduled Castes and Tribes who are separately  mentioned in Articles 15(4), 15(5), 16(4), 335, 341 and 342 etc.).  

7.      This Court in a series of decisions commencing from M.R. Balaji v.  State of Mysore [1963 Supp. (1) SCR 439], R.Chitralekha v. State of Mysore  [1964 (6) SCR 368], State of Andhra Pradesh v. P.Sagar [1968 (3) SCR  595],  Janki Prasad Parimoo v. State of Jammu & Kashmir [1973 (1) SCC

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

420], State of Kerala v. N.M.Thomas [1976 (2) SCC 310] and K.C.Vasanth  Kumar v. State of Karnataka [1985 Supp. SCC 714] has explained what is  social and educational backwardness. All these decisions have laid down the  principle that caste cannot be made the sole or dominant test to determine  backwardness, and any classification determining backwardness only with  reference to caste will be invalid. These decisions recognized the fact that  caste is not equated to class and all backwardness, either social or  educational, is ultimately and primarily due to poverty or economic  conditions.

8.      However, in Minor P.Rajendran v. State of Madras [1968 (2) SCR  786], it was held that if a caste, as a whole, is socially and educationally  backward then reservation can be made in favour of such a caste on the  ground that it is a socially and educationally backward class within the  meaning of Article 15(4). The decision followed Balaji and therefore  proceeded on the basis that where the extent of social and educational  backwardness of the caste in question is virtually the same as the social and  educational backwardness of Scheduled Castes and Scheduled Tribes,  reservation can be made on the basis of caste itself. In that case, it was found  as a question of fact that members of certain castes as a whole, were socially  and educationally backward, and therefore it was held that the reservation  the basis of caste was permissible in respect of those castes. In  A.Periakaruppan v. Sobha Joseph [1971 (1) SCC 38], this Court referred to  the cases starting from Balaji to Rajendran. It reiterated the principle stated  in Rajendran that if a caste as a whole is socially and educationally  backward, reservation can be made in favour of such a caste on the ground  that it is a socially and educationally backward class of citizens within the  meaning of Article 15(4). It also cautioned that the Government should not  proceed on the basis that once a class is considered as a backward class, it  will continue to be backward class for all times. Vasanth Kumar (supra) held  that only a caste comparable to the Scheduled Castes and Scheduled Tribes  in the matter of backwardness, could be considered to be a socially and  educationally backward class in favour of which reservation could be made  on the basis of caste. Vasanth Kumar therefore, reiterated Balaji.

9.      What requires to be noticed is neither Rajendran nor Periakaruppam  nor Vasanth Kumar really departed from or diluted the principle laid down  in Balaji. On the other hand, the principle laid down in Balaji was reiterated.  Rajendran and Periakaruppam only show that in extreme cases where it is  found that the caste under consideration was, as a whole,  socially and  educationally backward, and therefore akin to a Scheduled Caste, reservation  can be made on the basis of caste alone.  

10.     Then came to the decision of nine Judges in Indra Sawhney v. Union  of India [1992 Supp. (3) SCC 217]. This Court held that the use of the word  ’class’ in Article 16(4) refers to social class, and that reservation under  Article 16(4) is in favour of a backward class and not a caste. It held that ’  backward class of citizens’ contemplated in Article 16(4) is not the same as  ’socially and educationally backward classes’ referred to in Article 15(4),  but much wider. It held that there was no reason to qualify or restrict the  meaning of the expression ’backward class of citizens’ by saying that it  means only those other backward classes who are situated similarly to  Scheduled Castes and/or Scheduled Tribes (para 795). This Court held :  

"If any group of class is situated similarly to the Scheduled Castes, they  may have a case for inclusion in that class but there seems to be no basis  either in fact or in principle for holding that other classes/groups must be  situated similarly to them for qualifying as backward classes. There is no  warrant to import any such a priori notions into the concept of Other  Backward Classes. At the same time, we think it appropriate to clarify that  backwardness, being a relative term, must in the context be judged by the  general level of advancement of the entire population of the country or the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

State, as the case may be. More than this, it is difficult to say."

In the context of Article 16(4) this Court also observed that a caste can be  and quite often is a social class in India and if it is backward socially, it  would be a ’backward class’ for the purposes of Article 16(4). It held that  the accent in Article 16(4) is on social backwardness, whereas the accent in  Article 15(4) is on ’social and educational backwardness’. Ultimately, this  Court held :

"       Neither the Constitution nor the law prescribes the procedure or  method of identification of backward classes. Nor is it possible or  advisable for the court to lay down any such procedure or method. It must  be left to the authority appointed to identify. It can adopt such  method/procedure as it thinks convenient and so long as its survey covers  the entire populace, no objection can be taken to it. Identification of the  backward classes can certainly be done with reference to castes among,  and along with, other occupational groups, classes and sections of people.  

The Court however made it clear that a caste can be the starting point for  determining a ’backward class of citizens’ as it represents an existing,  identifiable social group/class; and that if a caste should be designated as ’a  backward class’ then the creamy layer from such caste should be excluded.  This Court observed :  

"In a backward class under clause (4) of Article 16, if the connecting link  is the social backwardness, it should broadly be the same in a given class.  If some of the members are far too advanced socially (which in the  context, necessarily means economically and, may also mean  educationally) the connecting thread between them and the remaining  class snaps. They would be misfits in the class. After excluding them  alone, would the class be a compact class. .. While we agree that clause (4)  aims at group backwardness, we feel that exclusion of such socially  advanced members will make the ’class’ a truly backward class and would  more appropriately serve the purpose and object of clause (4)"  

        12.     It is thus seen that Indra Sawhney certainly went a step further than  Balaji and other cases in holding that a caste can be the starting point for  determination of backwardness. But it is clear from the decision that caste  itself is not the final destination, that is, a caste by itself, cannot be  determinative of social and educational backwardness. A caste can be  identified to be socially and economically backward, only when the  creamy  layer is removed from the caste and a compact class emerges which can be  identified as a socially and educationally backward class. Thus the  determination is not by first identifying a caste as a socially and  educationally backward class and, thereafter, remove or exclude the creamy  layer for the purpose of bestowing the benefits flowing to such class. On the  other hand, until and unless, the creamy layer is removed from a caste, there  is no compact class which can be termed as socially and educationally  backward class at all. Thus, while the process of identifying socially and  educationally backward class can conveniently start with a socially and  educationally backward caste, remove the creamy layer therefrom results in   the emergence of compact class which can be termed as a socially and  educationally backward class. In this sense, it can be said that Indra  Sawhney is only a development of the principles laid down in Balaji,  R.Chitralekha and Vasanth Kumar, which pointed out that the advanced  section of a backward caste constituting the creamy layer is virtually the  same as forward class. If the creamy layer is not excluded the benefit of  reservation will be appropriated by such advanced sections. Referring to this  aspect, Indra Sawhney (supra) stated :  

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

"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."

The need for exclusion of creamy layer is reiterated in the subsequent  decisions of this Court in Ashoka Kumar Thakur v. State of Bihar \026 1995 (5)  SCC 403, Indra Sawhney v. Union of India (II) \026 1996 (6) SCC 506,  M.Nagaraj v. Union of India \026 2006 (8) SCC 212. When Indra Sawhney has  held that creamy layer should be excluded for purposes of Article 16(4),  dealing with ’backward class’ which is much wider than ’socially and  educationally backward class’ occurring in Article 15(4) and (5), it goes  without saying that without the removal of creamy layer there cannot be a  socially and educationally backward class. Therefore when a caste is  identified as a socially and educationally backward caste, it becomes a  ’socially and educationally backward class’ only when it sheds its creamy  layer.

13.     Caste has divided this country for ages. It has hampered its growth. To  have a casteless society will be realization of a noble dream. To start with,  the effect of reservation may appear to perpetuate caste. The immediate   effect of caste based reservation has been rather unfortunate. In the pre- reservation era people wanted to get rid of the backward tag -- either social  or economical. But post reservation, there is a tendency even among those  who are considered as ’forward’, to seek ’backward’ tag, in the hope of  enjoying the benefits of reservations. When more and more people aspire for  ’backwardness’ instead of ’forwardness’ the country itself stagnates. Be that  as it may. Reservation as an affirmative action is required only for a limited  period to bring forward the socially and educationally backward classes by  giving them a gentle supportive push. But if there is no review after a  reasonable period and if reservation is continued, the country will become a  caste divided society permanently. Instead of developing an united society  with diversity, we will end up as a fractured society for ever suspicious of  each other. While affirmative discrimination is a road to equality, care  should be taken that the road does not become a rut in which the vehicle of  progress gets entrenched and stuck. Any provision for reservation is a  temporary crutch. Such crutch by unnecessary prolonged use, should not  become a permanent liability. It is significant that Constitution  does not  specifically prescribe a casteless society nor tries to abolish caste. But by  barring discrimination in the name of caste and by providing for affirmative  action Constitution seeks to remove the difference in status on the basis of  caste. When the differences in status among castes are removed, all castes  will become equal. That will be a beginning for a casteless egalitarian  society.  

14.     I agree that the petitions shall stand disposed of in the manner stated  by the learned Chief Justice.