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PETITIONER: INDIRA SAWHNEY

       Vs.

RESPONDENT: UNION OF INDIA AND ORS.

DATE OF JUDGMENT:       13/12/1999

BENCH: D.P.Wadhwa, M.J.Rao, M.B.Shah

JUDGMENT:

     M.  JAGANNADHA RAO,J.

     The  cases in this batch raise common issues  relating to  the identification of ’creamy layer’ among the  Backward Classes in the State of Kerala and the implementation of the law  declared  and directions issued in Indira  Sawhney  Vs. Union  of  India ( 1992 (Suppl) 3, SCC 217).  The  State  of Kerala  took  time for implementation of the  directions  in Indira  Sawhney  for  appointment of a  Commission  for  the purpose  of identifying the creamy layer in the State but it failed  to  appoint  a  Commission or to  proceed  with  the implementation.   Indira  Sawhney was decided in 1992.   For more  than three years the State of Kerala did not implement the  judgment.  This Court by its order dated 10.7.1995 held (  in IAs.  35, 36 filed by the State for extension of  time etc.)  that  the State of Kerala, represented by  its  Chief Secretary  was  guilty  of  contempt   but  gave  a  further opportunity to the state to purge the contempt and adjourned the  matter  to  11.9.1995.  It was made clear that  if  the directions  of this Court were not complied with, the  Chief Secretary  would ’run the risk of being sentenced’.   Having sought  time  for years to appoint a Commission, the  Kerala Legislature then suddenly came forward with the Kerala State Backward  Classes ( Reservation of Appointments or Posts  in the  Services under the State) Act, 1995 which, in section 3 declared  that "having regard to known facts in existence in the  State  of Kerala, that there are no  socially  advanced sections  in any Backward Classes who have acquired capacity to  compete  with  forward classes" and  that  the  Backward classes  in  the State were not "adequately represented"  in the  services under the State and they would continue to  be entitled  to  reservation under Clause (4) of Article 16  of the Constitution.  The provisions of Section 4 continued the existing  system  of reservation which was in force  as  per Rules  made  in  1958 and Section 6 was  incorporated  as  a validating section with retrospective effect.  On the ground that  the provisions of this Act of 1995 were discriminatory and violative of Articles 14 and 16 of the Constitution, WP. 699  of  1995 was filed by the Nair service Society,  Kerala while  W.P.   727  of 1995 was filed by one  K.   Ramaswamy, belonging  to  the Elavami Community of Kerala  (a  Backward

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Community)  to  declare  the  provisions   of  the  Act   as unconstitutional  and violative of Articles 14 and 16 of the Constitution  of India.  Some IAs were filed by  interveners to  support  one or other of the rival groups.  The Act  was passed  on  2.9.95 but was given retrospective  effect  from 2.10.1992.

     As the State Government failed to appoint a Commission as  directed in Indira Sawhney, this Court, by an  elaborate order  dated  4.11.96 deemed it necessary to appoint a  High Level   Committee  to  gather   the  necessary   information regarding  ’creamy  layer’ and requested the Chief  Justice, Kerala  High  Court, to appoint a retired Judge of the  High Court  to be the Chairman of the High Level Committee.   The Chairman  of  the Committee, it was held, could  induct  not more  than  4 persons as members from various walks of  life "to  identify the creamy layer among the designated backward classes"  in the State of Kerala in the light of the  ruling of  this  Court in Indira Sawhney and forward its report  to the  Supreme Court within three months.  This Court directed the  State  Government to extend co-operation to  the  above Committee.   This Court also directed that the O.M.  of  the Government  of  India dated 8.9.93 ( Ministry  of  Personnel Public Grievances and Pensions) where the Central Government laid down guidelines for identification of the creamy layer, be  placed  before  the High Level Committee  "for  use  and guidance"  in identifying the ’creamy layer’ among the other Backward Classes in the State of Kerala.

     Accordingly,  the  Chief Justice of the High Court  of Kerala  nominated  Sri Justice K.J.  Joseph, as Chairman  of the  High  Level  Committee.   The   other  members  of  the Committee  were Sri O.C.  Vincent, IAS, Sri K.P.   Mohammed, Adv.,  Sri  K.   Aravindaksha  Menon,  Retd.   District  and Sessions Judge and Sri K.  Asokan, Retd.  Director of Public Relations.  The said Committee, after a public notification, received evidence and gave opportunity of hearing to various individuals,  communities  etc.   and submitted  its  report dated 4.8.97 to this Court identifying the "creamy layer" in the   Backward  Classes  of   Kerala   State.    Thereafter, objections  were  filed in this Court by various parties  to the  said report and that is how the matter has come  before us.

     We  do  not  propose just now to  decide  the  further course  of  action in the suo motu contempt  proceedings  in which the State of Kerala represented by its Chief Secretary was  held guilty of contempt and was given time to purge the contempt.   We make it clear that that issue is kept pending and  matter  will  be processed later, on the basis  of  the judgment in this case and the directions which we propose to issue at the end of this judgment.

     We  have  heard  arguments of Sri  Gopal  Subramaniam, learned  senior  counsel  as  Amicus   Curiae  and  of   Sri K.K.Venugopal, learned senior counsel who contended that the Kerala  Act  16/95  was unconstitutional  and  violative  of Articles  14,  16(1)  and  16(4).  We  heard  Sri  P.Krishna Moorthi,  learned senior counsel for the State of Kerala and Sri  Rajeev  Dhawan,  learned senior counsel  for  the  SNDP Yogam, Sri A.N.  Rajan Babu, Sri EMS Anam, Ms.  Lilly Thomas and  Sri V.J.  Francis and others who contended that the Act was  a  valid  piece  of   legislation.   Sri  K.N.   Raval, Additional  Solicitor  General  stated   that  the   Central Government stood by the O.M.  already issued.

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     The  issues  which presently arise before  this  Court are, as follows:

     (1)  What  is  the  law  declared  and  what  are  the directions  given  in  Indira Sawhney in regard  to  "creamy layer" in the context of Articles 14 and 16?

     (2)  Can  the declaration of law in regard to  "creamy layer"  in  the  context  of Articles 14 and  16  in  Indira Sawhney  and  in  other  rulings be  undone  by  the  Kerala Legislature  by a retrospective validating law containing  a statutory declaration whose effect is to say that no "creamy layer"  exists  in  the  State  of  Kerala?   (3)  Are   the provisions  of  sections  3,  4 and 6 of  the  Kerala  State Backward  Classes ( Reservation of Appointments or Posts  in the  Services) Act ( Act No.16/95) violative of Articles  14 and  16  of  the  Constitution of India?   (4)  Whether  the violation of Article 14(and Article 16) amounts to violation of the basic structure of the Constitution of India?

     (5)  If  the provisions of sections 3, 4 and 6 of  the Kerala  Act  16/95 are to be struck down, is the  Report  of High  Level  Committee headed by Justice K.J.  Joseph to  be accepted  and are there any valid objections to the  report? (6) If sections 3, 4 and 6 of the Kerala Act 16/95 are to be struck  down and the High Level Committee Report of  Justice K.J.   Joseph is accepted, what further directions are to be issued to the State of Kerala?

     POINT 1:  Our Constitution is wedded to the concept of equality  and  equality is a basic feature.   Under  Article 15(2),  there  is  a  prohibition   that  State  shall   not discriminate  against  any  citizen on the grounds  only  of religion,  race,  caste,  sex and place of birth or  any  of them.   It  is  equally  true that ours  is  a  caste-ridden society.   Still,  it  is a constitutional  mandate  not  to discriminate on the basis of caste alone.  Provisions can be made  for  the  upliftment  of  socially  and  educationally backward  classes,  scheduled castes or scheduled tribes  or for  women and children.  Article 16(4) empowers the  States for  making any provision for reservation in appointments or posts  in favour of any backward class of citizens which, in the  opinion of the State, is not adequately represented  in the  services  under the State.  Reservation is  permissible (i)  in favour of any backward class of citizens;  and  (ii) if  it  is not adequately represented in services under  the State.   Caste  only  cannot be the basis  for  reservation. Reservation  can  be  for  a backward  class  citizen  of  a particular  caste.  Therefore,from that caste, creamy  layer and  non-backward class of citizens are to be excluded.   If the caste is to be taken into consideration then for finding out  socially and economically backward class, creamy  layer of  the  caste is to be eliminated for granting  benefit  of reservation,  because that creamy layer cannot be termed  as socially  and  economically backward.  These  questions  are exhaustively  dealt with by a nine Judge Bench of this Court in  Indira Sawhney vs.  Union of India [1992 Suppl.  (3) SCC 217],  and  it  has been specially held  that  ‘only  caste’ cannot be the basis for reservation.

     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

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included  in  the backward castes list.  In Indira  Sawhney, Pandian,  J.   observed  (para  174   SCC)  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  the   statute,  or  irrelevant   and extraneous  material,  then the 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 Vs.   Company Law  Board  (  1966 Supple.  SCR 311).   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.

     If  forward  classes are mechanically included in  the list  of  backward  classes  or if the  creamy  layer  among backward  classes  is  not excluded, then  the  benefits  of reservation  will  not reach the really backward  among  the backward classes.  Most of the benefits will then be knocked away  by the forward castes and the creamy layer.  That will leave  the truly backward, backward for ever.  Jeevan Reddy, J.   while delivering the majority judgment, interalia, held as under:

     "If  the  real  object  is   to  discover  and  locate backwardness,  and if such backwardness is found in a caste, it  can be treated as backward;  if it is found in any other group,  section  or  class,  they  too  can  be  treated  as backward.   (See  Page  717 para 783).  Reservation  is  not being  made  under clause (4) in favour of a ‘caste’  but  a backward  class.   Once  a caste satisfies the  criteria  of backwardness,  it becomes a backward class for the  purposes of Article 16(4)." [See Page 718 Para 784].

     In paragraph 796, Jeevan Reddy, J.  has summarised the discussion under Question No.3 and, inter alia, as under:

     "A  caste can be and quite often is a social class  in India.   If it is backward socially, it would be a  backward class for the purposes of Article 16(4).

     Identification  of the backward classes can  certainly be done with reference to castes among, and alongwith, other groups,  classes  and  sections of people.   One  can  start process  with the castes, wherever they are found, apply the criteria (evolved for determining backwardness) and find out whether  it  satisfies  the  criteria.  If it  does  -  what emerges is a "backward class of citizens" within the meaning of  and for the purposes of Article 16(4).  Similar  process can  be  adopted in the case of other  occupational  groups, communities and classes, so as to cover the entire populace. The central idea and overall objective should be to consider

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all  available  groups,  sections and  classes  in  society. Since  caste  represents  an existing,  identifiable  social group  class  encompassing an overwhelming majority  of  the country’s population, one can well begin with it and then go to other groups, sections and classes."

     Court  further considered in Paragraph 800 and held as under:

     ".....while  answering  Question  3(b), we  said  that identification   of  backward  classes   can  be  done  with reference  to  castes along with other occupational  groups, communities  and  classes.  We did not say that that is  the only  permissible method.  Indeed, there may be some  groups or  classes in whose case caste may not be relevant to  all. For    example,     agricultural     labourers,    rickshaw- pullers/drivers,  street-hawkers etc.  may well qualify  for being designated as Backward Classes."

     We  shall  next  proceed to the question  relating  to ’creamy  layer’.   In  Indira Sawhney, on  the  question  of exclusion of ‘creamy layer’ from the Backward Classes, there was  agreement among eight out of the nine learned Judges of this  Court.   There  were five separate Judgments  in  this behalf  which  required the "creamy layer" to be  identified and  excluded.   The  judgment  of  Jeevan  Reddy,  J.   was rendered  for  himself and on behalf of three other  learned Judges,  Kania,  CJ and M.N.Venkatachaliah, A.M.Ahmadi,  JJ. (as they then were).  The said judgment laid emphasis on the relevance of caste and also stated that upon a member of the backward  class  reaching  an   "advanced  social  level  or status", he would no longer belong to the backward class and would  have to be weeded out.  Similar views were  expressed by  Sawant, Thommen, Kuldip Singh, and Sahai, JJ.  in  their separate  judgments.   It will be necessary to refer to  and summarise  briefly  the principles laid down in  these  five separate  judgments  for  that would provide the  basis  for decision on points 2 to 5.  While considering the concept of ‘means-test’  or ‘creamy layer’, which signifies  imposition of an income limit, for the purpose of excluding the persons (from  the  backward class) whose income is above  the  said limit,  in  paragraph 791, the Court has noted that  counsel for  the  States  of  Bihar, Tamil Nadu,  Kerala  and  other counsel   for   respondents  strongly   opposed   any   such distinction and submitted that once a class is identified as a  backward  class  after  applying  the  relevant  criteria including  the economic one, it is not permissible to  apply the  economic criteria once again and sub-divide a  backward class into two sub-categories.  The Court negatived the said contention  by holding that exclusion of such (creamy layer) socially  advanced  members  will make the ‘class’  a  truly backward  class  and  would  more  appropriately  serve  the purpose and object of clause (4).

     Jeevan  Reddy, J.  dealt with the ’creamy layer’ under question 3(d) (para 790, 792, 793 of SCC) and under question 10  (para  843,  844).   This  is  what  the  learned  Judge declared:  There are sections among the backward classes who are  highly  advanced, socially and educationally  and  they constitute  the  forward section of that  community.   These advanced  sections do not belong to the true backward class. They  are  "as  forward as any other forward  class  member" (para  790).   "If some of the members are far too  advanced socially   (which   in  the    context   necessarily   means economically   and  may  also   mean   educationally),   the

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connecting  thread  between  them and  the  remaining  class snaps.  They would be misfits in the class" (para 792).  The learned Judge said:

     "After  excluding  them  alone, would the class  be  a compact  class.  In fact, such exclusion benefits the  truly backward"

     A  line  has  to  be drawn, said  the  learned  Judge, between  the  forward  in the backward and the rest  of  the backward but it is to be ensured that what is given with one hand is not taken away by the other.  The basis of exclusion of  the  "creamy layer" must not be merely economic,  unless economic  advancement  is so high that it necessarily  means social  advancement, such as where a member becomes owner of a  factory and is himself able to give employment to others. In  such  a  case,  his income is a measure  of  his  social status.   In  the case of agriculturists, the line is to  be drawn  with  reference  to the  agricultural  land  holding. While  fixing  income as a measure, the limit is not  to  be such as to result in taking away with one hand what is given with  the  other.  The income limit must be such as to  mean and  signify  social  advancement.   There  are  again  some offices  in  various walks of life - the occupants of  which can  be  treated  as  socially  advanced,  "without  further inquiry",  such  as  IAS and IPS officers or others  in  All India  Services.  In the case of these persons, their social status  in  society  rises quite high and the person  is  no longer  socially  disadvantaged.   Their children  get  full opportunity  to realise their potential.  They are in no way handicapped  in the race of life.  Their income is also such that  they are above want.  It is but logical that  children of  such persons are not given the benefits of  reservation. If  the  categories  or  sections above  mentioned  are  not excluded,  the  truly disadvantaged members of the  backward class  to which they belong will be deprived of the benefits of  reservation.   The  Central  Government  is,  therefore, directed  (para  793)  to identify and  notify  the  "creamy layer"  within four months and after such notification,  the ’creamy layer’ within the backward class shall "cease" to be covered  by  the reservations under Article  16(4).   Jeevan Reddy,  J.   finally  directed (see question  10)  that  the exclusion of the creamy layer must be on the basis of social advancement and not on the basis of economic interest alone. Income  or the extent of property holding of a person is  to be  taken  as a measure of social advancement - and on  that basis  - the ’creamy layer’ within a given caste,  community or  occupational  group is to be excluded to arrive  at  the true  backward  class.   There is to be constituted  a  body which can go into these questions (para 847) as follows:

     "We  direct  that such a body be constituted  both  at Central  level  and  at the level of the State  within  four months  from  today  ........There   should  be  a  periodic revision  of these lists to exclude those who have ceased to be backward or for inclusion of new classes, as the case may be."

     The  creamy  layer ( see para 859, sub para 3(d))  can be,  and must be excluded.  Creamy layer has to be  excluded and  ‘economic criteria’ are to be adopted as an indicium or measure  of social advancement.  (Para 860, sub para 5)  The socially  advanced persons must be excluded.(para 861  (b)). That  is  how  Jeevan Reddy, J.   summarised  the  position. Sawant,J.  too accepted (para 553 of SCC) that "atleast some

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individuals  and families in the backward classes,-  however small   in  number,-  gain   sufficient  means  to   develop "capacities to compete" with others in every field.  That is an  undeniable fact.  Social advancement is to be judged  by the  ‘capacity to compete’ with forward castes, achieved  by the  members or sections of the backward classes.   Legally, therefore,  these persons or sections who reached that level are  not  entitled  any longer to be called as part  of  the backward  class  whatever their original birthmark.   Taking out these "forwards" from the "backwards" is ‘obligatory’ as these  persons have crossed the Rubicon (para 553-554).   On the  crucial  question as to what is meant by  "capacity  to compete",  the learned Judge explained (para 522) that if  a person  moves from Class IV service to Class III, that is no indication  that  he  has  reached such a  stage  of  social advancement  but if the person has successfully competed for "higher  level posts" or atleast "near those levels", he has reached such a state.  Thommen,J.  (para 287, 295, 296, 323) observed  that  if some members in a backward class  acquire the  necessary  financial strength to raise themselves,  the Constitution  does  not  extend to them  the  protection  of reservation.   The  creamy layer has to be "weeded out"  and excluded,  if  it  has attained  a  "certain  pre-determined economic  level".  Kuldip Singh, J.  (para 385) referred  to the "affluent" section of the backward class.  Comparatively "such  persons" in the backward class - though they may  not have acquired a higher level of education - are able to move in the society without being discriminated socially".  These persons practice discrimination against others in that group who  are  comparatively less rich.  It must be ensured  that these  persons  do not "chew up" the benefits meant for  the true  backward class.  "Economic ceiling" is to be fixed  to cut  off these persons from the benefits of reservation.  In the  result, the "means test" is imperative to skim off  the "affluent"  sections of backward classes.  Sahai, J.   (para 629) observed that the individuals among the collectivity or the  group  who  may  have achieved  a  "social  status"  or "economic  affluence", are disentitled to claim reservation. Candidates  who apply for selection must be made to disclose the  annual income of their parents which if it is beyond  a level,  they  cannot be allowed to claim to be part  of  the backward  class.  What is to be the limit must be decided by the State.  Income apart, provision is to be made that wards of  those  backward classes of persons who have  achieved  a particular  status in society be it political or economic or if   their  parents  are  in   higher  services  then   such individuals  must be precluded from availing the benefits of reservation.   Exclusion of "creamy layer" achieves a social purpose.  Any legislative or executive action to remove such persons    individually   or     collectively   cannot    be constitutionally invalid.

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

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backward class.  Those holding higher levels of agricultural land  holdings  or  getting income from property,  beyond  a limit, have to be excluded from the backward classes.  This, in  our  opinion, is a judicial "declaration" made  by  this Court.  The submission of Sri Rajeev Dhawan for the S.N.D.P. Yogam  that  the  above   separate  judgments  contain  mere illustrations  and  do  not contain any declaration  of  law cannot,  in  our opinion, be accepted.  Counsel also  relied upon observations in the judgment of Jeevan Reddy,J.  to the effect  that in such a big country as ours, norms may differ from  State to State or from region to region.  In our view, those  observations  do not detract from the declaration  of law  that the above sections belong to the creamy layer  and hence are to be kept outside the backward class.  We may add that some more categories of persons who can be said to have gone  outside the creamy layer are those "broad  categories" enumerated  in  the notification of the  Central  Government dated  8.9.93 pursuant to Indira Sawhney and the said  broad categorisation  has  been  accepted by this Court  in  Ashok Kumar  Thakur  Vs.  State of Bihar and Ors.  [1995  (5)  SCC 403]  as  valid.  With respect, we are in  entire  agreement with the principles laid down in Ashok Kumar Thakur.  We may point  out that the identification of creamy layer in  every backward  class is in fact based upon horizontal division of every  section  of the backward class into creamy  layer  or non-creamy  layer.  For example, if there are a dozen  named backward  classes  and  each have particular  percentage  of quota in the reservation, they can be arranged in a vertical distribution  one  after the other (see para 812  of  Indira Sawhney referring to vertical and horizontal divisions), and the  separate and the aggregate quota meant for them can  be spelled  out.   But in each of these named backward  classes listed  one  below  the other, it is not difficult  to  make horizontal   divisions   of    those    belonging   to   (i) constitutional  offices  (ii)   particular  services,  (iii) professions  (iv)  industry and trade (v) particular  income level  and  (vi)  particular holding of  property  etc.   to segregate  the creamy and non-creamy layers in each vertical sub-classification  of  backward  class  and  say  that  the children  of such persons in these horizontal  sub-divisions of  the backward classes will be creamy layer and  therefore outside  the  backward  classes.  This is  not  a  difficult exercise.   It  is  also  important to notice  that  such  a horizontal  division based on such norms will be  applicable not  only to those in the Backward Classes presently falling under  the norm but the norms or limits so set would also be applicable  to those reaching that level in the future.  May be,  as stated in the notification of the Central Government dated  8.9.93 issued pursuant to Indira Sawhney, the  income levels  may  have to be reasonably upgraded periodically  to set off inflation.  Subject to such a reasonable revision in the norms, if any, periodically, the norms whether laid down by  the  Central  Government or the State  Governments  must apply  not  only for the immediate present but also for  the future.   This, in our view, was the declaration of law made in  Indira Sawhney and in Ashok Kumar Thakur in relation  to identification and exclusion of creamy layer.  So far as the directions  in  Indira Sawhney are concerned, they are  that the  Central  and  State Governments are obliged  to  create separate  bodies which will identify the creamy layer in the backward  classes  within a time frame.  Point 1 is  decided accordingly.   POINT 2 and 3:  These two points are  crucial to the case.  Under these points, we shall now deal with the validity  of  the  Kerala Act (Act  16/95).   (i)Equals  and unequals,  twin  aspects:   As  the ’creamy  layer’  in  the

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

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

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

     (ii)Validation:

     The  question  of validation arises in the context  of section  6 of the Act.  It is true that whenever legislative or  executive  action is declared as being violative of  the provisions  of  Part  III of the Constitution,  it  will  be permissible  for the Executive or Legislature to remove  the defect  which is the cause for discrimination  prospectively and  which  defect has been pointed out by the  Court.   The defect  can  be removed retrospectively too  by  legislative action  and the previous actions can also be validated.  But where  there is a mere validation with retrospective effect, without   the  defect  being   legislatively  removed   with retrospective  effect, the legislative action will amount to overruling  the judgment of the courts by way of legislative fiat  and will be invalid as being contrary to the  doctrine of separation of powers.

     In  the context of the law laid down in Indira Sawhney and  in  Ashok Kumar Thakur if the legislature of any  State does  not take steps to remove the defect or to  effectively and  realistically remove the defect to exclude the  ’creamy layer’  from  the  backward  classes then  the  benefits  of reservations  which are invalidly continued in favour of the ’creamy  layer’  cannot  be declared  retrospectively  valid merely  by a legislative declaration that such creamy  layer is  absent as done by section 3 of the Kerala Act.  Nor  can it be done by means of the validating provision contained in section 6 of that Act.  The creamy layer principle laid down in Indira Sawhney, cannot be ignored as done by section 6 of the  said Act.  We shall elaborate these aspects later.   If under  the  guise of elimination of the ’creamy layer’,  the legislature  makes  a  law  which  is  not  indeed  a   true elimination  but  is seen by the Court to be a  mere  cloak, then  the  Court will necessarily strike down such a law  as violative  of  principle  of  separation of  powers  and  of Articles 14, 16(1) and Article 16(4).

     (iii)Ashok  Kumar  Thakur  -  a  case  of  unrealistic

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elimination  but  Central  Government’s O.M.   dated  8.9.93 approved:   Such a case of unrealistic elimination of creamy layer came up before this Court from Bihar and Uttar Pradesh and  we  shall  refer to the same.  This happened  in  Ashok Kumar  Thakur  Vs.  State of Bihar and Ors.  [1995  (5)  SCC 403],  already  referred  to.  There the position  was  that unrealistically  high  levels of income or holding or  other conditions  were prescribed by the Legislatures of Bihar and Uttar  Pradesh  under the Bihar Reservation of vacancies  in Posts  and Services (Amendment) Ordinance, 1995 ( 5 of 1995) and  Schedule II read with Section 3(b) of the U.P.   Public Services  Reservation  for  Schedules Castes  and  Scheduled Tribes and other Backward Classes Act, 1994 ( Act 4 of 1994) respectively.   In that case, so far as Bihar was concerned, Schedule  III (except clause I), of the Bihar Ordinance  and so  far  as UP was concerned, Schedule II read with  Section 3(b)  of the U.P.  Act were therefore quashed by this Court, on the ground of discrimination.

     While  dealing with these Acts, this Court referred to the  fact that pursuant to Indira Sawhney the Government  of India  had appointed a Commission presided over by a retired Judge  of  the High Court of Patna and on the basis  of  the Report of the Commission, it had issued an office Memorandum dated   8.9.93  designating  (A)   Children  of  holders  of Constitutional  posts  like (a) President of India (b)  Vice President of India, (c) Judges of the Supreme Court and High Courts,  (d)  Chairman and Members of UPSC and State  Public Service Commission, Chief Election Commissioner, Comptroller and   Auditor-General   of  India,   (e)   Persons   holding constitutional   positions   of   like  nature,   (B)Service category:  children of (a) parents, Group A/Class I officers of  All  India Central Services and State Services (  direct recruits)  where  both  or one of the parents  are  Class  I officers,  subject to certain conditions;  children of Group B/Class  II  officers  of the Central and State  Services  ( direct   recruitment),   subject  to   certain   conditions; children  of employees of Public Sector Undertakings, Banks, Insurance   Organisations,   Universities   etc.    and   in comparable  posts  and positions under  private  employment; children  of  members  of  Armed  Forces  and  Para-Military Forces;   (C)Professional  Category:  children of  those  in professional  class  or those engaged in Trade and  Industry beyond  a  particular  income limit;  (D)Property  owners  ( agricultural   holdings),   Plantations,   Vacant  land   or buildings  in  Urban areas or urban  agglomerations  holding property  beyond a particular extent - as being outside  the Backward  Classes.  In respect of the above, Para VI of  the Schedule  to  the O.M.  dated 8.9.93 gave the  gross  annual income  limits of rupees 1 lakh and above, subject to upward modification of the limits every 3 years etc.  Various other conditions  were also imposed.  Care was taken by the O.M to see  that none from the creamy layer could escape the net of exclusion  from the Backward Classes.  This Court, in  Ashok Kumar  Thakur  after  referring  to  the  above  guidelines, observed  that  the  criteria fixed in the  O.M.   were  "in conformity  with  the law laid down by this Court in  Mandal case"  and that the Court had no hesitation in approving the said  criteria  as  being reasonable.  In the light  of  the criteria  so approved, this Court considered the validity of the  Bihar  and  U.P.   Legislations   and  held  that   the unreasonably  high limits or other norms fixed by the  Bihar and U.P.  Legislatures were "contrary to the guidelines laid down  by this Court in Mandal Case" as they would not result in  the elimination of the creamy layer.  It was pointed out

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that  the  conditions laid down by the States of  Bihar  and U.P.   had no "nexus" with the object sought to be achieved. Since  the conditions were not severable, the criteria  laid down  in  each  of the legislations as a whole  were  struck down.  The Court held:  ( see para 17)

     "The  Backward  class  under Article 16(4)  means  the class  which has no element of ’creamy layer’ in it.  It  is mandatory under Article 16(4) - as interpreted by this Court -  that  the  State must identify the ’creamy  layer’  in  a backward  class  and  thereafter, by excluding  the  ’creamy layer’  extend the benefit of reservation to the class which remains after such exclusion."

     The  Court observed that the States of Bihar and Uttar Pradesh had acted in a wholly arbitrary fashion and in utter violation of the law laid down in Mandal case.  However, the principle of prospective overruling was invoked.  The States were  directed  to lay down fresh criteria and till then  it was  directed  that  the criteria laid down in  the  Central Government"s  O.M.  dated 8.9.93 were to apply in Bihar  and Uttar  Pradesh.   We are in entire agreement with the  views expressed  in  Ashok Kumar Thakur.  (iv)The Validity of  the Kerala Act:

     We  shall now take up the question as to the  validity of  the  law enacted by the Kerala Legislature.  It will  be seen  that  the  Kerala   Legislature  followed  a  somewhat different  route  to allow the creamy layer to  continue  to unlawfully  enjoy  the  benefits of  reservation  meant  for backward   classes.   We  shall   refer  initially  to   the provisions  contained in the six sections of the Kerala  Act 16/95.

     "(1)  Short  title, extent and commencement- (i)  This Act  may  be  called  the   Kerala  State  Backward  Classes (Reservation  of appointments or posts in the service  under the State) Act, 1995.

     (ii) It extends to the whole of the State of Kerala.

     (iii)  Section  5 of this Act shall be deemed to  have come  into  force  on the 12th day of March,  1993  and  the remaining  provisions  of this Act shall be deemed  to  have come into force on the 2nd day of October, 1992.

     (2)  Definitions:-  In  this Act, unless  the  context otherwise requires, -

     (a)  Commission means the Kerala State Commission  for Backward  Classes constituted under Section 3 of the  Kerala State  Commission  for  Backward Classes Act,  1993  (11  of 1993).

     (b)  Backward  Classes means such Backward Classes  of citizens  (  other  than   Scheduled  castes  and  Scheduled tribes),  as specified by the Government from time to  time, and  included  in List III of the Schedule to Part I of  the Kerala  State  and Subordinate Services Rules,  1958  framed under Article 309 of the Constitution..

     (c) Government’s means the Government of Kerala.

     (d) ’State’ means the State of Kerala.

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     (3)  Declaration:   -It  is  hereby  declared,  having regard to known facts in existence in the State --

     (a)  that  there are no socially advanced sections  in any  Backward Classes who have acquired capacity to  compete with forward classes;  and

     (b)  that the Backward Classes in the State are  still not  adequately represented in the services under the  State and they continue to be entitled to reservation under clause (4) of Article 16 of the Constitution.

     (4)  Reservation  of  appointments  or  posts  in  the services under the State:

     Notwithstanding  anything  contained in any law or  in any  judgment,  decree  or  order  of  any  court  or  other authority  having  regard  to  the  social  and  educational backwardness of the Backward Classes of citizens, the system of  reservations as in force on the date of commencement  of this  Act, as laid down in rules 14 to 17 of Part II of  the Kerala  state  and  Subordinate  Services  Rules,  1958,  in appointments  and posts in the services under the State  for the Backward Classes of citizens shall continue as such, for the present.

     (5)  Additional  function  of  the  Commission  -  The Commission  shall,  in  addition to  the  functions  already conferred  under  the Kerala State Commission  for  Backward Classes  Act, 1993 ( 11 of 1993) evaluate from time to  time the  degree  of  backwardness of the Backward  Classes,  and shall  submit periodical reports to the Legislative Assembly of the State.

     (6) Validation - Notwithstanding anything contained in any  judgment,  decree  or  order  of  any  court  or  other authority  the  reservation of appointments or posts in  the services  under  the  State  for  the  Backward  Classes  of citizens  made, on the basis of the system of reservation as laid  down in rules 14 to 17 of Part II of the Kerala  State and  Subordinate  Services  Rules,   1958,  shall,  for  all purpose,  be  deemed to be and to have always  been  validly made,  in accordance with law, as if this Act had been force at all material times when such reservations had been made".

     (v)Events  leading to the passing of the Kerala Act of 1995:   It  will be useful to note the background of  events which  led to the passing of the above Act.  (Some of  these events  are  set  out in the long Preamble to  the  Act)  On account of the inaction of the State of Kerala - in spite of extensions  of  time  in implementing Indira  Sawhney  -  in appointing  a Commission to identify the creamy layer,  this Court  felt  "vexed" and issued contempt notice on  20.3.95. Pursuant  to  that  notice on 10.7.95, the State  of  Kerala filed  an  affidavit stating that it had already passed  the Kerala  Act  11/93 on 17.4.93 appointing a Commission  which could go into this issue but that the said Commission stated that  it  had  no jurisdiction to go into  the  question  of ’creamy  layer’  as per the provisions in that Act of  1993. The affidavit then stated that the matter was referred again to  the  Commission  on 13.10.93, a meeting  took  place  on 10.5.94,  that the Commission again refused to identify  the

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creamy  layer,  that a Bill was then contemplated  to  amend Kerala  Act 11/93 to confer powers on the said Commission to go  into this issue as well, that in the meantime, the State constituted  the Justice Khalid Committee on 8.7.95.  In our opinion,  these  events were set out in the above  affidavit filed  by  the  Chief Secretary only to ward off  any  penal action  for  contempt of this Court.  The above  explanation was  naturally  found to be wholly unsatisfactory  and  this Court  held,  in its order dated 10.7.95, that the State  of Kerala  represented  by  its Chief Secretary  had  acted  in "wilful  disobedience" of the orders of this Court and  that it had committed contempt of Court.  This Court granted time till  11.9.95 to the State of Kerala to purge itself of  the contempt.   It appears that there was then a Cabinet meeting on 13.7.95, that thereafter it was decided on 14.7.95 that a Standing  Committee  should  go into the question  but  that instead,  it  was  suddenly  decided  on  27.7.95  that  the "existing  system be continued".  Then Act 16/95 was  passed on  31.8.95  to  give  effect to  that  decision.   The  Act received  the  assent of the Governor on 2.9.95  and  became effective  retrospectively  from  2.10.1992,  thus  allowing existing  reservations  to  continue with  full  force.   In effect  no  creamy layer was identified.  As per  sub-clause (a)  of Section 3 of the Act it was declared that in view of "known  facts",  the  Legislature was of the view  that  "no section of any backward class in the State of Kerala who had acquired capacity "to compete with forward classes".  As per clause  (b),  it was stated that Backward Classes  were  not still  adequately represented in the public services of  the State.  Section 4, therefore, continued the 1958 scenario of Backward  Classes  without  excluding the creamy  layer  and section 6 spoke of retrospective validation.

     (vi)  Legislative declaration of facts is amenable  to scrutiny by Court:

     Before  we go into the validity of sub-clause (a)  and (b)  of  section  3,  it is necessary to  find  out  if  the legislative declaration of "known facts" in section 3 of the Act is amenable to judicial scrutiny.

     It  is  now  fairly  well  settled,  that  legislative declarations  of  facts are not beyond judicial scrutiny  in the  Constitutional  context  of  Articles 14  and  16.   In Keshavananda  Bharati  Vs.   State of Kerala [1973  (4)  SCC 225],  the  question arose - in the context  of  legislative declarations made for purposes of Article 31-C - whether the court  was  precluded from lifting the veil,  examining  the facts  and holding such legislative declarations as invalid. The  said issue was dealt with in various judgments in  that case,  e.g.   Judgments  of  Ray, J.  (  as  he  then  was), Palekar,  Khanna,  Mathew,  Dwivedi,JJ,  and  Beg,  J.   and Chandrachud,  J.   (as they then were ) (see summary at  PP. 304-L to O in SCC).  The learned Judges held that the Courts could  lift the veil and examine the position in spite of  a legislative   declaration.   Ray,  J.    (as  he  then  was) observed:

     "The Court can tear the veil to decide the real nature of the statute if the facts and circumstances warrant such a course"....."a   conclusive   declaration   would   not   be permissible so as to defeat a fundamental right".

     Palekar, J.  said that if the legislation was merely a

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pretence  and the object was discrimination, the validity of the  statute could be examined by the Court  notwithstanding the  declaration  made  by the Legislature and  the  learned Judge  referred to Charles Russell vs.  The Queen [(1882)  7 AC  829]  and  to Attorney General vs.   Queen  Inswane  Co. [(1878)  3  AC 1090].  Khanna,J.  held that the  declaration could  not preclude judicial scrutiny.  Mathew,J.  held that declarations were amenable to judicial scrutiny.  If the law was passed only ’ostensibly’ but was in truth and substance, one  for accomplishing an unauthorised object, the Court, it was  held, would be entitled to tear the veil.  Beg,J.(as he then was) held that the declaration by the legislature would not preclude a judicial examination.  Dwivedi, J.  said that the  Courts  retain  the power in spite of Article  31-C  to determine  the correctness of the declaration.  Chandrachud, J.   (as he then was) held that the declaration could not be utilised  as  a cloak to evade the law and  the  declaration would not preclude the jurisdiction of the Courts to examine the  facts.  This being the legal position, this Court could certainly  examine  whether  the  so  called  "known  facts" referred to in section 3 were indeed non-existent.

     (vii)Sub-clause  (a)  of  Section 3:  Did  the  Kerala Legislature  have any facts before it to say in effect  that there  was  no  creamy layer?  Sub-clause (a) of  section  3 states  that according to "known facts" the backward classes in  the  State were not having the capacity to compete  with forward classes i.e.  in effect, there is no creamy layer in the Kerala State.

     But Aldous Huxley said:

     "Facts do not cease to exist because they are ignored"

     (A Note on Dogmas)

     The words in sub-clause (a) of section 3 are obviously drawn  from  the judgment of Sawant, J.  in  Indira  Sawhney which  refers to "capacity to compete with forward classes". We shall, therefore, have to examine whether the legislative declaration  in  section  3  of the Act that  there  is,  in effect,  no creamy layer in the State of Kerala is one  made by  ignoring  facts which do exist.  We shall now  refer  to various  facts  and circumstances as they exist to  disprove the statement made in section 3 of the Act:

     (a)  The  Kerala State initially requested this  Court for  extension  of time to appoint a Commission to  identify the  creamy  layer.   It,  in   fact,  created  a  statutory Commission  by  Kerala  Act 11 of 1993 and  asked  the  said Commission  constituted under that Act to go into the  above question.   The  Commission, it is true, refused to go  into this question stating that it had no jurisdiction to go into the  said question under that Act.  (b) Again, even as  late as 8.7.95, the State of Kerala did feel the need to identify the   ’creamy  layer’  and  it  appointed   Justice   Khalid Committee.   But  within three weeks, suddenly  on  27.7.95, there  was a volte face and it was decided "to continue  the existing  system"  of reservations with full  force  without excluding the creamy layer.  It is obvious and is not denied that between 8.7.95 and 27.7.95, the State gathered no fresh material  to  compel  the State to abandon the idea  and  to suddenly  turn around and declare that there was, in effect, no  ’creamy layer’ in the State of Kerala.  (c) Further,  in

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the  affidavit dated 16.7.1995 filed by the Chief  Secretary of  Kerala  in  this Court - a few days before the  Act  was passed  on  31.8.1995  - it was more or less  admitted  that there was a "creamy layer" among the backward classes in the State   of  Kerala.   The   following  paragraph  from  that affidavit is significant:

     "Reservation  in  appointments for the public  service for  socially and educationally backward classes has been in operation in this State for the last about 40 years, and all members  of the other Backward Classes, irrespective of  the fact whether individuals among them are socially advanced_or not, are enjoying the benefit."

     The   underlined  words,  in   our  view,  contain  an admission  as  to  the existence of a creamy layer,  to  the knowledge  of  the State Government.  (d) In  addition,  the doubts,  if  any,  in  this behalf are set at  rest  by  the findings contained in the Report of the High Level Committee headed  by Justice K.J.  Joseph (to which we shall refer  in detail  under points 4 and 5).  That Report shows that there is  a  creamy layer in the Backward Classes of the State  of Kerala and it is not difficult to identify the same.

     (e)  We may again point out that, as a matter of  law, it  is  clear that six out of nine Judges in Indira  Sawhney made  a judicial declaration as stated under Point 1, as  to the  class of persons who would belong to the creamy  layer. This  declaration  of  law  made by this  Court  is  clearly applicable  to  the  State  of   Kerala  also.   The  Kerala Legislature  cannot,  in our opinion, refuse to accept  this declaration  of  law  nor  can it declare  anything  to  the contrary.

     In  the  judgment  of  six learned  Judges  in  Indira Sawhney,  as stated earlier, there is a specific declaration of  law  that the children of IAS, IPS and other  All  India Services  in the Backward Classes are creamy layer and  this is  true "without further inquiry".  These persons are to be deemed, in law and, in fact, to have reached such a level of social advancement that they cease to belong to the backward class.   The  judgment  also refers to a  classification  of "affluent"  sections identified by way of income or property holding.

     (f)  Further,  in Ashok Kumar Thakur it was held as  a matter of law that certain broad categories mentioned in the O.M.   of  the  Central Govt.  dated 8.9.93  belong  to  the creamy  layer.  There was no answer from the State of Kerala as to why the same categories as mentioned in Indira Sawhney or  those mentioned in the O.M., as approved in Ashok  Kumar Thakur could not be declared as creamy layer, subject to any realistic  modification of the income or holding levels,  if need  be.   It was not the case of the State before us  that these  categories, which form the vertical divisions of  the backward  classes,(as  pointed out under point 1) were  non- existent  so far as Kerala State was concerned.  It was  not also  its  case  that such a class of persons would  not  be existent in future in the Backward Classes of the State.

     If  the  Kerala Government and the Kerala  Legislature meant  in  their declaration in sub-clause (a) of section  3 that there was, in effect, no ’creamy layer’ in the State of Kerala,  among the notified Backward classes, then they must go  to the length of stating that there was none who had  so

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far  been  recruited to the aforementioned services of  IAS, IPS etc.  or none had come within broad categories listed in the   Central  Government’s  O.M.    dated  8.9.93  (   i.e. constitutional    functionaries,       service    personnel, professions,  men  in  business   and  industry  or  holding agriculture or urban land of those levels or near about), in the   Kerala  State.   In  fact   when  this  question   was specifically  put  across to the learned senior counsel  for the  State and to learned senior counsel for the SNDP  Yogam and  others, there was no answer and they could not deny the existence  of  the  above  horizontal  divisions  among  the backward   classes  in  Kerala.    (g)  Further,  the  broad categories and norms ( of parents belonging to the All India Services  etc.  or reaching a level of income or holding  ), referred  to above, are valid not merely for the present but for  the future also.  As and when, any particular member of the  Backward  Classes  gets entry to IAS or  IPS  etc.,  or reaches  the  prescribed  reasonable   level  of  income  of holding, their children will have to be treated as belonging to  creamy layer.  May be, certain income levels have to  be periodically upgraded to keep pace with inflation.

     Surely,  the  Kerala Legislature cannot prophesy  that none  from the Backward Classes in the State will ever enter these  services or reach these economic levels, in the  near or distant future.  It appears to us therefore, from what we have  stated  above in sub paras (a) to (g) that the  Kerala Act  had  shut its eyes to realities and facts and  it  came forward  with  a declaration in sub-clause (a) of Section  3 which,  perhaps, it was mistakenly believed was not amenable to judicial scrutiny.  Unfortunately, the law is otherwise.

     In  view  of the facts and circumstances, referred  to above,  we  hold that the declaration in sub-clause  (a)  of section  3  made by the legislature has no factual basis  in spite  of the use of the words ‘known facts’.  The facts and circumstances,  on the other hand, indicate to the contrary. In  our  opinion,  the declaration is a mere  cloak  and  is unrelated to facts in existence.  The declaration in section 3  (a) is, in addition, contrary to the principles laid down by  this Court in Indira Sawhney and in Ashok Kumar  Thakur. It  is, therefore, violative of Articles 14 and 16(1) of the Constitution  of  India.   Sub-clause (a) of section  3  is, therefore, declared unconstitutional.

     (viii)  Sub-clause  (b)  of   section  3:   Inadequate representation:   Section  3(b)  mixes   up  two   different concepts:

     Sub-clause  (b)  of section 3 states that there is  no adequate  representation  of  the backward  classes  in  the services  of the State of Kerala.  This is given as a reason for not excluding the creamy layer.  In our view, the Kerala Act  has mixed up two different concepts in this  sub-clause (b)  of  section 3.  Article 16(4), it will be seen,  is  an enabling  provision  which  permits  the  State  to  provide reservation  for Backward Classes if, in the opinion of  the State,  such  reservation is felt necessary and if there  is inadequate  representation.   Ajit  Singh II vs.   State  of Punjab  [1999 (7) SCC 209].  Lack of adequate representation of  a  particular  backward  class   may  be  a  factor  for consideration  by the State for providing reservation.  But, the said factor cannot be the sole ground for continuance of the  creamy layer in that backward class.  The first step no doubt  is the identification of the backward class which  is

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inadequately  represented.  But there is a second step  also and  that  is the elimination of the creamy layer  from  the Backward Class.  The second step cannot be mixed up with the first  step  nor  can  it be  forgotten.   An  argument  was advanced  by Sri Rajeev Dhawan that once the Backward  Class was identified by taking into account the economic criteria, it  was  not  permissible to take that factor  into  account again  a  second time for purpose of identifying the  creamy layer.   This contention, in our view, is no longer open  as it  was specifically rejected by Jeevan Reddy, J.  in Indira Sawhney  (see  para  791  of SCC) and was  accepted  by  the majority.  (ix)Inadequate representation of Backward Classes and efficiency of administration:

     The more important submission of Sri Rajeev Dhawan and other  counsel,  however is, that it may happen that if  the creamy  layer  is eliminated at the second  stage  mentioned above,  there  may  be practically no representation  for  a particular backward class in the public services because the remaining  members i.e.  the non-creamy layer, may not  have risen  to  the  level or standard necessary to  qualify  for entrance  into  the  service, even  within  the  reservation quota.  We are unable to agree with this contention.  Now if the  creamy  layer in such a class has reached a very  large percentage  so  as  to leave only a small part of  the  non- creamy  layer  of the concerned backward class to avail  the benefit of reservation, then the situation may indeed be one where  the  backward class concerned may itself have  to  be denotified.  Assuming that the percentage of creamy layer is not  large enough in such a backward class but is small, and if  it  is  the case that after elimination  of  the  creamy layer,  the  standard  of  the   non-creamy  layer  is   not sufficient  to  enable its members to enter public  services even  within  the reservation quota, then a larger and  more fundamental issue arises.

     The  question is whether assuming that once the creamy layer is excluded from backward classes the non-creamy layer in  that  backward  class  is not able  to  secure  adequate representation  even  within the quota, in  public  services because its members are not reaching the prescribed level of qualification  or standards for recruitment, - can that be a ground for non-exclusion of the creamy layer as contended by the State?

     It  is  true  there  is  no  specific   constitutional provision  in  relation  to  the  need  for  maintenance  of ‘efficiency  of  administration’ so far as backward  classes are  concerned (such as the special provision in Article 335 in  the  case of Schedule castes and Schedule Tribes).   But such  a principle of efficiency of administration is, in our opinion, equally paramount and is implied in Articles 14 and 16  of the Constitution even so far as backward classes  are concerned.   In Indira Sawhney, Sawant J pointed out (  para 434  of  SCC)  that  while  Article  16(4)  is  an  enabling provision,  Article  335 is in mandatory language.   Further though  there is no specific provision in regard to Backward Classes,  the  same  principle  underlying  Article  335  is applicable  to  Backward classes.  Sawant, J.  stated  (para 434 of SCC):

     "It   cannot,  however,  be   doubted  that  the  same considerations  will have to prevail while making provisions for reservations in favour of backward classes under Article 16(4).   To hold otherwise would not only be irrational  but

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discriminatory between two classes of backward citizens"

     i.e.   Scheduled  Castes/Scheduled  Tribes  and  other Backward  Classes.  The mere inadequate representation of  a particular  backward  class in public services flowing as  a consequence  of  exclusion  of creamy layer is  not  legally sufficient  to provide or continue reservation to the creamy layer.   Reservation  even for Backward classes can be  made only  if  it  will  not  undermine  the  efficiency  of  the administration  in the particular department.  In our  view, the  Constitution  has  not   envisaged  that   inadequately represented  backward  classes  are to be placed on  a  more favourable  footing  than inadequately represented  Schedule Castes/Tribes  for  that would offend Article 14 as  between two  sets of Backward Classes - namely the Scheduled  Castes and  the Other Backward Classes as pointed out by Sawant  J. In  our  opinion,  the qualifications, standard  and  talent necessary  for Backward Classes cannot be relaxed or reduced to   a   level   which  may   affect   the   efficiency   of administration.

     In  Ajit  Singh II vs.  State of Punjab [1999 (7)  SCC 209],  it was decided recently by the Constitution Bench  as follows:  (p.233):

     "It  is  necessary  to see that the rule  of  adequate representation  in  Article 16(4) for the  Backward  Classes administration......Thus,    in   the     matter   of    due representation  in  services for  Backward  Classes,......., maintenance  of efficiency in administration is of paramount importance."

     The  constitutional  principle that equals  cannot  be treated  unequally  and unequals cannot be  treated  equally based   on   Articles   14   and   16(1)   overrides   other considerations.   In  fact, in Indira Sawhney,  the  Supreme Court  itself declared that in certain departments, there is to be no reservation whatever even for backward classes.

     Thus,  assuming  that, when creamy layer is  excluded, there  will be inadequate representation of certain Backward classes  in services, that cannot be a valid reason for  the continued  inclusion  of  the creamy layer in  the  Backward Class, after Indira Sawhney.  For all the aforesaid reasons, sub-clause  (b)  of  section 3 does not  provide  any  valid answer for not eliminating the creamy layer and must also be held  to  be unconstitutional and violative of Articles  14, 16(1)  and 16(4) of the Constitution.  Thus, sub-clause  (a) and  (b)  of section 3 are both  declared  unconstitutional. (x)Section 4:

     We  next  come  to  section 4 of the  Act.   The  non- obstante  clause  in Section 4 is obviously intended to  get over  Indira  Sawhney and Ashok Kumar Thakur.   The  crucial words  of the section are:  "having regard to the social and educational  backwardness  of the backward classes"  in  the State  of  Kerala  -  as  in   force  on  the  date  of  the commencement  of the Act ( i.e.  2.10.1992).  Now, "backward classes"  have been defined in the Act as those referred  to in  section  2(b) of the Act.  That definition in  its  turn takes  us  to  the enumeration of Backward Classes  made  in 1958in  List  III of Schedule to part I of the Kerala  State and  Subordinate  Services  Rules,  1958  framed  under  the

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proviso to Article 309 of the Constitution.  In other words, section  4  provides for the continuance of reservation  for the  backward  classes  as they stood in 1958  ignoring  the directives  of  this  Court in 1992 in  Indira  Sawhney  for exclusion of ’creamy layer’.

     If indeed such continuance, as specified in section 4, of  these Backward Classes together with the creamy layer as was  in  existence  in 1958 is based  upon  the  Legislative declaration  in section 3, - then once section 3 is declared unconstitutional, section 4 too falls to the ground.  If, on the other hand, we assume that section 3 is not the basis of section  4, then the continuance of the 1958 scenario or the pre-Indira  Sawhney  position,  even as late  as  1995  when Section  4  was  enacted,  - will  amount  to  ignoring  the subsequent  judgments  of  this   Court  in  Indira  Sawhney rendered  in  1992  and Ashok Kumar Thakur in  1995  to  the effect that creamy layer is necessarily to be eliminated.

     The  non-obstante clause in section 4 too cannot  come to  the  rescue of the State.  As already stated,  the  said clause  cannot override the judgments of this court based on Articles 14, 16(1) and 16(4) if the defect is not removed by the   legislation.   Neither  Parliament   nor   the   State Legislature  can make any law to continue reservation to the creamy  layer inasmuch as the above judgments of this  Court are  based  on Articles 14 and 16(1) of the Constitution  of India,  and  no  law can obviously be made to  override  the provisions of Articles 14 and 16(1).

     Thus,  for the aforesaid reasons, section 4 of the Act along   with   the    non-obstante    clause   is   declared unconstitutional  and  violative  of the judgments  of  this Court  and also violative of Articles 14, 16(1) and 16(4) of the  Constitution of India.  (xi)Section 6:  We then come to section  6  of  the  Act   which  deals  with  retrospective validation.   This section again starts with a  non-obstante clause.   Obviously, the Kerala Legislature is having Indira Sawhney and Ashok Kumar Thakur in its mind, when it inserted the  non-obstante clause.  Once section 3 of the Act is held unconstitutional,  the  position  is  that  the  legislative declaration as to non-existence of creamy layer goes and the existence  of creamy layer becomes a staring reality.   That will  mean  that under the Act of 1995, the Legislature  has not  eliminated  the  defect.   Nor can section  4  in  this connection  be  of any help because that provision has  also been  declared as unconstitutional.  Section 6 cannot  stand alone  once sections 3 and 4 are declared  unconstitutional. As  long as the creamy layer is not excluded and the  defect continues,  any  validation  - without  elimination  of  the defect which is the basic cause of unconstitutionality - is, as  already stated, ineffective and will be invalid.   Thus, section  6  is  also unconstitutional.   For  the  aforesaid reasons, we declare under Points 2 and 3 that the provisions of  sections 3, 4 and 6 of the Act are unconstitutional  and violative  of  Articles 14, 16(1) and 16(4) and of  the  law laid  down  by this Court.  But with a view to  relieve  any hardship, we propose to issue certain directions under Point 4  and 5.  Our decision on points 2 and 3 will be subject to what we propose to direct under point 5 and 6.  Points 2 and 3 are decided accordingly.

     Point  4:  Article 14:(and Article 16 which is a facet

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of it) is part of the basic structure of the Constitution of India:

     The  preamble to the Constitution of India  emphasises the  principle of equality as basic to our constitution.  In Keshavananda  Bharati  vs.   State of Kerala [1973  (4)  SCC 225], it was ruled that even constitutional amendments which offended  the  basic structure of the Constitution would  be ultra vires the basic structure.  Sikri, CJ.  laid stress on the  basic  features  enumerated  in  the  preamble  to  the Constitution  and said that there were other basic  features too  which could be gathered from the Constitutional  scheme (para 506 A of SCC).  Equality was one of the basic features referred to in the Preamble to our Constitution.  Shelat and Grover,  JJ.  also referred to the basic rights referred  to in  the  Preamble.  They specifically referred  to  equality (para  520  and  535A of SCC).  Hegde &  Shelat,  JJ.   also referred  to the Preamble (paras 648, 652).  Ray, J.  (as he then was) also did so (para 886).  Jaganmohan Reddy, J.  too referred  to  the Preamble and the equality  doctrine  (para 1159).   Khanna,  J.   accepted this position  (para  1471). Mathew,  J.   referred to equality as a  basic  feature(para 1621).   Dwivedi, J.(para 1882, 1883) and Chandrachud, J.(as he  then was) (see para 2086) accepted this position.   What we  mean  to say is that Parliament and the legislatures  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 creamy  layer is not excluded or whether forward castes  get included  in the list of backward classes, the position will be the same, namely, that there will be a breach not only of Article  14 but of the basic structure of the  Constitution. The  non-exclusion  of the creamy layer or the inclusion  of forward  castes  in  the  list  of  backward  classes  will, therefore, be totally illegal.  Such an illegality offending the  root of the Constitution of India cannot be allowed  to be perpetuated even by Constitutional amendment.  The Kerala Legislature  is,  therefore, least competent  to  perpetuate such an illegal discrimination.  What even Parliament cannot do,  the Kerala Legislature cannot achieve.   Unfortunately, in the decision making process which enables the forwards to get  into the list of backward classes or which enables  the creamy layer to grab the benefits of reservation, it appears to  us  that the voice of the really backwards, namely,  the voice of the non-creamy layer, is nowhere heard.  Else there is  no reason why the State should decide not to exclude the ’creamy  layer’.  Point 4 is decided accordingly.  Points  5 and 6:

     We  have  already referred to the circumstances  under which  this  Court  was compelled to appoint  a  High  Level Committee  presided  over  by Justice  K.J.Joseph,  for  the purpose  of  identifying the ’creamy layer, in the  Backward Classes  in  the State of Kerala.  The Report is a  detailed one  and  runs  into  114   pages.   The  Committee  invited suggestions  and representations from the public as well  as from  the organisations representing the Backward Classes by newspaper  publications  in  December 1996, in  English  and Malayalam.   The  Committee  also gave personal  hearing  to various  individuals, bodies and organisations.  It received 596  representations  / suggestions till 15.1.97 by the  due date  and  177 representations after the due date.  Most  of the  parties  before  us  had represented  before  the  said Committee.    The  State  of  Kerala   did  not   file   any representation  before  the High Level Committee,  though  a

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request   was  made  on  13.1.97  to  permit  it   to   give suggestions.   The State Government placed the report of the subject’s  Committee before the High Level Committee and the said  Committee  went into the provisions of the Bill  which led  to  the  1995  Act.    The  Subjects-committee  of  the Legislature and other Committees and the organisations which contended  that  there was no creamy layer in  the  Backward Classes  in  the State relied mostly upon section 3  of  the 1995  Act.   Organisations which contended that there was  a creamy  layer  pointed  out  that the  declaration  made  in section 3 of the Act was contrary to existing facts and that the  Government  and the Legislature had no material  before them  to declare that there was no creamy layer in the State of  Kerala  nor  to  say that "no section  of  any  Backward Classes  reached  a  successful level  of  competition  with forward classes".

     We  shall  initially  refer to part I  of  the  report briefly.  The High Level Committee summarised Indira Sawhney in  detail  in  para  22 and 22A  (i)  and  22(A)(ii)  which summary,   we  may  state,   correctly  reflects  the  legal position.   The facts relating to representation of OBCs  in various  departments were considered in para 22 B(i) to para 22  B(ii).   In para 22B(xiii) it was stated that  from  the ranked   lists  published  by   the  Kerala  Public  Service Commission it was clear that:

     "there are sufficient qualified candidates applied for appointment  in  Public Services and included in the  ranked lists  from  among  the Other Backward  Communities  in  the State".

     It  was noticed from the records of the Public Service Commission that the statutory quota of 40% for OBCs - out of a  total  number  of  68,  893  advised  by  Public  Service Commission  during  1991-96,  - came to 27, 557,  while  the actual  number of Backward Class candidates advised was more that  40% i.e.  29, 346.  The High Level Committee  referred to  the Economic Review, published by the Kerala Government. It then held that:

     "even  if  the statutory reservation in favour of  any backward   class  is  not  satisfied   or  there   is   over representation,  the  same will not be a  justification  for giving  the  benefit of reservation under Article  16(4)  in favour of the affluent part of the Other Backward Classes".

     This  view of the Committee is in full conformity with what  we  have  stated under Points 2 and 3 in  relation  to validity  of  sub-clause (b) of section 3.  Para 22C (i)  to (ix)  deals with various facts and contentions and concludes by  saying  that  the apprehension that if creamy  layer  is excluded,  there will not be adequate representation, is not factually correct.

     In  para  22(D)  (iii), this  was  reiterated,  having regard to the fact that in 1991, literacy in Kerala was 91%. In  1996, it was almost 100%.  There were 6728 Lower Primary Schools,  2964 Upper Primary Schools and 2573 High  Schools. In  1995-96  21.98 lakh students enrolled in  Lower  Primary Sections,  18.12  lakh in Upper Primary Sections  and  16.16 lakhs in High Schools sections - in all 56.27 lakhs.  During this  period, 17,250 were in vocational schools in  1995-96.

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There  were again, 211 colleges in Kerala in 1996.  In 1996, 92,304  boys and 1.17 lakh girls were studying in pre-degree and  48,635 boys and 79,638 girls in degree classes and 2954 boys and 8206 girls in P.G.  classes.  According to the High Level  Committee  all these groups in schools  and  colleges contained   backward  classes   candidates.   Statistics  in Engineering  and  Medical  Colleges and  Nursing  were  also given.

     Thereafter,  the  Committee  referred to  the  Central Government’s O.M.  dated 8.9.93 in para 22F (i) and to Ashok Kumar  Thakur.  In para 22F (v), it was said that as in  the said  O.M,  so  in Kerala, the rule of exclusion  of  creamy layer  was not to be applied to Artisans or those engaged in hereditary  occupations,  callings like potters,  washermen, barbers  etc.  The list of such occupations prepared by  the Kerala  Artisans Development Corporation Ltd.  was accepted. Persons  traditionally  engaged in fishing  operations  were also  excluded in para 22F (vii).  The Committee referred in para 28 to various principles settled in Indira Sawhney.

     The  Committee  considered the O.M.  dated  8.9.93  as directed  by  this Court in its order.  The  Committee  held that  increase  in  cost of living index between  1992  when Indira  Sawhney was decided and the position in 1996 was  to be  kept  in mind.  There was an increase of 39.06%  in  the index  it was stated.  The increase in consumer price  index was also considered and it was held in paras 30, 31, 32 that the  income  level set in the Central Government’s O.M.   of 8.9.93  was to be modified upwards from one lakh to  Rs.1.50 lakhs gross income.  Para 33 dealt with the minimum scale of Rs.3000-5000 of group A officers/Grade I and of Rs.2500-4000 of Group B.  It was observed that the minimum in Central and State  Governments  in the All India Services  category  was Rs.2200-4000.    The  revision  proposed  in  the  5th   Pay Commission  was  far above these scales.  Paras 3, 4  and  5 dealt  with  agricultural  income   and  productivity.   The Committee  computed  these  figures  on the  basis  of  data furnished.  Para 36 dealt with professionals, those in Trade and Business and Industry.  On that basis, the criteria were fixed following the method adopted by the Central Government in  its O.M.  Annexure IX(a), IX(d), (IX(e), (X(f), IX(g) of the  Report give data relating to the over-representation of Ezhava/Thiyya,  Nadar, Converted Christians, Viswakarma  and Dheevan  Communities  in   various  Government  Departments. Annexure  IX(i) deals with departments where there is  over- representation  of  some  of the  Backward  Classes.   Other Annexures  deal  with  departments   where  there  is  under representation.

     We  finally  come  to Part II of the Report  which  is important  and  it  deals  with   the  criteria  fixed   for identifying  the  ’creamy  layer’ in the  Backward  classes. This runs into 17 pages.  Pages 1 to 4 deal with guidelines, Annexure  A  deals  with list of OBC, Annexures B and  C  to Artisan/persons  of  hereditary  occupations  excluded  from creamy  layer.   Annexure D deals with  fishermen  Community similarly  excluded.  Annexure E prescribes the certificate. Schedule at pages 13-17 deals with the prescribed norms.

     So  far as the guidelines are concerned, reference  is made  to the list of OBCs in the 1958 Service Rules, and  to the  40%, reservation for OBCs.  It was stated rightly  that those OBCs coming up on merit basis were to be excluded from 40%.   The  exclusion  of  creamy  layer  was  to  apply  in

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Government  and  public  sector,  Government  companies  and autonomous  Bodies  etc.   In the Schedule at  Pages  13-17, which  is  the  crucial  provision, the  method  adopted  is similar  to  that  in the Central Government"s  O.M.   dated 8.9.93.   First,  Constitutional  posts.  are  referred  to. These include among others Judges of the High Court, Supreme Court,  Chief  Ministers, Council of Ministers etc.,  Former Chief  Ministers  and former Council of Ministers  as  well. These  in all, are in 19 categories.  Then comes the Service category,  and the Central pattern is followed, referring to "Parents both or either" being in Group I and Group B posts; reference is made to those in Armed forces and Para Military forces  at various higher levels;  Professional Classes  and Trade and Industry were then referred to as follows:

     "persons  coming  within   wealth/means/income   group prescribed in category VI, apart from their social status as prescribed in the respective professions".

     and  contain  sub-categories  in  paras  (i)  t  (vi). Income level is fixed at Rs.1.50 lakhs gross for individuals and  Rs.20  lakhs  for  company   and  trusts  in  an  year. Societies  and Chief Executives/Chair persons of Cooperative Societies  are  also  included, income of society  fixed  at Rs.20  lakhs  per  annum.  Category 5  deals  with  property owners  -(A)  Agriculture holding of 5 hectares or more  for cardamom  or  coconut plantation/cultivation and 4  hectares for  persons/family  having rubber or coffee plantation  (B) refer  to vacant land as in category VI.  ’Family’  includes husband  and  wife and minor children.  Buildings  could  be residential,  industrial or commercial in use etc.  Para  VI deals with wealth or income from as follows:

     "person/persons  having gross annual income of Rs.1.50 lakhs  or  above  or possessing wealth above  the  exemption limit  as prescribed in the Wealth Tax Act for a period of 3 consecutive years;

     Explanation:   The  income criteria in terms of  rupee will  be  modified/amended suitably taking into account  the change

     in the value of money,every three years".

     We  are of the view that these guidelines and criteria are  on the same lines as those in the Central  Government’s O.M.  dated 8.9.93 which were accepted in Ashok Kumar Thakur as  reasonable.  In fact, there is now an upward increase of income  to  Rs.1.50  lakhs.  Having regard  to  Ashok  Kumar Thakur, we are clearly of the view that the above guidelines and  criteria  fixed  by the Justice  Joseph  Committee  are reasonable  so far as the State of Kerala is concerned.   In fact,  in the affidavit dated 16.1.1998 filed by the  Kerala State through its Chief Secretary, it was stated merely that there  were  a  few  mistakes, namely,  that  there  was  an omission  of 5 communities viz.  Kumbarans, Muslim, Thachar, Boyan  of Malabar District, Malayan - throughout the  State, except  Malabar  and  of  10  Sub-castes  viz.    Peroorkada Chetties,  Sadu Chetties, Manai Chetties (Chetty Community), Valan,  Nulayan, Paniakkal, Mukaya, Bobi Mukayan, Mukaveeran &  Valinjiar  (Dheevara Community), in the list prepared  by the Committee.  In our view, these would have to be included

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in  the  list  of  Backward Classes  in  addition  to  those mentioned  in  the Report of the High Level Committee.   The guidelines  &  criteria  fixed  by the  Committee  would  be applicable  to  these communities and sub-castes  also.   We direct  accordingly.  We have heard submissions on behalf of the  various  communities/interveners and looked into  their objections to the Committee’s Report.  Our attention was not invited  during  arguments  to  anything  in  particular  on law/facts which would fault the Committee’s Report.  Counsel virtually conceded that no material was placed in any of the objections  filed  in this Court to the guidelines/norms  in the  Report except to say that the Kerala Act of 1995 was  a complete answer to the points raised in the Report in favour identification of the creamy layer.  Some have raised points which  are already covered by what we have said under Points 1,2  and  3.   In fact, we may make it very  clear  that  no objection  of  any  substance was placed before  us  by  any counsel to contend that the guidelines or norms fixed by the High  Level  Committee  were  wrong.  Arguments  of  a  very general  nature  saying  that  creamy  layer  ought  not  be excluded,  were advanced.  We, therefore, hold that there is nothing  in the objections filed the parties which  requires to be specifically dealt with.  In the result, we accept the Justice  Joseph  Committee’s Report in toto subject  to  the addition of communities and sub-castes as pointed out in the affidavit of the State dated 16.1.98, referred to above.

     The next question is as to the further directions that we  have  to  give:   When the State  was  found  guilty  of deliberately  violating  orders of this court and the  order was  kept  in  abeyance and  subsequently,  legislation  was passed  by-passing  all norms of reasonableness,  should  we allow  the  State  to go scot-free or should we  punish  the perhaps innocent candidates who between the date of judgment in Indira Sawhney and today had got appointments even though they  belonged  to  the creamy layer?  Is there  no  way  of punishing  those  who  are guilty of wilful  disobedience  - apart  from the Chief Secretary?  For the present, we do not wish to go into this question.

     It  will  be seen that this Court has stated, as  long back  as in 1992 that it is imperative to exclude the creamy layer  in  the  Backward  classes   from  the  benefits   of reservation.   The Kerala Government has been already  found to  have deliberately violated the directions of this  Court in  that judgment and held guilty of contempt of Court.  The question  of  imposing  sentence  and, if so,  on  whom  was pending  when the impugned legislation was passed in 1995 by the  State of Kerala.  The legislation unfortunately  served dual  purposes  - one to ward off temporarily  any  sentence being  passed in the contempt proceedings and the other  for deliberately  putting off the exclusion of creamy layer till this  Court  could deal with the validity of the  Act.   Now that  the provisions of sections 3, 4 and 6 of the Act  have been  struck down, it is no longer permissible to allow  the State  of Kerala to continue to violate the mandate of  this Court  nor can this Court allow the State to help the creamy layer  to reap the benefits of its non-exclusion.  Is it not necessary  to see that the benefits trickle down atleast now to  the  non-creamy  layer of the Backward classes  in  that State  at least from today?  We, therefore propose to  adopt the  principle  of  prospective overruling and we  think  it appropriate  to put the recommendations in the Report  dated 4.8.97  of the High Level Committee presided over by Justice K.J.Joseph  (with  the  addition  of  the  communities   and

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sub-castes mentioned in the affidavit of the Chief Secretary dated  16.1.1998)  into  immediate   operation  from   today prospectively,  as stated below.  We apply the principle  of prospective  overruling,  as  done in Ashok  Kumar  Thakur’s case,  keeping  the  suo motu contempt  case  pending.   We, therefore,  direct  as  follows:   (1) We  direct  that  the exclusion  of creamy layer as stated in that Report shall be applicable from today, to all cases where appointment orders have  not been issued to the members of the Backward classes and for all future selections in public service as stated in the  Report.   (The  five  communities referred  to  in  the affidavit of the Chief Secretary dated 16.1.98 shall also be treated  as  Backward  subject to the guidelines  and  norms fixed by the Committee).  It will be obligatory to implement the Report, as so modified, in the Government Departments of Kerala   /    Organisations/    Institutions/Public   Sector Undertakings/Government     owned     Companies/Co-operative Societies/Autonomous  Bodies  ,  as stated  in  the  Report, wherever  the principles of reservation embodied in  Article 16(4)  or Rules 14 to 17 of Part II of the Kerala State  and subordinate Service Rules, 1958 are applicable.  It shall be necessary  for  the  candidates belonging  to  the  Backward Classes  to file the certificates as envisaged in the Report and  satisfy the employer that he or she does not belong  to the  creamy layer.  The income limits and property  holdings as  mentioned  in  the Schedule to the said Report  will  be applicable   from   today.   The    exclusion   of   certain occupations/communities  etc.  shall however be as specified in  the  Report.  Any violation of this direction will  make the  appointment  or  selection made on or after  this  day, unconstitutional.   It is made clear that any infraction  of this direction will be treated seriously and this Court will also  not hesitate to take further fresh action for contempt of  Court, if need be.  (2) We are of the view that it  will be  appropriate to allow the State of Kerala one more chance to  conform  to the Rule of law.  We, therefore, permit  the State  of  Kerala to make such provision as it may deem  fit for  exclusion of creamy layer among the Backward Classes in the  State of Kerala, in accordance with law and in a manner consistent with the Constitution, the basic structure of the Constitution,  Articles 14 and 16 and the judgment in Indira Sawhney and in Ashok Kumar Thakur and in accordance with the principles laid down in the judgment now rendered by us.

     (3)  Once  such  provision is made  and  published  in accordance  with  law,  it  shall come into  force  and  the recommendations  of  the  Justice  K.J.Joseph  Committee  as accepted by this Court shall cease to apply.  But as long as the   State  of  Kerala  does   not  bring  about  any  such alternative  provisions  to  exclude the creamy  layer,  the recommendation  of  the Justice K.J.Joseph  Committee  shall operate  from today subject to any further directions  which this Court might give in that behalf.  Any fresh alternative provision  that  may be made by the State of Kerala,  it  is needless  to  say,  will  be subject  to  the  such  further decision  of  this  Court, in case the validity  thereof  is questioned.   (4)  In  the event of  alternative  provisions being  made by the State of Kerala either by executive order or  by  legislative  or  by way of  Rules,  no  Court  shall entertain  any  challenge  thereto, and all  proceedings  in relation  thereto  shall have to be taken out only  in  this Court.   Before parting with the case, we may state that the unreasonable  delay on the part of the Kerala Government and the  discriminatory law made by the Kerala Legislature  have been  in  virtual  defiance of the rule of law and  also  an

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indefensible  breach  of the equality principle which  is  a basic  feature  of the Constitution.  They are also in  open violation  of the judgments of this Court which are  binding under  Article 141 and the fundamental concept of separation of  powers which has also been held to be a basic feature of the Constitution.  The State has already been held guilty of contempt.   This attitude and action of the State of  Kerala has  unfortunately  resulted in allowing the ‘creamy  layer’ among  the  backward  classes  in the  State  of  Kerala  to continue  to  grab the posts in the services in  government, public  sector  etc, even after Indira Sawhney and get  away with the same.  The result is that the really backward among the  backward classes have been deliberately deprived by the State,  -  of  their legitimate right to these  posts  which would  have  otherwise  obviously gone to them.   To  us  it appears  to  be rather anomalous that while the  Governments declare  endlessly that they will see to it that benefits of reservations  really reach the needy among the backwards,  - the  very  action of the Governments both on  the  executive side  and on the legislative side, deliberately refusing  to exclude  the creamy layer and in indiscriminately  including more  castes  in the backward classes list are leading to  a serious  erosion  of the reservation programme.  The  sudden Cabinet  decision  of the State of Kerala not to  appoint  a Commission  to identify the creamy layer as promised but  to pass  the  impugned  law  was  nothing  but  an  attempt  to perpetuate  the creamy layer and allow it to knock away  the benefits  of reservation.  Such a decision appears to us  to have been taken because the real backwards obviously have no voice in that decision making process.  Unfortunately today, as  a  matter of political expediency, Governments  tend  to knowingly  violate the Rule of law and the Constitution  and pass  on  the  buck  to  the   courts  to  strike  down  the unconstitutional  provisions.  It would then become easy for the  Government  to blame the Courts for striking  down  the unconstitutional  provisions.  The case on hand is a typical illustration  of  such  an attitude.  In this  context,  the words  of  Sir Anthony Mason, Chief Justice of  Australia  ( quoted  in  para 684 of Indira Sawhney by Jeevan Reddy,  J.) are extremely appropriate:

     "There  are  other  reasons, of course  -  that  cause governments  to leave decisions to be made by Courts.   They are  of expedient political character.  The community may be so  divided  on a particular issue that a  government  feels safe  course  for it to pursue is to leave the issue  to  be resolved by the Courts, thereby diminishing the risk it will alienate significant sections of the Community.

     and concluded:

     "....my  own  feeling  is that the people  accept  the Courts  as the appropriate means of resolving disputes  when governments  decide not to attempt to solve the disputes  by the political process".

     In  the present case, the State of Kerala did not care if  its  Chief Secretary was to go behind bars.  It did  not care  if the real backwards were left in the lurch.  It then took  to legislation inasmuch as it would then be  difficult for  this Court to hold the legislature in contempt.  It  is difficult  for us to think that the Kerala Government really believed  in the validity of its legislation.  It appears to us  that  it  thought it better to leave it  to  the  Courts

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strike  down  the  Act.   Years would role  by  and  in  the interregnum  the  creamy  layer could continue to  reap  the benefits  of  reservation.   When  Governments  unreasonably refuse  to eliminate creamy layers from the backward classes or  when governments tend to include more and more castes in the  list  of  Backward Classes without  adequate  data  and inquiry,  a stage will be reached soon when the whole system of  reservation  will become farcical and a negation of  the constitutional  provisions  relating to  reservations.   The resistance of the creamy layer to get out of the lists is as bad  as  the  clamour  for entry into the  quota  system  of various  castes whose social status does not conform to  the law  decided  by  this  Court.    We  earnestly  hope   that Constitutional  provisions  will  not   be  converted   into citadels  for  unjustified  patronage.    Krishna  Iyer,  J. warned  in Akhil Bhartiya Soshit Karamchari Sangh vs.  Union of India [1981 (1) SCC 246] (at 264, para 22):

     "......to  politicise  this provision  (i.e.   Article 16(4)  for communal support and Party ends is to subvert the solemn undertaking of Article 16(1)."

     The  IAs  35,  36 in W.P.  930/1990  are  disposed  of accordingly.   W.P.(C) Nos.699/95 and 727/95 are allowed  to the  extent  indicated  above.   IAs  8  and  9  in  W.P.(C) No.699/1995  also stand disposed of.  However, the suo  moto contempt case started earlier shall be listed after a period of  three  months.  We thank the learned Amicus  Curiae  Sri Gopal Subramaniam for his valuable assistance.