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

PETITIONER: Ashoka Kumar Thakur

RESPONDENT: Union of India and Ors

DATE OF JUDGMENT: 29/03/2007

BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T

I.A. No.13 IN WRIT PETITION (CIVIL) NO. 265 OF 2006 (With WP (Civil) Nos. 269/2006, 598/2006, 35/2007 and 29/2007)

Dr. ARIJIT PASAYAT, J.

       In this I.A. prayer has been made to grant interim  protection pending final disposal of the writ petitions.

       In the writ petitions the policy of 27% reservation for  the Other Backward Classes (in short the ’OBCs’) contained  in the Central Educational Institutions (Reservation in  Admission) Act, 2006 (in short the ’Act’) is the subject  matter of challenge. The primary ground of challenge is  that the Union of India has failed in performing the  constitutional and legal duties toward the citizenry and its  resultant effect.  Consequentially the Act shall have the  effect and wide ramifications and ultimately it shall have  the result in dividing the country on caste basis. It would  lead to chaos, confusion, and anarchy which would have  destructive impact on the peaceful atmosphere in the  educational and other institutions and would seriously  affect social and communal harmony. The constitutional  guarantee of equality and equal opportunity shall be  seriously prejudiced.  It has been contended that a time  has come to replace the "vote bank" scenario with "talent  bank". The statute in question, it is contended, has lost  sight of the social catastrophe it is likely to unleash. Not  only the products would be intellectual pigmies as  compared to normal intellectual sound students presently  passing out.  It has been highlighted that on the basis of  unfounded and unsupportable data about the number of  OBCs in the country the Act has been enacted.  It has been  pointed out that this Court in Indra Sawhney v. Union of  India and Ors. (1992 Supp. (3) SCC 217) had recognised  the concept of "creamy layer" amongst the advanced OBCs  to be kept out of preferential treatment. The population  data of 52% projected by the Mandal Commission was not  actually given the seal of acceptance. In any event, this  Court in its judgment dated 16.11.1992 directed the  Government to constitute a permanent body by 15th March,  1993 for examining and recommending for inclusion or  exclusion in the lists of backward classes of citizens. The  National Commission for Backward Classes Act, 1993  (in  short the ’Backward Classes Act’) defines ’backward  classes" to mean such backward classes of citizens other

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than the Scheduled Castes and Scheduled Tribes as may  be specified by the Central Government in the lists. In  terms of Section 2(c) of the Act "lists" mean lists prepared  by the Government of India from time to time for the  purpose of making provision for the reservation of  appointments or posts in favour of backward classes of  citizens which in the opinion of the Government are not  adequately represented in the services under the  Government of India and any legal or other authority within  the territory of India or under the control of the  Government of India. Though there is a specific provision in  Section 11 of the Backward Classes Act for a periodic  revision of the lists, same has not been done, and on the  contrary additions are being made. The rational of 27%  having been arrived at on the mythical figure that the  OBCs are 52% in the country and even the ratio of 27%  reservation for the students belonging to other backward  classes in the educational institutions is to be funded and  controlled by the Central Government. The same is to be  enforced from May 2007. It is highlighted that after 1931  census there has never been any caste-wise enumeration or  tabulation which in essence corrodes the credibility of the  claim of 52% population of other backward classes.  

       It is pointed out that in terms of Section 2(g), 3(iii),  Sections 5(1)(2) and 6 of the Act, 27% seats are being  reserved for other backward classes out of only permitted  strength. The expression "Other Backward Classes" means  the class or classes of citizens who are socially or  educationally backward and are so determined by the  Central Government. There has never been any  determination on any acceptable basis. The parameters  provided in the Backward Classes Act have not been kept  in view. Without supportable data the introduction of a  Statute which would have the effect of disturbing the  harmony in the society was avoidable. Though it has been  provided that increase in the number of seats can be done  in a staggered manner, that is really of no consequence.  The stand that number of seats available for the general  categories remains unaffected is really not a solution as in  essence unequals are treated as equals. The very concept of  equality enshrined in Article 14 of the Constitution of India,  1950 (in short the ’Constitution’) is directly affected.  

       Reference is made to the figures provided by the  National Samples Survey of India and the National Health  and Family Survey (Government of India’s own  Departments) which clearly establish the hollowness of the  claim about OBCs being 52% of the population. The source  for the enactment of the Act was the 93rd amendment to the  Constitution which has come into force w.e.f. 20.1.2006 by  insertion of Clause (5) in Article 15 of the Constitution.      

       Prayer has been made to declare certain provisions in  the Act to be unconstitutional.  

The effect of the judgments in M. Nagaraj and Ors. v.  Union of India and Ors.  (2006 (8) SCC 212) and Nair  Service Society v. State of Kerala (Writ Petition (Civil) No.  598 of 2000 etc. decided on 23.02.2007)  has not been  considered. It has been emphasized that what may have  been relevant eight decades back cannot hold good in the  present scenario. There has to be indepth analysis to find  out the number of socially and educationally backward  class of citizens. The concept of Backward class citizens is

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dealt with in para 786 of Indra Sawhney’s case (supra). It is  pointed out that in the immediately succeeding paragraph  i.e. Paragraph 787 the position has been clarified. In that  paragraph reference has also been made at page 720 that  certain classes which may not qualify for Article 15(4) may  qualify for Article 16(4).  Reference is made to Janki Prasad  Parimoo v. State of J & K (1973 (1) SCC 420) to contend  that it is social and educational backwardness of a class  which is material for the purposes of Articles 16(4). It does  not have determinative relevance for the purposes of  Articles 15(4) and 15(5). Further reference is also made to  the concluding para 859 in Indra Sawhney’s case (supra)  where it has been said in category (3)(c) that it is not  correct to say that backward class of citizens contemplated  in Article 16(4) is the same as the socially and  educationally backward classes referred to in Article 15(4).  It is much wider. Therefore, it is submitted that the concept  of socially and educationally backward classes in Article  15(4) stand on a different footing from Article 16(4) and  consequentially Article 15(5) is different from Article 16(4).  

       It has been highlighted that in any event the concept  of creamy layer which has been completely kept out of  consideration in the Statute has great relevance and effect.  The criteria of Article 16(4) and the lists under the  Backward Classes Act can at the most provide a rough and  ready rule for the purpose of Articles 15(4) and 15(5) but  that does not in any way take care of the requirements of  Section 11 of the Backward Classes Act. There is no report  subsequent to 3.2.2005 by the National Commission for the  Backward Classes. Therefore, it is highlighted that the  whole exercise has been done in great hurry without any  justifiable reason. Since there is no data base after 1931  census, what the Government could have done is to find  out a definite data base and then take such action as is  permissible in law. Even otherwise, the Office  Memorandum bearing No.36012/31/90-Est.(SCT) dated  13.8.1990 on which great emphasis has been laid by  learned Additional Solicitor General for the respondent- Union of India, does not take note of another  O.M.No.36012/22/93-Estt.(SCT) dated 8.9.1993 which  expressly states as follows:

"(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 Governments’ Lists. A list of such  castes and communities is being issued  separately by the Ministry of Welfare."

It has been pointed out that the Act itself specifically  requires a determination of socially and educationally  backward classes to be made by the Central Government,  as is clear from a bare reading of Section 2(g). That has not  been done for the purposes of the Act and by referring to  the lists meant for cases covered by Article 16(4) the  requirements have not been met, there cannot be any basis  for contending that the "creamy layer concept" attached to  Article 16(4) has no relevance for Articles 15(4) and 15(5). It  is pointed out that the intention of the Parliament does not  appear to be that any existing list under Article 16(4)  should be treated as the foundation for Section 2(g) of the

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Act. The determination should be made "in futuro" and not  by adopting any past determination by the National  Commission for the purposes of Article 15(5). The "special  provision of law" under Article 15(5) is the Act which  provides that OBCs must be so determined for the  purposes of the Act by the Central Government (underlined  for emphasis). There has been no separate determination.  

       In essence, it is submitted that the baseless figure of  27% cannot be pressed into service for introducing a  Statute which has such wide ramifications. No methodology  has been laid down for determining the socially and  educationally backward classes because castes alone  should not be made the basis for identification even though  there appears to be some casual observations in Indra  Sawhney’s case (supra) as contended by learned Additional  Solicitor General that castes can be synonyms with class.  That is not the correct approach.  It was only stated that  castes may be the starting point for identifying the  backward class, but it can not definitely be the sole basis.  

       The figure of 27% it is emphasized is an imaginary  figure with no rational. The non exclusion of "creamy layer"  has also affected the validity of the Statute.   

       In addition to these aspects highlighted by Mr. F.S.  Nariman, Senior Advocate, Mr. P.P. Rao, Senior Advocate,  Mr. M.L. Lahoti, Advocate, Mr. Sushil Kr. Jain, Advocate,  Mr. V. Tankha, Senior Advocate, Mr. Ashoka Kr. Thakur  and Dr. Mittal, who appear in person, have more or less  highlighted to similar effect.   

       Mr. P.P. Rao, Senior Advocate, with reference to  certain observations in Indra Sawhney’s case (supra) has  submitted that inclusion of castes in the lists of backward  classes cannot be mechanic and cannot be done without  adequate relevant data.

The following reports have also been referred to  highlight as to how figures arrived at by the Union are  erroneous.  

"(a) The National Sample Survey  Organisation survey of 1999-2000 which  shows that the present educational level is  directly proportionate to his/her economic  condition. (pp. 14-15 para 7.21, 7.22 and  7.23)

(b) Section 11 of the National Commission  for Backward Classes Act, 1993 which says  "The Central Government may at any time,  and shall, at the expiration of ten years  from the coming into force of this Act and  every succeeding period of ten years  thereafter, undertake revision of the lists  with a view to excluding from such lists  those classes who have ceased to be  backward classes or for including in such  lists new backward classes.

(c) Standing Committee on Social Justice  and Empowerment Chaired by Sumitra  Mahajan 2005-2006 (pp 18-22 - Copy of  the Report is Annexure P-lI in Vol.II at

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pp.142-217).

(d) 186th Report of the Parliamentary  Standing Committee of Human Resources  Development submitted to the Parliament  on 1-12-2006 (pp. 22-23 paras 8.8 to 8.13).  The Report is Annexure P-Ill in Vol.II at  pp.218-227).

(e) Annual Report of National Commission  for Backward Classes dt. 3-2-2005. (Para  8.14 at pp 25-26). The Report is Annexure  P-IV in Vol.II at pp. 228-317.

(f) Report of the Oversight Committee  constituted under the Orders of the Prime  Minister on 27-5-2006 (pp. 29-30 para 8.19  to 8.21). The Report is Annexure P-V in  Vol.II at pp 318-353."

       It is pointed out that Office Memoranda of 1990 and  1991 referred to in Indra Sawhney’s case (supra) cannot  hold the field forever. It is pointed out that if that continues  to be so, Section 11 of the Backward Classes Act would be  rendered nugatory. The revision of the lists was called for  after expiration of the period of 10 years. The non-revision  renders the acceptability of the figures doubtful and  basisless.  

       In Mandal Commission’s Report it was inter-alia  observed as follows:

"On the basis of the Commission’s Report - popularly known as Mandal Commission’s  Report -(for short ’the Report’), two Office  Memoranda - one dated August 13, 1990 and  the other amended one  dated September 25,  1991 were issued by the Government of India.  We are reproducing those Memoranda hereunder  for proper understanding and appreciation of the  significance of these two OMs and the  distinctions appearing between them:

"No. 36012/31/90-Estt. (SCT)     Government of India Ministry of Personnel, Public Grievances & Pensions (Deptt. of Personnel & Training) OFFICE MEMORANDUM        New Delhi, the 13th August, 1990

Subject: Recommendation of the  Second Backward Classes Commission  (Mandal Report) - Reservation for  Socially and Educationally Backward  Classes in Services under the  Government of India.     

In a multiple undulating society like ours, early  achievement of the objective of social justice as  enshrined in the Constitution is a must. The second  Backward Classes Commission called the Mandal  Commission was established by the then Government  with this purpose in view, which submitted its report  to the Government of India on 31.12. 1980.

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2. Government have carefully considered the report and the  recommendations of the Commission in the present context  responding the benefits to be extended to the socially and  educationally backward classes as opined by the  Commission and are of the clear view that at the outset  certain weightage has to be provided to such classes in the  services of the Union and their Public Undertakings.  Accordingly orders are issued as follows:

(i)     27 per cent of the vacancies in civil posts and  services under the Government of India shall be  reserved for SEBC.          (ii)    The aforesaid reservation shall apply to vacancies  to be filled by direct recruitment. Detailed  instructions relating to the procedure to be followed  for enforcing reservation will be issued separately.

        (iii)   Candidates belonging to SEBC recruited on the  basis of merit in an open competition on the same  standards prescribed for the general candidates  shall not be adjusted against the reservation quota  of 27 per cent.

(iv)    The SEBC would comprise in the first phase the  castes and communities which are common to  both, the list in the report of the Mandal  Commission and the State Governments’ lists. A  list of such castes/communities is being issued  separately.

(v)  The aforesaid reservation shall take effect from  7.8.1990. However, this will not apply to vacancies  where the recruitment process has already been  initiated prior to the issue of these orders.

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 Ministry of Finance respectively. Sd/. (Smt Krishna Singh) Joint Secretary to the Govt. of  India"

AMENDED MEMORANDUM: "No. 36012/31/90-Estt. (SCT) Government of India Ministry of Personnel, Public Grievances &  Pensions (Deptt.of Personnel & Training) OFFICE MEMORANDUM

New Delhi, the 25th September 1991 Subject: Recommendation of the Second  Backward Classes Commission (Mandal Report) -  Reservation for Socially and Educationally  Backward Classes in Services under the  Government of India.

The undersigned is directed to invite the attention  to O.M. of ever number dated the 13th August

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1990, on the above sections of the SEBCs to  receive the benefits of reservation on a preferential  basis and to provide reservation for other  economically backward sections of the people not  covered by any of the existing schemes of  reservation, Government have decided to amend  the said Memorandum with immediate effect as  follows:\027

2. (i) Within the 27 per cent of the vacancies in  civil posts and services under the Government of  India reserved for SEBCs, preference shall be  given to candidates belonging to the poorer  sections of the SEBCs. In case sufficient number  of such candidates are not available, unfilled  vacancies shall be filled by the other SEBC  candidates.

(ii) 10 per cent of the vacancies in civil posts and  services under the Government of India shall be  reserved for other economically backward sections  of the people who are not covered by any of the  existing schemes of reservation.

(iii) The criteria for determining the poorer  sections of the SEBCs or the other economically  backward sections of the people who are not  covered by any of the existing schemes of  reservations are being issued separately.

3. The O.M. of even number dated the 13th  August 1990, shall be deemed to have been  amended to the extent specified above. Sd/ (A.K. Harit) Dy. Secretary to the Govt. of India"

The expression deployed in both the OMs,  "Socially and Educationally Backward Classes" is  on the strength of the Report of the Commission,  though no such expression is used in Article 16(4)  whereunder the reservation or  appointments or  posts in favour of any backward class of citizens is  to be made. This expression is used as an  explanatory one to the words ’backward class’  occurring in Article 16(4). Articles 16(4) and  340(1) were embodied in the Constitution even at  the initial stage; but Article 15(4) containing the  same expression as in Article 340(1) was  subsequently added by the Constitution (First  Amendment) Act of 1951 to override the decision  of this Court in State of Madras v. Smt  Champakam Dorairajan (1951 SCR 525)"

       According to Mr. M.L. Lahoti, the Act specifically  overlooks the mandate of Article 340 of the Constitution.  According to him also the specific directions given by this  Court in Indra Sawhney’s case (supra) have been dis- regarded. Specific reference in this context is made to  Section 11 of the Backward Classes Act. It is submitted  that Article 340 provides that the condition of socially and  educationally backward classes is to be investigated  imperatively. Reference is also made to K.C. Vasanth

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Kumar and Anr. v. State of Karnataka (1985 Supp SCC  714) to submit that the policy of reservation for  employment and education should be necessarily reviewed.  It was noted in that case that a time has come to review the  criterion for identifying socially and educationally backward  classes ignoring the caste label. Identification is an  imperative requirement and cannot be by-passed on any  ipsi-dixi referring to out-dated data based on 1931 census.  The object of advancement of socially and educationally  backward classes undisputedly brings in the concept of  creamy layer. Certain institutions are basically super  specialty institutions e.g. All India Institute of Medical  Science (AIIMS). If the character of an institution of super  specialty of national importance is permitted to be affected  in the manner sought to be done it would be counted  productive.  That would affect quality of education.  

        About the Mandal Commission’s report, it has been  pointed out by Dr. Mittal who appears in person that  survey conducted selected 0.15 of the total villages  population and 7% of the district blocks. There is nothing  to suggest as to on what basis the particular village or  particular district was selected.  The Commission itself  distributed two groups (a) intermediate OBC and (b)  depressed OBC, which were equi-distributed. It has been  emphasized that the Mandal Commission while arriving at  the figure of 52% population of OBC had added 8.6%  population of other non Hindu communities. Thus, non  Hindu communities formed 17% of the total OBC  population. The management of social backwardness, it is  submitted, has to be dynamic which means that the  various measures to be adopted as a remedy have to be  time bound and reviewable.  

       In response, Mr. Gopal Subramanium, learned ASG  appearing for the Union has submitted that all the issues  that are being raised have been appropriately dealt with in  Indra Sawhney’s case (supra) and long earlier in Minor P.  Rajendra v. State of Madras and Ors. [1968 (2) SCR 786]. It  is submitted that reservation whether in employment or in  education is not violative of the basic structure or equality  code. Various provisions in the Constitution acknowledge  that reservation is an integral part of the principle of  equality where inequality exists. There is nothing wrong or  unconstitutional in specifying in terms of units of castes,  those who have been identified as "Socially and  Educationally Backward Classes" on the basis of criteria of  social and educational backwardness. Reservation is not  anti merit. In the absence of caste data after 1931, there  was no alternative but to project the population proportion  of social and educational backward classes and other  backward classes from the next best source i.e. latest  available census of 1931. The identification and listing of  such classes by Mandal Commission has nothing to do  with the census of 1931 but was based on multiple  approach in the contemporary context only and not in the  context of 1931.  

       Determination or classification as to which class  belongs to social and educational backward class or other  backward class as made by the Government of India is  valid and the Backward Classes Commission has a  statutory function of examining as to which class included  in the list is not really backward. Reservation policy is not  dis-integrative and is not against the unity and integrity of

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the nation. On the contrary, according to him, reservation  policy is a means of integrating the society disintegrated  over the centuries by the age old caste system. It is  submitted that the lists of OBCs identified on the basis of  social and educational backwardness have been  determined. The Ministry of Welfare (now named as  Ministry of Social Justice & Empowerment) is in charge of  the subject. There are State-wise lists. Once issued, these  lists continue to be in force and are binding for any or all  purposes, subject to modifications, deletions, additions  from  time to time in accordance with the Backward  Classes Act and in the light of decision in Indra Sawhney’s  case (supra).  

       The lists of Scheduled Castes and Scheduled Tribes  categories covered by Clause (h) and (i) of Section 2 have  already been notified in the past, and are subject to  changes in accordance with Articles 341 and 342 of the  Constitution.  

       The fact that there has been centuries long historical  oppression in relation to Scheduled Castes and Scheduled  Tribes and Socially and Educationally Backward Classes  and Other Backward Classes, has been recognized by this  Court  in Indra Sawhney’s case (supra).  

       Reference is also made to the decision of this Court in  State of A.P. v. U.S.V. Balram (1972 (1) SCC 660) which  was referred to in Indra Sawhney’s case (supra).          The contentions, as noted above, have not only  focused on legal issues but also on factors of great social  relevance.  The issues need deeper consideration in the  background of their legal and social importance. The only  question is whether it would be desirable to stay process of  implementation of the Act and, if so, to what extent.  

       There is no dispute and in fact it was fairly accepted  by learned Additional Solicitor General that there is need  for periodical identification of the backward citizens and for  this purpose the need for survey of entire population on the  basis of an acceptable mechanism. What may have been  relevant in 1931 census may have some relevance but  cannot be the determinative factor. As was observed by this  Court in Nagaraj’s case (supra) backwardness has to be  based on objective factors whereas inadequacy has to  factually exist.                   Even in Indra Sawhney (II) [2000 (1) SCC 168] at Para  9 it was held as follows:          "9. Inclusion of castes in the list of backward classes  cannot be mechanical and cannot be done without  adequate relevant data. Nor can it be done for  extraneous reasons. Care should be taken that the  forward castes do not get included in the backward  castes’ list. In Indra Sawhney’ Pandian, J. observed  (SCC p. 408, para 174) that before a conclusion is  drawn that a caste is backward or is inadequately  represented in the services,  

"the existence of circumstances relevant to  the formation of opinions is a  sine qua  non. If the opinion suffers from the vice of  non-application of mind or formulation of  collateral grounds or beyond the scope of

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statute, or irrelevant and extraneous  material, then that opinion is  challengeable".

Sawant, J. (see para 539 of SCC) too pointed out the  need for proper application of mind to the facts and  circumstances, the field, the post and the extent of  existing representation and the need to balance  representation. On behalf of himself and three  others, Jeevan Reddy, J. pointed out (para 798 SCC)  that opinion in regard to backwardness and  inadequate representation must be based on  relevant material. The scope of judicial scrutiny even  with regard to matters relating to subjective  satisfaction are governed by the principles stated in  Barium Chemicals Ltd. v. Company Law Board (AIR  1967 SC 295). Likewise, periodic examination of a  backward class could lead to its  exclusion if it  ceases to be socially backward or if it is adequately  represented in the services. Once backward, always  backward is not acceptable. In any case, the "creamy  layer" has no place in the reservation system."

       The concept of creamy layer cannot prima facie be  considered to be irrelevant. It has also to be noted that  nowhere else in the world do castes, classes or  communities queue up for the sake of gaining backward  status. Nowhere else in the world is there competition to  assert backwardness and then to claim we are more  backward than you. This truth was recognized as unhappy  and disturbing situation and such situation was noted by  this Court as a stark reality in Indra Sawhney’s case  (supra).  

According to some jurists, equality as a fundamental  substantive norm is a characteristic feature of many  democratic Constitutions. In societies that are diverse or in  societies where certain groups of people were subjected to  discrimination in the past subscription to the norm of  equality necessitates an element of affirmative action. That  may be the underlying object of Article 15. In India the  "Varna" system of the early Vedic period was distorted and  became a rigid and hierarchical caste system which  resulted in lower castes being socially oppressed and  economically exploited. Whatever be the truth in this plea,  in the late 19th and early 20th century social reform  movements started. An eminent jurist has noted that the  equality provisions in the Indian Constitution were  intended to be a pro-active means of social engineering and  it is against this backdrop that the jurisprudence of  reservations has developed in the Indian context.  By  contrast, the scenario in United States and South Africa  can be looked at. The Constitution of US is older in point of  time than that of Indian or South African Constitution.   When it was initially adopted there was no mention of  equality. The institution of slavery was legally sanctioned. It  was only after the Civil War that the Thirteenth and  fourteenth amendments to the Constitution were enacted.  The institution of slavery was abolished and "equal  protection clause" came to be enacted.  

       The "separate but equal doctrine" was sanctified by  the decision of US Supreme Court in Plessy v. Ferguson

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(163 US 537). But the formal equality was established in  US after the decision in Brown v. Board of Education (347  US 483) and the Civil Rights Act, 1964. It is to be noted  that in both the United States and South Africa, the past  discrimination was along racial lines.   

       This Court has in several instances focused on the  question as to whether Articles 15(4) and 16(4) are a facet  of equality or a derogation from it.  

       Equality of opportunity is not simply a matter of legal  equality. Its existence depends not merely on the absence  of disabilities but on the presence of abilities. Where,  therefore, there is inequality in fact, legal equality always  tends to accentuate it. (See Dr. Pradeep Jain and Ors. v.  Union of India and Ors. (1984 (3) SCC 654).  

       In Indra Sawhney’s case (supra) it appears that  underlying principles which have been identified are  the  identification of class, which was held to be affirmative by  using castes as a proxy. The State was Constitutionally  empowered to enact affirmative action measures for  backward classes.         Differentiation or classifications for special preference  must not be unduly unfair for the persons left out of the  favoured groups.

       There is another question which has been emphasized  by learned counsel for the petitioners is that the policy of  reservation cannot be and should not be intended to be  permanent or perpetuate backwardness.           In a very significant judgment in Grutter v. Bollinger   (539 US 306) the US Supreme Court upheld the law school  admission programme because it found "compelling state  interest in diversity" in higher education. Referring to an  earlier judgment in Regents of University of California v.  Allan Bakke (438 US265) the US Supreme Court  by  majority held that the school’s interest in obtaining a  "critical mass" of minority students was indeed a "tailored  use". Majority opinion was to the effect that race conscious  admissions policies must be limited in time and that with  the efflux of time the use of racial preferences would no  longer be necessary.          According to South African Constitution the right in  the Bill of Rights may be limited so long as the limitation is  "justifiable in an open and democratic society based on  human dignity, equality and freedom". The justifiability of  the limitation must be assessed by evaluating the nature of  the right,  the nature and extent of the limitation, the  importance of the purpose of the limitation, the relation  between the limitation and the purpose and less restrictive  means to achieve the purpose.    

       It remains to be examined as to whether a different  form of preferential treatment other than quotas could be  employed as at some stage an affirmative action concept  can be focused in this direction also.  Though it is  submitted that the number of seats available for the  general category is not affected, but that is really no answer  to the broader issue.  

       If there is possibility of increase in seats in the  absence of reservation it could have gone to the general  category. If the stand of learned Additional Solicitor General

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is accepted that the exercise was not intended to be  undertaken immediately and the increase would be  staggered over a period of 3 years it could not be explained  as to why a firm data base could not be evolved first, so   that the exercise could be undertaken thereafter. By  increasing the number of seats for the purpose of  reservation unequals are treated as equals. The stand of  learned Additional Solicitor General is that imperfection  may be there in the data but so far as the existing  modalities are concerned there is no difficulty in adopting  the same.

       Another important factor which needs to be noted is  the concept of ’Creamy layer".

       In M. Nagaraj’s case (supra) it was inter-alia held as  follows:

       "123. However, in this case, as stated  above, the main issue concerns the "extent of  reservation". In this regard the State concerned  will have to show in each case the existence of  the compelling reasons, namely, backwardness,  inadequacy of representation and overall  administrative efficiency before making  provisions for reservation. As stated above, the  impugned provision is an enabling provision. The  State is not bound to make reservation for  SCs/STs in matters of promotions. However, if  they wish to exercise their discretion and make  such provision, the State has to collect  quantifiable data showing backwardness of the  class and inadequacy of representation of that  class in public employment in addition to  compliance with Article 335. It is made clear that  even if the State has compelling reasons, as  stated above, the State will have to see that its  reservation provision does not lead to  excessiveness so as to breach the ceiling limit of  50% or obliterate the creamy layer or extend the  reservation indefinitely."

       In Nair Service Society’s case (supra) it was noted as  follows:         "36. Recently, a Constitution Bench of this  Court in M. Nagaraj and Ors. v. Union of India  and Ors. has reaffirmed the importance of the  creamy layer principle in the scheme of equality  under the Constitution. This Court held that the  creamy layer principle was on of the important  limits on State power under the Equality Clause  enshrined under Articles 14 and 16 and any  violation of dilution of the same would render the  State action invalid. More precisely this Court  held:  

"As stated above, the boundaries of the  width of the power, namely, the ceiling-limit  of 5O% (the numerical benchmark), the  principle of creamy layer, the compelling  reasons, namely, backwardness,  inadequacy of representation and the  overall administrative efficiency are not  obliterated by the impugned amendments.

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At the appropriate time, we have to  consider the law as enacted by various  States providing for reservation if  challenged. At that time we have to see  whether limitations on the exercise of power  are violated. The State is free to exercise its  discretion of providing for reservation  subject to limitation, namely, that there  must exist compelling reasons of  backwardness, inadequacy of  representation in a class of post(s) keeping  in mind the overall administrative  efficiency. It is made clear that even if the  State has reasons to make reservation, as  stated above, if the impugned law violates  any of the above substantive limits on the  width of the power the same would be liable  to be set aside".

37. This Court reiterated the limit on State power  imposed by the creamy layer rule and the  invalidity of any State action in violation of the  same by concluding as follows:

"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. However, in this  case, as stated, the main issue concerns  the "extent of reservation". In this regard  the concerned State will have to show in  each case the existence of the compelling  reasons, namely, backwardness,  inadequacy of representation and overall  administrative efficiency before making  provision for reservation. As stated above,  the impugned provision is an enabling  provision. The State is not bound to make  reservation for SC/ST in matter of  promotions. However if they wish to  exercise their discretion and make such  provision, the State has to collect  quantifiable data showing backwardness of  the class and inadequacy of representation  of that class in public employment in  addition to compliance of Article 335. It is  made clear that even if the State has  compelling reasons, as stated above, the  State will have to see that its reservation  provision does not lead to excessiveness so  as to breach the ceiling-limit of 50% or  obliterate the creamy layer or extend the  reservation indefinitely".

38. This Court rationalized the creamy layer rule  as a necessary bargain between the competing  ends of caste based reservations and the  principle of secularism. The Court opined:

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"In Indra Sawhney this Court has,  therefore, accepted caste as determinant of  backwardness and yet it has struck a  balance with the principle of secularism  which is the basic feature of the  Constitution by bringing in the concept of  creamy layer".

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

It, therefore, needs no reiteration that the creamy  layer rule is a necessary bargain between the competing  ends of caste based reservations and the principle of  secularism.  It is a part of constitutional scheme.  Therefore  these cases have to be examined in detail as to whether the  stand of Union of India that creamy layer rule is applicable  to only Article 16(4) and not Article 15(5) is based on any  sound foundation. That is more so because the lists  relatable to Article 16(4) form the foundational base for  Article 15(5).           In the background of what has been explained above,  it would be desirable to keep in hold the operation of the  Act so far as it relates to Section 6 thereof for the OBCs  category only. We make it clear that we are not staying  operation of the Statute, particularly, Section 6 so far as  the Scheduled Castes and Scheduled Tribes candidates are  concerned. It would be permissible for the respondent- Union of India to initiate or continue process, if any, for  determining on a broad based foundation "Other Backward  Classes" notwithstanding pendency of the cases before this  Court and without prejudice to the issues involved.  

       The writ petitions be listed in the 3rd week of August,  2007 for final hearing. I.A. is accordingly disposed of.