http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 78  

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

PETITIONER: Ashoka Kumar Thakur

RESPONDENT: Union of India & Others

DATE OF JUDGMENT: 10/04/2008

BENCH: Dalveer Bhandari

JUDGMENT: J U D G M E N T

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

Dalveer Bhandari, J.

1.      The 93rd Amendment to the Constitution directly or  indirectly affects millions of citizens of this country.  It has been  challenged in a number of writ petitions.  This Court heard these  petitions intermittently over the course of several months.   Appearing on behalf of petitioners and respondents, the  country’s finest legal minds assisted us.  2.      The fundamental question that arises in these writ petitions  is:  Whether Article 15(5), inserted by the 93rd Amendment, is  consistent with the other provisions of the Constitution or  whether its impact runs contrary to the Constitutional aim of  achieving a casteless and classless society?  

3.      On behalf of the petitioners, Senior Advocate Mr. F.S.  Nariman, eloquently argued that if Article 15(5) is permitted to  remain in force, then, instead of achieving the goal of a casteless  and classless society, India would be converted into a caste- ridden society.  The country would forever remain divided on  caste lines. The Government has sought to repudiate this  argument.  Petitioners’ argument, however, echoes the grave  concern of our Constitution’s original Framers.  

4.      On careful analysis of the Constituent Assembly and the  Parliamentary Debates, one thing is crystal clear:  our leaders  have always and unanimously proclaimed with one voice that  our constitutional goal is to establish a casteless and classless  society.  Mahatma Gandhi said: "The caste system as we know is  an anachronism.  It must go if both Hinduism and India are to  live and grow from day to day."    The first Prime Minister, Pt.  Jawahar Lal Nehru, said that "no one should be left in any doubt  that the future Indian Society was to be casteless and classless".   Dr. B. R. Ambedkar called caste "anti-national".

5.      After almost four decades of independence, while  participating in the Parliamentary Debate on the Mandal issue,  then Prime Minister Shri Rajiv Gandhi on 6th September, 1990  again reiterated the same sentiments: "I think, nobody in this

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 78  

House will say that the removal of casteism is not part of the  national goal, therefore, it would be in the larger interest of the  nation to get rid of the castes as early as possible".  It is our  bounden duty and obligation to examine the validity of the 93rd  Amendment in the background of the Preamble and the ultimate  goal that runs through the pages of the Constitution.            6.      To attain an egalitarian society, we have to urgently remove  socio-economic inequalities.  All learned counsel for the  petitioners asserted that we must deliver the benefits of  reservation to only those who really deserve it.  This can only be  done if we remove the creamy layer. Learned counsel for the  Union of India and other respondents opposed this assertion.  The principle of creamy layer emanates from the broad doctrine  of equality itself. Unless the creamy layer is removed from  admissions and service reservation, the benefits would not reach  the group in whose name the impugned legislation was passed \026  the poorest of the poor.  Therefore, including the creamy layer  would be inherently unjust.  

7.      Creamy layer exclusion, however, is just one of the many  issues raised by the parties.  I need to examine various facets of  this case in order to decide the validity of the 93rd Amendment  and the Central Educational Institutions (Reservation in  Admission) Bill, 2006 (passed as Act 5 of 2007) (hereinafter  called the "Reservation Act").  I shall focus my analysis on the  following issues: 1A.  Whether the creamy layer be excluded from  the 93rd Amendment (Reservation Act)?

1B. What are the parameters for creamy layer  exclusion?                  1C. Is creamy layer exclusion applicable to SC/ST?   

2.   Can the Fundamental Right under Article 21A  be accomplished without great emphasis on  primary education?  

3.      Does the 93rd Amendment violate the Basic  Structure of the Constitution by imposing  reservation on unaided institutions?

4.      Whether the use of caste to identify SEBCs  runs afoul of the casteless/classless society,  in violation of Secularism.  

5.      Are Articles 15(4) and 15(5) mutually  contradictory, such that 15(5) is  unconstitutional?

6.      Does Article 15(5)’s exemption of minority  institutions from the purview of reservation  violate Article 14 of the Constitution?

7.      Are the standards of review laid down by the  U.S. Supreme Court applicable to our review  of affirmative action under Art 15(5) and  similar provisions?

8.      With respect to OBC identification, was the  Reservation Act’s delegation of power to the  Union Government excessive?  

9.      Is the impugned legislation invalid as it fails

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 78  

to set a time-limit for caste-based  reservation?

10. At what point is a student no longer  Educationally Backward and thus no longer  eligible for special provisions under 15(5)?  

11.     Would it be reasonable to balance OBC  reservation with societal interests by  instituting OBC cut-off marks that are slightly  lower than that of the general category?  8.      I have carefully examined the pleadings and written  submissions submitted at length.  Admittedly, the provisions of  the Constitution and the Preamble lead to the irresistible  conclusion that the Nation has always wanted to achieve a  casteless and classless society.  If we permit this impugned  legislation to be implemented, I am afraid, instead of a casteless  and classless India, we would be left with a caste-ridden society.  

9.      The first place where caste can be eradicated is the  classroom.  It all starts with education.  In other words, if you  belong to a lower caste but are well qualified, hardly anyone  would care about your caste.  Free and compulsory education is  now a fundamental right under Article 21A.  The State is duty  bound to implement this Article on a priority basis.  There has  been grave laxity in its implementation.  This laxity adversely  affects almost every walk of life.  In my opinion, nothing is more  important for the Union of India than to implement this critical  Article.   

10.     I direct the Union of India to set a time-limit within which  this Article is going to be completely implemented.  This time- limit must be set within six months.  In case the Union of India  fails to fix the time-limit, then perhaps this work will also have to  be done by the Court.   

11.     The Union of India should appreciate in proper prospective  that the root cause of social and educational backwardness is  poverty.  All efforts have to be made to eradicate this  fundamental problem.  Unless the creamy layer is removed, the  benefit would not reach those who are in need.  Reservation  sends the wrong message.  Everybody is keen to get the benefit of  backward class status.  If we want to really help the socially,  educationally and economically backward classes, we  need  to   earnestly  focus  on implementing Article 21A.  We must provide  educational opportunity from day one. Only then will the  casteless/classless society be within our grasp.  Once children  are of college-going age, it is too late for reservation to have much  of an effect.  The problem with the Reservation Act is that most  of the beneficiaries will belong to the creamy layer, a group for  which no benefits are necessary.  Only non-creamy layer OBCs  can avail of reservations in college admissions, and once they  graduate from college they should no longer be eligible for post- graduate reservation.  27% is the upper limit for OBC  reservation.  The Government need not always provide the  maximum limit.  Reasonable cut off marks should be set so that  standards of excellence greatly effect.  The unfilled seats should  revert to the general category.  

12.     These issues first arise out of the text of the impugned  Amendment. Reservation for Socially and Educationally  Backward Classes of Citizens (SEBCs) was introduced by the 93rd  Amendment.  Article 15(5) states: "Nothing in this article or in sub-clause (g) of clause  (1) of article 19 shall prevent the State from making

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 78  

any special provision, by law, for the advancement of  any socially and educationally backward classes of  citizens or for the Scheduled Castes or the Scheduled  Tribes in so far as such special provisions relate to  their admission to educational institutions including  private educational institutions, whether aided or  unaided by the State, other than minority educational  institutions referred to in clause (1) of article 30."   

?       Excluding the Creamy Layer from receiving  special benefits:

13.     Affirmative action is employed to eliminate substantive  social and economic inequality by providing opportunities to  those who may not otherwise gain admission or employment.  Articles 14, 15 and 16 allow for affirmative action.  To promote  Article 14 egalitarian equality, the State may classify citizens into  groups, giving preferential treatment to one over another. When  it classifies, the State must keep those who are unequal out of  the same batch to achieve constitutional goal of egalitarian  society.

?       Arguments of the Union of India in regard to the  creamy layer:  

14.     Mr. G.E. Vahanvati, learned Solicitor General and Mr K.  Parasaran, Senior Advocate appearing for the Government  contend that creamy layer exclusion is a bad policy.  They argue  that if you exclude the creamy layer, there would be a shortage of  candidates who can afford to pay for higher education. This  argument harms rather than helps the Government.  It cannot  be seriously disputed that most of the college-going OBCs belong  to the creamy layer for whom reservations are unnecessary; they  have the money to attend good schools, tuitions and coaching  courses for entrance exams.  Naturally, these advantages result  in higher test scores vis-‘-vis the non-creamy layer OBCs.  The  result is that creamy OBCs would fill the bulk of the OBC quota,  leaving the non-creamy no better off than before. If the creamy  get most of the benefit, why have reservations in the first place?   Learned Senior Counsel for petitioners, Mr. Harish Salve, is  justified in arguing that before carrying out Constitutional  Amendments the Union of India must clearly target its  beneficiaries.  He rightly submitted that we should not make law  first and thereafter target the law’s beneficiaries.  Failure to  exclude the creamy layer is but one example of this problem.

15.     The Government further submitted that the creamy layer  should be included to ensure that enough qualified candidates  fill 27% of the seats reserved to OBCs.  The Oversight Committee  disagreed.  The Committee relied on data from Karnataka to  disprove the contention that seats go unfilled when the creamy is  excluded:  "\005 the apprehension that seats will not be filled up if  the creamy layer is excluded has been comprehensively shown to  be unfounded."  [See: Oversight Committee, Vol. 1, Sept. 2006, p.  69, para 1.7.]  We shall later review the Oversight Committee  opinion in greater detail.    

?       The reasons for which the creamy layer should  be excluded:   16.     At the outset, I note that the Parliament rejected the Hindi  version of the Reservation Act.  The Hindi version of the  Reservation Act would have expressly excluded the creamy layer.  [See: Prof. Rasa Singh Rawat’s comments in the Parliamentary

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 78  

Debate on the Reservation Act, 14 December 2006]   

17.     The Parliament eventually passed the English version in  which the creamy layer is not mentioned, making its intention  clear.  It wanted to include the creamy layer. For all practical  purposes, it did so.  Therefore, I will treat it as included.   Counsel for the Union of India argued that it is still theoretically  possible for the executive to exclude the creamy layer.  Much is  possible in theory.  Given the executive’s failure to take action  since the time the Act was passed, I find this argument  unavailing.   

18.     With the Parliament’s intention in view, I will deal in some  detail with the reasons as to why the creamy layer should be  excluded from reservation.  I do so because I want to emphasize  that the creamy layer must never be included in any affirmative  action legislation.  It also becomes imperative to gather the  original Framers’ and the Framers’ intention.  At the outset, we  recognise a distinction between the original Framers and the  Framers, i.e., Members of the First Parliament.  Members of the  Constituent Assembly and the First Parliament were one in the  same.  But the distinction is necessary to the extent that the  First Parliament deviated from its constitutional philosophy.  By  examining the debate on Article 15(4), I may ascertain whether  the Framers wanted to exclude the creamy layer.   

19.     The First Parliament believed that "economic" was included  in the "social" portion of "socially and educationally backward."   Prime Minister Nehru said as much:   "One of the main amendments or ideas put forward is  in regard to the addition of the word "economical".   Frankly, the argument put forward, with slight  variation, I would accept, but my difficult is this that  when we chose those particular words there, "for the  advancement of any socially and educationally  backward classes", we chose them because they occur  in article 340 and we wanted to bring them bodily  from there. Otherwise I would have had not the  slightest objection to add "economically".  But if I  added "economically" I would at the same time not  make it a kind of cumulative thing but would say that  a person who is lacking in any of these things should  be helped. "Socially" is a much wider word including  many things and certainly including economically.   Therefore, I felt that "socially and educationally" really  cover the ground and at the same time you bring out a  phrase used in another part of the Constitution in a  slightly similar context." (See: the Parliamentary  Debates on First Amendment Bill, 1 June 1951, p.  9830.)   

Had it not been for a desire to achieve symmetry in drafting,  "economically" would have been included.  Had this been done,  the creamy layer would have been excluded ab initio.   20.     In the 15(4) debate, Shri M.A. Ayyangar’s wanted to add  "economic" to ensure that the rich SEBCs would not receive  special provisions.   "I thought "economic" might be added so that rich  men may not take advantage of this provision.  In my  part of the country there are the Nattukkottai  Chettiars who do not care to have English education,  but they are the richest of the lot \005 should there be  special reservation for them?"  (See: The Parliamentary  Debates on First Amendment Bill, 1 June 1951, p.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 78  

9817.)   (emphasis added).  

This hesitation aside, Shri M.A. Ayyangar was satisfied that the  term "economic" was included in the term "social."  The Framers  were worried about creamy layer inclusion, albeit under a  different name.  They wanted to ensure that the "richest of the  [backward] lot" would not benefit from special provisions.  With  their sentiment on our side, we are even more confident that we  should strike out in the direction that strikes down laws that  include the creamy layer.  

?       Including the creamy layer means unequals are  treated as equals in violation of the right to  equality under Articles 14, 15 and 16.

21.     In the present case, Dr. Rajeev Dhavan, the learned Senior  Counsel and Mr. S.K. Jain, the learned counsel vehemently  argued on behalf of petitioners that it is precisely because  equality is at issue that the creamy layer must be removed.  The  creamy layer has been the subject matter of a number of  celebrated judgments of this Court.  In a seven Judge Bench in  State of Kerala & Another v. N. M. Thomas & Others (1976)  2 SCC 310, Justice Mathew, in his concurring judgment, dealt  with the right to equality in the following words:  "66. The guarantee of equality before the law or the  equal opportunity in matters of employment is a  guarantee of something more than what is required by  formal equality. It implies differential treatment of  persons who are unequal. Egalitarian principle has  therefore enhanced the growing belief that  Government has an affirmative duty to eliminate  inequalities and to provide opportunities for the  exercise of human rights and claims. \005\005\005" (emphasis added)

22.     In Indra Sawhney & Others v. Union of India & Others  (1992) Supp (3) SCC 217, (hereinafter referred to as Sawhney I),  this Court has aptly observed that reservation is given to  backward classes until they cease to be backward, and not  indefinitely.  This Court in para 520 (Sawant, J.) has stated as  under: "Society does not remain static. The  industrialisation and the urbanisation which  necessarily followed in its wake, the advance on  political, social and economic fronts made particularly  after the commencement of the Constitution, the  social reform movements of the last several decades,  the spread of education and the advantages of the  special provisions including reservations secured so  far, have all undoubtedly seen at least some  individuals and families in the backward classes,  however small in number, gaining sufficient means to  develop their capacities to compete with others in  every field. That is an undeniable fact. Legally,  therefore, they are not entitled to be any longer called  as part of the backward classes whatever their original  birthmark. It can further hardly be argued that once a  backward class, always a backward class. That would  defeat the very purpose of the special provisions made  in the Constitution for the advancement of the  backward classes, and for enabling them to come to  the level of and to compete with the forward classes,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 78  

as equal citizens." (emphasis supplied).   

23.     For our purposes, creamy layer OBCs and non-creamy layer  OBCs are not equals when it comes to moving up the socio- economic ladder by means of educational opportunity.  Failing to  remove the creamy layer treats creamy layer OBCs and non- creamy layer OBCs as equals. In the same paragraph, Justice  Sawant stated that "\005 to rank [the creamy layer] with the rest of  the backward classes would \005 amount to treating the unequals  equally..." violating the equality provisions of the Constitution.  

24.     According to the Kerala Legislature, there was no creamy  layer in Kerala.  The legislation was challenged in Indra  Sawhney v. Union of India & Others (2000) 1 SCC 168,  (hereinafter referred to as Sawhney II).  The Court struck the  two provisions that barred creamy layer exclusion, concluding  that non-inclusion of the creamy-layer and inclusion of forward  castes in reservation violates the right to equality under Article  14 and the basic structure.   

25.     In Sawhney II at para 65, the Court had gone to the extent  of observing that not even the Parliament, by constitutional  amendment, could dismantle the basic structure by including the  creamy layer in reservation:   "What we mean to say is that the Parliament and the  legislature in this country cannot transgress the basic  feature of the Constitution, namely, the principle of  equality enshrined in Article 14 of which Article 16(1)  is a facet. Whether the creamy layer is not excluded or  whether forward castes get included in the list of  backward classes, the position will be the same,  namely, that there will be a breach not only of Article  14 but of the basic structure of the Constitution. The  non-exclusion of the creamy layer or the inclusion of  forward castes in the list of backward classes will,  therefore, be totally illegal. Such an illegality offending  the root of the Constitution of India cannot be allowed  to be perpetuated even by constitutional amendment."

26.     By definition, the creamy and non-creamy are unequal  when it comes to schooling.  Relative to their non-creamy  counterparts, the creamy have a distinct advantage in gaining  admission.  While the creamy and non-creamy are given equal  opportunity to gain admission in the reserved category, this  equality exists in name only.  Will the OBC daughter of a  Minister, IAS officer or affluent business owner attend better  schools than her non-creamy counterpart?  Yes.  Will she go to  private tuitions unaffordable to her non-creamy counterpart?   Certainly.  And where will she cram for the all-decisive entrance  exams?  In a coaching center?  Of course.  Will she come home  from school to find a family member waiting?  Probably.  And  when she seeks help from her parents, are they educated and  able to give superior assistance with schoolwork?  Most likely.  

27.     I take judicial notice of these anecdotes, for they flesh out a  simple fact:  she has all the resources that her non-creamy  counterpart lacks.  It is no surprise that she will outperform the  non-creamy.  On average, her lot will take the reserved seats.   

28.     I cannot consider the OBC Minister’s daughter and the non- creamy OBC as equals in terms of their chances at earning a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 78  

university seat; nor can I allow them to be treated equally. To  lump them in the same category is an unreasonable  classification. Putting them in head-to-head competition for the  same seats violates the right to equality in Articles 14, 15 and  16.  

29.     In its conclusion at para 122, M. Nagaraj & Others v.  Union of India & Others (2006) 8 SCC 212, a Constitution  Bench of this Court while dealing with Article 16(4A) and 16(4B)  with regard to SC and ST observed as under:- "We reiterate that the ceiling limit of 50%, the concept  of creamy layer and the compelling reasons, namely,  backwardness, inadequacy of representation and  overall administrative efficiency are all constitutional  requirements without which the structure of equality  of opportunity in Article 16 would collapse."

It was contended that Nagraj is obiter in regard to creamy layer  exclusion. According to Nagraj, reservation in promotion for  SC/ST is contingent on exclusion of the creamy layer.  (paras  122, 123 and 124).  The contention of the Union of India cannot  be accepted.  The discussion regarding creamy layer is far from  obiter in Nagraj.  If the State fails to exclude the SC/ST creamy  layer, the reservation must fall.  Placing this contingency in the  conclusion makes the discussion of creamy layer part of the  ratio.

30.     In sum, creamy layer inclusion violates the right to equality.   That is, non-exclusion of creamy layer and inclusion of forward  castes in reservation violates the right to equality in Articles 14,  15 and 16 as well as the basic structure of the Constitution.

?       If you belong to the creamy layer, you are not   SEBC.  

31.     One of the prominent questions raised in the writ petitions  is whether creamy layer OBCs should be considered socially and  educationally backward under the provisions of Article 15(5).   While interpreting this provision, a basic syllogism must govern  our decision.  If you belong to the creamy layer, you are socially  advanced and cannot be given the benefit of reservation.  (See:  Sawhney I).  

32.     Once one is socially advanced, he cannot be socially and  educationally backward.  He who is socially forward is likely to  be educationally forward as well. If either condition (social or  educational) goes unmet, one cannot qualify for the benefit of  reservation as SEBC.  Being socially advanced, the creamy layer  is not socially backward pursuant to Articles 15(4) and 15(5) of  the Constitution.   

33.     Even the text of Articles 15(4) and 15(5) provides for creamy  layer exclusion. In this sense, one could say that the term  "creamy layer" is synonymous with "non-SEBC".  

34.     Similar interpretation is given to "backward classes" under  Article 16(4).  The Parliament could not reasonably make  reservation for non-backwards. Such a Bill on the face of it  would violate the Constitution. In Sawhney I, the Government of  India issued an O.M. on 13 August 1990, reserving 27% of  Government posts to SEBCs.  Writing for the majority, at para  792 of page 724, Justice Reddy explained that the creamy layer  was not SEBC.  "The very concept of a class denotes a number of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 78  

persons having certain common traits which  distinguish them from the others. In a backward class  under Clause (4) of Article 16, if the connecting link is  the social backwardness, it should broadly be the  same in a given class. If some of the members are far  too advanced socially (which in the context,  necessarily means economically and, may also mean  educationally) the connecting thread between them  and the remaining class snaps. They would be misfits  in the class. After excluding them alone, would the  class be a compact class. In fact, such exclusion  benefits the truly backward"   

Even though the O.M. was silent on the issue of creamy layer,  Justice Reddy excluded the creamy layer at para 859(3)(d).  The  O.M. could not go into effect until the creamy layer was  excluded. [para 861(b)].   Exclusion was only in regard to OBC;  SC/ST were not touched. (para 792).  In Sawhney I, the entire  discussion was confined only to Other Backward Classes.   Similarly, in the instant case, the entire discussion was confined  only to Other Backward Classes.  Therefore, I express no opinion  with regard to the applicability of exclusion of creamy layer to the  Scheduled Castes and Scheduled Tribes.  

?       Creamy Layer OBCs are not educationally  backward

35.     In addition to social backwardness, the text of 15(5)  demands that recipients are also educationally backward.  Even  though the creamy layer’s status as socially advanced is  sufficient to disqualify them for preferential treatment, the  creamy layer from any community is usually educated and will  want the same for its children.  They know that education is the  key to success. For most, it made them. People belonging to this  group do not require reservation.

7       Creamy Layer Inclusion Robs the Poor and Gives  to the Rich:

36.     In a number of judgments, the view has been taken that the  creamy layer’s inclusion takes from the poor and gives to the  rich.   

37.     Our Courts in following cases had taken the same view.  [See: N.M Thomas (supra), para 124 (seven-Judge Bench); K.C.  Vasanth Kumar & Another v. State of Karnataka, 1985  (Supp) SCC 714, paras 2, 24 and 28 (five-Judge Bench);  Sawhney I., paras 520, 793 and 859(3)(d) (nine-Judge Bench);  Ashoka Kumar Thakur v. State of Bihar & Others (1995) 5  SCC 403, paras 3, 17 and 18 (two-Judge Bench); Sawhney II,  paras 8-10, 27, 48 and 65-66 (three-Judge Bench); Nagaraj  (supra), paras, 120-124 (five-Judge Bench); Nair Service  Society v. State of Kerala, (2007) 4 SCC 1; paras 31 and 49-54  (two-Judge Bench)].  

38.     In Akhil Bharatiya Soshit Karamchari Sangh (Railway)  v. Union of India & Others (1981) 1 SCC 246, Justice Iyer had  this to say about the creamy layer:    "92. \005 Maybe, some of the forward lines of the  backward classes have the best of both the worlds and  their electoral muscle qua caste scares away even  radical parties from talking secularism to them. We  are not concerned with that dubious brand. In the  long run, the recipe for backwardness is not creating a  vested interest in backward castes but liquidation of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 78  

handicaps, social and economic, by constructive  projects. All this is in another street and we need not  walk that way now.

94. \005 Nor does the specious plea that because a few  harijans are better off, therefore, the bulk at the  bottom deserves no jack-up provisions merit scrutiny.  A swallow does not make a summer. Maybe, the State  may, when social conditions warrant, justifiably  restrict harijan benefits to the harijans among the  harijans and forbid the higher harijans from robbing  the lowlier brethren."

39.     Creamy layer inclusion was not enough to strike an entire  provision in this case. He suggests that creamy layer exclusion is  an issue to be dealt with at a later time.   "98.    The argument that there are rich and influential  harijans who rob all the privileges leaving the serf-level  sufferers as suppressed as ever. The Administration  may well innovate and classify to weed out the creamy  layer of SCs/STs but the court cannot force the State  in that behalf."

Thus, Justice Iyer does not mandate creamy layer exclusion;  rather, he leaves the question to the State.  

40.     Apart from judicial pronouncements, the Oversight  Committee suggested that failure to exclude the creamy layer  would lead to unfair results. The Committee was cautious to  reach a conclusion.  

41.     In its Report, it stated that "\005 the decision taken was to  leave the matter to the Government of India, keeping in mind the  fact that the ’creamy layer’ is not covered in the Reservation Act,  2006." (See: Oversight Committee, Vol. 1, p. 33 and 4.2.)  

42.     Before "leaving" the matter to the Government, the  Committee nevertheless made its recommendation:  "In case it is  decided not to exclude the ’creamy layer’, the poorest among the  OBCs will be placed at a disadvantage."  (emphasis added). (See:  Oversight Committee at Appendix I in its Report at p. 70, para  1.13).  At page 69 of Vol. I of its Report, the Committee offered  data to support this conclusion: "1.6:  Appendix-2 examines in detail the status of the  socio-economic development of OBCs in respect of  such parameters as relate to poverty, health,  education, unemployment, workforce participation,  land ownership etc.  The analysis of the NSS data  clearly brings out that inclusion of the creamy layer  will result in reserved seats getting pre-empted by the  OBCs from the top two deciles at the cost of the poorer  income deciles of the OBCs.  Thus almost all rural  OBCs as well as Urban OBCs from the Northern,  Central and Eastern regions of India will be deprived  of the intended benefits of reservation.                                                                                       [emphas is added]

1.7: On the other hand, it was argued that if the  creamy layer of OBCs is denied access to reservation  in education pari-passau with the principle applied in  the case of employment, the reserved seats may not  get filled up, again defeating the purpose of bringing in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 78  

reservation for the OBCs.  In a case study from  Karnataka (included in Annexure X), it has been  clearly shown that the OBC quotas have been utilized  without any compromise with academic excellence in a  situation where the creamy layer has been excluded.   The apprehension that seats will not be filled up if the  creamy layer is excluded has been comprehensively  shown to be unfounded.  The case study shows that  the performance of students from below the creamy  layer is outstanding and much better than general  category students."      

43.     The Committee could have played it safe.  Despite some  opposition, the Committee included its opinion on the matter.   And that opinion is unequivocal:  the creamy must be excluded.    

44.     What is allegedly for the poor goes to the rich.  Is that  reasonable? Trumpeted by the Parliament as a "\005boost to the  morale of the downtrodden"  and "\005 in the right direction of  ensuring social justice to other backward classes \005"  and  "ensuring social justice to those weaker sections \005", Article 15(5)  dupes those who actually need preferential treatment. (See: Prof.  Basudeb Barman, M.P., the Parliamentary Debates, p. 531,  December 21, 2005; Prof. M. Ramadass, M.P., at p. 510; and  Shri C.K. Chandrappan, M.P., at p. 494 respectively).  For the  poorest of the poor, reservation in college is an empty promise.  Few of the financially poor OBCs attend high school, let alone  college. Instead of rewarding those that complete Plus 2, the 93rd  Amendment (Art 15(5)) poses another barrier:  they will have to  compete with the creamy layer for reserved seats.  

45.     As explained, the poor lack the resources to compete with  the creamy, who "snatch away" those seats. {N. M. Thomas  (supra), para 124 (Iyer, J.)}.  With the creamy excluded, poor  OBCs would compete with poor OBCs \026 the playing field levelled.   As it stands, the Amendment and Act serve one purpose:  they  provide a windfall of seats to the rich and powerful amongst the  OBCs.  It is unreasonable to classify rich and poor OBCs as a  single entity. As noted, this violates the Article 14 right to  equality.   

46.     Unless the creamy layer is removed, OBCs cannot exercise  their group rights.  The Union of India and other respondents  argued that creamy layer exclusion is wrong because the text of  the 93rd Amendment bestows a benefit on "classes", not  individuals.  While it is a group right, the group must contain  only those individuals that belong to the group. I first take the  entire lot of creamy and non creamy layer OBCs. I then remove  the creamy layer on an individual basis based on their income,  property holdings, occupation, etc.  What is left is a group that  meets constitutional muster. It is a group right that must also  belong to individuals, if the right is to have any meaning.   If one  OBC candidate is denied special provisions that he should have  received by law, it is not the group’s responsibility to bring a  claim.  He would be the one to do so.  He has a right of action to  challenge the ruling that excluded him from the special  provisions afforded to OBCs.  In this sense, he has an individual  right.  Group and individual rights need not be mutually  exclusive. In this case, it is not one or the other but both that  apply to the impugned legislation.   

7       Whether the Creamy Layer exists outside India?:

47.     An interesting question arises:  does the concept of creamy

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 78  

layer exist outside India?   A 2003 study carried out in the  United States suggests that it does.  The study by William  Bowen, former president of Princeton University, found that  when you look at students with the same Scholastic Aptitude  Test (SAT) scores, certain groups have a better chance of being  admitted to college. "The New Affirmative Action," by David  Leonhardt, New York Times, 30 September 2007, p. 3. All things  being equal, one’s chance of gaining admission is augmented by  belonging to one of the preferred groups. Individuals belonging to  these groups are given preferential treatment over those who do  not.  

48.     The study demonstrated that Black, Latino and Native- Americans with the same SAT scores as White or Asian students  had a 28% better chance than the White or Asian students at  gaining admission; those whose parents attended the college had  a 20% advantage over those whose parents did not; and the poor  received no advantage whatsoever over the rich. (See: New York  Times article, p. 3.)  

49.     The statistics indicate that the failure to exclude the creamy  layer ultimately leads to a situation in which deserving students  are excluded.  When we revert to the Indian scenario, as long as  the Government gives handouts to certain groups, the creamy  layer therein will "lap" them up.  A scheme in which the poor  receive no advantage can be remedied by excluding the creamy  layer.   50.     Even the Mandal Commission, which was established in  1979 with a mandate to identify the socially and educationally  backward, admitted that the creamy layer was robbing fellow  OBCs of reservation.  In reference to Tamil Nadu, it said: "In  actual operation, the benefits of reservation have gone primarily  to the relatively more advanced castes amongst the notified  backward classes."  (See: P.37, 8.13 of the Report of the  Backward Classes Commission, First Part, Vols. 1-2, 1980).  It  also stated that: "it is no doubt true that the major benefits of  reservation\005..will be cornered by the more advanced  sections\005.." but reasoned that this was acceptable because  reform is presumably slow and should start with the more  advanced of the backward. (See: Page 62, para 13.7  (recommendations)).

51.     In N. M. Thomas & Others case  (supra), Krishna Iyer, J.  in his concurring judgment in para 124 noted that the research  conducted by the A.N. Sinha Institute of Social Studies, Patna,  had revealed a dual society among harijans in which a tiny elite  gobbles up the benefits.  

7       Severing the Creamy Layer 52.     Technically speaking, I am severing the implied inclusion of  the creamy layer.  It is severable for two reasons. First, a nine- Judge Bench in Sawhney I severed a similar provision wherein  the creamy layer was not expressly included, upholding the rest  of the O.M.’s reservation scheme.  Second, because the  Parliament must have known that   Sawhney I had excluded the  creamy layer, it seems likely that the Parliament also realized  that this Court may do the same. A cursory review of the  Parliamentary Debates regarding Article 15(5) clearly reveals that  the Parliament discussed the Sawhney I judgment in detail.   (See: for example, comments made by Shri Mohan Singh, p.474  and Shri Devendra Prasad, pages 478-479 on 21 December  2005).  Had the Parliament insisted on creamy layer inclusion, it  could have said as much in the text of 15(5).  Instead, the  Parliament left the text of 15(5) silent on the issue, delegating the  issue of OBC identification to the executive in Section 2(g) of the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 78  

Reservation Act.   

53.     The test for severability asks a subjective question: had the  Parliament known its provision would be struck would it still  have passed the rest of the legislation? (See: R.M.D.  Chamarbaugwalla & Another v. Union of India & Another,  AIR 1957 SC 628 at page 637 at para 23).  It is never easy to say  what the Parliament would have done had it known that part of  its amendment would be severed.  Nevertheless, I find it hard to  imagine that the Parliament would have said, "if the creamy is  excluded, the rest of the OBCs should be denied reservation in  education."   It seems unlikely that it would have been an all-or- nothing proposition for the Parliament, when the very goal of the  impugned legislation of promoting OBC educational  advancement does not depend on creamy layer inclusion.  For  these reasons, I sever or exclude the implied inclusion of the  creamy layer.  

7       Identification of Creamy Layer  54.     Income as the criterion for creamy layer exclusion is  insufficient and runs afoul of Sawhney I.  (See: page 724 at para  792).  Identification of the creamy layer has been and should be  left to the Government, subject to judicial direction.  For a valid  method of creamy layer exclusion, the Government may use its  post-Sawhney I criteria as a template.  (See: O.M. of 8-9-1993,  para 2(c)/Column 3, approved by this Court in Ashoka Kumar  Thakur (supra), para 10).  This schedule is a comprehensive  attempt to exclude the creamy layer in which income,  Government posts, occupation and land holdings are taken into  account.  The Office Memorandum is reproduced hereunder: "No. 36012/22/93- Estt (SCT)  Government of India  Ministry of Personnel, Public Grievances & Pension  (Department of Personnel & Training)  New Delhi, the 8th September, 1993   OFFICE  MEMORANDUM  Subject:        Reservation for Other Backward Classes in Civil  Posts and Services under the Government of  India \026 Regarding.          The undersigned is directed to refer to this Department’s  O.M. No.36012/31/90-Estt(SCT) dated 13th August, 1990 and  25th September, 1991 regarding reservation for Socially and  Economically Backward Classes in Civil Posts and Services  under the Government of India and to say that following the  Supreme Court judgment in Indra Sawhney v. Union of India  & Others (Writ Petition (Civil) No.930 of 1990) the Government  of India appointed an Expert Committee to recommend the  criteria for exclusion of the socially advanced persons/sections  from the benefits of reservation for Other Backward Classes in  civil posts and services under Government of India. 2.      Consequent to the consideration of the Expert Committee’s  recommendation this Department’s Office Memorandum  No.36012/31/90-Estt. (SCT), dated 13.8.1990 referred to in para  (1) above is hereby modified to provide as follows:- (a)     27% (Twenty seven percent) of the vacancies in civil posts  and services under the Government of India, to be filled  through direct recruitment, shall be reserved for the Other  Backward Classes.  Detailed instructions relating to the  procedure to be followed for enforcing reservation will be  issued separately. (b)     Candidates belonging to OBCs recruited on the basis of  merit in an open competition on the same standards

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 78  

prescribed for the general candidates shall not be adjusted  against the reservation quota of 27%. (c)     (i)     The aforesaid reservation shall not apply to  persons/sections mentioned in column 3 of the  Schedule to this Office Memorandum. (ii)    The rule of exclusion will not apply to persons working  as artisans or engaged in hereditary occupations,  callings.  A list of such occupations, callings will be  issued separately by the Ministry of Welfare. (d)     The OBCs for the purpose of the aforesaid reservation  would comprise, in the first phase, the castes and communities  which are common to both the lists in the report of the Mandal  Commission and the State Government’s Lists.  A list of such  castes and communities is being issued separately by the  Ministry of Welfare. (e)     The aforesaid reservation shall take immediate effect.   However, this will not apply in vacancies where the recruitment  process has already been initiated prior to the issue of this order. 3.      Similar instructions in respect of public sector  undertakings and financial institutions including public sector  banks will be issued by the Department of Public Enterprises  and by the Ministry of Finance respectively from the date of this  Office Memorandum.       SCHEDULE

Description of  Category To whom rule of exclusion will  apply.

I.

CONSTITUTIONAL  POSTS

Son(s) and daughter(s) of

(a) President of India;

(b) Vice President of India;

(c) Judges of the Supreme Court  and of the High Courts;

(d) Chairman & Members of  UPSC and of the State Public  Service Commission; Chief  Election Commissioner;  Comptroller & Auditor General of  India;

(e) Persons holding  Constitutional positions of like  nature.

II.

SERVICE CATEGORY

A. Group A/Class 1  officers of the All India  Central and State  Services (Direct  Recruits)

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 78  

Son(s) and daughter(s) of

(a) parents, both of whom are  Class I officers;

(b) parents, either of whom is a  Class I officer;

(c) parents, both of whom are  Class I officers, but one of them  dies or suffers permanent  incapacitation.

(d) parents, either of whom is a  Class I officer and such parent  dies or suffers permanent  incapacitation and before such  death or such incapacitation has  had the benefit of employment in  any International Organisation  like UN, IMF, World Bank, etc. for  a period of not less than 5 years.

(e) parents, both of whom are  class I officers die or suffer  permanent incapacitation and  before such death or such  incapacitation of the both, either  of them has had the benefit of  employment in any International  Organisation like UN, IMF, World  Bank, etc. for a period of not less  than 5 years.

(f) Provided that the rule of  exclusion shall not apply in the  following cases :-

(a) Sons and daughters of  parents either of whom or  both of whom are Class-I  officers and such parent(s)  dies / die or suffer permanent  incapacitation.

(b) A lady belonging to OBC  category has got married to a  Class-I officer, and may  herself like to apply for a job.

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

(a) parents both of whom are  Class II officers.

(b) parents of whom only the  husband is a Class II officer and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 78  

he gets into Class I at the age of  40 or earlier.

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

(d) parents, of whom the husband  is a Class I officer (direct recruit  or pre-forty promoted) and the  wife is a Class II officer and the  wife dies; or suffers permanent  incapacitation; and

(e) parents, of whom the wife is a  Class I officer (Direct Recruit or  pre-forty promoted) and the  husband is a Class II officer and  the husband dies or suffers  permanent incapacitation.

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

(a) Parents both of whom are  Class II officers and one of  them dies or suffers  permanent incapacitation.

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

C. Employees in Public  Sector Undertakings  etc. The criteria enumerated in A & B  above in this Category will apply  mutatis mutandi to officers  holding equivalent or comparable  posts in PSUs, banks, Insurance  Organisations, Universities, etc.  and also to equivalent or  comparable posts and positions  under private employment,  Pending the evaluation of the  posts on equivalent or

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 78  

comparable basis in these  institutions, the criteria specified  in Category VI below will apply to  the officers in these Institutions.

III.

ARMED FORCES  INCLUDING  PARAMILITARY  FORCES

(Persons holding civil  posts are not included)

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

Provided that:-

(i) if the wife of an Armed  Forces Officer is herself in the  Armed Forces (i.e., the  category under consideration)  the rule of exclusion will apply  only when she herself has  reached the rank of Colonel;

(ii) the services ranks below  Colonel of husband and wife  shall not be clubbed together:

(iii) if the wife of an officer in  the Armed Forces is in civil  employment, this will not be  taken into account for  applying the rule of exclusion  unless the falls in the service  category under item No.II in  which case the criteria and  conditions enumerated  therein will apply to her  independently.

IV. PROFESSIONAL CLASS  AND THOSE  ENGANGED IN TRADE  AND INDUSTRY

(I) Persons engaged in  profession as a doctor,  lawyer, Chartered  Accountant, Income- Tax Consultant,  financial or

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 78  

management  consultant, dental  surgeon, engineer,  architect, computer  specialist, film artists  and other film  professional, author,  playwright, sports  person, sports  professional, media  professional or any  other vocations of like  status. Criteria  specified against  Category VI will apply:

(II) Persons engaged in  trade, business and  industry

Criteria specified against  Category VI will apply:

Criteria specified against  Category VI will apply:

Explanation:

(i) Where the husband is in  some profession and the wife  is in a Class II or lower grade  employment, the income /  wealth test will apply only on  the basis of the husband’s  income.

(ii) If the wife is in any  profession and the husband is  in employment in a Class II or  lower rank post, then the  income/wealth criterion will

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 78  

apply only on the basis of the  wife’s income and the  husband’s income will not be  clubbed with it.

V.

PROPERTY OWNERS

A. Agricultural holdings

Son(s) and daughter(s) of persons  belonging to a family (father,  mother and minor children)  which owns

(a) only irrigated land which is  equal to or more than 85% of the  statutory ceiling area, or

(b) both irrigated and unirrigated  land, as follows:

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

(ii)    The rule of exclusion will  not apply if the land holding of  a family is exclusively  unirrigated.

B. Plantations

(i) Coffee, tea, rubber,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 78  

etc.  

(ii) Mango, citrus, apple  plantations etc.  

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

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

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

Criteria specified in Category VI  below will apply.

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

VI. INCOME/WEALTH  TEST Son(s) and daughter(s) of

(a) Persons having gross income  of Rs.1 lakh or above or  possessing wealth above the  exemption limit as prescribed in  the Wealth Tax Act for a period of  three years.

(b) Persons in Categories I, II, III  and VA who are not disentitled to  the benefit of reservation but  have income from other sources  of wealth which will bring them  within the income/wealth criteria  mentioned in (a) above.

Explanation:

(i)     Income from salaries or  agricultural land shall not be  clubbed;

(ii)    The income criteria in  terms of rupee will be  modified taking into account  the change in its value every  three years.  If the situation,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 78  

however, so demands, the  interregnum may be less.

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

Smt. Sarita Prasad Joint Secretary to the Government of India."

55.     In sum, the schedule excludes the children of those who  hold constitutional posts, e.g., the children of the President of  India, Supreme Court Judges, Chairman and Members of UPSC  and others are excluded.  Class 1 Officers’ children are not  eligible for OBC perks either.  When both parents are Class-II  Officers, their children are excluded.  The same criteria that  apply to Class-I and II officers apply to children of parents who  work at high levels within the private sector.  Agricultural owners  are excluded when their irrigated holdings are more than or  equal to 85% of the statutory ceiling.  The O.M. further excludes  persons having a gross annual income of Rs.2.5 lakh or more.   The Government raised the income limit from Rs.1 to Rs.2.5 lakh  on 09.03.2004 vide O.M. 36033/3/2004.  

56.     The creamy layer schedule of the O.M. dated 8.9.93, in my  opinion, is not comprehensive.  This should be revised  periodically - preferably once in every 5 years, in order to ensure  that creamy layer criteria take changing circumstances into  account.  

57.     Apart from the people who have been excluded vide the  office memo, I urge the Government to make it more  comprehensive.  The Government should consider excluding the  children of sitting and former Members of Parliament (MP) and  Members of Legislative Assemblies (MLA) from special benefits.  If  constitutional authorities have been excluded from benefits  because of their status or resources, the same should apply to  children of former and sitting MPs and MLAs.  I hope the  judiciary will not have to involve itself in this matter.   

2.      Applying Article 21A to the Reservation Act  

58.     On 18 December 2006, in the Rajya Sabha Debate on the  Reservation Act, Member of Parliament and former Governor,   Dr. P.C. Alexander summed up what would become one of  Petitioners’ arguments.  Should Rs.17,000 crores be spent on  implementing the Reservation Act for higher education when  primary/secondary schooling is in such bad shape? Dr.  Alexander stated:  "Sir, this spending Rs.17,000 crores or whatever  amount is needed for adding seats in the Engineering  colleges, IIMs and IITs is reversing our priorities.  If  you have the money for education, spend it on  schools.  Spend it on the rural areas for primary  schools; spend it on the schools, which are poorly  starved in the urban areas.  Instead of doing that, you

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 22 of 78  

spend it by adding to the numbers because you want  to appease the so-called poorer sections in the higher  castes.   So, we have taken care of you and you tell the  backward classes we are taking care of all of you.  This  is where we land ourselves in trouble.  We have cash  resources.  They should be spent where priorities are  fixed clearly in our eyes and we don’t want to do that."

Spending on higher at the expense of lower education raises the  specter of conflict with Article 21A. By the 86th Amendment,  Article 21A was inserted in our Constitution.  Article 21A reads  as follows: "The State shall provide free and compulsory  education to all children of the age of six to fourteen  years in such manner as the State may, by law,  determine."    

59.     Under Article 21A, it is a mandatory obligation of the State  to provide free and compulsory education to all children aged six  to fourteen.  In order to achieve this constitutional mandate, the  State has to place much greater emphasis on allocating more  funds for primary and secondary education.  There is no  corresponding constitutional right to higher education.  The  entire Nation’s progress virtually depends upon the proper and  effective implementation of Article 21A.

60.     This Court in Unni Krishnan, J.P. & Others v. State of  Andhra Pradesh & Others (1993) 1 SCC 645 para 166 held as  under: "\005 right to education is implicit in and flows from the  right to life guaranteed by Article 21.  That the right to  education has been treated as one of transcendental  importance in the life of an individual [and] has been  recognized not only in this country since thousands of  years, but all over the world. \005 without education  being provided to citizens of this country, the  objectives set forth in the Preamble to the Constitution  cannot be achieved.  The Constitution would fail."

This observation encouraged the Parliament to insert Article 21A  into the Constitution.            61.     In Unni Krishnan (supra), Justice Reddy observed that the  quality of education in Government schools was extremely poor  and that the schools were woefully inadequate to the needs of the  children.  He noted that many countries spend 6% to 8% of  Gross Domestic Product on education. Our expenditure on  education is just 4% of GDP.    

62.     Though an improvement over past performance, the overall  education picture leaves much to be desired.  The bad news is  really bad.  Even where we have seen improvement, there is still  failure.  A survey by Pratham, an NGO, fleshes out the acute  problems found in rural schools. (See: ASER 2007 \026 Rural Annual  Status of Education Report for 2007, published on January 16,  2008).  The survey covered 16,000 villages. As Pratham  indicates, there are an estimated 140 million children in the age  group 6 to 14 years in primary schools. Of these 30 million  cannot read, 40 million can recognize a few alphabets, 40 million  can read some words, and 30 million can read paragraphs. Over  55 million of these children will not complete four years of  school, eventually adding to the illiterate population of India. The  national literacy rate is 65%.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 23 of 78  

63.     24 districts with more than 50,000 out of school children  means we have failed 24 times over.  71 districts in which there  are 60 students per teacher is just as bad, if not worse.  According to Pratham (and in line with the Ministry of HRD’s six- month review), the number of out of school children has hovered  around 7,50,000. [page 6]. Moreover, it goes without saying that  children need proper facilities.  Today, just 59% of schools can  boast of a useable toilet. [page 49].   

64.     The quality of education is equally troubling. For  standards I and II, only 78.3% of students surveyed could  recognize letters and read words or more in their own language.  [page 47].  In 2006, it was even worse \026 only 73.1% could do so.   It is disheartening to peruse the statistics for standards III to V,  where only 66.4% could read Standard I text or more in their  own language in 2007. [page 47]. As Pratham stated at page 7: "What should be more worrying though, is the fact  that in class 2, only 9 percent children can read the  text appropriate to them, and 60 percent cannot even  recognise numbers between 10 and 99."

65.     In the third to fifth standards, 40% of students surveyed  could not subtract. The latest figures indicate that 58.3%  children in the fifth standard read at the level appropriate  for  second Standard students. [page 32].  In both 2005 and 2007,  only 74.1% of enrolled children were in attendance. [page 49].

66.     The learned Solicitor General, Mr Vahanvati, submitted that  the Government has now placed sufficient emphasis on primary  education. In 2001-2002, the Government launched Sarva  Shiksha Abhiyan (SSA).  This national programme’s goal is to  universalize elementary education.  It supplements  Governmental spending on education.  As the Solicitor General  explained, it was founded on the idea that education for those  between the ages of six to fourteen is a fundamental right.  In  this way, SSA seeks to fulfill the Government’s obligation under  Article 21A to provide free and compulsory education to this age  group.  Some of the SSA’s accomplishments merit mention.  

67.     By March 2007, 2,03,577 toilets had been constructed or  were under construction, covering 87% of the goal; more than six  crore free textbooks had been supplied \026 96% of the goal;  1,93,220 new schools had been completed or were under  construction, i.e., 80% of the desired mark. The learned Solicitor  General further provided that enrolment for all districts in 2004- 05 for classes I-V was 11,82,96,540.  In 2005-06, the number  increased to 12,46,15,546.  A similar increase was seen in  Classes VI-VII/VIII:  from 3,77,17,490 to 4,36,67,786. The total  number of teachers increased from 36,67,637 in 2003-04 to  46,90,176 in 2005-06.   

68.     It is the learned Solicitor General’s contention that SSA was  responsible for many of the gains cited above.  This includes the  improved statistics on the student-teacher ratio, out of school  children and enrollment rate for girls.    

69.     While the Government is on the right track with regard to  improving the infrastructure of our system, books and buildings  only go so far.  They are necessary but not sufficient for  achieving the ultimate goals of (1) keeping children in school, (2)  ensuring that they learn how to think critically and (3) ensuring  that they learn skills that will help them secure gainful  employment.  The quality of education provided in the majority of  primary schools is woeful.  That is why I find it necessary to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 24 of 78  

review Government spending on education \026 especially at the  primary/secondary level.   

70.     Undoubtedly, the Government has allocated more funds of  late for education, but we need to have far more allocation of  funds and much greater emphasis on free and compulsory  education.  Anything less would flout Article 21A’s mandate.   According to H.R.D. Annual Reports read with the Union of India  Budget 2008-09, we spend roughly seven times as much on the  individual college student than the individual primary or  secondary student.   Spending per Student: Comparing that which is spent  on each primary/secondary student versus each higher  education student Year & Level of  Schooling Estimated # of  Enrolled Students* Total Rs.  Allocated** Expenditure per  student in Rs. 2006-2007 School Education/  Literacy 219083879 168970000000 771 2006-2007 Tertiary Education 11777296 69120900000 5868 2007-2008 School Education/ Literacy 219083879 231913500000 1059 2007-2008 Tertiary Education 11777296 63973600000 5432 2008-2009 School Education/ Literacy 219083879 278500000000 1271 2008-2009 Tertiary Education 11777296 108528700000 9215 * = Estimated number of students for primary/secondary level is taken from  2004-2005 Annual Report, p. 250 at  http://www.education.nic.in/AR/AR0607-en.pdf. In the same Annual  Report, 11777296 students were enrolled in higher education in 2004- 2005.  For consistency’s sake, I have used the 2004-2005 estimates.  I have  found no information that suggests that enrolment for one has significantly  outpaced the other.  

** = Government of India, Expenditure Budget Vol. 1, 2008-2009, p. 6, Total Expenditure  of Ministries/Departments (school education/literacy and higher education have been added).

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 25 of 78  

71.     In a country where only 18% of those in the relevant age  group make it to higher education, this is incredible.  See NSSO  1999-2000.  It is not suggested that higher education needs to  be neglected or that higher education should not receive more  funds, but there has to be much greater emphasis on the  primary education. Our priorities have to be changed.  Nothing is  really more important than to ensure  total compliance with  Article 21A.  How can a sizeable portion of the population be  precluded from realizing the benefits of development when  almost everyone acknowledges that the children are our future?

72.     Education for children up to the age of fourteen years  should be free.  This has also been suggested in the  recommendations of the Kothari Commission on Education in  1966.  Taking the country’s rampant poverty into account, free  education up to the age 14 years is absolutely imperative. There  is no other way for the poor to climb their way out of this  predicament.  

73.     Mr. P.P. Rao, learned Senior Advocate, rightly submitted  that when you lack a school building, teachers, books and  proper facilities, your schooling might be "free" but it is not an  "education" in any proper sense.  Adequate number of schools  must be established with proper infrastructure without further  delay.  In order to achieve the constitutional goal of free and  compulsory education, we have to appreciate the reality on the  ground.   A sizeable section of the country is still so poor that  many parents are compelled to send their children to work.  The  State must carve out innovative policies to ensure that parents  send their children to school.  The Mid-Day Meal Scheme will go  a long way in achieving this goal.  But, apart from Mid-Day  Meals, the Government should provide financial help to  extremely poor parents.    

74.     In addition to free education and/or other financial  assistance, they should also be given books, uniforms and any  other necessary benefits so that the object of Article 21A is  achieved.  Time and again, this Court, in a number of judgments,  has observed that the State cannot avoid its constitutional  obligation on the ground of financial inabilities. (See:  Hussainara Khatoon & Others (III) v. Home Secretary, State  of Bihar, Patna (1980) 1 SCC 98, 107 at para 10).   

75.     In Vasanth Kumar (supra) at para 150, Justice  Venkataramiah suggested that the State provide preferential  treatment such as tuition, scholarships, free boarding and  lodging, etc.  According to UNESCO’s Education for All, Global  Monitoring Report (2008) at page 115, at least fourteen countries  have cash-transfer programmes that target poor households with  school-age children.  The largest programme is in Brazil, where  46 million people receive an education transfer of up to $44 USD  monthly per household in extreme poverty with children below  age 16.  According to the Report, the programme has reduced  drop-out rates by up to 75% among beneficiaries in its more  recent stage.   

76.     Such a programme is not foreign to India. According to  UNICEF, the State of Gujarat put the idea of financial incentives  for youth into action:  "Figures indicate that the school enrolment drive of  the state Government supported by incentives like  Vidyalaxmi bond of Rs.1,000 given to each girl who  completes primary education and 60 kg of wheat for  tribal girls attending school, has met with significant

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 26 of 78  

success. In addition to the various incentives by the  Government, many a corporate houses and  community have also come forward to motivate  parents and children by donating school bags,  uniforms, stationery, etc. As a result, the drop-out  rate has come down from 35.31 % in 1997-1998 to  3.24% in 2006-2007 in class 1-5. In girls, this rate  has dropped from 38.95% to 5.97 in the same time  period."

77.     In January 2008, Haryana Chief Minister Mr. Bhupinder  Singh Hooda unfurled an incentive scheme for SC students in  which students would receive a one-time payment in addition to  a monthly stipend for attending school. (See: "Incentives  announced to curb dropout rate", The Tribune, 5 Jan. 2008).   The relevant portion is mentioned hereinbelow: "Secretary, education, Rajan Gupta said a one-time  allowance of Rs.740 to Rs.1,450 would be given to SC  students from class I to XII. \005 Under the monthly  incentive scheme, boys and girls studying in class I to  V would be given Rs100 and Rs.150, respectively, per  month and boys and girls of class VI to VIII Rs.150  and Rs.200. Similarly, boys and girls of class IX to XII  would be given Rs.200 and Rs.300, respectively, and  boys and girls studying science subjects in class XI  and XII Rs.300 and Rs.400, respectively. \005 This  monthly incentive to the students would be deposited  in their bank accounts to maintain transparency in  the scheme, he added."

78.     In the name of transparency, students’ attendance records  could be made available to administrators and parents.   Students would be paid to attend school.  They would receive a  sum for each day of school that they attended.  If you only attend  7 out of 10 school days, you would only receive 70% of the  stipend.   

79.     Ultimately, this is the most important aspect of  implementing Article 21A, incentives should be provided to  parents so that they are persuaded to send their children to  school. More than punishment, creative incentive programmes  will go a long way in the implementation of the fundamental right  enshrined under Article 21A.   

7       Historical Perspective on Compulsory Education:

80.     Almost two centuries ago, Clause 43 of The Charter Act of  1813 made education a State responsibility.  [See: "Free and  Compulsory Education:  Genesis and Execution of Constitutional  Philosophy", Dr. P.L. Mehta and Rakhi Poonga, Deep and Deep  Publications, New Delhi (1997)]. [pages 42-47]. The Hunter  Commission (1882-83) was the first to recommend universal  education in India.  Thereafter, the Patel Bill, 1917 was the first  compulsory education legislation.   It proposed to make  education compulsory from ages 6 to 11.   

81.     The Government of India Act, 1935 provided that  "education should be made free and compulsory for both boys  and girls."  Free and compulsory education got a further boost  when the Zakir Hussain Commission recommended that the  State should provide it. The 1944 Sargent Report strongly  recommended free and compulsory education for children aged  six to fourteen.  By 1947, primary education had been made

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 27 of 78  

compulsory in 152 urban areas and 4995 rural areas.  

82.     The State has been making some endeavour to provide free  and compulsory education since 1813 in one form or the other.  When the original Framers gathered at the Constituent  Assembly, their desire to provide free and compulsory education  was well established. The real question in the Debate was  whether the original Framers would make free and compulsory  education justiciable or not.  They oscillated between the  options, first placing it in the fundamental rights and later  moving it to the directive principles of State policies under Article  45 of the Constitution.   

83.     Over 50 years later, the Parliament revisited the subject.   The Parliamentary debate on Article 21A offers a glimpse into the  history of compulsory education in other countries.  The then  Minister of Human Resource Development, Dr. M.M. Joshi,  referred to the speech of Shri Gopal Krishna Gokhale on  compulsory education.  While debating a bill in the imperial  legislative council in 1911, Shri Gokhale said that in most  countries: "\005elementary education is both compulsory and  free, and in a few, though the principle of compulsion  is not strictly enforced or has not been introduced it is  either wholly or for the most part gratitutious, in India  alone it is neither compulsory nor free.  Thus in Great  Britain and Ireland, France, Germany, Switzerland,  Austria, Hungary, Italy, Belguim, Norway, Sweden, the  United States of America, Canada, Australia and  Japan it is compulsory and free. \005. In Spain,  Portugal, Greece, Bulgaria, Servia and Rumania, it is  free, and in theory, compulsory, though compulsion is  not strictly enforced." [Lok Sabha Debates, 28  November, 2001, Vol.20, page 476].

84.     In 1948, the United Nations made its own pronouncement  on compulsory education.  Article 26(1) of the Universal  Declaration of Human Rights made free and compulsory  education a lofty if not enforceable goal.  While many states  consider it an authoritative interpretation of the United Nations  Charter, the Declaration is not a treaty and is not intended to be  legally binding.  Article 26(1) states: "Everyone has the right to education. Education shall  be free, at least in the elementary and fundamental  stages. Elementary education shall be compulsory.  Technical and professional education shall be made  generally available and higher education shall be  equally accessible to all on the basis of merit."

85.     Our original Framers put a similar emphasis on the matter,  placing free and compulsory education in the Directive  Principles.  The un-amended Article 45 provided that: "The State shall endeavour to provide, within a  period of ten years from the commencement of this  Constitution, for free and compulsory education for all  children until they complete the age of fourteen years."

86.     At this juncture, I deem it appropriate to refer to the  Parliamentary Debate on the aspect of free and compulsory  education.  In the Lok Sabha debate of 28 November 2001 at Vol.  20, Shri M.V.V.S. Murthi, at page 499, stated:  

"Unless the Government makes primary education  compulsory, no village can develop.  If I say what they

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 28 of 78  

are doing in Andhra Pradesh, some Members may  again cry foul.  In Andhra Pradesh, we are having  Education Committees.  If there are any dropouts, the  Committee will go to the village and find out the  reason as to why they have dropped out.  It is very  important."

87.     The Report of the Kothari Commission, 1964-1966, headed  by Prof. D. S. Kothari, provided important recommendations on  compulsory education.  Nevertheless, the circumstances of the  day compelled it to soften its suggestions.  The Nation was  relatively poor and could not afford drastic increases in  education spending.  Some excerpts of this report are reproduced  as under: "5.01. \005But in any given society and at a given time,  the decisions regarding the type, quantity and quality  of educational facilities depend partly upon the  resources available and partly upon the social and  political philosophy of the people. Poor and traditional  societies are unable to develop even a programme of  universal primary education. But rich and  industrialized societies provide universal secondary  education and expanding and broad-based  programmes of higher and adult education. Feudal  and aristocratic societies emphasize education for a  few. But democratic and socialistic societies  emphasize mass education and equalization of  educational opportunities. The principal problem to be  faced in the development of human resources,  therefore, is precisely this: How can available  resources be best deployed to secure the most  beneficial form of educational development? How  much education, of what type or level of quality,  should society strive to provide and for whom? 5.03 Increasing the Educational Level of Citizens. In  the next two decades the highest priority must be  given to programmes aimed at raising the educational  level of the average citizen. Such programmes are  essential on grounds of social justice, for making  democracy viable and for improving the productivity of  the average worker in agriculture and industry. The  most crucial of these programmes is to provide, as  directed by Article 45 of the Constitution, free and  compulsory education of good quality to all children  up to the age of 14 years. In view of the immense  human and physical resources needed, however, the  implementation of this programme will have to be  phased over a period of time." 88.     When Article 21A was introduced, some Members of  Parliament argued that financially poor parents who fail to send  their children to school should not be punished and that the  word "compulsion" in this Article should be understood to apply  exclusively to the State.  

89.     Let me examine this argument.  The 86th Amendment made  three changes to the Constitution.  It added Articles 21A and  51A(k) and amended Article 45.  I turn my focus to Article  51A(k).  In addition to rejecting an amendment that would have  neutered compulsory education, the Parliament made a positive  gesture.  Though it never passed legislation seeking to implement  compulsory education, it had not completely ignored the subject.  From Article 51A(k), it becomes clear that parents would be  responsible for sending their children to school. Article 51A read  with 51A(k) is reproduced as under:  

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 29 of 78  

"It shall be the duty of every citizen of India \026 who is a  parent or guardian to provide opportunities for  education to his child or, as the case may be, ward  between the age of six and fourteen years."   90.     Just as Article 51A(a) does not penalize disrespect of the  National Flag, Article 51A(k) does not penalize parents/guardian  for failing to send children to school.  There is, of course,  legislation that gives teeth to Article 51A(a). (See: The Prevention  of Insults to National Honour Act, 1971, Section 3A).   

91.     Article 51A(k) indicates that it is parents, not the State, who  are responsible for making sure children wake up on time and  reach school.  Thus, Article 21A read with Article 51A(k)  distributes an obligation amongst the State and parents:  the  State is concerned with free education, parents with compulsory.   Notwithstanding parental duty, the State also has a role to play  in ensuring that compulsory education is feasible \026 a topic I will  cover below.   

92.     The Central Government has made some effort to fulfill its  obligation under Article 21A with regard to "free education."  Sarva Shiksha Abhiyan is one such example.  When it comes to  "compulsory education," the Central Government has made no  such effort.  The Parliament has not passed any legislation.  The  executive has not issued any order.  What we have is a  patchwork of different State and Union Territory laws. These  States/UTs (and NCR) include:  Assam, Andhra Pradesh, Bihar, Chhatisgarh, Goa,  Gujarat, Haryana, Himachal Pradesh, Jammu &  Kashmir, Karnataka, Kerala, Madhya Pradesh,  Maharashtra, Orissa, Punjab, Rajasthan, Sikkim,  Tamil Nadu, Uttar Pradesh, West Bengal, Delhi,  Andaman & Nicobar Islands.   

93.     The majority of the States and Union Territories levy very  small fines on parents.  I note that these laws do not go into  effect with one unexcused absence.  Notice is given to the  parents, giving them time to remedy the problem.   Of course,  enforcement is almost always a different story.    

94.     In contrast to the relatively light aforementioned sentences,  the Compulsory Education Bill, 2006 introduced in the Rajya  Sabha would provide six months imprisonment as a penalty for  those who preclude children from going to school. If this Bill  becomes law, Section 7 would dictate the following:   "If any person including parents of children prevents  any boy or girl child from going to school or causes  hindrance or obstruction in any way, he shall be  punishable with imprisonment, which may extend to  six months."

95.     It seems that the Bill simultaneously targets employers and  parents.  Employers would be punished when they hire a child to  work too much or during school hours.  Similarly, parents would  also be punished for allowing this to happen. The Bill would also  provide for scholarships, free hostel facilities and other  incentives, "whenever necessary" and "as may be prescribed".   

96.     In Bandhua Mukti Morcha v. Union of India & Others,  (1997) 10 SCC 549 at page 557 at para 11, the Court explained  why education should be compulsory.  In essence, a citizen is  only free when he can make a meaningful challenge to his fellow  citizens or Government’s attempt to curtail his natural freedom.   For this to happen, he needs a certain degree of education. This

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 30 of 78  

is why Article 21A may be the most important fundamental right.  Without it, a citizen may never come to know of his other rights;  nor would he have the resources to adequately enforce them.   The relevant passage at para 11 reads as under:- "A free educated citizen could meaningfully exercise  his political rights, discharge social responsibilities  satisfactorily and develop a spirit of tolerance and  reform.  Therefore, education is compulsory.  Primary  education to the children, in particular, to the child  from poor, weaker sections, Dalits and Tribes and  minorities is mandatory.  The basic education and  employment-oriented vocational education should be  imparted so as to empower the children within these  segments of the society to retrieve them from poverty  and, thus, develop basic abilities \005 to live a  meaningful life \005 Compulsory education, therefore, to  these children is one of the principal means and  primary duty of the State for stability of the  democracy, social integration and to eliminate social  tensions."   

97.     In contrast to Article 51A(k), State and Union Territory laws  and Parliamentary intent with regard to Article 21A, the Court in  Mukti Morcha was inclined to suggest, not hold, that the State  was exclusively responsible for compulsory education.  It went on  to reaffirm M.C. Mehta v. State of Tamil Nadu & Others (child  labour matter) (1996) 6 SCC 756.  In that case, the Court took  up the issue of child labour in hazardous fields when it learnt of  an accident in a cracker factory in Sivakasi.  

98.     The said case at para 28 identified poverty as the root cause  of child labour:   "Of the aforesaid causes, it seems to us that \005 poverty  is basic reason which compels parents of a child,  despite their unwillingness, to get it employed.  The  Survey Report of the Ministry of Labour (supra) had  also stated so.  Otherwise, no parents, specially no  mother, would like that a tender-aged child should toil  in a factory in a difficult condition, instead of its  enjoying its childhood at home under the paternal  gaze."   

99.     In other words, parents send children to work because  parents have no other choice. Food comes first.  If the State does  not provide extra income so as to remove the incentive to send  children to work, it is wasting its time on mere gesture. The  Court in para 29 concluded that action must be taken:    "It may be that [child labour] would be taken care of to  some extent by insisting on compulsory education.   Indeed, Neera [Burns] thinks that if there is at all a  blueprint for tackling the problem of child labour, it is  education.  Even if it were to be so, the child of a poor  parent would not receive education, if per force it has  to earn to make the family meet both the ends.   Therefore, unless the family is assured of income  aliunde, problem of child labour would hardly get  solved; and it is this vital question which has  remained almost unattended.  We are, however, of the  view that till an alternative income is assured to the  family, the question of abolition of child labour would  really remain will-o’-the-wisp." (emphasis added).          

100.    It is interesting to note that compulsory education has been

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 31 of 78  

introduced in one form or the other in various countries.  From  the historical experience of these nations, we learn that the  legislation pertaining to compulsory education has played an  important role in improving educational outcomes.   

7       Compulsory education’s roots in the United  States           101.    Compulsory education has had a long history outside of  India. In 1852, the State of Massachusetts enacted the first  compulsory attendance law in the United States; though  compulsory education laws existed much earlier in many states,  the first dating back to 1642 in Massachusetts.  "Were  Compulsory Attendance and Child Labor Laws Effective?  (See:  An analysis from 1915 to 1939."  (2001) at p. 2. Prof. Adriana  Lleras-Muney of Princeton University.)  

7 Reasons from abroad for implementing compulsory   education:   

102.    Prof. Lleras-Muney explains that those who advocated  for compulsory education believed that universal education was  necessary to promote democracy and guarantee a common  American culture.  (Page 11).  Given the influx of immigrants,  some of whom came from undemocratic countries, many  supporters of legislation viewed compulsory education as an  instrument for assimilation.   

103.    Other reasons cited by compulsory education proponents in  the United States included the reduction of crime, racism and  inequality. Prof. Oreopoulos of the University of Toronto cites to  sources that make it appear as though the reasons for adopting  compulsory education in Canada mirrored those cited in the  United States:  the emphasis was on good citizenship and  economic development:            "Archibald Macallum, an Ontario teacher,  summarized the latter argument vigorously in an 1875  report favouring the introduction of compulsory  schooling in Canada: ’Society has suffered so cruelly  from ignorance, that its riddance is a matter of  necessity, and by the universal diffusion of knowledge  alone can ignorance and crime be banished from our  midst; in no other way can the best interests of society  be conserved and improved than by this one remedy \026  the compulsory enforcement of this great boon \026 the  right of every Canadian child to receive that education  that will make him a good, loyal subject, prepared to  serve his country in the various social functions which  he may be called on to fill during his life; and prepare  him, through grace, for the life to come’ (Annual  Report of the Ontario Teachers’ Association, 1875, as  cited in Prentice and Houston 1975, 175\0266). (See: The  Canadian Journal of Economics, Vol. 39, No.1,  February (2006) "The compelling effects of compulsory  schooling:  the evidence from Canada," Prof.  Oreopoulos, at page 23)."   

7  Empirical data indicating that compulsory  education has a positive effect:   

104. Prof. Oreopoulos provides data that show the fruits of  imposing education on citizens.  Crime may be lowered, health

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 32 of 78  

improved and civic activity increased.  Compulsory education  may also lead to a substantial increase in income for individuals.   Moreover, compulsory education, if it does not cause, may at  least contribute to an increase in bilingualism and employment  and a reduction in poverty.  The relevant portion is reproduced  hereunder:   "(Page 24). Other papers find evidence of social  returns, but for non-pecuniary outcomes. Lochner and  Moretti (2002), for example, find that compulsory  schooling lowers crime, while Lleras-Muney (2002)  finds a correlation with improved health. In studies of  the United States and United Kingdom, Dee (2003)  and Milligan, Moretti, and Oreopoulos (2003) estimate  that tighter restrictions on leaving school early  correspond to increased levels of civic activity (like  voting and discussing politics). \005 My analysis  suggests that students compelled to complete an extra  grade of school have historically experienced an  average increase of 9\02615% in annual income.

(Page 48).      I find that the introduction of tighter  provincial restrictions on leaving school between 1920  and 1990 raised average grade attainment and  incomes. Students compelled to attend an extra year  of school experienced an average increase in annual  income of about 12%. I also find that compulsory  schooling is associated with significant benefits in  terms of other socio-economic outcome measures  ranging from bilingualism, employment, and poverty  status. These results hold up against many  specifications checks and are entirely consistent with  previous studies."

105.    In addition to increased income, Prof. Lleras-Muney found  that legally requiring a child to attend school for one more year  increased educational attainment by roughly five percentage  points.  (Page 8).  Educational attainment refers to time spent in  school.   7       Example of compulsory education statutes  

106.    The causes of low enrolment, high drop-out rates and  frequent truancy in the U.S. and India differ, but the  consequences thereof do not.  In either case, citizens who lack  education are at an extreme disadvantage.  In India, poverty has  been identified as the ultimate cause of lackluster enrolment and  attendance rates.  Children are compelled to work.  In developed  countries like the United States or Canada, children rarely fail to  attend school because of economic constraints.  Instead, a  number of different factors may contribute to truancy.  High  school students may drop out "\005 because they detest school,  lack motivation, or anticipate little reward from graduation."   (See: The Canadian Journal of Economics, "The compelling effects  of compulsory schooling:  the evidence from Canada," Prof.  Oreopoulos, p. 23, (quoting from Eckstein, Zvi, and Kenneth I.  Wolpin (1999) "Why youths drop out of high school: the impact of  preferences, opportunities, and abilities," Econometrica 67, 1295\026 339).    

107.    As I detail below, students and parents in the United States  often face the same fines when students fail to attend school.   Fines for students make more sense when low self-control is the  reason for which they fail to attend school.  At the same time,  punishing Indian students who have no choice but to work  would make no sense.  Such a punishment should not be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 33 of 78  

borrowed from the United States.   

108.    In many jurisdictions in the United States, the attendance  officer is responsible for enforcing compulsory attendance laws  for his area or school.  Given the overwhelming problem of sub- par enrolment and attendance in India, we doubt that one school  official could sufficiently do the work of inspecting places of  employment for children who have violated attendance laws.   109.    Indeed, existing legislation in India already envisages the  employment of attendance officers. The Delhi Primary Education  Act, 1960, Sec. 7.  Yet, there is nothing to suggest that these  employees have adequately dealt with truancy.  As mentioned,  this is, in part, due to the economic conditions in which many  parents find themselves.  Financial assistance or incentives must  be given.  Only then, may the Government actively enforce  compulsory attendance legislation.   110.    We must also remember that it is not only the child who  fails to attend but also the child who fails to enroll that has  violated an attendance law.   111.    Before taking issue with State/Union Territory compulsory  education statutes, I note that education has traditionally been  reserved for the States. Only in 1976, vide the 42nd Amendment  of the Constitution, did education become a part of Concurrent  List of Schedule 7.  In its 165th Report, the Law Commission of  India has also recommended enactment of Central Legislation in  this respect. Putting education in the Concurrent List turns out  to be a positive development, given the States’ failure to provide  effective legislation.   

112.    The States’ laws fail on two accounts.  First, they are too  lenient to have a deterrent effect.  Second, the legislation is not  adequately enforced, in part, because it does not require police  officers to do the job. If we analyze the legislation passed by  different States, another conclusion becomes obvious: no State  has provided for an adequate punishment whose effect would be  to deter citizens from committing a violation.            113.    It is necessary to reproduce some of the various compulsory  education laws of the States. 114.    Under Section 7 of The Tamil Nadu Compulsory Elementary  Education Act, 1994: "Every parent or guardian of a child of school age who  fails to discharge his duty under section 4 [duty of  parent to cause child to attend elementary school]  shall be punishable with fine which may extend to one  hundred rupees."

115.    Section 18(1) of The Delhi Primary Education Act, 1960  states: "If any parent fails to comply with an attendance order  passed under Section 13, he shall be punishable with  fine not exceeding two rupees, and, in the case of  continuing contravention, with an additional fine not  exceeding fifty naye paise for every day during which  such contravention continues after conviction for the  first of such contraventions.  Provided that the  amount of fine payable by any one person in respect of  any child in any one year shall not exceed fifty  rupees."

116.    Analysis of these State laws reveals that they are weak in  character and perhaps have never been implemented.  If we  compare these laws with their sister statutes in United States,  we realize that the U.S. laws are far stronger.   117.    In Wisconsin, parents who fail to send their children to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 34 of 78  

school may have to pay a fine of not more than $500 or face  imprisonment for not more than 30 days or both. [Wisconsin  Statute Sections 118.15(1)(a) and 118.15(5)(a)1.a]. For a second  or subsequent offense, they may face a fine of not more than  $1,000 or imprisonment for not more than 90 days or both.  [Wisconsin Statute Sections 118.15(1)(a) and 118.15(5)(a)1.b].   Alternatively, they may be sentenced to perform community  service. [Wisconsin Statute Sections 118.15(1)(a) and  118.15(5)(a)2] .  Unlike Wisconsin, Tamil Nadu and Delhi’s laws have no  teeth.   

118.    The other main problem is implementation of these laws.   Neither the State Governments nor their police agencies are at all  serious about implementing these compulsory laws.  There are  hardly any cases where even fines have been imposed.   Some  form of compulsory education has been on the statute books  since 1917.  We have seen Western countries enforce these laws.   Most Western countries enjoy almost universal literacy while  35% of our population is illiterate.  While a robust financial  incentive programme may not have been possible in 1917, it is  today.  If we wish to develop further, we must educate each and  every citizen aged six to fourteen.   

119.    In order to give effect to the constitutional right under  Article 21A, it is imperative that the Central Government pass  suitable legislation.  The fine should be suitably increased.   Imprisonment should be a sentencing option as well.  The  current patchwork of State/UT legislation on compulsory  education is insufficient.  Small monetary fines do not go far  enough to ensure the implementation of Article 21A.   

120.            A disclaimer is attached to these  recommendations.   The recommendations for the enforcement of compulsory  education are contingent upon the implementation of a financial  incentive program that would make education viable for the poor.   The carrot must come before the stick.  If there is no financial  incentive program in place, the Government cannot expect the  poorest of the poor to send their children to school.  

121.    The Parliament should criminally penalize those parents  who receive financial benefits and, despite such payments, send  their children to work and penalize those employers who  preclude children from attending school or completing   homework.  It has become necessary that the Government set a  realistic target within which it must fully implement Article 21A  regarding free and compulsory education for the entire country.   The Government should suitably revise budget allocations for  education.  The priorities have to be set correctly. The most  important fundamental right may be Article 21A, which, in the  larger interest of the nation, must be fully implemented. Without  Article 21A, the other fundamental rights are effectively rendered  meaningless.  Education stands above other rights, as one’s  ability to enforce one’s fundamental rights flows from one’s  education.  This is ultimately why the judiciary must oversee  Government spending on free and compulsory education.    

122.    At the same time, spending is an area in which the  judiciary must not overstep its constitutional mandate.  The  power of the purse is found in Part V, Chapter II of the  Constitution, which is dedicated to the Parliament.  (See: Articles  109 and 117 for "Money Bills.")  Nevertheless, it remains within  the judiciary’s scope to ensure that the fundamental right under  Article 21A of Part III is upheld.  In M.C. Mehta v. Union of  India (vehicular pollution) (1998) 6 SCC 63, this Court did not

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 35 of 78  

ignore the Article 21 right to life when deadly levels of pollution  put the right at stake. Nor will this Court ignore the Article 21A  right to education, when a dearth of quality schooling put it in  jeopardy. The Government’s education programmes and  expenditures, wanting in many respects, are an improvement  over past performance.  They nearly fall short of the  constitutional mark.  Lackluster performance in  primary/secondary schools is caused in part because  Government places college students on a higher pedestal.  Money  will not solve all our education woes, but a correction of priorities  in step with the Constitution’s mandate will go a long way.  

7       Opposition to Compulsory Education

123.    "Compulsory" connotes enforcement.  The Parliament  rejected an amendment that would have saved parents from  penal penalties. If education were not compulsory, who checks in  with parents who have sent their children to work?  If no  authorities inquire, the message is clear:  We, the State, do not  care if your child goes to school.  Taking the opposing view, Shri  G.M. Banatwalla wanted to make sure parents were not  punished: "\005this word ’compulsion’ needs to be properly defined.   The word, ’compulsion’ is not to be related to the  student or the parents.  Parents cannot be penalized  for being too poor to send their children to school.   The word, ’compulsion’ has to be understood in  relation to the State and the obligation of the State to  provide for free education. p. 523." (See: The  Parliamentary Debates on Article 21A, p. 523, 28  November 2001 at Vol. 20, No. 6-10) 124.    The Parliament had the opportunity to accept such a  definition of "compulsory."  But they chose otherwise.   Amendment number four, moved by Shri G.M. Banatwalla at p.  548, stated that: "Provided that in making any law to provide for free  and compulsory education under this article, the State  shall not\005 (b) enforce any penal sanctions on a parent  or guardian."   

125.    Of paramount importance, this Amendment was  "negatived."  [See p. 548]. Those who wanted a safe-haven from  penal sanction for parents lost.  From this vote, we know that the  Parliament intended to allow for future legislation that would  impose penal sanctions for violations of legislation under Article  21A.

7       Conclusion on Free and Compulsory Education

126.    Given that so many children drop out of, or are absent  from, school before they turn fourteen, "free education" alone  cannot solve the problem. The current patchwork of laws on  compulsory education is insufficient. Monetary fines do not go  far enough to ensure that Article 21A is upheld.

127.    A carrot-and-stick approach appears to be the best way to  implement Article 21A.  Financial incentive programmes have  worked well in other countries.  We should follow their lead.   Once that is done, the Government should strictly enforce  effective compulsory education laws.  Such a policy is bound to  pay off.      

       In sum, the Central Government should enact legislation  that:  (a)     provides low-income parents/guardians with

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 36 of 78  

financial incentives such that they may afford to  send their children to school;  

(b)     criminally penalizes those who receive financial  incentives and despite such payment send their  children to work;  

(c)     penalizes employers who preclude children from  attending school or completing homework;  

(d)     the penalty should include imprisonment; the  aforementioned Bill would serve as an example.  The State is obligated under Article 21A to  implement free and compulsory education in toto;  

(e)     Until we have achieved the object of free and  compulsory education, the Government should  continue to increase the education budget;  

(f)     the Parliament should set a deadline by which  time free and compulsory education will have  reached every child.  This must be done within  six months.  

128.    With regard to (a), the state cannot cite budgetary  constraints or lack of resources as an excuse for failing to  provide financial assistance/incentives to poor parents. See  Hussainara Khatoon (supra), at page 107, para 10.  129.    Article 21A’s reference to "education" must mean  something. This conclusion is bolstered by the Parliament’s  Statement of Objects and Reasons for Article 21A: "The Constitution of India in a Directive Principle  contained in article 45, has made a provision for free  and compulsory education for all children up to the  age of fourteen years within ten years of promulgation  of the Constitution.  We could not achieve this goal  even after 50 years of adoption of this provision. The  task of providing education to all children in this age  group gained momentum after the National Policy of  Education (NPE) was announced in 1986.  The  Government of India, in partnership with the State  Governments, has made strenuous efforts to fulfill this  mandate and, though significant improvements were  seen in various educational indicators, the ultimate  goal of providing universal and quality education still  remains unfulfilled.  In order to fulfill this goal, it is  felt that an explicit provision should be made in the  Part relating to Fundamental Rights of the  Constitution.   

1.      With a view to making right to free and  compulsory education a fundamental right, the  Constitution (Eighty-third Amendment) Bill, 1997 was  introduced in the Parliament to insert a new article,  namely, article 21A conferring on all children in the  age group of 6 to 14 years the right to free and  compulsory education.  The said Bill was scrutinized  by the Parliament Standing Committee on Human  Resource Development and the subject was also dealt  with in its 165th Report by the Law Commission of  India.

2.      After taking into consideration the report of the  Law Commission of India and the recommendations of  the Standing Committee of the Parliament, the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 37 of 78  

proposed amendments in Part III, Part IV and Part IVA  of the Constitution are being made which are as  follows \005

3.  The Bill seeks to achieve the above objects"   

130.    The Article seeks to usher in "the ultimate goal of providing  universal and quality education." (emphasis supplied). Implied  within "education" is the idea that it will be quality in nature.  Current performance indicates that much improvement needs to  be made before we qualify "education" with "quality."  Of course,  for children who are out school, even the best education would  be irrelevant.  It goes without saying that all children aged six to  fourteen must attend school and education must be quality in  nature. Only upon accomplishing both of these goals, can we say  that we have achieved total compliance with Article 21A. 131.    Though progress has been made, the Parliament’s  observation upon passing Art 21A still applies:  the goal of  providing universal and quality education "\005 still remains  unfulfilled."   3.      Does the 93rd Amendment violate the Basic  Structure of the Constitution by imposing  reservation on unaided institutions?   

132.    Imposing reservation on unaided institutions violates the  basic structure by obliterating citizens’ 19(1)(g) right to carry on  an occupation.  Unaided entities, whether they are educational  institutions or private corporations, cannot be regulated out of  existence when they are providing a public service like education.   That is what reservation would do.  That is an unreasonable  restriction. When you do not take a single paisa of public money,  you cannot be subjected to such restriction.  The 93rd  Amendment’s reference to unaided institutions must be severed.   

133.    No unaided institution filed a writ petition in this case.  Had  either this Court or respondents had an objection, they could  have raised it at any time during the proceedings.  We listened to  the parties for months.  We received voluminous written  submissions from the parties, yet no objection was made with  regard to the fact that no unaided institution had filed a writ  petition.  While we would usually implead a party if we felt their  presence was necessary to the resolution of the dispute, the facts  of this case are peculiar.  The best lawyers in the country argued  the case for both sides, and a brief from an unaided institution  would not have added much if anything to the substance of the  arguments.  The Government will likely target unaided  institutions in the future.  At that time, this Court will have to go  through this entire exercise de novo to determine if unaided  institutions should be subject to reservation.  Such an exercise  would unnecessarily cause further delay.  The fate of lakhs of  students and thousands of institutions would remain up in the  air. (See: Minerva Mills Ltd. & Others v. Union of India &  Others (1980) 3 SCC 625).  Therefore, looking to the  extraordinary facts, I have decided to proceed with this aspect of  the matter in the larger public interest.   

134.    Amendments by their very nature are often enabling  provisions. If they clear the way for future legislation that would  in fact violate the basic structure, the Court need not wait for a  potential violation to become an actual one.  It can strike the  entire amendment ab initio.  The question of potential width was  resolved in Minerva Mills (supra), paras 38-39.   The Court  acknowledged that it generally does not anticipate constitutional  issues before they arise, but it held that circumstances required

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 38 of 78  

it to act before unconstitutional provisions could be passed  under the authority of an unconstitutional amendment.   "38.  But, we find it difficult to uphold the preliminary  objection because, the question raised by the  petitioners as regards constitutionality of Sections 4  and 55 of the 42nd Amendment is not an academic or a  hypothetical question.  The 42nd Amendment is there  for anyone to see and by its Sections 4 and 55  amendments have been made to Articles 31-C and 368  of the Constitution.  An order has been passed against  the petitioners under Section 18-A of the Industries  (Development and Regulation) Act, 1951, by which the  petitioners are aggrieved."   

"39. Besides there are two other relevant  considerations which must be taken into account  while dealing with the preliminary objection.  There is  no constitutional or statutory inhibition against the  decision of questions before they actually arise for  consideration.  In view of the importance of the  question raised and in view of the fact that the  question has been raised in many a petition, it is  expedient in the interest of justice to settle the  true position.  Secondly, what we are dealing with is  not an ordinary law which may or may not be passed  so that it could be said that our jurisdiction is being  invoked on the hypothetical consideration that a law  may be passed in future which will injure the rights of  the petitioners. We are dealing with a constitutional  amendment which has been brought into operation  which, of its own force, permits the violation of certain  freedoms through laws passed for certain purposes.   We, therefore, overrule the preliminary objection and  proceed to determine the point raised by the  petitioners."                                                   [emphasis added]

There is not one precise definition of the width test, however. The  test asks if an amendment is so wide that in effect (actual or  potential), it goes beyond the Parliament’s amending power.  Kesavananda, paras 531-532:  "But that the real consequences  can be taken into account while judging the width of the power is  settled.  The Court cannot ignore the consequences to which a  particular construction can lead \005" To make such a  determination, it follows that the Court should ask whether an  amendment infringes constitutional limitations as opposed to  those evolved from mere common law.  (See: Nagaraj, para 103).  

135.    As a preliminary matter, I turn to the cases by which the  basic structure doctrine has been established.  It has been stated  that, "Kesavananda had propounded the doctrine, the Indira  Gandhi Election case had upheld it, and Minerva engraved it on  stone."  (See: Granville Austin, "Working a Democratic  Constitution", at page 506].    

136.    Kesavananda and its progeny provide that an amendment  to the Constitution must not alter the Constitution’s basic  structure.  To reach a conclusion regarding a basic structure  challenge, I employ the following general standard:  an  amendment alters the basic structure if its actual or potential  effect would be to damage a facet of the basic structure to such an  extent that the facet’s original identity is compromised.   

137.    To determine if legislation infringes constitutional

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 39 of 78  

limitations and is thus invalid, we use the two-step effect test  (also known as the impact or rights test).  Step One requires us  to first ask if legislation affects a facet of the basic structure.   

If it does, then at Step Two we ask if the effect on the facet  of the structure is to such an extent that the facet’s original  identity has been altered. Applying the effect test is another way  of saying that the form of an amendment is irrelevant; it is the  consequence thereof that matters.  (See: Kesavanda at para 532  and I.R. Coelho v. State of Tamilnadu (2007) 2 SCC 1 at  Conclusion (ii) at page 111).   

138.    The terms "abridge" and "abrogate" have been employed by  this Court to distinguish between acceptable and unacceptable  legislation. Whether legislation abridges or abrogates is a  question of degree.  Using these terms is another way of asking  whether the legislation had such an effect that it changed the  basic structure of the Constitution.  If legislation merely abridges  the basic structure, the structure’s identity remains.  The  legislation is upheld.  In this sense, the Parliament may take  away or destroy fundamental rights by amending the  Constitution, provided that the basic structure is not altered.   

139.    If it abrogates the basic structure, the structure and thus  the Constitution lose their identities.  The legislation must be  struck down.  This is determined on a case-by-case basis by  applying the effect test (impact/rights tests).  (See: Coehlo). I  further note that a total deprivation of fundamental rights, even  in one limited area, may amount to an abrogation of the basic  structure.  (See: Minerva Mills, para 59).  7       Step One:  Does Article 15(5) affect a facet of the  basic structure?   

140.    In the instant case, Article 15(5) expressly precludes the  application of Article 19(1)(g).  Whenever reservations are  implemented under Article 15(5), citizens are stripped of their  fundamental rights under Article 19(1)(g).  By excluding Article  19(1)(g), Article 15(5) obviously affects Article 19(1)(g), a facet of  the basic structure of the Constitution. Step One is therefore  cleared. What is more, Article 19(1)(g) belongs to the Golden  Triangle \026 Articles 14, 19 and 21 are the three fundamental  rights that stand above the rest.  Writing for the majority in  Minerva Mills, Justice Chandrachud provides an eloquent  justification for shielding the Golden Triangle from attack.  To  achieve a more egalitarian society, individual liberty must be  protected: "Para 74 of Minerva Mills:  Three Articles of our  Constitution, and only three, stand between the  heaven of freedom into which Tagore wanted his  country to awake and the abyss of unrestrained  power. They are Articles 14, 19 and 21. Article 31C  has removed two sides of that golden triangle which  affords to the people of this country an assurance that  the promise held forth by the Preamble will be  performed by ushering an egalitarian era through the  discipline of fundamental rights, that is, without  emasculation of the rights to liberty and equality  which alone can help preserve the dignity of the  individual."

141.    The Golden Triangle’s significance becomes clear when we  consider that Government may suspend Article 14 and 19 rights  in order to implement an emergency.  (See: Articles 358 and 359)  (prior to the 44th Amendment, all Part III rights could be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 40 of 78  

curtailed during emergency; this Amendment precludes the State  from denying Articles 20 and 21 to citizens during emergency).   In a sense, democracy is only restored when the Triangle is  returned to the citizens.  Without the Triangle, democracy is  impossible:   "para 63\005 Every State is goal-oriented and claims to  strive for securing the welfare of its people. The  distinction between the different forms of Government  consists in that a real democracy will endeavour to  achieve its objectives through the discipline of  fundamental freedoms like those conferred by Articles  14 and 19. Those are the most elementary  freedoms without which a free democracy is  impossible and which must therefore be preserved  at all costs. Besides, as observed by Brandies, J., the  need to protect liberty is the greatest when  Government’s purposes are beneficent. If the  discipline of Article 14 is withdrawn and if immunity  from the operation of that article is conferred, not only  on laws passed by the Parliament but on laws passed  by the State Legislatures also, the political pressures  exercised by numerically large groups can tear the  country asunder by leaving it to the legislature to pick  and choose favoured areas and favourite classes for  preferential treatment."  

142.    United States Supreme Court Justice Brandeis’ word of  caution is relevant to today’s dispute wherein the Government  trumpets reservation in higher education as an answer to our  age-old problems of poverty and caste.  At first blush, it sounds  as if reservation in higher education would help the backward  help themselves.  The road out of poverty is paved with  education.  However, the "devil is the details."  With elementary  freedom on the line, I must carefully scrutinize those details.   

143.    The right to freedom under Article 19 has been long  recognized as a natural and inalienable right that belongs to all  citizens. Indeed, what would Independence mean without it?  Chief Justice Sikri cites the following passage in Kesavananda  at para 300:   "That article (Article 19) enumerates certain freedoms  under the caption "right to freedom" and deals with  those great and basic rights which are recognised and  guaranteed as the natural rights inherent in the status  of a citizen of a free country." (Per Patanjali Sastri,  C.J., in State of West Bengal v. Subodh Gopal Bose  [1954] S.C.R. 587, 596)."

144.    With fundamental rights in jeopardy, I shall review the  cases in which the basic structure doctrine has been  implemented to invalidate constitutional amendments.  By  looking at these cases synoptically, we get a sense as to how  much damage the basic structure can withstand before  crumbling.  In Kesavananda, the second part of Article 31C  precluded courts from reviewing whether a law under Article  39(b) or (c) promoted the policy for which it was enacted.  This  violated the basic structure.  Article 31C was introduced by the  25th Amendment.   

145.    In Indira Nehru Gandhi v. Raj Narain & Another (1975)  Supp SCC 1, the Court struck Article 329A(4) as violative of the  basic structure.  This provision appropriated the Court’s power  to adjudicate election laws, encroaching on the judiciary in  violation of separation of powers.  See Justice Matthew’s opinion  at para 325.  It was introduced by the 39th Amendment.  In

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 41 of 78  

Minerva Mills, the Court held sections 4 and 55 of the 42nd  Amendment in violation of the basic structure.  Section 4 sought  to expand 31C such that all laws giving effect to Directive  Principles, not just those intended to promote Article 39(b) or (c),  would be immune to an Article 14 or 19 challenge.  Section 55  would have barred judicial review of constitutional amendments.     146.    In P. Sambamurthy v. State of A.P. (1987) 1 SCC 362, the  Court invalidated Article 371-D(5), finding that the Parliament  had violated the rule of law and consequently the basic  structure, by removing judicial review from the High Court and  placing it in the hands of one of the parties \026 the State  Government.  In L. Chandra Kumar v. Union of India (1997) 3  SCC 261, the Court held that Articles 323A-2D and 323B-3D  violated the basic structure in that they removed judicial review  of the High Courts and Supreme Court under Articles 226/227  and 32, respectively.  These articles were introduced by the 42nd  Amendment to empower the Parliament or the State Legislatures  to establish Tribunals for various substantive areas of law:  tax,  labour, criminal, etc.   

147.    Two broad themes surface from these cases.  When judicial  review is barred, democracy evaporates.  And when Fundamental  Rights are at stake, they must be harmonized with, not made  subject to, the Directive Principles. Sections 4 and 55 of the 42nd  Amendment were especially egregious violations of the basic  structure.  Had Section 4 been upheld, citizens’ fundamental  rights would have been at the mercy of one organ of Government.   "If Governments always could be trusted, there would have been  no need for Fundamental rights." Mr Palkhivala in oral  arguments in Kesavananda, quoting from the learned Mr H.M.  Seervai, who was opposing counsel in that case.  Mr Palkhivala  was reading from Seervai, H.M., "Fundamental Rights:  A Basic  Issue," published in three installments in the Times of India, 14,  15, 16 February 1955. (See: Granville Austin at pages 263-264  in "Working a Democratic Constitution")

148.    Government cannot be trusted; that is precisely why we  divide its powers into separate organs.  If it could be trusted,  there would be no need for co-equal branches in which power is  shared.  Separation of powers is an axiom of democracy.   

149.    Had Section 55 of the 42nd Amendment been upheld, the  basic structure of the Constitution could have been destroyed by  a single slash.  Future constitutional amendments would not  have been reviewed. The impugned Amendment looks rather  mild in comparison to the damage that would have been wrought  by the 42nd Amendment.  The impugned legislation limits one  fundamental right in one limited circumstance.  Yet an  amendment need not be as invidious as the 42nd Amendment for  us to invalidate it.  If the standard were that high, amendments  could destroy the basic structure or the essence of the  Constitution by a thousand slashes.  

150.    Since Kesavananda’s time, many amendments have been  passed and many challenges under the basic structure have  been made.  This Court has used caution and has refrained from  using the doctrine, even when it may have been justified.  For  example, there were grounds for striking the entire 10th Schedule  as violative of the basic structure in Kihoto Hollohan v  Zachillhu & Others 1992 Supp (2) SCC 651.  Rather than  resort to the basic structure, this Court made a narrow ruling on  procedural grounds.  (See: S.P. Sathe, Judicial Activism in India:  Transgressing Borders and Enforcing Limits, 2nd Edn., 2002  (Oxford University Press) pages 92-93). The Court upheld the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 42 of 78  

10th Schedule, only severing a paragraph from the same.  I agree  that an abundance of caution ought to be taken before  employing the basic structure doctrine.  The violation must truly  abrogate the basic structure.  Anything short of this standard  must be upheld \026 the will of the people, through their elected  representatives, heard.   

151.    Before making such a determination, it is prudent to briefly  revisit the rulings of two landmark cases:  P.A. Inamdar &  Others v. State of Maharashtra & Others, (2005) 6 SCC 537;  T.M.A. Pai Foundation & Others v. State of Karnataka &  Others (2002) 8 SCC 481.  In Inamdar (supra), paras 26-27  (seven-Judge Bench), unaided (minority and non-minority)  professional institutions filed petitions to determine, inter alia,  whether the State could impose quotas on unaided (minority and  non-minority) institutions. A seven-Judge Bench was constituted  such that Islamic Academy’s clarification of Pai could be  reviewed.  Islamic Academy was a five-Judge Bench. Given that  Pai was an eleven-Judge Bench, Inamdar could clarify but not  overrule Pai.     

152.    At para 124, Inamdar held that the State cannot impose  quotas on unaided (minority and non-minority) institutions.  To  do so would nationalize seats, contrary to Pai.  (See: Inamdar at  para 125).  In dictum, Pai suggested that the State could compel  unaided institutions to admit a reasonable percentage of  students via reservation.  (Pai, para 68).  Inamdar clarified this  point, stating that Pai should be read to mean that the State and  unaided institutions may enter into consensual agreement  regarding reservation.  (See: Inamdar at para 126). Unaided  institutions (minority and non-minority) can admit as they  choose, provided their process is fair, transparent, non- exploitative and merit-based.  Inamdar stated: "124: So far as appropriation of quota by the State  and enforcement of its reservation policy is concerned,  we do not see much of difference between non- minority and minority unaided educational  institutions. We find great force in the submission  made on behalf of the petitioners that the States have  no power to insist on seat sharing in the unaided  private professional educational institutions by fixing  a quota of seats between the management and the  State. The State cannot insist on private  educational institutions which receive no aid  from the State to implement State’s policy on  reservation for granting admission on lesser  percentage of marks, i.e. on any criterion except  merit. 125. As per our understanding, neither in the  judgment of Pai Foundation nor in the Constitution  Bench decision in Kerala Education Bill, which was  approved by Pai Foundation, there is anything which  would allow the State to regulate or control  admissions in the unaided professional educational  institutions so as to compel them to give up a share of  the available seats to the candidates chosen by the  State, as if it was filling the seats available to be filled  up at its discretion in such private institutions. This  would amount to nationalization of seats which  has been specifically disapproved in Pai  Foundation. Such imposition of quota of State  seats or enforcing reservation policy of the State  on available seats in unaided professional  institutions are acts constituting serious  encroachment on the right and autonomy of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 43 of 78  

private professional educational institutions.  

Such appropriation of seats can also not be held  to be a regulatory measure in the interest of  minority within the meaning of Article 30(1) or a  reasonable restriction within the meaning of  Article 19(6) of the Constitution. Merely because the  resources of the State in providing professional  education are limited, private educational institutions,  which intend to provide better professional education,  cannot be forced by the State to make admissions  available on the basis of reservation policy to less  meritorious candidate. Unaided institutions, as they  are not deriving any aid from State funds, can  have their own admissions if fair, transparent,  non-exploitative and based on merit."    To the extent that Islamic Academy had approved of quotas in  unaided institutions, a scheme in which the States could fix  quota for seat sharing between management and the State,  Islamic was overruled.  [Inamdar at para 130]  

153.     In T.M.A. Pai Foundation (supra) para 2 (eleven- Judge  Bench), private educational institutions, aided and unaided, filed  writ petitions to challenge regulations that impeded their rights.  They wanted to establish and administer educational  institutions, unfettered by Government interference. [para 2].  Reading Article 29(2) and 30(1) harmoniously, the six-Justice  majority held that (1) unaided institutions could admit students  free of Government interference, as long as their admission  process was transparent and merit-based; (2) minority aided  institutions may still admit their own students, contingent upon  admitting a reasonable number of non-minority students per the  percentage provided by the State Government.    

154.    For our purposes, it is important to note that education  falls within the meaning of "occupation" under 19(1)(g).  This is  so because a large number of persons are employed as teachers  and administrative staff. For them, education is an occupation.   Pai stated: "20:  "Article 19(1)(g) employs four expressions, viz.,  profession, occupation, trade and business. Their  fields may overlap, but each of them does have a  content of its own. Education is per se regarded as an  activity that is charitable in nature [See The State of  Bombay v. R.M.D. Chamarbaugwala, \005 Education has  so far not been regarded as a trade or business where  profit is the motive. Even if there is any doubt about  whether education is a profession or not, it does  appear that education will fall within the meaning of  the expression "occupation". Article 19(1)(g) uses the  four expressions so as to cover all activities of a citizen  in respect of which income or profit is generated, and  which can consequently be regulated under Article  19(6).  

25 The establishment and running of an educational  institution where a large number of persons are  employed as teachers or administrative staff, and an  activity is carried on that results in the imparting of  knowledge to the students, must necessarily be  regarded as an occupation, even if there is no  element of profit generation. It is difficult to  comprehended that education, per se, will not fall  under any of the four expressions in Article 19(1)(g).

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 44 of 78  

"Occupation" would be an activity of a person  undertaken as a means of livelihood or a mission in  life. ..."                                                   [emphasis added]

155. Stripping private unaided institutions of their right to select  students would be unreasonable: "para  40: Any system of student selection would be  unreasonable if it deprives the private unaided  institution of the right of rational selection, which it  devised for itself, subject to the minimum qualification  that may be prescribed and to some system of  computing the equivalence between different kinds of  qualifications, like a common entrance test. Such a  system of selection can involve both written and oral  tests for selection, based on principle of fairness."

156.    Like Article 15(5) in the instant case, Unni Krishnan  effectively nationalized education. Pai overturned Unni  Krishnan.  (See: para 45).   "38:  The scheme in Unni Krishnan’s case has the  effect of nationalizing education in respect of  important features, viz., the right of a private unaided  institution to give admission and to fix the fee. By  framing this scheme, which has led to the State  Governments legislating in conformity with the  scheme the private institutions are undistinguishable  from the Government institutions; curtailing all the  essential features of the right of administration of a  private unaided educational institution can neither be  called fair or reasonable."

157.    Pai traces the autonomy of institutions back to  Chitralekha and Rajendran.  The proposition is simple:  he  who funds or runs the institution holds the power to select  students. The State cannot ask these institutions to abridge this  right in exchange for affiliation/recognition.  The relevant  paragraphs are reproduced hereunder: "36: The private unaided educational institutions  impart education, and that cannot be the reason to  take away their choice in matters, inter alia, of  selection of students and fixation of fees. Affiliation  and recognition has to be available to every institution  that fulfills the conditions for grant of such affiliation  and recognition. The private institutions are right in  submitting that it is not open to the Court to insist  that statutory authorities should impose the terms of  the scheme as a condition for grant of affiliation or  recognition; this completely destroys the institutional  autonomy and the very objective of establishment of  the institution.

42. In R. Chitralekha and Anr. v. State of Mysore and  Ors.[citation omitted], while considering the validity of  a viva-voce test for admission to a Government  medical college, it was observed at page 380 that  colleges run by the Government, having regard to  financial commitments and other relevant  considerations, would only admit a specific number of  students. It had devised a method for screening the  applicants for admission. While upholding the order so  issued, it was observed that "once it is conceded, and it  is not disputed before us, that the State Government  can run medical and engineering colleges, it cannot be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 45 of 78  

denied the power to admit such qualified students as  pass the reasonable tests laid down by it. This is a  power which every private owner of a College will have,  and the Government which runs its own Colleges  cannot be denied that power." (italics  added by Pai;  underscore is mine).

43. Again, in Minor P. Rajendran v. State of Madras  and Ors \005 , it was observed at page 795 that "so far  as admission is concerned, it has to be made by those  who are in control of the Colleges, and in this case the  Government, because the medical colleges are  Government colleges affiliated to the University. In  these circumstances, the Government was entitled to  frame rules for admission to medical colleges controlled  by it subject to the rules of the university as to eligibility  and qualifications." The aforesaid observations clearly  underscore the right of the colleges to frame rules for  admission and to admit students. The only  requirement or control is that the rules for admission  must be subject to the rules of the university as to  eligibility and qualifications. The Court did not say that  the university could provide the manner in which the  students were to be selected.

61. In the case of unaided private schools, maximum  autonomy has to be with the management with regard  to administration, including the right of appointment,  disciplinary powers, admission of students and the  fees to be charged."

158.    Unaided institutions may admit students of their choice,  subject to an objective and rational procedure of selection.  They  might admit a small percentage of students belonging to the  weaker sections of the society by granting those sections  freeships or scholarships, if not granted by the Government.  [See: Pai at para 53]. Given a transparent and reasonable  selection process, it is up to the institution to define "merit"  according to its own values.  Pai stated: "65. The reputation of an educational institution is  established by the quality of its faculty and students,  and the educational and other facilities that the  colleges has to offer. The private educational  institutions have a personality of their own, and in  order to maintain their atmosphere and traditions, it  is but necessary that they must have the right to  choose and select the students who can be admitted to  their courses of studies. If is for this reason that in the  St. Stephen’s College case, this Court upheld the  scheme whereby a cut-off percentage was fixed for  admission, after which the students were interviewed  and thereafter selected. While an educational  institution cannot grant admission on its whims and  fancies, and must follow some identifiable or  reasonable methodology of admitting the students,  any scheme, rule or regulation that does not give the  institution the right to reject candidates who might  otherwise be qualified according to say their  performance in an entrance test, would be an  unreasonable restriction under Article 19(6), though  appropriate guidelines/modalities can be prescribed  for holding the entrance test a fair manner. Even when  students are required to be selected on the basis of  merit, the ultimate decision to grant admission to the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 46 of 78  

students who have otherwise qualified for the grant of  admission must be left with the educational  institution concerned. However, when the institution  rejects such students, such rejection must not be  whimsical or for extraneous reasons."

159.    The Court distinguishes between reasonable and  unreasonable regulations by asking which functions lie at the  heart of an institution’s autonomy.  Regulations that strike at the  core of autonomy are unreasonable.  For example, prescribing  minimum qualifications for teachers is a reasonable regulation;  actually selecting the teachers is not.   "55. But the essence of a private educational  institution is the autonomy that the institution must  have in its management and administration. There,  necessarily, has to be a difference in the  administration of private unaided institutions and  the Government-aided institutions. Whereas in the  latter case, the Government will have greater say in  the administration, including admissions and fixing  of fees, in the case of private unaided institutions,  maximum autonomy in the day-to-day  administration has to be with the private unaided  institutions. Bureaucratic or Governmental  interference in the administration of such an  institution will undermine its independence. While  an educational institution is not a business, in order  to examine the degree of independence that can be  given to a recognized educational institution, like any  private entity that does not seek aid or assistance  from the Government, and that exists by virtue of the  funds generated by it, including its loans or  borrowings, it is important to note that the essential  ingredients of the management of the private  institution include the recruiting students and staff,  and the quantum of fee that is to be charged."          160.    The same argument was framed in similar terms in St.  Stephen’s College v. University of Delhi, 1992 (1) SCC 558.   In that case, the Court distinguished regulations based on  whether they directly or indirectly affected management.  Those  that indirectly affected management were reasonable; those that  directly affected the management of the institution were not.   [Pai at para 125].   

161.    In St. Stephen’s, this Court referred to the earlier  decisions, and with regard to Article 30(1) observed at page 596,  paragraph 54, as follows: "\005 But the standards of education are not a part of  the management as such. The standard concerns the  body politic and is governed by considerations of the  advancement of the country and its people. Such  regulations do not bear directly upon management  although they may indirectly affect it. The State,  therefore has the right to regulate the standard of  education and allied matters."  

162.    Once a private institution (non-minority) takes aid, it is  subject to (1) reservation and (2) regulation of administration and  maintenance of the institution. Pai stated: "71: "While giving aid to professional institutions, it  would be permissible for the authority giving aid to  prescribe by rules or regulations, the conditions on  the basis of which admission will be granted to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 47 of 78  

different aided colleges by virtue of merit, coupled with  the reservation policy of the state. \005

72: "Once aid is granted to a private professional  educational institution, the Government or the state  agency, as a condition of the grant of aid, can put  fetters on the freedom in the matter of administration  and management of the institution. The state, which  gives aid to an educational institution, can impose  such conditions as are necessary for the proper  maintenance of the high standards of education as the  financial burden is shared by the state. \005"

163.    I now query if the Parliament may subject Article 19(1)(g) to  Article 15(5), when this Court has held that reservation in  unaided institutions is an unreasonable restriction that cannot  be saved by Article 19(6).      

164.    I answer this question in the affirmative.  The structure of  our Constitution permits fundamental rights, and even the  Golden Triangle of Articles 14, 19 and 21, to be abridged in  limited circumstances.  To say that subjecting Articles 19(1)(g) to  15(5) violates the basic structure per se is to ignore the examples  in which the most fundamental of rights is limited.  Article 16(4)  expressly limits the right to formal equality in 16(1), a specific  facet of Article 14.  In this light, Article 16(4) impliedly limits the  general right to formal equality in Article 14.  The right to equality  is expressed in the negative in 15(1): the State shall not  discriminate based on religion, race, caste, etc.  In other words,  the State shall treat citizens of different religions, races and  castes equally.  Like Article 16(4), Article 15(4) limits 15(1) --  another facet of Article 14 formal equality -- such that egalitarian  equality may be pursued.  Generally speaking, Articles 15(3) and  (4) and 16(4) allow the State to impose affirmative action  programs on the public sector.  Such provisions necessarily limit  the right to formal equality.   If the right to equality, considered  by some as a basic postulate of the Constitution, has been  limited, a fortiori Article 19(1)(g) can be too.   

165.    Along these lines, I could turn to Articles 31A, 31B and 31C  for further support.  Those Articles exclude challenges under  Articles 14 and 19.  In agreement with Dr. Dhavan’s submission,  I decline to rely on Articles 31A, 31B and 31C for support.  As  explained in Minerva Mills, the Court had previously upheld  Article 31A out of concern for stare decisis.  The Court never  approved of the exclusion of Articles 14 and 19 on a principled  basis.  Nor did it make a ruling as to whether the exclusion  violated the basic structure. (See: para  71-72 of Minerva Mills.   See also para 43 of Waman Rao, (1981) 2 SCC 362).      

166.       A basic structure challenge becomes an issue of  institutional competence.  Is it for the legislature to decide what  is a reasonable restriction under 19(1)(g) read with 19(6)?  Or is  it for the judiciary?  It is well established that the Parliament,  expressing the will of the people, may enact amendments to  overrule a judgment of this Court.  The First Parliament added  Article 15(4) to the Constitution to overrule State of Madras v.  Champakam Dorairajan, AIR 1951 SC 226.  Other examples  include the 77th Amendment, which overruled Sawhney I by  adding Article 16(4-A); the 81st Amendment further overruled  Sawhney I  by adding Art 16 (4-B); the 82nd Amendment  overruled S. Vinod Kumar & Another v. Union of India &  Another (1996) 6 SCC 580 by amending Article 335; and the  85th Amendment overruled Virpal Singh Chauhann and Ajit  Singh I by amending Article 16(4-A), (1995) 6 SCC 684 and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 48 of 78  

(1996) 2 SCC 715, respectively.  Nevertheless, the duty to  interpret the content of our fundamental rights has been left to  the Courts.  "The important point to be noted is that the content  of a right is defined by the Courts.  The final word on the content  of the right is of this Court." (Nagaraj at para 21). (emphasis  added).  While the Parliament may amend the Constitution, it  cannot alter the Constitution’s basic structure.  (See:  Kesavananda, Indira Nehru Gandhi (Election Case), Minerva  Mills, Sambamurthy, L. Chandra Kumar and Coelho).

7       Step Two:  Does Article 15(5) affect Article  19(1)(g) to such an extent that Article 19(1)(g)’s  original identity has been altered?

167.    In other words, does Art 15(5) in effect merely abridge or  completely abrogate Article 19(1)(g).  If the former, 15(5) stands.   If the latter, it falls.  As noted above, Coelho directs me to apply  the impact/rights test to determine whether the basic structure  has been violated. [See Coehlo at Conclusion (ii) at page 111].  Thus, my query is whether to consider the impact on the entire  constitutional framework, or to examine the effect on citizens  engaged in unaided education as an occupation.  I think it is the  latter.  I am not concerned here with those engaged in education  in aided institutions.  One is naturally subject to greater  regulation when one relies on Government funding.  (See:  Pai/Inamdar).  Individual liberty and freedom, as protected by  the Golden Triangle, must carry greater weight for those who set  off on their own and refuse Government money.   168. This brings me to the question as to how large I should  draw the circle when I ask who is affected by reservation in  unaided institutions. Justice Chandrachud provides that "[a]  total deprivation of fundamental rights, even in a limited area,  can amount to abrogation of fundamental right just as a partial  deprivation in every area can."  (See: Minerva Mills, para  59).   

169.    Freedom under Article 19 belongs to individual citizens.   Article 19(1)(g) provides that "all citizens shall have the right to  practice any profession, or to carry on any occupation, trade or  business."   The reference to "all citizens" means that each and  every individual citizen possesses Article 19 rights.  For the  impugned legislation to fall, it need not touch every sphere of  society.  If even one individual’s freedom has been curtailed, this  Court is duty bound to entertain his or her claim. It is he or she  who possesses the Article 19(1)(g) right to carry on an  occupation.   

170.      If 15(5) were implemented, the educator in unaided  institutions would still have students to educate. I use  "educator" in the broadest sense of the term and include  teachers, professors, lecturers, faculty, staff, administrators and  those who finance institutions.  Without one of the  aforementioned, the institution cannot function properly.

171.    Though affected by reservation, the educator still has a job.   His occupation remains intact.   Students will come.  Classes will  commence.  Marks will be distributed.  The greatest impact on  the educator is that neither he nor his institution will choose  whom to teach.  

172.    Almost half of the time (49.5%), the State would decide for  them. Selecting students or employees goes to the heart of an  organization’s autonomy.  The essence of an unaided educational  institution is the freedom to manage its affairs, according to Pai  at paragraph 55.  That is, "\005 the essential ingredients of the  management of the private institution include the recruiting [of]

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 49 of 78  

students and staff \005 ."    The same argument was framed in  similar terms (at para 54) in St. Stephen’s College (regulations  imposing standards of education upheld, because they "\005 do not  bear directly upon management although they may indirectly  affect it \005").  This Court has stated in Pai as clarified by  Inamdar that subjecting unaided institutions is an  unreasonable restriction.  As noted, Article 19(6) provides no safe  haven for reservations.   

173.      The Government-imposed selection of students in turn  has wide-ranging consequences for unaided institutions and  their educators.  I am required to examine the effect of the  impugned Amendment. At least four problems will likely arise:   (1)     academic standards suffer;  (2)     attracting and retaining good faculty becomes  more difficult;  

(3)     the incentive to establish a first rate unaided  institution is diminished;  

(4)     and ultimately the global reputation of our  unaided institutions is severely compromised.   

174.    First, once the State tells them whom to teach, standards of  excellence will suffer.  This is because those institutions will no  longer be able to admit the highest-scoring students.  As good as  some of our institutions are, they do not teach blank slates.  The  best universities are the best, in part, because they attract the  best students.  The same can be said for almost any  organization.  In the case of higher education, the universities  that admit the best will likely churn out the best.  The precise  extent to which the university made the best so good cannot be  qualified.  The point is that universities alone cannot produce  qualified job candidates.  Forced to admit students with lower  marks, the university’s final product will not be as strong. Once  the creamy is excluded, cut-off marks would likely drop  considerably in order to fill the 27% quota for non creamy layer  OBCs.  When the creamy layer is not removed, as in the case of  Tamil Nadu, the difference in cut off marks for the general and  backward categories may be insignificant.  (See para  408 of  Sawhney I).  Of course, the extent to which standards of  excellence would suffer would vary by institution.  As I mention  below, I urge the Government to set OBC cut off marks no lower  than 10 marks below that of the general category.  This is only a  recommendation,  however.  It may never be adopted.

175.    Second, reservations weaken the incentive to establish  unaided institutions:  if the State usurps the right to select  students, would one still spend the time and money to establish  an unaided institution?  The question is all the more relevant  today.  Counsel for petitioners posit that tomorrow’s knowledge  economy requires a well-educated populace. "Well-educated"  does not imply a string of degrees from less than taxing  institutions.  Rather, it means that one will possess the skills,  knowledge and creativity to compete globally.  Our unaided  institutions must remain places where these traits are refined.  

176.    Third, those inclined to teach the brightest students have  even less of a reason to leave private sector jobs for the teaching  profession or to join the profession in the first place.  "Brightest"  would come with an asterisk.  They would be the brightest  available under the Government’s reservation scheme.  These  potential teachers may ask themselves:  how will I teach a class  in which half the students are advanced relative to the other

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 50 of 78  

half?  In many institutions, the shortage of top-rate faculty will  only get worse.  Fourth, reservations may have a negative impact  on students seeking employment in the burgeoning knowledge  economy.  Recruiters have begun to trickle into campuses. They  hail from domestic as well as international entities, and they too  may take note of reservations in unaided institutions.  The effect  on educators, from the top down, would be felt.  For them, little  more than a semblance of occupation would remain.    177.    Given the dramatic effect that reservations would have on  educators, the unaided institutions in which they teach and,  consequently, society as a whole, Article 19(1)(g) has been more  than abridged.  When education is effectively nationalized,  freedom stands obliterated. The identity of the Constitution is  altered when unreasonable restrictions make a fundamental  right meaningless. The 93rd Amendment’s imposition of  reservation on unaided institutions has abrogated Article  19(1)(g), a basic feature of the Constitution, in violation of our  Constitution’s basic structure.  Therefore, I sever the 93rd Amendment’s reference to "unaided" institutions  as ultra vires of the Constitution.   

178.    The case law on severability asks the following question:  had the Parliament known its provision would be severed would  it still have passed the rest of the legislation? (See: R.M.D.  Chamarbaugwalla (supra)).   

179.    At page 943 of R.M.D. Chamarbaugwalla (supra), the  Court relied in part on The State of Bombay & Another v. F.N.  Balsara (1951) SCR 682, where the question at issue was  whether the Bombay Prohibition Act was valid:  Sections 12 and 13 of the Act imposed restrictions on  the possession, consumption and sale of liquor, which  had been defined in s. 2(24) of the Act as including "(a)  spirits of wine, methylated spirits, wine, beer, toddy  and all liquids consisting of or containing alcohol, and  (b) any other intoxicating substance which the  Provincial Government may, by notification in the  Official Gazette, declare to be liquor for the purposes  of this Act".  Certain medicinal and toilet preparations  had been declared liquor by notification issued by the  Government under s. 2(24)(b).  The Act was attacked  in its entirety as violative of the rights protected by  Art. 19(1)(f). But this Court held that the impugned  provisions were unreasonable and therefore void in so  far as medicinal and toilet preparations were  concerned, but valid as to the rest.  Then, the  contention was raised that "as the law purports to  authorise the imposition of a restriction on a  fundamental right in language wide enough to cover  restrictions both within and without the limits of  constitutionally permissible legislative action affecting  such right, it is not possible to uphold it even so far as  it may be applied within the constitutional limits, as it  is not severable".  In rejecting this contention, the  Court observed:

’These items being thus treated  separately by the legislature itself and being  severable, and it is not being contended, in  view of the directive principles of State  policy regarding prohibition, that the  restrictions imposed upon the right to  possess or sell or buy or consume or use  those categories of properties are

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 51 of 78  

unreasonable, the impugned sections must  be held valid so far as these categories are  concerned.’

This decision is clear authority that the  principle of severability is applicable even  when Act’s invalidity arises by reason of its  contravention of constitutional limitations."

180.    At page 944, the court in R.M.D. Chamarbaugwalla   sought guidance from American case law on severability: "In discussing the effect of a severability clause,  Brandies, J. observed in Dorchy v. State of Kansas  (1924) 264 US 286 that it "provides a rule of  construction, which may sometimes aid in  determining that intent.  But it is an aid merely; not  an inexorable command".  The weight to be attached  to a classification of subjects made in the statute itself  cannot, in our opinion, be greater than that of a  severability clause."

181. The court in R.M.D Chambarbaugwalla went on to cite  Patanjali Sastri, C.J., in The State of Bombay & Another v.  The United Motors (India) Ltd. & Others (1953) SCR 1069:  "dealing with the contention that a law authorizing the  imposition of a tax on sales must be declared to be  wholly void because it was bad in part as  transgressing constitutional limits observed:

’It is a sound rule to extend severability to  include separability in enforcement in such cases, and  we are of opinion that the principle should be applied  in dealing with taxing statutes in this country.’"

182. Here, I believe the Parliament would have gone forward  without unaided institutions.  While some Members of   Parliament sought to overrule Pai and Inamdar, the  Parliament’s actions speak louder than its words.  Once it had  passed Article 15(5), it limited itself to imposing greater  reservations on aided institutions. Had unaided institutions been  the Parliament’s priority, it could have included them in the  Reservation Act.  It seems that the Parliament’s intent is to pass  as much reservation as possible. That would explain why it has  gone forward with 27% reservation for OBCs without confirming  that at least 27% of the population is OBC. For these reasons, I  conclude that had the Parliament known that unaided  institutions were going to be severed, it would have nevertheless  carried out its reservation scheme for aided institutions.  

4.      The Casteless and Classless Society versus  Caste-based Reservation:

183.    The caste system is peculiar to this country.   Perhaps  the entire society has been divided on the basis of caste.  This  social problem can be compared to some extent with that of  American society.  In the U.S., the problem of racial  discrimination has existed for centuries. The cases of  affirmative action decided in the United States are relevant.  They show us how that society has dealt with the problem of  racial discrimination. At the outset, I would like to make it  clear that decisions of foreign countries are not binding on  Indian courts.  Indian Courts have not adopted American

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 52 of 78  

standards of review.  But the judgments delivered by U.S.  courts on affirmative action have great persuasive value and  they may provide broad guidelines as to how we should tackle  our prevailing condition.  A large number of English laws have  been inherited by India and America.  English and American  cases are frequently cited by our courts.  We need to keep our  window open and permit the light of knowledge to enter from  any source.  In this light, I shall refer to some US decisions.

7       Affirmative Action cases and standards of review  from the United States:

184.    In 1978, Regents of the University of California v.  Bakke put an end to reservation ("quotas") in education  (reserving 16 out of 100 seats for minorities in medical school  deemed unconstitutional). (438 U.S. 265).  Justice Powell’s  concurring judgment is considered the key opinion in the case.          185.    Justice Powell concluded that diversity was a compelling  State interest that could withstand strict scrutiny. Relying on  Bakke, the court later reaffirmed preferential treatment in  college admissions as a means to ensure diversity in the  classroom \026 racial diversity being just one among many types of  diversity ("overcoming personal adversity and family hardship"  was another form of diversity), (See: Grutter v. Bollinger, 539  U. S. 306, 338 (2003)). The Grutter Case insisted that  universities make an individualized evaluation of a student  seeking admission, rather than one that mechanically accepted  or rejected students on the basis of race.  (Grutter at 337).  Such  an evaluation would ensure that race was only considered as one  type of diversity, rather than a pretext for achieving racial  balance.  Quotas could not be covertly installed in the name of  diversity.  This reasoning led the court to strike down an  admission scheme that automatically assigned more points to  minority students than to residents of the State or to athletes, for  example.  (Gratz v. Bollinger, 539 U.S. 244, 270).  

186.    Justice O’Conner for the majority in Grutter came to a very  significant conclusion. She suggested that there was time limit  on preferential treatment for certain races as a means of  promoting diversity.  Justice O’Connor stated: "we expect that 25  years from now, the use of racial preferences will no longer be  necessary to further the interest approved today."

187.    In Parents Involved in Community Schools v. Seattle  School District No.1 et al, reported in 168 Lawyers Ed. 2d 508  & 517 (2007), school districts used a student’s race to assign  that student to a particular school within the district.  In Seattle,  this was done to achieve racial balance amongst the district’s  schools.   One school should not be overwhelmingly white,  another all non-white.  Unlike the system approved in Grutter,  race was not just one among many types of diversity that was  considered by the district in assigning students.  Seattle at 525.   Instead, it was, at times, the decisive factor. The court held the  programmes unconstitutional. Chief Justice Roberts summed up  the plurality’s view on racial classifications:  "the way to stop  discrimination on the basis of race is to stop discriminating on  the basis of race."

188.    This was far from a complete victory for the plurality.  In his  concurring opinion, Justice Kennedy found the programmes  unconstitutional.  However, he would not go so far as to treat all  racial balancing as per se unconstitutional.  He considered the  plurality opinion to represent "\005 an all-too-unyielding insistence  that race cannot be a factor in instances, when, in [his] view, it

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 53 of 78  

may be taken into account." (Seattle at 565).

189.    Justice Kennedy found that schools have a compelling  interest to prevent racial isolation or achieve a diverse student  population. (Seattle at 572).   Like Justice Powell’s concurring  opinion in Bakke, Justice Kennedy’s concurring opinion leaves  the door open for further use of racial classification for so-called  benign purposes in school admissions.    

190.    More important than any one case are the standards by  which the court scrutinized discriminatory legislation. Of course,  Indian courts have not accepted the principles of narrow  tailoring and strict scrutiny. Nevertheless, we should seek  guidance from any corner and permit the light from any quarter.  

191.    Whenever legislation is challenged as unconstitutional,  courts must ask themselves how much deference they will give to  the legislature. The answer is that it depends on the nature of  the impugned legislation.  The United States Supreme Court has  evolved three standards of review for Government action that  treats different people differently.  The first is the rational basis  standard. When the classification is rationally related to any  legitimate Government purpose, the court defers to the State and  upholds the classification.  This is the most deferential of the  three standards. The second standard is intermediate scrutiny,  which is less deferential to Government. Here, the court asks  whether the classification is substantially related to any  important Government purpose.  The third and highest level of  review is known as strict scrutiny, whereby the court requires  that the classification are narrowly tailored to a compelling state  interest. Strict scrutiny test is the least deferential to  Government.  

192.    Of the classifications on which there is case law, the one  that most closely resembles caste is race.  This is because both  are immutable traits.  They are used by the powerful, or those  seeking power, to justify oppression. Racism and casteism have  long haunted both Nations.  In the United States, race raises red  flags.  It is often, though not always, reviewed under strict  scrutiny:  "Government action dividing people by race is  inherently suspect because such classifications promote ’notions  of racial inferiority and lead to a politics of racial hostility,’  (Croson at 102 L. Ed. 2d 854) and "racial classifications are  simply too pernicious to permit any but the most exact  connection between the justification and the classification."   (Gratz v. Bollinger, 539 U.S. 244, 270 (quoting J. Stevens’  dissent in Fullilove v. Klutznick, 448 U.S. 448, 537)).   

193.    Legislation whose text does not classify based on race is  considered facially neutral.  When facially neutral legislation has  a disproportionate impact on a particular race, American courts  ask whether it was passed with an intention to discriminate.  If  no intention is found, the rational basis test applies. [See:  Hernandez v New York, 500 U.S. 352 (1991) (quoting from  Arlington Heights v. Metropolitan Housing Development  Corp., 429 U.S. 252, 264-265 (1977)]: "A court addressing this issue must keep in mind the  fundamental principle that "official action will not be  held unconstitutional solely because it results in a  racially disproportionate impact. . . . Proof of racially  discriminatory intent or purpose is required to show a  violation of the Equal Protection Clause."  

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 54 of 78  

See also Washington v. Davis, 426 U.S. 229, 239 (1976).  The  exception to this rule is Yick Wo v. Hopkins, 118 U.S. 356  (1886), where extreme disproportionate impact warranted greater  scrutiny.  Where there is disproportionate impact and  discriminatory intention, then even facially neutral legislation  triggers strict scrutiny. However, in this framework, affirmative  action classifies on the face of legislation and automatically gets  strict scrutiny treatment.   194.    As I have observed, American courts carefully review  racial  classifications.   Given that the 93rd Amendment on its face  discriminates against general category students, we should give  it careful scrutiny. The Article 14 right to formal equality  deserves as much.  If 49.5% caste-based reservation was upheld  in Sawhney I for Government employment, it follows that 49.5%  caste-based reservation is permitted in aided educational  institutions.  While I compelled by Sawhney I to hold that the  impugned legislation passes careful scrutiny with respect to  reservation in aided institutions, its implementation is  contingent upon the directions given in this opinion.   

7   The Framers’ ultimate goal: the Classless and  Casteless society:  

195.    Did the original Framers intend to provide caste-based  reservation in education to the lower classes?  No, the original  Framers did not.  Soon after the Constitution was adopted, the  very same Framers acted quickly to permit reservation for  SC/ST/SEBCs in education by adding Art 15(4), vide the First  Amendment, to the Constitution.  In doing so, they deviated from  their own goal \026 the casteless society would have to wait.  In  Sawhney I, the Court upheld this decision and bound us to a  certain degree on this point.  I have no choice but to uphold the  impugned legislation by which the Government may still identify  SEBCs, in part, by using caste.    

196.    Caste-based reservation was initially a temporary measure  that was to only last for ten years.  The original Framers  considered caste-based reservation a necessary evil.  Thus, they  limited it in time.  Extending this time limit has only exacerbated  casteism.   

197.    The Parliamentary Debates clearly reflect that the ultimate  aim of reservation was a casteless and classless society for India.   To this end, reservation should only be given for a specific period  of time.  If these reservations or benefits have to continue  perpetually, then the basic goal of achieving casteless and  classless society would never be accomplished.    

198.    The need for caste-based reservation has "worn out" over  time.  Evidence for the proposition that caste is no longer a valid  determinant of one’s ability to move up in society is strong.  More  than the way society judges you based on caste, the relevant  question is whether caste precludes you from rising.  If caste  doesn’t, then what does?  The answer is simple:  money.   

199.    Income is a much better determinant of educational  achievement than caste.  The table below was derived from the  Reproductive Child and Health Survey, 2002-2004 (600,000  households surveyed).   Average years of schooling:                             SC          OBC            Upper caste Hindu Poorest Rural Quintile     1.6         1.7         2.2   Richest Rural Quintile     5.1         5.5         6.1  

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 55 of 78  

For the upper caste, caste barely helps.  These numbers  indicate that it is one’s income, not caste, that makes a real  difference in determining how much schooling one completes.   Therefore, if income be the bar to education, economic criteria  should be the means by which we identify beneficiaries of special  provisions under Article 15(5). 7       No original intent to provide caste-based quotas  in education:  

200.    As drafters, the original Framers were prolific.  They made  our Constitution the world’s longest \026 removing as many doubts  as possible and in that way limiting the Court’s role.  The  Constitution contains a number of Articles that reserve seats for  various groups.  The original Framers, however, imposed various  limitations on reservation.  These limitations provide insight into  the original Framers’ compromise between formal and  substantial/egalitarian equality.   

201.    Reservation is only provided for certain groups (SC, ST and  backward classes) in certain areas of the public sector. (See:  Article 16(4) (reservation of posts in Government service for  backward classes), Article 330 (reservation of seats for SC and ST  in the Lok Sabha) and Article 332 (reservation of seats for SC and  ST in Legislative Assemblies of the States)).  

202.    Dr Ambedkar stated that "the report of the Minorities  Committee provided that all minorities should have two benefits  or privileges, namely representation in the legislatures and  representation in the services."  (emphasis added) (See: CAD, 26  August 1949, vol. 9, p. 702).  Given this limitation, we must take  extra caution when reviewing the constitutionality of adding  additional benefits.   

203.    Article 334 fixed a 10-year time limit on the legislative  reservations provided in Articles 330 and 332. In the discussion  regarding draft Article 292, Sardar Hukam Singh said, "we are  accepting this reservation of seats [in legislative bodies] as an  unavoidable evil for the present, thought it is only for the  Scheduled Castes and scheduled tribes."  (See: p. 645,  Constituent Assembly Debates, Vol. 9, 24 August 1949).   

204.    Shri Singh’s comment sums up the limitations on legislative  reservation.  OBC/SEBCs were excluded, and reservations were  limited in time.  Unlike the legislative reservations, Article 16(4)  contains no fixed time limit.  It does, however, preclude the State  from making reservations in Government service if the backward  classes are adequately represented.   The idea is that, at some  point in time, the backward classes would no longer need  reservations.   

205.    In discussing draft Article 10 (Article 16(4) of the  Constitution), Pandit Hirday Nath Kunzru stated:  "We are all aware that when the Report of the  Minorities Committee was considered by the House,  the entire House was anxious that reservations of  whatever kind should be done away with as quickly  as possible. \005 whatever protection might be  considered necessary now, should be granted  temporarily only, so that the population of the county  might become fully integrated, and no community or  class might be tempted to claim special advantage for  itself."  (CAD Vol.7 dated 30th  November 1948, p.  681)" (emphasis supplied)

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 56 of 78  

Instead of moving to remove reservations, the Parliament has  gone the other way by extending time limits and adding  beneficiaries.  Article 15(5) is just the latest example.     206.    While the original Framers went out of their way to put  SC/ST in the Parliament and State Assemblies and  SC/ST/backward classes in Government service, they did not  reserve a single classroom seat. Instead, Article 29(2) prohibited  caste-based discrimination in admissions, and Article 15(2)  prohibited caste-based discrimination in general.  Education was  to remain reservation-free.  207.    When preferential treatment was given in regard to  education, it was limited to educational grants.  There was no  question of doling out reservations for special groups.  Article  337 provided educational grants to Anglo-Indian schools for the  benefit of that community.  In the spirit of conciliation, the  original Framers allowed the grants that were already going to  those schools to continue for 10 years.  (See: p 936-941 of  Constituent Assembly Debates, Vol. 8 1949).   

208.    Rather than advocate for reservation, the original Framers  preferred free/compulsory education and scholarships. In the  debate on Draft Article 294, Shri Brajeshwar Prasad stated that  reservation in legislative bodies would fail to uplift SC/ST.   Instead, he suggested that: "it should be laid down clearly in express terms that \005  free education shall be imparted to them. \005 [and] for  the tribals and Harijans provision must be made in  the constitution that free agricultural lands should be  given to them.  If we cannot give any one of these, I am  quite clear in my own mind that by giving them a few  seats here and there, their economic condition and  their educational level will in no way be improved.    (CAD, Vol. 9, 24 August 1948, pages 663-664)"                             (emphasis supplied) 209. Shri Prasad’s comments are relevant because he recognizes  the limited effect of reservation.  Rather than reserve seats for a  few, he advocated for free education for all.  

210.    In the debate regarding Article 15 of the Constitution, Syed  Abdur Rouf summed up the essence of the provision: "The  intention of this article is to prohibit discrimination against  citizens."  (See: p. 650 of CAD, Vol.7, 29 Nov 1948).  This  intention was only qualified for women and children.  In fact, the  original Framers rejected an amendment that would have  watered down Article 15’s prohibition against discrimination.   Prof. K. T. Shah sought special protection for SC/ST.  He wanted  to ensure that Article 15 would allow SC/ST to benefit from  affirmative action.  To this end, he introduced an amendment  that would have altered 15(3) to read as follows:  "Nothing in this  article shall prevent the State from making any special provision  for women and children or for the Scheduled Castes or backward  tribes, for their advantage, safeguard or betterment." (Shah  amendment in italics).  Prof. Shah proposed the amendment: "\005 so that any special discrimination in favour of  them may not be regarded as violating the basic  principles of equality for all classes of citizens in the  country.  They need and must be given for some time  to come at any rate, special treatment in regard to  education, in regard to opportunity for employment,  and in many other cases where their present  inequality, the present backwardness is only a  hindrance to the rapid development of the country. \005  equality is not to be equality of name only or on paper

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 57 of 78  

only, but equality of fact.  [pages 655-656 CAD, Vol. 7,  29 November 1948]." (emphasis supplied)  

211.    Relevant to the instant case, he explains that his  amendment would allow the State to provide SC/ST special  treatment in regard to education.  In other words, Prof. Shah  effectively wanted the equivalent to 15(4) and 15(5) but did not  get it.  His amendment was negated. (p. 664 of Constituent  Assembly Debates, Vol. 7, 29 November, 1948).  

212.    Dr. Ambedkar disagreed with Prof. Shah on the limited  ground that it would have given States the green light to  segregate SC/ST from general category students:   "The object which all of us have in mind is that the  Scheduled Castes and Scheduled tribes should not be  segregated from the general public.  For instance,  none of us, I think, would like that a separate school  should be established for the Scheduled Castes \005 If  these words are added, it will probably give a handle  for a State to say, ’Well, we are making special  provision for the Scheduled Castes.’ To my mind they  can safely say so by taking shelter under the article if  it is amended in the manner the Professor wants it."  [page 661, CAD, Vol. 7, 29 November 1948].   

213.    Dr Ambedkar did not reject the Shah amendment because  it would have allowed the States to implement affirmative action  for SC/ST in education.  He was concerned that special  provisions would lead to negative discriminatory action in the  guise of affirmative action.  Whether or not this would have  happened is unclear, but his concern seems well placed.  A  similar problem arises today, when the general category looks  down upon or questions the qualifications of SC/ST/OBC  professionals.  Though the individual may have earned  admission on marks alone, others may presume that reservation  was a factor.  Such a belief, regardless of veracity, cannot bode  well for the career prospects of SC/ST/SEBCs.  Irrespective of  the reason for which the Shah amendment was rejected, the  original Framers contemplated special provisions for SC/ST that  would have included education.  At the end of the day, they  decided that only women and children should benefit from  discriminatory provisions.   

214.    Article 15(4) and the Shah amendment only differ in that  Article 15(4) provides special provisions to SC/ST and SEBC,  while Shah only gave the same to SC/ST.  Of course, if the  original Framers rejected special provisions for SC/ST, they  would have done the same with respect to SEBC/SC/ST.  In  sum, by limiting Article 15(3) to women and children and  rejecting an amendment equivalent to Article 15(4), the original  Framers’ intent was clear:  no special provisions for backward  classes (SEBC/SC/ST) in education were to dilute Article 15(1)’s  prohibition against discrimination based on caste.     

215.    In the instant case, the Union of India argued that Article  15(4), the First Amendment to the Constitution, reflects the  intent of the original Framers because it was passed by the same  members that drafted the original Constitution.  In the  Parliamentary debates in 1951, Prime Minister Nehru argued in  favour amending the Constitution.  He and other Framers, as  distinguished from the original Framers who had drafted the  original Constitution, did not hide their disapproval of  Champakam Dorairajan (supra).  Article 15(4) was to overturn

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 58 of 78  

that judgment.  To justify Article 15(4), which represented a  dramatic departure from equality as envisaged in Articles 15(2),  (3) and 29(2), Pandit Nehru said that Article 15(4) would give  effect to "what \005 was really intended or should be intended." Yet,  the original Framers, as explained above, had no intention of  providing special provisions for SC/ST in education (and a  fortiori if not for them, nor for SEBC).  What "should be intended"  is a far cry from what they specifically enacted and specifically  rejected.  It follows that Article 15(4) deviated from the original  Framers’ original intent.  

7       Limitations on Reservation must be seen in the  light of providing a casteless society:  

216.    Seeking to remove the blight created by caste, the original  Framers were social reformers.   "The social revolution meant ’to  get (India) out of the medievalism based on birth, religion,  custom, and community and reconstruct her social structure on  modern foundations of law, individual merit, and secular  education’." (See: Granville Austin, Indian Constitution:  Cornerstone of a Nation at page 26, 1st Ed, 1972, Oxford  University press: (quoting from:  K. Santhanam (an Assembly  member) in Magazine Section, The Hindustan Times New Delhi, 8  September 1946).  

217.    India’s first President Rajendra Prasad assured the Nation  that the assembly and the Government’s aim was to "end poverty  and squalor \005 to abolish distinction and exploitation and to  ensure decent conditions of living". [Cornerstone at page 27, fn. 5  (quoting from Prasad in CAD V, I, 2)].  The original Framers took  steps to abolish caste-based distinction.  For example, they  outlawed untouchability in Article 17, promised all equal  treatment before the law in Article 14, prohibited discrimination  based on caste in 15(1) and 29(2) and selected joint over separate  electorates.  The legislative reservations for SC/ST were an  exception to overarching goal of creating a casteless society; that  is why they were set to expire in 1960.  With respect to  electorates, Granville Austin explains: "Desiring above all to promote national unity,  members of the Constitutional Assembly rejected  these devices by substituting direct elections for  indirect in lower houses, by rejecting separate  electorates in favour of joint electorates and by  abolishing \005  except for Scheduled Castes and Tribes  \005 reserved seats.  The Assembly believed, in Jenning’s  words, that ’to recognize communal claims . . . is to  strengthen communalism’.  [see: Austin, p. 323 of  Cornerstone.]" (emphasis added)   The same can be said today.  Reservation based on caste  strengthens communalism.  Non-SEBCs naturally seek SEBC  status so that they may capture SEBC benefits.  Upper castes,  denied a seat, harbor ill will against lower castes who gain  admission (whether it was by merit or not).   

218.    These feelings are the basis for discriminatory action. On  16 September 2006, The Hindu reported:  "While medical  students at the All India Institute of Medical Sciences (AIIMS)  have complained of caste discrimination, now doctors from the  reserved category at the Guru Teg Bahadur Hospital (GTBH) too  have written about ’biased attitude towards reserved category  junior residents’."  

219.    Discrimination is not the only problem exacerbated by  reservation.  Given that reserved category students gain

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 59 of 78  

admission with lower marks, it also stands to reason that they  would exhibit less confidence in their studies when pitted against  the general category.  In her work on the unintended  consequences of preferential treatment for minorities in college  admissions in the United States, Marie Gryphon, a policy analyst  for the Cato Institute (Washington, D.C.), writes: "\005recent research shows that affirmative action  impedes academic achievement by undermining  minority students’ confidence. \005  

Preferences harm students’ self-images, and this  harm has practical costs in terms of grades and  graduation rates.  Both studies build on earlier work  by Stanford University sociologist Claude Steele, who  coined the term "stereotype threat" to refer to the  decline in performance suffered by members of  groups who become afraid of confirming negative  group stereotypes.  Steele tested his theory by giving  standardized exams to groups of white and African- American undergraduates at Stanford University.  

Testers told some groups that the exam evaluated  psychological factors related to testing, and that it  was not a measure of ability.  They told other groups  that the exam measured their intellectual abilities,  and in some instances had them indicate their race  on the exam.  The African-American students who  had been implicitly "threatened" with the stereotype  of minority academic inferiority did markedly worse  on the exam than black students in the other groups.   \005

Even minority students who do not need preferences  respond to an environment characterized by the  relative academic weakness of minorities by worrying  about confirming a negative stereotype.   [Researchers] also determined that vulnerability to  Claude Steel’s stereotype threat is related to lower  grades earned by minority students." (See: p. 9-10  (internal citations omitted), Executive Summary, No.  540, April 6, 2005, "The Affirmative Action Myth.")   

The point is that affirmative action produces consequences that  may outweigh its supposed benefits.   

220.    To rid ourselves of reservation and its unintended  consequences like casteism, we must focus our efforts on  strengthening education at the primary and secondary level.   Only then will we achieve the casteless/classless society the  original Framers envisaged.  And only then will there be reason  to scrap reservation altogether.   

221.    In his speeches to the Parliament regarding 15(4), Prime  Minister Nehru could not have been clearer:  "After all the whole  purpose of the Constitution, as proclaimed in the Directive  Principles is to move towards what I may say a casteless and  classless society" \005 and in an attempt to achieve an egalitarian  society, "\005 we want to put an end to all those infinite divisions  that have arisen in our social life; I am referring to the caste  system and other religious divisions, call them by whatever name  you like." (emphasis added).   [Parliamentary Debates on 13  June, 1951 and 29 May, 1951 respectively]. 7       If reservation is allowed, then how can a  casteless society still be realized?

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 60 of 78  

222.    This raises the issue of how beneficiaries of special  provisions are to be classified.   As mentioned above, Mr Salve  and other learned counsel for petitioners pleaded that the  Government cannot go forward with the Reservation Act when it  has yet to identify its beneficiaries. No one can say with certainty  what percentage of the population is OBC, yet the Government is  content with giving OBCs 27% of the seats in universities. We do  not know what proportion of the population is OBC because the  census does not count OBCs. It has been Central Government  policy practically since Independence to avoid the question.   Eminent American Professor Mark Galanter writes that the  absence of caste data was the deliberate policy of Sardar Patel,  the Home Minister until 1950. Mr. Patel  rejected caste  tabulation as a device to confirm the British theory that India  was a caste-ridden country and as an expedient "to meet the  needs of administrative measures dependent on caste division"  (See: Professor Marc Galanter, (1978)"Who are the OBCs?"  An  Introduction to a Constitutional Puzzle. 13 Economic and Political  Weekly 1812 at page 1824 at footnote 78 (quoting from Mr.  Patel’s 1950 address to the census conference).  Taking an OBC  census is horrifying because it encourages Government to enact  policy on the basis of caste. Doing so only furthers the caste- divide, contrary to our constitutional aim.  This has been  recognized since 1950. If the Central Governments have  consistently rejected an OBC census because it would promote  casteism, how can this Central Government make reservation on  the same ground?  It is one thing to ask a citizen his caste, it is  even worse to grant or reject his college application on that  ground.  The Government is between a rock and a hard place.  The only way out is to use exclusively economic criteria. This  would negate the need for a caste-based census while ensuring  that reservation go to the poor, the group for which the  Reservation Act was purportedly passed.  The Parliament  eventually settled on enabling States to provide provisions for  "socially and educationally backward classes."  Article 15(4). This  Court has interpreted "backward classes" to include caste as one  of the criteria of classification under Article 16(4).  Sahwney I,  para 859(3)(b).  In other words, caste falls under class according  to Sawheny I, para 859(3)(a).   7       Economic criteria allows for reservation on  grounds  other than caste:

223.    Despite the goal of a casteless society, the Parliament  allowed for caste-based reservation and, consequently, caste- based discrimination.  Ultimately, they subjected Articles 29(2)  and Article 15 to Article 15(4).  Dr. Ambedkar saw no choice but  to discriminate based on caste, stating that "if you make a  reservation in favour of what are called backward classes which  are nothing else but collection of certain castes, those who are  excluded are persons who belong to certain castes. Therefore, in  the circumstances of this country, it is impossible to avoid  reservation without excluding some people who have got a caste."  

224.    In draft article 10, Dr. Ambedkar tried to reconcile the view  of those who were in favour of equality of opportunity with the  demand of certain communities who remained neglected and  who wanted to have a share in the administration.  In doing so,  he was clear that the concept of equality, which is the very basis  of democracy, should not be violated.  Part of his compromise  meant that reservation had to remain reasonable.  Explaining his  views on the matter, he said: "Supposing, for instance, we were to concede in full  the demand of those communities who have not been  so far employed in the public services to the fullest  extent, what would really happen is, we shall be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 61 of 78  

completely destroying the first proposition upon which  we are all agreed, namely, that there shall be an  equality of opportunity.  Let me give an illustration.   Supposing, for instance, reservations were made for a  community or a collection of communities, the total of  which came to something like 70 per cent of the total  posts under the State and only 30 per cent are  retained as the unreserved.  Could anybody say that  the reservation of 30 per cent as open to general  competition would be satisfactory from the point of  view of giving effect to the first principle, namely, that  there shall be equality of opportunity?  It cannot be in  my judgment.  Therefore the seats to be reserved, if  reservation is to be consistent with sub-clause (1) of  Article 10, must be confined to a minority of seats.  (see CAD, Vol.7,  30th November, 1948 pp 701-02)."

225.    On 17th November, 1949, the Constituent Assembly began  the third reading of the Constitution Bill.  While replying to the  debate, Dr. Ambedkar stated: "This anxiety is deepened by the realization of the  fact that in addition to our old enemies in the form of  castes and creeds we are going to have many political  parties with diverse and opposing political creeds.   Will Indians place the country above their creed or will  they place creed above country?  I do not know.  But  this much is certain that if the parties place creed  above country, our independence will be put in  jeopardy a second time and probably be lost forever.   This eventuality we must all resolutely guard against.   We must be determined to defend our independence  with the last drop of our blood. (See: CAD on 25th  November, 1949 pp 977-978)"  (emphasis supplied).   

226.    Exhibiting tunnel vision, our First Parliament failed to look  beyond caste.  Another option was available, an option that  adhered to the original Framers’ ideals.  Contrary to Dr  Ambedkar’s view, it was possible to provide reservation to  backward classes without discriminating based on caste.   Economic criteria target the poorest of the poor, irrespective of  caste.  As noted, these criteria also simultaneously remove the  creamy layer.  

227.    One of the other prominent advocates of reservation later  realised that the policy did more harm than good.  Prime  Minister Nehru wrote the following letter to the Chief Ministers  on June 27th, 1961:   "I have referred above to efficiency and to our getting  out of our traditional ruts. This necessitates our  getting out of the old habit of reservations and  particular privileges being given to this caste or that  group. The recent meeting we held here, at which the  chief ministers were present, to consider national  integration, laid down that help should be given on  economic considerations and not on caste. It is true  that we are tied up with certain rules and conventions  about helping Scheduled Castes and Tribes. They  deserve help but, even so, I dislike any kind of  reservation, more particularly in service. I react  strongly against anything which leads to inefficiency  and second-rate standards. I want my country to be a  first class country in everything. The moment we  encourage the second-rate, we are lost.  

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 62 of 78  

The only real way to help a backward group is to give  opportunities for good education. This includes  technical education, which is becoming more and  more important. Everything else is provision of some  kind of crutches which do not add to the strength or  health of the body. We have made recently two  decisions which are very important: one is, universal  free elementary education, that is the base; and the  second is scholarships on a very wide scale at every  grade of education to bright boys and girls, and this  applies not merely to literary education, but, much  more so, to technical, scientific and medical training. I  lay stress on bright and able boys and girls. I have no  doubt that there is a vast reservoir of potential talent  in this country if only we can give it opportunity.   But if we go in for reservations on communal and  caste basis, we swamp the bright and able people and  remain second-rate or third-rate. I am grieved to learn  of how far this business of reservation has gone based  on communal consideration. It has amazed me to  learn that even promotions are based sometimes on  communal and caste considerations. This way lies not  only folly, but disaster. Let’s help the backward groups  by all means, but never at the cost of efficiency. How  are we going to build our public sector or indeed any  sector with second-rate people?"

7       Upon expiry of the time limit, the criteria for  identifying OBCs should only be economic in  nature because our ultimate aim is to establish a  casteless and classless society

228.    I am not the first to propose economic criteria as the  exclusive means of identifying SEBCs.  In Vasanth Kumar’s  case, counsel sought an opinion from the Court regarding  reservations in employment and education for SC/STs and  OBCs. The opinion would guide the Karnataka Government in  implementing reservation. [para 1]. It serves our purposes to  review their thorough analysis of the identification issue.   

229.    The Court in Vasanth Kumar observed as under: "24. ... No one is left in any doubt that the future  Indian Society was to be casteless and classless.  Pandit Jawaharlal Nehru the first Prime Minister of  India said that Mahatma Gandhi has shaken the  foundations of caste and the masses have been  powerfully affected. But an even greater power than  Gandhi is at work, the conditions of modern life \027 and  it seems at last this hoary and tenacious ralic of past  times must die. (Discovery of India by Pandit Nehru,  Ch VI, p 234) Mahatma Gandhi, the Father of the  Nation said, "The caste system as we know is an  anachronism. It must go if both Hinduism and India  are to live and grow from day to day". In its onward  march towards realising the constitutional goal, every  attempt has to be made to destroy caste stratification.  Article 38(2) enjoins the State to strive to minimise the  inequality in income and endeavour to eliminate  inequalities in status, facilities and opportunities, not  only amongst individuals but also amongst groups of  people residing in different areas or engaged in  different vocations. Article 46 enjoins duty to promote  with special care the educational and economic  interests of the weaker sections of the people, and in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 63 of 78  

particular, of the Scheduled Castes and Scheduled  Tribes, and shall protect them from social injustice  and all forms of exploitation. Continued retention of  the division of the society into various castes  simultaneously introduces inequality of status. And  this inequality in status is largely responsible for  retaining inequality in facilities and opportunities,  ultimately resulting in bringing into existence an  economically depressed class far transcending caste  structure and caste barrier. The society therefore, was  to be classless casteless society. In order to set up  such a society, steps have to be taken to weaken and  progressively eliminate caste structure. Unfortunately,  the movement is in the reverse gear. Caste  stratification has become more rigid to some extent,  and where concessions and preferred treatment  schemes are introduced for economically  disadvantaged classes, identifiable by caste label, the  caste structure unfortunately received a fresh lease of  life. In fact there is a mad rush for being recognised as  belonging to a caste which by its nomenclature would  be included in the list of socially and educationally  backward classes. ... Rane Commission took note of  the fact that there was an organised effort for being  considered socially and educationally backward  castes. Rane Commission recalled the observations in  Balaji case [(1963) Supp (1) SCR 439] that "Social  backwardness is on the ultimate analysis the result of  poverty to a very large extent". \005 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. \005"  

230.    In this judgment, this Court further observed that if State  patronage for preferred treatment accepts caste as the only  insignia for determining social and educational backwardness,  the danger looms large that this approach alone would legitimize  and perpetuate the caste system. Caste-based reservation does  not go well with our secular character as enshrined in the  Preamble to the Constitution.  

231.    That said, the majority in Sawhney I later sided with  Justice Chinnappa Reddy’s view:  caste can be a factor in  identifying SEBCs.  This view should not hold the day forever.   Eventually, the words of Justice Desai should be revived.   

232.    Justice Desai wanted to achieve two goals with one fell  swoop of the pen.  Had his opinion prevailed (1) the creamy layer  would have been removed ensuring that the truly deserving get  the benefit and (2) the casteless society would have been  furthered.  To these ends, he would have applied economic  criteria to remove the creamy layer and simultaneously rid  reservation of caste.   233.    He explained that poverty is the bane of Indian society.   Given rampant poverty, it comes as no surprise that "\005 the bank  balance, the property holding and the money power determine  the social status of the individual and guarantee the  opportunities to rise to the top echelon."  [Vasanth Kumar at  para 27].  As a result, the way "\005wealth is acquired has lost  significance."  And "upper caste does not enjoy the status or  respect \005 any more even in rural areas what to speak of highly  westernised urban society."  Finally, his Lordship recognized that  creamy layer exclusion is inherently linked with identification  based on economic criteria, i.e., "occupation, income and land

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 64 of 78  

holdings":    "30. \005 If economic criterion for compensatory  discrimination or affirmative action is accepted, it  would strike at the root cause of social and  educational backwardness, and simultaneously take a  vital step in the direction of destruction of caste  structure which in turn would advance the secular  character of the Nation. This approach seeks to  translate into reality the twin constitutional goals:  one, to strike at the perpetuation of the caste  stratification of the Indian Society so as to arrest  progressive movement and to take a firm step towards  establishing a casteless society; and two, to  progressively eliminate poverty by giving an  opportunity to the disadvantaged sections of the  society to raise their position and be part of the  mainstream of life which means eradication of  poverty."

234.    Economic criteria must include occupation and land  holdings because income alone is insufficient.  To decrease the  likelihood that the undeserving evade identification, it is wise to  employ more than one criterion.   

235.    In Vasanth Kumar, Justice Chinnappa Reddy departs from  Justice Desai’s use of economic criteria as the sole means of  identification.  Nevertheless, he recognizes that " \005 attainment of  economic equality is the final and only solution to the besetting  problems."  In Justice Chinnappa Reddy’s opinion, it is easier to  classify based on caste than economic criteria:   "80:    Class poverty, not individual poverty, is therefore  the primary test. Other ancillary tests are the way of  life, the standard of living, the place in the social  hierarchy, the habits and customs, etc. etc. Despite  individual exceptions, it may be possible and easy to  identify socially backwardness with reference to caste,  with reference to residence, with reference to  occupation or some other dominant feature.  Notwithstanding our antipathy to caste and sub- regionalism, these are facts of life which cannot be  wished away. If they reflect poverty which is the  primary source of social and educational  backwardness, they must be recognised for what they  are along with other less primary sources."  

It all depends on how one defines "class."  Once economic criteria  remove the relatively wealthy families (from all castes and  communities), a "class" will remain.  This "class" is known as  "the poor."  The class would share the same characteristic,  irrespective of caste.  They would all lack money.     

236.    In a number of judgments, this Court has spelt out our  constitutional philosophy regarding caste. On numerous  occasions, this Court has proclaimed that the cherished goal of  the Nation is to realise a casteless society.  In Shri V. V. Giri v.  Dippala Suri Dora & Others (1960) 1 SCR 426 at 442, the  Court observed as under:- "\005\005..The history of social reform for the last century  and more has shown how difficult it is to break or  even to relax the rigour of the inflexible and exclusive  character of the caste system. It is to be hoped that  this position will change, and in course of time the  cherished ideal of casteless society truly based on

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 65 of 78  

social equality will be attained under the powerful  impact of the doctrine of social justice and equality  proclaimed by the Constitution and sought to be  implemented by the relevant statutes and as a result  of the spread of secular education and the growth of a  rational outlook and of proper sense of social values;  but at present it would be unrealistic and utopian to  ignore the difficulties which a member of the  depressed tribe or caste has to face in claiming a  higher status amongst his co-religionists. It is in the  light of this background that the alternative plea of the  appellant must be considered."

237.    In N M. Thomas (supra), a seven Judge Bench observed as  under: "This consummation is accomplished only when the  utterly depressed groups can claim a fair share in  public life and economic activity, including  employment under the State, or when a classless and  casteless society blossoms as a result of positive State  action."

238.    In his dissenting opinion, in Sawhney I Justice Kuldip  Singh observed as under: "339. Secularism is the basic feature of the Indian  Constitution.  It envisages a cohesive, unified and  casteless society. ...  The prohibition on the ground of  caste is total, the mandate is that never again in this  country caste shall raise its head.  Even access to  shops on the ground of caste is prohibited.  The  progress of India has been from casteism and  egalitarianism from feudalism to freedom.

340.    The caste system which has been put in the  grave by the framers of the Constitution is trying to  raise its ugly head in various forms.  Caste poses a  serious threat to the secularism and as a consequence  to the integrity of the country.  Those who do not learn  from the events of history are doomed to suffer again."

239.    In Akhil Bhartiya Soshit Karamchari Sangh (Railway)  (supra), it was observed as under:: "14. These forces nurtured the roots of our  constitutional values among which must be found the  fighting faith in a casteless society, not by obliterating  the label but by advancement of the backward \005  

240.    Returning to Vasanth Kumar, one of Justice Reddy’s  arguments deals with the level of effort required to identify the  poor compared to the effort expended on identifying caste.  In the  current context, a number of factors, including economic, are  measured to determine SEBC status. (See: the National  Commission of Backward Classes’ Guidelines for considerations  of Requests for inclusion and complaints of under-inclusion in  the Central List of Other Backward Classes).

241.    The National Commission for Backward Classes aside, I  have set out to eventually install a system that only takes  cognizance of economic criteria. Using purely economic criteria  would lighten the identification load, as ascertaining caste would  no longer be required.   Respondents and others level a common  criticism against the exclusive use of economic criteria.  Most of  the country is poor.   

242.    Thus, too many people would be eligible for the benefit.  

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 66 of 78  

This is only a problem if you hand out reservations based on the  group’s proportion of the total population. Such a reservation  would be excessively unreasonable and would likely violate the  Balaji cap of 50% [see M.R. Balaji & Ors. v. State of Mysore  [(1963) Supp (1) SCR 439]. If economic reservation were limited  to a reasonable number, it could be upheld.   

243. In addition to the problem of extending the benefit to too  many, Reddy, J. cannot contemplate the idea of bestowing  reservation on an economically poor Brahmin.  "The idea that  poor Brahmins may also be eligible for the benefits of Articles  15(4) and 16(4) is too grotesque even to be considered."   He says  that they are not "socially backward", thus they should not  receive the benefit.  But can one call a Brahmin sweeper, poor by  occupation, socially forward?  To do so would be a stretch.   

244.    The majority in Sawhney I reiterates Justice Chinnappa  Reddy’s message in Vasanth Kumar.  They rejected the sole use  of economic criteria to exclude the creamy layer, deeming it to be  just one measure of advancement. Justice Jeevan Reddy  qualified that sentiment to an extent.  If income were extremely  high, it could be the sole factor.  In such a case,  income alone  would ensure that one were socially forward.  Justice Jeevan  Reddy was convinced that caste mattered more than money \026  especially in rural areas.  He makes his point by way of example  at para 792:   "A member of backward class, say a member of  carpenter caste, goes to Middle East and works there  as a carpenter. If you take his annual income in  rupees, it would be fairly high from the Indian  standard. Is he to be excluded from the Backward  Class? Are his children in India to be deprived of the  benefit of Article 16(4)?"  

245.    Unless the carpenter became a factory owner, where his  income would be a reflection of his status, Justice Reddy would  answer his own question in the negative.  This is where we part  ways.  Today, the NRI carpenter’s children will have likely  attended the best schools, tuitions and coaching classes that  money can buy.  These children do not need special provisions.   That is why I am removing the creamy layer, calling for a time- limit on caste-based reservation and urging the Government to  use exclusively economic criteria to identify OBCs who may avail  of special provisions.    246.    The United States Supreme Court has taken a similar  position with regard to setting a time-limit on race-based  affirmative action.  As mentioned above, Justice Sandra Day  O’Connor opined that there may be a time-limit to promoting  diversity via preferential treatment for certain races: "We expect  that 25 years from now, the use of racial preferences will no  longer be necessary to further the interest approved today."  (See:  Grutter at 343).   

247.    In our context, one need not look past the Parliament’s  affinity with extending time-limits on reservation to see that only  the judiciary can put a stop to caste-based reservation.  Article  334 originally said that reservation for SC/ST/Anglo-Indians in  the Lok Sabha and State Legislative Assemblies would expire on  the Constitution’s tenth birthday.  The Parliament later  substituted "ten" for "thirty years" vide the 45th Amendment.   When that was to expire, the Parliament extended it for another  ten years vide the 62nd Amendment.  When that was to expire, it  extended it for another ten years vide the 79th Amendment.   History has shown that it is not politically feasible for the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 67 of 78  

Parliament to say "no" to reservation \026 especially when caste is  involved.  

248.    Nevertheless, I have noted that Sawhney I rejects purely  economic criteria (occupation/income/property holdings/or  similar measures of economic power) with respect to  classification under 16(4).  [para 859, 4(a)].  Sawhney I’s nine- Judge holding precludes us from striking the impugned  legislation to the extent that it has not yet ruled out the use of  caste-based criteria for identifying SEBC status.  It also  precludes us from forcing the Government to wean itself off  caste-based reservation by a certain date. In order to achieve a  casteless and classless society, after a lapse of ten years, special  preference or reservation should be granted only on the basis of  economic criteria as long as grave disparity and inequality  persist.   

7       Secularism is Part of the Basic Structure  249. To be clear, there is no claim arising out of the goal to  promote a casteless society.  No right of action exists.  The right  of action is found in secularism. Though not explicitly found in  the un-amended Constitution, the original Framers made it clear  that India was to be a secular democracy.  Discrimination based  on religion is prohibited by Articles 14, 15(1) and 15(2), 16(1) and  16(2), 29(2) and 325.  The original Framers went out of their way  to ensure that minorities would be able to maintain their  identity.  (See: Articles 28, 29 and 30).  Article 27 precludes the  state from adopting a state religion, whereas Article 25 grants  citizens the right to profess, practice and propagate religion.   With rights come responsibilities.  One of them is found at Article  51A(3), which instructs citizens "\005 to promote harmony and  spirit of brotherhood amongst all people \005 transcending  religious \005 diversities."  

250. Relying on these provisions, Bommai (1994) 3 SCC 1 at  para 304 declared secularism "\005.a constitutional goal and a  basic feature of the Constitution as affirmed in Kesavananda   Bharati and Indira N. Gandhi v. Raj Narain.  Any step  inconsistent with this constitutional policy is, in plain words,  unconstitutional." The Court reasoned that the original Framers  adopted Articles 25, 26 and 27 so as to further secularism.  (See:  Bommai at para 28 (Ahmadi, J.)). Secularism was very much  embedded in their constitutional philosophy. [para 29]. During  the Constituent Assembly Debates, Pandit Laxmikantha Mitra  stated (as quoted at para 28 of Bommai):  "By secular State, as I understand it, it is meant that  the State is not going to make any discrimination  whatsoever on the ground of religion or community  against any person professing any particular form of  religious faith. \005 no citizen \005 will have any  preferential treatment \005 simply on the ground that he  professed a particular form of religion."   This is relevant today because quotas are state-sponsored  discrimination against those who are not deemed SEBCs - caste  being a by-product of religion.  Though affirmative action is  allowed, there is a point at which it violates secularism.  Finally,  I note that the 42nd Amendment, which formally inserted  secularism into the Preamble, merely made what was already  implicit explicit. (See Bommai at para 29).   

7       Conclusion on the Casteless Society  251. In conclusion, the First Parliament, by enacting Article  15(5), deviated from the original Framers’ intent.  They passed an  amendment that strengthens, rather than weakens casteism.  If

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 68 of 78  

caste-based quotas in education are to stay, they should adhere  to a basic tenet of secularism:  they should not take caste into  account. Instead, exclusively economic criteria should be used.   For a period of ten years, other factors such as income,  occupation and property holdings etc. including caste, may be  taken into consideration and thereafter only economic criteria  should prevail.  Sawhney I has tied our hands.  I nevertheless  believe that caste matters and will continue to matter as long as  we divide society along caste-lines.  Caste-based discrimination  remains. Violence between castes occurs.  Caste politics rages  on.  Where casteism is present, the goal of achieving a casteless  society must never be forgotten. Any legislation to the contrary  should be discarded.   

5.      Are Articles 15(4) and 15(5) mutually contradictory,  such that 15(5) is unconstitutional?

252.    While contradictory, I am able to read them harmoniously.   Learned senior counsel for petitioners, Mr. K.K. Venugopal,  argued that Articles 15(5) and 15(4) are inconsistent to the  extent that 15(5) exempts minority institutions from reservation  and 15(4) incorporates aided minority institutions in the  reservation scheme. Because both provisions contain "non- obstante clauses", they render each other void.  He further  submitted that the Court is in the position of having to choose  between them in regard to this inconsistency. He provided three  tests of statutory interpretation that give us guidance in  resolving such a conflict.

253. First, if the Court cannot harmonize the two provisions, it  must invalidate the one that completely destroys the other’s  purpose.  Sarwan Singh & Another v. Kasturi Lal (1977) 1  SCC 750, pages 760-761, at para 20). In the instant case, one of  the express purposes of 15(5) was to exempt minority  institutions and thus avoid conflict with Article 30(1).  This is  found in the text of Article 15(5) itself.

254.    With nothing in the text of 15(4) to guide us, we turn to its  Statement of Objects and Reasons:  "\005\005The Act also amplifies Article 15(3) so as to  ensure that any special provisions that the State may  make for the educational, economic or social  advancement of any backward class citizens may not  be challenged on the ground of being discriminatory. "   255.    Thus, Article 15(4) was not passed with an express  intention to include minority institutions; nor did it arise out of a  case in which minority institutions were a party. Then again, it  was open to the First Parliament to exclude minority institutions  from the beginning. Articles 15(4) and 15(5)’s purposes do not  necessarily conflict.  I find the first test inconclusive and thus  turn to the other ones.  The second test asks which provision  came into effect at a later date (i.e., was "later in time?")? That  which is later shall prevail.  Here, 15(5) was enacted later in  time.  In J.K. Cotton Spinning and Weaving Mills Co. Ltd. v.  State of Uttar Pradesh & Others AIR 1961 SC 1170 at page  1174, para 9, I find the third test; it provides that the specific  clause must trump the general. Article 15(5) is specific in that it  refers to special provisions that relate to admission in  educational institutions, whereas 15(4) makes no such reference  to the type of entity at which special provisions are to be enjoyed.   

256.    Because 15(5) is later in time and specific to the question  presented, it must neutralize 15(4) in regard to reservation in  education. Mr K. Parasaran, learned senior counsel for the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 69 of 78  

respondents, correctly pointed out that constitutional articles are  to be read harmoniously, not in isolation.  (See: T.M.A. Pai  (supra) at page 582, para 148).  Our interpretation is  harmonious because Article 15(4) still applies to other areas in  which reservation may be passed.  6.      Does Article 15(5)’s exemption of minority  institutions from the purview of reservation  violate Article 14 of the Constitution?

257.    Given the inherent tension between Articles 29(2) and 30(1),  I find that the overriding constitutional goal of realizing a  casteless/classless society should serve as a tie-breaker.   We  will take a step in the wrong direction if we subject minority  institutions (even those that are aided) to reservation.  

258.    Minority aided institutions were subject to a limited form of  reservation.  In order to preserve the minority character of the  institution, reservation could only be imposed to a reasonable  extent. Minority aided institutions could select their own  students, contingent upon admitting a reasonable number of  non-minority students per the percentage provided by the State  Government.  This conclusion was derived from two conflicting  constitutional articles.  Of course, I am only concerned with  minority aided institutions because I have already determined  that the State shall not impose reservation on unaided  institutions (minority or non-minority).   

259.    Article 30(1) provides that "all minorities, whether based on  religion or language, shall have the right to establish and  administer educational institutions of their choice."  Article 29(2)  states that "no citizen shall be denied admission into any  educational institution maintained by the State or receiving aid  out of State funds on grounds only of religion, race, caste,  language or any of them."   

260.    In other words, 30(1) by itself would allow minority aided  institutions to reject all non-minority candidates, and 29(2) by  itself would preclude the same as discrimination based solely on  religion.  Yet neither provision exists by itself.  Rather than  disturb the Constitution, this Court struck a compromise and  diluted each provision in order to uphold both.  Reading Articles  30(1) and 29(2) harmoniously, Kerala Education Bill provided  that once minority institutions receive aid, a sprinkling of  outsiders must be admitted.  

261.    "Sprinkling" ensured that the minority character of the  institution would not be lost. In regard to the "sprinkled" seats,  minority institutions cannot discriminate based on religion in  violation of Article 29(2).  At the same time, if the State compelled  aided minority institutions to take too many non-minority  students, the institution would be "minority" in name only. But  what does "too many" mean?  Can "sprinkling" be quantified?    Clearing up the ambiguity, St. Stephen’s held that minority  institutions must make 50% of their seats available to outsiders  and that admission for the other 50% (its own community) must  be done on merit.  Pai later rejected the rigidity attached to this  fixed percentage.  Along these lines, Pai returned to a more  flexible standard, one akin to "sprinkling" in Kerala Education  Bill: the moment a minority institution takes aid, it has to admit  non-minority students to a reasonable extent, whereby the  character of the institution was maintained and yet citizens’  Article 29(2) rights were not subverted. (Also see: Pai at para  149).  

Thus, two admission pools were created for aided minority

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 70 of 78  

institutions:  minority and non-minority.   In the minority pool,  merit was to be observed.  From the non-minority pool,  reservations for the weaker sections may be made while the  remaining seats, if any, would be distributed based on merit to  non-minority students.    "\005 It would be open to the state authorities to insist  on allocating a certain percentage of seats to those  belonging to weaker sections of society, from amongst  the non-minority seats." [Pai at para 152].   

262.    With regard to the percentage of reservation, the State  Governments were to determine the percentage of non-minority  seats according to the needs of that State.  As a compliment to  reservation, aided minority institutions were also subject to  regulation of administration and management.  Pai declared at  para 72 as noted above that:    "Once aid is granted to a private professional  educational institution, the Government or the state  agency, as a condition of the grant of aid, can put  fetters on the freedom in the matter of administration  and management of the institution. The state, which  gives aid to an educational institution, can impose  such conditions as are necessary for the proper  maintenance of the high standards of education as the  financial burden is shared by the state. \005"

263.    In addition to the general power to impose conditions that  seek to maintain high standards or "excellence in education," the  State could implement the same under a related but different  rationale.  That is, said regulations could be upheld in the name  of national interest. [Pai at para 107].  Yet the Government could  not destroy the minority character of an institution. [para 107].   Nor could it obliterate the establishment or administration of a  minority institution.  [para 107].  A balance was to be struck  between (a) maintaining academic quality and (b) preserving the  minority right to establish/administer educational institutions.   Regulations that embraced these two objectives were considered  reasonable.  [Pai at para 122].  

264.    A question of great import is whether Article 30 was  designed to put minorities on equal or higher footing than non- minorities.  This question played out in detail in a debate  between Khare, C.J. and Justice Sinha in Islamic Academy.   Writing for the majority, Chief Justice Khare takes issue with  Pai.  The Chief Justice says that Pai has wrongly categorized  minority rights as equal to those of the non-minority.  He has a  point.  Minorities can establish and administer institutions for  their communities per Article 30; non-minorities cannot.  His  Lordship observed: (para 9 page 723) "\005We do not read these paragraphs to mean that non- minority educational institutions would have the same  rights as those conferred on minority educational  institutions by Article 30 of the Constitution of India.  Non-minority educational institutions do not have the  protection of Article 30. Thus, in certain matters they  cannot and do not stand on a similar footing as  minority educational institutions. Even though the  principle behind Article 30 is to ensure that the  minorities are protected and are given an equal  treatment yet the special right given under Article 30  does give them certain advantages\005"

Relying on St. Xavier’s case (1975) 1 SCR 173, Pai concluded

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 71 of 78  

that the object of Article 30 was to ensure minorities of equal  treatment and nothing more.  

265.    It was observed in St. Xaviers College case, at page 192,  that "the whole object of conferring the right on minorities under  Article 30 is to ensure that there will be equality between the  majority and the minority. If the minorities do not have such  special protection, they will be denied equality." The minority  institutions must be allowed to do what the non-minority  institutions are permitted to do. [Pai at para 138].  

266. In contrast to the majority in Islamic, Justice Sinha  concludes that Article 30(1) raises minorities to an equal  platform and no higher.  Relevant portion is reproduced  hereinbelow: "The statement of law contained in paras 138  and 139 is absolutely clear and unambiguous and no  exception can be taken thereto. The doubt, if any, that  the minorities have a higher right in terms of Article  30(1) of the Constitution of India may be dispelled in  clearest terms inasmuch as the right of the minorities  and non-minorities is equal. Only certain additional  protection has been conferred under Article 30(1) of  the ’Constitution of India to bring the minorities on  the same platform as that of non-minorities as regards  the right to establish and administer an educational  institution for the purpose of imparting education to  members of their own community whether based on  religion or language. [see: Islamic Academy at para  105]."  

267.    Justice Sinha considers it constitutionally immoral to  discriminate against non-minorities in the guise of protecting the  constitutional rights of minorities. [See: Islamic Academy at  para 118].  Even in the face of Articles that provide preferential  treatment to minority or weaker sections, e.g., 30(1), 15(4) and  16(4), the right to equality must mean something.  

268.    Justice Khare, as he then was, concludes that original  Framers conferred Article 30(1) on minorities in order to instill in  them a sense of confidence and security. [Pai at page 615 at  para 229].  Their right to establish and administer  educational  institutions could not be usurped by mere legislation.  Khare, J.  stated at para 229 p.615:- "Thus, while maintaining the rule of non- discrimination envisaged by Article     29(2), the  minorities should have also right to give preference to  the students of their own community in the matter of  admission in their own institution. Otherwise, there  would be no meaningful purpose of Article 30(1) in the  Constitution. True, the receipt of State aid makes it  obligatory on the minority educational institution to  keep the institution open to non-minority students  without discrimination on the specified grounds. But,  to hold that the receipt of State aid completely  disentitles the management of minority educational  institutions from admitting students of their  community to any extent will be to denude the essence  of Article 30 of the Constitution. It is, therefore,  necessary that the minority be given preferential rights  to admit students of their own community in their own  institutions in a reasonable measure otherwise there  would be no meaningful purpose of Article 30 in the  Constitution."

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 72 of 78  

269.    Minorities possess one right or privilege that non-minorities  do not: establishing and administering institutions for their  community.  The right to admit your own students in aided  minority institutions was subject to admitting a reasonable  number of outsiders.  In the instant case, aided minority  institutions stand to benefit from the Reservation Act:  instead of  having to admit a reasonable number of outsiders they would be  exempted from reservation. However, their non-minority  counterparts would not.  Does this elevate their status? While it  does to a certain extent, however, we must also keep our  constitutional goal and philosophy in mind.  Given the ultimate  goal of furthering a classless/casteless society, there is no need  to go out on a limb and rewrite them into the Amendment. Such  a ruling would subject even more institutions to caste-based  reservation.  This would be a step back for the Nation, furthering  the caste divide.  I refuse to go in that direction. 7)   Are the standards of review laid down by the U.S.  Supreme Court applicable to our review of  affirmative action under Article 15(5) and similar  provisions?

270.    As noted above, U.S. law is, of course, not binding but does  have great persuasive value. This is because their problem of  race is akin to our problem of caste.  Where others have reviewed  similar issues in great detail, it behooves us to learn from their  mistakes as well as accomplishments.                   Mr. R. Venkataraman, former President of India in a  foreword to a book of eminent constitutional expert Dr. L.M.  Singhvi "Democracy And Rule of Law : Foundation And  Frontiers", has aptly observed which reads as under: "Society progresses only by exchange of thoughts and  ideas.  Imagine what a sorry state the world would  have been in had not thoughts and ideas spread to all  corners of the globe.  Throughout history,  philosophers, reformers, thinkers, and scholars have  recorded their thoughts, regardless of whether they  were accepted or not in their times, and thus  contributed towards progress of humankind.  India  was the first to encapsulate this seminal global  thought. The Rig Veda says:

Ano bhadrah Krtavo yantu Viswatah

Let noble thought come to us from every side."

8)      With respect to OBC identification, was the  Reservation Act’s delegation of power to the  Union Government excessive?  

271.    It is not an excessive delegation.  I agree with the Chief  Justice’s reasoning at para 185 of his judgment.

9)      Is the impugned legislation invalid as it fails to  set a time-limit for caste-based reservation?

272.    It is not invalid because it fails to set a time-limit. Given the  Parliament’s history of extending time-limits on other reservation  schemes, there is much force to the argument that the  Parliament will forever continue to extend reservations.  As noted  above, it is consistent with our constitutional goal of achieving a  classless/casteless society that a time-limit be set. But I am  bound by Sawhney I and believe that only a larger bench could

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 73 of 78  

make such a ruling.  A larger bench could certainly hold that  only economic criteria could be used to identify SEBCs and that  it should be done by a certain date.  

10) At what point is a student no longer  Educationally Backward and thus no longer  eligible for special provisions under 15(5)?  

273.    Once a candidate graduates from a university, he must be  considered educationally forward.  Senior counsel for petitioners,  Mr. P.P. Rao, contended that those who have completed Plus 2  should be considered educationally forward.  In other words,  they would no longer be eligible for reservation in university or  post-graduate studies.  There is some force in this argument  where only 18% in the relevant age-group have completed Plus 2.   From this vantage point, this means that they are educationally  elite.  But the answer to most questions in law is not so simple.   The answer often depends on the circumstances surrounding the  issue.  In the marketplace, a candidate who has completed  higher secondary education cannot be considered "forward".  The  real value of the higher secondary degree is that it is a  prerequisite for college admissions.  The general quality of  education imparted upto Plus 2 is of extremely indifferent quality  and apart from that, today some entry-level Government  positions only accept college graduates. One is educationally  backward until the candidate has graduated from a university.   Once he has, he shall no longer enjoy the benefits of reservation.   He is then deemed educationally forward.  For admission into  Master’s programmes, such as, Master of Engineering, Master of  Laws, Master of Arts etc., none will be a fortiori eligible for  special benefits for admission into post graduation or any further  studies thereafter.  11.     Would it be reasonable to balance OBC  reservation with societal interests by instituting  OBC cut-off marks that are slightly lower than  that of the general category? 274.    Balaji (supra) concluded that reservation must be  reasonable.  The Oversight Committee has made a  

recommendation that will ensure the same.  At page 34 of  Volume I of its Report, the Oversight Committee recommended  that institutions of excellence set their own cut off marks such  that quality is not completely compromised.   Cut offs or  admission thresholds as suggested by the Oversight Committee  are reproduced:

       "4.4.2  The Committee recognizes that those  institutions of higher learning which have established  a global reputation (e.g. IITs, IIMs, IISc, AIIMS and  other such exceptional quality institutions), can only  maintain that if the highest quality in both faculty and  students is ensured.  Therefore, the committee  recommends that the threshold for admission should  be determined by the respective institutions alone, as  is done today, so that the level of its excellence is not  compromised at all.

       4.4.3           As regards ’cut-offs’ in institutions  other than those mentioned in para 7, these may be  placed somewhere midway between those for SC/ST  and the unreserved category, carefully, calibrated so  that the principles of both equity and excellence can

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 74 of 78  

be maintained.  

       4.4.4           The Committee strongly feels that the  students who currently tend to get excluded must be  given every single opportunity to raise their own levels  of attainment, so that they can reach their true  potential.  The Government should invest heavily in  creating powerful, well designed and executed  remedial preparatory measures to achieve this  objective fully."

275.    Standards of excellence however should not be limited to  the best aided institutions.  The Nation requires that its  citizens have access to quality education.  Society as a whole  stands to benefit from a rational reservation scheme.  

276.    Finding 68% reservation in educational institutions  excessive, Balaji at pages 470-471 (supra) admonished States  that reservation must be reasonable and balanced against  other societal interests.  States have "\005 to take reasonable  and even generous steps to help the advancement of weaker  elements; the extent of the problem must be weighted, the  requirements of the community at large must be borne in  mind and a formula must be evolved which would strike a  reasonable balance between the several relevant  considerations."  To strike such a balance, Balaji slashed the  impugned reservation from 68 to less than 50%.  

277.    Balaji thus serves as an example in which this Court  sought to ensure that reservation would remain reasonable.   We heed this example. There should be no case in which the  gap of cut off marks between OBC and general category  students is too large.  To preclude such a situation, cut off  marks for OBCs should be set no lower than 10 marks below  the general category.    

278.    To this end, the Government shall set up a committee to  look into the question of setting the OBC cut off at nor more  than 10 marks below that of the general category.  Under such  a scheme, whenever the non-creamy layer OBCs fail to fill the  27% reservation, the remaining seats would revert to general  category students.   

SUMMARY OF FINDINGS 1A. Whether the creamy layer be excluded from the  93rd Amendment (Reservation Act)?

Yes, it must.  The 93rd amendment would be ultra vires and  invalid if the creamy layer is not excluded.  See paras 22, 25, 27, 30, 34, 35, 43, 44.  

1B. What are the parameters for creamy layer  exclusion?                  For a valid method of creamy layer exclusion, the  Government may use its post-Sawhney I criteria as a template.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 75 of 78  

(See: Office Memorandum dated 8-9-1993, para 2(c)/Column 3).   I urge the Government to periodically revise the O.M. so that  changing circumstances can be taken into consideration while  keeping our constitutional goal in view.   

I further urge the Government to exclude the children of  former and present Members of the Parliament and Members of  Legislative Assemblies and the said O.M. be amended  accordingly.   

See paras 55-57.   

1C. Is creamy layer exclusion applicable to SC/ST?   

       In Indra Sawhney-I, creamy layer exclusion was only in  regard to OBC.  Justice Reddy speaking for the majority at para  792 stated that "this discussion is confined to Other Backward  Classes only and has no relevance in the case of Scheduled  Tribes and Scheduled Castes".  Similarly, in the instant case, the  entire discussion was confined only to Other Backward Classes.   Therefore, I express no opinion with regard to the applicability of  exclusion of creamy layer to the Scheduled Castes and  Scheduled Tribes.  See para 34.

2.   Can the Fundamental Right under Article 21A be  accomplished without great emphasis on  primary education?  

No, it cannot.  

An inversion in priorities between higher and  primary/secondary education would make compliance with  Article 21A extremely difficult.  It is not suggested that higher  education needs no encouragement or that higher education  should not receive more funds, but there has to be much greater  emphasis on primary education. Our priorities have to be  changed.  Nothing is really more important than to ensure total  compliance of Article 21A.  Total compliance means good quality  education is imparted and all children aged six to fourteen  regularly attend schools.  I urge the Government to implement  the following:          The current patchwork of laws on compulsory education is  insufficient. Monetary fines do not go far enough to ensure that  Article 21A is implemented.  The Central Government should  enact legislation that:  (a)     provides low-income parents/guardians with  financial incentives such that they may afford to  send their children to schools;  

(b)     criminally penalizes those who receive financial  incentives and despite such payment send their  children to work;  

(c)     penalizes employers who preclude children  from attending schools;  

(d)     the penalty should include imprisonment; the  aforementioned Bill would serve as an example.  The State is obligated under Article 21A to  implement free and compulsory education in toto.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 76 of 78  

(e)     until we have accomplished for children from  six to fourteen years the object of free and  compulsory education, the Government should  continue to increase the education budget and  make earnest efforts to ensure that children go to  schools and receive quality education;  

(f)     The Parliament should fix a deadline by which  time free and compulsory education will have  reached every child.  This must be done within  six months, as the right to free and compulsory  education is perhaps the most important of all  the fundamental rights.  For without education,  it becomes extremely difficult to exercise other  fundamental rights.  

See paras 126-131.  

3.      Does the 93rd Amendment violate the Basic  Structure of the Constitution by imposing  reservation on unaided institutions?

       Yes, it does.  Imposing reservation on unaided institutions  violates the Basic Structure by stripping citizens of their  fundamental right under Article 19(1)(g) to carry on an  occupation. T.M.A. Pai and Inamdar affirmed that the  establishment and running of an educational institution falls  under the right to an occupation.  The right to select students on  the basis of merit is an essential feature of the right to establish  and run an unaided institution.  Reservation is an unreasonable  restriction that infringes this right by destroying the autonomy  and essence of an unaided institution.  The effect of the 93rd  Amendment is such that Article 19 is abrogated, leaving the  Basic Structure altered.  To restore the Basic Structure, I sever  the 93rd Amendment’s reference to "unaided" institutions.   

See paras 132-182.  

4.      Whether the use of caste to identify SEBCs runs  afoul of the casteless/classless society, in  violation of Secularism.  

Sawhney I compels me to conclude that use of caste is  valid.  It is said that if reservation in education is to stay, it  should adhere to a basic tenet of Secularism:  it should not take  caste into account.  As long as caste is a criterion, we will never  achieve a casteless society.  Exclusively economic criteria should  be used.  I urge the Government that for a period of ten years  caste and other factors such as occupation/income/property  holdings or similar measures of economic power may be taken  into consideration and thereafter only economic criteria should  prevail; otherwise we would not be able to achieve our  constitutional goal of casteless and classless India.   

See paras 194, 195, 231, 248, 251.  5.      Are Articles 15(4) and 15(5) mutually  contradictory, such that 15(5) is  unconstitutional?

       I am able to read them harmoniously.   See paras 252-256.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 77 of 78  

6.      Does Article 15(5)’s exemption of minority  institutions from the purview of reservation  violate Article 14 of the Constitution?

       Given the inherent tension between Articles 29(2) and 30(1),  I find that the overriding constitutional goal of realizing a  casteless/classless society should serve as a tie-breaker.   We  will take a step in the wrong direction if minority institutions  (even those that are aided) are subject to reservation.   See paras 268-269. 7)  Are the standards of review laid down by the U.S.  Supreme Court applicable to our review of  affirmative action under Art 15(5) and similar  provisions?

The principles enunciated by the American Supreme Court,  such as, "Suspect Legislation" "Narrow Tailoring" "Strict  Scrutiny" and "Compelling State necessity" are not strictly  applicable for challenging the impugned legislation.

Cases decided by other countries are not binding but do  have great persuasive value.  Let the path to our constitutional  goals be enlightened by experience, learning, knowledge and  wisdom from any quarter.  In the words of Rigveda, let noble  thoughts come to us from every side. See para 183.  

8)      With respect to OBC identification, was the  Reservation Act’s delegation of power to the  Union Government excessive?  

It is not an excessive delegation.  With respect to this issue,  I agree with the reasoning of the Chief Justice in his judgment.  

9)      Is the impugned legislation invalid as it fails to  set a time-limit for caste-based reservation?

It is not invalid because it fails to set a time-limit.   See para 272.  

10) At what point is a student no longer  Educationally Backward and thus no longer  eligible for special provisions under 15(5)?  

Once a candidate graduates from a university, the said candidate  is educationally forward and is ineligible for special benefits  under Article 15(5) of the Constitution for post graduate and any  further studies thereafter.   

See para 273.  

11.     Would it be reasonable to balance OBC  reservation with societal interests by instituting  OBC cut-off marks that are slightly lower than  that of the general category?  

It is reasonable to balance reservation with other societal  interests.  To maintain standards of excellence, cut off marks for  OBCs should be set not more than 10 marks out of 100 below  that of the general category. See paras 274-278.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 78 of 78  

These Writ Petitions and Contempt Petition are accordingly  disposed of.  In the facts and circumstances, the parties  are to  bear their own costs.