ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS

Citation: [2008] 4 S.C.R. 1

Court: Supreme Court of India

Bench: K.G. BALAKRISHNAN, ARIJIT PASAYAT, C.K. THAKKER, R.V. RAVEENDRAN, DALVEER BHANDARI

Case summary

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS.pdf

Judgment text

(2008] 4 S. C. R. 1 ,ASHOKA KUMAR THAKUR v. UNION OF INDIA &ORS.. (Writ Petition (Civil) No. 265 of 2006) . APRIL 10, 2008 · . B (K. G. BALAKRISHNAN, C. J. AND DR.. ARIJIT PASAYAT; C. K. THAKKER, R. V. RAVEENDRAN & DALVEER BHANDARI, JJ,) . Constitution (Ninety Third Amendment) Act, 20051 Central Educational Institutions (Reservation in ·Admission) . . Act, 2005 (Act 5 of 2007): Whether violative ol the "basic· structure" of the Constitution in. so far as it relates fo the state maintained ,· institutions and aided educational institutions - Held not violative - However, in so far as "private unaided" educational institutions are concerned, the question left open to . be decided .. in appropriate case. Constitutional validity in view of definition of "backwaid ·class"- Whether identification ofsuch "backward class"based on "caste" is constitutionally valid - ·Held; Valid.

Constitutional validity of since the Amending Act does not prescribe any time limit for its operation and no periodical review is contemplated - Held, valid, but a periodical review can qe made at the end of every ~ years. . · . · Whether the quantum of reservation provided in the Act . is valid and whether 27% of seats for SEBC was·required to be made - Held valid - Parliament must be deemed to have . taken into consideration all relevant circumstances while fixing the 27% reservation. Articles 15(4) and 15(5) - Held not mutually contradictory. .. Articles 14 and 15(5) - Exclusion ofminority educational institutions from Article 15(5) - Not violative ofArticle 14. Article 15 and s. 2(g) of the Act 5 of 2007 - Creamy layer - Creamy fayer is to be excluded from SEBS - Parameters for determining the "creamy layer' group - Applicability of the 0. M. dated 8. 9. 1993 - Applicability of "creamy layer principle" to SC/ST - Held not applicable.

Article 15(5) - Principles of reservation or other affirmative action -Applicability ofprinciples laid down by U. S. Supreme Court - Held not applicable. Other Backward Classes- Determination of- Delegation of power to Union Government - Held, constitutionally valid. Educationally backward class - Prescribing benchmark of matriculation or 10+2 rejected. Articles 162 and 368 - Constitution 93rd Amendment dof)s not affect the executive power of the State - Hence procedure prescribed under proviso to Article 368(2) not required to be followed. Words & Phrases: "Basic structure of the constitution", "backward class", "caste", "creamy layer", "su~pect legislation", "strict scrutiny", "compelling state necessity" - Meaning of. The validity of the Constitution (Ninety Third) Amendment Act, 2005 was challenged in the Writ Petitions before the Constitution Bench on being referred to it by a Division Bench, on various grounds.

On the basis of the diverse contentions raised, the following questions were formulated: 1. Whether the Ninety~Third Amendment of the Constitution is against the " basic structure" of the Constitution? 2. Whether Articles 15(4) and 15(5) are mutually ' I ASHOKA KUMAR THAKUR v. UNION OF ! NOIA & ORS. 3 contradictory, hence Article 15(5) is to be held ultra vires? 3. Whether exclusion of minority educational institutions from Article 15(5) is violative of Article 14 of Constitution? 4. Whether the Constitutional Amendment followed the procedure prescribed under Article 368 of the Constitution? 5. Whether the Act 5 of 2007 is constitutionally invalid in view of definition of "Backward Class" and whether the identification of such "Backward Class" based on "caste" is constitutionally valid? 6. Whether "Creamy Layer" is to be excluded from SEBCs? 7. What should be the para-meters for determining the "creamy _layer" group? 8.

Whether the "creamy layer" principle is applicable to Scheduled Tribes and Scheduled Castes? 9. Whether the principles laid down by the United States Supreme Court for affirmative action such as "suspect legislation", "strict scrutiny" and "compelling State necessity" are applicable to principles of reservation or other affirmative· action contemplated under Article 15(5) of the Constitution? r 10. Whether delegation of power to the Union Government to determine as to who shall be the backward class is constitutionally valid? 11. Whether the Act is invalid as there is no time limit prescribed for its operation and. no periodical review is contemplated? 12. What shall be the educational standard to be prescribed to find out whether any class is educationally backward? 13. Whether the quantum of reser'Vation provided for in the Act is valid and whether 27% of seats for SEBC was required to be reserved? Disposing of the petitions, the Court HELD: By the Court: 1.

1 The Constitution 93rd Amendment Act, 20051 is valid and does not violate the 11 "basic structure of the Constitution so far as it relates to the·State maintained institutions and aided educational institutions. Question whether the Constitution (Ninety Third Amendment) Act, 2005 would be constitutionally valid or not so far as "private unaided" educational institutions is concerned, is not considered and left open to be decided in an appropriate case. [Para 1] [469-D-E] 1. 2 Bhandari, J. in his opinion! has, however, o considered the issue and has held that the Constitution (Ninety Third Amendment) Act, 2005 is not constitutionally v~lid sofar as private un-aided educational institutions are concerned. [Para 1] [469-E-F] 2. 1 Act 5 of 2007 is constitutionally valid subject to the definition of 'Other Backward Classes' in Section 2(g) of the Act 5 of 2007 being clarified as follows : If the determination of 'Other Backward Classes' by the Central Government is with reference to a.

caste, it shall exclude the 'creamy layer' among such caste. [Para 2] [469-F-H; 41'0-A] 2. 2 Quantum of reservation of 27% of seats to Other Backward Classes in the educational institutions provided In the Act is not illegal. [Para 2] [470-A] 2. 3 Act 5 of 2007 is not invalid for the reason that there is no time limit prescribed for its operation but majority of the Judges are of the view that the Review should be made as to the need for continuance of reservation at the end of 5 ye~rs. [Para 2] (470-B] Per K. G. Balakrishnan, CJ: 1. 1 For determining whether a particular feature of the Constitution is part of the basic structure or not, it has . . ·to be examined in each individual case keeping in mind · the scheme of the Constitution, its objects and purpose and the integrity of the Constitution as a fundamental instrument for the country's governance. It may be noticed that it is not open to challenge the ordinary legislations on the basis of the basic structure principle.

State · legislation can be challenged on the question whether it is violative of the provisions of the Constitution. But as regards constitutional amendments, if any cha·11enge is made on the basis of basic structure, it has to be . examined based on the basic features of the Constitution. It may be noticed that the majority in Kesavananda Bharati's case did not hold that all facets of Article 14 or any of the fundamental rights would form part of the basic structure 0 of the Constitution. The majority upheld the validity of the first part of Article 30(1)(c) which would show that the . constitutional amendment which takes away or abridges the right to challenge the validity of an arbitrary law or violating a fundamental right under that Article would not destroy or damage the basic structure. Equality is a multicoloured concept incapable of a single definition as is also the fundamental right under Article 19(1)(g). The principle of equality is a delicate, vulnerable a-nd supremely .

precious concept for our society. It is t~ue that it has embraced a critical and essential · component of constitutional identity. The larger principles ofequality as · stated in Article 14, 15 and 16 may be understood as an element of the "basic structure" of the Constitution and may not be subject to amendment, although, these provisions, intended to configure these rights In particular way, may be changed within the constraints of. . the broader principle. The variability of changing conditions may necessitate the modifications in the structure and design of these rights, but the transient characters of formal arrangements. must reflect the larger purpose and principles that are the continuous and unalterable thread of constitutional identity. It is not the introduction of significant and far-reaching change that is objectionable, rather it is the content of this change in so far as it implicates the question of constitutional identity. [Para 93] [120-E-H; 121-A-E] 1.

2 If any Constitutional amendment is made which moderately abridges or alters the equality principle or the principles under Article 19(1)(g), it cannot be said that it violates the basic structure of the Constitution. If such a principle is accepted, our Constitution would not be able to adapt itself to the changing conditions of a dynamic human society. Therefore, the plea raised that the present Constitutional Ninety-Third Amendment Act, 2005 alters the basic structure of the constitution is of no force. Moreover, the interpretation of the Constitution shall not be in a narrow pedantic way. [Para 95] [122-D, E, F] 1. 3 It has been held in many decisions that when a constitutional provision is interpreted, the cardinal rule is to look to the Preamble to the Constitution as the guiding star and the Directive Principles of State Policy as the 'Book of Interpretation'.

The Preamble embodies the hopes and aspirations of the people and Directive Principles set out the proximate grounds in the governance of this country. [Para 96] [123-8, C] 1. 4 The Ninety-Third Amendment to the Constitution does not violate the "basic structure" of the Constitution so far as it relates to aided educational institutions. Question whether reservation could be made for SCs, STs or SEBCs in private unaided educational institutions on the basis of the Ninety-Third Constitutional Amendment; or whether reservation could be given in such institutions; or whether any such legislation would be violative ofArticle 19(1)(g) or Article 14 of the Constitution; or whether the Ninety-Third Constitutional Amendment which enables the State Legislatures or Parliament to . . make sach legislation - are all questions to be decided in a properly constituted /is between the affected parties and others who support such legislation.

[Para 97] [123-C-F] His Holiness Kesavananda Bharati Sripadagalvaru Vs. State of Kera/a (1973) Supp. SCR 1 =(1973) 4 SCC 225 RE : The Berubari Union and Exchange of Enclaves, Reference under Article 143(1) of the Constitution of India (1960) 3 SCR -1 250 and Smt. Indra Gandhi Vs. Raj Narain (1976) 2 SCR 347: AIR 1975 SC 2299 - relied on. I. C. Golak Nath & Ors. Vs. State of Punjab & Anrs (1967) 2 SCR 762 - referred to. 2. 1 Both Article 15(4) and 15(5) are enabling provisions. Article 15(4) was introduced when the "Communal G. O. " in the State of Madras was struck down by this Court in Champakam Dorairajan's case. In Unni Krishnan , this Court held that Article 19(1 )(g) is not attracted for establishing and running educational institutions. However, in TM. A. Pai Foundation case, it was held that the right to establish and running educational institutions is an occupation within the meaning of Article 19(1 )(g). The scope of the decision in T. M. A.

Pai Foundation's case was later explained in PA. lnamdar's case. It was held that as regards unaided institutions, the State has no control and such institutions are free ,. to admit students of their own choice. The said decision necessitated the enactment of the Constitution Ninety- Third Amendment Act, 2005. [Para 100] [124-G, H; 125-A, B] 2. 2 Both Article 15(4) and 15(5) operate in different areas. The "nothing in this Article" [mentioned at the beginning of Article 15(5)] would only mean that the nothing in this Article which prohibit the State on grounds which are mentioned in Article 15(1) alone be given importance. Article 15(5) does not exclude 15(4) of the Constitution. It is a well settled principle of constitutional interpretation that while interpreting the provisions of Constitution, effect shall be given to all the provisions of the Constitution and no provision shall be interpreted in manner as to make any other provision in the Constitution inoperative or otiose.

If the intention of the Parliament was to exclude Article 15(4), they could have very well deleted Article 15(4) of the Constitution. Minority institutions are also entitled to the exercise of fundamental rights under Article 19(1)(g) of the Constitution, whether they be aided or unaided. But in the case of Article 15(5), the minority educational institutions, whether aided or unaided, are excluded flrom the purview of Article 15(5) of the Constitution. Both, being enabling provisions, would · operate in their own field and the validity of any legislation made on the basis of Article 15(4) or 15(5) have to be examined on the basis of provisions contained in such legislation or the special provision that may be made under Article 15(4) or 15(5). It may also be noticed that no educational institutions or any aggrieved party have come before this Court challenging the constitutional amendment on these grounds.

The challenge is made by petitioners objecting to the reservations made under Act 5 of 2007. Therefore, the plea that Article 15(4) and 15(5) are mutual~y contradictory and, therefore, Article 15(5) is not constitutionally valid cannot be accepted. As has been held in N. M. Thomas case and Indra Sawhney's case, Article 15(4) and 16(4) are not exceptions to Article 15(1) and Article 16(1) but independent enabling provision. Article 15(5) also to be taken as an enabling provision to carry out certain constitutional mandate and thus it is G' constitutionally valid and the contentions raised on these grounds are rejected. [Para 100] (124-G; 125-A-H; 126-A-B] Indra Sawhney Vs. Union of India &Ors. 1992 Supp. (3) SCC 215 and State of Kera/a & Anr. Vs N. M. Thomas & Ors. 1976 (2) SCC 310 - relied on. Unni Krishnan, J. P & Ors. Vs. State of Andhra Pradesh . & Ors. 1993 (1) SCC 645; T. M. A. Pai Foundation & Ors. Vs. . ~ State of Karnataka & Ors. 2002 (8) SCC 481; The State of Madras Vs.

Srimathi Champakam Dorairajan 1951 SCR 525 and PA. lnamdar & Ors. Vs. State of Maharashtra & Ors. (2005) 6 sec 537 - referred to. 3. It has been held that Article 15(4) and Article 16(4) are not exceptions to Article 15(1) and Article 16(1) respectively. It may also be noted that if at all there is any violation of Article 14 or any other equality principle, the affected educational institution should have approached this Court to vindicate their rights. No such petition has been filed before this Court. Therefore, it is held that the exclusion of minority educational institutions from Article 15(5f is not violative of Article 14 of the Constitution as the minority educational institutions, by themselves, are a separate class and their rights are protected by other constitutional provisions. [Para 102] [126-G; 127-A-B] -\ 4. The powers of the Parliament and the State legislatures to legislate are provided for under Article 245- 255 of the Constitution.

Under the proviso to Article 162, any matter with respect to which the legislature of the State and. the Parliament have power to make laws, the executive power of the State shall be subjectto and limited by the executive power expressly conferred by the Constitution or by any law made by Parliament upon the r · Union authorities thereof. The Ninety-Third Constitutional Amendment does not expressly or impliedly take away any such power conferred by Article 162. It may also be noticed that by virtue of the 42"d Amendment to the Constitution, "education" which was previously in Entry No. 11 in List II was deleted and inserted in List Ill as Entry No. 25 as the field of legislation in List Ill. Article 245 will _j operate and by reasons of proviso to Article 162, the executive power of the State be subjectto, limited by, the executive power expresslly conferred by the Constitution or by any law made by Parliament upon the Union authorities thereof.

Subject to restrictions imposed under the Constitution, it has bE! en in existence. Such power of the State is not limited cir curtailed by the Ninety-Third Constitutional Amendment as it does not interfere with the power of the State under Article 162. The Ninety-Third Constitutional Amendment does not fall within the scope of proviso to Article 368:. Therefore, the plea that the Ninety-Third Constitutionail Amendment did not follow the t prescribed procedure of Article 368 is not correct and the plea is only to be rejected. [Para 104] (127-E-G; 128-A-C] 5. 1 "Caste" is often used interchangeably with "class" and can be callE! d as the basic unit in social stratification. The most characteristic thing about a caste group is its autonomy in caste related matters. One of the universal codes enforced by all castes is the requirement of endogamy. Other rules have to do with the regulations ) pertaining to religious puriity or cleanliness.

Sometimes it restricts occupational choices as well. It is not necessary that these rules be enforced in particular classes as well, and as such a "class" may be distinguished from the broader realm of "caste" c>n these grounds. Castes were often rated, on a purity scale, and not on a social scale. [Para 124] [139-E-F] 5. 2 A class always enjoys certain privileges or at least -1 certain advantages over others in society. When it is more or less rigorously closed, 1:>r enjoys hereditary privileges, it is called a "caste". [Para 130] [142-B] 5. 3 There is every reason to believe that within a single caste group there are some classes or groups of people to whom good fortune or perseverance has brought more dignity, social influence and social esteem .... than it has to others. [Para 135] (143-D-E] 5. 4 In India, caste, in a socio-organizational manner would mean that it is not characterized merely by the ..

- physical or occupational characteristics of the individuals who make it up; rather, it is characterized by its codes and its close-knit social controls. In the case of classes, however, there may not exist such close-knit unit social controls, and there may exist great disparity in occupational characteristics. A social class is therefore a homogeneous unit, from the point of view of status and mutual recognition; whereas a caste is a homogeneous unit from the point of view of common ancestry, religious rites and strict organizational control. Thus the manner in which the caste is closed both in the organizational and biological sense causes it to differ from social class. Moreover, its emphasis upon ritual and regulations pertaining to cleanliness and purity differs radically from the secular nature and informality of social class rules. In a social class, the exclusiveness would be based primarily on status.

Social classes divide homogeneous populations into layers of prestige and esteem, and the members of each layer are able to circulate freely with it. In a caste, however, the social distance between members is due to the fact that they belong to entirely different organizations. It may be said, therefore, that a caste is a horizontal division and a class, a vertical division. [Paras 136, 137, 138] [143-E-H; 144-A-B] 5. 5 It was pointed out that the National Commission for the Backward Classes and the State Commission for Backward Classes have prepared a list based on elaborate guidelines 'and these guidelines have been framed after studying the criteria/indicators framed by the . Mandal Commission and the Commissions set up in the past by different State Governments. Various Commissions held public hearings at various places and the National Commission held 236 public hearings before . J. it finalized the list.

It is also pointed out that during the period of its functioning, the National Commission had recommended 297 requests for inclusion and at the same time rejected 288 requests for inclusion of the main castes. It is further pointed out that the Commission took into consideration detailed data with regard to social, educational and economic criteria. The Commission has also looked into whether there has been any improvement or deterioration in the condition of the caste or community being considered for inclusion during the past twenty years. It is pointed out that an elaborate questionnaire was prepared by the Commission and the answers in this questionnaire were considered in detail for inclusion/ r • rejection in the list.

It is clear that the lists of socially and educationally backward classes of citizens are being prepared not solely on the basis of the caste and if caste and other considerations are taken into account for determining backwardnuss, it cannot be said that it would be violative of Article 15(1) of the Constitution. Thus, the 0 determination of SEBCs is done not solely based on caste and hence, the identification of SEBCs is not violative of Article 15(1) of the Constitution. [Para 140, 141, 142] > [144-D-H; 145-A, B] Indra Sawhney Vs. Union of India & Ors. 1992 Supp. (3) sec 21. 5 - relied on. The State of Madras Vs. Srimathi Champakam Dorairajan 1951 SCR 52! 5; R. Chitralekha & Anr. Vs. State of Mysore & Ors. (1964) 6 SCR 368; M. R. Balaji & Others Vs. State of Mysore (1963) Supp. 1SCR439 =AIR 1963 SC 649; State of . Kera/a & Anr. Vs N. M. Thomas & Ors. 1976 (2) SCC 31 O; K. C. Vasanth Kumar & Anr. Vs. State of Karnataka (1985) Supp SCC 714; Minor A Peeriakaruppan & Anr. Vs.

State of Tamil Nadu & Ors. (1971) 1 SCC 38; Minor P Rajendran Vs. State of Madras & Ors. (1968) 2 SCR 786; Triloki Nath Tiku Vs. State of J & K (I) (1967) 2 SCR 265; State ofUttar Pradesh & Ors. Vs. Pradip Tandon & Ors. (1975) 1 SCC 267; State of Andhra Pradesh & Anr. Vs. P Sagar (1968) 3 SCR 595 and T. Devadasan Vs. The Union of India & Anr. (1964) 4 SCR 680 referred to. Mysore Census of 1901 G. S. Ghurye, Caste and Race in India (Bombay, 1979) p. 6, Quoting from Mysore Census, 1901, p. 400 - referred to. WH. R. Rivers, Social Organization (New York, 1924) p. 143; Lowie Robert H. Lowie, The Origin of the State (New York, 1927) p. 21; Lowie, An Introduction to Cultural Anthropology (New York, 1940) p. 268; Kimball Young, An Introductory Sociology (New York, 1924); Cecil Clare North Cecil Clare North, Social Differentiation (Chapel Hill, 1926) 1 p. 254; Maciver R. N. Maciver, Society: A textbook of Sociology (New York 1937) p. 171.

9 and Charles Horton Cooley Charles Horton Cooley, Social Organization (New York, 1909) p. 215 - referred to. 6. 1 Determination of backward class cannot be exclusively based on caste. Poverty, social backwardness, economic backwardness, all are criteria for determination of backwardness. It has been noticed ' in Indra Sawhney's case that among the backward class, section of the backward class is a member of the affluent section of society. They do not deserve any sort of reservation for further progress in life. They are socially and educationally advanced enough to compete for the general seats along with other candidates. [Para 147] [147-D, E, F] 6. 2 It is to be understood that "creamy layer" principle ~ is introduced merely to exclude a section of a particular caste on the ground that they are economically advanced or educationally forward.

They are excluded because unless this segment of caste is excluded from that caste group, there cannot be proper identification of the backward class. If the "Creamy Layer" principle is not applied, it could easily be said that all the castes that have been included among the socially and educationally backward classes have been included exclusively on the basis of caste. Identification of SEBC for the purpose of either Article 15(4), 15(5) or 16(4) solely on the basis of caste is expressly prohibited by various decisions of this Court and it is also against Article 15(1) and Article 16(1) of the Constitution. To fulfil the conditions and to find out truly what. is socially and educationally backward class, the exclusion of "creamy layer" is essential. [Para 149] [148·B·E] 6. 3 The "creamy layer" principle is applied not as a general principle of reservation. It is applied for the purpose of identifying the socially and educationally backward class.

One of the main criteria for determining the SEBC is poverty. If that be so, the principle of exclusion of "creamy layer" is necessary. Moreover, the majority in Indra Sawhney's case upheld the exclusion of "creamy layer" for the purpose of reservation in Article 16(4). Therefore, it cannot be said that the "creamy layer" principle cannot be applied for identifying SEBCs. Moreover, Articles 15(4) and 15(5) are designed to provide opportunities in education thereby raising educational, > social and economical levels of those who are lagging behind and once this progress is achieved by this section, any legislation passed thereunder should be deemed to have served its purpose. By excluding those who have already attained economic: well being or educational advancement, the special benefits provided under these clauses cannot be further extended to them and, if done so, it would be unreasonablle, discriminatory or arbitrary, resulting in reverse discrimination.

[Para 150] [148-E, F, G, H; 151-A, B] 6. 4 It cannot be said that if 'creamy layer' is excluded, there may be practically no representation for a particular backward class in educational institutions because the remaining members, namely, the non-craamy layer, may not have risen to the level or standard necessary to qualify to get admission even within the reserved quota. If the creamy layer is not excluded, the identification of SEBC wi. 11 not be complete and any SEBC without the exclusion \ I of 'creamy layer' may not be in accordance with Article ~ 15(1) of the Constitution. [Para 152] [149-G; 150-A] Indra Sawhney Vs. Union of India & Ors. 1992 Supp. (3) . sec 215 - relied on. 7. 1 It is made clear that same principle of determining the creamy layer for providing 27% reservation for backward classes for appointment need not be strictly followed in case of reservation envisaged under Article 15(5) of the Constitution.

If a strict income restriction is made for identifying the "creamy layer", those who are left in the particular caste may not be able to have a sufficient number of candidates for getting admission in the central institutions as per Act 5 of 2007. Government can make a relaxation to some extent so that sufficient number of candidates may be available for the purpose of filling up, the 27% reservation. It is for the Union Government and the State Governments to issue -\ appropriate guidelines to identify the "creamy layer" so that SEBC are properly determined in accordance with the guidelines given by this Court. If, even by applying this principle, still the candidates are not available, the State can issue appropriate guidelines to effectuate the implementation of the reservation purposefully. [Para 154) (160-D-G; 161-A] 7. 2 "Backward class" defined in Section 2(g) does t not exclude "creamy layer".

Therefore, it is made clear that backward class as defined in Section 2(g) of Act 5 of 2007 must be deemed to have been such backward class by applying the principle of exclusion of "creamy layer". [Para 155) [161-A-B] Indra Sawhney Vs. Union of India & Ors. 1992 Supp. (3) sec 215 - referred to. •.. 4 8. 1 In Indra Sawhney's case, it is specifically stated that the "creamy layer" principle will not apply to STs and SCs. In Nagaraj's case, in paragraphs 110 and 120 and finally in paragraphs 121, 122 and 123, it is only stated that when considering questions of' affirmative action, the larger principle of equality such as 50% ceiling (quantitative limitation) and "creamy layer" (quantitative exclusion) may be kept in mind. In Nagaraj's case it has not been discussed or decided that the creamy layer principle would be applicable to SCs/STs. Therefore, it cannot be said that the observations made in Nagaraj's case are contrary to the decision in Indra Sawhney's case.

[Para 159] [162-E-G; 163-A] 8. 2 Moreover, the "creamy layer" principle is not yet. applied as a principle of equality or as a general principle to apply for all affirmative actions. [Para 160] [163-B] 8. 3 So far, this Court has not applied the "creamy layer" principle to the general principle of equality for the purpose of reservation. The "creamy layer" so far has been applied only to identify the backward class, as it f required certain paramet1~rs to determine the backward 'classes. "Creamy layer" principle is one of the parameters to identify backward classes. Therefore, principally, the ''creamy layer" principle cannot be applied to STs and $Cs, as SCs and STs are s;eparate classes b5' themselves. "Scheduled Castes and Scheduled Tribes are not a caste within the ordinary meaning of caste". And they are so identified by virtue of the Notification issued by the President of India under Articles 341 and 342 of the Constitution.

The President may, after consultation with the Governor, by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which for the purpose of the Constitution shall be deemed to be Scheduled Castes of Scheduled Tribes. Once the Notification is Jssued, they are deemed to be the members of Scheduled Castes or Scheduled Trtbes, whichever is applicable. [Para 161] [163-G; 164-A-C] I I 8. 4 Right from the beginning, the Scheduled Castes +- and Scheduled Tribes were treated as a separate category and nobody ever disputed identification of such classes. So long as "creamy layer" is not applied as one of the principles of equality, it cannot be applied to Scheduled Castes and Scheduled Tribes. So far, it is applied only to identify the socially and educationally backward classes. It is clarified that for the purpose of reservation, the principles of "creamy layer" are not applicable for Scheduled Castes and Scheduled Tribes.

[Para 163] [165-C-D] Indra Sawhney Vs. Union of India & Ors. 1992 Supp. (3) SCC 215; /. R. Coelho (Dead) by LRs. Vs. State of TN. (2007) 2 SCC 1; E. V Chinnaiah Vs. State ofAndhra Pradesh & Ors. (2005) 1 SCC 394; State of Kera/a & Anr. Vs N. M. Thomas & Ors. 1976 (2) SCC 31 O; K. C. Vasanth Kumar & Anr. Vs. State of Kamataka (1985) Supp SCC 714; M. G Badappanavar & Anr. Vs. State of Karnataka & Ors. (2001) 2 SCC 666; Ajit Singh & Ors. (//) vs. State of Punjab & Ors. (1999) 7 SCC 209 and Union of India & Ors. Vs. Virpal Singh Chauhan & Ors. (1995) 6 sec 684 - referred to. 9. 1 The decisions of the United States Supreme Court were not applied in the Indian context as it was felt that the structure of the provisions under the two Constitutions and the social conditions as well as o~her factors are widely different in both the countries. [Para 165] [165-H; 166-A] 9. 2 There are structural differences in the Constitution of India and the Constitution of the United States of America.

Whereas in India, Articles 14 and 18 are differently structured and contain express provisions for special provision for the advancement of SEBCs, STs and SCs. Moreover, in our Constitution there is a specific provision . J under the Directive Principles of State Policy in Part IV of the Constitution requiring the State to strive for justice social, economic and political - and to minimize the \ I f inequalities of income and endeavour to eliminate inequalities in status, facilities and opportunities (Article 38). Earlier, there was a view that Articles 16(4) and 15(5) are exceptions to Article 16(1) and 15(1) respectively. [Paras 167, 168] [167-B, E, F] 9. 3 From the constitutional history of India, it can be seen that from the point of view of importance and significance, no distinction can be made between the two sets of rights, namely, Fundamental Rights which are made justiciable and the Directives Principles which are made non-justiciable.

The Directive Principles of State Policy are made non-justiciable for the reason that the implementation of many of these rights would depend on the financial capability of the State. Non-justiciable clause WCJS provided for the reason that an infant State shall not be made accountable immediately for not fulfilling these obligations. Merely because the Directive Principles are non-justiciable by the judicial process does not mean that ; they are of subordinate importance. [Para 173] [170-A-C] 9. 4 The 14th Amendment to the Constitution of the United States of America and Title VI of the 1964 Civil Rights Act, prohibit universities to discriminate on the basis of classifications such as race, colour, national origin and the like in all their operations.

In a number of decisions of the United States Supreme Court spanning decades of jurisprudence, a heavy burden has been placed on institutions whose affirmative action programmes are challenged before the United States St,1preme Court on grounds that have been recognized as suspect or unconstitutional. According to the United States Supreme Court, all such programmes are inherently suspect since they rely on suspect forms of classification (such as race). Therefore, because such forms of classification are inherently suspect, the courts have subjected all affirmative action programmes relying on them to a very high standard of scrutiny, wherein I I those practicing these affirmative action programmes -+ have to adhere to a very high standard of proof, which we know as the "strict scrutiny" test. [Para 176] [172-G; 173-A-D] ·9.

5 All efforts aimed at remedying past injustices against certain identified groups of people, who were unlawfully discriminated against in the past, serve as adequate justifications and all affirmative action programmes that are implemented with this aim serve the compelling institutional interest in removing all vestiges of discrimination that occurred in the past. [Para 177] [173-F-G] 9. 6 The other part of the "strict scrutiny" test is the "narrow tailoring" test. The University, whose affirmative action programme is in question before the United States 0 Supreme Court, is required to prove that its affirmative action programme has been designed in the narrowest possible manner, in order to benefit only those specific people who are to be benefited, thus serving the "compelling purposes" of the affirmative action programme.

The program cannot be made in a broad manner to encompass a large group of people, and it has to serve the minimum possible requirement, in order to achieve its goal. Otherwise, it may be possible that the rights of other people may be infringed upon, which would make the affirmative action programme unconstitutional. [Para 178] [175-A-C] 9. 7 The first limb of the strict scrutiny test that elucidates the "compelling institutional interest" is focused on the objectives that affirmative action programmes are designed to achieve. The second limb, that of "narrow tailoring", focuses on the details of specific affirmative action programmes and on the specific people it aims to benefit. [Para 179) [175-D-E] 9. 8 Furthermore, the courts, both in India as well as in the United States of Ameri1ca, have looked with extreme ~ caution and care at any legislation that aims to discriminate on the basis of race in the US and caste in India. It therefore follows that the Gove.

rnment may treat people differently because of their race but only for those reasons that serve what is known as "compelling Government interest". [Paras 181, 182] [175-G; 176-8-C] 9. 9 For any affirmative action programme to survive the strict standard of judicial scrutiny, the Courts want "compelling evidence", that proves without any doubt that the affirmative action program is narrowly tailored and serves only the most compelling of interests. Thus, the bar for the State or institution that practices affirmative action programmes based on suspect classifications has been effectively raised.

Therefore, in cases where a compelling interest is found, race-based methods may be used only after all other methods have been considered and found deficient, and that too only to that limited extent which is required to remedy a discrimination that has been identified, and only when it has been shown that the identified beneficiaries have suffered previously in the past, and lastly, only if all undue burdens that may impinge upon the rights of other non- beneficiaries are avoided. [Para 183] [176-C-E] 9. 10 The principles applied by the Supreme Court of the United States of America cannot be applied directly to India as the gamut of affirmative action in India is fully supported by constitutional provisions and have not applied the principles of "suspect legislation" and have been following the doctrine that every legislation passed by the Parliament is presumed to be constitutionally valid unless otherwise proved. The American decisions are not strictly applicable to India.

Thus, the challenge to Act 5 of 2007 on the ground that it does not stand the "strict ), scrutiny" test and there was no "compellable State necessity" to enact this legislation cannot be accepted. [Paras 184, 185] [176-F-H; 177-A, E] The State of Madras Vs. Srimathi Champakam Dorairajan 1951SCR525; Minerva Mills Ltd. & Ors. Vs. Union of India & Ors. AIR 1980 SC 1789 = (1980) 3 SCC 625; His Holiness Kesavananda Bharati Sripadagalvaru Vs. State of Kera/a (1973) Supp. SCR 1 = (1973) 4 SCC 225; M. R. Balaji & Others Vs. State of Mysore (1963) Supp. 1 SCR 439 =AIR 1963 SC 649; State of Kera/av. N. M. Thomas 1976 (2) SCC .. . 310; K. C. Vasanth Kumar v. State of Karnataka 1985 Supp. '1 SCC 714; C. A. Rajendran Vs. Union of India & Ors. (1968) 1 SCR 721; Bhikaji Narain Dhakras & Ors. Vs. The State of Madhya Pradesh & Anr. (1955) 2 SCR 589; A. S. Krishna Vs. State of Madras (1957) SCR 399; Kameshwar Prasad and Others Vs: State of Bihar and Another 1962 Supp. (3) SCR 369 In Re.

Kera/a Education Bill, 1957, 1959 SCR 995; Minerva Mills AIR 1980 SC 1789, Saurabh Chaudhari Vs. Union of India 2003 (11) SCC 146 - referred to. I City of Richmond Vs. J A Croson Co. 488 U. S. 469 (1989); Dred Scott Vs. Saunders, 60 US 393(1856); Plassy Vs. Ferguson 163 US 537(1896); Brown Vs. Board of Education 347 US 483; Regents of the University of California Vs. Bakke 438 US 265 (1978); Sweezy Vs. New Hampshire (1957) 354 US 234; Keyishian Vs. Board of Regents (1967) 385 US 589 and Adarand Constructors Inc. Vs. Pena (1995) 515 US 200 - referred to. 10. "Backward class" is not a new word. Going· by the Constitution, there are sufficient constitutional provisions to have an idea as to what "backward class" is, Article 340 C? f the Constitution specifically empowers the President of India to appoint a Commission to investigate the conditions of the socially and educationally backward classes within the territory of India.

Socially and educationally backward classes of citizens are mentioned in Article 15(4) of the Constitution, which formed the First Amendment to the Constitution. Backward class citizens are also mentioned in Article 16(4) of the Constitution. It is only for the purpose of Act 5 of 2007 that the Union of India has been entrusted with the task of determining the ba -... that the expression 'strict scrutiny' has also been used by the Indian Courts, but it appears to have been used in different context. What really appears to be the intention ,.. \-· for the use of the expression is "careful and deeper scrutiny" and not in the sense of strict scrutiny of the provisions as is prevalent in the American jurisprudence. It is used in different sense. The application appears to be in technical sense in the American Courts. [para 35) 8 [214-G-H; 215-A] Narendra Kumar and Ors. V Union of India and Ors. ; f (1960) 2 SCR 375 - referred to. Regents of University of California v. Allan Bakke 438 U. S.

265; Grutter v. Bollinger 539 U. S. 306 -referred to. 1. 6 Although even under the 1919 and 1935 Government of India Acts the rights of certain class of people like Scheduled Castes, Scheduled Tribes and the · deprived classes have been recognized, in America, the rights have been conferred on individuals and so much on the groups. The freedoms contemplated by the Indian Constitution originally related to seven categories which presently stand at six after the property rights were deleted. [para 40] [218-C-D] State of Kera/a v. N. M. Thomas and Ors. (1976) 2 SCC 310; A. K. Roy v. Union of India (1982) 1SCC271-referred to. 1. 7 The ultimate object is to bring those who are disadvantaged to a level where they no longer continue t to be dis-advantaged. It needs no emphasis that individual rights are superior to the social rights. All fundalJlental rights are to be read together. The inequalities are to be removed.

Yet the fact that there has been no exclusion raises a doubt about the real concern to remove inequality. The ultimate objective is to bring people to a particular level so that there can be equality of opportunity. In that context, one has to keep in view the justice and redress principles. There should not be mere equality in law but ·equality in fact. [paras 44 and 45] [220-C-E] 1. 8 It is true that Government has a large area of discretion in choosing its priorities. But one factor cannot be lost sight of. The fundamental stress has to be on elementary education. If that is done, as a consequence there would be reduction in the need for spending more money on higher education. Stress on primary and elementary education would be a leap forward towards higher education. There has been considerable number of dropouts in the higher classes.

This is a reality inspite r • of all steps which the Government claims to have adopted to ensure that every child of a particular age group has education as warranted by the Constitution as a fundamental right. [para 50] [226-C-E] A/IMS Students Union v. A/IMS (2002) 1 SCC 428; Unni Krishnan J. P and Ors. v. State ofA. P and Ors. (1993) 1 SCC 645; N. M. Thomas and Ors. (1976) 2 SCC 31 O; Indra Sawhney v. Union of India and Ors. 1992 Supp (3) SCC 215; Indra Sawhney v. Union of India (1996) 6 SCC 506; K. Nagaraj and Ors. v. $fate ofA. P and Anr. (1985) 1 SCC 523 - referred to. 2. 1 It has been rightly observed in Indra Sawhney No. 2 whether creamy layer is not excluded or whether forward classes can be excluded in the list of backward classes, the position would be the same and there will be breach not only of Article 14 but of the basic structure of the Constitution.

As was rightly observed in the said case, non exclusion of the creamy layer or inclusion of forward castes in the lists of backward classes will be totally illegal. The illegality offends the roots and foundation of the Constitution and cannot be allowed to be perpetuated. Even non-exclusion of the creamy layer for the purpose of admission to the educational institutions cannot be countenanced. It is inconceivable that a person who belongs to the creamy layer is socially and educationally backward. The backward status vanishes '·hen somebody becomes part of the creamy layer. [paras 61 and 63] [257-D-H; 258-A] ~ I ,. ASHOKA KUMAR THAKUR v. UNION OF INOIA & ORS. 29 '" Indra Sawhney v. Union of India and Ors. 1992 Supp. (3) SCC 215; Nair Service Society v. State of Kera/a (2007) 4 SCC 1; K. C. Vasanth Kumar and Anr. v. State of Kamataka 1985 (Supp) SCC 714; MR. Ba/aji v. State of Mysore AIR 1963 SC 649 - referred to. '! 2.

2 A periodic revision of the lists by the Central Government is a statutory mandate. Petitioners have highlighted that there is no exclusion and on the other · hand there has been inclusion. On the question of castes 1 enumeration it is emphasized that 1931 Census was not the basis for identification of other backward classes. In fact the central OBC List is not drawn up on the basis of 1931 Census. Each State has different modalities for -- the object is elimination of castes and not perpetuation to achieve the goal of caste less society and a society free from discrimination of castes judicial review within the \ ) permissible limits is not ruled out. But at the same time -\compelling State interest can be considered while assessing backwardness. The impact of poverty on backwardness cannot be lost sight of. Economic liberation and freedom are also important. [para 101] [287-D-F] K. Nagaraj and Ors. v. State of A. P and Anr (1985) 1 sec 523; Minerva Mills Ltd. v.

Union of India (1980) 3 SCC i 625; TM. A. Pai Foundation and Ors. v. State of Karnataka and Ors. (2002) 8 sec 481 - referred to. 4. 2 Provisions of the Constitution have to be read harmoniously and no part can be treated to be redundant. Both the provisions viz. Article 15(4) and 15(5) operate in different areas though there may be some amount of overlapping but that does not in any way lead to the conclusion that Article 15(5) takes away what is provided in Article 15(4). [Para 106) [294-F] i 4. 3 A construction which reduces the statute to a futility has to be avoided. A statute or any enacting provision therein must be so construed as to make it effective and operative on the principle expressed in the maxim ut res magis va/eat quam pereat i. e. a liberal construction should be put upon written instruments, so as to uphold them, if possible, and carry into effect the intention of the parties. [Para 107] [294-G-H; 295-A] Broom's Legal Maxims (10th Edn. ), p.

361; Craies on Statutes (7th Edn. ). p. 95 and Maxwell on Statutes (11th Edn. ) - referred to. 4. 4 A statute is designed to be workable and the interpretation thereof by a court should be to secure that object unless crucial omission or clear direction makes ... I that end unattainable. The courts will have to reject that construction which will defeat the plain intention of the legislature even though there may be some inexactitude \ I in the language used. [Paras 108 and 109] [295-8-C] CIT v. S. Teja Singh AIR 1959 SC 352 - referred to. Whitney v. /RC (1926 AC 37) p. 52; Gursahai Saiga/ v. CIT AIR 1963 SC 1062; Salmon v. Duncombe (1886) 11AC 627 p. 634; Curtis v. Stovin (1889) 22 QBD 513 - referred to. 4.

5 If the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility, and should rather accept the bolder construction, based on the view that Parliament would legislate only for the purpose of bringing about an effective result. [para 110] [295-D-E] Mohan Kumar Singhania v. Union of India 1992 Supp (1),SCC 594 - referred to. 0 Nokes v. Doncaster Amalgamated Collieries 1940 (3) All ER 549; Pye v. Minister for Lands for NSW 1954 3 All ER 514 - referred to. 4. 6 The statute must be read as a whole and one provision of the Act should be construed with reference to other provisions in the same Act so as to make a consistent enactment of the whole statute. The court must ascertain the intention of the legislature by directing its attent.

ion not merely to the clauses to be construed but to the entire statute; it must compare the clause with other parts of the law and the settin{J in which the clause to be interpreted occurs. Such a construction has the merit of avoiding any inconsistency or repugnancy either within a section or between two different sections or provisions of the same statute. It is the duty of the court to avoid a head-on clash between two sections of the same Act. [paras 111, 112] [295-G-H; 296-A-B] R. S. Raghunath v. State of Karnataka (1992) 1 SCC 335; Sultana Begum v. Prem Chand Jain (1997) 1 SCC 373 - ..... ,. referred to. .. l 4. 7 Whenever it is possible to do so, it must be done to construe the provisions which appear to conflict so that they harmonise. It should not be lightly assumed that Parliament had given with one hand what it took away with the other.

The provisions of one section of the statute cannot be used to defeat those of another unless it is impossible to effect reconciliation between them. Thus a . .. , '( construction that reduces one of the provisions to "useless lumber" or "dead letter" is not a harmonized construction. To harmonise is not to destroy. [paras 113 and 114] [296-8-D] 5. 1 The Constitution of India is not intended to be static. It is by its very nature dynamic. It is a living and organic thing. It is an instrument which has greatest value to be construed. "Ut Res Va/eat Potius Quam Pereat" (the construction should be preferred which makes the ~ machinery workable). Our Constitution reflects the beliefs and political aspirations of those who had framed it.

It is therefore desirable that while considering the question as to whether 27% fixed for the other backward classes to be maintained without definite data the rights of those who belong to the unfortunate categories of other economic backward classes deserve to be concerned, else there shall be no definite determination of number of ~ other backward classes. While fixing the measure for creamy layer it would not be difficult also to fix the norms for the socially and economically backward classes rather the latter exercise would be easier to undertake. [para 115] [296-E-G] 5. 2 It is to be noted that in Section 4(b) of the Act, institutions of research, institutions of excellence, ). institutions of national and strategic importance have been specified in the Schedule to the Act. The proviso permits the Central Government as and when considered necessary to amend the Schedule. In other words, on an . ).

_ appropriate case being presented and established before the Central Government that the Institution is of excellence and/or a research institute and/or an institution of national and strategi\. importance, the Central Government can amend the Schedule and include such institution in the Schedule. In other words, it is permissible for the petitioners and anybody else to highlight to the Government about the desirability to include an Institution ,,. t in the Schedule of the Act. [para 123] [304-F-H; 305-A] 5. 3 It is not correct to contend that in fixing the priorities the Government is the best Judge as contended by the respondents. It may be correct in matters relating to simple policy decisions but when the constitutional mandate is under consideration the underlying object has also to be kept in view. In this context reference is made to Article 46 of the Constitution.

It is in that background pointed out by the petitioners that what cannot be lost ~ sight of is the fact that is the foundation for basic, elementary and primary education. The educational backwardness can be obliterated when at least half of the persons belonging to a particular caste come up to a matriculation level. [para 124] [305-D-F] 5. 4 It is not merely the existence of schemes but the effective implementation of the schemes that is important. It is to be noted that financial constraint cannot be a ~ ground to deny fundamental rights and the provision for the schemes and the utilization of the funds are also relevant factors. It appears that better coordination between the funds provider and the utiliser is necessary. It is suggested that putting stress on cut off limit by shifting from matriculation to Class XII level education as a benchmark of gauging educational backwardness will ,>.. be a step in the right direction.

Though in several decisions, the secondary education was taken to be the benchmark, ground reality cannot be lost sight of that with the limited availability of jobs and the spiraling increase in population, secondary or matriculation examination ca. n no longer be considered to be an appropriate bench mark. It has to be at the most graduation. But the question arises whether technical education can be included while considering educational backwardness. A delicate balancing has to be done in this regard. While technical education cannot be the sole criteria for gauging educational backwardness it definitely will form part of • '1 50 per cent norms fixed by this Court. Slightly variable plus or minus would be the appropriate standard to gauge educational backwardness~ [para 125] [305-G-H; 306-A-D] Indra Sawhney v. Union of India 1992 Supp. (3) SCC 215; Vasanth Kumar and Anr v. State of Kamataka (1985) Supp. SCC 714; State of A. P and Anr. v. P Sagar 1968 (3) SCR 595; Kumari K. S.

Jayasree andAnr v. The State ofKera/a and Anr. (1976) 3 SCC 730; Minor A. Peeriakaruppan, Sabha Joseph v. State of Tamil Nadu and Ors. (1971) 1 SCC 38 referred to. 6. 1 It may be pointed out that the stand of petitioners is that the primary consideration in selection of candidates for admission to the higher educational institutions must be merit. The object of any rules, which may be made for regulating admissions to such institutions therefore, must be to secure the best and most meritorious students. The national interest and the demand of universal excellence may even override the interests of the weaker sections. [para 135] [330-D-E] 6. 2 The interest of no person, class or region can be higher than that of the nation. The philosophy and pragmatism of universal excellence through equality of opportunity for education and adv3ncement across the ... 4. nation is part of the constitutional creed.

It is, therefore, the best and most meritorious students that must be selected for admission to technical institutions and [2008] 4 S. C. R. medical colleges and no citizen can be regarded as outsider in the constitutional set-up without serious detriment to the 'unity and integrity' of the nation. The Supreme Court has laid down that so far as admissions to post graduate course such as MS, MD and the like are concerned, it would be imminently desirable not to provide for any reservation based on residence or institutional preference. However, a certain percentage of seats are allowed to be reserved on the ground of institutional preference. But even in this regard, so far as super specialties such as neurosurgery and cardiology are concerned there should be no reservation at all even on the basis of institutional preference and admissions should be granted purely on all-India basis.

Further, classification made on the basis of super-specialties may serve the interests of the nation better, though interests 0 of individual states may to a small extent, be affected. [para 136] [330-G-H; 331-A-C] 6. 3 The need of a region or institution cannot prevail at the highest scale of specialty where the best skill or talent must be hand-picked by selecting them according to capability. At the level of Ph. D. , M. D. or levels of higher proficiency where international measure of talent is made, where losing one great scientist or technologist in the making is a national loss, the considerations expanded upon as important, lose their potency. The inevitable conclusion is that the impugned Statute can be operative only after excluding the creamy layer from identifiable OBCs. There has to be periodic review of the classes who can be covered by the Statute. The periodicity should be five years.

To strike constitutional balance there is need for making provision for suitable percentage for socially and economically backward classes in the 27% fixed. [paras 137 and 138] [331-D-F] Indra Sawhney v. Union of India 1992 Supp. (3) SCC 215; M. R. Balaji v. State of Mysore, 1963 Supp (1) SCR 439; R. Chitralekha v. State of Mysore AIR 1964 SC 1823; Minor P Rajendran v. State of Madras (1968) 2 SCR 787; State of Andhra Pradesh v. P Sagar (1968) 3 SCR 595; Minor A. Peeriakaruppan (Minor) v. State of TN. (1971) 1SCC38; State of A. P v. U. S. V. Bairam (1972) 1 SCC 660; Janki Prasad Parimoo v. State of J&K (1973) 1 SCC 420; State of Kera/a v. N. M. Thomas (1976) 2 SCC 310; State of UP v. Pradip Tandon (1975) 1 SCC 267; K. S. Jayasree (Kumari) v. State of Kera/a (1976) 3 SCC 730; Akhil Bharatiya Soshit Karamchari ' I Sangh (Railway) v. Union of India and Ors. (1981) 1 SCC 246; Chintaman Rao v. The State of Madhya Pradesh 1950 SCR 759; State of Madras v. VG.

Row AIR 1952 SC 196- referred to. Per Dalveer Bhandari, J. 1. 1 The provisions of the Constitutio11 and the Preamble lead to the irresistible conclusion that the Nation has always wanted to achieve a casteless and classless ~ society. If the impugned legislation is permitted to be implemented, instead of a casteless and classless India, we would be left with a caste-ridden society. [para 8] [337-B-C] 1. 2 Free and compulsory education is now fundamental right under Article 21A. The State is duty bound to implement this Article on a priority basis. There has been grave laxity in its implementation. This laxity ' adversely affects almost every walk of life. Nothing is more important for the Union of India than to implement this critical Article. It is directed that the Union of India to set a time limit within which this Article is going to be completely . G implemented. This time limit must be set within six months.

In case the Union of India fails to fix the time limit, then perhaps this work will also have to be done by the Court. [paras 9 and 1O] [337-D-F] 1. 3. The Union of India should appreciate in proper prospective that the root cause of social and educational backwardness is poverty. All efforts have to be made to + eradicate this fundamental problem. Unless the creamy layer is removed, the benefit would not reach those who are in need. Reservation sends the wrong message. Everybody is keen to get the benefit of backward class status. If we want to really help the socially, educationally and economically backward classes, we need to earnestly focus on implementing Article 21A. We must provide t educationa~ opportunity from day one. Only then will the casteless/classless society be within our grasp. Once children are of college-going age, it is too late for reservation to have much of an effect.

The problem with the Reservation Act is that most of the beneficiaries will belong to the creamy layer, a group for which no benefits are necessary. Only non-creamy layer OBCs can avail of reservations in college admissions, and once they graduate from college they should no longer be eligible for post-graduate reservation. 27% is the upper limit for OBC reservation. The Government need not always provide the maximum limit. Reasonable cut off marks should be set so that standards of excellence greatly effect. The unfilled seats should revert to the general category. [para 11] (337-G-H; 338-A-C] 1. 4 Affirmative action is employed to eliminate substantive social and economic inequality by providing opportunities to those who may not otherwise gain admission or employment. Articles 14, 15 and 16 allow for affirmative action. To promote "Article 14 egalitarian equality, the State may classify citizens into groups, giving preferential treatment to one over another.

When it classifies, the State must keep those who are unequal out of the same batch to achieve constitutional goal of egalitarian society. [para 13] [338-G-H; 339-A] 1. 5 Creamy layer inclusion violates the right to equality. That is, non-exclusion of creamy layer and inclusion of forward castes in reservation violates the right to equality in Articles 14, 15 and 16 as well as the basic structure of the Constitution. [para 30] [345-G] · State of Kera/a and Anr v. N. M. Thomas and Ors. (1976) 2 SCC 310; Indra Sawhney and Ors. v. Union of India and Ors. 1992 Supp (3) SCC 217; Indra Sawhney v. Union of India and Ors. (2000) 1 SCC-168; M. Nagaraj and Ors. v. Union of India and Ors. (2006) 8 SCC 212 - referred to. 2. 1 Once one is socially advanced, he cannot be socially and educationally backward. He who is socially forward is likely to be educationally forward as well. If either condition (social or educational) goes unmet, one cannot qualify for the benefit of reservation as SEBC.

Being socially advanced, the creamy layer is not socially backward pursuant to Articles 15(4) and 15(5) of the Constitution. Even the text of Articles 15(4) and 15(5) provides for creamy layer exclusion. In this sense, one could say that the term "creamy layer" is synonymous with "non-SEBC". [paras 32 and 33] [346-C-D] 2. 2 In Sawhney I, the entire discussion was confined only to Other Backward Classes. Similarly, in the instant case, the entire discussion was confined only to Other Backward Classes. Therefore, no opinion is expressed with regard to the applicability of exclusion of creamy layer to the Scheduled Castes and Scheduled Tribes. [para 34] [347-B-C] Indra Sawhney and Ors. v. Union of India and Ors. 1992 Supp (3) SCC 217 - referred to. 2. 3 In addition to social backwardness, the text of Article 15(5) demands that recipients are also educationally backward.

Even though the creamy layer's status as socially advanced is sufficient to disqualify them -' for preferential treatment, the creamy layer from any community is usually educated and will want the same for its children. They know that education is the key to success. For most, it made them. People belonging to this group do not require reservation. [para 35] [347-D-E] 2. 4 Unless the creamy layer is removed, OBCs cannot exercise their group rights. The Union of India and other respondents argued that creamy layer exclusion is wrong because the text of the 93rd Amendment bestows a benefit on "classes", not individuals. While it is a group right, the group must contain only those individuals that belong to the group. First take the entire lot of creamy and non . ' . creamy layer OBCs, then remove the creamy layer on an individual basis based on their income, property holdings, occupation, etc. What is left is a group that meets constitutional muster.

It is a group right that must also belong to individuals, if the right is to have any meaning. If one OBC candidate is denied benefit of the special provisions that he should have received by law, it is not the group's responsibility to bring a claim. He would be the one to do so. He has a right of action to challenge the ruling that excluded him from the special provisions afforded to OBCs. In this sense, he has an individual right. Group and individual rights need not be mutually exclusive. In this case, it is not one or the other but both that apply to the impugned legislation. [para 46] [350-H; 351-A-D] 2. 5 As long as the Government gives handouts to certain groups, the creamy layer therein will "lap" them up. A scheme in which the poor receive no advantage can be -\ remedied by excluding the creamy layer. [para 49] [352-B] Ashoka Kumar Thakur v. State of Bihar and Ors. (1995) 5 SCC 403; Nair Service Society v.

State of Kera/a, (2007) 4 SCC 1; Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India and Ors. (1981) 1 SCC 246 - referred to. 3. 1 The test for severability asks a subjective ,_ question: had the Parliament known its provision would be struck would it still have passed the rest of the legislation? It is never easy to say what the Parliament. • would have done had it known that part of its amendment wou Id be severed. Nevertheless, it is hard to imagine that the Parliament would have said, "if the creamy is excluded, the rest of the OBCs should be denied reservation in education. " It seems unlikely that it would have been an all-or-nothing proposition for the Parliament, when the very goal of the impugned legislation of promoting OBC educational advancement does not 1 depend on creamy layer inclusion. For these reasons, the implied inclusion of the creamy layer is severed or excluded. [para 53] (353-C-F] 3. 2 The creamy layer schedule of the O. M. dated 8. 9.

93, is not comprehensive: This should be revised periodically - preferably once in every 5 years, in order to ensure that creamy layer criteria take changing . circumstances into account. [para 56] [365-A] ~ 3. 3 Apart from the people who have been excluded vide the office memo, the Government is urged to make it more comprehensive. The Government should consider excluding the children of sitting and former Members of. Parliament (MP) and Members of Legislative Assemblies (MLA) from special benefits. If constitutional authorities have been excluded from benefits because of their status or resources, the same should apply to children of former and sitting MPs and MLAs. It is hoped the f judiciary will not have to involve itself in this matter. [para 57] [365-8-C] Indra Sawhney and Ors. v. Union of India and Ors. (1992) Supp (3) SCC 217; Ashoka Kumar Thakur v. State of Bihar and Ors. (1995) 5 SCC 403; R. M. D. Chamarbaugwal/a and Anr v. Union of India and Anr.

AIR 1957 SC 628 - referred to. ~ 4. 1 Ultimately, the most important aspect of implementing Article 21A is that incentives should be provided to parents so that they are persuaded to send their children to school. More than punishment, creative in. centive programmes will go a long way in the implementation of the fundamental right enshrined under Article 21A. [para 79) [373-B] 4. 2 It is interesting to note that compulsory education has been introduced in one form or the other in various countries. From the historical experience of these nations, we learn that the legislation pe:-taining to compulsory education has played an important role in improving educational outcomes. [para 100) (380-0) 4. 3 The States' laws fail on two accounts. First, they are too lenient to have a deterrent effect. Second, the legislation is not adequately enforced, in part, because it (ioes not require police officers to do the job.

If one analyzes the legislation passed by different States, 0 another conclusion becomes obvious: no State has provided for an adequate punishment whose effect would be to deter citizens from committing a violation. [para 112) (384-D-E] 4. 4 Analysis of these State laws reveals that they are weak in character and perhaps have never been implemented. If these laws are compared with their sister statutes in United States, one realizes that the U. S. laws are far stronger. [para 116] (385-C) 4. 5 The Government's education programmes and expenditures, wanting in many respects, are an improvement over past performa11ce. They nearly fall short of the constitutional mark. Lackluster performance in primary/secondary schools is caused in part because Government places college students on a higher pedestal. Money will not solve all our education woes, but a correction of priorities will go a long way in achieving the Constitutional mandate. [para 122] (387-B-C] 4.

6 Given that so many children drop out of, or are 'absent from, school before they turn fourteen, "free 11 \ , education" alone c. annot solve the problem. The current patchwork of laws on compulsory education is insufficient. Monetary fines do not go far enough to ensure that Article 21A is upheld. A carrot-and-stick approach appears to be the best way to implement Article 21A. Financial incentive programmes have worked well in other countries. We should follow their lead. Once that is done, the Government should strictly enforce effective compulsory education laws. Such a policy is bound to pay off. The Central Government should enact legislation that: (a) provides low-income parents/guardians with financial incentives such that they may afford to send their children to sc;hool; (b) criminally penalizes those who receive financial 0 incentives and despite such payment send their children to work; ( (c) penalizes employers who preclude children ...

from attending school or completing homework; (d) the penalty should include imprisonment; the aforementioned Bill would serve as an example. The State is obligated under Article 21A to implement free and compulsory education in toto; (e) · Until we have achieved the object of free and compulsory education, the Government should continue to increase the education budget; (f) the Parliament should set a deadline by which time free and compulsory education will have reached every child. This must be done within six months. [paras 126 and 127] (388-D-H; 389-A-C] Unni Krishnan, J. P and Ors. v. State of Andhra Pradesh and Ors. (1993) 1 SCC 645; Hussainara Khatoon and Ors. (///) + v. Home Secretary, State of Bihar, Patna (1980) 1 SCC 98; Bandhua Mukti Morcha v. Union of India and Ors. (1997) 10 SCC 549; M. C. Mehta v. State of Tamil Nadu and Ors. (child labour matter) (1996) 6 SCC 756; MC. Mehta v. Union of India (vehicular pollution) (1998) 6 SCC 63 - referred to.

Kothari Commission Report 1964-1966 - referred to. 5. 1 The terms "abridge" and "abrogate" have been employed by this Court to distinguish between acceptable and unacceptable legislation. Whether legislation abridges or abrogates is a question of degree. Using these terms is another way of asking whether the legislation had such an effect that it changed the basic structure of the Constitution. If legislation merely abridges the basic 0 structure, the structure's identity remains. The legislation is upheld. In this sense, the Parliament may take away or destroy fundamental rights by amending the Constitution, provided that the basic structure is not altered. [para 138] [394-A-B] 5. 2 If it abrogates the basic structure, the structure and thus the Constitution lose their identities. The legislation must be struck down. This is determined on a case-by-case basis by applying the effect test (impact/ rights tests).

A total deprivation of fundamental rights, even in one limited area, may amount to an abrogation of the basic structure. [para 139] [394-C-D] M. Nagaraj and Ors. v. Union of India and Ors. · 2006 (8) sec 212; Minerva Mills Ltd. and Ors. v. Union of India and Ors. 1980 (3) SCC 625; and /. R. Coelho v. State of Tamilnadu (2007) 2 SCC 1; His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kera/a (1973) Supp. SCR- referred to. 6. 1 The structure of our Constitution permits ' 4 ' fundamental rights, and even the Golden Triangle of Articles 14, 19 and 21, to be abridged in limited circumstances. To say that subjecting Articles 19(1)(g) to 15(5) violates ·the basic structure per se is to ignore the examples in which the most fundamental of rights is limited. Article 16(4) expressly limits the right to formal equality in 16(1), a specific facet of Article 14. In this light, Article 16(4) impliedly limits the general right to formal equality ··I in Article 14.

The right to equality is expressed in the negative in 15(1): the State shall not discriminate based on religion, race, caste, etc. In other words, the State shall treat citizens of different religions, races and castes equally. Like Article 16(4), Article 15(4) limits 15(1) another facet of Article 14 formal equality - such that egalitarian equality may be pursued. Generally speaking, Articles 15(3) and (4) and 16(4) allow the State to impose affirmative action programs on the public sector. Such . provisions necessarily limit the right to formal equality. If the right to equality, considered by some as a basic postulate of the Constitution, has been limited, a fortiori Article 19(1)(g) can be too. [para 164) [407-E-H; 408-A] 6. 2 As explained in Minerva Mills, the Court had previously upheld Article 31A out of concern ~or stare decisis. The Court never approved of the exclusion of Articles 14 and 19 on a principled basis.

Nor did i~ make a ruling as to whether the exclusion violated the basic structure. [para 165) [408-B-C] 6. 3 A basic structure challenge becomes an issue of institutional competence. Is it for the legislature to decide what is a reasonable restriction under 19(1)(g) read with 19(6)? Or. is it for the judiciary? It is well established that the Parliament, expressing the will of the people, may .. enact amendments to overrule a judgment of this Court. [para 166) [408-D] 6. ~ Freedom under Article 19 belongs to individual citizens. Article 19(1 )(g) provides that "all citizens shall have the right to practice any profession, or to carry on any occupation, trade or business. " The reference to "all citizens" means that each and every individual citizen possesses Article 19 rights. For the impugned legislation to fall, it need not touch every sphere of society. If even one individual's freedom has been curtailed, this Court is duty bound to entertain his or her claim.

It is he or she who possesses the Article 19(1)(g) right to carry on an occupation. [para 169] [409-F-H] 6. 5 Parliament would have gone forward without unaided institutions. While some Members of Parliament sought to overrule Pai and lnamdar, the Parliament's actions speak louder than its words. Once it had passed Article 15(5), it limited itself to imposing greater reservations on aided institutions. Had unaided institutions been the Parliament's priority, it could have .... included them in the Reservation Act. It seems that the Parliament's intent is to pass as much reservation as possible. That would explain why it has gone forward with 27% reservation for OBCs without confirming that at least 27% of the population is OBC. For these reasons, it is concluded had the Parliament known that unaided institutions were going to be severed, it would have nevertheless carried out its reservation scheme for aided institutions. [para 182] [414-F-H; 415-A] Indira Nehru Gandhi v.

Raj Narain and Anr. (1975) Supp SCC 1; P. Sambamurthy v. State ofA. P. (1987) 1 SCC 362; L. Chandra Kumar v. Union of India (1997) 3 SCC 261; Kihoto Hollohan v. Zachil/hu and Ors. 1992 Supp (2) SCC 651; P. A. lnamdar and Ors. v. State of Maharashtra and Ors. (2005) 6 SCC 537; T. M. A. Pai Foundation and Ors. v. State ofKarnataka and Ors. (2002) 8 SCC 481; St. Stephen's College v. University • of Delhi (1992) 1 SCC 558; The State of Bombay & Anr. v. FN. Balsara (1951) SCR 682; The State of Bombay and Anr. v. The United Motors (India) Ltd. & Others (1953) SCR 1069 - re~md~. 7. 1 Whenever legislation is challenged as unconstitutional, Courts must ask themselves how much deference they will give to the legislature. The answer is that it depends on the nature of the impugned legislation. 8 The United States Supreme Court has evolved three standards of review for Government action that treats different people differently. The first is the rational basis standard.

When the classification is rationally related to any legitimate Government purpose, the court defers to the State and upholds the classification. This is the most deferential of the three standards. The second standard is intermediate scrutiny, which is less deferential to Government. Here, the Court asks whether the classification is substantially related to any important Government purpose. The third and highest level of review \J2 is known as strict scrutiny, whereby the Court requires 0-- that the classification are narrowly tailored to a com_pelling ~ state interest. Strict scrutiny test is the least deferential to .... _ Government. [para 191) [417-E-H; 418-A) (\( 7. 2 Of the classifications on which there is case law, the one that most closely resembles caste is race. This is because both are immutable traits. They are used by the powerful, or those seeking power, to justify oppression. Racism and casteism have long haunted both Nations.

In the United States, race raises red flags. It is often, though not always, reviewed under strict scrutiny: "Government action dividing people by race is inherently suspect because such classifications promote 'notions of racial inferiority and lead to a politics of rac•al hostility,' and "racial classifications are simply too pernicious to permit any but the most exact connection between the justification and the classification. " [para 192) [418-A-C) 7. 3 American courts carefully review racial classifications. Given that the 93rd Amendment on its face discriminates against general category students, one · should give it careful scrutiny. The Article 14 right to formal equality deserves as much. If 49. 5% caste-based reservation was upheld in Sawhney I for Government employment, it follows that 49. 5% caste-based 8 reservation is permitted in aided educational institutions.

Though the impugned legislation passes careful scrutiny with respect to reservation in aided institutions, its implementation is contingent upon the directions given in this opinion. [para 194] [419·8-C] Indra Sawhney and Ors. v. Union of India and Ors. (1992) Supp (3) SCC 217 - referred to. Parents involved in Community Schools v. Seattle School District No. 1 et al; Gratz v. Bollinger, 539 U. S. 244, 270; Fullilove v. Klutznick 448 U. S. 448,537; Hernandez v. New 0 York 500 U. S. 352 (1991); Arlington Heights v. Metropolitan Housing Development Corp. , 429 U. S. 252, 264-265 (1977); Washington v. Davis 426 U. S. 229, 239 (1976); Yick Wo v. Hopkins 118 U. S. 356 (1886) - referred to. 8. 1 In the instant case, the Union of India argued that A'rticle 15(4), the First Amendment to the Constitution, reflects the intent of the original Framers because it was passed by the same members that drafted the original Constitution.

In the Parliamentary debates in 1951, Prime Minister Nehru argued in favour amending the Constitution. He and other Framers, as distinguished from the original Framers who had drafted the original Constitution, did not hide their disapproval of Champakam Dorairajan. Article 15(4) was to overturn that judgment. To justify Article 15(4), which represented a dramatic departure from equality as envisaged in Articles 15(2), (3) and 29(2), Pandit Nehru said that Article 15(4) would give effect to "what ... was really intended or should be intended. " Yet, the original Framers, had no intention of providing special provisions for SC/ST in education (and •• a fortiori if not for them, nor for SEBC). What "should be intended" is a far cry from what they specifically enacted and specifically rejected. It follows that Article 15(4) deviated from the original Framers' original intent. [para 215] (425-D-H] 8. 2 Discrimination is not the only problem exacerbated by reservation.

Given that reserved category students gain admission with lower marks, it also stands to reason that they would exhibit less confidence in their studies when pitted against the general category. [para 219] (427-D] 8. 3 To rid ourselves of reservation and its unintended consequences like casteism, we must focus our efforts on strengthening education at the primary and secondary level. Only then will we achieve the castelesslclassless society the original Framers envisaged. And only then will there be reason to scrap reservation altogether. [para 220] [428-E-F] 8. 4 Exhibiting tunnel vision, our First Parliament failed to look beyond caste. Another option was available, an option that adhered to the original Framers' ideals. Contrary to Dr Ambedkar's view, it"was possible to provide reservation to backward classes without discriminating based on caste. Economic criteria target the poorest of the poor, irrespective of caste.

As noted, these criteria also simultaneously remove the creamy layer, (para 226] · [431-G-H;. 432-A] State of Madras v. Champakam Dorairajan AIR 1951 SC 226; Indra Sawhney and Ors. II. Union oflndia and Ors. (1992) Supp (3) SCC 217 - referred to. 9. 1 Economic criteria must include occupation and J. , land holdings because income alone is insufficient. To decrease the likelih. ood. that the undeserving ·evade identification, it is wise to employ more than one criterion. [para 234] [436-D] 9. 2 It all depends on how one defines "class. " Once economic criteria remove the relatively wealthy families (from all castes and communities), a "class" will remain. This "class" is known as "the poor. " The class would share the same characteristic, irrespective of caste. They would all lack money. [para 235] (437-B] 9. 3 Too many people would be eligible for the benefit. This is only a problem if you hand out ). .. reservations based on the group's proportion of the total population.

Such a reservation would be excessively unreasonable and would likely violate the Ba/aji cap