The Constitution (Ninety-Third Amendment) Act, 2005, by which Article 15(5) was inserted in the Constitution, is challenged in thepetitions, on various grounds. The Appeal has being brought forward to the ...
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 265 OF 2006
ASHOKA KUMAR THAKUR ….PETITIONER
Versus
UNION OF INDIA & ORS. ….RESPONDENTS
WITH
Writ Petition (C) No. 269/2006
Writ Petition (C) No. 598/2006
Writ Petition (C) No. 29/2007
Writ Petition (C) No. 35/2007
Writ Petition (C) No. 53/2007
Writ Petition (C) No. 336/2007
Writ Petition (C) No. 313/2007
Writ Petition (C) No. 335/2007
Writ Petition (C) No. 231/2007
Writ Petition (C) No. 425/2007
Writ Petition (C) No. 428/2007
Contempt Petition (Civil) No. 112/2007 in
Writ Petition (C) No. 265/2006
J U D G M E N T
K.G. BALAKRISHNAN, C.J.I.
1.Reservation for admission in educational institutions or for public
employment has been a matter of challenge in various litigations in
this Court as well as in the High Courts. Diverse opinions have been
expressed in regard to the need for reservation. Though several
grounds have been raised to oppose any form of reservation, few in
independent India have voiced disagreement with the proposition that
the disadvantaged sections of the population deserve and need
“special help”. But there has been considerable disagreement as to
which category of disadvantaged sections deserve such help, about
the form this help ought to take and about the efficacy and propriety
of what the government has done in this regard.
2.Pandit Jawaharlal Nehru, who presided over the Congress Expert
Committee emphasized before the Constituent Assembly that the
removal of socio-economic inequalities was the highest priority. He
believed that only this could make India a casteless and classless
society, without which the Constitution will become useless and
purposeless
1
. The Founding Fathers of the Constitution were thus
aware of the ripples of inequality present in society, decried the
notion of caste and ensured that the Constitutional framework
contained adequate safeguards that would ensure the upliftment of
1 II Constituent Assembly Debates 317 (Wednesday, January 22, 1947)
the socially and educationally backward classes of citizens, thus
creating a society of equals. The interpretation of the term “socially
and educationally backward”, and its constituent classes, was left for
future generations to decide.
3.Regarding equality, Dr. Ambedkar stated in the Constituent
Assembly
2
:
“…We must begin by acknowledging the fact that there is complete
absence of two things in Indian Society. One of these is equality. On
the social plane, we have in India a society based on the principle of
graded inequality which means elevation for some and degradation
for others. On the economic plane, we have a society in which there
are some who have immense wealth as against many who live in
abject poverty.”
4.Judge Lauterpacht of the International Court of Justice, writing in
1945, described the importance of the principle of equality in the
following words:-
“The claim to equality before the law is in substantial sense the most
fundamental of the rights of man. It occupies the first place in most
written constitutions. It is the starting point of all other liberties.”
3
5. Equality has also been enshrined in various international
2 XI Constituent Assembly Debates 979 (Friday, November 25, 1949)
3 Lauterpacht, An International Bill of the Rights of the Man (New York, Columbia University Press,
1945)
instruments, such as the 1948 Universal Declaration of Human
Rights. Its Preamble speaks of “the equal and inalienable rights of all
members of the human family”, and of “the equal rights of men and
women.”
4
6.Reservation is one of the many tools that are used to preserve
and promote the essence of equality, so that disadvantaged groups
can be brought to the forefront of civil life. It is also the duty of the
State to promote positive measures to remove barriers of inequality
and enable diverse communities to enjoy the freedoms and share
the benefits guaranteed by the Constitution. In the context of
education, any measure that promotes the sharing of knowledge,
information and ideas, and encourages and improves learning,
among India’s vastly diverse classes deserves encouragement. To
cope with the modern world and its complexities and turbulent
problems, education is a must and it cannot remain cloistered for the
benefit of a privileged few. Reservations provide that extra
advantage to those persons who, without such support, can forever
only dream of university, education, without ever being able to
realize it. This advantage is necessary. In the words of President
4 Universal Declaration of Human Rights, pmbl., G.A. Res. 217A, U.N. GAOR, 3
rd
Sess., pt. 1, at 71,
U.N. Doc A/810 (1948)
Lyndon Johnson,
“You do not take a person who, for years, has been hobbled by
chains and liberate him, bring him up to the starting line and then say,
‘You are free to compete with all the others...”
5
7.Dr. Rajendra Prasad, at the concluding address of the Constituent
Assembly, stated in the following words:-
“…To all we give the assurance that it will be our endeavour to end
poverty and squalor and its companions, hunger and disease; to
abolish distinction and exploitation and to ensure decent conditions of
living. We are embarking on a great task. We hope that in this we
shall have the unstinted service and co-operation of all our people
and the sympathy and support of all the communities...”
6
8.It must also be borne in mind that many other democracies face
similar problems and grapple with issues of discrimination, in their
own societal context. Though their social structure may be markedly
different from ours, the problem of inequality in the larger context and
the tools used to combat it may be common. As stated by Justice
Ruth Bader Ginsburg at the 51
st
Cardozo Memorial Lecture, in 1999 :
“In my view, comparative analysis emphatically is relevant to the task
of interpreting constitutions and enforcing human rights. We are
5 President Lyndon B. Johnson, Howard University Commencement Address, "To Fulfill These Rights",
June 4, 1965
6 V Constituent Assembly Debates 2 (Thursday, the 14
th
August 1947)
losers if we neglect what others can tell us about endeavours to
eradicate bias against women, minorities and other disadvantaged
groups. For irrational prejudice and rank discrimination are infectious
in our world. In this, reality, as well as the determination to counter it,
we all share.”
9. We are conscious of the fact that any reservation or preference
shall not lead to reverse discrimination. The Constitution (Ninety-
Third) Amendment Act, 2005 and the enactment of Act 5 of 2007
giving reservation to Other Backward Classes (OBCs), Scheduled
Castes (SCs) and Scheduled Tribes (STs) created mixed reactions in
the society. Though the reservation in favour of SC and ST is not
opposed by the petitioners, the reservation of 27% in favour of Other
Backward Classes/Socially and educationally backward classes is
strongly opposed by various petitioners in these cases. Eminent
Counsel appeared both for the petitioners and respondents. The
learned Solicitor General and Additional Solicitor General appeared
and expressed their views. We have tried to address, with utmost
care and attention, the various arguments advanced by the learned
counsel and we are greatly beholden to all of them for the manner in
which they have analysed and presented the case before us which is
of great importance, affecting large sections of the community.
10.By The Constitution (Ninety-Third Amendment) Act, 2005, clause
(5) was inserted in Article 15 of the Constitution which reads as
under :-
“Nothing in this article or in sub-clause (g) of clause (1) of article 19
shall prevent the State from making any special provision, by law, for
the advancement of any socially and educationally backward classes
of citizens or for the Scheduled Castes or the Scheduled Tribes in so
far as such special provisions relate to their admission to the
educational institutions including private educational institutions,
whether aided or unaided by the State, other than the minority
educational institutions referred to in clause (1) of article 30.”
11.In Unni Krishnan, J.P. & Ors. Vs. State of Andhra Pradesh &
Ors.
7
, it was held that right to establish educational institutions can
neither be a trade or business nor can it be a profession within the
meaning of Article 19(1)(g). This was overruled in T.M.A. Pai
Foundation & Ors. Vs. State of Karnataka & Ors.
8
, wherein it was
held that all citizens have the fundamental right to establish and
administer educational institutions under Article 19(1)(g) and the
term “occupation” in Article 19(1)(g) comprehends the establishment
and running of educational institutions and State regulation of
admissions in such institutions would not be regarded as an
7 1993 (1) SCC 645
8 2002 (8) SCC 481
unreasonable restriction on that fundamental right to carry on
business under Article 19(6) of the Constitution. Education is
primarily the responsibility of the State Governments. The Union
Government also has certain responsibility specified in the
Constitution on matters relating to institutions of national importance
and certain other specified institutions of higher education and
promotion of educational opportunities for the weaker sections of
society. The Parliament introduced Article 15(5) by The Constitution
(Ninety-Third Amendment) Act, 2005 to enable the State to make
such provision for the advancement of SC, ST and Socially and
Educationally Backward Classes (SEBC) of citizens in relation to a
specific subject, namely, admission to educational institutions
including private educational institutions whether aided or unaided by
the State notwithstanding the provisions of Article 19(1)(g). In the
Statement of Objects and Reasons of the Constitution (Ninety-Third
Amendment) Act, 2005 it has been stated that :-
“At present, the number of seats available in aided or State
maintained institutions, particularly in respect of professional
education, is limited in comparison to those in private unaided
institutions.
To promote the educational advancement of the socially and
educationally backward classes of citizens, i.e., the OBCs or the
Scheduled Castes ad Scheduled Tribes in matters of admission of
students belonging to these categories in unaided educational
institutions other than the minority educational institutions referred to
Clause (1) of Article 30 of the Constitution, it is proposed to amplify
Article 15. The new Clause (5) shall enable the Parliament as well
as the State Legislatures to make appropriate laws for the purposes
mentioned above.”
12.After the above Constitution (Ninety-Third Amendment) Act, 2005,
the Parliament passed The Central Educational Institutions
(Reservation in Admission) Act, 2006 (No. 5 of 2007) (hereinafter
referred to as “the Act 5 of 2007”).
13.Section 3 of Act 5 of 2007 provides for reservation of 15% seats
for Scheduled Castes, 7½% seats for Scheduled Tribes and 27% for
Other Backward Classes in Central Educational Institutions. The said
section is extracted below : -
“3.The reservation of seats in admission and its extent in a Central
Educational Institution shall be provided in the following manner,
namely:-
(i)out of the annual permitted strength in each branch of study or
faculty, fifteen per cent seats shall be reserved for the Scheduled
Castes;
(ii)out of the annual permitted strength in each branch of study or
faculty, seven and one-half per cent seats shall be reserved for the
Scheduled Tribes;
(iii)out of the annual permitted strength in each branch of study or
faculty, twenty-seven per cent seats shall be reserved for the Other
Backward Classes.”
14.“Central Educational Institution” has been defined under
Section 2(d) of the Act as follows:
2(d)“Central Educational Institution” means –
(i) a university established or incorporated by or under
a Central Act;
(ii) an institution of national importance set up by an
Act of Parliament;
(iii) an institution, declared as a deemed University
under section 3 of the University Grants Commission Act, 1956, and
maintained by or receiving aid from the Central Government;
(iv) an institution maintained by or receiving aid from
the Central Government, whether directly or indirectly, and affiliated
to an institution referred to in clause (i) or clause (ii), or a constituent
unit of an institution, referred to in clause (iii);
(v) an educational institution set up by the Central
Government under the Societies Registration Act, 1860.
15.The percentage of reservation to various groups such as
Scheduled Castes, Scheduled Tribes and Other Backward Classes
are with reference to the annual permitted strength of the Central
Educational Institutions and the “annual permitted strength” is defined
under Section2(b) of the Act as follows:-
2(b)“annual permitted strength” means the number of seats, in a
course or programme for teaching or instruction in each branch of
study or faculty authorized by an appropriate authority for admission
of students to a Central Educational Institution
16.Section 4 of the Act specifically says that the provisions of
Section 3 shall apply to certain institutions. Section 4 reads as
under:-
4. The provisions of Section 3 of this Act shall not
apply to –
(a) a Central Educational Institution established in the
tribal areas referred to in the Sixth Schedule to the Constitution;
(b) the institutions of excellence, research institutions,
institutions of national and strategic importance specified in the
Schedule to this Act;
Provided that the Central Government may, as and when considered
necessary, by notification in the Official Gazette, amend the
Schedule;
(c)a Minority Educational Institution as defined in this Act;
(d)a course or programme at high levels of specialization,
including at the post-doctoral level, within any branch or study or
faculty, which the Central Government may, in consultation with the
appropriate authority, specify.”
17.“Minority Educational Institution” is defined in Section 2(f) of the
Act as follows:-
“Minority Educational Institution” means an institution established and
administered by the minorities under clause (1) of article 30 of the
Constitution and so declared by an Act of Parliament or by the
Central Government or declared as a Minority Educational Institution
under the National Commission for Minority Educational Institutions
Act, 2004”
18.Section 2(g) defines ”Other Backward Classes” as under:-
“Other Backward Classes” means the class or classes of citizens who
are socially and educationally backward, and are so determined by
the Central Government”
19.Clause 2(h) defines “Scheduled Castes” and clause 2(i) defines
“Scheduled Tribes” as under:
“Scheduled Castes” means the Scheduled Castes notified under
article 341 of the Constitution;
“Scheduled Tribes” means the Scheduled Tribes notified under article
342 of the Constitution.
20.Section 5 of the Act mandates the increase of seats in the
Central Educational Institutions by providing reservation to Scheduled
Castes, Scheduled Tribes and Other Backward Classes. Section 5
reads as follows:-
“5.(1)Notwithstanding anything contained in clause (iii) of section 3
and in any other law for the time being in force, every Central
Educational Institution shall, with the prior approval of the appropriate
authority, increase the number of seats in a branch of study or faculty
over and above its annual permitted strength so that the number of
seats, excluding those reserved for the persons belonging to the
Scheduled Castes, the Scheduled Tribes and the Other Backward
Classes, is not less than the number of such seats available for the
academic session immediately preceding the date of the coming into
force of this Act.
(2)Where, on a representation by any Central Educational
Institution, the Central Government, in consultation with the
appropriate authority, is satisfied that for reasons of financial,
physical or academic limitations or in order to maintain the standards
of education, the annual permitted strength in any branch of study or
faculty of such institution cannot be increased for the academic
session following the commencement of this Act, it may permit by
notification in the Official Gazette, such institution to increase the
annual permitted strength over a maximum period of three years
beginning with the academic session following the commencement of
this Act; and then, the extent of reservation for the Other Backward
Classes as provided in clause (iii) of section 3 shall be limited for that
academic session in such manner that the number of seats available
to the Other Backward Classes for each academic session are
commensurate with the increase in the permitted strength for each
year.”
21. By virtue of definition of the “Central Educational Institutions”
under clause (d)(iv) of Section 2 of the Act, all institutions maintained
by or receiving aid from the Central Government whether directly or
indirectly, and affiliated to any university or deemed university or
institution of national importance, in addition to universities which are
established or incorporated under a Central Act, institutions of
national importance set up by Acts of Parliament, deemed
universities maintained or receiving aid from Central Government
and institutions set up by the Central Government with the Societies
Registration Act, 1960, are brought under the purview of reservation
under Section 3 of the Act. The object of the Act is to introduce in
reservation in only such institutions which are defined as “Central
Educational Institutions” and not any other private unaided
institutions.
22.The Statement of Objects and Reasons for the Act gives the
object of the Act thus :-
“Greater access to higher education including professional education,
to a large number of students belonging to the socially and
educationally backward classes of citizens or for the Scheduled
Castes and Scheduled Tribes, has been a matter of major concern.
The reservation of seats for the Scheduled Castes, the Scheduled
Tribes and the Other Backward Classes of citizens (OBCs) in
admission to educational institutions is derived from the provisions of
clause (4) of article 15. At present, the number of seats available in
aided or State maintained institutions, particularly in respect of
professional education, is limited in comparison to those in private
unaided institutions.
2.It is laid down in article 46, as a directive principle of State
policy, that the State shall promote with special care the educational
and economic interests of the weaker sections of the people and
protect them from social injustice. Access to education is important
in order to ensure advancement of persons belonging to the
Scheduled Castes, the Scheduled Tribes and the socially and
educationally backward classes also referred to as the OBCs.
3.Clause (1) of article 30 provides the right to all minorities to
establish and administer educational institutions of their choice. It is
essential that the rights available to minorities are protected in regard
to institutions established and administered by them. Accordingly,
institutions declared by the State to be minority institutions under
clause (1) of article 30 are omitted from the operation of the proposal.
4.To promote the educational advancement of the socially and
educationally backward classes of citizens i.e. the OBCs or of the
Scheduled Castes and Scheduled Tribes in matters of admission of
students belonging to these categories in unaided educational
institutions, other than the minority educational institutions referred to
in clause (1) of article 30 of the Constitution, it is proposed to amplify
article 15. The new clause (5) shall enable the Parliament as well as
the State Legislatures to make appropriate laws for the purposes
mentioned above.
5.The Bill seeks to achieve the above objects.”
23.The Constitution (Ninety-Third Amendment) Act, 2005, by
which Article 15(5) was inserted in the Constitution, is challenged in
these petitions, on various grounds. In some of the writ petitions
which have been filed after the passing of Act 5 of 2007, the
challenge is directed against the various provisions of the Act 5 of
2007. Initially, these writ petitions were heard by a Bench of two
Judges. Considering the constitutional importance of these questions,
all these writ petitions were referred to a Constitution Bench.
24.We have heard learned Counsel appearing for the various
petitioners. The learned Senior Counsel, Shri Harish Salve, Shri
F.S. Nariman, Shri K.K. Venugopal, Shri P.P. Rao and
Dr. Rajeev Dhavan and learned Counsel Shri Sushil Kumar Jain
addressed the main arguments on behalf of the petitioners. Shri
Ashok Kumar Thakur appeared in person. Supporting the
Constitution (Ninety-Third Amendment) Act, 2005 and the provisions
of the said Act, learned Senior Counsel Shri K. Parasaran, appearing
for the Union of India, learned Solicitor General Shri G.E. Vahanvati
and learned Additional Solicitor General Shri Gopal Subramanium
submitted arguments. We have also heard learned Senior Counsel
Shri Ram Jethmalani, Shri T.R. Andhyarujina, Ms. Indra Jaisingh,
Shri Rakesh Dwivedi and Shri Ravivarma Kumar. We also had
the advantage of the written submissions made by these Counsel.
25.The arguments advanced against the Constitution (Ninety-Third
Amendment) Act, 2005 and Act 5 of 2007 can be summarized as
follows.
26.It was contended by Shri Harish Salve, learned Senior Counsel,
who confined his arguments to the constitutionality of the provisions
of the Act, especially sub-clause (3) of Section 3 of the Act which
deals with the reservation to the extent of 27% of the total number of
seats for the “socially and educationally backward classes of
citizens”. According to him, the admission to educational
institutions should be based purely on merit and to allow the State to
prefer a student with lesser merit over those who would have
otherwise got admission, is ex facie discriminatory. It is submitted
that all obviously discriminatory laws are violative of the rule of
equality and it is for the State to maintain the principles of equality
and to establish the need for such laws as well as their validity. It was
further argued that Article 15(5) does not protect the validity of the
Act and that the provision in the Act for preferential admission solely
on the basis of caste would violate Article 29(2) of the Constitution,
as has been laid down in The State of Madras Vs. Srimathi
Champakam Dorairajan
9
. It was also argued that Article 15(5) could
be construed as an exception to Article 15(1) and affirmative action, if
excessive, is bound to result in reverse discrimination which is not
permissible. According to the learned Senior Counsel, this is not a
genuine social engineering measure but vote bank politics and would
9 1951 SCR 525
create permanent fissures in society. It was argued that the
provisions of the Act are facially violative of Article 14 and it could
only be justified on the basis of compelling State necessity. A greater
degree of compulsion is necessary to establish a compelling State
necessity than what is ordinarily required to be shown in the case of
economic legislation. The learned Senior Counsel dealt in detail with
the argument that the backward classes cannot be defined solely on
the basis of caste and reference was made to various decisions of
this Court. The learned Senior Counsel particularly referred to
various decisions of the Supreme Court of the United States and
contended that this kind of legislation, that is, the impugned Act,
attempting affirmative action is to be treated as “suspect legislation”
and it has to undergo the tests of “strict scrutiny” and “compelling
state necessity”. Finally, the learned Counsel argued that non-
exclusion of creamy layer is per se illegal and contrary to what has
been laid down by this Court in Indra Sawhney Vs. Union of India
& Ors.
10
.
27.The validity of Constitution (Ninety-Third Amendment) Act, 2005
was seriously challenged by arguing that the amendment is
10 1992 Supp. (3) SCC 215
destructive of basic structure of the Constitution. The learned
Counsel was of the view that both the Act as well as the Constitution
(Ninety-Third Amendment) Act, 2005 have to be declared ultra vires
the Constitution.
28.Dr. Rajeev Dhavan, learned Senior Counsel appearing for the
petitioners in Writ Petition No. 53/2007 contended that the affirmative
action scheme under Article 15(4), 15(5) and 16(4) has to comply
with the mandate of Article 14, 15(1) and 16(1) of the Constitution. It
was argued that these are only enabling provisions and not part of
the fundamental rights. “Notwithstanding”, as used in Article 15(3),
15(4) and 15(5) cannot be construed as “notwithstanding the
declaration of equality principle”. In view of the decision of this Court
in Champakam Dorairajan (supra) admission quotas are
impermissible on any ground based solely on religion, race, caste or
any one of them. It was argued that there is a lack of criteria for
identification of Other Backward Classes (OBCs) and Socially and
Educationally Backward Classes (SEBCs). The concept of creamy
layer is applicable to Article 15 and Article 16 and non-exclusion of
creamy layer in the Act is illegal. Further it was argued that quota
should not be a punishment for unreserved categories and there
should not be any reverse discrimination. The learned Senior
Counsel further challenged the constitutional validity of Constitution
(Ninety-Third Amendment) Act, 2005 and contended that it is against
the basic structure of the Constitution. The procedure laid down
under Article 368 has not been followed. It was contended that the
proviso to Article 368 of the Constitution requires ratification of the
Constitution (Ninety-Third Amendment) Act, 2005 by one half of the
States. The amendment seeks to nationalize the private educational
institutions which is unreasonable and impermissible and reference
was made in this regard to T.M.A. Pai Foundation (supra). It was
argued that Act 5 of 2007 is unreasonable, arbitrary, capricious and
contrary to Articles 14 and 21 of the Constitution. He elaborated his
arguments on the basis of the tests laid down in the M. Nagaraj &
Ors. Vs. Union of India & Ors.
11
and I.R. Coelho (Dead) by LRS.
Vs. State of T.N.
12
cases and lastly, submitted that both Act 5 of
2007 and The Constitution (Ninety-Third Amendment) Act, 2005 are
liable to be declared as ultra vires the Constitution.
11 (2006) 8 SCC 212
12 (2007) 2 SCC 1
29.Dr. Rajeev Dhavan elaborately argued that perusal of the
history of the reservations from 1880 to 2007 for OBCs and SEBCs
showed that there was no emphasis on communities by the British
regime and community based criteria was held to be illegal in
Champakam Dorairajan (supra). From 1950 to 1970, there was no
proper inquiry for ascertaining the OBCs or SEBCs. The learned
Counsel emphasized that in Indra Sawhney’s case (supra), caste
was excluded as a criteria and the identification of SEBCs or OBCs
based on caste could not operate for both Articles 15(4) and 16(4).
According to the learned Senior Counsel, the criteria for identifying
SEBCs should be based on the atrocities inflicted on that class,
discriminatory patterns followed against that class, disadvantage
suffered by that class and disempowerment in respect of the power of
the State and political non-representation. The class should also be
relatively homogeneous in nature.
30.According to the learned Senior Counsel, there is a lack of criteria
for fixing SEBCs or OBCs and this case is being taken to excite vote-
banks. It was argued that the 27% of reservation under the Act of
2007 was based on criteria which did not exist. It was contended that
the creamy layer principle is applicable to OBCs and also to SCs and
STs. It was argued that historic discrimination is not a valid criteria
for determining the beneficiaries of affirmative action and the correct
approach is to look at the continuing wrong and not past
discrimination and that the quotas should not be a punishment for the
non-reserved category resulting in reverse discrimination. The
learned Senior Counsel contended that the Ninety-Third Amendment
is against the basic structure of the Constitution. It was argued that
the Doctrine of Equality is adversely affected by giving a wide and
untrammeled enabling power to the Union Legislature that may affect
the rights of the non-OBCs, SCs and STs. It was argued that the
balance between what was referred to as the “Golden Triangle” in
Minerva Mills Ltd. & Ors. Vs. Union of India & Ors.
13
has been
totally nullified by the Ninety-Third Amendment. It was argued that
the legislative declarations of facts are not beyond judicial scrutiny
and the court can tear the veil to decide the real nature of the statute
and decide the constitutional validity. It was argued that the Act 5 of
2007 is subject to judicial review on the ground that its unreasonable
and clear criteria have not been laid down to identify OBCs and there
was no compelling necessity other than political patronage.
13 AIR 1980 SC 1789 = (1980) 3 SCC 625
31.Shri K.K. Venugopal, learned Senior Counsel appearing in W.P.
(Civil) No. 598 of 2006 contended that Articles 15(4) and 15(5) are
mutually exclusive with the former concerning admissions to aided
institutions and the latter concerning admissions to unaided
institutions. Article 15(5) expressly used the phrase “whether aided
or unaided”, making it clear that it is not merely restricting itself to
unaided institutions. Therefore, it is argued that from the very
inception of the Constitution, Article 15(4) was a provision and was
the source of legislative power for the purpose of making reservation
for the Scheduled Castes, Scheduled Tribes as well as the Socially
and Educationally Backward Classes of citizens in aided minority
educational institutions. On the other hand, Article 15(5), which
provides reservation of seats for SCs and STs as well as SEBCs in
aided educational institutions expressly excludes such reservation
being made at all in minority educational institutions covered by
Article 30(1) of the Constitution. According to him, it would take away
the valuable rights of OBCs, SCs and STs given by the State under
Article 15(4) of the Constitution and this would result in annulling the
endeavour of the founding fathers of the Constitution and would
result in exclusion of SCs and STs from the mainstream of the
society and stall their development for centuries to come. According
to the learned Counsel for the petitioners, the argument of the Union
of India that Article 15(4) and 15(5) are both enabling provisions and
both will stand together and both can be complied with is incorrect. It
was argued that Article 15(4) operates with a qualification that
nothing in Article 15 or in Article 29(2) of the Constitution shall
prevent the State from making special provision for SCs and STs as
well as SEBCs while Article 15(5) operates with a qualification that
“nothing in Article 15 or Article 19(1)(g)” shall prevent the State from
making such special provisions for SCs and STs as well as SEBCs.
The qualifying words in Article 15(4) do not have any real meaning or
effect for the reason that both Article 15(1) as well as Article 29(2)
prohibit discrimination on grounds only of religion and/or for caste.
Therefore, it is argued that there is a direct conflict between Article
15(4) and 15(5). As both Articles contain an exclusionary clause
excluding the operation of the rest of Article 15. It was contended
that The Constitution (Ninety-Third Amendment) Act, 2005 is violative
of the basic structure as it breaches the central character of the
Constitution by placing the minority educational institutions based on
religion on a special footing and exempting it from bearing the
common burden of reservation for SCs, STs and SEBCs. It was
argued that such exclusion of minority institution is not severable
from Article 15(5). As regards the validity of the Act 5 of 2007, it
failed to exclude the “creamy layer” from the caste which would
render the identification of the “caste” as “backward class” which is
unconstitutional and void. Their inclusion would not result in
unequals being treated as equals and result in giving the benefit of
reservation to the advanced sections in that caste. The
consequences would be that the inclusion of the caste for the benefit
of reservations would be purely on the basis of caste only thus
violating Article 15(1) and Article 29(2) of the Constitution. The
doctrine of severability does not apply and therefore, the Act 5 of
2007 is unconstitutional and void to the extent that it does not provide
exclusion of ‘creamy layer’ from the SEBCs. Therefore, it was prayed
that both The Constitution (Ninety-Third Amendment) Amendment
Act, 2005 as well as the Act 5 of 2007 be struck down as
unconstitutional.
32.Shri F.S. Nariman, learned Senior Counsel appearing for the
petitioners in W.P. (Civil) No. 35 of 2007, contended that the caste
cannot be the sole criteria for determining the socially and
educationally backward classes under Article 15(4) and 15(5) of the
Constitution and the test for Article 15(5) has to be “occupation cum
income” where caste may or may not be one of the many
considerations having a nebulous weightage, and alternatively
without conceding if caste at all is taken as one of the many
considerations then it can only be those castes which satisfy the test
of similarity with Scheduled Castes/Scheduled Tribes. It was argued
that the decision of this Court in R. Chitralekha & Anr. Vs. State
of Mysore & Ors.
14
still occupies the field for the purpose of Article
15 and the decision in R. Chitralekha’s case (supra) was affirmed
by the Bench in Indra Sawhney’s case (supra). It was argued that
OBCs are already educationally forward and no reservation in higher
education is justified. The learned Senior Counsel relied on the
literacy rate by age groups as quoted in the Sachar Committee
Report. It was contended that in data given in the judgment in Indra
Sawhney’s case (supra), OBCs were not taken as educationally
backward. According to the learned Senior Counsel for the
petitioners, there can only be presumption of forwardness of OBCs
14 (1964) 6 SCR 368
and they are not backward. The burden is on the Government to
provide that the intended beneficiaries are really backward citizens.
The OBCs have not suffered social inequalities or oppression that
had been inflicted on Scheduled Castes and Scheduled Tribes by the
society and, according to the learned Senior Counsel, the caste-
occupation nexus barely survives today and is a misleading guide.
The caste based occupation association has been rapidly
disappearing from the Indian society. For Articles 15(4) and 15(5),
economic consideration has to be the dominant criterion. The non-
execution of “creamy layer” is illegal and it was intended to safeguard
the really deprived and backward people among the so-called OBCs.
It was contended that the Government has not published the list of
OBCs for Article 15(5) and the Union of India has not been able to
produce the list or the criteria for determining the SEBCs. No time
frame has been fixed for such reservation. Therefore, the Act 5 of
2007 is violative of Article 14 of the Constitution of India and is thus
unconstitutional.
33.Appearing for the Writ Petitioner in W.P. (Civil) No. 231/2007
filed by the Citizens for Equality, the learned Senior Counsel Shri
P.P. Rao contended that the mandate of Article 45 to provide free
and compulsory education for all children until they complete the age
of 14 years has not been complied with by the Government and
therefore, there is clear violation of Article 20 of the Constitution.
Although the Sarva Shiksha Abhiyan (SSA) Project was introduced
with certain objectives, these objectives were not fulfilled. The
Constitution seeks to achieve a casteless and classless society.
Therefore, identification of socially and educationally backward
classes should be based on such criteria which facilitate the
eradication of the caste system. The educational backwardness of
the backward classes and the SEBCs should be removed and once
this educational backwardness is removed, clause 4 and 5 of Article
15 will become redundant and unnecessary. It was argued that
without ensuring that every child belonging to a backward class is
provided free and compulsory education upto 10+2 level any
reservation provided in higher education is discriminatory inter se
between members of the backward classes themselves and violative
of Articles 14 and 15 of the Constitution. Education upto secondary
school level should be the measure for determining educational
backwardness. The social and educational backwardness referred to
in Article 15(4) requires separate identification of SEBCs. Agricultural
labourers, rickshaw pullers/drivers, street hawkers etc. may well
qualify for being designated as “backward classes” According to
petitioner’s learned Senior Counsel, a rational basis would be to
identify backward classes through occupations traditionally
considered to be inferior, yielding low income. It was argued that that
in any event, the “creamy layer” among the socially and educationally
backward classes is liable to be excluded.
34. Shri Sushil Kumar Jain, learned Counsel appearing in
W.P. (Civil) No. 598 of 2006, elaborately argued the issues involved
in this case. The main contention of the petitioner’s Counsel is that
the “affirmative action” policy of the Government of India is
discriminatory and against general public interest. The policy is
intended to “uplift” the so called socially and educationally backward
sections of the society by the process of positive discrimination. It
was argued that the Ninety-Third Constitutional Amendment is
destructive of the basic structure of the Constitution as it destroys the
delicate balance of the various fundamental rights that the citizens of
the country enjoy. The provision of Article 15(5) was inserted as a
proviso to Article 19(6) which has been held to be unreasonable and
against the constitutional scheme. Article 15(5) makes an exception
for the minority institutions covered under Article 30 and therefore
treats them differently from other private institutions. The Central
Education Institution (Reservation in Admission) Act, 2007 which has
been enacted in purported exercise of the said powers, is in excess
of the said powers. Since the target beneficiaries of Article 15(5)
have not been identified with a necessary degree of specificity, the
Act 5 of 2007 is illegal. There ought to be a quantitative correlation
between the benefits conferred and the extent of the “problem”
sought to be remedied, the correlation being “reasonable” and not
“proportionate”. The Act 5 of 2007 does not provide the manner or
the principles on which the identification of OBC is to be made.
Therefore, it lacks the necessary nexus with the ultimate objects
sought to be achieved. The reservation of seats for the “beneficiaries”
for many years to come without any provision for review gives rigidity
and permanency to such measures. This would result in excessive
reservation and thereby cause reverse discrimination. The 100%
quota in the additional seats that will be created in the educational
institutions is facially discriminatory. Identification of SEBCs on the
basis of caste creates vested interest in backwardness. Therefore,
the measures and means chosen by the Government are therefore
unethical to the constitutional goals. Failure to exclude “creamy
layer” allows conferment of benefits on undeserving persons. The
action of the State Governments lacks in the basic details of the
extent of the measure. The exact social malaise sought to be
remedied is not clear.
35.The learned Counsel for the petitioner further contended that
the Ninety-Third Constitutional Amendment violates the basic
structure of the Constitution. This Court clarified the rights of the
private educational institutions in terms of Article 19(1)(g) of the
Constitution in T.M.A. Pai Foundation case (supra) as explained in
P.A. Inamdar & Ors. Vs. State of Maharashtra & Ors.
15
It was
held in that case that fixation of quotas and reservation of seats in
private educational institutions amounts to “Nationalization of
Education”. The Ninety-Third Constitutional Amendment is thus an
unreasonable action of the legislature. It was argued that the
impugned amendment alters supremacy of the Constitution and there
was only limited constituent power to amend Article 368. Article
15 (2005) 6 SCC 537
15(5) would enable the State to make the law to provide reservation
to private educational institution which has been held to be an
unreasonable encroachment on the fundamental rights and this
amendment would alter the balance between Part III and IV of the
Constitution. Reliance was placed on various decisions by the
petitioner’s learned Counsel. The impugned amendment specifically
excludes the application of Article 19(1)(g), whereas the institutions
governed by Article 26 and the minority institutions governed by
Article 30(1) have been left out. This, according to the petitioner’s
Counsel, is discriminatory and illegal and that there was no
justification to this differential treatment. The petitioner’s learned
Counsel also challenged the quantum of reservations provided under
the Act 5 of 2007. Any determination of the extent of reservation
without considering the future impact of the reservation would be
unjust, arbitrary and unreasonable. Caste based reservation would
not be in the larger interest of the national unity and integrity. The
benefits could be given only to those communities which are not
adequately represented and not to those which are socially and
educationally advanced. Reservation in the form of quota is illegal
and if some classes are to be given some benefit and to be equalized
with the general category they could be awarded some additional
marks like it is being given to the women candidates seeking
admission in colleges. Many of the castes included in SEBCs are not
really backward classes and some of them were even rulers of
erstwhile States for a number of years. The benefits and privileges
which are given to SCs/STs should not be extended to OBCs. The
members of the OBC communities are capable of competing with the
general category candidates and the increase in seats would entail a
corresponding increase in infrastructure, and it is submitted that an
increase in infrastructure would, therefore, to be financed through tax
collections and, therefore, every member of the public (including the
general category) is entitled to be considered for admission in the
said increase. The learned Counsel also strongly objected to “caste”
being taken as a means of classification and identification of SEBCs
and OBCs. It is contended that it is in complete derogation of
provisions of Article 15(1) and, according to the petitioner’s learned
Counsel, many of the castes which have been included in SEBCs are
really not SEBCs and thus past historical discrimination is entirely
irrelevant for conferment of benefits in the present times. It was also
contended that there are no traditional occupations now. It is
submitted that the identification of castes as a “class” to justify the
same as being occupations on a presumption that the persons
belonging to a particular caste continue to follow a particular
occupation especially in the present constitutional scheme which
gives freedom to choose any business, occupation or profession is
entirely fallacious. The learned Counsel for the petitioner also
contended that the non-exclusion of creamy layer is illegal
and relied on Indra Sawhney’s case (supra) and Indra Sawhney
(II) Vs. Union of India & Others
16
.
36. Shri Ashoka Kumar Thakur, who appeared in person,
supported all the contentions raised by various learned Counsel and
urged that the Ninety-Third Constitution Amendment as well as the
Act 5 of 2007 are unconstitutional and they are liable to be struck
down.
37.On behalf of the respondents, several Senior Counsel
appeared and contended that the contentions of the petitioners
challenging the Ninety-Third Constitutional Amendment and the Act 5
of 2007 are without any merit and are liable to be dismissed. The
16 (2000) 1 SCC 168, at p. 190
contentions raised by the petitioners’ Counsel were refuted by the
respondents’ Counsel by raising the plea that affirmative action is
needed for promoting educational and economic interest of weaker
section of society. Shri K. Parasaran, learned Senior Counsel
appearing for the Union of India, submitted that the Constitution is to
be interpreted as an integral, logical whole, and while construing one
part, regard must be had to the provisions of the other parts,
rendering no portion as unnecessary or redundant. It was argued
that when constitutional provisions are interpreted, it has to be borne
in mind that the interpretation is such as to further the object of their
incorporation and they cannot be interpreted in a manner that renders
another provision redundant.
38.It was argued that the constitutional provision must not be
construed in a narrow and constricted sense but in a wide and liberal
manner so as to anticipate and take into account the changing
conditions and purposes so that the constitutional provision does not
get fossilized but remains flexible enough to meet the newly
emerging problems and challenges of this age. Reference was made
to various decisions rendered by this Court regarding the
interpretations of constitutional provisions. It was pointed out that
when social welfare measures are sought to be implemented and the
Constitution has to be interpreted in such context, it has to be kept in
mind that the Preamble is the text which sets out the goal that is to be
attained; and that Part III is the texture into which is woven a pattern
of rights.
39. Fundamental Rights and Directive Principles are both
complementary and supplementary to each other. Preamble is a part
of the Constitution and the edifice of our Constitution is built upon the
concepts crystallized in the Preamble. Reference was made to the
observations made by Chief Justice Sikri in His Holiness
Kesavananda Bharati Sripadagalvaru Vs. State of Kerala
17
,
wherein it was argued that the Constitution should be read and
interpreted in the light of the grand and noble vision expressed in the
Preamble. The Preamble secures and assures to all citizens justice,
social, economic and political and it assures the equality of status
and of opportunity. Education and the economic well-being of an
individual give a status in society. When a large number of OBCs,
SCs and STs get better educated and get into Parliament, legislative
17 [1973] Supp. SCR 1 = (1973) 4 SCC 225
assemblies, public employment, professions and into other walks of
public life, the attitude that they are inferior will disappear. This will
promote fraternity assuring the dignity of the individual and the unity
and integrity of the nation. The single most powerful tool for the
upliftment and progress of such diverse communities is education.
40.The Fundamental Rights in Part III are not to be read in isolation.
All rights conferred in Part III of the Constitution are subject to at least
other provisions of the said Part III. The Directive Principles of State
Policy in Part IV of the Constitution are equally as important as
Fundamental Rights. Part IV is made not enforceable by Court for
the reason inter alia as to financial implications and priorities.
Principles of Part IV have to be gradually transformed into
fundamental rights depending upon the economic capacity of the
State. Article 45 is being transformed into a fundamental right by 86
th
Amendment of the Constitution by inserting Article 21 A. Clause 2 of
Article 38 says that, “the State shall, in particular, strive to minimize
the inequalities in income and endeavour to eliminate inequalities in
status, facilities and opportunities, not only amongst individuals but
also amongst groups of people residing in different areas or engaged
in different vocations”. Under Article 46, “the State shall promote
with special care the educational and economic interests of the
weaker sections of the people and, in particular, of the Scheduled
Castes and the Scheduled Tribes, and shall protect them from social
injustice and all forms of exploitation”. It is submitted that the Ninety-
Third Constitutional Amendment was brought into force to bring about
economic and social regeneration of the teeming millions who are
steeped in poverty, ignorance and social backwardness. Shri K.
Parasaran, learned Senior Counsel, contended that the concept of
basic structure is not a vague concept and it was illustrated in the
judgment in Kesavananda Bharati’s case (supra). It was pointed
out that the supremacy of the Constitution, republican and democratic
form of Government and sovereignty of the country, secular and
federal character of the Constitution, demarcation of power between
the legislature, the executive and the judiciary, the dignity of the
individual (secured by the various freedoms and basic rights in Part
III and the mandate to build a welfare State contained in Part IV), the
unity and the integrity of the nation are some of the principles of basic
structure of the Constitution. It was contended that when the
constitutional validity of a statute is considered, the cardinal rule to be
followed is to look at the Preamble to the Constitution as the guiding
light and the Directive Principles of State Policy as a book of
interpretation. On a harmonious reading of the Preamble, Part III
and Part IV, it is manifest that there is a Constitutional promise to the
weaker sections / SEBCs and this solemn duty has to be fulfilled.
41.It was pointed out that the observations in Champakam
Dorairajan (supra) that the Directive Principles are subordinate to
the Fundamental Rights is no longer good law after the decision of
the Kesavanda Bharati (supra) case and other decisions of this
Court. It was pointed out that the de facto inequalities which exist in
the society are to be taken into account and affirmative action by way
of giving preference to the socially and economically disadvantaged
persons or inflicting handicaps on those more advantageously placed
is to be made in order to bring about real equality. It is submitted that
special provision for advancement of any socially and educationally
backward citizens may be made by determining the socially and
educationally backward classes on the basis of caste. Article 15(4)
neutralized the decision in Champakam Dorairajan’s case (surpa).
It was enacted by the Provisional Parliament which consisted of the
very same Members who constituted the Constituent Assembly. Our
Constitution is not caste blind and the Constitution prohibits
discrimination based ‘only on caste’ and not ‘caste and something
else’.
42.In Unni Krishnan’s case (supra) it was held that Article 19(1)(g)
is not attracted for establishing and running educational institutions.
But this decision was overruled in T.M.A. Pai Foundation (supra)
and it was held that establishing and running an educational
institution is an “occupation” within the meaning of Article 19(1)(g).
In P.A. Inamdar’s case (supra), it was held that the private
educational institutions, including minority institutions, are free to
admit students of their own choice and the State by regulatory
measures cannot control the admission. It was held that the State
cannot impose reservation policy to unaided institutions. The above
ruling disabled the State to resort to its enabling power under Article
15(4) of the Constitution. It was argued by Shri Parasaran that the
above rulings necessitated the enactment of The Constitution
(Ninety-Third Amendment) Act, 2005 by inserting Article 15(5)
through which enabling power was conferred on the Parliament and
the State Legislatures, so that they would have the legislative
competence to pass a law providing for reservation in educational
institutions which will not be hit by Article 19(1)(g). But rights of
minorities under Article 30 are not touched by Article 15(5).
43.In Kesavananda Bharati (supra) it was held that the fundamental
rights may not be abrogated but they can be abridged. The validity of
the 24
th
Amendment of the Constitution abridging the fundamental
rights was upheld by the Court. The right under Article 19(1)(f) has
been completely abrogated by the 44
th
Amendment of the
Constitution which is permissible for the constituent power to abridge
the Fundamental Rights especially for reaching the goal of the
Preamble of the Constitution. It is an instance of transforming the
principles of Part IV into Part III whereby it becomes enforceable. All
rights conferred in Part III of the Constitution are subject to other
provisions in the same Part. Article 15(4) introduced by the 1
st
Amendment to the Constitution is a similar instance of abridging of
Fundamental Rights of the general category of citizens to ensure the
Fundamental Rights of OBCs, SCs and STs. Article 15(5) is a similar
provision and is well within the Constituent power of amendment.
Article 15(5) is an enabling provision and vests power in the
Parliament and the State legislatures.
44.There is vital distinction between the vesting of a power and the
exercise of power and the manner of its exercise. It would only
enable the Parliament and the State legislatures to make special
provisions by law for enforcement of any socially and educationally
backward class of citizens or for Scheduled Castes and Scheduled
Tribes relating to their admission to educational institutions including
private educational institutions.
45.As regards exemption of minority educational institutions in
Article 15(5), it was contended that this was done to conform with the
Constitutional mandate of additional protection for minorities under
Article 30. It was argued that Article 15(5) does not override Article
15(4). They have to be read together as supplementary to each
other and Article 15(5) being an additional provision, there is no
conflict between Article 15(4) and Article 15(5). Article 15(4), 15(5),
29(2), 30(1), and 30(2) all together constitute a Code in relation to
admission to educational institutions. They have to be harmoniously
construed in the light of the Preamble and Part IV of the Constitution.
It was also contended that the Article 15(5) does not interfere with the
executive power of the State and there is no violation of the proviso
to Article 368.
46.The Ninety-Third Constitutional Amendment does not specifically
or impliedly make any change in Article 162. Article 15(5) does not
seek to make any change in Article 162 either directly or indirectly.
The field of legislation as to “education” was in Entry 11 of List II. By
virtue of the 42
nd
Amendment of the Constitution, “education”, which
was in Entry 11 in List II, was deleted and inserted as Entry 25 in List
III. The executive power of the State is not touched by the present
Constitutional Amendment.
47.Article 15(5) does not abrogate the fundamental right enshrined
under Article 19(1)(g). If at all there is an abridgement of
Fundamental Right, it is in a limited area of admission to educational
institutions and such abridgement does not violate the basic structure
of the Constitution. In any way, Constitutional Amendments giving
effect to Directive Principles of the State Policy would not offend the
basic structure of the Constitution.
48.The Right to Equality enshrined in our Constitution is not merely a
formal right or a vacuous declaration. Affirmative action though
apparently discriminatory is calculated to produce equality on a
broader basis. By eliminating de facto inequalities and placing the
weaker sections of the community on a footing of equality with the
stronger and more powerful sections so that each member of the
community whatever is his birth, occupation or social position may
be, enjoys equal opportunity of using to the full, his natural
endowments of physique, of character and of intelligence.
49.Shri Parasaran, learned Senior Counsel, further contended that
the Act 5 of 2007 is a constitutionally valid piece of legislation. Under
Section 2(g) of Act 5 of 2007, there is no excessive delegation. The
plea of the petitioners that the Parliament itself should have
determined OBCs and that Act 5 of 2007 suffers from excessive
delegation or lack of guidelines is not tenable. The backward classes
of citizens have to be identified on the materials and evidence and
therefore the Parliament necessarily has to leave it to the Executive.
The determination of OBCs is a long-drawn process which would
cause enormous delay. Therefore, it was appropriate to leave the
identification to the Executive. Such determination of each class as
backward class would be open to judicial review. And the scope of
judicial review would be wider if the same is made by the Executive
rather than by the Parliament.
50.It is also contended that merely because no time limit is fixed,
Act 5 of 2007 cannot be rendered invalid. The Parliament has got the
power to review periodically and either make modifications in the Act
or repeal the Act. It is for the first time certain special provisions are
being made in favour of socially and educationally backward classes
of citizens, SCs and STs for reservation of seats in Central
Educational Institutions after 56 years of coming into force of the
Constitution. At its very commencement, a time limit may not be
anticipated and fixed. Over a period of time depending upon the
result of the measures taken and improvements in the status and
educational advancement of the SCs, STs and SEBCs, the matter
could always be reviewed. The Act cannot be struck down at the
very commencement on the ground no time limit for its operation has
been fixed.
51.It was also submitted that the quantum of reservation provided
under the Act is valid. The ratio of population is a relevant
consideration in fixing the quantum of reservation. Reservation in
favour of OBCs is 27% and by adding the percentage of reservation
for SCs and STs, the total quantum of reservation does not exceed
50%. It is indisputable that the population of OBCs exceeds 27% and
SCs and STs constitute more than 22 ½%. The quantum of
reservation within 50% has been determined by the Parliament based
on facts considered by legislature and they are conclusive and the
Courts do not exercise the power of judicial review by examining
those facts.
52.The learned Senior Counsel also contended that the contention
of the Petitioners that special provisions can only be made up to
10+2 stage is untenable. If this plea is accepted, it would result in
higher education being the privilege of the higher classes only and it
would be a distortion of the concept of social advancement of the
downtrodden and the negation of the goal envisaged by the
Preamble. It was also contended that the principle of reverse
discrimination is not applicable. The Doctrine of Strict Scrutiny and
Narrow Tailoring are not applicable in India as they are American
doctrines which operate under different facts and circumstances.
This court on earlier occasion had rejected these pleas, when dealing
with admission to Post-graduate Medical Courses, when 75% of
seats were being reserved on the basis of institutional preference.
53.The learned Senior Counsel further contended that the
exclusion of creamy layer has no application to SCs and STs in
regard to employment and education. Articles 341, 342, 366(24) and
366(25) of the Constitution would militate against such course of
action.
54.It was held in E.V. Chinnaiah Vs. State of Andhra Pradesh &
Ors.
18
, that the SCs and STs form a single class. The observations
in Nagaraj’s case (supra) cannot be construed as requiring exclusion
of creamy layer in SCs and STs. Creamy layer principle was applied
for the identification of backward classes of citizens. And it was
specifically held in Indra Sawhney’s case, (supra) that the above
18 (2005) 1 SCC 394
discussion was confined to Other Backward Classes and has no
relevance in the case of Scheduled Tribes and Scheduled Castes.
The observations of the Supreme Court in Nagaraj’s case (supra)
should not be read as conflicting with the decision in Indra
Sawhney’s case (supra). The observations in Nagaraj’s case
(supra) as regards SCs and STs are obiter. In regard to SCs and
STs, there can be no concept of creamy layer.
55.Once the President of India has determined the list of
Scheduled Castes and Scheduled Tribes, it is only by a law made by
the Parliament that there can be exclusion from the list of Scheduled
Castes or Scheduled Tribes. As far as OBCs are concerned, the
principle of exclusion of creamy lawyer is applicable only for Article
16(4). It has no application to Article 15(4) or 15(5) as education
stands on a different footing.
56.Equality of opportunity of education is a must for every citizen
and the doctrine of “creamy layer” is inapplicable and inappropriate in
the context of giving opportunity for education. In the matter of
education there cannot be any exclusion on the ground of creamy
layer. Such exclusion would only be counter productive and would
retard the development and progress of the groups and communities
and their eventual integration with the rest of the society.
57.It was further argued that Article 15(4) and 15(5) are provisions
of power coupled with duty. It is the constitutional duty to apply these
principles in the governance of the country and in making law for the
reason that it is a constitutional promise of social justice which has to
be redeemed.
58.It was strongly contended by the learned Senior Counsel
Shri Parasaran that the validity of the constitutional amendment and
the validity of plenary legislation have to be decided purely on the
basis of constitutional law. And the submission, as it was contended
that the Amendment has a vote catching mechanism is inappropriate.
The contention that the Ninety-Third Constitutional Amendment is
against the Universal Declaration of Human Rights is also not
tenable. Right to Equality of Opportunity operates at every level and
it is being provided for a particular level either by a legislative or an
executive action. The merit has to be interpreted in the context of
egalitarian equality and not formal equality.
59.It was also submitted that the speeches in the Parliament,
constitutional debates, text books of authors and views expressed in
articles do not normally constitute evidence before the Court to
determine the Constitutional validity of the legislations.
60.Shri G.E. Vahanvati, learned Solicitor General of India appearing
on behalf of the Union of India, submitted that the argument of Shri
Harish Salve, learned Senior Counsel that the American doctrine of
“strict scrutiny” should be applied to the affirmative action envisaged
under Article 15(5) is not correct. It was argued that the impugned
legislation is not ex facie discriminatory and, therefore, it cannot be
classified as a “suspect legislation”. It was argued that right that from
the case of The General Manager Southern Railway Vs.
Rangachari,
19
Article 16(4) is an exception to Article 16(1) and this
reasoning was followed in M.R. Balaji & Others Vs. State of
Mysore
20
by a five Judge Bench. Thereafter, the same view
prevailed in T. Devadasan Vs. The Union of India & Anr.
21
But
19 1962 (2) SCR 586 at p. 607
20 (1963) Supp. 1 SCR 439 at 455 = AIR 1963 SC 649
21 1964 (4) SCR 680
Subba Rao. J. (as he then was) said that “the expression ‘nothing in
this article’ is a legislative device to express its intention in a most
emphatic way that the power conferred there under is not limited in
any way by the main provision but falls outside it” . The view that
Articles 15(4) and 16(4) are exceptions to Article 15(1) and 16(1)
respectively was again reiterated in Triloki Nath Vs. State of
Jammu & Kashmir & Ors. (II)
22
and in The State of Andhra
Pradesh & Ors. Vs. U.S.V. Balram, Etc
23
. The learned Solicitor
General further pointed out that in State of Kerala & Anr. Vs N.M.
Thomas & Ors.
24
the majority opinion held that Articles 14, 15 and
16 are parts of the scheme of equality and that Articles 15(4) and
16(4) are not exceptions to Articles 15(1) and 16(1) respectively. The
said change in N.M. Thomas’s case (supra) was noticed by Justice
Chinnappa Reddy in K.C. Vasanth Kumar & Anr. Vs. State of
Karnataka
25
and the same view was upheld in Indra Sawhney’s
case (supra). The learned Solicitor General further contended that
once it is accepted that Articles 15(4) and 16(4) are not exceptions to
Articles 15(1) and 16(1) respectively, then there is no question of
22 1969 (1) SCR 103
23 1972 (1) SCC 660
24 1976 (2) SCC 310
25 (1985) Supp SCC 714
treating the social welfare measure as being ‘facially discriminatory’
or “ex facie” violative of the rule of equality. It was argued that it is
not simply a matter of legal equality. De jure equality must ultimately
find its raison d’etre in de facto equality. The State must, therefore,
resort to compensatory State action for the purpose of uplifting
people who are factually unequal in their wealth, education or social
environment. Relying on the observations of Subba Rao, J. in T.
Devadasan’s case (supra), it was argued that centuries of calculated
oppression and habitual submission has reduced a considerable
section of our community to a life of serfdom and it would be well nigh
impossible to raise their standards if the doctrine of equal opportunity
was strictly enforced in their case and they would not have any
change if they were made to enter the open field of competition
without adventitious aids till such time when they could stand on their
own legs. Laying reliance on the observations made in N.M.
Thomas’s case (supra) and also in Indra Sawhney’s case (supra),
the learned Solicitor General argued that under Articles 15(4) and
16(4) the State is obliged to remove inequalities and backwardness
from society. It was further submitted that the American doctrine of
“strict scrutiny” had been expressly rejected by this Court in Saurabh
Chaudri & Ors. Vs. Union of India & Ors.
26
As regards
identification of backward classes, the learned Solicitor General
contended that while dealing with the aspect of identification of
backwardness for socially and educationally backward classes, it
cannot be denied that there is backwardness in this country; that
large sections of the country are socially and educationally backward;
that this problem is not new but is age old; that such backwardness
arose because of certain peculiarities of the caste system which
proceeded on the assumption that the choice of occupation of
members of a caste was pre-determined in many castes; and that
members of particular castes were prohibited from engaging
themselves in occupations other than those certain occupations
which were considered to be degrading and impure and considered
fit only for those castes. It was pointed out that Chief Justice
Wanchoo in C.A. Rajendran Vs. Union of India & Ors.
27
held that
the main criteria for inclusion in the list is social and educational
backwardness of the castes based on the occupation pursued by
those castes. Reference was made to various decisions rendered by
this Court on this issue, especially Minor A. Peeriakaruppan &
26 (2003) 11 SCC 146
27 (1968) 1 SCR 721
Anr. Vs. State of Tamil Nadu & Ors.
28
; U.S.V. Balram (supra); K.C.
Vasanth Kumar (supra), referred to earlier. The learned Solicitor
General also pointed out that in B . Venkataramana Vs. The State
of Madras & Anr.
29
, the list of backward classes as mentioned in
Schedule 3 to the Madras Provincial and Subordinate Services Rule,
1942 was approved and which was also noticed in Indra Sawhney’s
case (supra). Reference was also made to the debates in Parliament
where Dr. Ambedkar stated that “the backward classes are nothing
but collection of certain castes”. It was further contended that it is
incorrect to say that the majority in Indra Sawhney’s case (supra)
did not accept or approve the Mandal Commission Report. That
Report was referred to in several places in that judgment and the
criterion adopted by the Mandal Commission to classify the backward
classes was more or less accepted. The learned Solicitor General
also pointed out that it is not correct to say that the State Lists are
defective and that they ought not to have been accepted by the
Central Government. It is pointed out that the Central List has been
operating for 14 years for the purposes of reservations of posts and
not a single person has challenged any inclusion in the Central List
28 1971 (1) SCC 38
29 AIR 1951 SC 229 = 1951 1 MLJ 625
as being void or illegal; that the State Lists have also been operating
both for the purposes of Articles 16(4) and 15(4) and there has been
no challenge at all in any High Court or in the Supreme Court with
regard to the State List and that there has not been a single
complaint made before the State Government or the National
Commission with regard to over-inclusion of any caste or community.
The learned Solicitor General pointed out that the allegations in
relation to the working of the National Commission for the Backward
Classes are not true. The National Commission has framed elaborate
guidelines for consideration of request for inclusion and complaints of
non-inclusion in the Central List for other backward classes. The
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. The National Commission
held 236 public hearings at various places since its inception. The
National Commission had also prepared an elaborate questionnaire
for considering classes for inclusion in the State Lists. Detailed data
was required to be submitted with regard to social, educational and
economic criteria of the communities that were considered. It is
pointed out that during the period of its functioning the National
Commission recommended 297 requests for inclusion and at the
same time rejected 288 requests for inclusion of main castes. It was
further pointed out that the National Commission has not
mechanically allowed all applications for inclusion in the Central List.
The National Commission while examining the applications had taken
note of the ethnographic history of the concerned castes/sub-
groups/communities and it has also taken note of the
recommendations of the various State Commissions. It was also
submitted that the contention that the inclusion of the caste in OBCs
was motivated by political considerations is erroneous and the
National Commission had emphatically rejected politically dominant
castes such as the Marathas from being included in the Central List
and several other castes were thus excluded from OBCs list. The
learned Solicitor General also contended that the plea that
reservation under Article 15(5) with reference to Article 29(2) would
render 15(5) constitutionally violative is incorrect. Article 29(2) is a
protection given by the Constitution against denial of admission to
educational institutions on the ground of religion, race, caste,
language or any of them. It does not apply if provision is made for
backward classes when the basis for classification is not solely on
these grounds. It was argued further that the American doctrines and
tests relating to “strict scrutiny”, “compelling State necessity” and
“narrow tailoring” are tests which are not applicable to India at all.
There is a presumption of constitutionality of the legislations passed
by Parliament. The Indian Constitution specifically provides
provisions like Articles 15(4) and 16(4) which permit special
provisions for backward classes. It was also contended that it is
incorrect to suggest that there have been no efforts on the part of
successive Governments to concentrate on elementary education
towards universal elementary education. “Sarva Shiksha Abhiyan”
(SSA) had been launched by the Government in 2001-2002. The
learned Solicitor General also pointed out that it is incorrect to say
that there has been no proper consideration of the Bill in Parliament,
particularly in relation to Financial Memorandum. It is pointed that
debates in Parliament are not usually relevant for construction of the
provisions of an Act. The learned Solicitor General also submitted
that it cannot seriously be disputed that large sections of the
population are socially and educationally backward and it is nobody’s
case that the total population of OBCs in this country is less than
27%. Even on the basis of the facts relied on by the petitioners,
namely, National Sample Survey Organisation (NSSO), the total
population of OBCs in India is around 36%. The NSSO had
conducted this survey for the preparation of its 61
st
Round of survey
which was published in October 2006. This survey indicated that the
total number of OBCs in India is around 41%. 27% reservation in
relation to admission had been upheld in Indra Sawhney’s case
(supra) and the Parliament has taken special care to see that this
reservation does not affect seats in the general category. The
learned Solicitor General also pointed out that the policy of
reservation flows from the mandate of equality till the time the
Constitutional objective of real equality is achieved. Moreover, the
policy of reservation has been introduced for the first time after 56
years of coming into force of the Constitution. The learned Solicitor
General also pointed out that meticulous care has been taken for the
inclusion of certain castes in the OBCs list and reference was made
to cases in Rajasthan, Karnataka and Kerala.
61.Shri Gopal Subramanium, the learned Additional Solicitor General,
supported the Constitution (Ninety-Third Amendment) Act, 2005 and
also the provisions of Act 5 of 2007. The learned Additional Solicitor
General submitted that the American doctrines are not applicable to
India. In this regard, the observations of this Court in A.K. Roy Vs.
Union of India & Ors.
30
, that “we cannot transplant, in the Indian
context and conditions, principles which took birth in other soils,
without a careful examination of their relevance to the interpretation
of our Constitution” were cited. It is pointed by the learned
Additional Solicitor General that prepositions enunciated in the
decisions of the United States Supreme Court in Regents of the
University of California Vs. Bakke
31
, Grutter Vs. Bollinger
32
and
Gratz Vs. Bollinger
33
, and Parents Involved in Community
Schools Vs. Seattle School District
34
, that the Court will apply the
standard of strict scrutiny while reviewing legislation involving suspect
classification; that and such legislation would be effected if two
conditions are met, namely, (i) there is a compelling governmental
interest in making the classification, and (ii) the legislation has been
narrowly tailored to meet that classification; that the classification
based on race is a suspect classification and that accordingly while
race can be a factor in admission policies of educational institutions,
30 1982 (1) SCC 271
31 438 US 265 (1978)
32 539 US 306 (2003)
33 539 US 244 (2003)
34 127 S.Ct. 2738 (2007)
it cannot be the sole factor and it cannot lead to the imposition of
quotas, which are per se unconstitutional - each of these
propositions has been rejected in Indian law and the Indian
Constitution neither admits “suspect classification” nor “strict
scrutiny”. The constitutionality of quotas has been repeatedly
affirmed and reliance by the Petitioners on the United States
“affirmative action” judgments is wholly misconceived. The learned
Additional Solicitor General has made special reference to various
American decisions on the doctrine of “affirmative action”. The
learned Additional Solicitor General has also referred to the
decisions of this Court in N.M. Thomas’ case (supra) and K.C.
Vasanth kumar’s case (supra) and other decisions to contend that
Articles 16(4) and 15(4) are not exceptions to Articles 16(1) and 15(1)
respectively and these provisions have to be read together with the
principles of governance set out in Part IV of the Constitution and it is
beyond doubt that underlying constitutional obligations are towards
socially and educationally backward classes and there is a positive
obligation on the State to take steps to eradicate their backwardness.
The learned Additional Solicitor General also refuted the contentions
advanced by Shri P.P. Rao, learned Senior Counsel, and contended
that all efforts have been made by the Government to improve
primary and upper primary education in India. The learned Additional
Solicitor General also contended that the argument advanced by Dr.
Rajeev Dhavan is not correct. He relied upon Arjun Sen Gupta’s
Report
35
wherein it is stated :-
“…..Education can be a liberating capability but access to it is made
difficult, if not impossible, by such inherited characteristics as lower
social status, rural origin, informal work status and gender or a
combination of these.”
62.Shri Ram Jethmalani, learned Senior Counsel appearing for the
Intervener-Rashtriya Janta Dal Party in W.P. No. 313 of 2007 and
W.P. No. 335 of 2007, contended that the attempt of the petitioners in
these writ petitions is to off-set the decision of the Nine Judges Bench
in Indra Sawhney’s case (supra). It is pointed out that the equality of
citizens is the basic feature of the Indian Constitution but by “equality”
is meant not “formal or technical equality” but “real and substantial
equality”. The word “only” used in Articles 15(1) and 16(2) is
35 Arjun Sen Gupta Report on “Conditions of Work and Promotion of Livelihood in the Unorganised
Sector (July 2007)
decisive. Even if reservations are made for castes, the classification
will become invalid if it is only on the basis of caste and if some other
additional requirement is imposed, that case would be considered to
be outside the prohibition of Article 15(1). Reference is made to B.
Venkataramana’s case (supra). It was contended that a statute
cannot be declared ultra vires merely because backwardness is a
complex concept and no precise definition is possible. The Court is
bound to assume that a state of facts existed at the time of the
enactment of the statute which would validate that statute and when
the Constitution of the United States came into effect it did not
contain the constitutional right of equality. Even the Vth Amendment
of 1971 to the Constitution of the United States of America did not
introduce this concept. The XIVth Amendment of 1868 provided that
the “State shall not deny to any person the equal protection of the
laws”. Even after this injunction, the United States Supreme Court
delivered the judgment in Plessy Vs. Ferguson
36
, which laid down
the doctrine of “Equal but Separate”. This doctrine was in force till
it was reversed in 1954. The learned Senior Counsel also contended
that the policy of reservation is not destructive of merit and that the
Symbiosis University is not covered by the statute.
36 (1896) 41 L.Ed. 256
63.Shri T.R. Andhyarujina, the learned Senior Counsel appearing for
the respondents in W.P. 265/2006, contended that Articles 15(4) and
16(4) operate in different fields and Article 15(4) enables the State
Government to make special provisions for backward classes, SCs
and STs which can be done both by law or by executive order. The
special provision in Article 15(4) is not restricted to advancement of
SEBCs, SCs and STs in educational institutions only and enables the
State to make several kinds of positive action programmes in addition
to reservations. As a condition for giving aid, the State can make
reservations for SEBCs, SCs and STs in educational institutions
which are State owned or State aided. The State, however, cannot
make such reservations in private unaided educational institutions, as
held by this Court in T.M.A. Pai Foundation (supra) and P.A.
Inamdar (supra). This disability was because of T.M.A. Pai
Foundation (supra) which provided that private unaided educational
institutions had a fundamental right to “occupation” of carrying on
education under Article 19(1)(g). Therefore, the Parliament
introduced Article 15(5) by the Constitution (Ninety-Third
Amendment) Act to enable the State to make special provisions for
the advancement of SCs, STs and SEBCs in relation to a specific
subject, namely, admission in educational institutions including
private educational institutions whether aided or unaided by the State
notwithstanding the provisions of Article 19(1)(g). However, Article
15(5) excluded private educational institutions which are minority
educational institutions referred to in clause (1) of Article 30. The
saving for minority educational institutions in Article 15(5) is really ex
abundandi cautela as minority educational institutions were
constitutionally protected and at all times considered different from
other private educational institutions. Article 15(5) does not take
away the “basic structure” of the Constitution. The “basic structure”
of the Constitution should not be trivialized to mean other features of
the Constitution. Reference was made to the observations made by
Khanna, J. in Kesavananda Bharati’s case (supra). It was also
submitted that Article 15(5) does not amend Entry 25 List III to the
extent that the State can no more make laws for reservation of seats
in minority educational institutions and, therefore, it is incorrect to say
that the amendment in Article 15(5) required ratification under Article
368(2). The State’s power to legislate under Article 245 is always
subject to the other provisions of the Constitution, including
fundamental rights. Article 15(4) does not take away the power of
the State to make reservations in its own institutions by an executive
action under Article 162. Right to carry on business is not a part of
the basic structure of the Constitution.
64.On behalf of the respondent/State of Bihar in Writ Petition (Civil)
No. 269/2007, learned Senior Counsel Shri Rakesh Dwivedi
submitted that the use of non-obstante clauses in Article 15(3), (4)
and (5) vis-a-vis Article 15(1) shows that the prohibition against use
of only caste as a ground for discrimination qua any citizen is there in
so far as making of a special provision for advancement of prescribed
categories is concerned. There is no repugnance between 15(4) and
15(5). It was contended that in Kesavananda Bharati’s case
(supra), it was held that “Part III of the Constitution could be amended
subject to the basic structure doctrine”. The view which was held in
I.C. Golak Nath & Ors. Vs. State of Punjab & Anrs,
37
making
Article 368 more restrictive, had been overruled in Kesavananda
Bharati’s case (supra). The Fundamental Rights are not absolute
and are designed to suffer reasonable restrictions and classifications.
Any sort of abridgement by Constitutional Amendment is clearly
37 (1967) 2 SCR 762
permissible so long as the invasion does not amount to total
elimination or emasculation. Within the domain of equality there is
distinction between formal equality and real equality or equality in fact
and both are comprehended in Article 14 and both are part of the
basic structure.
65.The learned Senior Counsel also contended that the judicial
review ideas of “suspect classification”, “strict scrutiny”, “compelling
State interest” and “narrow tailoring” are measures propounded by
the U.S. Supreme Court are not applicable and the Supreme Court of
India has consistently taken a view that the judgments of the U.S.
Supreme Court do not afford safe guidance on account of differing
structure of the provisions under the two constitutions and the social
conditions in these two countries being different.
66.Reference was made to the various decisions of this court and it
was argued that the comparison of the 14
th
Amendment of the US
Supreme Court read with Civil Rights Act, 1964 on the one hand and
the fascicules of equality provisions in the Constitution of India, i.e.
Article 14 to 18 on the other hand shows that the equality provisions
of our Constitution are not only differently structured but it contains
provisions for making special provisions for the advancement of
SEBCs & SCs/STs. It is pointed out that our Constitution additionally
enshrines Directive Principles of State Policy in Part-IV of the
Constitution requiring the State to strive to promote justice social,
economic and political and to minimize the inequalities in income and
endeavour to remove inequalities in status, facilities and opportunities
(Article 38).
67.Shri Ravivarma Kumar, learned Senior Counsel appearing for
Pattali Makkal Katchi, contended that the creamy layer principle shall
not be invoked for the purpose of Article 15(5). According to the
Counsel, reservation in educational institutions is not a poverty
alleviation programme nor it is a programme to eradicate
unemployment. Reservation under Article 15(5) is not even a
programme to educate all the backward classes. According to the
Counsel the one and only goal of the reservation policy under Clause
4 & 5 of Article 15 of the Constitution is to bring about equality among
various castes and unless all the castes are brought to one level
playing field, the caste system cannot be eradicated. It is intended
for removal of inequality between castes so that the castes will come
together. These provisions are designed to bring together the
leaders of each caste and community together and the same can be
achieved only if the best teachers, the best administrators, the best
doctors, the best engineers and the best lawyers are brought
together. And so long as the gap in education persists between
castes, the castes will not come together. It is only when each
backward caste is permitted to advance educationally to meet the
educational level of upper castes, can there be a real egalitarian
society. According to the Counsel, it is precisely for this reason that
Clause (2) of Article 38 seeks to eliminate inequality in status,
facilities and opportunities, not only among individuals, but also
among groups of people. Therefore, it is to provide for such equality
in status, facilities and opportunities, that reservation is contemplated
to those castes which are socially and educationally below other
castes. If the best from the lower caste are deprived of these
facilities and opportunities in the name of “creamy layer”, it will be
counter productive and frustrate the very object of reservation,
namely to achieve equality in status, facilities and opportunities.
68.The Counsel also contended that the question of prescribing
prior time limit for reservation under the impugned Act is immature
and should not be considered at this stage.
69.The link between “caste” and its occupation is an unbreakable
bondage to which the caste system has condemned the backward
classes. Whether a backward caste man carries on his traditional
occupation or not, he continues to be socially identified with the said
occupation. This link between the caste and the occupation has not
been severed for thousands of years and it cannot be broken by
arguments and theories. The ground reality is that every caste in
every village is identified by its traditional occupation. And all the
service communities continue to discharge their traditional
occupation. It is pointed out that throughout the country in 6.5 lakh
villages, it is the barber communities and barber communities alone,
which carry on the traditional occupation of hair cuttings and no other
community has taken up the said occupation. And they continue to
labour without any social security or whatsoever.
70.The Counsel pointed out that the last six decennial censuses
have eschewed recording of caste particulars, the three National
Commissions and scores of State Commissions have found these
Census data useless in identification of Backward Classes.
71.The learned Counsel submitted that there is no justification for
not collecting details of caste identity at the decennial census
operation. According to the Counsel a massive exercise is rendered
useless for the all important work of identification of Backward
Classes.
72.It is further submitted that the entire identification of backward
classes has not been done on the basis of 1931 Census data. In
each State the identification of Backward Classes has been done on
the basis of criteria evolved by the State Commissions on social,
educational and economic parameters. Each State has adopted its
own methodology. The identification of backward classes is
essentially done at the State level on a very objective criteria and a
scientific methodology. According to the Counsel, origin of the term
“classes of citizens” may be traced to the later part of the 19
th
century. Quite often classes have been interchangeably used with
castes, tribes and communities. Some of the earlier Committee
reports referred to Depressed Classes. Under the 1919 Act,
Governors of the provinces give instruction to take measures for the
social and industrial welfare of the people and tending to fit all
classes of population. And the Provincial Governments prepared a
list of Backward Classes with three parts namely, Depressed
Classes, Aboriginal Tribes and Backward Communities. Dr.
Ambedkar demanded separate electorate for the Depresses Classes
at the Round Table Conference.
73.The Counsel also pointed out that the building of a casteless
society is not the goal of the Constitution. And that it is futile to
contend that caste should not be considered for any purpose
whatsoever. In every conceivable activity of private life caste system
plays an important role. There are hundreds of communal hostels
and educational institutions owned and managed by certain
communities. Some castes and communities have communal clubs,
associations, cooperatives, banks etc. Their membership and
admission are confined to a particular caste or community. Even
carrying of the caste names is the guaranteed right of every citizen.
There is nothing in the Constitution to prohibit a person from
discriminating on the ground only of caste or community in matters
relating to marriage, electing candidates to political position etc. Most
of the professional colleges like medical, dental and engineering
colleges are established and administered by a body of persons
exclusively belonging to a class or a community. Though Dr.
Ambedkar intended to abolish caste system by abolishing all the
privileges and disabilities of the forward classes, the plea was
opposed by Shri K.M. Munshi and the Draft Article 3(4) stated:
“Un-touchability is abolished and its practice thereof is punishable by
the law of the Union”.
74.The Constitution never prohibits the practice of caste and
casteism. Every activity in Hindu society, from cradle to grave is
carried on solely on the basis of one’s caste. Even after death, a
Hindu is not allowed to be cremated in the crematorium which is
maintained for the exclusive use of the other caste or community.
Dalits are not permitted to be buried in graves or cremated in
crematoriums where upper caste people bury or cremate their dead.
Christians have their own graveyards. Muslims are not allowed to be
buried in the Hindu crematoriums and vice-versa. Thus, caste rules
the roost in the life of a Hindu and even after his death. In such
circumstances, it is entirely fallacious to advance this argument on
the ground that the Constitution has prohibited the use of caste. It
was argued what the Constitution aims at is achievement of equality
between the castes and not elimination of castes.
75.The learned Senior Counsel points out that it would be utopian
to expect that by ignoring caste, the castes will perish. And the
Counsel contended the Constitution has not abolished the caste
system much less has it prohibited its use. The Counsel pointed out
that the Constitutional Amendment under the impugned Act in favour
of backward classes is an unprecedented leap taking the higher
education in the country forward, without depriving a single seat to
the forward castes. And the advanced castes, with a population of
less than 20% would still be able to get 50% of the seats in the name
of merit disproportionate to their known proportion of their population.
It is contended that without the advancement of SCs, STs and OBCs
constituting over 80% population and mainly living in rural areas, it
will not be possible to take the nation forward. And the students who
are admitted under the reserved quota have performed much better
than the students admitted on the basis of merit. The learned
Counsel also placed reliance on the Moily Report – Case studies
from four States.
76.The main challenge in these writ petitions is the constitutional
validity of the Act 5 of 2007. This legislation was passed by
Parliament consequent upon The Constitution (Ninety-Third
Amendment) Act, 2005, by which sub-article (5) was inserted in
Article 15 of the Constitution. The constitutionality of this amendment
has also been challenged in the various writ petitions filed by the
petitioners. As the Act itself is based on the Constitution (Ninety-
Third Amendment) Act, 2005, the validity of the Act depends on the
fact whether the Constitution (Ninety-Third Amendment) Act, 2005
itself is valid or not. Article 15 of the Constitution, after the
Constitution (Ninety-Third Amendment) Act, 2005, reads as follows :-
“15. Prohibition of discrimination on grounds of religion, race,
caste, sex or place of birth.—
(1) The State shall not discriminate against any citizen on grounds
only of religion, race, caste, sex, place of birth or any of them.
(2) No citizen shall, on grounds only of religion, race, caste, sex,
place of birth or any of them, be subject to any disability, liability,
restriction or condition with regard to,--
(a) access to shops, public restaurants, hotels and
places of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads
and places of public resort maintained wholly or partly out of State
funds or dedicated to the use of the general public.
(3) Nothing in this Article shall prevent the State from making any
special provision for women and children.
(4) Nothing in this Article or in clause (2) of Article 29 shall prevent
the State from making any special provision for the advancement of
any socially and educationally backward classes of citizens or for the
Scheduled Castes and the Scheduled Tribes
(5) Nothing in this Article or sub-clause (g) of clause (1) of Article 19
shall prevent the State from making any provision by law for the
advancement of any socially and educationally backward classes of
citizens or the Scheduled Castes or the Scheduled Tribes in so far as
such special provision relate to their admission to the educational
institutions, including private educational institutions whether aided or
unaided by the State other minority educational institutions referred to
in clause (1) of Article 30.”
77. T.M.A. Pai Foundation (supra) held that a private unaided
educational institution has the fundamental right under Article 19(1)
(g) of the Constitution as the running of an educational institution was
treated as an “occupation” and further that the State’s regulation in
such institutions would not be regarded as a reasonable restriction on
that fundamental right to carry on business under Article 19(6). This
decision necessitated the Ninety-Third Amendment to the
Constitution since as a result of T.M.A. Pai Foundation (supra) the
State would not be in a position to control or regulate the admission
in private educational institutions. At the outset, it may have to be
stated that no educational institution has come up to challenge the
Constitution (Ninety-Third Amendment) Act, 2005. The challenge
about the constitutionality of the Constitution (Ninety-Third
Amendment) Act, 2005 has been advanced by the petitioners, who
based their contentions on the equality principles enunciated in
Articles 14, 15 and 16 of the Constitution.
78.The Constitution (Ninety-Third Amendment) Act, 2005 is
challenged on many grounds. The first ground of attack is that if the
Constitution (Ninety-Third Amendment) Act, 2005 is allowed to stand
it would be against the “basic structure” of the Constitution itself and
this Amendment seriously abridges the equality principles guaranteed
under Article 15 and other provisions of the Constitution. Another
contention raised by the petitioners’ Counsel is that the Golden
Triangle of Articles 14, 19 and 21 is not to be altered and the balance
and structure of these constitutional provisions has been ousted by
the Constitution (Ninety-Third Amendment) Act, 2005. Yet another
contention urged by Shri K.K. Venugopal, learned Senior
Counsel, is that Article 15(4) and 15(5) are mutually exclusive and
under Article 15(5) the minority educational institutions are excluded.
According to him, this is a clear contravention of the secular and
equality principles. The learned Senior Counsel also pointed out that
minority institutions are not severable from the purview of Article
15(5) and therefore, the whole Constitution (Ninety-Third
Amendment) Act, 2005 is to be declared illegal. Another argument
advanced by the learned Senior Counsel is that there is
inconsistency between Article 15(4) and Article 15(5) and by virtue of
the Constitution (Ninety-Third Amendment) Act, 2005, the States are
devoid of their wide power under Article 15(5) to make reservation in
minority educational institutions which are getting aid from the States
and thus it is violative of the very essence of equality. He further
argued that the Constitution (Ninety-Third Amendment) Act, 2005
could control the legislative and executive power of the State and,
therefore, it is not constitutionally valid. The learned Counsel had
further challenged the validity of Act 5 of 2007, with which we will
deal separately.
1. Whether Ninety-Third Amendment of the Constitution is
against the “basic structure” of the Constitution?
79.The Constitution (Ninety-Third Amendment) Act, 2005, by which
clause (5) was added to Article 15 of the Constitution, is an enabling
provision which states that nothing in Article 15 or in sub-clause (g)
of clause (1) of article 19 shall prevent the State from making any
special provision, by law, for the advancement of any socially and
educationally backward classes of citizens or for the Scheduled
Castes or the Scheduled Tribes in so far as such special provisions
relate to their admission to the educational institutions including
private educational institutions, whether aided or unaided by the
State. Of course, minority educational institutions referred to in
clause (1) of Article 30 are excluded. Thus, the newly added clause
(5) of Article 15 is sought to be applied to educational institutions
whether aided or unaided. In other words, this newly added
constitutional provision would enable the State to make any special
provision by law for admission in private educational institutions
whether aided or unaided. In all the petitions which have been filed
before us the main challenge is against Act 5 of 2007. Act 5 of 2007
has been enacted to provide reservation of seats for Scheduled
Castes, Scheduled Tribes and SEBCs of citizens in Central
Educational Institutions. The “Central Educational Institution” has
been defined under Section 2(d) of the Act. They are institutions
established or incorporated by or under the Central Act or set up by
an Act of Parliament or deemed Universities maintained by or
receiving aid from the Central Government or institutions maintained
by or receiving aid from the Central Government or educational
institutions set up by the Central Government under the Societies
Registration Act, 1860. Act 5 of 2007 is not intended to provide
reservation in “private unaided” educational institutions. None of the
private unaided educational institutions have filed petitions before us
challenging the Ninety-Third Constitutional Amendment. Though the
learned counsel appearing for the petitioners have challenged the
Ninety-Third Constitutional Amendment on various grounds, they
were vis-à-vis the challenge to Act 5 of 2007. The counter to the
challenge by the learned Solicitor General as well as by Shri K.
Parasaran, learned Senior Counsel was also in that context. We do
not want to enter a finding as to whether the Ninety-Third
Constitutional Amendment is violative of the “basic structure” of the
Constitution so far as it relates to “private unaided” educational
institutions. In the absence of challenge by private unaided
educational institutions, it would not be proper to pronounce upon the
constitutional validity of that part of the Constitutional Amendment.
As the main challenge in these various petitions was only regarding
the provisions of Act 5 of 2007, which related to state maintained
institutions, the challenge to the Ninety-Third Constitutional
Amendment so far as it relates to private unaided educational
institutions, does not strictly arise in these proceedings. In the
absence of challenge by private unaided institutions, it may not be
proper for this Court to decide whether the Ninety-Third Constitutional
Amendment is violative of the “basic structure” of the Constitution so
far as it relates to private unaided educational institutions merely
because we are considering its validity in the context of Act 5 of
2007.
We feel that such questions could be decided as the main questions
that are involved in these petitions are specific regarding Act 5 of
2007, we leave open the question as to whether the Ninety-Third
Amendment to the Constitution by which sub-clause (5) was inserted
is violative of the basic structure doctrine or not so far as it relates to
“private unaided” educational institutions to be decided in other
appropriate cases. We deal only with the question of whether the
Ninety-Third Constitutional Amendment is constitutionally valid so far
as it relates to the state maintained institutions and aided educational
institutions.
80.Several contentions have been advanced by the petitioners’
Counsel challenging the constitutional validity of the Constitution
(Ninety-Third Amendment) Act, 2005. The main argument was on
the ground that this amendment is against the “basic structure” of the
Constitution. In order to appreciate the contention of the petitioners’
Counsel, it is necessary to understand the “basic structure” theory
that has been propounded in the celebrated case of Kesavananda
Bharati (supra). This case was a decision of 13 Judge Bench of this
Court. Though the Judges were not unanimous about what the “basic
structure” of the Constitution be, however, Shelat J. (at page 280) in
his judgment had indicated the following basic features of the
Constitution :-
“The basic structure of the Constitution is not a vague concept and
the apprehensions expressed on behalf of the respondents that
neither the citizen nor the Parliament would be able to understand it
are unfounded. If the historical background, the Preamble, the entire
scheme of the Constitution, the relevant provisions thereof including
Article 368 are kept in kind thee can be no difficulty in discerning that
the following can be regarded as the basic elements of the
constitutional structure. (These cannot be catalogued but can only
be illustrated) :-
1. The supremacy of the Constitution.
2.Republican and Democratic form of Government and
sovereignty of the country.
3.Secular and federal character of the Constitution.
4. Demarcation of power between the legislature, the executive
and the judiciary.
5.The dignity of the individual secured by the various freedoms
and basic rights in Part III and the mandate to build a welfare State
contained in Part IV.
6.The unity and the integrity of the nation.”
81.Sikri, CJ (at page 165-166) held that :-
“The true position is that every provision of the Constitution can be
amended provided in the result the basic foundation and structure of
the constitution remains the same. The basic structure may be said
to consist of the following features :-
(1) Supremacy of the Constitution.
(2)Republication and Democratic form of Government.
(3) Secular character of the Constitution.
(4)Separation of powers between the Legislature, the executive
and the judiciary.
(5)Federal character of the Constitution.”
82.The power of Parliament to amend the Constitution also was dealt
with in detail and majority of the Judges held that the fundamental
rights can be amended, altered or abridged. The majority decision in
Kesavananda Bharati’s case (supra) overruled the decision in I.C.
Golak Nath Vs. State of Punjab, (supra). Kesavananda Bharati
indicates the extent to which amendment of the Constitution could be
carried out and lays down that the legality of an amendment is no
more open to attack than the Constitution itself. It was held that the
validity of an ordinary law can be questioned and when it is
questioned it must be justified by reference to a higher law. In the
case of the Constitution the validity is inherent and lies within itself.
The Constitution generates its own validity. The validity of the
Constitution lies in the social fact of its acceptance by the community.
There is a clear demarcation between an ordinary law made in
exercise of the legislative power and the constituent law made in
exercise of constitutional power. Therefore, the power to amend the
Constitution is different from the power to amend ordinary law. The
distinction between the legislative power and the constitutional power
is vital in a rigid or controlled Constitution because it is that distinction
which brings in the doctrine that a law ultra vires the Constitution is
void. When the Parliament is engaged in the amending process it is
not legislating, it is exercising a particular power bestowed upon it sui
generis by the amending clause in the Constitution. Sikri, CJ, held
that the expression "amendment of this Constitution" does not enable
Parliament to abrogate or take away fundamental rights or to
completely change the fundamental features of the Constitution so as
to destroy its identity. Within these limits Parliament can amend every
article. Shelat & Grover JJ. ( at p 291) concluded that :
“Though the power to amend cannot be narrowly construed and
extends to all the Articles it is not unlimited so as to include the power
to abrogate or change the identity of the Constitution or its basic
features.”
83.Hegde & Mukherjee, JJ. finally concluded (at p 355) that :
“The power to amend the Constitution under Article 368 as it stood
before its amendment empowered the Parliament by following the
form and manner laid down in that Article, to amend each and every
Article and each and every Part of the Constitution….. Though the
power to amend the Constitution under Article 368 is a very wide
power, it does not yet include the power to destroy or emasculate the
basic elements or the fundamental features of the Constitution.”
84.Ray J. (as he then was) (at p 461) held that :-
“…The Constitution is the supreme law. Third, an amendment of the
Constitution is an exercise of the constituent power. The majority
view in Golak Nath case is with respect wrong. Fourth, there are no
express limitations to the power of amendment. Fifth, there are no
implied and inherent limitations on the power of amendment. Neither
the Preamble nor Article 13(2) is at all a limitation on the power of
amendment. Sixth, the power to amend is wide and unlimited. The
power to amend means the power to add, alter or repeal any
provision of the Constitution. There can be or is no distinction
between essential and in-essential features of the Constitution to
raise any impediment to amendment of alleged essential features.”
85.Palekar, J. (at p. 632) concluded that :-
“The power and the procedure for the amendment of the Constitution
were contained in the unamended Article 368. An Amendment of the
Constitution in accordance with the procedure prescribed in that
Article is not a ‘law’ within the meaning of Article 13. An amendment
of the Constitution abridging or taking away a fundamental right
conferred by Part III of the Constitution is not void as contravening
the provisions of Article 13(2). There were no implied or inherent
limitations on the amending power under the unamended Article 368
in its operation over the fundamental rights. There can be none after
its amendment.”
86.Khanna, J. (at p. 758, 759) concluded that :-
“The power to amendment under Article 368 does not include power
to abrogate the Constitution nor does it include the power to alter the
basic structure or framework of the Constitution. Subject to the
retention of the basic structure or framework of the Constitution, the
power of amendment is plenary and includes within itself the power to
amend the various articles of the Constitution, including those relating
to fundamental rights as well as those which may be said to relate to
essential features. No part of a fundamental right can claim immunity
from amendatory process by being described as the essence or core
of that right. The power of amendment would also include within
itself the power to add, alter or repeal the various articles.”
87.Mathew, J. (at p. 857) held that :-
“The only limitation is that the Constitution cannot be repealed or
abrogated in the exercise of the power of amendment without
substituting a mechanism by which the State is constituted and
organized. That limitation flows from the language of the article itself.”
88.Beg, J. (at p. 886) held that :-
“The majority view in Golak Nath's case (supra), holding that Article
13 operated as a limitation upon the powers of Constitutional
amendment found in Article 368, was erroneous.”
He upheld the 24
th
Amendment and the 25
th
Amendment Act
including addition of Article 31C.
89.Dwivedi, J finally concluded that :
“The word “amendment” in Article 368 is broad enough to authorize
the varying or abridging each and every provision of the Constitution,
including Part III. There are no inherent and implied limitations of the
amendment power in Article 368”
90.Finally, Chandrachud, J. ( at p. 1000) held that :
“ The power of amendment of the Constitution conferred by the then
Article 368 was wide and unfettered. It reached every part and
provision of the Constitution.”
91.A survey of the conclusions reached by the learned Judges in
Kesavananda Bharati’s case (supra) clearly shows that the power of
amendment was very wide and even the fundamental rights could be
amended or altered. It is also important to note that the decision in
RE : The Berubari Union and Exchange of Enclaves, Reference
under Article 143(1) of the Constitution of India
38
, to the effect that
preamble to the Constitution was not part of the Constitution was
disapproved in Kesavananda Bharati’s case (supra) and it was held
that it is a part of the Constitution and the Preamble to the
Constitution is of extreme importance and the Constitution should be
read and interpreted in the light of the grand and noble visions
envisaged in the Preamble. A close analysis of the decisions in
Kesavananda Bharati’s case (supra) shows that all the provisions of
the Constitution, including the fundamental rights, could be amended
or altered and the only limitation placed is that the basic structure of
the Constitution shall not be altered. The judgment in
38 (1960) 3 SCR 250
Kesavananda Bharati’s case (supra) clearly indicates what is the
basic structure of the Constitution. It is not any single idea or
principle like equality or any other constitutional principles that are
subject to variation, but the principles of equality cannot be
completely taken away so as to leave the citizens in this country in a
state of lawlessness. But the facets of the principle of equality could
always be altered especially to carry out the Directive Principles of
the State Policy envisaged in Part IV of the Constitution. The
Constitution (Ninety-Third Amendment) Act, 2005 is to be examined
in the light of the above position.
92.The basic structure of the Constitution is to be taken as a larger
principle on which the Constitution itself is framed and some of the
illustrations given as to what constitutes the basic structure of the
Constitution would show that they are not confined to the alteration or
modification of any of the Fundamental Rights alone or any of the
provisions of the Constitution. Of course, if any of the basic rights
enshrined in the Constitution are completely taken out, it may be
argued that it amounts to alteration of the Basic Structure of the
Constitution. For example, the federal character of the Constitution is
considered to be the basic structure of the Constitution. There are
large number of provisions in the Constitution dealing with the federal
character of the Constitution. If any one of the provisions is altered or
modified, that does not amount to the alteration of the basic structure
of the Constitution. Various fundamental rights are given in the
Constitution dealing with various aspects of human life. The
Constitution itself sets out principles for an expanding future and is
obligated to endure for future ages to come and consequently it has
to be adapted to the various changes that may take place in human
affairs.
93.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
challenge 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 (supra) did
not hold that all facets of Article 14 or any of the fundamental rights
would form part of the basic structure 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 multi-coloured 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 and
supremely precious concept for our society. It is true that it has
embraced a critical and essential component of constitutional identity.
The larger principles of equality 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 a 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.
94.The observations made by Mathew, J in Smt. Indra Gandhi Vs.
Raj Narain
39
are significant in this regard:
“To be a basic structure it must be a terrestrial concept having its
habitat within the four corners of the Constitution.” What constitutes
basic structure is not like “a twinkling star up above the Constitution.”
It does not consist of any abstract ideals to be found outside the
provisions of the Constitution. The Preamble no doubt enumerates
great concepts embodying the ideological aspirations of the people
but these concepts are particularised and their essential features
delineated in the various provisions of the Constitution. It is these
specific provisions in the body of the Constitution which determine
the type of democracy which the founders of that instrument
established; the quality and nature of justice, political, social and
economic which they aimed to realize, the content of liberty of
thought and expression which they entrenched in that document and
the scope of equality of status and of opportunity which they
enshrined in it. These specific provisions enacted in the Constitution
alone can determine the basic structure of the Constitution. These
specific provisions, either separately or in combination, determine the
content of the great concepts set out in the Preamble. It is
impossible to spin out any concrete concept of basic structure out of
the gossamer concepts set out in the Preamble. The specific
provisions of the Constitution are the stuff from which the basic
39 (1976) 2 SCR 347 : (AIR 1975 SC 2299)
structure has to be woven”.
95.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 by the Petitioners’ 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. The observations made by the Constitution Bench in Nagaraj’s
case (supra) at page 240 are relevant:
“Constitution is not an ephermal legal document embodying a set of
legal rules for the passing hour. It sets out principles for an
expanding future and is intended to endure for ages to come and
consequently to be adapted to the various crisis of human affairs.
Therefore, a purposive rather than a strict literal approach to the
interpretation should be adopted. A Constitutional provision must be
construed not in a narrow and constricted sense but in a wide and
liberal manner so as to anticipate and take account of changing
conditions and purposes so that constitutional provision does not get
fossilized but remains flexible enough to meet the newly emerging
problems and challenges.”
96.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.
97.Therefore, we hold that 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 of
Article 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 such legislation - are all questions
to be decided in a properly constituted lis between the affected
parties and others who support such legislation.
2. Whether Articles 15(4) and 15(5) are mutually contradictory,
hence Article 15(5) is to be held ultra vires ?
98.The next contention raised by the petitioner’s Counsel is that
Article 15(4) and 15(5) are mutually exclusive and contradictory. The
Counsel for the petitioner, particularly the petitioner in Writ Petition
(C) No. 598 of 2006, submitted that Article 15(4) was a provision and
a source of legislative power for the purpose of making reservation
for Scheduled Castes (SCs) and Scheduled Tribes (STs) as well as
for Socially and Educationally Backward Classes (SEBCs) of citizens
in aided minority educational institutions. And Article 15(4) was
inserted after the decision of this Court in Champakam Dorairajan
(supra) and Article 15(5) provides for reservation of seats for SCs,
STs and SEBCs in aided or unaided educational institutions but
expressly excludes all such reservation being made in minority
educational institutions covered by Article 30(1) of the Constitution.
This, according to the Petitioner’s learned Counsel, will lead to a
situation where the State would not be in a position to give
reservation to SCs, STs and SEBCs even in aided minority
institutions which have got protection under Article 30(1) of the
Constitution. It is argued that in view of the express provision
contained in Article 15(5), the State would no more be able to give
the reservation and this according to the petitioner’s Counsel would
result in annulling the endeavour of the founding fathers and the
various provisions for neutralizing the exclusion of SCs & STs from
the mainstream of society and development for centuries.
99.It is argued by petitioners’ learned Counsel that Article 15(4) and
15(5) both commence with an exclusionary clause excluding the
operation of the rest of the Article 15, and hence would result in a
conflict to the extent of inconsistency. According to the petitioners’,
Article 15(5) is a special provision relating to educational institutions
and being a later amendment, it would prevail over Article 15(4), thus
in substance and effect resulting in an amendment of Article 15(4) of
the Constitution. According to the petitioner’s Counsel, “nothing in
this Article” in Article 15(5) would include Article 15(4) also and in
view of this inconsistent provision, Article 15(5) has to be held to be
inconsistent with 15(4) and thus non-operative.
100.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 (supra). In Unni Krishnan (supra), this Court held that Article
19(1)(g) is not attracted for establishing and running educational
institutions. However, in T.M.A. Pai Foundation case, (supra), 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 P.A. Inamdar’s case, (supra). 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. Thus, 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 a 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 from
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 us 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 mutually contradictory and,
therefore, Article 15(5) is not constitutionally valid cannot be
accepted. As has been held in N.M. Thomas case (supra) and Indra
Sawhney’s case (supra), 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 constitutionally valid and
the contentions raised on these grounds are rejected.
3. Whether exclusion of minority educational institutions from
Article 15(5) is violative of Article 14 of Constitution?
101.Another contention raised by the petitioner’s Counsel is that the
exclusion of minority institutions under Article 15(5) itself is violative
of Article 14 of the Constitution. It was contended that the exclusion
by itself is not severable from the rest of the provision. This plea also
is not tenable because the minority institutions have been given a
separate treatment in view of Article 30 of Constitution. Such
classification has been held to be in accordance with the provisions
of the Constitution. The exemption of minority educational institutions
has been allowed to conform Article 15(5) with the mandate of Article
30 of the Constitution. Moreover, both Article 15(4) and Article 15(5)
are operative and the plea of non-severability is not applicable.
102. Learned Senior Counsel Dr. Rajeev Dhavan and learned
Counsel Shri Sushil Kumar Jain appearing for the petitioners
contended that the Ninety-Third Constitutional Amendment would
violate the equality principles enshrined in Articles 14, 19 and 21 and
thereby the “Golden Triangle” of these three Articles could be
seriously violated. The learned counsel also contended that
exclusion of minorities from the operation of Article 15(5) is also
violative of Article 14 of the Constitution. We do not find much force
in this contention. 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, we hold that the
exclusion of minority educational institutions from Article 15(5) 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.
4. Whether the Constitutional Amendment followed the
procedure prescribed under Article 368 of the Constitution?
103.Another contention raised by the petitioner’s Counsel is that the
Ninety-Third Constitutional Amendment is invalid as it violates the
proviso to Article 368 of the Constitution. According to the
petitioner’s Counsel, the procedure prescribed under the proviso to
Article 368 was not followed in the case of the Ninety-Third
Amendment. According to the petitioner’s Counsel, Article 15(5) of
the Constitution interferes with the executive power of the States as it
impliedly takes away the power of the State Government under
Article 162 of the Constitution.
104.This contention of the petitioner’s Counsel has no force. 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 subject to and limited by the
executive power expressly conferred by the Constitution or by any
law made by Parliament upon the 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
nd
Amendment to the
Constitution, “education” which was previously in Entry No. 11 in List
II was deleted and inserted in List III as Entry No. 25 as the field of
legislation in List III. Article 245 will operate and by reasons of
proviso to Article 162, the executive power of the State be subject to,
limited by, the executive power expressly 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 been in existence. Such power of the State is not
limited or 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 raised by the
petitioner’s Counsel that the Ninety-Third Constitutional Amendment
did not follow the prescribed procedure of Article 368 is not correct
and the plea is only to be rejected.
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?
105.The next important plea raised by the petitioner’s Counsel is
regarding the validity of the Act 5 of 2007. The several contentions
have been raised regarding the validity of the Act 5 of 2007. The first
contention which was raised by the petitioner’s Counsel that this Act
is ex-facie unconstitutional and is a suspect legislation and violative
of the Article 14, 15 and 19(1)(g) of the Constitution. The main attack
against the Act was that the socially and educationally backward
classes of citizens were not properly identified and the delegation of
power to identify the socially and educationally backward classes of
citizens to the Central Government itself is illegal and the delegation
of such powers by itself without laying down any guidelines is
arbitrarily illegal. Elaborate arguments were made by the petitioner’s
Counsel and the first and foremost contention was that “caste” is the
sole basis on which the socially and educationally backward classes
of citizens were determined. And this, according to the petitioner’s
Counsel, is illegal. Reference was made to a series of decisions of
this Court on this issue.
106.There is a long jurisprudential history as to whether caste can
play any role in determining the socially and educationally backward
classes of citizens. In Indra Sawhney’s case (supra), which is a
Nine Judge Bench decision, it was held that the “caste” could be a
beginning point and a determinative factor in identifying the socially
and educationally backward classes of citizens. But nevertheless, a
brief survey of various decisions on this question would give a history
of the jurisprudential development on this subject.
107.Reference to the earlier decisions is necessary because
serious doubt has been raised as to whether “caste” could be the
basis for recognizing backwardness. Some of the earlier decisions
have stated that caste should not be a basis for recognizing
backwardness and gradually there was a shift in the views and
finally, in Indra Sawhney’ s case (supra), it was held that caste could
be the starting point for determining the socially and educationally
backward classes of citizen..
108. In Champakam Dorairajan (supra), this Court struck
down the classification made in the Communal G.O. of the then State
of Madras. The G.O. was founded on the basis of religion and castes
and was struck down on the ground that it is opposed to the
Constitution and is in violation of the fundamental rights guaranteed
to the citizens. The court held that Article 46 cannot override the
provisions of Article 29 (2) because of the Directive Principles of
State Policy which were then taken subsidiary to fundamental rights.
This decision led to the first constitutional amendment by which
Article 15(4) was added to the Constitution.
109. The next important case is M.R. Balaji & Ors. Vs.
State of Mysore (supra). In this case, the State of Mysore issued
an order that all the communities except the Brahmin community
would fall within the definition of socially and educationally backward
class and Scheduled Castes and Scheduled Tribes and 75% of the
seats in educational institutions were reserved for them. It was
observed that though caste in relation to Hindus may be a relevant
factor to consider while determining social backwardness of groups
or classes of citizens, it cannot be made the sole or dominant test. It
was held that the classes of citizens who are deplorably poor
automatically become socially backward. Moreover, the occupation
of citizens and the place of their habitation also result in social
backwardness. The problem of determining who are socially
backward classes is undoubtedly very complex, but the classification
of socially backward citizens on the basis of their caste alone is not
permissible under Article 15 (4). Learned Senior Counsel Shri Harish
Salve drew our attention to the various passages in the judgment.
Gajendragadkar, J. speaking for the majority of the Judges, said :-
“The Problem of determining who are socially backward classes is
undoubtedly very complex. Sociological, social and economic
considerations come into play in solving the problem and evolving
proper criteria for determining which classes are socially backward
is obviously a very difficult task; it will need an elaborate investigation
and collection of data and examining the said data in a rational and
scientific way. That is the function of the State which purports to act
under Article 15 (4).”
110. The court drew a clear distinction between ‘caste’ and
‘class’ and tried to make an attempt to find a new basis for
ascertaining social and educational backwardness in place of caste
and in this decision a majority of Judges held that in a broad way, a
special provision of reservation should be less than 50%; how much
less than 50% would depend upon the relevant and prevailing
circumstances in each case.
111. In R. Chitralekha’s case (supra), the Government of
Mysore, by an order defining backward classes directed that 30% of
the seats in professional and technical colleges and institutions shall
be reserved for them and 18% to the SCs and STs. It was laid down
that classification of socially and educationally backward classes
should be made on the basis of economic condition and occupation.
Suba Rao, J. (as he then was), speaking for the majority, held that a
classification of backward classes based on economic conditions and
occupations is not bad in law and does not offend Article 15 (4). The
caste of a group of citizens may be a relevant circumstance in
ascertaining their social backwardness and though it is a relevant
factor to determine social backwardness of a class, it cannot be the
sole or dominant test in that behalf. If, in a given situation, caste is
excluded in ascertaining a class within the meaning of Article 15 (4),
it does not vitiate the classification if it satisfies other tests. The Court
observed that various provisions of the Constitution which
recognized the factual existence of backwardness in the country
and which make a sincere attempt to promote the welfare of the
weaker sections thereof should be construed to effectuate that policy
and not to give weightage to progressive sections of the society
under the false colour of caste to which they happen to belong. The
Court held that under no circumstance a ‘class’ can be equated to a
‘caste’ though the caste of an individual or group of individuals may
be a relevant factor in putting him in a particular class.
112. Minor P. Rajendran Vs. State of Madras & Ors.
40
is
another Constitution Bench decision wherein the order of the State
Government providing reservation of seats for various categories of
candidates namely Scheduled Tribes, Scheduled Castes and
SEBCs was challenged on various grounds. The main challenge was
that the reservation was based entirely on consideration of caste and
therefore it violates Article 15. Justice Wanchoo, held that :-
“Now if the reservation in question had been based only on caste
and had not taken into account the social and educational
backwardness of the castes in question, it would be violative of
Article 15 (1). But it must not be forgotten that a caste is also a class
of citizens and if the caste as a whole is socially and educationally
backward reservation can be made in favour of such a caste on the
ground that it is a socially and educationally backward class of
citizens within the meaning of Article 15 (4). Reference in this
connection may be made to the observations of this Court in M.R.
40 (1968) 2 SCR 786
Balaji v. State of Mysore to the effect that it was not irrelevant to
consider the caste of a class of citizens in determining their social
and educational backwardness. It was further observed that though
the caste of a class of citizens may be relevant its importance should
not be exaggerated; and if classification of backward classes of
citizens was based solely on the caste of the citizen, it might be open
to objection.
(emphasis supplied)
113.It may be noticed that the list prepared by the State showed
certain castes, and members of those castes according to the State
were really classes of socially and educationally backward citizens.
It was observed in that case that the petitioners therein did not make
any attempt to show that any caste mentioned in the list of
educationally and socially backward classes of citizens was not
educationally and socially backward and the list based on caste was
upheld by the Constitution Bench and held to be not violative of
Article 15(1).
114.In Triloki Nath Tiku Vs. State of J & K (I)
41
, 50% of the
gazetted posts were to be filled up by promotion in favour of the
Muslims of Jammu & Kashmir. The Court held that inadequate
representation in State services would not be decisive for
determining the backwardness of a section. The Court accordingly
41 (1967) 2 SCR 265
gave directions for collecting further material relevant to the subject.
And in a subsequent decision, Triloki Nath(II) (supra), the court
observed that the expression “backward class” is not used as
synonymous with “backward caste”.
115.In Minor A. Peerikaruppan Vs. State of Tamil Nadu & Ors.
(supra), this Court made reference to the earlier decisions especially
in M.R. Balaji case (supra) and R. Chitralekha case (supra). Hegde,
J., at paragraph 29, observed :-
“There is no gainsaying the fact that there are numerous castes in
this country which are socially and educationally backward. To
ignore their existence is to ignore the facts of life. Hence we are
unable to uphold the contention that the impugned reservation is not
in accordance with Article 15 (4). But all the same the Government
should not proceed on the basis that once a class is considered as
a backward class it should continue to be backward class for all
times. Such an approach would defeat the very purpose of the
reservation because once a class reaches a stage of progress
which some modern writers call as take off stage then competition is
necessary for their future progress. The Government should always
keep under review the question of reservation of seats and only the
classes which are really socially and educationally backward should
be allowed to have the benefit of reservation.”
116. The learned Counsel for the petitioners also made
reference to State of Uttar Pradesh & Ors. Vs. Pradip Tandon &
Ors.
42
wherein Chief Justice Ray observed at paragraph 14 :-
“Socially and educationally backward classes of citizens in Article 15
(4) could not be equated with castes. In M.R. Balaji v. State of
Mysore and State of A.P. v. Sagar this Court held that classification
of backwardness on the basis of castes would violate both Articles 15
(1) and 15 (4).”
117. Another important decision is that of State of Kerala &
Anr. Vs N.M. Thomas & Ors. (supra), wherein the constitutional
validity of Rule 13-AA of the Kerala State & Subordinate Services
Rules was under challenge. The Rule gave exemption of 2 years to
members belonging to Scheduled Castes and Scheduled Tribes in
services, from passing the departmental test. The High Court of
Kerala struck down the Rule and in an appeal by the State the
question of reservation was elaborately considered. Mathew, J. in his
concurring judgment, held that in order to give equality of opportunity
for employment to the members of Scheduled Castes and
Scheduled Tribes, it is necessary to take note of their social,
educational and economic backwardness. Not only is the Directive
Principle embodied in Article 46 binding on the law-makers as
ordinarily understood, but it should equally inform and illuminate the
approach of the court when it makes a decision, as the court is also
42 (1975) 1 SCC 267
a “State” within the meaning of Article 12 and makes law even
though interstitially. Existence of equality depends not merely on
the absence of disabilities but on the presence of disabilities. To
achieve it, differential treatment of persons who are unequal is
permissible. This is what is styled as compensatory discrimination or
affirmative action.
118. In K.C. Vasanth Kumar Vs. State of Karnataka
(supra) the question of identifying socially and educationally
backward class came up for consideration. Desai, J., elaborately
considered this question in paragraph 20 and observed :-
“By its existence over thousands of years, more or less it was
assumed that caste should be the criterion for determining social and
educational backwardness. In other words, it was said, look at the
caste, its traditional functions, its position in relation to upper castes
by the standard of purity and pollution, pure and not so pure
occupation, once these questions are satisfactorily answered
without anything more, those who belong to that caste must be
labeled socially and educationally backward. This over-simplified
approach ignored a very realistic situation existing in each caste that
in every such caste whose members claim to be socially and
educationally backward, had an economically well-placed segments.”
119.Chinnappa Reddy, J., also dealt with the question elaborately
and observed :-
“However we look at the question of ‘backwardness’, whether from
the angle of class, status or power, we find the economic factor at
the bottom of it all and we find poverty, the culprit-cause and the
dominant characteristic. Poverty, the economic factor brands all
backwardness just as the erect posture brands the homosapiens and
distinguishes him from all other animals, in the eyes of the beholder
from Mars. But, whether his racial stock is Caucasian, Mongoloid,
Negroid, etc., further investigation will have to be made. So too the
further question of social and educational backwardness requires
further scrutiny. In India, the matter is further aggravated,
complicated and pitilessly tyrannized by the ubiquitous caste
system, a unique and devastating system of gradation and
degradation which has divided the entire Indian and particularly
Hindu society horizontally into such distinct layers as to be
destructive of mobility, a system which has penetrated and corrupted
the mind and soul of every Indian citizen. It is a notorious fact that
there is an upper crust of rural society consisting of the superior
castes, generally the priestly, the landlord and the merchant castes,
there is a bottom strata consisting of the ‘out-castes’ of Indian Rural
Society, namely the Scheduled Castes, and, in between the highest
and the lowest, there are large segments of population who because
of the low gradation of the caste to which they belong in the rural
society hierarchy, because of the humble occupation which they
pursue, because of their poverty and ignorance are also condemned
to backwardness, social and educational, backwardness which
prevents them from competing on equal terms to catch up with the
upper crust. “
120.Reference was also made to other decisions, namely, State of
Andhra Pradesh & Anr. Vs. P. Sagar
43
and T. Devadasan Vs.
The Union of India & Anr.
44
. The earlier decisions took the view that
caste shall not be a basis for determining the socially and
43 (1968) 3 SCR 595
44 (1964) 4 SCR 680
educationally backward class of citizens. But from the later
decisions, we find a slight shift in the approach of the court. If the
classification of SEBCs is done exclusively on the basis of caste, it
would fly in the face of Article 15(1) of the Constitution as it expressly
prohibits any discrimination on the grounds of religion, race, caste,
sex, place of birth or any of them. After a careful examination of the
various previous decisions of this Court, in Indra Sawhney (supra),
while examining the validity of the ‘Backward Class List’ prepared by
the Mandal Commisson, Jeevan Reddy. J., speaking for the majority,
held as under:-
“705. During the years 1968 to 1971, this Court had to consider the
validity of identification of backward classes made by Madras and
Andhra Pradesh Governments. P. Rajendran v. State of Madras 3 13
related to specification of socially and educationally backward
classes with reference to castes. The question was whether such an
identification infringes Article 15. Wanchoo, CJ, speaking for the
Constitution Bench dealt with the contention in the following words:
(SCR p. 790-91)
“The contention is that the list of socially and educationally backward
classes for whom reservation is made under Rule 5 is nothing but a
list of certain castes. Therefore, reservation in favour of certain
castes based only on caste considerations violates Article 15(1),
which prohibits discrimination on the ground of caste only. Now if the
reservation in question had been based only on caste and had not
taken into account the social and educational backwardness of the
caste in question, it would be violative of Article 15(1). But it must not
be forgotten that a caste is also a class of citizens and if the caste as
a whole is socially and educationally backward reservation can be
made in favour of such a caste on the ground that is a socially and
educationally backward class of citizens within the meaning of Article
15(4) .. .. It is true that in the present cases the list of socially and
educationally backward classes has been specified by caste. But
that does not necessarily mean that caste was the sole consideration
and that persons belonging to these castes are also not a class of
socially and educationally backward citizens .. .. As it was found that
members of these castes as a whole were educationally and socially
backward, the list which had been coming on from as far back as
1906 was finally adopted for purposes of Article 15(4) .. ..
In view however of the explanation given by the State of Madras,
which has not been controverted by any rejoinder, it must be
accepted that though the list shows certain castes, the members of
those castes are really classes of educationally and socially
backward citizens. No attempt was made on behalf of the
petitioners/appellant to show that any caste mentioned in this list was
not educationally and socially backward. In this state of the
pleadings, we must come to the conclusion that though the list is
prepared caste-wise, the castes included therein are as a whole
educationally and socially backward and therefore the list is not
violative of Article 15. The challenge to Rule 5 must therefore fail.”
121.In that decision it was further held that “Backward Class” in
Article 16(4) cannot be read as “Backward Caste”. And under Article
340 of the Constitution, the President may by order appoint a
Commission consisting of such persons as he thinks fit to investigate
the conditions of socially and educationally backward classes of
citizens within the territory of India and the difficulties under which
they labour and to make recommendations as to the steps that
should be taken by the Union or any State to remove the difficulties
and to improve their condition. The object of this provision is to
empower the President to appoint a Commission to ascertain the
difficulties and problems of socially and educationally backward
classes of citizens. And in Indra Sawhney’s case (supra), the
majority held that the ideal and wise method would be to mark out
various occupations which on the lower level in many cases amongst
Hindus would be their caste itself and find out their social
acceptability and educational standard, weigh them in the balance of
economic conditions and, the result would be backward class of
citizens needing a genuine protective umbrella. And after having
adopted occupation as the starting point, the next point should be to
ascertain their social acceptability. A person carrying on scavenging
becomes an untouchable whereas others who were as law in the
social strata as untouchables became depressed. The Court has
cautioned that the backwardness should be traditional. Mere
educational or social backwardness would not have been sufficient
as it would enlarge the field thus frustrating the very purpose of the
constitutional goal. It was pointed out that after applying these tests,
the economic criteria or the means-test should be applied since
poverty is the prime cause of all backwardness as it generates social
and educational backwardness.
122. The learned Counsel for the petitioner contended that
caste cannot be used even as one of the criteria for identifying the
SEBCs as many persons have shifted their traditional occupations
and have become doctors, engineers and lawyers. But these are
only a few cases and even such persons continue to suffer social
segregation based on caste. In Pradip Tandon ’s case (supra) it
was held at para 17 that:
“The expression ‘classes of citizens’ indicates a homogenous section
of the people who are grouped together because of certain
likenesses and common traits and who are identifiable by some
common attributes. The homogeneity of the class of citizens is social
and educational backwardness. Neither caste nor religion nor place
of birth will be the uniform element of common attributes to make
them a class of citizens.”
123.The above statement is not fully correct. Caste plays an
important role in determining the backwardness of the individual. In
society, social status and standing depend upon the nature of the
occupation followed. In paragraph 779 of Indra Sawhney’s case, it
is stated:
“Lowlier the occupation, lowlier the social standing of the class in the
graded hierarchy. In rural India, occupation-caste nexus is true even
today. A few members may have gone to cities or even abroad but
when they return – they do, barring a few exceptions – they go into
the same fold again. It does not matter if he has earned money. He
may not follow that particular occupation. Still, the label remains. His
identity is not changed for the purpose of marriage, death and all
other social functions, it is his social class – the caste – that is
relevant.”
124. “Caste” is often used interchangeably with “class” and can
be called 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 purity 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” on these
grounds. Castes were often rated, on a purity scale, and not on a
social scale.
125. The observations made by Venkataramaiah J. in K.C.
Vasanth Kumar case are relevant in this regard :
“We are aware of the meanings of the words caste, race, or tribe or
religious minorities in India. A caste is an association of families
which practise the custom of endogamy i.e. which permits marriages
amongst the members belonging to such families only. Caste rules
prohibit its members from marrying outside their caste. There are
sub-groups amongst the castes which sometimes inter-marry and
sometimes do not. A caste is based on various factors, sometimes it
may be a class, a race or a racial unit. A caste has nothing to do with
wealth. The caste of a person is governed by his birth in a family.
Certain ideas of ceremonial purity are peculiar to each caste.
Sometimes caste practices even led to segregation of same castes in
the villages. Even the choice of occupation of members of castes
was predetermined in many cases, and the members of a particular
caste were prohibited from engaging themselves in other types of
callings, professions or occupations. Certain occupations were
considered to be degrading or impure. A certain amount of rigidity
developed in several matters and many who belonged to castes
which were lower in social order were made to suffer many
restrictions, privations and humiliations. Untouchability was practised
against members belonging to certain castes. Inter-dining was
prohibited in some cases. None of these rules governing a caste had
anything to do with either the individual merit of a person or his
capacity. The wealth owned by him would not save him from many
social discriminations practised by members belonging to higher
castes. Children who grew in this caste ridden atmosphere naturally
suffered from many social disadvantages apart from the denial of
opportunity to live in the same kind of environment in which persons
of higher castes lived. Many social reformers have tried in the last
two centuries to remove the stigma of caste from which people born
in lower castes were suffering. Many laws were also passed
prohibiting some of the inhuman caste practices.” (p. 110)
126. Rivers, the leading anthropologist, criticizes the use of
the terms “caste” and “class” as synonyms
45
. However, many others,
45 W.H.R. Rivers, Social Organization (New York, 1924) p. 143
such as Lowie
46
and Kimball Young
47
, use these terms as though
they were identical.
127. Very common is the use of the word caste to indicate
hereditary status. Cecil Clare North
48
, the noted sociologist,
accepts the point of view that degrees of rigidity mark the difference
between class and caste systems. His definition reads:
“A group in which status, occupation, and culture have become
hereditary is known as a caste. As a matter of fact, however, the
distinction between a society based upon caste and one in which
open classes prevail is simply one of degree.”
128. North concludes by saying that the term “caste” applies to
classes that have become fixed, and that all such classes tend to
become castes.
129. MacIver
49
, another leading authority in the field of social
class theory, also identifies caste with hereditary status. He attempts
to tie his interpretation with the situation in India, a procedure not
46 Robert H. Lowie, The Origin of the State (New York, 1927) p. 21; Lowie, An Introduction to Cultural
Anthropology (New York, 1940) p. 268
47 Kimball Young, An Introductory Sociology (New York, 1924)
48 Cecil Clare North, Social Differentiation (Chapel Hill, 1926) p. 254
49 R.N. MacIver, Society: A textbook of Sociology (New York 1937) p. 171. 9
often followed by the other sociologists. He writes thus,
“Caste as unchangeable status: -- The feudal order approximated to
a caste system. When status is wholly predetermined, so that men
are born to their lot in life without hope of changing it, then class
takes the extreme form of caste. This is the situation in Hindu
society. ‘Every Hindu necessarily belongs to the caste of his parents,
and in that caste he inevitably remains. No accumulation of wealth
and no exercise of talents can alter his caste status; and marriage
outside his caste is prohibited or severely discouraged.’ Caste is a
complete barrier to the mobility of class.”
130. Therefore, a class always enjoys certain privileges or at
least certain advantages over others in society. When it is more or
less rigorously closed, or enjoys hereditary privileges, it is called a
“caste”.
131. However, there are other sociologists who are of the
opinion that the Caste system has a hereditary function also.
Charles Horton Cooley
50
opines that:
“if the transmission of function from father to son has become
established, a caste spirit, a sentiment in favour of such transmission
and opposed to the passage from one class to another, may arise
and be shared even by the unprivileged classes. The individual then
thinks of himself and his family as identified with his caste…”
50 Charles Horton Cooley, Social Organization (New York, 1909) p. 215
132. Therefore, according to the early sociological theories, the
term “caste” has been used to mean “class”, hereditary or rigid
status, and hereditary occupation.
133. The Mysore Census of 1901
51
is quoted, in this
connection, as follows:
“In any one of the linguistic divisions of India there are as many as
two hundred castes which can be grouped in classes whose
gradation is largely acknowledged by all. But the order of social
precedence amongst the individual castes of any class cannot be
made definite, because not only is there no ungrudging acceptance
of such rank but also the ideas of the people on this point are very
nebulous and uncertain. The following observations vividly bring out
this state of things.”
...Excepting the Brahmin at one end and the admittedly degraded
castes like the Holeyas at the other, the members of a large
proportion of the immediate castes think or profess to think that their
caste is better than their neighbours, and should be ranked
accordingly.”
134. On the other hand, it is possible that within a caste group
there is a marked inequality of status, opportunity, or social standing
– which then defines the “class” within that particular “caste” system.
For example, all the Brahmins are not engaged in highly respectable
51 G.S. Ghurye, Caste and Race in India (Bombay, 1979) p. 6, Quoting from Mysore Census, 1901, p. 400
employment, nor are all very wealthy. It may even be that some
Brahmins may be servants of members of a lower caste, or it may
also be so that the personal servant of a rich Brahmin may be a poor
Brahmin.
135. Hence, 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.
136. 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.
137. 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.
138.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.
139.The Solicitor General, Mr. G.E. Vahanvati, pointed out that for
the purpose of reservation under Article 16(4) of the Constitution, the
Central List has been in operation for the past 14 years and not a
single person has challenged any inclusion in the Central List as void
or illegal.
140.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 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.
141.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/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
backwardness, it cannot be said that it would be violative of Article
15(1) of the Constitution.
142.We hold that the 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.
6. Whether Creamy Layer is to be excluded from SEBCs?
143.The SEBCs have been identified by applying various criteria.
Though for the purpose of convenience, the list is based on caste, it
cannot be said that ‘Backward Class’ has been identified solely on
the basis of caste. All the castes which suffered the social and
educational backwardness have been included in the list. Therefore,
it is not violative of Article 15(1). The only possible objection that
could be agitated is that in many of the castes included in this list,
there may be an affluent section (Creamy Layer) which cannot be
included in the list of SEBCs.
144.When socially and educationally backward classes are
determined by giving importance to caste, it shall not be forgotten
that a segment of that caste is economically advanced and they do
not require the protection of reservation. It was argued on behalf of
the petitioners that the principle of ‘Creamy Layer’ should be strictly
applied to SEBCs while giving affirmative action and the principles of
exclusion of ‘Creamy Layer’ applied in Indra Sawhney’s case should
be equally applied to any of the legislations that may be passed as
per Article 15(5) of the Constitution. The Counsel for the petitioners
submitted that SEBCs have been defined under section 2 (g) of the
Act and the Central Government has been delegated with the power
to determine Other Backward Classes. The Counsel for the
petitioners have pointed out that the definition given in section 2(g) of
the Act should be judicially interpreted. That the backward class so
stated therein should mean to exclude the ‘Creamy Layer’. The
learned Senior Counsel appearing for Pattali Makkal Katchi (PMK)
stated that exclusion of ‘Creamy Layer’ shall not apply for reservation
in educational institutions. He pointed out that in case the ‘creamy
layer’ is excluded, the other members of the backward class
community would not be in a position to avail the benefit of
reservation and the fee structure in many of these centrally
administered institutions is exorbitantly high and the ordinary citizen
would not be in a position to afford the payment of fees and thus the
very purpose of the reservation would be frustrated.
145.According to the learned Counsel for the respondents, the
creamy layer elimination will only perpetuate caste inequalities. It
would enable the advanced castes to eliminate any challenge or
competition to their leadership in the professions and services and
that they will gain by eliminating all possible beneficiaries of
reservation in the name of creamy layer especially in the institutions
of higher learning. It was argued that the analogy of Creamy Layer
applied in reservations to jobs cannot be applied in reservations to
educational institutions of higher learning. The position of a student
getting admission to an institution of higher learning is totally different
and can never be compared to that of backward class person to get a
job by virtue of reservation. The study in any educational institution
of higher learning is very expensive and the non-creamy layer
backward class parent cannot afford his son or his daughter incurring
such a huge expenditure. Eliminating them from the Creamy Layer
will frustrate the very object of providing reservation. Therefore, it is
wholly impracticable and highly counter productive to import the
policy of Creamy Layer for reservation in these institutions. And
according to the learned Counsel there is a difference between
services and education and that under the purview of Act 5 of 2007,
around 3 lakh seats would be filled up every year. Whereas the jobs
are limited and they will not become vacant every year.
146.The learned Counsel pointed out that grouping of all castes
together may enable a less backward caste among the backward
classes to corner more seats than it deserves. It is also possible that
more backward classes cannot afford to compete with the less
backward classes. The only way to solve the said problem is by
categorization of Backward Classes and sub classifying them so as
to ensure that under each category only similarly circumstanced
castes are grouped together. The categorization of backward class
has successfully worked in State of Tamil Nadu where most
backward class is provided 20% reservation and the most backward
castes and denotified tribes are grouped together and the backward
classes are provided 30% reservation. In the State of Karnataka,
backward classes are divided into 5 categories and separate
reservations have been provided. And in the State of Andhra
Pradesh, Backward Classes have been divided into 4 divisions and
separate percentage of reservation has been provided.
147.As noticed earlier, 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, a 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.
148.In Indra Sawhney’s case (supra) Jeevan Reddy, J., has
observed :
“In our opinion, it is not a question of permissibility or desirability of
such test but one of proper and more appropriate identification of a
class – a backward class. The very concept of a class denotes a
number of persons having certain common traits which distinguish
them from the others. In a backward class under clause (4) of Article
16, if the connecting link is the social backwardness, it should broadly
be the same in a given class. If some of the members are far too
advanced socially (which in the context, necessarily means
economically and, may also mean educationally) the connecting
thread between them and the remaining class snaps. They would be
misfits in the class. After excluding them alone, would the class be a
compact class. In fact, such exclusion benefits the truly backward.”
(p. 724)
149. 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.
150.It may be noted that 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, we
are bound the larger Bench decision of this Court in Indra
Sawhney’s case, and 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 unreasonable, discriminatory or
arbitrary, resulting in reverse discrimination.
151.Sawant, J. also made observation in Indra Sawhney’s case to
ensure removal of ‘creamy layer’. He observed:-
“….at least some individuals and families in the backward classes ----
gaining sufficient means to develop their capacities to compete with
others in every field.... Legally, therefore, they are not entitled to be
any longer called as part of the backward classes whatever their
original birth mark --- to continue to confer upon such advanced
sections from the backward classes the special benefits, would
amount to treating equals unequally violating the equality provisions
of the Constitution. Secondly, to rank them with the rest of the
backward classes would equally violate the right to equality of the
rest in those classes, since it would amount to treating the unequals
equally…. It will lead to perverting the objectives of the special
constitutional provisions since the forwards among the backward
classes will thereby be enabled to tap up all the special benefits to
the exclusion and to the cost of the rest in those classes, thus
keeping the rest in perpetual backwardness.”
152. All these reasonings are equally applicable to the
reservation or any special action contemplated under Article 15(5).
Therefore, we are unable to agree with the contention raised by the
respondent’s learned Counsel 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-creamy 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 will not
be complete and any SEBC without the exclusion of ‘creamy layer’
may not be in accordance with Article 15(1) of the Constitution.
7. What should be the para-meters for determining the “creamy
layer” group ?
153. After the decision in Indra Sawhney’s case (supra), the
Government of India, Ministry of Personnel, Public Grievances and
Pensions (Department of Personnel and Training) issued an Office
Memorandum dated 08.09.1993 providing for 27% reservation for
Other Backward Classes. The Memorandum reads as follows :-
“OFFICE MEMORANDUM
Subject : Reservation for Other Backward Classes in Civil Posts and
Services Under the Government of India ---regarding
-----------
The undersigned is directed to refer to this Department’s OM
No. 36012/31/90-Estt. (SCT), dated the 13
th
August, 1990 and 25
th
September, 1991 regarding reservation for Socially and Educationally
Backward Classes in Civil Posts and Services under the Government
of India and to say that following the Supreme Court judgment in the
Indra Sawhney vs. Union of India (Writ Petition (Civil) No. 930 of
1990) the Government of India appointed an Expert Committee to
recommend the criteria for exclusion of the socially advanced
persons/sections from the benefits of reservations for Other
Backward Classes in Civil Posts and Services under the Government
of India.
2.Consequent to the consideration of the Expert Committee’s
recommendations this Department’s Office Memorandum No.
36012/31/90-Estt. (SCT), dated 13.8.1990 referred to in para (1)
above is hereby modified to provide as follows :
(a) 27% (twenty-seven per cent) of the vacancies in Civil Posts
and Services under the Government of India, to be filled through
direct recruitment, shall be reserved for the Other Backward Classes.
Detailed instructions relating to the procedure to be followed for
enforcing reservation will be issued separately.
(b) * * *
(c) (i) The aforesaid reservation shall not apply to persons/sections
mentioned in Column 3 of the Schedule to this office memorandum.
(ii) The rule of exclusion will not apply to persons working as artisans
or engaged in hereditary occupations, callings. A list of such
occupations, callings will be issued separately by the Ministry of
Welfare.
(d)-(e)* * *
* * *
3. SCHEDULE
Description of category To whom rule of exclusion
will apply
1 2 3
I.CONSTITUTIONAL
POSTS
Son(s) and daughter(s) of
(a) President of India;
(b) Vice-President of India;
(c.) Judges of the Supreme Court
and of the High Courts;
(d) Chairman & Members of UPSC
and of the State Public Service
Commission; Chief Election
Commissioner; Comptroller and
Auditor General of India;
(e) persons holding constitutional
positions of like nature.
II.SERVICE
CATEGORY
Son(s) and daughter(s) of
A.Group A/Class I
Officers of the All
India Central and
State Services (Direct
Recruits)
(a) parents, both of whom are Class
I Officers;
(b) parents, either of whom is a
Class I officer;
(c.) parents, both of whom are Class
I Officers, but one of them dies or
suffers permanent incapacitation;
(d) parents, either of whom is a
Class I officer and such parent dies
or suffers permanent incapacitation
and before such death or such
incapacitation has had the benefit of
employment in any International
Organisation like UN, IMF, World
Bank, etc. for a period of not less
than 5 years;
(e) parents, both of whom are Class
I officers die or suffer permanent
incapacitation and before such
death or such incapacitation of the
both, either of them has had the
benefit of employment in any
International Organisation like UN,
IMF, World Bank, etc. for a period of
not less than 5 years.
Provided that the rule of exclusion
shall not apply in the following cases
:
(a) Son(s) and
daughter(s) of parents either of
whom or both of whom are class I
officers and such parent(s) dies/die
or suffer permanent incapacitation;
(b) A lady belonging
to OBC category has got married to
a Class I officer, and may herself
like to apply for a job.
B.Group B/Class II
officers of the Central
and State Services
(Direct Recruitment)
Son(s) and daughter(s) of
(a) Parents both of whom are Class
II officers;
(b) parents of whom only the
husband is a Class II officer and he
get into Class I at the age of 40 or
earlier;
(c) parents, both of whom are Class
II officers and one of them dies or
suffers permanent incapacitation
and either one of them has had the
benefit of employment in any
International Organisation like UN,
IMF, World Bank etc. for a period of
not less than 5 years before such
death or permanent incapacitation;
(d) parents of whom the husband is
a Class I officer (direct recruit or
pre-forty promoted) and the wife is a
Class II officer and the wife dies; or
suffers permanent incapacitation;
and
(e) parents, of whom the wife is a
Class I officer (direct recruit or pre-
forty promoted) and the husband is
a Class II officer and the husband
dies or suffers permanent
incapacitation:
Provided that the rule of exclusion
shall not apply in the following
cases:
Son(s) and daughter(s) of
(a)parents both of whom are Class
II officers and one of them dies or
suffers permanent incapacitation;
(b)parents, both of whom are Class
II officers and both of them die or
suffer permanent incapacitation,
even though either of them has had
the benefit of employment in any
International Organisation like UN,
IMF, World Bank etc. for a period of
not less than 5 years before their
death or permanent incapacitation.
C.Employees in Public
Sector Undertakings
etc.
The criteria enumerated in A and B
above in this category will apply
mutatis mutandis to officers holding
equivalent or comparable posts in
PSUs, Banks, Insurance
Organisations, Universities, etc. and
also to equivalent or comparable
posts and positions under private
employment, pending the evaluation
of the posts on equivalent or
comparable basis in these
institutions, the criteria specified in
Category VI below will apply to the
officers in these institutions.
III. ARMED FORCES
INCLUDING
PARAMILITARY
Son(s) and daughter(s) of parents
either or both of whom is or are in
the rank of Colonel and above in the
FORCES (Persons
holding civil posts are
not included)
Army and to equivalent posts in the
Navy and the Air Force and the
Paramilitary Forces:
Provided that:
(i) If the wife of an Armed
Forces officer is herself in the
Armed Forces (i.e. the category
under consideration) the rule of
exclusion will apply only when she
herself has reached the rank of
Colonel;
(ii) The service ranks below
Colonel of husband and wife shall
not be clubbed together;
(iii)If the wife of an officer in
the Armed Forces is in civil
employment, this will not be taken
into account for applying the rule of
exclusion unless she falls in the
service category under Item No. II in
which case the criteria and
conditions enumerated therein will
apply to her independently.
IV. PROFESSIONAL
CLASS AND THOSE
ENGAGED IN
TRADE AND
INDUSTRY
(i) Persons engaged
in profession as a
doctor, lawyer,
chartered
accountant, Income
Tax consultant,
financial or
management
Criteria specified against Category
VI will apply—
consultant, dental
surgeon, engineer,
architect, computer
specialist, film artists
and other film
professional, author,
playwright, sports
persons, sports
professional, media
professional or any
other vocations of like
status.
(ii) Persons engaged
in trade, business
and industry.
Criteria specified against Category
VI will apply-
Explanation:
(i) Where the husband is in
same profession and the wife is in a
Class II or lower grade employment,
the income/wealth test will apply
only on the basis of the husband’s
income;
(ii) If the wife is in any
profession and the husband is in
employment in a Class II or lower
rank post, then the income/wealth
criterion will apply only on the basis
of the wife’s income and the
husband’s income will not be
clubbed with it.
V. PROPERTY
OWNERS
A. Agricultural
holdings
Son(s) and daughter(s) of persons
belonging to a family (father, mother
and minor children) which owns only
irrigated land which is equal to or
more than 85% of the statutory
area; or
(a)both irrigated and unirrigated
land, as follows :
(i) The rule of exclusion
will apply where the precondition
exists that the irrigated area (having
been brought to a single type under
a common denominator) 40% or
more of the statutory ceiling limit for
irrigated land (this being calculated
by excluding the unirrigated portion).
If this precondition of not less than
40% exists, then only the area of
unirrigated land will be taken into
account. This will be done by
converting the unirrigated land on
the basis of the conversion formula
existing, into the irrigated type. The
irrigated area so computed from
unirrigated land shall be added to
the actual area of irrigated land and
if after such clubbing together the
total area in terms of irrigated land is
80% or more of the statutory ceiling
limit for irrigated land, then the rule
of exclusion will apply and
disentitlement will occur;
(ii) The rule of exclusion
will not apply if the land holding of a
family is exclusively unirrigated.
B. Plantations
(i) Coffee, tea, rubber
etc.
(ii) Mango, citrus,
apple plantations,
etc.
C. Vacant land and/or
buildings, in urban
areas or urban
agglomerations
Criteria of income/wealth specified
in Category VI below will apply
Deemed as agricultural holding and
hence criteria at A above under this
category will apply.
Criteria specified in Category VI
below will apply.
Explanation: Building may be used
for residential, industrial or
commercial purpose and the like
two or more such purposes.
VI. INCOME /
WEALTH TEST
Son(s) and daughter(s) of
(a) persons having gross
annual income of Rs. 1 lakh or
above or possessing wealth above
the exemption limit as prescribed in
the Wealth Tax Act for a period of
three consecutive years;
(b) persons in Categories I, II,
III and V-A who are not disentitled to
the benefit of reservation but have
income from other sources of
wealth which will bring them within
the income/wealth criteria
mentioned in (a) above.
Explanation.
(i) Income from salaries or
agricultural land shall not be
clubbed;
(ii) The income criteria in
terms of rupee will be modified
taking into account the change in its
value every three years; If the
situation, however, so demands,
the interregnum may be less.
Explanation: Wherever the expression ‘permanent incapacitation’
occurs in this Schedule, it shall mean incapacitation which results
in putting an officer out of service.”
154.We make it 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. As pointed by Shri
Ravivarma Kumar, learned Senior Counsel, 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.
155.As noticed earlier, “backward class” defined in Section 2(g)
does not exclude “creamy layer”. Therefore, we make it 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”.
8. Whether the “creamy layer” principle is applicable to
Scheduled Tribes and Scheduled Castes ?
156. Learned Senior Counsel Dr. Rajeev Dhavan submitted that
“creamy layer” principle is to be applied to SCs and STs. He drew
inspiration from the observations made by Justice Krishna Iyer in
N.M. Thomas’s case (supra) and also from the observations made
in Nagaraj’s case and reference was made to paragraphs 80, 110
and 120 to 123 of Nagaraj ’s case (supra).
157.N.M. Thomas ‘s case (supra) does not state that “creamy layer”
principle should apply to SCs and STs. In K.C. Vasanth Kumar’s
case (supra) the “creamy layer” was used in the case of backward
caste or class. In K.C. Vasanth Kumar
52
(supra), Desai J. quoted
from N.M. Thomas (supra) as follows :-
“In the light of experience, here and elsewhere, the danger of
‘reservation’, it seems to me, is threefold. Its benefits, by and large,
are snatched away by the top creamy layer of the ‘backward’ caste or
class, thus keeping the weakest among the weak always weak and
leave the fortunate layers to consume the whole cake.”
(N.M. Thomas (supra) p. 363, para 124)
52 (supra) p. 733
158.In Nagaraj’s case (supra) in paragraph 80, it is stated that while
“applying the ‘creamy layer’ test, this Court held that if roster-point
promotees are given consequential seniority, it will violate the
equality principle which is part of the basic structure of the
Constitution and in which even Article 16(4-A) cannot be of any help
to the reserved category candidates.” This was with reference to the
observations made in Indra Sawhney’s case (supra) and earlier in
M.G. Badappanavar & Anr. Vs. State of Karnataka & Ors.
53
; Ajit
Singh & Ors. (II) vs. State of Punjab & Ors.
54
and Union of India
& Ors. Vs. Virpal Singh Chauhan & Ors.
55
. Virpal Singh
Chauhan’s case (supra) dealt with reservation of railway employees
wherein it is held that once the number of posts reserved for being
filled by reserved category candidates in a cadre, category or grade
(unit for application of rule of reservation) are filled by the operation of
roster, the object of the rule of reservation should be deemed to have
been achieved. Ajit Singh II’s case (supra) dealt with consequential
seniority on promotion and held that roster points fixed at Level 1 are
not intended to determine any seniority at Level 1 between general
candidates and the reserved candidates and the roster point merely
53 (2001) 2 SCC 666
54 (1999) 7 SCC 209
55 (1995) 6 SCC 684
becomes operative whenever a vacancy reserved at Level 2
becomes available. Thereby holding that if promotion is obtained by
way of reservation, the consequential seniority will not be counted.
M.G. Badappanavar’s case (supra) followed the cases of Ajit Singh
II (supra) and Virpal Singh (supra).
159.In none of these decisions it is stated that the “creamy layer”
principle would apply to SCs and STs. In Indra Sawhney’s case
(supra), it is specifically stated that the “creamy layer” principle will
not apply to STs and SCs. In Nagaraj’s case (supra) , 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 (supra) 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 (supra).
160.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. The observations made by Chinnappa Reddy, J.
in K.C. Vasanth Kumar case are relevant in this regard. The
learned Judge observed as under :
“One cannot quarrel with the statement that social science research
and not judicial impressionism should form the basis of examination,
by courts, of the sensitive question of reservation for backward
classes. Earlier we mentioned how the assumption that efficiency will
be impaired if reservation exceeds 50%, if reservation is extended to
promotional posts or if the carry forward rule is adopted, is not based
on any scientific data. One must, however, enter a caveat to the
criticism that the benefits of reservation are often snatched away by
the top creamy layer of backward class or caste. That a few of the
seats and posts reserved for backward classes are snatched away by
the more fortunate among them is not to say that reservation is not
necessary. This is bound to happen in a competitive society such as
ours. Are not the unreserved seats and posts snatched away, in the
same way, by the top creamy layer of society itself? Seats reserved
for the backward classes are taken away by the top layers amongst
them on the same principle of merit on which the unreserved seats
are taken away by the top layers of society.” (p. 763)
161.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 required certain parameters 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 SCs, as SCs and STs are separate
classes by themselves. Ray, CJ., in an earlier decisions, stated that
“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 issued, they are
deemed to be the members of Scheduled Castes or Scheduled
Tribes, whichever is applicable. In E.V. Chinnaiah (supra),
concurring with the majority judgment, S.B. Sinha, J. said :-
“The Scheduled Castes and Scheduled Tribes occupy a special place
in our Constitution. The President of India is the sole repository of the
power to specify the castes, races or tribes or parts of or groups
within castes, races or tribes which shall for the purposes of the
Constitution be deemed to be Scheduled Castes. The Constitution
(Scheduled Castes) Order, 1950 made in terms of Article 341(1) is
exhaustive. The object of Articles 341 and 342 is to provide for grant
of protection to the backward class of citizens who are specified in
the Scheduled Castes Order and Scheduled Tribes Order having
regard to the economic and education backwardness wherefrom they
suffer. Any legislation which would bring them out of the purview
thereof or tinker with the order issued by the President of India would
be unconstitutional. (Paras 52, 111 and 84)
(emphasis supplied)
162.A plea was raised by the respondent-State that categorization
of Scheduled Castes could be justified by applying the “creamy layer”
test as used in Indra Sawhney’s case (supra) which was specifically
rejected in paragraph 96 of the E.V. Chinnaiah’s case (supra). It is
observed :-
But we must state that whenever such a situation arises in respect of
Scheduled Caste, it will be Parliament alone to take the necessary
legislative steps in terms of clause (2) of Article 341 of the
Constitution. The States concededly do not have the legislative
competence therefor.” (p. 430)
163.Moreover, 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. We make it clear that for the purpose of reservation, the
principles of “creamy layer” are not applicable for Scheduled Castes
and Scheduled Tribes.
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 of
India ?
164.Based on the Ninety-Third Constitutional Amendment Act, Act
5 of 2007 has been enacted. According to the petitioner’s Counsel,
this is a “suspect legislation” and therefore, it is to be subjected to
“strict scrutiny” as laid by the United States Supreme Court and only
by passing this test of “strict scrutiny”, such legislation could be put
into practice.
165.At the outset, it must be stated that 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 other factors are
widely different in both the countries. Reference may be made to
Bhikaji Narain Dhakras & Ors. Vs. The State of Madhya Pradesh
& Anr.
56
and A.S. Krishna Vs. State of Madras
57
wherein this
Court specifically held that the due process clause in the Constitution
of the United States of America is not applicable to India. While
considering the scope and applicability of Article 19(1)(g) in
Kameshwar Prasad and Others Vs. State of Bihar and
Another
58
, it was observed “-
“As regards these decisions of the American Courts, it should be
borne in mind that though the First Amendment to the Constitution of
the United States reading “Congress shall make no law ….abridging
the freedom of speech….” appears to confer no power on the
Congress to impose any restriction on the exercise of the guaranteed
right, still it has always been understood that the freedom guaranteed
is subject to the police power – the scope of which however has not
been defined with precision or uniformly. “ (p. 378)
166. In Kesavananda Bharati
59
case also, while considering the
56[1955] 2 SCR 589
57 [1957] SCR 399
58 1962 Supp. (3) SCR 369
59 (1973) 4 SCC 225
extent and scope of the power of amendment under Article 368 of the
Constitution of India, the Constitution of the United States of America
was extensively referred to and Ray, J., held :-
“The American decisions which have been copiously cited before us,
were rendered in the context of the history of the struggle against
colonialism of the American people, sovereignty of several States
which came together to form a Confederation, the strains and
pressures which induced them to frame a Constitution for a Federal
Government and the underlying concepts of law and judicial
approach over a period of nearly 200 years, cannot be used to
persuade this Court to apply their approach in determining the cases
arising under our Constitution”. (p. 615)
167. It may also be noticed that there are structural differences in
the Constitution of India and the Constitution of the United States of
America. Reference may be made to the 14
th
Amendment to the U.S.
Constitution. Some of the relevant portions thereof are as follows:
“All persons born or naturalized in the United States, and subject to
the jurisdiction thereof, are citizens of the United States and of the
State wherein they reside. No State shall make or enforce any law
which shall abridge the privileges and immunities of citizens of the
United States; nor shall any State deprive any person of life, liberty or
property without due process of law nor deny to any person within its
jurisdiction the equal protection of the laws.”
168.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 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
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. This view was held in The General Manager
Southern Railways Vs. Rangachari
60
and M.R. Balaji Vs. State of
Mysore
61
.
169.In T. Devadasan
62
(supra), Subba Rao J., gave a dissenting
opinion wherein he held that Article 16(4) was not an exception to
Article 16(1). He observed:-
60 (supra) at p. 607
61 (supra) at 455
62 (supra) at 700
“…The expression ‘nothing in this article’ is a legislative device to
express its intention in a most emphatic way that the power conferred
thereunder is not limited in any way by the main provision but falls
outside it. It has not really carved out an exception, but has
preserved a power untrammeled by the other provisions of the
Article.”
170.In two other subsequent decisions, i.e. in Triloki Nath (I)
63
(supra) and T. Devadasan case (supra), it was held that article 15(4)
and 16(4) are exceptions to Article 15(1) and 16(1) respectively. But
a 7-Judge Bench in State of Kerala Vs. N.M. Thomas (supra) held
that Article 15(4) and 16(4) are not exceptions to Article 15(1) and
16(1) respectively. Fazal Ali J., said :
“This form of classification which is referred to as reservation, is in my
opinion, clearly covered by Article 16(4) of the Constitution which is
completely exhaustive on this point. That is to say clause (4) of
Article 16 is not an exception to Article 14 in the sense that whatever
classification can be made, can be done only through clause (4) of
Article 16. Clause (4) of Article 16, however, is an explanation
containing an exhaustive and exclusive provision regarding
reservation which is one of the forms of classification.”
171.This brought out a drastic change in the view of this Court. In
K.C. Vasanth Kumar Vs. State of Karnataka
64
(supra),
63 (supra) at 104
64 (supra) at 800
Venkatramaiah J. observed:
“Article 14 of the Constitution consists of two parts. It asks the State
not to deny to any person equality before law. It also asks the State
not to deny the equal protection of the laws. Equality before law
connotes absence of any discrimination in law. The concept of equal
protection required the State to mete out differential treatment to
persons in different situations in order to establish an equilibrium
amongst all. This is the basis of the rule that equals should be
treated equally and unequals must be treated unequally if the
doctrine of equality which is one of the corner-stone of our
Constitution is to be duly implemented. In order to do justice
amongst unequals, the State has to resort to compensatory or
protective discrimination. Article 15(4) and Article 16(4) of the
Constitution were enacted as measures of compensatory or
protective discrimination to grant relief to persons belonging to
socially oppressed castes and minorities.”
172.The amendment to Article 15 by inserting Article 15(5) and the
new Act (Act 5 of 2007) are to be viewed in the background of these
constitutional provisions. It may also be recalled that the Preamble to
the Constitution and the Directive Principles of State Policy give a
positive mandate to the State and the State is obliged to remove
inequalities and backwardness from society. While considering the
constitutionality of a social justice legislation, it is worthwhile to note
the objectives which have been incorporated by the Constitution
makers in the Preamble of the Constitution and how they are sought
to be secured by enacting fundamental rights in Part III and
Directives Principles of State Policy in Part IV of the Constitution. The
Fundamental Rights represent the civil and political rights and the
Directive Principles embody social and economic rights. Together
they are intended to carry out the objectives set out in the Preamble
of the Constitution. Granville Austin, in his book
65
, states :
“Both types of rights have developed as a common demand, products
of the national and social revolutions, of their almost inseparable
intertwining, and of the character of Indian politics itself.”
173.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 was provided for the reason that an infant
65 Granville Austin : The Indian Constitution : Corner-stone of a Nation, p. 52
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. In Champakam Dorairajan’s case (supra),
it was observed that “the Directive Principles have to conform to and
run subsidiary to the Chapter of Fundamental Rights.” But this view
did not hold for a long time and was later changed in a series of
subsequent decisions. (See : In Re. Kerala Education Bill, 1957
66
;
Minerava Mills (supra))
174. In Minerva Mills
67
(supra) Bhagwati, J observed :
“The Fundamental Rights are no doubt important and valuable in a
democracy, but there can be no real democracy without social and
economic justice to the common man and to create socio-economic
conditions in which there can be social and economic justice to every
one, is the theme of the Directive Principles. It is the Directive
Principles which nourish the roots of our democracy, provide strength
and vigour to it and attempt to make it a real participatory democracy
which does not remain merely a political democracy with
Fundamental Rights available to all irrespective of their power,
position or wealth. The dynamic provisions of the Directive Principles
fertilise the static provisions of the Fundamental Rights. The object
of the Fundamental Rights is to protect individual liberty, but can
individual liberty be considered in isolation from the socio-economic
structure in which it is to operate. There is a real connection between
66 1959 SCR 995
67 AIR 1980 SC 1789, at p. 1847
individual liberty and the shape and form of the social and economic
structure of the society. Can there be any individual liberty at all for
the large masses of people who are suffering from want and privation
and who are cheated out of their individual rights by the exploitative
economic system? Would their individual liberty not come in conflict
with the liberty of the socially and economically more powerful class
and in the process, get mutilated or destroyed? It is exiomatic that
the real controversies in the present day society are not between
power and freedom but between one form of liberty and another.
Under the present socio-economic system, it is the liberty of the few
which is in conflict with the liberty of the many. The Directive
Principles therefore, impose an obligation on the State to take
positive action for creating socio-economic conditions in which there
will be an egalitarian social order with social and economic justice to
all, so that individual liberty will become a cherished value and the
dignity of the individual a living reality, not only for a few privileged
persons but for the entire people of the country. It will thus be seen
that the Directive Principles enjoy a very high place in the
constitutional scheme and it is only in the framework of the socio-
economic structure envisaged in the Directive Principles that the
Fundamental Rights are intended to operate, for it is only then they
can become meaningful and significant for the millions of our poor
and deprived people who do not have been the bare necessities of
life and who are living below the poverty level.”
175.Article 46 enjoins upon the State to promote with special care
the educational and economic interests of the weaker sections of the
people and to protect them from social injustice and all forms of
exploitation whereas under the Constitution of the United States of
America, we get an entirely different picture. Though equality was
one of the solemn affirmations of the American Declaration of
Independence, slavery continued unabatedly and it was, to some
extent, legally recognized. In Dred Scott Vs. Saunders
68
wherein
Chief Justice Taney held that [African-Americans] were not entitled to
get citizenship. He was of the view that ‘once a slave always a
slave’, and one slave never would become the citizen of America.
This view held by the Chief Justice Taney continued for a long time
and after the Civil War, the 14
th
amendment was enacted in 1868 and
this amendment gave (equal protection of laws to all persons). In
Plassy Vs. Ferguson
69
which involved a challenge to a Louisiana
statute that provided for equal but separate accommodations for
black and white passengers in trains, the United States Supreme
Court was of the view that racial segregation was a reasonable
exercise of State police power for the promotion of the public good
and upheld the law. Several affirmative actions were challenged and
the landmark decision of Brown Vs. Board of Education
70
was
delivered in 1954. In many cases, the strict scrutiny doctrine was
being applied to all laws of racial classifications. The learned
Counsel for the petitioner made reference to Gratz Vs. Bollinger
(supra) and some of the earlier decisions of the United States
68 60 US 393(1856)
69 163 US 537(1896)
70 347 US 483
Supreme Court. During the past two decades, the Court has become
sceptical of race-based affirmative action practiced or ordered by the
State. The Supreme Court of the US is of the view that affirmative
action plans must rest upon a sufficient showing or predicate of past
discrimination which must go beyond the effects of societal
discrimination.
176.The 14
th
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 Supreme 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 those practicing these affirmative
action programmes have to adhere to a very high standard of proof,
which we know as the “strict scrutiny” test.
177.The case of Regents of the University of California Vs.
Bakke
71
provided a starting point and from this case onwards,
affirmative action programmes can be justified only on two distinct
grounds, and only these grounds have been recognized as
compelling enough to so as to satisfy the “strict scrutiny” test, as
developed by the United States Supreme Court. The two grounds are
as follows:
1. Remedial Justification: 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.
In the case of City of Richmond Vs. J A Croson Co.
72
, the United
71 438 US 265 (1978)
72 488 U.S. 469 (1989)
States Supreme Court held that if a university is able to show “some
showing of prior discrimination” in its existing affirmative action program
furthering racial exclusion then the university may take “affirmative
steps to dismantle such a system”. However, it is to be noted that the
US Supreme Court also attached a warning with the above observation.
While scrutinizing such programmes, it was held that the Court would
make “searching judicial inquiry into the justification for such race-based
measures... [and to] identify that discrimination... with some specificity
before they may use race-conscious relief”. (Croson’s Case
73
)
2. Diversity- All affirmative action programmes aimed at bringing about
racial diversity among the scholarship of the institution(s) may be said to
in furtherance of compelling institutional interest. The starting point for
this ground is Justice Powell’s detailed opinion regarding the issue of
diversity in the case of Regents of the University of California Vs.
Bakke
74
(supra). In this case, according to Justice Powell, “[t]he
attainment of a diverse student body is clearly a constitutionally
permissible goal for an institution of higher education”. He quoted from
two of the Supreme Court’s decisions regarding academic freedom
73 (supra), p. 492-93
74 (supra) at 311-313
[Sweezy Vs. New Hampshire
75
and Keyishian Vs. Board of
Regents
76
] and observed:
“[I]t is the business of a university to provide that atmosphere which is
most conducive to speculation, experiment and creation.........The
atmosphere of speculation, experiment and creation — so essential to
the quality of higher education — is widely believed to be promoted by a
diverse student body. ... [I]t is not too much to say that the nation’s
future depends upon leaders trained through wide exposure to the ideas
and mores of students as diverse as this Nation of many peoples.”
178.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 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.
75 (1957) 354 US 234 at 263
76 (1967) 385 US 589 at 603
179.Thus, 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.
180.The United States Supreme Court has held that race may be one
of the many factors that can be taken into account while structuring an
affirmative action programme. At this stage, an analogy may be drawn
with the Indian situation wherein the Supreme Court of India, in various
cases, has held that caste may be one of the factors that can be taken
into account, while providing for reservations for the socially and
educationally backward classes. However, caste cannot be the “only”
factor, just as race alone cannot be the only factor in the United States,
while structuring reservation or affirmative action programmes.
181.Furthermore, the courts, both in India as well as in the United
States of America, 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. As the US Supreme Court elucidated in the case of
Grutter Vs. Bollinger (supra), “Because the Fourteenth Amendment
“protect[s] persons, not groups,” all governmental action based on race
ought to be subjected to a very detailed and careful judicial inquiry and
scrutiny so as to ensure that the personal right to equal protection of the
laws has not been infringed. (See : Adarand Constructors Inc. Vs.
Peña)
77
.
182.It therefore follows that the government may treat people
differently because of their race but only for those reasons that serve
what is known as “compelling government interest”.
183.Furthermore, 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 of 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
77 (1995) 515 US 200 at 227
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.
184.The aforesaid 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 we have not applied the principles of “suspect
legislation” and we have been following the doctrine that every
legislation passed by the Parliament is presumed to be
constitutionally valid unless otherwise proved. We have repeatedly
held that the American decisions are not strictly applicable to us and
the very same principles of strict scrutiny and suspect legislation
were sought to be applied and this Court rejected the same in
Saurabh Chaudhari Vs. Union of India
78
. Speaking for the bench,
V.N. Khare, CJI, said:
78 2003 (11) SCC 146
“The strict scrutiny test or the intermediate scrutiny test applicable in
the United States of America as argued by Shri Salve cannot be
applied in this case. Such a test is not applied in Indian Courts. In
any event, such a test may be applied in a case where a legislation
ex facie is found to be unreasonable. Such a test may also be
applied in a case where by reason of a statute the life and liberty of a
citizen is put in jeopardy. This Court since its inception apart from a
few cases where the legislation was found to be ex facie wholly
unreasonable proceeded on the doctrine that constitutionality of a
statute is to be presumed and the burden to prove contra is on him
who asserts the same.”
185.Learned Counsel Shri Sushil Kumar Jain contended that the
classification of OBCs was not properly done and it is not clear as to
whose benefit the legislation itself is made therefore, it is a suspect
legislation. This contention cannot be accepted. We are of the view
that the challenge of 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.
10. Whether delegation of power to the Union Government to
determine as to who shall be the backward class is
constitutionally valid?
186. The learned Counsel for the petitioners contended that
though “Backward Class” is defined under Section 2(g) of Act 5 of
2007, it is not stated in the Act how the “Backward Class” would be
identified and the delegation of such power to the Union of India to
determine as to who shall be the “backward class” without their being
proper guidelines is illegal as it amounts to excessive delegation.
According to the learned Counsel for the petitioners, the Parliament
itself should have laid down the guidelines and decided that who shall
be included in the backward class as defined under Section 2(g) of
the Act 5 of 2007. “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 of 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 backward class. There is already a National
Commission and also various State Commissions dealing with the
affairs of the backward class of citizens in this country. For the
purpose of enforcement of the legislation passed under Article 16(4),
the backward class of citizens have already been identified and has
been in practice since the past 14 years. It is in this background that
the Union of India has been given the task of determining the
backward classes. The determination of backward classes itself is a
laborious task and the Parliament cannot do it by itself. It is incorrect
to say that there are no sufficient guidelines to determine the
backward classes. Various parameters have been used and it may
also be noticed that if any undeserving caste or group of persons are
included in the backward class, it is open to any person to challenge
the same through judicial review. Therefore, it is incorrect to say that
the Union of India has been given wide powers to determine the
backward classes. The challenge of Act 5 of 2007 on that ground
fails.
11. Whether the Act is invalid as there is no time limit
prescribed for its operation and no periodical review is
contemplated?
187. The learned Counsel for the petitioners contended that
the reservation of 27% provided for the backward classes in the
educational institutions contemplated under the Act does not
prescribe any time limit and this is opposed to the principle of
equality. According to learned Counsel for the petitioners, this
affirmative action that is to bring about equality is calculated to
produce equality on a broader basis by eliminating de facto
inequalities and placing the weaker sections of the community on a
footing of equality with the stronger and more power section so that
each member of the community, whatever is his birth, occupation or
social position may enjoy equal opportunity of using to the full, his
natural endowments of physique, of character and of intelligence.
This compensatory state action can be continued only for a period till
that inequality is wiped off. Therefore, the petitioners have
contended that unless the period is prescribed, this affirmative action
will continue for an indefinite period and would ultimately result in
reverse discrimination. It is true that there is some force in the
contention advanced by the learned Counsel for the petitioners but
that may happen in future if the reservation policy as contemplated
under the Act is successfully implemented. But at the outset, it may
not be possible to fix a time limit or a period of time. Depending upon
the result of the measures and improvements that have taken place
in the status and educational advancement of the socially and
educationally backward classes of citizens, the matter could be
examined by the Parliament at a future time but that cannot be a
ground for striking down a legislation. After some period, if it so
happens that any section of the community gets an undue advantage
of the affirmative action, then such community can very well be
excluded from such affirmative action programme. The Parliament
can certainly review the situation and even though a specific class of
citizens is in the legislation, it is the constitutional duty of the
Parliament to review such affirmative action as and when the social
conditions are required. There is also the safeguard of judicial review
and the court can exercise its powers of judicial review and say that
the affirmative action has carried out its mission and is thus no longer
required. In the case of reservation of 27% for backward classes,
there could be a periodic review after a period of 10 years and the
Parliament could examine whether the reservation has worked for the
good of the country. Therefore, the legislation cannot be held to be
invalid on that ground but a review can be made after a period of 10
years.
12. What shall be the educational standard to be prescribed to
find out whether any class is educationally backward?
188. Learned Senior Counsel Shri P.P. Rao contended that
under Article 15(5) of the Constitution, the reservation or any other
affirmative action could be made for the advancement of only socially
and educationally backward classes of citizens or Scheduled Castes
or Scheduled Tribes and the educational standard to be assessed
shall be matriculation or 10+2 and not more than that. It was argued
that many castes included in the backward class list have got a fairly
good number of members who have passed 10+2 and thus such
castes are to be treated as educationally forward and the present
legislation, namely, Act 5 of 2007, is intended to give reservation to
students in higher institutions of learning and the same is not
permissible under Article 15(5) of the Constitution. He contended
that the Parliament should not have made this legislation for
reservation in the higher institutions of learning as it is not part of the
duty of the State under Article 46 of the Constitution. According to
the learned Counsel, education contemplated under Article 46 is only
giving education upto the standard of 10+2. The learned Counsel
argued that this was the desire of the Founding Fathers of the
Constitution. The learned Counsel contended further that the State is
not taking adequate steps to improve primary education.
189. In reply to Shri P.P. Rao’s arguments, learned Solicitor
General Shri G. E. Vahanvati drew our attention to various steps
taken by the Union Government to improve the primary school
education and also the upper primary school education. It is incorrect
to suggest that there have been no efforts on the part of successive
Governments to concentrate on level of education towards universal
elementary education. “Sarva Shiksha Abhiyaní” (SSA) had been
launched by the Government in 2001-2002. The major components
of SSA include opening of new schools, distribution of teaching
equipments, school grant for teachers and maintenance for schools,
community participation & training, carrying out civil works in school
buildings, additional class rooms, distribution of free text books for ST
students and girls. It was pointed out that in the year 2006-2007,
nearly Rs. 15,000 crores had been spent for such education. The
Integrated Child Development Services (ICDS) scheme was started
in 1975. Latest figures show that progress has been made in the
field of education. It is pointed out that the primary school coverage
has increased from 86.96% (2002) to 96% and that of Upper Primary
School has increased from 78.11% to 85.3% with the opening of 1.34
Lakh Primary Schools and 1.01 lakh Upper Primary Schools. The
gross enrolment has also increased at the primary as well as upper
primary stage. Drop out rate has fallen by 11.3%. It is also pointed
out that girls enrolment has increased from 43.7% (2001) to 46.7%
(2004) at primary and from 40.9% to 44% at upper primary stage.
The Union of India has granted funds to various states for the
purpose of meeting the education requirements. The entire details
were furnished to the Court and we do not think it necessary to go
into these details. Though at the time of attaining Independence, the
basic idea was to improve primary and secondary level education,
but now, after a period of more than 50 years, it is idle to contend that
the backward classes shall be determined on the basis of their
attaining education only to the level of 10+2 stage. In India there are
a large number of arts, science and professional colleges and in the
field of education, it is anachronistic to contend that primary
education or secondary education shall be the index for fixing
backward class of citizens. We find no force in the contention
advanced by the learned Counsel for the petitioners and it is only to
be rejected.
13. Whether the quantum of reservation provided for in the Act
is valid and whether 27% of seats for SEBC was required to be
reserved?
190. The main contention of the petitioner’s Counsel especially
that of Shri Sushil Kumar Jain is that the entire Act is liable to be set
aside as there was no necessity to provide any reservation to socially
and educationally backward classes and according to him most of the
castes included in the list which is prepared in accordance with the
Mandal Commission are educationally very much advanced and the
population of such group is not scientifically collected and the
population ratio of backward classes is projected only on the basis of
the 1931 census and the entire legislation is an attempt to please a
section of the society as part of a vote catching mechanism.
191. A legislation passed by the Parliament can be challenged
only on constitutionally recognized grounds. Ordinarily, grounds of
attack of a legislation is whether the legislature has legislative
competence or whether the legislation is ultra vires of the provisions
of the Constitution. If any of the provisions of the legislation violates
fundamental rights or any other provisions of the Constitution, it could
certainly be a valid ground to set aside the legislation by invoking the
power of judicial review. A legislation could also be challenged as
unreasonable if it violates the principles of equality adumbrated in our
Constitution or it unreasonably restricts the fundamental rights under
Article 19 of the Constitution. A legislation cannot be challenged
simply on the ground of unreasonableness because that by itself
does not constitute a ground. The validity of a constitutional
amendment and the validity of plenary legislation have to be decided
purely as questions of constitutional law. This Court in State of
Rajasthan & Ors. Vs. Union of India and Others
79
said :
“…if a question brought before the Court is purely a politically
question not involving determination of any legal or constitutional
79 (1977) 3 SCC 592 at p. 660
right or obligation, the court would not entertain it, since the Court is
concerned only with adjudication of legal rights and liabilities.”
192. Therefore, the plea of the Petitioner that the legislation
itself was intended to please a section of the community as part of
the vote catching mechanism is not a legally acceptable plea and it is
only to be rejected.
193. The quantum of reservation provided under the Act 5 of
2007 is based on the detailed facts available with the Parliament.
Various commissions have been in operation determining as to who
shall form the SEBCs. Though a caste-wise census is not available,
several other data and statistics are available. In the case of Indra
Sawhney (supra), the Mandal Commission was accepted in principle
though the details and findings of the commissions were not fully
accepted by this Court. 27% of reservation in the matter of
employment was accepted by this Court. Petitioners have not
produced any documents to show that the backward class citizens
are less than 27%, vis-à-vis, the total population of this country or
that there was no requirement of 27% reservation for them. The
Parliament is invested with the power of legislation and must be
deemed to have taken into consideration all relevant circumstances
when passing a legislation of this nature. It is futile to contend
whether Parliament was not aware of the statistical details of the
population of this country and, therefore, we do not think that 27%
reservation provided in the Act is illegal or on that account, the Act
itself is liable to be struck down.
Questions:
1.Whether the Ninety-Third Amendment of the Constitution
is against the “basic structure” of the Constitution?
The Constitution (Ninety-Third Amendment) Act, 2005 does not
violate the “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 are concerned, is left open to be decided in
an appropriate case. (Paragraph 79)
2.Whether Articles 15(4) and 15(5) are mutually
contradictory, hence Article 15(5) is to be held ultra vires ?
Article 15(5) is constitutionally valid and Articles 15(4) and 15(5) are
not mutually contradictory. (Paragraph 100)
3.Whether exclusion of minority educational institutions
from Article 15(5) is violative of Article 14 of Constitution?
Exclusion of minority educational institutions from Article 15(5) 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.
(Paragraph 102)
4.Whether the Constitutional Amendment followed the
procedure prescribed under Article 368 of the Constitution?
The Ninety-Third Amendment of the Constitution does not affect the
executive power of the State under Article 162 of the Constitution and
hence, procedure prescribed under Proviso to Article 368(2) is not
required to be followed.
(Paragraph 103)
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?
Identification of “backward class” is not done solely based
on caste. Other parameters are followed in identifying the backward
class. Therefore, Act 5 of 2007 is not invalid for this reason.
(Paragraph 142)
6.Whether “Creamy Layer” is to be excluded from SEBCs?
“Creamy Layer” is to be excluded from SEBCs. The identification of
SEBCs will not be complete and without the exclusion of “creamy
layer” such identification may not be valid under Article 15(1) of the
Constitution. (Paragraph 152)
7.What should be the para-meters for determining the
“creamy layer” group?
The parameters contained in the Office Memorandum issued by the
Government of India, Ministry of Personnel, Public Grievances and
Pensions (Department of Personnel and Training) on 08.09.1993
may be applied. And the definition of “Other Backward Classes”
under Section 2(g) of the Act 5 of 2007 should be deemed to mean
class or classes of citizens who are socially and educationally
backward, and so determined by the Central Government; and if the
determination is with reference to caste, then the backward class
shall be after excluding the creamy layer.
(Paragraphs 153 and 155)
8.Whether the “creamy layer” principle is applicable to
Scheduled Tribes and Scheduled Castes?
“Creamy Layer” principle is not applicable to Scheduled Castes and
Scheduled Tribes. (Paragraph 163)
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?
The principles laid down by the United States Supreme Court
such as “suspect legislation”, “strict scrutiny” and “compelling State
necessity” are not applicable for challenging the validity of Act 5 of
2007 or reservations or other affirmative action contemplated under
Article 15(5) of the Constitution.
(Paragraphs 184)
10.Whether delegation of power to the Union Government to
determine as to who shall be the backward class is
constitutionally valid?
The delegation of power to the Union Government to determine as to
who shall be the “other backward classes” is not excessive
delegation. Such delegation is constitutionally valid.
(Paragraph 186)
11.Whether the Act is invalid as there is no time limit
prescribed for its operation and no periodical review is
contemplated?
The Act 5 of 2007 is not invalid for the reason that there is no time
limit prescribed for its operation, but a review can be made after a
period of 10 years. (Paragraph 187)
12.What shall be the educational standard to be prescribed to
find out whether any class is educationally backward?
The contention that educational standard of matriculation or (10+2)
should be the benchmark to find out whether any class is
educationally backward is rejected. (Paragraph 189)
13.Whether the quantum of reservation provided for in the Act
is valid and whether 27% of seats for SEBC was required to be
reserved?
27% of seats for other backward classes is not illegal and the
Parliament must be deemed to have taken into consideration all
relevant circumstances when fixing the 27% reservation.
(Paragraph 193)
These Writ Petitions are disposed off in light of the above findings,
and the “Other Backward Classes” defined in Section 2(g) of Act 5 of
2007 is to be read as “Socially and Educationally Backward Classes”
other than Scheduled Castes and Scheduled Tribes, determined as
‘Other Backward Classes’ by the Central Government and if such
determination is with reference to caste, it shall exclude “Creamy
Layer” from among such caste. In Contempt Petition (Civil) No.
112/2007 in Writ Petition (C) No. 265/2006, no orders are required. It
is dismissed.
………………………………C.J.I.
(K.G. BALAKRISHNAN)
NEW DELHI;
APRIL 10, 2008
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 265 OF 2006
Ashoka Kumar Thakur ….Petitioner
Versus
Union of India and Ors. …Respondents
(With WP (C) Nos. 269/2006, 598/2006, 29/2007, 35/2007,
53/2007 Contempt Petition (C)No.112/2007 in WP ©
No.265/2006, 336/2007, 313/2007, 335/2007, 231/2007,
425/2007 and 428/2007)
J U D G M E N T
Dr. ARIJIT PASAYAT, J
1.The issues involved in the present writ petitions have far
reaching consequences and in essence pose several questions
of seminal importance. In essence, they raise questions which
have no easy answers. The complexity can be gauged from the
fact that on one hand the petitioners have questioned the logic
of providing reservations/quotas for a class of people whom
they described as “unidentifiable” or “undetermined” while the
respondents justify their action by labelling them as measures
taken for upliftment of vast majority of people who have
suffered social humiliation and sneer for the social
backwardness. Complex questions like whether the
expressions ‘class’ and ‘castes’ are synonyms, whether
reservations provide the only solution for social empowerment
measures, alleged lack of concern for the economically weaker
group of citizens are some of the basic issues which need to be
addressed. It has been emphatically highlighted by the
petitioners that when the ultimate objective is classless and
casteless in Indian democracy, there is no question of
unendingly providing the reservation and that too without any
definite data regarding backwardness. In essence, they
contend that these measures perpetuate backwardness and do
not remove them. On the epicenter of challenge is the Central
Educational Institutions (Reservation in Admission) Act 2006
(in short the ‘Act’) and the 93
rd
Amendment to the Constitution
of India, 1950 (in short the ‘Constitution’). Interestingly, both
the petitioners and the respondents rely strongly on certain
observations made by this Court in Indra Sawhney v. Union of
India 1992 (Suppl. 3) SCC 217 (commonly known as ‘Indra
Sawhney No.1’)
2.When the writ petitions were placed before a Bench of
two Judges, considering the importance of the matter they
were referred to be heard by a larger bench and certain
questions which arise for consideration were formulated. That
is how these cases are before this Bench.
3.Arguments have been advanced by both the sides as to
whether Constitution contemplates casteless society. While
the respondents submit that the Constitution really does not
think of a casteless society, it prohibits untouchability in the
background of Article 17. It has to be noted that both in
Articles 15 and 16 the stress is on non-discrimination on the
ground of castes. The Preamble of the Constitution also
throws light on this aspect. Ultimately if the social status of a
man goes in the higher direction because of his education, the
difference in status gets obliterated. Education is a great
levellor. In that sense, the ultimate object is that every Indian
citizen should have the social status which is not inferior to
another and that would be obliteration of the difference in
status. The ultimate objective is to see that no person gets
discriminated because of his caste. If that be so, it would not
be right to say that the ultimate objective is not the casteless
society.
4.Various Articles of the Constitution of India and the
Preamble provide an insight to the monumental document i.e.
the Constitution of India. Article 14 guarantees equality before
the law in addition to equal protection of law. Article 15(1)
mandates that there shall not be any discrimination against
any citizen on the grounds of religion, caste, sex, race, or place
of birth. Article 16(1) makes the fundamental right of equality
specific relating to job opportunities. Article 16(2) significantly
speaks of government employment by providing that no citizen
shall be ineligible only on the grounds of religion, race, caste,
sex, descent, place of birth or any of them or discriminated
against in respect of any employment or office under the State.
Article 16(4) is an important provision which empowers the
State permitting the provision for the reservation of
appointments and posts in favour of any backward class of
citizens which in the opinion of the State is not adequately
represented in the services of the State. The stress is on
backwardness of the citizens and inadequate representation in
the services under the State.
5.If one takes a walk on the pathway relating to the views
expressed by this Court in the matter of reservation or quotas
for the other backward classes one comes across many
milestones. Some of them were noted extensively in Indra
Sawhney No.1. They are: The State of Madras v. Sm.
Champakam Dorairajan & Anr. (AIR 1951 SC 226), Minor A
Peeriakaruppan v. Sobha Joseph (1971 (1) SCC 38), The State
of Andhra Pradesh and Ors. v. U.S.V. Balram, etc. (1972 (1)
SCC 660), Shri Janki Prasad Parimoo and Ors. v. State of
Jammu and Kashmir and Ors . (1973(1) SCC 420), State of
Uttar Pradesh and Ors. v. Pradip Tandon and Ors. (1975 (1)
SCC 267), State of Kerala and Anr. v. N.M. Thomas and Ors.
(1976(2) SCC 310), Kumari K.S. Jayashree and Anr. v. The
State of Kerala and Anr. (1976 (3) SCC 730), K.C. Vasanth
Kumar and Anr. v. State of Karnataka (1985 (Supp) SCC 714)
and Indra Sawhney v. Union of India and Ors. (2000 (1) SCC
168) (known as Indra Sawhney No.2).
6.Two recent decisions have also been highlighted by the
parties. They are M. Nagaraj and Ors. v. Union of India and
Ors. (2006 (8) SCC 212) and Nair Service Society v. State of
Kerala (2007 (4) SCC 1). It is to be noted that some of the
arguments which have been raised relate to broad principles
of law and the jurisprudential approach. They are the
applicability of the foreign decisions, more particularly, the
decisions of the American Courts. They relate to the principles
of strict scrutiny and narrow tailoring.
7.Learned counsel for the petitioners have stressed on
these decisions to show as to what should be the approach in
matters relating to social empowerment. Learned counsel for
the respondents have however submitted that the approach is
to be different because the problems before the American
Courts essentially related to individual rights while the Indian
Courts are more concerned with group rights i.e. rights of
class of citizens. We shall deal with this in some length later.
8.The other issue which was hotly contested related to the
exclusion of the creamy layer.
9.One of the major challenges raised by the petitioners is
based on the allegation that there is no acceptable data for
fixing the percentage of other backward classes. This has been
highlighted to show that there is no rational basis for fixing
the percentage of reservation at 27% for the other backward
classes. It is pointed out that the figures appear to have been
culled out from some survey done more than seven decades
back i.e. 1931 to be precise. Thereafter, there seems to be no
definite data to know the actual percentage. It is pointed out
that in Indra Sawhney No.1 (supra) this Court had laid
considerable stress on having a Commission to identify and
determine the criteria for determining the socially and
educationally backward classes. Very little appears to have
been done. It is surprising, it was contended, that there has
been not even a single case of exclusion but on the other hand
more than 250 new castes/sub-castes have been added. This
shows that there is really no serious attempt to identify the
other backward classes. On the other hand, there has been
over-jealous anxiety to include more number of people so that
they can get the benefits of reservations/quotas and this has
been termed as “vote bank politics”. It is highlighted that even
when a serious matter relating to adoption of the Act was
under consideration there was hardly any discussion and
every political party was exhibiting its anxiety to get the
Statute passed. Crocodile tears were shed to show lip
sympathy for the backwardness of the people. In reality, the
object was to give a wrong impression to the people that they
were concerned about the backwardness of the people and
they were the ‘Messiahs’ of the poor and the down trodden. In
reality, in their hearts the ultimate object was to grab more
votes. The lack of seriousness of the debate exhibits that the
debate was nothing but a red-herring to divert attention from
the sinister, politically motivated design masked by the
“tearful” faces of the people masquerading as champions of
the poor and down trodden. It is pointed out that contrary to
what was being projected by the parties when the discussions
were going on, in an impassioned speech by late Rajeev
Gandhi who was the leader of opposition at an earlier point of
time, the fallacies in adopting the Mandal Report were
highlighted. It is surprising, it is submitted, that those very
people who were the champions of anti-reservation and anti-
quota as members of opposition, have done summersault and
were saying just the opposite. It is pointed out that when one
member Shri P.C. Alexandar exhibited real courage and
highlighted the fallacies in the stand taken, his view appears
to have been lightly brushed aside and the Statute hustled
through. It is also submitted that the objectivity and sanctity
of the report submitted in the Parliament commonly known as
“Oversight Committee Report” has been lightly brushed aside.
This only indicates that there was no serious debate about the
consequences. The foresight of late Rajiv Gandhi in saying
that the country will be divided on caste basis and that would
lead to disaster has been prophetically proved to be correct
and it is a reality. It is submitted that the enactment has
created a sharp divide amongst the citizens of the country and
it has not even an iota of good results flowing from it. On the
contrary, the country will be divided sharply leading to social
unrest and caste-wars. It is pointed out that in the recent past
such caste wars have resulted in large scale loss of life and
destruction of public properties.
10.The relevance of the parliamentary debate or the speech
of the Minister has been highlighted by this Court in many
cases. It is a settled position in law that there can be only
limited use of the parliamentary debate. The Courts should
not normally critically analyse the proceedings of Parliament.
This flows from a very fundamental aspect i.e. mutual respect
of the Parliament and the Judiciary for each other. Each of
these great institutions in a democracy operates in different
fields. It is not expected that one wing of democracy would
criticize the manner of functioning of another wing. That
would be against the basic desirability of mutual respect. Any
opinion or comment or criticism about the manner of
functioning of one by the other would be not only undesirable
but imperatively avoidable. The citizens of this country expect
a great deal from the Parliament and the Judiciary. It is but
natural that the people of this country would be disappointed
and dis-heartened and their hopes will be shattered if instead
of showing respect for each other, there is mudslinging,
unwanted criticism or impermissible criticism about the
manner of functioning or the rationale of a decision or a view
taken. In this context, it would be relevant to take note of what
this Court said in Builders Association of India v. Union of
India and Ors. (1995 Supp (1) SCC 41), and K. Nagaraj and
Ors. v. State of Andhra Pradesh and Anr. (1985 (1) SCC 523).
In State of Mysore v. R.V. Bidap (1974 (3) SCC 337), it was
observed as follows:
“5. Anglo-American jurisprudence, unlike other systems, has
generally frowned upon the use of parliamentary debates and
press discussions as throwing light upon the meaning of
statutory provisions. Willes, J. in Miller v. Tayler, [1769] 4
Burri, 2303, 2332., stated that the sense and meaning of an
Act of Parliament must be collected from what it says when
passed into law, and not from the history of changes it
underwent in the House where it took its rise. That history is
not known to the other House or to the Sovereign. In Assam
Railways and Trading Company Ltd. v. I.R.C., [1935] A.C. 445
at p. 458, Lord Writ in the Privy Council said :
“It is clear that the language of a Minister of the Crown in
proposing in Parliament a measure which eventually becomes
law is inadmissible and the report of commissioners is even
more removed from value as evidence of intention, because it
does not follow that their recommendations were accepted.”
The rule of grammatical construction has been accepted in
India before and after Independence. In the State of
Travancore-Cochin and Ors. v. Bombay Company Ltd.,
Alleppey, (AIR 1952 S.C. 366), Chief Justice Patanjali Sastri
delivering the judgment of the Court, said :-
“It remains only to point out that the use made by the learned
Judges below of the speeches made by the members of the
Constituent Assembly in the course of the debates on the draft
Constitution is unwarranted. That this form of extrinsic aid to
the interpretation of statutes is not admissible has been
generally accepted in England, and the same rule has been
observed in the construction of Indian statutes-see
Administrator-General of Bengal v. Prem Lal Mullick, 22 Ind.
Appl. 107 (P.C.) at p. 118. The reason behind the rule was
explained by one of us in Gopalan v. State of Madras, (1950)
S.C.R. 88 thus :
A speech made in the course of the debate on a bill could at
best be indicative of the subjective intent of the speaker, but it
could not reflect the inarticulate mental process lying behind
the majority vote which carried the bill. Nor is it reasonable to
assume that the minds of all those legislators were in accord".
Or, as it is more tersely put in an American case-
“Those who did not speak may not have agreed with those who
did; and those who spoke might differ from each other-United
States v. Trans-Missouri Freight Association, (1897) 169 U.S.
290 at p. 318 (sic).
This rule of exclusion has not always been adhered to in
America, and sometimes distinction is made between using
such material to ascertain the purpose of a statute and using
it for ascertaining its meaning. It would seem that the rule is
adopted in Canada and Australia-see Craies on Statute Law,
5th Edn. p. 122 (pp. 368-9)".
11.In the American jurisdiction, a more natural note has
sometimes been struck. Mr. Justice Frankfurter was of the
view that-
“If the purpose of construction is the ascertainment of
meaning, nothing that is logically relevant should be excluded,
and yet, the Rule of Exclusion, which is generally followed in
England, insists that, in interpreting statutes, the proceedings
in the Legislatures, including speeches delivered when the
statute was discussed and adopted, cannot be cited in courts.”
12.Crawford on Statutory Construction at page 388 notes
that-
“The judicial opinion on this point is certainly not quite
uniform and there are American decisions to the effect that
the general history of a statute and the various steps leading
up to an enactment including amendments or modifications of
the original bill and reports of Legislative Committees can be
looked at for ascertaining the intention of the legislature where
it is in doubt; but they hold definitely that the legislative
history is inadmissible when there is no obscurity in the
meaning of the statute.”
The Rule of Exclusion has been criticised by jurists as
artificial. The trend of academic opinion and the practice in
the European system suggest that interpretation of a statute
being an exercise in the ascertainment of meaning, everything
which is logically relevant should be admissible. Recently, an
eminent Indian jurist has reviewed the legal position and
expressed his agreement with Julius Stone and Justice
Frankfurter. Of course, nobody suggests that such extrinsic
materials should be decisive but they must be admissible.
Authorship and interpretation must mutually illumine and
interact. There is authority for the proposition that resort may
be had to these sources with great caution and only when
incongruities and ambiguities are to be resolved. A.K. Gopalan
v. State of Madras (1950 SCR 88). There is a strong case for
whittling down the Rule of Exclusion followed in the British
courts and for less apologetic reference to legislative
proceedings and like materials to read the meaning of the
words of a statute. Where it is plain, the language prevails, but
where there is obscurity or lack of harmony with other
provisions and in other special circumstances, it may be
legitimate to take external assistance such as the object of the
provisions, the mischief sought to be remedied, the social
context, the words of the authors and other allied matters. The
law of statutory construction is a strategic branch of
jurisprudence which must, it may be felt, respond to the great
social changes but a conclusive pronouncement on the
particular point arising here need not detain us because
nothing decisive as between the alternative interpretations
flows from a reliance on the Constituent Assembly proceedings
or the broad purposes of the statutory scheme.
13.One thing however needs to be noted here that mere
short length of debate cannot and does not become a ground
for invalidity of the decision and the reverse is also not true.
14.Elaborate arguments have been advanced about the
applicability of the foreign decisions, more particularly, the
American Courts. It is to be noted that the American cases
which have been highlighted by the petitioners relate
essentially to strict classification, strict scrutiny and narrow
tailoring. This issue is of considerable importance when so
much debate is taking place about respect being shown by
courts of a country to a decision of another country. The
factual scenario and the basic issues involved in the cases
sometimes throw light on the controversy. It has been rightly
contended by Mr. Vahanvati and Mr. Gopal Subramanium
that there is a conceptual difference between the cases
decided by the American Supreme Court and the cases at
hand. In Saurabh Chaudri and Ors. v. Union of India and Ors.
(2003 (11) SCC 146) it was held that the logic of strict
classification and strict scrutiny does not have much
relevance in the cases of the nature at hand. If one looks at
the different Statutes in India, Article 14 of the Constitution is
conceptually different from 14
th
Amendment to the American
Constitution as was noted in State of West Bengal vs. Anwar
Ali Sarkar (1952 SCR 284) and State of Bombay and Anr. v.
F.N. Balsara (1952 SCR 682). In Anwar Ali’s case (supra) at
pages 363 and 364 it was noted as follows:
“I find it impossible to read these portions of the Constitution
without regard to the background out of which they arose. I
cannot blot out their history and omit from consideration the
brooding spirit of the times. They are not just dull, lifeless
words static and hide- bound as in some mummified
manuscript, but, living flames intended to give life to a great
nation and order its being, tongues of dynamic fire, potent to
mould the future as well as guide the present. The
Constitution must, in my judgment, be left elastic enough to
meet from time to time the altering conditions of a changing
world with its shifting emphasis and differing needs. I feel
therefore that in each case judges must look straight into the
heart of things and regard the facts of each case concretely
much as a jury would do; and yet, not quite as a jury, for we
are considering here a matter of law and not just one of fact;
Do these "laws" which have been called in question offend a
still greater law before which even they must bow?
99. Doing that, what is the history of these provisions? They
arose out of the fight for freedom in this land and are but the
endeavour to compress into a few pregnant phrases some of
the main attributes of a sovereign democratic republic as seen
through Indian eyes. There was present to the collective mind
of the Constituent Assembly, reflecting the mood of the
peoples of India, the memory of grim trials by hastily
constituted tribunals with novel forms of procedure set forth
in Ordinances promulgated in haste because of what was then
felt to be the urgent necessities of the moment. Without
casting the slightest reflection of the judges and the Courts so
constituted, the fact remains that when these tribunals were
declared invalid and the same persons were retired in the
ordinary Courts, many were acquitted, many who had been
sentenced to death were absolved. That was not the fault of
the judges but of the imperfect tools with which they were
compelled to work. The whole proceedings were repugnant to
the peoples of this land, and to my mind, article 14 is but a
reflex of this mood.
100. What I am concerned to see is not whether there is
absolute equality in any academical sense of the term but
whether the collective conscience of a sovereign democratic
republic can regard the impugned law, contrasted with the
ordinary law of the land, as the sort of substantially equal
treatment which men of resolute minds and unbiased views
can regard as right and proper in a democracy of the kind we
have proclaimed ourselves to be. Such views must take into
consideration the practical necessities of government, the right
to alter the laws and many other facts, but in the forefront
must remain the freedom of the individual from unjust and
unequal treatment, unequal in the broad sense in which a
democracy would view it. In my opinion, 'law' as used in
Article 14 does not mean the "legal precepts which are actually
recognised and applied in tribunals of a given time and place"
but "the more general body of doctrine and tradition from
which those precepts are chiefly drawn, and by which we
criticise, them."
15.It needs no emphasis that the formal equality concept
came to be recognized in U.S.A. after about 10 years of its
inception. In the first phase of the U.S.A. Constitutional Law
there was only affirmative action but in the Indian
Constitution right from the beginning affirmative action has
been provided, for example, provisions made for Scheduled
Castes and Schedules Tribes. A distinction has been noted in
para 640 of Indra Sawhney No.1. Articles 38(1) and 38(2)
read with Article 46 of the Constitution make the position
clear that the State is charged with the duty to secure
interests of the weaker sections of the people and minimize the
inequalities in income. The Constitution from its inception
contained Article 17 which abolishes untouchability.
16.In this context the following paras need to be noted.
17.In Minerva Mills Ltd. and Ors. v. Union of India and Ors.
(1980) 3 SCC 625) in para 63 it was held as follows:
“63.The learned Attorney General argues that the State is
under an obligation to take steps for promoting the welfare of
the people by bringing about a social order in which social,
economic and political justice shall inform all the institutions
of the national life. He says that the deprivation of some of the
fundamental rights for the purpose of achieving this goal
cannot possibly amount to a destruction of the basic structure
of the Constitution. We are unable to accept this contention.
The principles enunciated in Part IV are not the proclaimed
monopoly of democracies alone. They are common to all
polities, democratic or authoritarian. Every State is goal-
oriented and claims to strive for securing the welfare of its
people. The distinction between the different forms of
Government consists in that a real democracy will endeavour
to achieve its objectives through the discipline of fundamental
freedoms like those conferred by Articles14 and 19. Those are
the most elementary freedoms without which a free democracy
is impossible and which must therefore be preserved at all
costs. Besides, as observed by Brandies, J., the need to
protect liberty is the greatest when Government's purposes are
beneficent. If the discipline of Article 14 is withdrawn and if
immunity from the operation of that article is conferred, not
only on laws passed by the Parliament but on laws passed by
the State Legislatures also, the political pressures exercised by
numerically large groups can tear the country asunder by
leaving it to the legislature to pick and choose favoured areas
and favourite classes for preferential treatment.”
18.In His Holiness Kesavananda Bharati Sripadagalvaru v.
State of Kerala and Anr. (1973 (4) SCC 225) it was held as
under:
“531. According to Mr. Palkhivala, the test of the true width of
a power is not how probable it is that it may be exercised but
what can possibly be done under it; that the abuse or misuse
of power is entirely irrelevant; that the question of the extent
of the power cannot be mixed up with the question of its
exercise and that when the real question is as to the width of
the power, expectation that it will never be used is as wholly
irrelevant as an imminent danger of its use. The court does
not decide what is the best and what is the worst. It merely
decides what can possibly be done under a power if the words
conferring it are so construed as to have an unbounded and
limitless width, as claimed on behalf of the respondents.
532. It is difficult to accede to the submission on behalf of the
respondents that while considering the consequences with
reference to the width of an amending power contained in a
Constitution any question of its abuse is involved. It is not for
the courts to enter into the wisdom or policy of a particular
provision in a Constitution or a statute. That is for the
Constitution makers or for the parliament or the legislature.
But that the real consequences can be taken into account
while judging the width of the power is well settled. The Court
cannot ignore the consequences to which a particular
construction can lead while ascertaining the limits of the
provisions granting the power. According to the learned
Attorney General, the declaration in the preamble to our
Constitution about the resolve of the people of India to
constitute it into a Sovereign, Democratic Republic is only a
declaration of an intention which was made in 1947 and it is
open to the amending body now under Article 368 to change
the Sovereign Democratics Republic into some other kind of
polity. This by itself shows the consequence of accepting the
construction sought to be put on the material words in that
article for finding out the ambit and width of the power
conferred by it.”
19.In Sajan Singh v. Maharashtra Sugar Mills Ltd. (AIR
1965 SC 845) it was held as follows:
“6.It is obvious that the fundamental rights enshrined in
Part III are not included in the proviso, and so, if Parliament
intends to amend any of the provisions contained in Articles
12 to 35 which are included in Part III, it is not necessary to
take recourse to the proviso and to satisfy the additional
requirements prescribed by it. Thus far, there is no difficulty.
But in considering the scope of Art. 368, it is necessary to
remember that Art. 226, which is included in Chapter V of
Part VI of the Constitution, is one of the constitutional
provisions which fall under clause (b) of the proviso; and so, it
is clear that if Parliament intends to amend the provisions of
Art. 226, the bill proposing to make such an amendment must
satisfy the requirements of the proviso. The question which
calls for our decision is : what would be the requirement about
making an amendment in a constitutional provision contained
in Part III, if as a result of the said amendment, the powers
conferred on the High Courts under Art. 226 are likely to be
affected? The petitioners contend that since it appears that the
powers prescribed by Art. 226 are likely to be affected by the
intended amendment of the provisions contained in Part III,
the bill introduced for the purpose of making such an
amendment, must attract the proviso, and as the impugned
Act has admittedly not gone through the procedure prescribed
by the proviso, it is invalid; and that raises the question about
the construction of the provisions contained in Art. 368 and
the relation between the substantive part of Art. 368 with its
proviso.
8. On the other hand, if the substantive part of Art. 368 is
very liberally and generously construed and it is held that
even substantial modification of the fundamental rights which
may make a very serious and substantial inroad on the
powers of the High Courts under Art. 226 can be made
without invoking the proviso, it may deprive clause (b) of the
proviso of its substance. In other words, in construing both
the parts of Art. 368, the rule of harmonious construction
requires that if the direct effect of the amendment of
fundamental rights is to make a substantial inroad on the
High Courts' powers under Art. 226, it would become
necessary to consider whether the proviso would cover such a
case or not. If the effect of the amendment made in the
fundamental rights on the powers of the High Courts
prescribed by Art. 226, is indirect, incidental, or is otherwise
of an insignificant order, it may be that the proviso will not
apply. The proviso would apply where the amendment in
question seeks to make any change, inter alia, in Art. 226, and
the question in such a case would be : does the amendment
seek to make a change in the provisions of Art. 226? The
answer to this question would depend upon the effect of the
amendment made in the fundamental rights.
9.In dealing with constitutional questions of this character,
courts generally adopt a test which is described as the pith
and substance test. In Attorney-General for Ontario v.
Reciprocal Insurers ([1924] A.C. 328), the Privy Council was
called upon to consider the validity of the Reciprocal
Insurance Act, 1922 (12 & 13 Geo. 5, Ont., c. 62) and s. 508c
which had been added to the Criminal Code of Canada by ss.
7 & 8 Geo. 5, c. 29 Dom. Mr. Justice Duff, who spoke for the
Privy Council, observed that in an enquiry like the one with
which the Privy Council was concerned in that case, "it has
been formally laid down in judgments of this Board, that in
such an inquiry the Courts must ascertain the 'true nature
and character' of the enactment : Citizens' Insurance Co. of
Canada v. Parsons ([1881] 7 AC 96); its 'pith and substance' :
Union Colliery Co. of British Columbia Ltd. v. Bryden ([1899]
A.C. 580); and it is the result of this investigation, not the
form alone, which the statute may have assumed under the
hand of the draughtsman, that will determine within which of
the categories of subject matters mentioned in ss. 91 and 92
the legislation falls; and for this purpose the legislation must
be 'scrutinised in its entirety' : "Great West Saddlery Co. v. The
King" ([1921] 2 A.C. 91,117). It is not necessary to multiply
authorities in support of the proposition that in considering
the constitutional validity of the impugned Act, it would be
relevant to inquire what the pith and substance of the
impugned Act is. This legal position can be taken to be
established by the decisions of this Court which have
consistently adopted the view expressed by Justice Duff, to
which we have just referred.
14. Thus, it would be seen that the genesis of the
amendments made by Parliament in 1951 by adding Articles
31A and 31B to the Constitution, clearly is to assist the State
Legislatures in this country to give effect to the economic
policy in which the party in power passionately believes to
bring about much needed agrarian reform. It is with the same
object that the second amendment was made by Parliament in
1955, and as we have just indicated, the object underlying the
amendment made by the impugned Act is also the same.
Parliament desires that agrarian reform in a broad and
comprehensive sense must be introduced in the interests of a
very large section of Indian citizens who live in villages and
whose financial prospects are integrally connected with the
pursuit of progressive agrarian policy. Thus, if the pith and
substance test is applied to the amendment made by the
impugned Act, it would be clear that Parliament is seeking to
amend fundamental rights solely with the object of removing
any possible obstacle in the fulfilment of the socio-economic
policy in which the party in power believes. If that be so, the
effect of the amendment on the area over which the High
Courts' powers prescribed by Art. 226 operate, is incidental
and in the present case can be described as of an insignificant
order. The impugned Act does not purport to change the
provisions of Art. 226 and it cannot be said even to have that
effect directly or in any appreciable measure. That is why we
think that the argument that the impugned Act falls under the
proviso, cannot be sustained. It is an Act the object of which is
to amend the relevant Articles in Part III which confer
fundamental rights on citizens and as such it falls under the
substantive part of Art. 368 and does not attract the
provisions of clause (b) of the proviso. If the effect of the
amendment made in the fundamental rights on Art. 226 is
direct and not incidental and is of a very significant order,
different considerations may perhaps arise. But in the present
case, there is no occasion to entertain or weigh the said
considerations. Therefore the main contention raised by the
petitioners and the interveners against the validity of the
impugned Act must be rejected.”
20.In Kihoto Hollohan v. Zachillhu and Ors. (1992 Supp. (2)
SCC 651) it was observed as follows:
“61. The propositions that fell for consideration in Sankari
Prasad Singh's and Sajjan Singh'scases are indeed
different. There the jurisdiction and power of the Courts
under Articles 136 and 226 were not sought to be takenaway
nor was there any change brought about in those provisions
either "in terms or in effect", since the very rights which could
be adjudicated under and enforced by the Courtswere
themselves taken away by the Constitution. The result was
that there was no area for the jurisdiction of the Courts to
operate upon. Matters are entirely different in the context of
paragraph 7. Indeed the aforesaid cases, by necessary
implication support the point urged for the petitioners. The
changes in Chapter IV of Part V and Chapter V of Part VI
envisaged by the proviso need not be direct.The change
could be either "in terms of or in effect". It is not necessary
to change the language of Articles 136 and 226 of the
Constitution to attract the proviso. If in effect these Articles
are rendered ineffective and madeinapplicable where these
articles could otherwise have been invoked or would,but
for Paragraph 7, have operated there is `in effect' a change
in those provisions attracting the proviso. Indeedthis
position was recognised in Sajjan Singh'scase (supra) where it
was observed:
"If the effect of the amendment made in the
fundamental rights on Article 226 is direct and not incidental
and is of a very significant order, different considerations
may perhaps arise."
62. In the present cases, though the amendment does
not bring in any change directly in the language of Article 136,
226 and 227of the Constitution,however, in effect
paragraph 7 curtailsthe operation of those Articles
respecting matters falling under the Tenth Schedule. There is
a change in the effect in Article 136, 226 and 227 within the
meaning of clause (b) of the proviso to Article 368(2).
Paragraph 7, therefore, attracts the proviso and
ratification was necessary. Accordingly, on Point B, we hold:
"That having regard to the background and evolution of
the principles underlying the Constitution (52
nd
Amendment)
Act, 1985, in so far as it seeks to introduce the Tenth
Schedule in the Constitution of India, the provisions of
Paragraph 7 of the Tenth Schedule of the constitution in
terms and in effect bring abouta change in the operation and
effect to Articles 136, 226 and 227 of the Constitution of
India and, therefore, the amendment would require
to be ratified in accordance with the proviso to sub-Article (2)
of Article 368 of the Constitution of India.”
21.In Shri Sarwan Singh and Anr. v. Shri Kasturi Lal (1977
(1) SCC 750) it was observed as follows:
“20. Speaking generally, the object and purpose of a legislation
assume greater relevance if the language of the law is obscure
and ambiguous. But, it must be stated that we have referred
to the object of the provisions newly introduced into the Delhi
Rent Act in 1975 not for seeking light from it for resolving in
ambiguity, for there is none, but for a different purpose
altogether. When two or more laws operate in the same field
and each contains a non obstante clause stating that its
provisions will override those of any other law, stimulating and
incisive problems of interpretation arise. Since statutory
interpretation has no conventional protocol, cases of such
conflict have to be decided in reference to the object and
purpose of the laws under consideration. A piquant situation,
like the one before us, arose in Shri Ram Narain v. Simla
Banking & Industrial Co. Ltd. competing statutes being the
Banking Companies Act, 1949 as amended by Act 52 of 1953,
and the Displaced Persons (Debts Adjustment) Act, 1951.
Section 45A of the Banking Companies Act, which was
introduced by the amending Act of 1953, and Section 3 of the
Displaced Persons Act 1951 contained such a non obstante
clause, providing that certain provisions would have effect
"notwithstanding anything inconsistent therewith contained in
any other law for the time being in force”. This Court resolved
the conflict by considering the object and purpose of the two
laws and giving precedence to the Banking Companies Act by
observing : "It is, therefore, desirable to determine the
overriding effect of one or the other of the relevant provisions
in these two Acts, in a given case, on much broader
considerations of the purpose and policy underlying the two
Acts and the clear intendment conveyed by the language of the
relevant provisions therein." (p. 615) As indicated by us, the
special and specific purpose which motivated the enactment of
Section 14A and Chapter IIIA of the Delhi Rent Act would be
wholly frustrated if the provisions of the Slum Clearance Act
requiring permission of the competent authority were to
prevail over them. Therefore, the newly introduced provisions
of the Delhi Rent Act must hold the field and be given full
effect despite anything to the contrary contained in the Slum
Clearance Act.
21. For resolving such inter se conflicts, one other test may
also be applied though the persuasive force of such a test is
but one of the factors which combine to give a, fair meaning to
the language of the law. That test is that the later enactment
must prevail over the earlier one. Section 14A and Chapter IIIA
having been enacted with effect from December 1, 1975 are
later enactments in reference to Section 19 of the Slum
Clearance Act which, in Its present form, was placed on the
statute book with effect from February 28, 1965 and in
reference to Section 39 of the same Act, which came into force
in 1956 when the Act itself was passed. The legislature gave
overriding effect to Section 14A and Chapter IIIA with the
knowledge that Sections 19 and 39 of the Slum Clearance Act
contained non obstante clauses of equal efficacy. Therefore the
later enactment must prevail over the former. The same test
was mentioned with approval by this Court in Shri Ram
Narain's case at page 615.
23. The argument of implied repeal has also no substance in it
because our reason for according priority to the provisions of
the Delhi Rent Act is not that the Slum Clearance Act stands
impliedly repealed protanto. Bearing in mind the language of
the two laws, their object and purpose, and the fact that one of
them is later in point of time and was enacted with the
knowledge of the non obstante clauses in the earlier law, we
have come to the conclusion that the provisions of Section 14A
and Chapter IIIA of the Rent Control Act must prevail over
those contained in Sections 19 and 39 of the Slum Clearance
Act.
22.In J.K. Cotton Spinning and weaving co. Ltd. v. State of
U.P. and Anr. (1961 (3) SCR 185) it was observed as under:
“There will be complete harmony however if we hold instead
that clause 5(a) will apply in all other cases of proposed
dismissal or discharge except where an inquiry is pending
within the meaning of clause 23. We reach the same result by
applying another well known rule of construction that general
provisions yield to special provisions. The learned Attorney-
General seemed to suggest that while this rule of construction
is applicable to resolve the conflict between the general
provision in one Act and the special provision in another Act,
the rule cannot apply in resolving a conflict between general
and special provisions in the same legislative instrument. This
suggestion does not find support in either principle or
authority. The rule that general provisions should yield to
specific provisions is not an arbitrary principle made by
lawyers and judges but springs from the common
understanding of men and women that when the same person
gives two directions one covering a large number of matters in
general and another to only some of them his intention is that
these latter directions should prevail as regards these while as
regards all the rest the earlier direction should have effect. In
Pretty v. Solly [(1859-53 ER 1032) (quoted in Craies on Statute
Law at p. 205, 5th Edition) Romilly, M. R. mentioned the rule
thus :-
"The rule is, that whenever there is a particular enactment
and a general enactment in the same statute and the latter,
taken in its most comprehensive sense, would overrule the
former, the particular enactment must be operative, and the
general enactment must be taken to affect only the other parts
of the statute to which it may properly apply". The rule has
been applied as between different provisions of the same
statute in numerous cases some of which only need be
mentioned : De Winton v. Brecon [(1858) 28 L.J. Ch. 598],
Churchill v. Crease [(1828) 5 Bing. 177], United States v.
Chase [(1889) 135 U.S. 255] and Carroll v. Greenwich Ins. Co.
[(1905) 199 U.S. 401].”
23.In R.M.D. Chamarbaugwalla v. UOI (1957 SCR 930) it
was held as under:
“The question whether a statute which is void in part is to be
treated as void in toto, or whether it is capable of enforcement
as to that part which is valid is one which can arise only with
reference to laws enacted by bodies which do not possess
unlimited powers of legislation, as, for example, the
legislatures in a Federal Union. The limitation on their powers
may be of two kinds: It may be with reference to the subject-
matter on which they could legislate, as, for example, the
topics enumerated in the Lists in the Seventh Schedule in the
Indian Constitution, ss. 91 and 92 of the Canadian
Constitution, and s. 51 of the Australian Constitution; or it
may be with reference to the character of the legislation which
they could enact in respect of subjects assigned to them, as
for example, in relation to the fundamental rights guaranteed
in Part III of the Constitution and similar constitutionally
protected rights in the American and other Constitutions.
When a legislature whose authority is subject to limitations
aforesaid enacts a law which is wholly in excess of its powers,
it is entirely void and must be completely ignored. But where
the legislation falls in part within the area allotted to it and in
part outside it, it is undoubtedly void as to the latter; but does
it on that account become necessarily void in its entirety? The
answer to this question must depend on whether what is valid
could be separated from what is invalid, and that is a question
which has to be decided by the court on a consideration of the
provisions of the Act. This is a principle well established in
American Jurisprudence, Vide Cooley's Constitutional
Limitations, Vol. I, Chap. VII, Crawford on Statutory
Construction, Chap. 16 and Sutherland on Statutory
Construction, 3rd Edn, Vol. 2, Chap. 24. It has also been
applied by the Privy Council in deciding on the validity of laws
enacted by the legislatures of Australia and Canada, Vide
Attorney-General for the Commonwealth of Australia v.
Colonial Sugar Refining Company Limited [[1914] A.C. 237]
and Attorney-General for Alberta v. Attorney-General for
Canada [L.R. [1947] A.C. 503]. It was approved by the Federal
Court in In re Hindu Women's Rights to Property Act [[1941]
F.C.R. 12] and adopted by this Court in The State of Bombay
and another v. F. N. Balsara [[1951] S.C.R. 682] and The State
of Bombay v. The United Motors (India) Ltd., and others
[[1953] S.C.R. 1069]. These decisions are relied on by Mr.
Seervai as being decisive in his favour. Mr. Palkhiwala
disputes this position, and maintains that on the decision of
the Privy Council in Punjab Province v. Daulat Singh and
others [[1946] F.C.R. 1] and of the decisions of this Court in
Romesh Thappar v. State of Madras [[1950] S.C.R. 594] and
Chintaman Rao v. State of Madhya Pradesh [[1950] S.C.R.
759], the question must be answered in this favour. We must
now examine the precise scope of these decisions.
The resulting position may thus be stated : When a statute is
in part void, it will be enforced as regards the rest, if that is
severable from what is invalid. It is immaterial for the purpose
of this rule whether the invalidity of the statute arises by
reason of its subject-matter being outside the competence of
the legislature or by reason of its provisions contravening
constitutional prohibitions.
That being the position in law, it is now necessary to consider
whether the impugned provisions are severable in their
application to competitions of a gambling character, assuming
of course that the definition of 'prize competition' in s. 2(d) is
wide enough to include also competitions involving skill to a
substantial degree. It will be useful for the determination of
this question to refer to certain rules of construction laid down
by the American Courts, where the question of severability has
been the subject of consideration in numerous authorities.
They may be summarised as follows :
1. In determining whether the valid parts of a statute are
separable from the invalid parts thereof, it is the intention of
the legislature that is the determining factor. The test to be
applied is whether the legislature would have enacted the valid
part if it had known that the rest of the statute was invalid.
Vide Corpus Juris Secundum, Vol. 82, p. 156; Sutherland on
Statutory Construction, Vol. 2, pp. 176-177.
2. If the valid and invalid provisions are so inextricably mixed
up that they cannot be separated from one another, then the
invalidity of a portion must result in the invalidity of the Act in
its entirety. On the other hand, if they are so distinct and
separate that after striking out what is invalid, what remains
is in itself a complete code independent of the rest, then it will
be upheld notwithstanding that the rest has become
unenforceable. Vide Cooley's Constitutional Limitations, Vol. 1
at pp. 360-361; Crawford on Statutory Construction, pp. 217-
218.
3. Even when the provisions which are valid are distinct and
separate from those which are invalid, if they all form part of a
single scheme which is intended to be operative as a whole,
then also the invalidity of a part will result in the failure of the
whole. Vide Crawford on Statutory Construction, pp. 218-219.
4. Likewise, when the valid and invalid parts of a statute are
independent and do not form part of a scheme but what is left
after omitting the invalid portion is so thin and truncated as to
be in substance different from what it was when it emerged
out of the legislature, then also it will be rejected in its
entirety.
5. The separability of the valid and invalid provisions of a
statute does not depend on whether the law is enacted in the
same section or different sections; (Vide Cooley's
Constitutional Limitations, Vol. 1, pp. 361-362); it is not the
form, but the substance of the matter that is material, and
that has to be ascertained on an examination of the Act as a
whole and of the setting of the relevant provisions therein.
6. If after the invalid portion is expunged from the statute
what remains cannot be enforced without making alterations
and modifications therein, then the whole of it must be struck
down as void, as otherwise it will amount to judicial
legislation. Vide Sutherland on Statutory Construction, Vol. 2,
p. 194.
7. In determining the legislative intent on the question of
separability, it will be legitimate to take into account the
history of the legislation, its object, the title and the preamble
to it. Vide Sutherland on Statutory Construction, Vol. 2, pp.
177-178.”
24.In AIIMS Students Union v. AIIMS (2002 (1) SCC 428) in
para 35 it was observed as follows:
“35. The principle of institutional continuity while seeking
admission to higher levels of study as propounded by the
learned counsel for the appellants though argued at length
does not have much room available for innovative judicial zeal
to play, for the ground already stands almost occupied by a
set of precedents, more so when we are dealing with
professional or technical courses of study. It would suffice to
have a brief resume thereof noticing the details wherever
necessary”.
It was again highlighted in para 44 as follows:
“44. When protective discrimination for promotion of
equalisation is pleaded, the burden is one the party who seeks
to justify the ex facie deviation from equality. The basic rule is
equality of opportunity for every person in the country, which
is a constitutional guarantee. A candidate who gets more
marks than another is entitled to preference for admission.
Merit must be the test when choosing the best, according to
this rule of equal chance for equal marks. This proposition has
greater importance when we reach the higher levels and
education like post-graduate courses. Reservation, as an
exception, may be justified subject to discharging the burden
of proving justification in favour of the class which must be
educationally handicapped-the reservation geared up to
getting over the handicap. The rationale of reservation in the
case of medical students must be removal of regional or class
inadequacy or like disadvantage. Even there the quantum of
reservation should not be excessive or societally injurious. The
higher the level of the speciality the lesser the role of
reservation.”
25.A bare reading of the provision goes to show that the
burden is on the person who justifies deviation from equality.
26.Even then, this doctrine was upheld by the Supreme
Court of U.S.A. in Plessy v. Ferguson (163 U.S. 537(1896).
This case involved a challenge to a Louisiana statute that
provided for equal but separate accommodations for black and
white passengers in trains. The Court rejected the challenge.
Justice Brown famously observed:
If one race be inferior to the other socially, the
constitution of the United States cannot put them upon the
same plane. (163 U.S. at 552)
27.He held that racial segregation was a reasonable exercise
of State police power for the promotion of the public good and
upheld the law.
28.Thus, even in this second phase, affirmative action was
never truly initiated – the country was still struggling to
establish even a formally equal society.
29.At the same time, another very important development in
its constitutional law was taking place, which would later have
a serious impact on affirmative action programmes. This was
the birth of the doctrine of strict scrutiny.
30.‘Strict scrutiny’ is one of the three standards for judicial
review of legislative and administrative action developed in the
United States, the other being “rational basis” and
“intermediate scrutiny”.
31.The origin of this standard can be traced to the decision
in United States v Carolene Products (304 U.S. 144 (1938).
The question before the Court was whether the Filled Milk Act,
1923 which prohibited the shipment in interstate commerce of
skimmed milk compounded with any fat or oil other than milk
fat, so as to resemble milk or cream, transcended the power of
Congress to regulate inter state commerce or infringed the
Fifth Amendment. Justice Harlan Stone, writing the opinion
for the Court, upheld the law, holding that the existence of
facts supporting the legislative judgment was to be presumed,
for regulatory legislation affecting ordinary commercial
transactions was not to be pronounced unconstitutional
unless in the light of the facts made known or generally
assumed it was of such a character as to preclude the
assumption that it rested upon some rational basis within the
knowledge and experience of the legislators. However, he
added what has been described as “the most celebrated
footnote in constitutional law”.
“There may be narrower scope for operation of the
presumption of constitutionality when legislation appears on
its face to be within a specific prohibition of the Constitution,
such as those of the first ten Amendments, which are deemed
equally specific when held to be embraced within the
Fourteenth.”
32.What the Court was saying was that economic legislation
would be judged by a standard of “rational basis” – so long as
the law was a rational way of furthering a legitimate
governmental purpose, it was valid. However, where the
legislation “on its face” appeared to be violating any of the
fundamental rights, a more exacting standard would be
applied.
33.The precise term “strict scrutiny” was used by the Court
for the first time in Skinner v. Oklahoma (316 U.S. 535 (1942).
The Oklahoma Habitual Criminal Sterilisation Act provided for
vasectomy to be performed on any person convicted two or
more times for crimes amounting to “felonies involving moral
turpitude”. Justice Douglas, giving the opinion of the Court,
described the statute as violating the right to have offspring –
“a right which is basic to the perpetuation of a race”. The
question before the Court was whether this statute violated
the 14
th
Amendment. Holding that it did, Justice Douglas
observed:
“Strict scrutiny of the classification which a State makes in a
sterilization law is essential, lest unwittingly or otherwise
invidious discriminations are made against groups or types of
individuals in violation of the constitutional guarantee of just
and equal laws.”
34.In India there has to be collective commitment for
upliftment of those who needed it. In that sense, the question
again comes back to the basic issue as to whether the action
taken by the Government can be upheld after making judicial
scrutiny. Much assistance is not available to the petitioners
from the American decisions.
35.It is to be noted that the doctrine of separation as is
prevalent in the American Society is not of much consequence
in the Indian scenario. It needs to be clarified that the
expression ‘strict scrutiny’ has also been used by the Indian
Courts in Narendra Kumar and Ors. v. Union of India and Ors.
(1960 (2) SCR 375) 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, for example, Regents of
University of California v. Allan Bakke (438 U.S. 265).
36.Some of the judgments of American Courts throwing light
on the controversy need to be noted:
37.In Allan Bakke’s case (supra) it was held as follows:
“Hence, the purpose of helping certain groups whom the
faculty of the Davis Medical School perceived as victims of
“societal discrimination” does not justify a classification that
imposes disadvantages upon persons like respondent, who
bear no responsibility for whatever harm the beneficiaries of
the special admissions”.
“The fatal flaw in petitioner’s preferential program is its
disregard of individual rights as guaranteed by the Fourteenth
Amendment. Shelley v. Kraemer, 334 US, at 22, 92 L Ed
1161, 68 S Ct 836, 3 ALRd 441. Such rights are not absolute.
But when a State’s distribution of benefits or imposition of
burdens hinges on ancestry or the color of a person’s skin or
ancestry, that individual is entitled to a demonstration that
the challenged classification is necessary to promote a
substantial state interest. Petitioner has failed to carry this
burden.”
38.In Grutter v. Bollinger (539 U.S. 306) it was held as
follows:
[21, 22a]“We acknowledge that “there are serious problems
of justice connected with the idea of preference itself.” Bakke,
438 US, at 298, 57 L Ed 2d 750, 98 S Ct 2733 (opinion of
Powell, J). Narrow tailoring, therefore, requires that a race-
conscious admissions program not unduly harm members of
any racial group. Even remedial race-based governmental
action generally “remains subject to continuing oversight to
assure that it will work the least harm possible to other
innocent persons competing for the benefit.” Id., at 308, 57 L
Ed 2d 750, 98 S Ct 2733. To be narrowly tailored, a race-
conscious admissions program must not “unduly burden
individuals who are not members of the favored racial and
ethnic groups.” Metro Broadcasting, Inc. v. FCC, 497 Us 547,
630, 111 L Ed 2d 445, 110 S Ct 2997 (1990) (O’ Connor, J.,
dissenting).
[22b, 23] We are satisfied that the Law School’s admissions
program does not. Because the Law School considers “all
pertinent elements of diversity,” it can (and does) select non-
minority applicants who have greater potential to enhance
student body diversity over underrepresented minority
applicants. See Bakke, supra, at 317, 57 L Ed 2d 750, 98 S
Ct 2733 (opinion of Powell, J). As Justice Powell recognized in
Bakke, so long as a race-conscious admissions program uses
race as a “plus” factor in the context of individualized
consideration, a rejected applicant “will not have been
foreclosed from all consideration for that seat simply because
he was not the right color or had the wrong surname …… His
qualifications would have been weighed fairly and
competitively, and he would have no basis to complain of
unequal treatment under the Fourteenth Amendment.” 438
US, at 318, 57 L Ed 2d 750, 98 S Ct 2733.
[13f, 22C] We agree that, in the context of its individualized
inquiry into the possible diversity contributions of all
applicants, the Law School’s race-conscious admissions
program does not unduly harm nonminority applicants.
[24, 25a, 26] We are mindful, however, that “[a] core purpose
of the Fourteenth Amendment was to do away with all
governmentally imposed discrimination based on race”
Palmore v Sidoti, [539 US 342] 466 US 429, 432, 80 L Ed 2d,
421, 104 s Ct 1879 (1984). Accordingly, race-conscious
admissions policies must be limited in time. This requirement
reflects that racial classifications, however, compelling their
goals are potentially so dangerous that they may be employed
no more broadly than the interest demands. Enshrining a
permanent justification for racial preferences would offend this
fundamental equal protection principle. We see no reason to
exempt race-conscious admissions programs from the
requirement that all governmental use of race must have a
logical end point. The Law School, too, concedes that all
“race-conscious programs must have reasonable durational
limits.” Brief for Respondent Bollinger et al. 32. [25b] In the
context of higher education, the durational requirement can
be met by sunset provisions in race-conscious admissions
policies and periodic reviews to determine whether racial
preferences are still necessary to achieve student body
diversity. Universities in California, Florida, and Washington
State, where racial preferences in admissions are prohibited
by state law, are currently engaged in experimenting with a
wide variety of alternative approaches. Universities in other
States can and should draw on the most promising aspects of
these race-neutral alternatives as they develop. Cf. United
States v. Lopez, 514 US 549, 581, 131 L Ed 2d 626, 115 S Ct
1624 (1995) (Kennedy, J., concurring) (“[T] he States may
perform their role as laboratories for experimentation to devise
various solutions where the best solution is far from clear”).
The requirement that all race-conscious admissions programs
have a termination point “assure[s] all citizens that the
deviation from the norm of equal treatment of all racial and
ethnic groups is a temporary matter, a measure taken in the
service of the goal of equality itself.” Richmond v. J.A. Croson
Co., 488 US, at 510, 102 L Ed 2d 854, 109 S Ct 706 (plurality
opinion); see also Nathanson & Bartnik. The Constitutionality
of Preferential Treatment for Minority Applicants to
Professional Schools, [539 US 343] 58 Chicago Bar Rec. 282,
293 (May-June 1977) (“It would be a sad day indeed, were
America to become a quota-ridden society, with each
identifiable minority assigned proportional representation in
every desirable walk of life. But that is not the rationale for
programs of preferential treatment; the acid test of their
justification will be their efficacy in eliminating the need for
any racial or ethnic preferences at all.”
39.The provisions of the American Constitution in United
States relating to formal equality concept do not appear to
have operated from the beginning of the American
Constitution.
40.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. The stand of Mr. Vahanvati and
Mr. Gopal Subramanium is that the logic of strict scrutiny,
compelling the Government and narrow tailoring do not have
relevance so far as the present case is concerned.
41.In Thomas’s case (supra) it was clearly noticed by this
Court that American conditions do not apply adequately for
the Indian scenario. Unlike U.S.A., the targeted beneficiaries
are alien to our Constitution. In India cognizance has been
taken constitutionally. The victims of untouchability,
identifying social and economic backwardness have been
accepted as permissible measures. However, the question how
long they can be continued is another aspect which shall be
dealt with separately. Rationality in that sense is a measure
for the special provisions. But the question that still needs to
be addressed is whether these groups are really identifiable.
While formulating the policy all factors need not be specifically
expressed but there must be some criteria to identify social
and educational backwardness.
42.In A.K. Roy v. Union of India (1982 (1) SCC 271) it was
noted as follows:
“8. We are not, as we cannot be, unmindful of the danger to
people’s liberties which comes in any community from what is
called the tyranny of the majority. Uncontrolled power in the
executive is a great enemy of freedom and therefore, eternal
vigilance is necessary in the realm of liberty. But we cannot
transplant, in the Indian context and conditions, principles
which took birth in other soils, without a careful examination
of their relevance to the interpretation of our Constitution. No
two Constitutions are alike, for it is not mere words that make
a Constitution. It is the history of a people which lends colour
and meaning to its Constitution. We must therefore turn
inevitably to the historical origin of the ordinance making
power conferred by our Constitution and consider the scope of
that power in the light of the restraints by which that power is
hedged. Neither in England nor in the United States of
America does the executive enjoy anything like the power to
issue ordinances. In India, that power has a historical origin
and the executive, at all times, has resorted to it freely as and
when it considered it necessary to do so. One of the larger
States in India has manifested its addiction to that power by
making an overgenerous use of it – so generous indeed, that
ordinances which lapsed by efflux of time were renewed
successively by a chain of kindred creatures, one after
another. And, the ordinances embrace everything under the
sun, from Prince to pauper and crimes to contracts. The Union
Government too, so we are informed passed about 200
Ordinances between 1960 and 1980, out of which 19 were
passed in 1980”.
43.One of the grey areas focused by learned counsel for the
petitioners and the respondents is the ever perplexing
question “how long”. The respondents say that so long as the
problems of backwardness exist they can be continued. The
petitioners have highlighted that notwithstanding the
concerns shown in Indra Sawhney No.1 and in a large number
of cases that the reservations are not meant to be a
permanent feature there is a case for concern. Admittedly,
there is no deletion from the list of other backward classes. It
goes on increasing. Learned counsel for the respondents have
stated that in large number of cases where applications were
made for inclusion they have been turned down. But that is no
answer to the question as to why and how there has been no
exclusion. Is it that backwardness has increased instead of
decreasing. If the answer is ‘yes’, as contended by the
respondents, then one is bound to raise eyebrows as to the
effectiveness of providing reservations or quotas.
44. The ultimate object is to bring those who are
disadvantaged to a level where they no longer continue to be
dis-advantaged. It needs no emphasis that individual rights
are superior to the social rights. All fundamental 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.
45. 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.
46.The necessary ingredients of equality essentially involve
equalization of unequals. Linked with this question the
problem posed by the petitioners is whether reservation is the
only way to equalize unequals? There are several methods and
modes. If reservation really does not work as contended by the
petitioners, then the alternative methods can be adopted. It is
the stand of the respondents that not only reservations but
other incentives like free lodging and boarding facilities have
been provided in some States.
47. Learned counsel for the respondents have stated that
the measures under challenge are nothing but a much needed
leap towards attainment of the objectives. If it is true, the leap
has to end somewhere. It cannot hang in the air as there is
nothing immortal in this world; much less, a progressive
measure purportedly intended to benefit the other backward
classes. If after nearly six decades the objectives have not been
achieved, necessarily the need for its continuance warrants
deliberations. It is to be noted that some of the provisions were
intended to be replaced after a decade but have continued. It
indirectly shows that backwardness appears to have
purportedly increased and not diminished. It would therefore
be rational and logical to restrict operation of the impugned
Statute for a period of 10 years from its inception.
48.At this juncture, report of the Oversight Committee
throws considerable light on the controversy. Some parts of
the Report need to be noted.
This report seeks to expand the provision of Higher
Education while at the same time ensuring social inclusion
and academic excellence. A society which excludes a
significant section of its population from access to higher
education cannot be said to be providing equality of
opportunity. Equally, if academic excellence gets compromised
in the process of expansion, it would lose its competitive edge
in the emerging knowledge society – an edge which can propel
India into a position of global leadership.
Page X and XI of the report
A simpler way of implementing reservations was to
steamroll our way through, in the name of social equity,
regardless of its impact on quality and excellence. We have
deliberately chosen the more difficult way which delivers
equity in a manner that enhances excellence i.e. by making
concomitant investments in faculty & infrastructure and by
bringing much needed governance related reforms involving
institutional, financial and administrative autonomy and
process re-engineering in our Higher Educational Governance
system. It is easy to equalize by “mindlessly leveling everyone
down to lowest common-denominator”. Our effort has been to
create an upward moving equalization process- where the
disabilities are overcome by the erstwhile excluded sections
and the system brings out the best in them.
Besides the many out of the box innovative ideas
concerning faculty and infrastructure related issues, I believe
three of our recommendations, which cut horizontally across
the five groups, are critical to the establishment of the goal of
an “inclusive society, in pursuit of excellence”. These four
programmes are considered by the Oversight Committee to be
integral to the above vision and should be considered to be
inseverable part of our core recommendations. (page-x)
We have to acknowledge that the challenges facing us in
the entire education sector are enormous and in the Tertiary
Education Sector these can be met, only if both public and
private funding to educational institutions increased several
fold. The need for private participation in this mammoth task
cannot be over-emphasized but market forces themselves
cannot deliver justice. The relative importance of public vs.
private funding is brought out very strongly by Joseph Stiglitz
when he opined “I had studied the failures of both markets
and governments, and was not so naïve to think that the
government could remedy every failure. Neither was I so
foolish as to believe that markets by themselves solved every
societal problem. Inequality, unemployment, pollution: these
are all important issues in which Government has to take an
importance role.”
“Expansion, Inclusion and Excellence” has been our
credo. They have remained the abiding theme guiding all our
deliberations. I will be failing in my duty if the Oversight
Committee does not acknowledge the source of inspiration for
our deliberations. It is the Prime Minister’s speech giving the
overpowering vision of the “need to create the second wave of
nation building” which has inspired us in our thoughts and
deliberations. I would also like to express my gratitude to
Hon’ble HRD Minister, Sri Arjun Singhji for his affection and
guidance right through. (Page-xi)
Treatment of the creamy Layer (Chapter IV- Report of
Oversight Committee Vol.-I)
4.2 (b)The true benefit of reservations will be realized
only when the high school enrolment of OBCs, especially in
rural areas, increases significantly. Attention will need to be
paid to this issue in the coming years.
Chapter VI- Estimate of Resources required for the
expansion
6.1In overall terms, the total estimated expenditure on the
expansion has now been assessed by the five Sub-Groups in
their final reports at Rs.18,197.83 crore, as compared to the
amount of Rs.16,563.34 crore, that was included by the
Oversight Committee in its interim report. The summary
statement of additional student strength, faculty required and
estimates of recurring and non-recurring expenditure that
have been projected by the Groups are as at Table 6.1 and the
year-wise break up is at table 6.2.
6.3The Committee in its discussions with the individual
Groups, had stressed the need to estimate the additional
infrastructure and manpower that would be required after
taking into account the slack, if any, in the existing facilities
as also the scope for using IT as a resource multiplier. While
the Groups seems to have accepted this in principle, their
expenditure projections, and the
norms on which they are based seems to have just
extrapolated past trends. The Committee has had some input
regarding global trends and the best practices being followed
in the world’s leading institutions. Based on this, and in
consultation with experts, the Committee has developed a
plan for a “Gyan Vahini” project, as has been explained in an
earlier Chapter in this report. The total expenditure on this
component of the expansion and upgradation project would be
Rs.1752 crore in 5 years. Apart from significantly enhancing
the quality of instruction and learning, and brining it close to
the best levels in the world, this investment will certainly
contribute to efficiency and to reducing the conventional costs
of the higher education system.
Summary Statement of Expenditure Requirements
(As given in the Final Reports of the Groups)
SectorNo. of
Instns
.
Existin
g
Student
Intake
Annual
Addl.
Studen
t Intake
Addl.
Facility
Require
d
Non
Recurrin
g Ex.
Recu
rring
Exp.
(5Yrs)
Total
Exp.
In 5
Yrs.
Agricu
lture
5 825 454 187 102.75 92.71195.4
6
Centr
al
Univer
sities
17 92011 49689 6609 2702.11 2455.
92
5158.
03
Manag
ement
7 1791 966 139 511.32 177.
48
688.
80
Medic
al
11 993 565 N.A. 1783.98 1027.
69
2811.
67
Engin
eering
38 29671 16440 4919 5503.83 3840.
04
9343.
87
Grand
Total
12529168114 11854 10603.997593.
84
1819
7.83
Chapter VII- The Way Forward
7.1 As indicated earlier in this report, this opportunity
for expansion, inclusion and excellence should only be the
beginning of a larger process, which is to build a knowledge
society in India and allow the country to take its rightful place
in the comity of nations. Our recent economic growth and the
values of knowledge and education carried forward by a billion
diverse people, point to India’s potential future as a knowledge
society. Other countries that visualize a similar future have
planned massive investments in order to enhance both the
quality and quantity of higher education and research. China,
for example, has made substantial increase in its allocation of
resources of higher education. In the first phase, China has
provided a grant of US $ 125 million to each of the 10 leading
universities and US $ 225 million to Beijing and Tsinghua
Universities. In the second phase, China proposes to provide
additional grants to 30 universities, with the objective of
having 100 high quality universities in China in the 21
st
century and with 15% of the citizens in the age group 18-22
receiving tertiary education.
7.2 India has suffered in the past because of severe
under investment in higher education. This has been caused
partly by the thinking that looks at primary and higher
education in an either or manner. It is very clear however that
large public investment is needed in both sectors. As Prime
Minister Dr. Manmohan Singh said, while launching the
Knowledge Commission, “At the bottom of the knowledge
pyramid, the challenge is one of improving access to primary
education. At the top of the pyramid there is need to make our
institutions of higher education and research world class. The
time has come for India to embark on a second wave of nation
building. Denied this investment, the youth will become a
social and economic liability.
49.It was emphasized by learned counsel for the petitioners
that the massive financial burden question finds no place in
the parliamentary debate. In response, Mr. Vahanvati has
submitted that before the Parliamentary Standing Committee,
the report of the Oversight Committee was available. When the
Oversight Committee’s report was discussed in detail, needless
to say the financial aspect was also considered.
50.It has been highlighted by Mr. P.P. Rao that unmindful of
the duty to focus on primary and elementary education, large
sums of money are intended to be used for implementation of
Statute. Various figures and datas have been highlighted to
show that there is really no concern for the primary and
elementary education. Repelling these contentions Mr.
Vahanvati has highlighted that there is no laxity so far as
primary and elementary education is concerned. He has
referred to voluminous details relating to Sarva Shiksha
Abhiyan. It is contended that uniform policy of elementary
education and the progress made upto 31.3.2007 shows the
concern of the Government to translate into reality the
constitutional objective of providing adequate education to all
citizens. It is true that there has been considerable effort in
this regard. But one question still remains to be answered.
There has to be balancing of priorities. Mr. Vahanvati has said
that this balancing is prerogative of the Government. 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 drop outs in the higher classes. This is a reality in
spite 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.
51.Unni Krishnan, J.P. and Ors. v. State of A.P. and Ors.
(1993 (1) SCC 645) emphasized on the importance of
education in the following words:
“166. In Bandhua Mukti Morcha this Court held that the right
to life guaranteed by Article 21 does take in "educational
facilities". (The relevant portion has been quoted herein
before). Having regard to the fundamental significance of
education to the life of, an individual and the nation, and
adopting the reasoning and logic adopted in the earlier
decisions of this Court referred to herein before, we hold,
agreeing with the statement in Bandhua Mukti Morcha, that
right to education is implicit in and flows from the right to life
guaranteed by Article 21. That the right to education has been
treated as one of transcendental importance in the life of an
individual has been recognised not only in this country since
thousands of years, but all over the world. In Mohini Jain, the
impatience of education has been duly and rightly stressed.
The relevant observations have already been set out in para 7
herein before. In particular, we agree with the observation that
without education being provided to the citizens of this
country, the objectives set forth in the Preamble to the
Constitution cannot be achieved. The Constitution would fail.
We do not think that the importance of education could have
been better emphasised than in the above words. The
importance of education was emphasised in the
"Neethishatakam' by Bhartruhari (First Century B.C. in the
following words:
Translation:
Education is the special manifestation of man; Education is
the treasure which can be preserved without the fear of loss;
Education secures material pleasure, happiness and fame;
Education is the teacher of the teacher;
Education is God incarnate;
Education secures honour at the hands of the State, not
money.
A man without education is equal to animal.
168.In Brown v. Board of Education (347 US 483 (1954) Earl
Warren, C.J., speaking for the U.S. Supreme Court
emphasized the right to education in the following words:
“Today, education is perhaps the most important function of
State and local governments…It is required in the performance
of our most basic responsibilities, even service in the armed
forces. It is the very foundation of good citizenship. Today it is
the principal instrument in awakening the child to cultural
values, in preparing him for later professional training, and in
helping him to adjust normally to his environment. In these
days, it is doubtful any child may reasonably be expected to
succeed in life if he is denied the opportunity of an education.”
52.Observations of this Court in AIIMS Students’ Union case
(supra) highlight the importance of higher education and the
modalities to be adopted for ensuring excellence are in the
following words:
“58. The Preamble to the Constitution of India secures, as one
of its objects, fraternity assuring the dignity of the individual
and the unity and integrity of the nation to 'we he people of
India'. Reservation unless protected by the constitution itself,
as given to us by the founding fathers and as adopted by the
people of India, is sub-version of fraternity, unity and integrity
and dignity of the individual. While dealing with Directive
Principles of State Policy, Article 46 is taken note of often by
overlooking Articles 41 and 47. Article 41 obliges the State
inter alia to make effective provision for securing the right to
work and right to education. Any reservation in favour of one,
to the extent of reservation, is an inroad on the right of others
to work and to learn. Article 47 recognises the improvement of
public health as one of the primary duties of the State. Public
health can be improved by having the best of doctors,
specialists and super specialists. Under-graduate level is a
primary or basic level of education in medical sciences
wherein reservation can be understood as the fulfilment of
societal obligation of the State towards the weaker segments of
the society. Beyond this, a reservation is a reversion or
diversion from the performance of primary duty of the State.
Permissible reservation at the lowest or primary rung is a step
in the direction of assimilating the lesser fortunates in
mainstream of society by bringing them to the level of others
which they cannot achieve unless protectively pushed. Once
that is done the protection needs to be withdrawn in the own
interest of protectees so that they develop strength and feel
confident of stepping on higher rungs on their own legs
shedding the crutches. Pushing the protection of reservation
beyond the primary level betrays bigwigs' desire to keep the
crippled crippled for ever. Rabindra Nath Tagore's vision of a
free India cannot be complete unless "knowledge is free" and
"tireless striving stretches its arms towards perfection". Almost
a quarter century after the people of India have given the
Constitution unto themselves, a chapter on fundamental
duties came to be incorporated in the Constitution.
Fundamental duties, as defined in Article 51A, are not made
enforceable by a writ of court just as the fundamental rights
are, but it cannot be lost sight of that 'duties' in Part IVA -
Article 51A are prefixed by the same word 'fundamental' which
was prefixed by the founding fathers of the Constitution to
'rights' in Part III. Every citizen of India is fundamentally
obliged to develop the scientific temper and humanism. He is
fundamentally duty bound to strive towards excellence in all
spheres of individual and collective activity so that the nation
constantly rises to higher levels of endeavour and
achievements. State is, all the citizens placed together and
hence though Article 51A does not expressly cast any
fundamental duty on the State, the fact remains that the duty
of every citizen of India is the collective duty of the Sate. Any
reservation, apart from being sustainable on the constitutional
anvil, must also be reasonable to be permissible. In assessing
the reasonability one of the factors to be taken into
consideration would be -- whether the character and quantum
of reservation would stall or accelerate achieving the ultimate
goal of excellence enabling the nation constantly rising to
higher levels. In the era of globalisation, where the nation as a
whole has to compete with other nations of the world so as to
survive, excellence cannot be given an unreasonable go by and
certainly not compromised in its entirety. Fundamental duties,
though not enforceable by a writ of the court, yet provide a
valuable guide and aid to interpretation of constitutional and
legal issues. In case of doubt or choice, people's wish as
manifested through Article 51A, can serve as a guide not only
for resolving the issue but also for constructing or moulding
the relief to be given by the courts. Constitutional enactment
of fundamental duties, if it has to have any meaning, must be
used by courts as a tool to tab, even a taboo, on State action
drifting away from constitutional values”.
53.Respondents have vehemently contended that the
concept of creamy layer may have relevance for the purpose of
Article 16(4), but is really inconsequential so far as Articles
15(4) and 15(5) are concerned. It is submitted that Article
16(4) is relatable to inadequate representation in Government
services and in that context the well to do in the socially and
educationally backward classes have to be excluded in view of
the decisions of this Court. But that logic cannot apply to the
present dispute which relates to admissions to educational
institutions. Before considering the question as to the
desirability of excluding ‘creamy layer’ the concept of creamy
layer needs to be focused upon. Observations of this Court in
various cases on this concept need to be noted.
54.In N.M. Thomas’s case (supra) at page 363, it was inter
alia observed as follows :
“124. A word of sociological caution. In the light of experience,
here and elsewhere, the danger of “reservation”, it seems to
me, is threefold. Its benefits, by and large, are snatched away
by the top creamy layer of the “backward” caste or class, thus
keeping the weakest among the weak always weak and leaving
the fortunate layers to consume the whole cake. Secondly, this
claim is overplayed extravagantly in democracy by large and
vocal groups whose burden of backwardness has been
substantially lightened by the march of time and measures of
better education and more opportunities of employment, but
wish to wear the “weaker section” label as a means to score
over their near-equals formally categorised as the upper
brackets. Lastly, a lasting solution to the problem comes only
from improvement of social environment, added educational
facilities and cross-fertilisation of castes by inter-caste and
inter-class marriages sponsored as a massive State
programme, and this solution is calculatedly hidden from view
by the higher “backward” groups with a vested interest in the
plums of backwardism. But social science research, not
judicial impressionism, will alone tell the whole truth and a
constant process of objective re-evaluation of progress
registered by the “underdog” categories is essential lest a once
deserving “reservation” should be degraded into “reverse
discrimination”. Innovations in administrative strategy to help
the really untouched, most backward classes also emerge from
such socio-legal studies and audit exercises, if dispassionately
made. In fact, research conducted by the A.N. Sinha Institute
of Social Studies, Patna, has revealed a dual society among
harijans, a tiny elite gobbling up the benefits and the darker
layers sleeping distances away from the special concessions.
For them, Articles 46 and 335 remain a “noble romance”, the
bonanza going to the “higher” harijans. I mention this in the
present case because lower division clerks are likely to be
drawn from the lowest levels of harijan humanity and
promotion prospects being accelerated by withdrawing, for a
time, “test” qualifications for this category may perhaps delve
deeper. An equalitarian breakthrough in a hierarchical
structure has to use many weapons and Rule 13/AA perhaps
is one.
Xx xx xx
139. It is platitudinous constitutional law that Articles 14 to
16 are a common code of guaranteed equality, the first laying
down the broad doctrine, the other two applying it to sensitive
areas historically important and politically polemical in a
climate of communalism and jobbery.
55.In Vasant Kumar’s case (supra) at page 732 the view
was re-iterated in the following words :
“24. In order to appreciate the view point advanced by Mr
Desai which appeals to me both for its indepth study of the
problem, and a fresh outlook on this vexed problem, at the
outset let me take a look at the futuristic view of the Indian
Society as envisaged in the Constitution. No one is left in any
doubt that the future Indian Society was to be casteless and
classless. Pandit Jawaharlal Nehru the first Prime Minister of
India said that Mahatma Gandhi has shaken the foundations
of caste and the masses have been powerfully affected. But an
even greater power than Gandhi is at work, the conditions of
modern life — and it seems at last this hoary and tenacious
ralic of past times must die. Mahatma Gandhi, the Father of
the Nation said, “The caste system as we know is an
anachronism. It must go if both Hinduism and India are to live
and grow from day to day”. In its onward march towards
realising the constitutional goal, every attempt has to be made
to destroy caste stratification. Article 38(2) enjoins the State to
strive to minimise the inequality in income and endeavour to
eliminate inequalities in status, facilities and opportunities,
not only amongst individuals but also amongst groups of
people residing in different areas or engaged in different
vocations. Article 46 enjoins duty to promote with special care
the educational and economic interests of the weaker sections
of the people, and in particular of the Scheduled Castes and
Scheduled Tribes, and shall protect them from social injustice
and all forms of exploitation. Continued retention of the
division of the society into various castes simultaneously
introduces inequality of status. And this inequality in status is
largely responsible for retaining inequality in facilities and
opportunities, ultimately resulting in bringing into existence
an economically depressed class for transcending caste
structure and caste barrier. The society therefore was to be
classless casteless society. In order to set up such a society,
steps have to be taken to weaken and progressively eliminate
caste structure. Unfortunately, the movement is in the reverse
gear. Caste stratification has become more rigid to some
extent, and where concessions and preferred treatment
schemes are introduced for economically disadvantaged
classes, identifiable by caste label, the caste structure
unfortunately received a fresh lease of life. In fact there is a
mad rush for being recognized as belonging to a caste which
by its nomenclature would be included in the list of socially
and educationally backward classes. To illustrate: Bakshi
Commission in Gujarat recognized as many as 82 castes as
being socially and educationally backward. On the publication
of its report, Government of Gujarat received representations
by members of those castes who had not made any
representation to the Bakshi Commission for treating them as
socially and educationally backward. This phenomenon was
noticed by Mandal Commission when it observed: “Whereas
the Commission has tried to make the State-wise lists of OBCs
as comprehensive as possible, it is quite likely that several
synonymy of the castes listed as backward have been left out.
Certain castes are known by a number of synonymy which
vary from one region to the other and their complete coverage
is almost impossible”. Mandal Commission found a way out by
recommending that if a particular caste has been listed as
backward then all its synonyms whether mentioned in the
State lists or not should also be treated as backward. Gujarat
Government was forced to appoint a second commission
known as Rane Commission. Rane Commission took note of
the fact that there was an organised effort for being considered
socially and educationally backward castes. Rane Commission
recalled the observations in Balaji case that “Social
backwardness is on the ultimate analysis the result of poverty
to a very large extent”. The Commission noticed that some of
the castes just for the sake of being considered as socially and
educationally backward, have degraded themselves to such an
extent that, they had no hesitation in attributing different
types of vices to and associating other factors indicative of
backwardness, with their castes. The Commission noted that
the malaise requires to be remedied. The Commission
therefore, devised a method for determining socially and
educationally backward classes without reference to caste,
beneficial to all sections of people irrespective of the caste to
which they belong. The Commission came to an irrefutable
conclusion that amongst certain castes and communities or
class of people, only lower income groups amongst them are
socially and educationally backward. We may recall here a
trite observation in case of N.M. Thomas which reads as under
(SCC pg.363 para 124):
“A word of sociological caution. In the light of experience, here
and elsewhere, the danger of ‘reservation’, it seems to me, is
threefold. Its benefits, by and large, are snatched away by the
top creamy layer of the ‘backward’ caste or class, thus keeping
the weakest among the weak always weak and leaving the
fortunate layers to consume the whole cake. Secondly, this
claim is overplayed extravagantly in democracy by large and
vocal groups whose burden of backwardness has been
substantially lightened by the march of time and measures of
better education and more opportunities of employment, but
wish to wear the ‘weaker section’ label as a means to score
over their near-equals formally categorised as the upper
brackets.”
25. A few other aspects for rejecting caste as the basis for
identifying social and educational backwardness may be
briefly noted. If State patronage for preferred treatment
accepts caste as the only insignia for determining social and
educational backwardness, the danger looms large that this
approach alone would legitimise and perpetuate caste system.
It does not go well with our proclaimed secular character as
enshrined in the Preamble to the Constitution. The
assumption that all members of same caste a re equally
socially and educationally backward is not well-founded. Such
an approach provides an over-simplification of a complex
problem of identifying the social and educational
backwardness. The Chairman of the Backward Classes
Commission, set up in 1953, after having finalised the report,
concluded that “it would have been better if we could
determine the criteria of backwardness on principles other
than caste”. Lastly it is recognised without dissent that the
caste based reservation has been usurped by the economically
well-placed section in the same caste. To illustrate, it may be
pointed that some years ago, I came across a petition for
special leave against the decision of the Punjab and Haryana
High Court in which the reservation of 2½ per cent for
admission to medical and engineering colleges in favour of
Majhabi Sikhs was challenged by none other than the upper
crust of the members of the Scheduled castes amongst Sikhs
in Punjab, proving that the labeled weak exploits the really
weaker. Add to this, the findings of the Research Planning
Scheme of sociologists assisting the Mandal Commission when
it observed: “while determining the criteria of socially and
educationally backward classes, social backwardness should
be considered to be the critical element and educational
backwardness to be the linked element though not necessarily
derived from the former”. The team ultimately concluded that
“social backwardness refers to ascribed status, and it
considered social backwardness as the critical element and
educational backwardness to be the linked though not derived
element”. The attempt is to identify socially and educationally
backward classes of citizens. The caste, as is understood in
Hindu Society, is unknown to Muslims, Christians, Parsis,
Jews etc. Caste criterion would not furnish a reliable yardstick
to identify socially and educationally backward group in the
aforementioned communities though economic backwardness
would.
28. Reservation in one or other form has been there for
decades. If a survey is made with reference to families in
various castes considered to be socially and educationally
backward, about the benefits of preferred treatment, it would
unmistakably show that the benefits of reservations are
snatched away by the top creamy layer of the backward
castes. This has to be avoided at any cost.
56.Significantly in Indra Sawhney No.1 it was emphatically
noted as follows:
“520. Society does not remain static. The industrialisation
and the urbanisation which necessarily followed in its wake,
the advance on political, social and economic fronts made
particularly after the commencement of the Constitution, the
social reform movements of the last several decades, the
spread of education and the advantages of the special
provisions including reservations secured so far, have all
undoubtedly seen at least some individuals and families in the
backward classes, however small in number, gaining sufficient
means to develop their capacities to compete with others in
every field. That is an undeniable fact. Legally, therefore, they
are not entitled to be any longer called as part of the backward
classes whatever their original birthmark. It can further hardly
be argued that once a backward class, always a backward
class. That would defeat the very purpose of the special
provisions made in the Constitution for the advancement of
the backward classes, and for enabling them to come to the
level of and to compete with the forward classes, as equal
citizens. On the other hand, to continue to confer upon such
advanced sections from the backward classes the special
benefits, would amount to treating equals unequally violating
the equality provisions of the Constitution. Secondly, to rank
them with the rest of the backward classes would equally
violate the right to equality of the rest in those classes, since it
would amount to treating the unequals equally. What is more,
it will lead to perverting the objectives of the special
constitutional provisions since the forwards among the
backward classes will thereby be enabled to lap up all the
special benefits to the exclusion and at the cost of the rest in
those classes, thus keeping the rest in perpetual
backwardness. The object of the special constitutional
provisions is not to uplift a few individuals and families in the
backward classes but to ensure the advancement of the
backward classes as a whole. Hence, taking out the forwards
from among the backward classes is not only permissible but
obligatory under the Constitution. However, it is necessary to
add that just as the backwardness of the backward groups
cannot be measured in terms of the forwardness of the
forward groups, so also the forwardness of the forwards
among the backward classes cannot be measured in terms of
the backwardness of the backward sections of the said
classes. It has to be judged on the basis of the social
capacities gained by them to compete with the forward
classes. So long as the individuals belonging to the backward
classes do not develop sufficient capacities of their own to
compete with others, they can hardly be classified as forward.
xx xx xx
629. More backward and backward is an illusion. No
constitutional exercise is called for it. What is required is
practical approach to the problem. The collectivity or the
group may be backward class but the individuals from that
class may have achieved the social status or economic
affluence. Disentitle them from claiming reservation.
Therefore, while reserving posts for backward classes, the
departments should make a condition precedent that every
candidate must disclose the annual income of the parents
beyond which one could not be considered to be backward.
What should be that limit can be determined by the
appropriate State. Income apart, provision should be made
that wards of those backward classes of persons who have
achieved a particular status in society either political or social
or economic or if their parents are in higher services then
such individuals should be precluded to avoid monopolisation
of the services reserved for backward classes by a few. Creamy
layer, thus, shall stand eliminated. And once a group or
collectivity itself is found to have achieved the constitutional
objective then it should be excluded from the list of backward
class. Therefore,
(1) No reservation can be made on economic criteria.
(2) It may be under Article 16(4) if such class satisfies the
test of inadequate representation.
(3) Exclusion of creamy layer is a social purpose. Any
legislative or executive action to remove such persons
individually or collectively cannot be constitutionally invalid.
Xx xx xx
790. ‘Means-test’ in this discussion signifies imposition of an
income limit, for the purpose of excluding persons (from the
backward class) whose income is above the said limit. This
submission is very often referred to as the “creamy layer”
argument. Petitioners submit that some members of the
designated backward classes are highly advanced socially as
well as economically and educationally. It is submitted that
they constitute the forward section of that particular backward
class — as forward as any other forward class member — and
that they are lapping up all the benefits of reservations meant
for that class, without allowing the benefits to reach the truly
backward members of that class. These persons are by no
means backward and with them a class cannot be treated as
backward. It is pointed out that since Jayasree almost every
decision has accepted the validity of this submission.
791. On the other hand, the learned counsel for the States of
Bihar, Tamil Nadu, Kerala and other counsel for respondents
strongly oppose any such distinction. It is 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. Counsel for
the State of Tamil Nadu submitted further that at one stage (in
July 1979) the State o f Tamil Nadu did indeed prescribe such
an income limit but had to delete it in view of the practical
difficulties encountered and also in view of the representations
received. In this behalf, the learned counsel invited our
attention to Chapter 7-H (pages 60 to 62) of the Ambashankar
Commission (Tamil Nadu Second Backward Classes
Commission) Report. According to the respondents the
argument of ‘creamy layer’ is but a mere ruse, a trick, to
deprive the backward classes of the benefit of reservations. It
is submitted that no member of backward class has come
forward with this plea and that it ill becomes the members of
forward classes to raise this point. Strong reliance is placed
upon the observations of Chinnappa Reddy, J in Vasanth
kumar to the following effect (SCC p.763, para 72)
“ .. .. One must, however, enter a caveat to the criticism that
the benefits of reservation are often snatched away by the top
creamy layer of backward class or caste. That a few of the
seats and posts reserved for backward classes are snatched
away by the more fortunate among them is not to say that
reservation is not necessary. This is bound to happen in a
competitive society such as ours. Are not the unreserved seats
and posts snatched away, in the same way, by the top creamy
layer of society itself? Seats reserved for the backward classes
are taken away by the top layers amongst them on the same
principle of merit on which the unreserved seats are taken
away by the top layers of society. How can it be bad if reserved
seats and posts are snatched away by the creamy layer of
backward classes, if such snatching away of unreserved posts
by the top creamy layer of society itself is not bad?”
792. In our opinion, it is not a question of permissibility or
desirability of such test but one of proper and more
appropriate identification of a class — a backward class. The
very concept of a class denotes a number of persons having
certain common traits which distinguish them from the
others. In a backward class under clause (4) of Article 16, if
the connecting link is the social backwardness, it should
broadly be the same in a given class. If some of the members
are far too advanced socially (which in the context, necessarily
means economically and, may also mean educationally) the
connecting thread between them and the remaining class
snaps. They would be misfits in the class. After excluding
them alone, would the class be a compact class. In fact, such
exclusion benefits the truly backward. Difficulty, however,
really lies in drawing the line — how and where to draw the
line? For, while drawing the line, it should be ensured that it
does not result in taking away with one hand what is given by
the other. The basis of exclusion should not merely be
economic, unless, of course, the economic advancement is so
high that it necessarily means social advancement. Let us
illustrate the point. A member of backward class, say a
member of carpenter caste, goes to Middle East and works
there as a carpenter. If you take his annual income in rupees,
it would be fairly high from the Indian standard. Is he to be
excluded from the Backward Class? Are his children in India
to be deprived of the benefit of Article 16(4)? Situation may,
however, be different, if he rises so high economically as to
become — say a factory owner himself. In such a situation, his
social status also rises. He himself would be in a position to
provide employment to others. In such a case, his income is
merely a measure of his social status. Even otherwise there
are several practical difficulties too in imposing an income
ceiling. For example, annual income of Rs.36,000 may not
count for much in a city like Bombay, Delhi or Calcutta
whereas it may be a handsome income in rural India
anywhere. The line to be drawn must be a realistic one.
Another question would be, should such a line be uniform for
the entire country or a given State or should it differ from
rural to urban areas and so on. Further, income from
agriculture may be difficult to assess and, therefore, in the
case of agriculturists, the line may have to be drawn with
reference to the extent of holding. While the income of a
person can be taken as a measure of his social advancement,
the limit to be prescribed should not 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. At the same time, it must be recognised that
there are certain positions, the occupants of which can be
treated as socially advanced without any further enquiry. For
example, if a member of a designated backward class becomes
a member of IAS or IPS or any other All India Service, his
status is society (social status) rises; he is no longer socially
disadvantaged. His children get full opportunity to realize their
potential. They are in no way handicapped in the race of life.
793. Keeping in mind all these considerations, we direct the
Government of India to specify the basis of exclusion —
whether on the basis of income, extent of holding or otherwise
— of ‘creamy layer’. This shall be done as early as possible,
but not exceeding four months. On such specification persons
falling within the net of exclusionary rule shall cease to be the
members of the Other Backward Classes (covered by the
expression ‘backward class of citizens’) for the purpose of
Article 16(4). The impugned Office Memorandums dated
August 13, 1990 and September 25, 1991 shall be
implemented subject only to such specification and exclusion
of socially advanced persons from the backward classes
contemplated by the said O.M. In other words, after the expiry
of four months from today, the implementation of the said
O.M. shall be subject to the exclusion of the ‘creamy layer’ in
accordance with the criteria to be specified by the Government
of India and not otherwise”.
57. In Indra Sawhney v. Union of India (1996) 6 SCC 506)
at page 508) it was noted as follows :
“3. Thereafter the matter again came up before the Court on
20-3-1995. Finding that the State of Kerala has not taken any
steps, this Court issued notice to show cause why action
should not be taken for non-compliance of this Court’s order.
Again the matter came up on 10-7-1995. Even on that date no
report of compliance was submitted to the Court; instead an
affidavit sworn to by the Chief Secretary to the State was
handed over explaining the circumstances why the
implementation of the judgment was delayed.
xx xx xx
5. In the circumstances, out of sheer exhaustion and having
regard to the fact that the constitutionality of the Kerala Act
16 of 1995 is pending disposal before this Court, we have
decided to get the information ourselves regarding “creamy
layer” issue through a High Level Committee.
6. Accordingly, we request the learned Chief Justice of the
Kerala High Court to appoint a retired Judge of the High Court
to be the Chairman of the High Level Committee who will
induct not more than 4 members from various walks of life to
identify the “creamy layer” among “the designated other
backward classes” in Kerala State in the light of the ruling of
this Court in Mandal case and forward the report to this
Court within 3 months from the date of receipt of this order.”
58.In Indra Sawhney No. 2 it was observed as follows:
“7. Our Constitution is wedded to the concept of equality and
equality is a basic feature. Under Article 15(2), there is a
prohibition that the 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.
8. Caste only cannot be the basis for reservation. Reservation
can be for a backward class citizen of a particular caste.
Therefore, from that caste, the creamy layer and the non-
backward class of citizens are to be excluded. If the caste is to
be taken into consideration then for finding out the socially
and economically backward class, the 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 Indra
Sawhney v. Union of India and it has been specially held that
“only caste” cannot be the basis for reservation.
9. Inclusion of castes in the list of backward classes cannot
be mechanical and cannot be done without adequate relevant
data. Nor can it be done for extraneous reasons……
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.
10. 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 forever.
xx xx xx
13. In Indra Sawhney on the question of exclusion of the
“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.
xx xx xx
22. 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 matter 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 backward class. Those holding higher
levels of agricultural landholdings 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.
Xx xx xx
27. As the “creamy layer” in the backward class is to be
treated “on a 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: (SCC p. 553, 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 the 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.
Xx xx xx
64. The Preamble to the Constitution of India emphasises the
principle of equality as basic to our Constitution. In
Kesavananda Bharati v. State of Kerala it was ruled that even
constitutional amendments which offended the basic structure
of the Constitution would be ultra vires the basic structure.
Sikri, C.J. 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 (paras 520 and 535-A of SCC). Hegde and 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.
(paras 1882, 1883) and Chandrachud, J. (as he then was) (see
para 2086) accepted this position.
65. What we mean to say is that Parliament and the
legislature in this country cannot transgress the basic feature
of the Constitution, namely, the principle of equality enshrined
in Article 14 of which Article 16(1) is a facet. Whether the
creamy layer is not excluded or whether forward castes get
included in the list of backward classes , the position will be
the same, namely, that there will be a breach not only of
Article 14 but of the basic structure of the Constitution. The
non-exclusion of the creamy layer or the inclusion of forward
castes in the list of backward classes will, therefore, be totally
illegal. Such an illegality offending the root of the Constitution
of India cannot be allowed to be perpetuated even by
constitutional amendment. The Kerala Legislature is,
therefore, least competent to perpetuate such an illegal
discrimination. What even Parliament cannot do, the Kerala
Legislature cannot achieve.”
59.Though in M. Nagaraj’s case (supra) some observations of
general nature have been made so far as the applicability of
the principles to Scheduled Castes and Scheduled Tribes are
concerned, really that case did not concern with Scheduled
Castes and Scheduled Tribes. Similar is the position here. The
focus on the identity test in M. Nagaraj’s case (supra) is
unexceptionable. At paras 80 and 110, it was noted as follows:
“80. Before concluding, we may refer to the judgment of this
Court in M.G. Badappanavar . In that case the facts were as
follows. Appellants were general candidates. They contended
that when they and the reserved candidates were appointed at
Level-1 and junior reserved candidates got promoted earlier
on the basis of roster- points to Level-2 and again by way of
roster-points to Level-3, and when the senior general
candidate got promoted to Level-3, then the general candidate
would become senior to the reserved candidate at Level-3. At
Level-3, the reserved candidate should have been considered
along with the senior general candidate for promotion to Level-
4. In support of their contention, appellants relied upon the
judgment of the Constitution Bench in Ajit Singh (II). The
above contentions raised by the appellants were rejected by
the tribunal. Therefore, the general candidates came to this
Court in appeal. This Court found on facts that the Service
Rule concerned did not contemplate computation of seniority
in respect of roster promotions. Placing reliance on the
judgment of this Court in Ajit Singh (I) and in Virpal Singh,
this Court held that roster promotions were meant only for the
limited purpose of due representation of backward classes at
various levels of service and, therefore, such roster promotions
did not confer consequential seniority to the roster-point
promotee. In Ajit Singh (II) , the circular which gave seniority
to the roster-point promotees was held to be violative of
Articles 14 and 16. It was further held in M.G.
Badappanavar that equality is the basic feature of the
Constitution and any treatment of equals as unequals or any
treatment of unequals as equals violated the basic structure of
the Constitution. For this proposition, this Court placed
reliance on the judgment in Indra Sawhney while holding
that if creamy layer among backward classes were given some
benefits as backward classes, it will amount to equals being
treated unequals. Applying the creamy layer test, this Court
held that if roster-point promotees are given consequential
seniority, it will violate the equality principle which is part of
the basic structure of the Constitution and in which event,
even Article 16(4A) cannot be of any help to the reserved
category candidates. This is the only judgment of this Court
delivered by three-Judge bench saying that if roster-point
promotees are given the benefit of consequential seniority, it
will result in violation of equality principle which is part of the
basic structure of the Constitution. Accordingly, the judgment
of the tribunal was set aside.
xx xx xx
110. As stated above, the boundaries of the width of the
power, namely, the ceiling-limit of 50% (the numerical
benchmark), the principle of creamy layer, the compelling
reasons, namely, backwardness, inadequacy of representation
and the overall administrative efficiency are not obliterated by
the impugned amendments. At the appropriate time, we have
to consider the law as enacted by various States providing for
reservation if challenged. At that time we have to see whether
limitations on the exercise of power are violated. The State is
free to exercise its discretion of providing for reservation
subject to limitation, namely, that there must exist compelling
reasons of backwardness, inadequacy of representation in a
class of post(s) keeping in mind the overall administrative
efficiency. It is made clear that even if the State has reasons to
make reservation, as stated above, if the impugned law
violates any of the above substantive limits on the width of the
power the same would be liable to be set aside.”
60.There is an interesting article by an author dealing with
Affirmative Action which reads as follows:
“In his much referred to speech on 26 November 1949,
Dr. Ambedkar said that India was wanting in its recognition of
the principle of fraternity. What does fraternity mean?
Fraternity means a sense of common brotherhood of all
Indians - of India being one people. The virtues of liberty by
themselves do not create fraternity. This is why several liberal
theorists are unsure about whether or not state interventions
should be allowed for when the issue of overcoming
disprivileges are concerned. The central concern then is how
to inculcate a sense of `common brotherhood' among people
with divergent histories and who occupy vastly different
positions in the economic and social structure of a society.
Before we go further on discussing the specifics of caste and
reservations in India it is worth recording that liberty and
equality can sometimes be contradictorily positioned. This is
why it is important for democracy to redress these
community-based grievances within a framework that does
not violate liberal principles. While the individual needs to be
protected, there are individuals in certain groups and
communities that need safeguards and support as well. After
all it must be remembered that communities do not create
citizens, but that there are citizens within communities. Also,
while it is rather risky to say that communities have rights,
there is no doubt at all that within liberal democracies,
individuals have rights. Indeed, these rights were secured
historically so that individuals did not have to be burdened by
community and ascriptive pressures on them.
The rationale behind affirmative action is that it releases
suppressed talents and expands the pool of social assets in
society for the general good. If today we are looking for a
justification for affirmative action in this fashion, several
decades ago it was precisely this enlarging of the social pool of
talents that recommended equal treatment for women. As L.T.
Hobhouse argued then that when women are repressed then
there is a loss of all the elements in the common stock which
the free play of the woman's mind would contribute. By
increasing the sum of realized talents in society individuals
can actually gain greater inter-subjectivity in their everyday
lives. As the set of resemblances between them is now so much
larger, they can practice, pace Rawls, the moral precept of
participating in one another's fate. In this process, fraternal
values of citizenship gain materiality and fulfilment. It should
be recognized that fraternity can only come about through a
basic set of resemblances between citizens. This conception of
resemblances is about citizens being equally able to avail of
institutional facilities that ensure their acquisition of those
skills that are considered to be socially valuable. In other
words, social opportunities exist for individual self-expansion,
and it is only individuals now who can exclude themselves. If
grinding poverty comes in the way of acquiring such socially
valuable skills, then those blocks should be met by
developmental interventions such as the anti-poverty
programmes. But on no account should the removal of poverty
be made synonymous with reservations. Reservations are only
meant to create a measure of confidence and dignity among
those who didn't dare dream of an alternative life. But that
alone cannot create structural conditions that address the
root causes of poverty.
If quality education and the imparting of socially valuable
skills are provided across the board through reservations, then
that would take care of the complaint that affirmative action is
largely about the equality of results. Rawls' principle of justice
as fairness only says that offices should be open to all. But
what if people do not qualify for these offices because their
potentialities have remained unrealized on account of
inadequate qualifications arising from a history of
discrimination compounded by poverty, or, indeed, because of
sub-standard education? Does it mean that, through positive
discrimination and reservations, they should be given these
jobs anyway regardless of the welfare of institutions? In this
connection, Andre Beteille's warning that affirmative action
should be sensitive to institutional well-being as well needs to
be recalled. Beteille sifted between the various imperatives
that different organizations are subsumed under and
accordingly advised a careful calibration of reservations such
that these provisions of performance do not undermine
efficiency of performance. The resemblances that are being
advocated in the context of affirmative action should not be
interpreted in terms of homogeneous `sameness'. Sameness is
what medieval religious fundamentalists aim for. On the other
hand, the set of resemblances in a constitutional democracy
enhances equality and not sameness by providing identical
opportunities to all for self-expression and development.
Citizenship is not about the sameness of lifestyles or of
income. Marshall's notion of citizenship as a status that
tends towards equality should be interpreted in this light.
According to Marshall, the equality that citizenship guarantees
should be the foundation on which other kinds of differences
can develop.
It will no doubt be the case that differences will exist even
after a minimum set of resemblances is established. But
these will no longer be outcomes of the accidents of birth.
When diversity exists outside of choice then that is not a state
of affairs that a democratic society can rejoice in. Affirmative
action is instrumental in enlarging the scope of difference and
diversity, but it succeeds in doing so by first ensuring that
citizens resemble one another at a very critical level namely in
their ability to acquire socially valuable skills.
Affirmative action gets somewhat complicated in India on
account of caste politics.
Undeniably, India is the most stratified society in the world.
Over and above caste differentiations there are huge income
disparities, religious and community differences that are
deeply engraved into everyday social relations. No doubt, the
nature of caste and community interactions has changed over
time, but considerations along ascriptive lines still remain
important markers, both at the public and private domains.
Not only are we now confronted by identity assertions of
earthy peasant castes, that were earlier ranked as lowly
shudras (or menials), but also, of those who, till recently, were
called ‘untouchables’. Now we also know that none of these
castes had ever ideologically accepted their degraded status.
Yet they lived out their humble lives quietly for generations for
fear of offending the privileged strata.
We now know more of their origin tales that boast of the
elevated positions they once held before an unsuspected
chicanery, a lost war, or a mercurial god, demoted them to
lowly rungs in popular perceptions. Today these tales are an
important source of symbolic energy for caste mobilizations
and identity assertions. Now that the Mandal
recommendations are in place, reservations are not just for
the Scheduled Castes and Tribes, but for the so-called other
Backward Castes as well. While there are a large number of
castes listed as Backward, the demand for reservations for
this category has been spearheaded by the class of owner-
cultivators, or peasant proprietors. Before we assess Mandal
reforms it would be useful to know how these peasant castes
emerged.
After the zamindari abolition came into effect, adult franchise
and land-to-the-tiller programme together forced the earlier
landed castes slowly to cede ground in the villages. Soon,
however, traditional peasant castes such as the Ahirs, Kurmis,
Koeris, Lodhs, Rajputs and Jats began to dominate the
political scape of northern India. In the southern State of
Tamil Nadu, the Vanniyars and Thevars have become
assertive, and in Karnataka control was wrested in the mid-
1950s from the traditional rural elite within the Congress
Party by the Vokkaligas and Linagayats.
xx xx xx
In pursuance of Article 340 of the Constitution, the Kalelkar
Commission was set up in 1955 but it could not come to any
satisfactory conclusion about who should be legitimately
considered as OBCs. The Mandal Commission came into
existence in 1980 and it promptly came up with a long list of
3,743 backward castes on the basis of social, economic and
educational backwardness. The Mandal Commission's
recommendations were implemented in 1990 by the then
Prime Minister VP Singh. This meant that a further 29 per
cent of seats in educational institutions and government jobs
would now be reserved for OBCs.
The implementation of reservations for OBCs set off a furore of
protests, including a few suicides, all over the country by
those who are considered to be members of forward castes.
Many felt that reservations for OBCs were not warranted for
two reasons. First, this would make India a caste society by
law; and, second, because many of those who are considered
as OBCs are really quite powerful and dominant in rural India.
The obvious reference was to Jats and Yadavs. A majority of
social anthropologists wrote against reservations for OBCs
primarily on these grounds. Andre Beteille's criticism of the
Mandal Commission recommendations was widely commented
upon. He distinguishes between reservations for OBCs
following Mandal recommendations and the reservations that
were already granted in the Constitution for Scheduled Castes
and Tribes. While provisions for Scheduled Castes and Tribes
were with the intention of reaching towards greater equality,
reservations for OBCs were really to bring about a balance of
power on the calculus of caste. The kind of deprivations that
ex-untouchables (Scheduled Castes) and Adivasis (Scheduled
Tribes) encountered for centuries can in no way be compared
to the traditional condition of the OBCs. Besides, many OBCs
are quite powerful in rural India, both economically and
politically. In fact, the Mandal Commission recommendations
were actually giving in to a powerful rural lobby that did not
really care for equality of opportunities as much as it did for
equality of results.
xx xx xx
There are two considerations that escape many uncritical
applications of affirmative action. First, affirmative action
must resist any tendency whereby its beneficiaries become
vested interests. And secondly, it must eventually seek its own
dissolution. While the second may be far away, it is by paying
attention to the first issue that it is possible for affirmative
action to eventually annihilate itself. Paradoxical as it may
appear, but when this happens it is then that positive
discrimination has finally triumphed.
Affirmative action fails to reach this final destination when it is
inconsistently applied, or when its beneficiaries form vested
interest bloc within a democratic electoral system on the basis
of ascriptive identity alone. The latter poses a stronger
practical and intellectual challenge to the policy of affirmative
action. As long as historical disprivileges and economic
backwardness go together and the relationship between them
is statistically very strong, colour or caste membership can act
as ready reckoners for targeting beneficiaries of affirmative
action. This, however, does not mean that membership in
these communities should advantage individuals in perpetuity
once they are able to develop the minimum set of
resemblances. Therefore, as and when those who belong to
targeted categories for affirmative action acquire socially
useful talents and attributes, they should contribute them to
the society as a whole, and not employ them only for sectional
advantages.
Consequently, those who benefit from this policy owe it to
society to put their newly acquired social talents back into the
collective social pool. This would mean that they would
automatically fall outside the scope of affirmative action
programme in the future. The net would no longer cover them
as they already have socially useful assets. Indeed the society
will be richer and better endowed on account of it as the
beneficiaries of affirmative action will now begin to contribute
to the social pool of talents. This would both release and add
to social and material resources required for continuing with
the policy aimed at the enhancement of resemblances. As a
result, society will progressively acquire a higher strike rate
with the policy of affirmative action by reaching out to those
who have thus far fallen outside its ambit. By increasing the
number of those who possess the minimum set of
resemblances, the society has now a larger wealth of talents
in a variety of fields and specialities than it had before. This is
how affirmative action, which is aimed at the historically most
disadvantaged sections, ultimately improves the lot of
everybody in society. If, on the other hand, either colour or
race, which are only ready reckoners, become permanent
considerations, without taking into account biographical
profiles of actual and potential beneficiaries, then that would
inhibit fraternity and sow seeds of permanent divisions in
society.
Affirmative action begins by placing the assets of the better off
in a collective pool, not for redistribution, but to create the
infrastructure that is needed to enhance the minimum set of
resemblances necessary for substantive citizenship. With the
help of this capital, socially valuable assets are now created in
sites where there were none. This measure has a strong
practical dimension for out of this collective pooling new
assets are being created. The creation of such new assets is
possible because the initial pooling of assets of the privileged
section allows the society to underwrite the expenses incurred
for the establishment of certain baseline similarities in society
as a whole. As the most important feature in this case is not
one's ascriptive badge, but the creation of socially valuable
assets, it is expected that those who have been the
beneficiaries of the scheme will gradually slip out of the net.
They will cease to receive from the collective pool and instead
will begin to contribute to it. As far as public policy is
concerned they are no long members of certain designated
castes or communities. They are now simply citizens.
In passing it is worth putting in perspective that the difference
between reservations in India and affirmative action in
America is that the former talks about extirpating caste
whereas the latter is interested primarily in representing
races. If the accent is on representation then the ascriptive
factor becomes a permanent badge that can never be
overcome. Again, Americans believe in race representation, not
in quotas, and in not sacrificing standards for social justice.
But the great similarity between the two forms of preferential
policy is that in both cases it is the public sector where
positive discrimination is effectively realized. In America, the
State encourages private sector units to employ people of
diverse backgrounds without specifying quotas for different
races. If these enterprises can show a fair racial mix then they
can get preferential contracts from the government. The State
cannot force any private sector unit to implement affirmative
action. It is a combination of goodwill and rewards that takes
affirmative action forward in the private sector of America. For
example, Bob Jones University does not receive any public
money and, therefore, it refuses to accept affirmative action,
even of the most muted kind. It is only when organizations
depend on state funding, or when they want to be rewarded by
the State, that policy of affirmative action comes to life.”
61.It has been rightly observed in Indra Sawhney No. 2
(supra) 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.
62.In Nair Service Society’s case (supra) this Court observed
as follows:
“54. This Court, thus, has categorically laid down the law that
determination of creamy layer is a part of the constitutional
scheme.”
63.In our view, 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 when somebody
becomes part of the creamy layer.
64.In Vasant Kumar’s case (supra) it was aptly described
that the benefits of reservation are snatched away by the top
creamy layer of the backward classes and this has to be
avoided at any cost. By inclusion of the creamy layer or in
other words non inclusion thereof a fresh lease of life to those
who should have been left out is given. Their continuance
would mean keeping weakest amongst the weak always weak
and leaving the fortunate ones to enjoy the benefits. If the
ultimate aim is a casteless and classless society in line with
the dream of the Constitution framers that has to be chewed
out. As Father of the Nation had once said if the caste system
as we know is an anchronism, then it must go. There is a
feeling and it cannot be said without reason that reservation
hits at the root of this belief and instead of its obliteration
there is perceivable perpetuation. It is true that obliteration
cannot be done immediately or within a short span of time but
that is no answer to the lack of seriousness in seeking
obliteration.
65.In Indra Sawhney No.1 (supra) the following observations
on the question of giving priority over reservation are of
significance. It was held:
“293. Preference without reservation may be adopted in favour
of the chosen classes of citizens by prescribing for them a
longer period for passing a test or by awarding additional
marks or granting other advantages like relaxation of age or
other minimum requirements. (See the preferential treatment
in State of Kerala and Anr. v. N.M. Thomas and Ors. (1976) 1
SCR 906). Furthermore, it would be within the discretion of
the State to provide financial assistance to such persons by
way of grant, scholarships, fee concessions etc. Such
preferences or advantages are like temporary crutches for
additional support to enable the members of the backward
and other disadvantaged classes to march forward and
compete with the rest of the people. These preferences are
extended to them because of their inability otherwise to
compete effectively in open selections on the basis of merits for
appointment to posts in public services and the like or for
selection to academic courses. Such preferences can be
extended to all disadvantaged classes of citizens, whether or
not they are victims of prior discrimination. What qualifies
persons for preference is backwardness or disadvantage of any
kind which the State has a responsibility to ameliorate. The
blind and the deaf, the dumb and the maimed, and other
handicapped persons qualify for preference. So do all other
classes of citizens who are at a comparative disadvantage for
whatever reason, and whether or not they are victims of prior
discrimination. All these persons may be beneficiaries of
preferences short of reservation. Any such preference,
although discriminatory on its face, may be justified as a
benign classification for affirmative action warranted by a
compelling state interest.
294. In addition to such preferences, quotas may be provided
exclusively reserving posts in public services or seats in
academic institutions for backward people entitled to such
protection. Reservation is intended to redress backwardness of
a higher degree. Reservation prima facie is the very antithesis
of a free and open selection. It is a discriminatory exclusion of
the disfavoured classes of meritorious candidates: M.R. Balaji
(supra). It is not a case of merely providing an advantage or a
concession or preference in favour of the backward classes
and other disadvantaged groups. It is not even a handicap to
disadvantage the forward classes so as to attain a measure of
qualitative or relative equality between the two groups.
Reservation which excludes from consideration all those
persons falling outside the specially favoured groups,
irrespective of merits and qualifications, is much more positive
and drastic a discrimination - albeit to achieve the same end
of qualitative equality - but unless strictly and narrowly
tailored to a compelling constitutional mandate, it is unlikely
to qualify as a benign discrimination. Unlike in the case of
other affirmative action programmes, backwardness by itself is
not sufficient to warrant reservation. What qualifies for
reservation is backwardness which is the result of identified
past discrimination and which is comparable to that of the
Scheduled Castes and the Scheduled Tribes. Reservation is a
remedial action specially addressed to the ill effects stemming
from historical discrimination. To ignore this vital distinction
between affirmative action short of reservation and reservation
by a predetermined quota as a remedy for past inequities is to
ignore the special characteristic of the constitutional grant of
power specially addressed to the constitutionally recognised
backwardness.
xx xx xx
319. Reservation should be avoided except in extreme
cases of acute backwardness resulting from prior
discrimination as in the case of the Scheduled Castes and the
Scheduled Tribes and other classes of persons in comparable
positions. In all other cases, preferential treatment short of
reservation can be adopted. Any such action, though in some
respects discriminatory, is permissible on the basis of a
legitimate classification rationally related to the attainment of
equality in all its aspects.
Xx xx xx
323 (16). In the final analysis, poverty which is the ultimate
result of inequities and which is the immediate cause and
effect of backwardness has to be eradicated not merely by
reservation as aforesaid, but by free medical aid, free
elementary education, scholarships for higher education and
other financial support, free housing, self- employment and
settlement schemes, effective implementation of land reforms,
strict and impartial operation of the law-enforcing machinery,
industrialization, construction of roads, bridges, culverts,
canals, markets, introduction of transport, free supply of
water, electricity and other ameliorative measures particularly
in areas densely populated by backward classes of citizens.
(underlined for emphasis)
66.Following observations in M.R. Balaji v. State of Mysore
(AIR 1963 SC 649) are also relevant:
“In this connection, it is necessary to remember that the
reservation made by the impugned order is in regard to
admission in the seats of higher education in the State. It is
well-known that as a result of the awakening caused by
political freedom, all classes of citizens are showing a growing
desire to give their children higher university education and
so, the Universities are called upon to face the challenge of
this growing demand. While it is necessary that the demand
for higher education which is thus increasing from year to
year must be adequately met and properly channelised, we
cannot overlook the fact that in meeting that demand
standards of higher education in Universities must not be
lowered. The large demand for education may be met by
starting larger number of educational institutions vocational
schools and polytechnics. But it would be against the national
interest to exclude from the portals of our Universities
qualified and competent students on the ground that all the
seats in the Universities are reserved for weaker elements in
society. As has been observed by the University Education
Commission, "he indeed must be blind who does not see that
mighty as are the political changes, far deeper are the
fundamental questions which will be decided by what happens
in the universities" (p. 32). Therefore, in considering the
question about the propriety of the reservation made by the
impugned order, we cannot lose sight of the fact that the
reservation is made in respect of higher university education.
The demand for technicians, scientists, doctors, economists,
engineers and experts for the further economic advancement
of the country is so great that it would cause grave prejudice
to national interests if considerations of merit are completely
excluded by whole-sale reservation of seats in all Technical,
Medical or Engineering colleges or institutions of that kind.
Therefore, considerations of national interest and the interests
of the community or society as a whole cannot be ignored in
determining the question as to whether the special provision
contemplated by Art. 15(4) can be special provision which
excludes the rest of the society altogether. In this connection,
it would be relevant to mention that the University Education
Commission which considered the problem of the assistance
to backward communities, had observed that the percentage
of reservation shall not exceed a third of the total number of
seats, and it has added that the principle of reservation may
be adopted for a period of ten years. (p. 53).
We have already noticed that the Central Government in its
communication to the State has suggested that reservation for
backward classes, Scheduled Castes and Scheduled Tribes
may be up to 25% with marginal adjustments not exceeding
10% in exceptional cases.
The learned Advocate-General has suggested that reservation
of a large number of seats for the weaker sections of the
society would not affect either the depth or efficiency of
scholarship at all, and in support of this argument, he has
relied on the observations made by the Backward Classes
Commission that it found no complaint in the States of
Madras, Andhra, Travancore-Cochin and Mysore where the
system of recruiting candidates from other Backward Classes
to the reserve quota has been in vogue for several decades.
The Committee further observed that the representatives of
the upper classes did not complain about any lack of efficiency
in the offices recruited by reservation (p. 135). This opinion,
however, is plainly inconsistent with what is bound to be the
inevitable consequence of reservation in higher university
education. If admission to professional and technical colleges
is unduly liberalised it would be idle to contend that the
quality of our graduates will not suffer. That is not to say that
reservation should not be adopted; reservation should and
must be adopted to advance the prospects of the weaker
sections of society, but in providing for special measures in
that behalf care should be taken not to exclude admission to
higher educational centres to deserving and qualified
candidates of other communities. A special provision
contemplated by Art. 15(4) like reservation of posts and
appointments contemplated by Art. 16(4) must be within
reasonable limits. The interests of weaker sections of society
which are a first charge on the states and the Centres have to
be adjusted with the interests of the community as a whole.
The adjustment of these competing claims is undoubtedly a
difficult matter, but if under the guise of making a special
provision, a State reserves practically all the seats available in
all the colleges, that clearly would be subverting the object of
Art. 15(4). In this matter again, we are reluctant to say
definitely what would be a proper provision to make. Speaking
generally and in a broad way, a special provision should be
less than 50%; how much less than 50% would depend upon
the relevant prevailing circumstances in each case. In this
particular case it is remarkable that when the State issued its
order on July 10, 1961, it emphatically expressed its opinion
that the reservation of 68% recommended by the Nagan
Gowda Committee would not be in the larger interests of the
State. What happened between July 10, 1961, and July 31,
1962, does not appear on the record. But the State changed
its mind and adopted the recommendation of the Committee
ignoring its earlier decision that the said recommendation was
contrary to the larger interests of the State. In our opinion,
when the State makes a special provision for the advancement
of the weaker sections of society specified in Art. 15(4) it has to
approach its task objectively and in a rational manner.
Undoubtedly, it has to take reasonable and even generous
steps to help the advancement of weaker elements; the extent
of the problem must be weighted, the requirements of the
community at large must be borne in mind and a formula
must be evolved which would strike a reasonable balance
between the several relevant considerations. Therefore, we are
satisfied that the reservation of 68% directed by the impugned
order is plainly inconsistent with Art. 15(4).
The petitioners contend that having regard to the infirmities in
the impugned order, action of the State in issuing the said
order amounts to a fraud on the Constitutional power
conferred on the State by Art. 15(4). This argument is well-
founded, and must be upheld. When it is said about an
executive action that it is a fraud on the Constitution, it does
not necessarily mean that the action is actuated by mala fides.
An executive action which is patently and plainly outside the
limits of the constitutional authority conferred on the State in
that behalf is struck down as being ultra vires the State's
authority. If, on the other hand, the executive action does not
patently or overtly transgress the authority conferred on it by
the Constitution, but the transgression is covert or latent, the
said action is struck down as being a fraud on the relevant
constitutional power. It is in this connection that courts often
consider the substance of the matter and not its form and in
ascertaining the substance of the matter, the appearance or
the cloak, or the veil of the executive action is carefully
scrutinized and if it appears that notwithstanding the
appearance, the cloak or the veil of the executive action, in
substance and in truth the constitutional power has been
transgressed, the impugned action is struck down as a fraud
on the Constitution. We have already noticed that the
impugned order in the present case has categorised the
Backward Classes on the sole basis of caste which, in our
opinion, is not permitted by Art. 15(4); and we have also held
that the reservation of 68% made by the impugned order is
plainly inconsistent with the concept of the special provision
authorised by Art. 15(4). Therefore, it follows that the
impugned order is a fraud on the Constitutional power
conferred on the State by Art. 15(4). The learned Advocate-
General has made an earnest and strong plea before us that
we should not strike down the order, but should strike down
only such portions of the order which appear to us to be
unconstitutional on the doctrine of severability. He has urged
that since 1958, the State has had to make five orders to deal
with the problem of advancing the lot of the Backward Classes
and the State is anxious that the implementation of the
impugned order should not be completely prohibited or
stopped. We do not see how it would be possible to sever the
invalid provisions of the impugned order. If the categorisation
of the Backward Classes is invalid, this Court cannot and
would not attempt the task of enumerating the said categories;
and if the percentage of reservation is improper and outside
Art. 15(4), this Court would not attempt to lay down definitely
and in an inflexible manner as to what would be the proper
percentage to reserve. In this connection, it may be relevant to
refer to one fact on which the petitioners have strongly relied.
It is urged for them that the method adopted by the
Government of Maharashtra in exercising its power under Art.
15(4) is a proper method to adopt. It appears that the
Maharashtra Government has decided to afford financial
assistance, and make monetary grants to students seeking
higher education where it is shown that the annual income of
their families is below a prescribed minimum. The said
scheme is not before us and we are not called upon to express
any opinion on it. However, we may observe that if any State
adopts such a measure, it may afford relief to and assist the
advancement of the Backward Classes in the State, because
backwardness, social and educational, is ultimately and
primarily due to poverty. An attempt can also be made to start
newer and more educational institutions, polytechnics,
vocational institutions and even rural Universities and thereby
create more opportunities for higher education. This dual
attack on the problem posed by the weakness of backward
communities can claim to proceed on a rational, broad and
scientific approach which is consistent with, and true to, the
noble ideal of a secular welfare democratic State set up by the
Constitution of this country. Such an approach can be
supplemented, if necessary by providing special provision by
way of reservation to aid the Backward classes and Scheduled
castes and Tribes. It may well be that there may be other ways
and means of achieving the same result. In our country where
social and economic conditions differ from State to State, it
would be idle to expect absolute uniformity of approach; but in
taking executive action to implement the policy of Art. 15(4), it
is necessary for the States to remember that the policy which
is intended to be implemented is the policy which has been
declared by Art. 46 and the preamble of the Constitution. It is
for the attainment of social and economic justice Art. 15(4)
authorises the making of special provisions for the
advancement of the communities there contemplated even if
such provisions may be inconsistent with the fundamental
rights guaranteed under Art. 15 or 29(2). The context,
therefore, requires that the executive action taken by the State
must be based on an objective approach, free from all
extraneous pressures. The said action is intended to do social
and economic justice and must be taken in a manner that
justice is and should be done.
Whilst we are dealing with this question, it would be relevant
to add to that the provisions of Art. 15(4) are similar to those
of Art. 16(4) which fell to be considered in the case of The
General Manager, Southern Railway v. Rangachari (1962 (2)
SCR 586). In that case, the majority decision of this Court
held that the power of reservation which is conferred on the
State under Art. 16(4) can be exercised by the State in a
proper case not only by providing for reservation of
appointments, but also by providing for reservation of
selection posts. This conclusion was reached on the basis that
it served to give effect to the intention of the Constitution
makers to make adequate safeguards for the advancement of
Backward Classes and to secure their adequate representation
in the Services. The judgment shows that the only point which
was raised for the decision of this Court in that case was
whether the reservation made was outside Art. 16(4) and that
posed the bare question about the construction of Art. 16(4).
The propriety, the reasonableness or the wisdom of the
impugned order was not questioned because it was not the
respondent's case that if the order was justified under Art.
16(4), it was a fraud on the Constitution. Even so, it was
pointed out in the judgment that the efficiency of
administration is of such a paramount importance that it
would be unwise and impermissible to make any reservation
at the cost of efficiency of administration; that, it was stated,
was undoubtedly the effect of Art. 335. Therefore, what is true
in regard to Art. 15(4) is equally true in regard to Art. 16(4).
There can be no doubt that the Constitution-makers assumed,
as they were entitled to, that while making adequate
reservation under Art. 16(4), care would be taken not to
provide for unreasonable, excessive or extravagant reservation,
for that would, by eliminating general competition in a large
field and by creating wide-spread dissatisfaction amongst the
employees, materially affect efficiency. Therefore, like the
special provision improperly made under Art. 15(4), reservation
made under Art. 16(4) beyond the permissible and legitimate
limits would be liable to be challenged as a fraud on the
Constitution. In this connection it is necessary to emphasize
that Art. 15(4) is an enabling provision; it does not impose an
obligation, but merely leaves it to the discretion of the
appropriate government to take suitable action, if necessary.”
67.To similar effect is the view expressed in K.C. Vasanth
Kumar’s case (supra) at para 150:
“At this stage it should be made clear that if on a fresh
determination some castes or communities have to go out of
the list of backward classes prepared for Article 15(4) and
Article 16(4) the Government may still pursue the policy of
amelioration of weaker sections of the population amongst
them in accordance with the directive principle contained in
article 46 of the Constitution. There are in all castes and
communities poor people who if they are given adequate
opportunity and training may be able to compete successfully
with persons belonging to richer classes. The Government may
provide for them liberal grants of scholarships, free
studentship, free boarding and lodging facilities, free
uniforms, free mid day meals etc. to make the life of poor
students comfortable. The Government may also provide extra
tutorial facilities, stationery and books free of costs and library
facilities. These and other steps should be taken in the lower
classes so that by the time a student appears for the
qualifying examination he may be able to attain a high degree
of proficiency in his studies.”
It has also been noted as follows:
“I wish to add that the doctrine of protective discrimination
embodied in Article 15(4) and 16(4) and the mandate of Article
29(2) cannot be stretched beyond a particular limit. The State
exists to serve its people. There are some services where
expertise and skill are of the essence. For example, a hospital
run by the State serves the ailing members of the public who
need medical aid. Medical services directly affect and deal
with the health and life of the populace. Profession expertise,
born of knowledge and experience, of a high degree of
technical knowledge and operation skill is required of pilots
and aviation engineers. The lives of citizens depend on such
persons. There are other similar fields of governmental
activity where professional, technological, scientific or other
special skill is called for. In such services or posts under the
Union or State, we think where can be no room for reservation
of posts; merit alone must be the sole and decisive
consideration for appointments.”
(underlined for emphasis)
68.Lengthy arguments have been advanced as to the
seriousness in identifying the backward classes. On the basis
of Indra Sawhney No.1’s judgment, the Government of India
issued orders in respect of reservations of appointments or on
posts under the Government of India in favour of backward
classes of citizens. It was the subject matter of challenge in
Indra Sawhney No.1. In its judgment dated 16.11.1992 this
Court directed the Government to constitute a permanent
body by 15.3.1993 for entertaining and examining and
recommending upon requests made for inclusion or
complaints of over inclusion and under inclusion in the lists of
backward classes of citizens.
69.Constituent Assembly Debates 1951 have also relevance
for adjudicating the controversy. The following portion needs
to be extracted:
70.Parliamentary Standing Committee Report at paras 36,
37 and 46 read as follows:
“36.The committee notes that there is a major limitation on
data about the social economic and educational profile of our
population in general and about OBCs in particular. The last
caste-based census in India was done in 1931. Accordingly
there are no periodic data available on the demographic
spread of OBCs and their access to amenities. Even the
Mandal Commission had used the 1931 Census data.
Whatever limited data are available, pertain to surveys
conducted by NSSO from 1998-99 onwards, which are only
‘sample surveys’.
37.The Committee found that there exists no accepted
mechanism/criteria to group the people into different
categories. As a result, existing list of backward
castes/communities are termed in some cases, as inaccurate.
Besides, any regular process of review is also not in place.
Such a review implies both ‘inclusion’ and ‘exclusion’. The
Committee, therefore, emphasizes the need for taking urgent
measures/steps for identifying and removing all such lacunae
and removing all such lacunae and problems by putting in
place scientific and objective mechanism/benchmarks for this
purpose.
xx xx xx
46. There have been suggestions/counter-suggestions on the
issue of exclusion of the 'creamy layer amongst OBCs in the
proposed legislation. On the one hand, it was argued that the
concept of creamy layer did not apply in the case of
reservation in admission. It was pointed out that the debate
on the exclusion of the creamy layer was misplaced as the
Supreme Court's observation regarding the exclusion of the
creamy layer within the SCs and STs from the purview of
reservation was only for public employment and promotion.
The other view in this regard was that the inclusion of the
creamy layer in reservation would defeat the very purpose of
providing reservation to the backward classes. It was also
stated that the exclusion of the creamy layer would ensure
that the intended benefits of the reservation reach to the really
deserving among the backward classes. It was further stated
that this in itself would not suffice and should be
supplemented by categorization of the backward classes in
various groups depending upon their degree of backwardness
and apportioning of appropriate percentage of reservation to
each group. It was also brought to the committee that similar
experiments in States of Andhra Pradesh, Kerala, Karnataka,
Tamil Nadu, Maharashtra etc. have, in fact, stood the test of
time and yielded the desired results.”
71.One of the petitioners “Youth for Equality” had filed a
representation before the Parliamentary Committee giving
certain important data. Relevant portions read as follows:
“TOP WITHOUT BASE
The condition of infrastructure and staff at the primary and
secondary level is of some concern and the government -
especially the Ministry for Human Resource and Development
which has proposed increased reservations, should work
towards improvement in this area for "Real" affirmative action.
According to the National Institute of Educational Planning
and Administration (in 2003) the state of affairs at the primary
level was as under:-
(i) In 62 996 schools in country do not have school
building and are operating in tents or under the trees.
(ii) In 70,739 Primary Schools - No class room.
(iii) In 95,003 primary Schools - Single Class room.
(iv) In 8,269 Primary Schools – No teacher
(v) In 1,15,267 Primary schools -Single teacher
(vi) In more than 60,000 schools the pupil : Teacher
ratio is greater than 100 :1 while the acceptable ratio is less
than 40:1.
(vii) In 84,848 schools – No black board
(viii) In More than 1 00 000 Schools - No electricity.
Apart from the above, according to the NCERT (In 1998), Only
34.6% of Govt. Schools had safe Drinking water, 13.2% had
urinal and 4.9% had urinals for girls and only 6.0% had a
lavatory. While the government promises a spending of about
6% of GDP for the development of education, the reality has
been to the contrary. The Government spending in the years
was as under:
2000-2001 4.1%
2001-2002 4.3%
2002-2004 3.8%
2004-2005 3.5%
72.The National Commission for Backward Classes Act,
1993 (in short ‘Backward Classes Act’) was accordingly
enacted. Few provisions of this Act need to be noted.
73.Section 2 (c) defines lists as follows:
“Lists means lists prepared by the Government of India from
time to time for purposes of making provisions for the
reservation of appointments or posts in favour of backward
classes of citizens which, in the opinion of that Government,
are not adequately represented in the services under the
Government of India and any local or other authority within
the territory of India or under the control of the Government of
India”.
74.Important provisions are Sections 9 and 10 which read
as follows:
“9. Functions of the Commission (1) The Commission shall
examine requests for inclusion of any class of citizens as a
backward class in such lists and hear complaints of over-
inclusion or under inclusion of any backward class in such
lists and tender such advice to the Central Government as it
deems appropriate.
(2) The advice of the Commission shall ordinarily
be binding upon the Central Government.
10. Powers of the Commission - The
Commission shall, while performing its functions under sub-
section (1) of Section 9, have all the powers of a civil court
trying a suit and in particular, in respect of the following
matters, namely:-
(a) summoning and enforcing the
attendance of any person from any part of India and
examining him on oath;
(b) requiring the discovery and
production of any document;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or
copy thereof from any court of office;
(e) issuing commissions for the
examination of witnesses and documents; and
(f) any other matter which may be
prescribed.”
75.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 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 identification. Only for the
purpose of quantum the population provides a foundation.
76.It needs no emphasis that if ultimately and indisputably
the constitutional goal is the casteless and classless society,
there has to be more effective implementation of the Backward
Classes Act. The exercise required to be undertaken under
Section 11 of the said Act is not intended to be a routine
exercise and also not an exercise in futility. It has to be not
only effective but also result oriented. The petitioners have
highlighted the lack of seriousness of the Government in
carrying out the exercise. Voluminous datas have been
brought on record in this regard. With reference to the reports
of the Commission, learned counsel for the respondents on the
other hand have stressed on the fact that the Commission has
been working with all sincerity and with the object of
effectively implementing the Backward Classes Act. One
thing needs to be noted here. Concrete data about the number
of backward classes in the country does not appear to be
available. The survey conducted by the National Sample
Survey reveals that the percentage is not 52% as is highlighted
by the respondents.
77.Section 2(g) of the Act is relevant in this regard. It reads
as follows:
“Other Backward Classes” means the class or classes of
citizens who are socially and educationally backward, and are
so determined by the Central Government.”
78.At this juncture, it is to be noted that the Backward
Classes Act in order to be wholly functional mandates
determination by the Central Government of the backward
classes for whom the Statute is intended. Undisputedly, such
determination has not been done. The plea is that for more
than half a century enough attention has not been given for
the benefit of the other backward classes in the matter of
admissions to higher educational institutions. That cannot be
a ground to act with hurry and with un-determined datas. It
may be as rightly contended by learned counsel for the
respondents that the percentage can certainly be not less than
27%. But that is no answer to the important question as to the
identity test. In the background loom the socially and
economically backward class of citizens. Poverty knows no
caste. Poor has no caste. It is an unfortunate class. It is a
matter of common knowledge that the institution of caste is a
peculiarity of Indian institution when there is considerable
controversy amongst the scholars as to how the caste system
originated in this country. Originally, there were four main
castes known as Varnas . But gradually castes and sub-castes
multiplied as the social fabric expanded with the absorption of
different groups of people who belong to various cults and
professing different religious faiths. The caste system in its
earlier stage was quite elastic but in course of time it gradually
hardened into a rigid framework based upon heredity. The
inevitable result was social inequality. At some point of time
occupation was the background for determination of castes.
May be, at some point of time it depended on the income of the
individual. But it appears to have taken disastrous turn with
difference of status of various castes. But passage of time
shows that the occupational label has lost much of its
significance. But at the same time, the poor and down
trodden who belong to the caste of their own were the
founders of poor. In Indra Sawhney No.1 this factor was
noticed.
79.It is said that one must take life in ones stride, let today
embrace the past with remembrance and the future with
longing.
80.Don’t look for the path far away, the path exists under
your feet.
81.What is past and what cannot be prevented should not
be grieved for.
82.With reference to the Office Memorandum which provides
for preference in favour of “poorer sections” over other
members of the backward classes, the expression was held to
be relatable to those who are socially and economically more
backward. The use of the word ‘poorer’ in the context was held
to be a measure of the social backwardness. It is therefore
unmistakenly recognized that economic backwardness is a
factor which can never be lost sight of. There are only two
families in the world; the haves and the have nots said Miquel
De Cervantes Don Qutxote de ta Mancha. Tolstoy has
emphatically said “We will do anything for the poor man
anything but get of his back” (quoted in Huntington
Philanthrophy and Morality).
83.William Cobbett had said “to be poor and independent is
very nearly an impossibility. (See His book ‘Advise to Young
Men’). We cannot turn Nelson’s eye to the poor, those covered
by all encompassing expression “economically backward
classes”.
84.Should this class of people be kept out of the mainstream
of governmental priorities and policies because they belong to
a particular caste? As noted above, the poor have no caste. A
person belonging to a higher caste should not be made to
suffer for what his forefathers had done several generations
back.
85.Franklin D Roosevelt in a speech in 1940 had said “It is
an unfortunate human failing that a full pocket book often
groans more loudly than an empty stomach”. The haves and
the have nots have to co-exist. If the creamy layer has to be
excluded the economically backward classes have to be
included. That would be social balancing and that would be
giving true meaning of the objectives of the Constitution.
Social empowerment cannot be and is certainly not a measure
for only socially and educationally backward classes. It also
has to be for the socially and economically backward classes.
Unless this balance, which is very delicate, is maintained the
system inevitably will develop a crack and this crack may after
a certain point of time be difficult to be joined. Instead of
lightening the society from castes or classes it will be over
burdened and a point of time may come when we shall not be
able to bear the burden any further. Timely steps in this
regard will save the Indian society and democracy from a
catastrophe of collapse because of something which the
Constitution wants to obliterate.
86.On the question of time period for the reservation, it is
submitted that length of the leap to be provided depends
upon the gap to be filled. It is fairly accepted by learned
counsel for the respondents that as and when castes reach a
higher level it is to be excluded from the zone of consideration.
It is further submitted that traditional occupation is being
pursued by persons belonging to some castes and the system
still subsists and has not broken down. In the absence of
alternative occupation which may not be lucrative, the persons
who used to previously carry on the traditional occupation
find it difficult to take up any other occupation.
87.It has been averred that consequent to several efforts,
India has made enormous progress in terms of increase in
institutions, teachers and students in elementary education.
But despite all the efforts large population of the children in
the country still remain out of school.
88.One of the contentions is that by passage of time
prolonged reservation becomes illicit. In Motor General
Traders and Anr. v. State of Andhra Pradesh and Ors. (1984
(1) SCC 222) following observations were made:
“16. What may be unobjectionable as a transitional or
temporary measure at an initial stage can still become
discriminatory and hence violative of Article 14 of the
Constitution if it is persisted in over a long period without any
justification. The trend of decisions of this Court on the above
question may be traced thus. In Bhaiyalal Shukla v. State of
Madhya Pradesh [1962] Supp. 2 S.C.R. 257 one of the
contentions urged was that the levy of sales tax in the area
which was formerly known as Vindhya Pradesh (a Part 'C'
State) on building materials used in a works contract was
discriminatory after the merger of that area in the new State of
Madhya Pradesh which was formed on November 1,1956
under the States Reorganisation Act, 1956 as the sale of
building materials in a works contract was not subject to any
levy of sales tax in another part of the same new State namely
the area which was formerly part of the area known as State of
Madhya Pradesh (the Central Provinces and Berar area). That
contention was rejected by this Court with the following
observations at pages 274-275 :
The laws in different portions of the new State of Madhya
Pradesh were enacted by different Legislatures, and under
Section 119 of the States Reorganisation Act all laws inforce
are to continue until repealed or altered by the appropriate
Legislature. We have already held that the sales tax law in
Vindhya Pradesh was validly enacted, and it brought its
validity with it under Section 119 of the States Reorganisation
Act, when it became a part of the State of Madhya Pradesh.
Thereafter, the different laws in different parts of Madhya
Pradesh can be sustained on the ground that the
differentiation arises from historical reasons, and a
geographical classification based on historical reasons has
been upheld by this Court in M.K. Prithi Rajji v. The State of
Rajasthan (Civil Appeal No. 327 of 1956 decided on November
2, 1960) and again in The State of Madhya Pradesh v. The
Gwalior Sugar Co. Ltd. (Civil Appeals Nos. 98 and 99 of 1957
decided on November 30, 1960). The latter case is important,
because the sugarcane cess levied in the former Gwalior State
but not in the rest of Madhya Bharat of which it formed a part,
was challenged on the same ground as here, but was upheld
as not affected by Article14. We, therefore, reject this
argument.
89.In N.M. Thomas’s case (supra) the parameters of various
clauses of Article 16 were highlighted as follows:
“37. The rule of equality within Articles 14 and 16(1) will not
be violated by a rule which will ensure equality of
representation in the services for unrepresented classes after
satisfying the basic needs of efficiency of administration.
Article 16(2) rules out some basis of classification including
race, caste, descent, place of birth etc. Article 16(4) clarifies
and explains that classification on the basis of backwardness
does not fall within Article 16(2) and is legitimate for the
purposes of Article 16(1). If preference shall be given to a
particular under-represented community other than a
backward class or under-represented State in an All India
Service such a rule will contravene Article 16(2). A similar rule
giving preference to an under-represented backward
community is valid and will not contravene Articles 14, 16(1)
and 16(2). Article 16(4) removes any doubt in this respect.
xx xx xx
44. Our Constitution aims at equality of status and
opportunity for all citizens including those who are socially,
economically and educationally backward. The claims of
members of backward classes require adequate representation
in legislative and executive bodies. If members of Scheduled
Castes and Tribes, who are said by this Court to be backward
classes, can maintain minimum necessary requirement of
administrative efficiency, not only representation but also
preference may be given to them to enforce equality and to
eliminate inequality. Articles 15(4) and 16(4) bring out the
position of backward classes to merit equality. Special
provisions are made for the advancement of backward classes
and reservations of appointments and posts for them to secure
adequate representation. These provisions will bring out the
content of equality guaranteed by Articles 14, 15(1) and 16(1).
The basic concept of equality is equality of opportunity for
appointment. Preferential treatment for members of backward
classes with due regard to administrative efficiency alone can
mean equality of opportunity for all citizens. Equality under
Article 16 could not have a different content from equality
under Article 14. Equality of opportunity for unequals can
only mean aggravation of inequality. Equality of opportunity
admits discrimination with reason and prohibits
discrimination without reason. Discrimination with reasons
means rational classification for differential treatment having
nexus to the Constitutionally permissible object. Preferential
representation for the backward classes in services with due
regard to administrative efficiency is permissible object and
backward classes are a rational classification recognised by
our Constitution. Therefore, differential treatment in
standards of selection is within the concept of equality.
xx xx xx
56.If we are all to be treated in the same manner, this must
carry with it the important requirement that none of us should
be better or worse in upbringing, education, than any one else
which is an unattainable ideal for human beings of anything
like the sort we now see. Some people maintain that the
concept of equality of opportunity is an unsatisfactory concept
For, a complete formulation of it renders it incompatible with
any form of human society. Take for instance, the case of
equality of opportunity for education. This equality cannot
start in schools and hence requires uniform treatment in
families which is an evident impossibility. To remedy this, all
children might be brought up in state nurseries, but, to
achieve the purpose, the nurseries would have to be run on
vigorously uniform lines. Could we guarantee equality of
opportunity to the young even in those circumstances? The
idea is well expressed by Laski:
‘Equality means, in the second place, that adequate
opportunities are laid open to all. By adequate opportunities
we cannot imply equal opportunities in a sense that implies
identity of original chance. The native endowments of men are
by no means equal. Children who are brought up in an
atmosphere where things of the mind are accounted highly are
bound to start the race of life with advantages no legislation
can secure. Parental character will inevitably affect profoundly
the equality of the children whom it touches. So long,
therefore, as the family endures - and there seems little reason
to anticipate or to desire its disappearance - the varying
environments it will create make the notion of equal
opportunities a fantastic one’.
xx xx xx
60. Bernard A.O. Williams, in his article 'The Idea of Equality"
(supra) gives an illustration of the working of the principle of
equality of opportunity:
‘Suppose that in a certain society great prestige is attached to
membership of a warrior class, the duties of which require
great physical strength. This class has in the past been
recruited from certain wealthy families only, but egalitarian
reformers achieve a change in the rules, by which warriors are
recruited from all sections of the society, on the result of a
suitable competition. The effect of this, however, is that the
wealthy families still provide virtually all the warriors, because
the rest of the populace is so undernourished by reason of
poverty that their physical strength is inferior to that of the
wealthy and well nourished. The reformers protest that
equality of opportunity has not really been achieved; the
wealthy reply that in fact it has, and that the poor now have
the opportunity of becoming warriors - it is just bad luck that
their characteristics are such that they do not pass the test-
"We are not", they might say, "excluding anyone for being
poor; we exclude people for being weak, and it is unfortunate
that those who are poor are also weak’.
xx xx xx
67. Today, the political theory which acknowledges the
obligation of government under Part IV of the Constitution to
provide jobs, medical care, old age pension, etc., extends to
human rights and imposes an affirmative obligation to
promote equality and liberty. The force of the idea of a state
with obligation to help the weaker sections of its members
seems to have increasing influence in Constitutional law. The
idea finds expression in a number of cases in America
involving social discrimination and also in the decisions
requiring the state to offset the effects of poverty by providing
counsel, transcript of appeal, expert witnesses, etc. Today, the
sense that government has affirmative responsibility for
elimination of inequalities, social, economic or otherwise, is
one of the dominant forces in Constitutional law. While special
concessions for the under-privileged have been easily
permitted, they have not traditionally been required. Decisions
in the areas of criminal procedure, voting rights and education
in America suggest that the traditional approach may not be
completely adequate. In these areas, the inquiry whether
equality has been achieved no longer ends with numerical
equality; rather the equality clause has been held to require
resort to a standard of proportional equality which requires
the state, in framing legislation, to take into account the
private inequalities of wealth, of education and other
circumstances.
xx xx xx
89. The ultimate reason for the demand of equality for the
members of backward classes is a moral perspective which
affirms the intrinsic value of all human beings and calls for a
society which provides these conditions of life which men need
for development of their varying capacities. It is an assertion of
human equality in the sense that it manifests an equal
concern for the well being of all men. On the one hand it
involves a demand for the removal of those obstacles and
impediments which stand in the way of the development of
human capacities, that is, it is a call for the abolition of
unjustifiable inequalities. On the other hand, the demand
itself gets its sense and moral driving force from the
recognition that "the poorest he that is in England hath a life
to live, as the greatest he".
90.`Equality' and `excellence' are two conflicting claims
difficult to be reconciled. The Constitution, in order to ensure
true equality provides for special treatment to socially and
educationally backward classes of citizens which is obviously
desirable for providing social justice, though at the cost of
merit. However, the Constitution does not provide at all for
‘institutional reservation.' Therefore, it's constitutionality is to
be judged on the touchstone of Article 14. A large number of
cases cropped up in this area concerning the institutional
preference for admission into postgraduate medical education
and super specialties. The judiciary came forward and laid
down detailed principles covering the need of such preference
and to limit the extent of such reservation in view of the
importance of merit in the context of national interest and
international importance of universal excellence in super
specialties.
91.It is to be noted that the foundation for fixing 27%
appears to be the view that 52% of the population belong to
OBC. There is no supportable data for this proposition. In fact,
different Commissions at different points of time have different
figures. It is the stand of the respondents that no Commission
has fixed the percentage below 52% and, therefore, there is
nothing wrong in fixing the percentage at 27%. This is not the
correct approach. It may be that in no case the percentage of
persons belonging to OBC is less than 27% but supposing in a
given case considering the fact that the actual percentage is
40% a figure less than 27% should have been fixed. The
Commission set out pursuant to the directions of this Court
seems to have somewhat acted on the petitions filed by the
people claiming exclusion or inclusion. That was not the real
purpose of this Court’s decision to direct appointment of
Commission. The very purpose was to identify the classes.
This was the exercise which was to be undertaken apart from
considering the applications for inclusion or exclusion as the
case may be. As has been conceded at the beginning of the
case affirmative action is not under challenge. Affirmative
action is nothing but a crucial component of social justice in
the constitutional dispensation but at the same time it has to
be kept in view that the same does not infringe the principles
of equality of which it is a part and/or unreasonably restraint
or restrict other fundamental freedoms and that it does not
violate the basic structure of the Constitution.
92.It needs no emphasis that Articles 15(4), 15(5) and 16(4)
have to comply with the requirements of Article 14 and the
discipline imposed in several other provisions like Articles
15(4)(a) and 15(4)(b), though, they form a part of the equality
concept, each of which is so found in our Constitution.
93.It is a well settled principle in law that the Court cannot
read anything into a statutory provision which is plain and
unambiguous. A statute is an edict of the Legislature. The
language employed in a statute is the determinative factor of
legislative intent.
94.Words and phrases are symbols that stimulate mental
references to referents. The object of interpreting a statute is
to ascertain the intention of the Legislature enacting it. (See
Institute of Chartered Accountants of India v. M/s Price
Waterhouse and Anr. (AIR 1998 SC 74). The intention of the
Legislature is primarily to be gathered from the language used,
which means that attention should be paid to what has been
said as also to what has not been said. As a consequence, a
construction which requires for its support, addition or
substitution of words or which results in rejection of words as
meaningless has to be avoided. As observed in Crawford v.
Spooner (1846 (6) Moore PC 1 ), Courts, cannot aid the
Legislatures’ defective phrasing of an Act, we cannot add or
mend, and by construction make up deficiencies which are left
there. (See The State of Gujarat and Ors . v. Dilipbhai
Nathjibhai Patel and Anr. (JT 1998 (2) SC 253). It is contrary
to all rules of construction to read words into an Act unless it
is absolutely necessary to do so. (See Stock v. Frank Jones
(Tiptan) Ltd. (1978 1 All ER 948 (HL). Rules of interpretation
do not permit Courts to do so, unless the provision as it
stands is meaningless or of doubtful meaning. Courts are not
entitled to read words into an Act of Parliament unless clear
reason for it is to be found within the four corners of the Act
itself. (Per Lord Loreburn L.C. in Vickers Sons and Maxim Ltd.
v. Evans (1910) AC 445 (HL), quoted in Jamma Masjid,
Mercara v. Kodimaniandra Deviah and Ors.(AIR 1962 SC 847).
95.The question is not what may be supposed and has been
intended but what has been said. “Statutes should be
construed not as theorems of Euclid”. Judge Learned Hand
said, “but words must be construed with some imagination of
the purposes which lie behind them”. (See Lenigh Valley Coal
Co. v. Yensavage 218 FR 547). The view was re-iterated in
Union of India and Ors. v. Filip Tiago De Gama of Vedem
Vasco De Gama (AIR 1990 SC 981).
96.In D.R. Venkatchalam and Ors. etc. v. Dy. Transport
Commissioner and Ors. etc. (AIR 1977 SC 842), it was
observed that Courts must avoid the danger of a priori
determination of the meaning of a provision based on their
own pre-conceived notions of ideological structure or scheme
into which the provision to be interpreted is somewhat fitted.
They are not entitled to usurp legislative function under the
disguise of interpretation.
97.While interpreting a provision the Court only interprets
the law and cannot legislate it. If a provision of law is misused
and subjected to the abuse of process of law, it is for the
legislature to amend, modify or repeal it, if deemed necessary.
(See Commissioner of Sales Tax, M.P. v. Popular Trading
Company, Ujjain (2000 (5) SCC 511). The legislative casus
omissus cannot be supplied by judicial interpretative process.
98.Two principles of construction – one relating to casus
omissus and the other in regard to reading the statute as a
whole – appear to be well settled. Under the first principle a
casus omissus cannot be supplied by the Court except in the
case of clear necessity and when reason for it is found in the
four corners of the statute itself but at the same time a casus
omissus should not be readily inferred and for that purpose all
the parts of a statute or section must be construed together
and every clause of a section should be construed with
reference to the context and other clauses thereof so that the
construction to be put on a particular provision makes a
consistent enactment of the whole statute. This would be more
so if literal construction of a particular clause leads to
manifestly absurd or anomalous results which could not have
been intended by the Legislature. “An intention to produce an
unreasonable result”, said Danackwerts, L.J. in Artemiou v.
Procopiou (1966 1 QB 878), “is not to be imputed to a statute
if there is some other construction available”. Where to apply
words literally would “defeat the obvious intention of the
legislature and produce a wholly unreasonable result” we
must “do some violence to the words” and so achieve that
obvious intention and produce a rational construction. (Per
Lord Reid in Luke v. IRC (1963 AC 557) where at p. 577 he
also observed: “this is not a new problem, though our
standard of drafting is such that it rarely emerges”.
99.It is then true that, “when the words of a law extend not
to an inconvenience rarely happening, but due to those which
often happen, it is good reason not to strain the words further
than they reach, by saying it is casus omissus, and that the
law intended quae frequentius accidunt.” “But,” on the other
hand, “it is no reason, when the words of a law do enough
extend to an inconvenience seldom happening, that they
should not extend to it as well as if it happened more
frequently, because it happens but seldom” (See Fenton v.
Hampton (1858) XI Moore, P.C. 347). A casus omissus ought
not to be created by interpretation, save in some case of strong
necessity. Where, however, a casus omissus does really occur,
either through the inadvertence of the legislature, or on the
principle quod semel aut bis existit praeterunt legislatores
(legislators says pass over that which happens only once or
twice), the rule is that the particular case, thus left unprovided
for, must be disposed of according to the law as it existed
before such statute - Casus omissus et oblivioni datus
dispositioni communis juris relinquitur; “a casus omissus,”
observed Buller, J. in Jones v. Smart (1 T.R. 52), “can in no
case be supplied by a court of law, for that would be to make
laws.”
100.The golden rule for construing wills, statutes, and, in
fact, all written instruments has been thus stated: “The
grammatical and ordinary sense of the words is to be adhered
to unless that would lead to some absurdity or some
repugnance or inconsistency with the rest of the instrument,
in which case the grammatical and ordinary sense of the
words may be modified, so as to avoid that absurdity and
inconsistency, but no further” (See Grey v. Pearson (1857 (6)
H.L. Cas. 61). The latter part of this “golden rule” must,
however, be applied with much caution. “if,” remarked Jervis,
C.J., “the precise words used are plain and unambiguous in
our judgment, we are bound to construe them in their
ordinary sense, even though it lead, in our view of the case, to
an absurdity or manifest injustice. Words may be modified or
varied where their import is doubtful or obscure. But we
assume the functions of legislators when we depart from the
ordinary meaning of the precise words used, merely because
we see, or fancy we see, an absurdity or manifest injustice
from an adherence to their literal meaning” (See Abley v. Dale
11, C.B. 378).
101.Classifications on the basis of castes in the long run has
tendency of inherently becoming pernicious. Therefore, the
test of reasonableness has to apply. When the object is
elimination of castes and not perpetuation to achieve the goal
of casteless 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. In Nagaraj’s case
(supra) it was inter alia observed as follows:
“44. The above three concepts are independent variable
concepts. The application of these concepts in public
employment depends upon quantifiable data in each case.
Equality in law is different from equality in fact. When we
construe Article 16(4), it is equality in fact which plays the
dominant role. Backward Classes seek justice. General class
in public employment seeks equity. The difficulty comes in
when the third variable comes in, namely, efficiency in service.
In the issue of reservation, we are being asked to find a stable
equilibrium between justice to the backwards, equity for the
forwards and efficiency for the entire system. Equity and
justice in the above context are hard concepts. However, if you
add efficiency to equity and justice, the problem arises in the
context of the reservation. This problem has to be examined,
therefore, on the facts of each case. Therefore, Article 16(4)
has to be construed in the light of Article 335 of the
Constitution. Inadequacy in representation and backwardness
of the Scheduled Castes and Scheduled Tribes are
circumstances which enable the State Government to act
under Article 16(4) of the Constitution. However, as held by
this Court the limitations on the discretion of the Government
in the matter of reservation under Article 16(4) as well as
Article 16(4-A) come in the form of Article 335 of the
Constitution.
xx xx xx
46. The point which we are emphasising is that ultimately the
present controversy is regarding the exercise of the power by
the State Government depending upon the fact situation in
each case. Therefore, “vesting of the power” by an enabling
provision may be constitutionally valid and yet “exercise of the
power” by the State in a given case may be arbitrary,
particularly, if the State fails to identify and measure
backwardness and inadequacy keeping in mind the efficiency
of service as required under Article 335.
xx xx xx
48. It is the equality “in fact” which has to be decided looking
at the ground reality. Balancing comes in where the question
concerns the extent of reservation. If the extent of reservation
goes beyond cut-off point then it results in reverse
discrimination. Anti-discrimination legislation has a tendency
of pushing towards de facto reservation. Therefore, a
numerical benchmark is the surest immunity against charges
of discrimination.
49. Reservation is necessary for transcending caste and not
for perpetuating it. Reservation has to be used in a limited
sense otherwise it will perpetuate casteism in the country.
Reservation is underwritten by a special justification. Equality
in Article 16(1) is individual-specific whereas reservation in
Article 16(4) and Article 16(4-A) is enabling. The discretion of
the State is, however, subject to the existence of
“backwardness” and “inadequacy of representation” in public
employment. Backwardness has to be based on objective
factors whereas inadequacy has to factually exist. This is
where judicial review comes in. However, whether reservation
in a given case is desirable or not, as a policy, is not for us to
decide as long as the parameters mentioned in Articles 16(4)
and 16(4-A) are maintained. As stated above, equity, justice
and merit (Article 335)/efficiency are variables which can only
be identified and measured by the State. Therefore, in each
case, a contextual case has to be made out depending upon
different circumstances which may exist State-wise.
xx xx xx
102. In the matter of application of the principle of basic
structure, twin tests have to be satisfied, namely, the “width
test” and the test of “identity”. As stated hereinabove, the
concept of the “catch-up” rule and “consequential seniority”
are not constitutional requirements. They are not implicit in
clauses (1) and (4) of Article 16. They are not constitutional
limitations. They are concepts derived from service
jurisprudence. They are not constitutional principles. They are
not axioms like, secularism, federalism, etc. Obliteration of
these concepts or insertion of these concepts does not change
the equality code indicated by Articles 14, 15 and 16 of the
Constitution. Clause (1) of Article 16 cannot prevent the State
from taking cognizance of the compelling interests of
Backward Classes in the society. Clauses (1) and (4) of Article
16 are restatements of the principle of equality under Article
14. Clause (4) of Article 16 refers to affirmative action by way
of reservation. Clause (4) of Article 16, however, states that the
appropriate Government is free to provide for reservation in
cases where it is satisfied on the basis of quantifiable data
that Backward Class is inadequately represented in the
services. Therefore, in every case where the State decides to
provide for reservation there must exist two circumstances,
namely, “backwardness” and “inadequacy of representation”.
As stated above, equity, justice and efficiency are variable
factors. These factors are context-specific. There is no fixed
yardstick to identify and measure these three factors, it will
depend on the facts and circumstances of each case. These
are the limitations on the mode of the exercise of power by the
State. None of these limitations have been removed by the
impugned amendments. If the State concerned fails to identify
and measure backwardness, inadequacy and overall
administrative efficiency then in that event the provision for
reservation would be invalid. These amendments do not alter
the structure of Articles 14, 15 and 16 (equity code). The
parameters mentioned in Article 16(4) are retained. Clause (4-
A) is derived from clause (4) of Article 16. Clause (4-A) is
confined to SCs and STs alone. Therefore, the present case
does not change the identity of the Constitution. The word
“amendment” connotes change. The question is—whether the
impugned amendments discard the original Constitution. It
was vehemently urged on behalf of the petitioners that the
Statement of Objects and Reasons indicates that the
impugned amendments have been promulgated by Parliament
to overrule the decisions of this Court. We do not find any
merit in this argument. Under Article 141 of the Constitution
the pronouncement of this Court is the law of the land. The
judgments of this Court in Virpal Singh, Ajit Singh (I), Ajit
Singh (II) and Indra Sawhney were judgments delivered by this
Court which enunciated the law of the land. It is that law
which is sought to be changed by the impugned constitutional
amendments. The impugned constitutional amendments are
enabling in nature. They leave it to the States to provide for
reservation. It is well settled that Parliament while enacting a
law does not provide content to the “right”. The content is
provided by the judgments of the Supreme Court. If the
appropriate Government enacts a law providing for reservation
without keeping in mind the parameters in Article 16(4) and
Article 335 then this Court will certainly set aside and strike
down such legislation. Applying the “width test”, we do not
find obliteration of any of the constitutional limitations.
Applying the test of “identity”, we do not find any alteration in
the existing structure of the equality code. As stated above,
none of the axioms like secularism, federalism, etc. which are
overarching principles have been violated by the impugned
constitutional amendments. Equality has two facets— “formal
equality” and “proportional equality”. Proportional equality is
equality “in fact” whereas formal equality is equality “in law”.
Formal equality exists in the rule of law. In the case of
proportional equality the State is expected to take affirmative
steps in favour of disadvantaged sections of the society within
the framework of liberal democracy. Egalitarian equality is
proportional equality.
xx xx xx
107. It is important to bear in mind the nature of
constitutional amendments. They are curative by nature.
Article 16(4) provides for reservation for Backward Classes in
cases of inadequate representation in public employment.
Article 16(4) is enacted as a remedy for the past historical
discriminations against a social class. The object in enacting
the enabling provisions like Articles 16(4), 16(4-A) and 16(4-B)
is that the State is empowered to identify and recognise the
compelling interests. If the State has quantifiable data to show
backwardness and inadequacy then the State can make
reservations in promotions keeping in mind maintenance of
efficiency which is held to be a constitutional limitation on the
discretion of the State in making reservation as indicated by
Article 335. As stated above, the concepts of efficiency,
backwardness, inadequacy of representation are required to
be identified and measured. That exercise depends on
availability of data. That exercise depends on numerous
factors. It is for this reason that enabling provisions are
required to be made because each competing claim seeks to
achieve certain goals. How best one should optimise these
conflicting claims can only be done by the administration in
the context of local prevailing conditions in public
employment. This is amply demonstrated by the various
decisions of this Court discussed hereinabove. Therefore, there
is a basic difference between “equality in law” and “equality in
fact” (see Affirmative Action by William Darity). If Articles 16(4-
A) and 16(4-B) flow from Article 16(4) and if Article 16(4) is an
enabling provision then Articles 16(4-A) and 16(4-B) are also
enabling provisions. As long as the boundaries mentioned in
Article 16(4), namely, backwardness, inadequacy and
efficiency of administration are retained in Articles 16(4-A) and
16(4-B) as controlling factors, we cannot attribute
constitutional invalidity to these enabling provisions. However,
when the State fails to identify and implement the controlling
factors then excessiveness comes in, which is to be decided on
the facts of each case. In a given case, where excessiveness
results in reverse discrimination, this Court has to examine
individual cases and decide the matter in accordance with law.
This is the theory of “guided power”. We may once again
repeat that equality is not violated by mere conferment of
power but it is breached by arbitrary exercise of the power
conferred”.
102. In Minerva Mills Ltd. v. Union of India (1980) 3 SCC
625) it was observed as follows:
“57. This is not mere semantics. The edifice of our
Constitution is built upon the concepts crystallised in the
preamble. We resolved to constitute ourselves into a Socialist
State which carried with it the obligation to secure to our
people justice — social, economic and political. We, therefore,
put Part IV into our Constitution containing directive
principles of State policy which specify the socialistic goal to
be achieved. We promised to our people a democratic polity
which carries with it the obligation of securing to the people
liberty of thought, expression, belief, faith and worship;
equality of status and of opportunity and the assurance that
the dignity of the individual will at all costs be preserved. We,
therefore, put Part III in our Constitution conferring those
rights on the people. Those rights are not an end in
themselves but are the means to an end. The end is specified
in Part IV. Therefore, the rights conferred by Part III are
subject to reasonable restrictions and the Constitution
provides that enforcement of some of them may, in stated
uncommon circumstances, be suspended. But just as the
rights conferred by Part III would be without a radar and a
compass if they were not geared to an ideal, in the same
manner the attainment of the ideals set out in Part IV would
become a pretence for tyranny if the price to be paid for
achieving that ideal is human freedoms. One of the faiths of
our founding fathers was the purity of means. Indeed, under
our law, even a dacoit who has committed a murder cannot be
put to death in the exercise of right of self-defence after he has
made good his escape. So great is the insistence of civilised
laws on the purity of means. The goals set out in Part IV have,
therefore, to be achieved without the abrogation of the means
provided for by Part III. It is in this sense that Parts III and IV
together constitute the core of our Constitution and, combine
to form its conscience. Anything that destroys the balance
between the two parts will ipso facto destroy an essential
element of the basic structure of our Constitution”.
103. The view was affirmed in T.M.A. Pai Foundation and Ors.
v. State of Karnataka and Ors. (2002 (8) SCC 481)
104. It has been highlighted that Articles 15(4) and 15(5) are
irreconcilable. It is pointed out that Article 30 is not intended
to pamper any class of people, but is intended to assure
minorities regarding the right to establish. In that sense,
Article 19(1)(g) is applicable. The said right is an inalienable
and sacrosanct right. According to Mr. Venugopal, Article
15(5) carved out an area from Article 15(4). Article 29(2) has to
be read into Article 15(5) as Articles 15(4) and 15(5) operated
side by side. As a result of Article 15(5) by special provision
minorities unaided rights are excluded. Article 30 does not
relate to any special right for protection against majority and it
cannot be termed to be any higher right and, therefore, Article
19(1)(g) restriction is not there. The object is not to create
inequality.
105.It is pointed out that both Articles 15(4) and 15(5) begin
with non obstante provision. Article 15(5) is a later
introduction. It is stated that Article 15(1) has to prevail over
Article 15(4) and the right given to certain class of people in
Article 15(4) gets eliminated because of Article 15(5).
106.Provisions of the Constitution have to be read
harmoniously and no part can be treated to be redundant. In
our considered view both the provisions 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).
107. 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
valeat 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. [See Broom’s
Legal Maxims (10th Edn.), p. 361, Craies on Statutes (7th
Edn.), p. 95 and Maxwell on Statutes (11th Edn.).
108. 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 that
end unattainable. (See Whitney v. IRC (1926 AC 37) at p. 52
referred to in CIT v. S. Teja Singh (AIR 1959 SC 352) and
Gursahai Saigal v. CIT (AIR 1963 SC 1062).
109. The courts will have to reject that construction
which will defeat the plain intention of the legislature even
though there may be some inexactitude in the language used.
(See Salmon v. Duncombe (1886) 11AC 627 at p.634, Curtis v.
Stovin (1889) 22 QBD 513) referred to in S. Teja Singh case .)
110. 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. (See Nokes v. Doncaster Amalgamated Collieries (1940
(3) All ER 549) referred to in Pye v. Minister for Lands for NSW
(1954) 3 All ER 514. The principles indicated in the said cases
were reiterated by this Court in Mohan Kumar Singhania v.
Union of India (1992 Supp (1) SCC 594).
111. 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.
112. The court must ascertain the intention of the
legislature by directing its attention 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 setting in which the
clause to be interpreted occurs. (See R.S. Raghunath v. State
of Karnataka (1992) 1 SCC 335) 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. (See Sultana
Begum v. Prem Chand Jain 1997 (1) SCC 373.)
113. 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.
114. 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 a “useless lumber” or “dead letter” is
not a harmonized construction. To harmonise is not to
destroy.
115. 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 Valeat 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.
116. In Indra Sawhney’s No.1 the desirability of excluding
some posts from the zone of reservation was highlighted. It
was also emphasized that periodic review of policy of
reservation was imperative. It was inter-alia observed as
follows:
“838. While on Article 335, we are of the opinion that there
are certain services and positions where either on account of
the nature of duties attached to them or the level (in the
hierarchy) at which they obtain, merit as explained
hereinabove, alone counts. In such situations, it may not be
advisable to provide for reservations. For example technical
posts in research and development
organizations/departments/institutions, in specialties and
super-specialties in medicine, Engineering and other such
courses in physical sciences and mathematics in defence
services and in the establishment connected therewith.
Similarly, in the case of posts at the higher echelons e.g.
Professors (in Education), Pilots in Indian Airlines and Air
India, Scientists and Technicians in Nuclear and Space
application, provision for reservation would not be advisable.
xx xx xx
840.We may point out that the services/posts enumerated
above, on account of their nature and duties attached, are
such as call for highest level of intelligence, skill and
excellence. Some of them are second level and third level
posts in the ascending order. Hence, they form a category
apart. Reservation therein may not be consistent with
“efficiency of administration” contemplated by Article 335.
xx xx xx
859. “We may summarise our answers to the various
questions dealt with and answered hereinabove;
(1) (a) It is not necessary that the ‘provision’
under Article 16(4) should necessarily be made by the
Parliament/Legislature. Such a provision can be made by the
Executive also. Local bodies, statutory Corporations and
other instrumentalities of the State falling under Article 12 of
the Constitution are themselves competent to make such a
provision, if so advised.
(b) An executive order making a provision
under Article 16(4) is enforceable the moment it is made and
issued.
(2)(a)Clause (4) of Article 16 is not an exception to clause
(1). It is an instance and an illustration of the classification
inherent in clause (1).
(b)Article 16(4) is exhaustive of the subject of reservation in
favour of backward class of citizens, as explained in this
judgment.
(c)Reservations can also be provided underclause (1)
of Article 16. It is not confined to extending of preferences,
concessions or exemptions alone. These reservations, if any,
made under clause (1) have to be so adjusted and
implemented as not to exceed the level of representation
prescribed for ‘backward class of citizens’ – as explained in
this judgment.
3.(a)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). Among non-Hindus, there
are several occupational groups, sets and denominations,
which for historical reasons are socially backward. They too
represent backward, social collectivities for the purposes of
Article 16(4).
(b)Neither the Constitution nor the law prescribes the
procedure or method of identification of backward classes. Nor
is it possible or advisable for the court to lay down any such
procedure or method. It must be left to the authority
appointed to identify. It can adopt such method/procedure as
it thinks convenient and so long as its survey covers the entire
populace, no objection can be taken to it. Identification of the
backward classes can certainly be done with reference to
castes among, and alongwith, other occupational groups,
classes and sections of people. One can start the process
either with occupational groups or with castes or with some
other groups. Thus one can start the process with castes,
wherever they are found, apply the criteria (evolved for
determining backwardness) and find out whether it satisfy 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 all available groups, sections and
classes in society. Since caste represents an existing,
identifiable social group/class encompassing an overwhelming
minority of the country’s population, one can well begin with it
and then go to other groups, sections and classes.
(c)It is not correct to say that the backward class of citizens
contemplated in Article 16(4) is the same as the socially and
educationally backward classes referred to in Article 15(4). It
is much wider. The accent in Article 16(4) is on social
backwardness. Of course, social, educational and economic
backwardness are closely inter-twined in the Indian context.
(d)‘Creamy layer’ can be, and must be excluded.
(e)It is not necessary for a class to be designated as a
backward class that it is situated similarly to the Scheduled
Castes/Scheduled Tribes.
f)The adequacy of representation of a particular class in
the services under the State is a matter within the subjective
satisfaction of the appropriate Government. The judicial
scrutiny in that behalf is the same as in other matters within
the subjective satisfaction of an authority.
(4) (a) A backward class of citizens cannot be identified only
and exclusively with reference to economic criteria.
(b) It is, of course, permissible for the Government or other
authority to identify a backward class of citizens on the basis
of occupation cum income, without reference to caste, if it is
so advised.
5.There is no constitutional bar to classify the backward
classes of citizens into backward and more backward
categories.
6.(a) and (b) The reservations contemplated in clause (4) of
Article 16 should not exceed 50%. While 50% shall be the rule,
it is necessary not to put out of consideration certain extra
ordinary situation inherent in the great diversity of this
country and the people.
117. In Vasanth Kumar’s case (supra) at para 2(4), it was
observed as follows:
“2(4). The policy of reservations in employment, education and
legislative institutions should be reviewed every five years or
so. That will at once afford an opportunity (i) to the State to
rectify distortions arising out of particular facets of the
reservation policy and (ii) to the people, both backward and
non-backward, to ventilate their views in a public debate on
the practical impact of the policy of reservations.”
118. In State of A.P. & Anr. v. P. Sagar (1968 (3) SCR 595)
at para 15, it was observed as follows:
“Article 15 guarantees by the first clause a fundamental right
of far-reaching importance to the public generally. Within
certain defined limits an exception has been engrafted upon
the guarantee of the freedom in cl. (1), but being in the nature
of an exception, the conditions which justify departure must
be strictly shown to exist. When a dispute is raised before a
Court that a particular law which is inconsistent with the
guarantee against discrimination is valid on the plea that it is
permitted under clause (4) of Art. 15 the assertion by the State
that the officers of the State had taken into consideration the
criteria which had been adopted by the Courts for determining
who the socially and educationally backward classes of the
Society are, or that the authorities had acted in good faith in
determining the socially and educationally backward classes
of citizens, would not be sufficient to sustain the validity of the
claim. The Courts of the country are invested with the power
to determine the validity of the law which infringes the
fundamental rights of citizens and others and when a question
arises whether a law which prima facie infringes a guaranteed
fundamental right is within an exception, the validity of that
law has to be determined by the Courts on materials placed
before them. By merely asserting that the law was made after
full consideration of the relevant evidence and criteria which
have a bearing thereon, and was within the exception, the
jurisdiction of the Courts to determine whether by making the
law a fundamental right has been infringed is not excluded.”
119.Significant observations were made in Kumari K.S.
Jayasree and Anr. v. The State of Kerala and Anr. (1976 (3)
SCC 730 ). At para 22 it was noted as follows:
.“The problem of determining who are socially and
educationally backward classes is undoubtedly not simple.
Sociological and economic considerations come into play in
evolving proper criteria for its determination. This is the
function of the State. The Court's jurisdiction is to decide
whether the tests applied are valid. If it appears that tests
applied are proper and valid the classification of socially and
educationally backward classes based on the tests will have to
be consistent with the requirements of Article 15(4). The
Commission has found on applying the relevant tests that the
lower income group of the communities named in Appendix
VIII of the Report constitute the socially and educationally
backward classes. In dealing with the question as to whether
any class of citizens is socially backward or not, it may not be
irrelevant to consider the caste of the said group of citizens. It
is necessary to remember that special provision is
contemplated for classes of citizens and not for individual
citizens as such, and so though the caste of the group of
citizen may be relevant, its importance should not be
exaggerated. If the classification is based solely on caste of the
citizen, it may not be logical. Social backwardness is the result
of poverty to a very large extent. Caste and poverty are both
relevant for determining the backwardness. But neither caste
alone nor poverty alone will be the determining tests. When
the Commission has determined a class to be socially and
educationally backward it is not on the basis of income alone,
and the determination is based on the relevant criteria laid
down by the Court. Evidence and material are placed before
the Commission. Article 15(4) which speaks of backwardness
of classes of citizens indicates that the accent is on classes of
citizens. Article 15(4) also speaks of Scheduled Castes and
Scheduled Tribes. Therefore, socially and educationally
backward classes of citizens in Article 15(4) cannot be equated
with castes. In R. Chitralekha and Anr. v. State of Mysore and
Ors. ( 1964 (6) SCR 368 ) this Court said that the classification
of backward classes based on economic conditions and
occupations does not offend Article 15(4).”
120. Further, in Minor A. Peeriakaruppan, Sobha Joseph v.
State of Tamil Nadu and Ors. (1971 (1) SCC 38) at para 29 it
was observed as follows:
“Rajendran's case (1968 (2) SCR 786) is an authority for the
proposition that the classification of backward classes on the
basis of castes is within the purview of Article 15(4) if those
castes are shown to be socially and educationally backward.
No further material has been placed before us to show that the
reservation for backward classes with which we are herein
concerned is not in accordance with Article 15(4). There is no
gainsaying the fact the there are numerous castes in this
country which are socially and educationally backward. To
ignore their existence is to ignore the facts of life. Hence we
are unable to uphold the contention that impugned
reservation is not in accordance with Article 15(4). But all the
same the Government should not proceed on the basis that
once a class is considered as a backward class it should
continue to be backward class for all times. Such an approach
would defeat the very purpose of the reservation because once
a class reaches a stage of progress which some modern writers
call as take off stage then competition is necessary for their
future progress. The Government should always keep under
review the question of reservation of seats and only the classes
which are really socially and educationally backward should
be allowed to have the benefit of reservation. Reservation of
seats should not be allowed to become a vested interest. The
fact that candidates of backward classes have secured about
50% of the seats in the general pool does show that the time
has come for a de novo comprehensive examination of the
question. It must be remembered that the Government's
decision in this regard is open to judicial review.”
121.It has been highlighted that the Act has been made
applicable to Central Educational Institutions established,
maintained or aided by the Central Government. Central
Educational Institutions have been defined in Section 2(d) as
follows:
“2(d) Central Educational Institution” means-
(i) a university established or incorporated
by or under a Central Act;
(ii) an institution of national importance set
up by an Act of Parliament;
(iii) an institution, declared as a deemed
University under Section 3 of the University Grants
Commission Act, 1956 and maintained by or receiving aid
from the Central Government;
(iv) an institution maintained by or receiving
aid from the Central Government, whether directly or
indirectly, and affiliated to an institution referred to in clause
(i) or clause (ii), or a constituent unit of an institution referred
to in clause (iii);
(v) an educational institution set up by the
Central Government under the Societies Registration Act,
1860.”
122. It is pointed out that there cannot be any reservations
in respect of super specialities and institutions imparting
education of highly complex subjects. The example of All India
Institute of Medical Sciences has been given. It has been
pointed out that its status as an institution for super
speciality has been judicially recognized. It needs to be noted
that in terms of Section 4(b) of the Act certain educational
institutions have been excluded from the operation of the Act.
123. The Act has been made inapplicable to them. It is to be
noted that in the said provision, 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 strategic 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 in the Schedule of the Act.
124. One of the major issues highlighted by Mr. P.P. Rao was
that in several cases the matriculation standard of education
was considered to be the measure for measuring
backwardness. It is, therefore, submitted that when at least
half of the persons belonging to a particular caste have
reached the matriculation level of education, they cannot be
considered to be educationally backward any longer. It is
therefore submitted that if that be taken as a yardstick for
measuring backwardness then the reservation of seats for
technical education or in higher studies cannot be sustained.
It has also been highlighted that the shift of emphasis from
primary and basic education to higher education is against the
constitutional mandate making education compulsory in
terms of Article 21-A of the Constitution. 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 learned counsel for 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.
125. There is substance in this plea. 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 as rightly contended by Mr. P.P. Rao that in
several decisions, for example, M.R. Balaji’s case (supra),
Balram’s case (supra) and Kumari K.S. Jayasree’s case
(supra) 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 can 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 50 per cent norms fixed by this
Court. Slightly variable plus or minus would be the
appropriate standard to gauge educational backwardness.
126. One of the grey areas which have been highlighted by
learned counsel for the petitioners is that caste is not a
substitute for class and nevertheless the two terms are not
synonyms. Much of the argument in this regard is centred
round the paragraphs 782 and 783 of Indra Sawhney No.1
(supra). The same read as under:
“782. Coming back to the question of identification, the fact
remains that one has to begin somewhere — with some group,
class or section. There is no set or recognised method. There is
no law or other statutory instrument prescribing the
methodology. The ultimate idea is to survey the entire
populace. If so, one can well begin with castes, which
represent explicit identifiable social classes/groupings, more
particularly when Article 16(4) seeks to ameliorate social
backwardness. What is unconstitutional with it, more so when
caste, occupation poverty and social backwardness are so
closely intertwined in our society? [Individual survey is out of
question, since Article 16(4) speaks of class protection and not
individual protection]. This does not mean that one can wind
up the process of identification with the castes. Besides castes
(whether found among Hindus or others) there may be other
communities, groups, classes and denominations which may
qualify as backward class of citizens. For example, in a
particular State, Muslim community as a whole may be found
socially backward. (As a matter of fact, they are so treated in
the State of Karnataka as well as in the State of Kerala by
their respective State Governments). Similarly, certain sections
and denominations among Christians in Kerala who were
included among backward communities notified in the former
princely State of Travancore as far back as in 1935 may also
be surveyed and so on and so forth. Any authority entrusted
with the task of identifying backward classes may well start
with the castes. It can take caste ‘A’, apply the criteria of
backwardness evolved by it to that caste and determine
whether it qualifies as a backward class or not. If it does
qualify, what emerges is a backward class, for the purposes of
clause (4) of Article 16. The concept of ‘caste’ in this behalf is
not confined to castes among Hindus. It extends to castes,
wherever they obtain as a fact, irrespective of religious
sanction for such practice. Having exhausted the castes or
simultaneously with it, the authority may take up for
consideration other occupational groups, communities and
classes. For example, it may take up the Muslim community
(after excluding those sections, castes and groups, if any, who
have already been considered) and find out whether it can be
characterised as a backward class in that State or region, as
the case may be. The approach may differ from State to State
since the conditions in each State may differ from State to
State since the conditions in each State may differ. Nay, even
within a State, conditions may differ from region to region.
Similarly, Christians may also be considered. If in a given
place, like Kerala, there are several denominations, sections or
divisions, each of these groups may separately be considered.
In this manner, all the classes among the populace will be
covered and that is the central idea. The effort should be to
consider all the available groups, sections and classes of
society in whichever order one proceeds. Since caste
represents an existing, identifiable, social group spread over
an over whelming majority of the country’s population, we say
one may well begin with castes, if one so chooses, and then go
to other groups, sections and classes. We may say, at this
stage, that we broadly commend the approach and
methodology adopted by the Justice O. Chinnappa Reddy
Commission in this respect.
783. We do not mean to suggest — we may reiterate — that
the procedure indicated hereinabove is the only procedure or
method/approach to be adopted. Indeed, there is no such
thing as a standard or model procedure/approach. It is for the
authority (appointed to identify) to adopt such approach and
procedure as it thinks appropriate, and so long as the
approach adopted by it is fair and adequate, the court has no
say in the matter. The only object of the discussion in the
preceding para is to emphasise that if a
Commission/Authority begins its process of identification with
castes (among Hindus) and occupational groupings among
others, it cannot by that reason alone be said to be
constitutionally or legally bad. We must also say that there is
no rule of law that a test to be applied for identifying backward
classes should be only one and/or uniform. In a vast country
like India, it is simply not practicable. 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.”
127. On a closer reading of the paragraphs it appears that
this Court took note of the fact that several religions do not
have any caste. Therefore, the first sentence of para`782 lays
emphasis to begin somewhere – with some group, class or
section. It also states that there is no set or recognized method
and there is no law or other statutory instrument prescribing
the methodology. In this context, it has also been stated that
one can well begin with castes which represent explicit
identifiable social classes or groupings. Therefore, the
emphasis was on beginning with castes which represent as
explicit identifiable social classes or grouping. Again in
paragraph 783, it has been stated that in a vast country like
India it is simply not practicable to fix the test for identifying
backward classes. In that background it was held that if the
real objective is to discover and locate the real backwardness
and if such backwardness is found in a caste it can be
considered as backwardness. Similarly if it is found in any
other group, section or class they too can be treated as
backward. The intention therefore is clear that if caste is
found to be backward it can certainly be treated as backward.
To give any other meaning would be adding or subtracting to
what has been specifically stated in the decision.
128. It is also relevant to take note of certain earlier
decisions referred to in Indra Sawhney No.1 case (supra)
which throw beacon light on the issue. They are as under:
1. M.R. Balaji v. State of Mysore,1963 Supp (1) SCR
439
“Article 15(4) authorises the State to make a special provision
for the advancement of any socially and educationally
backward classes of citizens, as distinguished from the
Scheduled Castes and Scheduled Tribes. No doubt, special
provision can be made for both categories of citizens, but in
specifying the categories, the first category is distinguished
from the second. Sub-clauses (24) and (25) of Article 366
define Scheduled Castes and Scheduled Tribes respectively,
but there is no clause defining socially and educationally
backward classes of citizens, and so, in determining the
question as to whether a particular provision has been validly
made under Article 15(4) or not, the first question which falls
to be determined is whether the State has validly determined
who should be included in these Backward Classes. It seems
fairly clear that the backward classes of citizens for whom
special provision is authorised to be made are, by Article 15(4)
itself, treated as being similar to the Scheduled Castes and
Scheduled Tribes. Scheduled Castes and Scheduled Tribes
which have been defined were known to be backward and the
Constitution-makers felt no doubt that special provision had
to be made for their advancement. It was realised that in the
Indian Society there were other classes of citizens who were
equally, or may be somewhat less, backward than the
Scheduled Castes and Tribes and it was thought that some
special provision ought to be made even for them.
Let us take the
question of social backwardness first. By what test should it
be decided whether a particular class is socially backward or
not? The group of citizens to whom Article 15(4) applies are
described as “classes of citizens”, not as castes of citizens. A
class, according to the dictionary meaning, shows division of
society according to status, rank or caste. In the Hindu social
structure, caste unfortunately plays an important part in
determining the status of the citizen. Though according to
sociologists and vedic scholars, the caste system may have
originally begun on occupational or functional basis, in course
of time, it became rigid and inflexible. The history of the
growth of caste system shows that its original functional and
occupational basis was later over-burdened with
considerations of purity based on ritual concepts, and that led
to its ramifications which introduced inflexibility and rigidity.
This artificial growth inevitably tended to create a feeling of
superiority and inferiority, and to foster narrow caste loyalties.
Therefore, in dealing with the question as to whether any class
of citizens is socially backward or not, it may not be irrelevant
to consider the caste of the said group of citizens. In this
connection it is, however, necessary to bear in mind that the
special provision is contemplated for classes of citizens and
not for individual citizens as such, and so, though the caste of
the group of citizens may be relevant, its importance should
not be exaggerated. If the classification of backward classes of
citizens was based solely on the caste of the citizen, it may not
always be logical and may perhaps contain the vice of
perpetuating the castes themselves.
xx xx xx
Besides, if the caste of the group of citizens was made the sole
basis for determining the social backwardness of the said
group, that test would inevitably break down in relation to
many sections of Indian society which do not recognise castes
in the conventional sense known to Hindu society. How is one
going to decide whether Muslims, Christians or Jains, or even
Lingayats are socially backward or not? The test of castes
would be inapplicable to those groups, but that would hardly
justify the exclusion of these groups in toto from the operation
of Article 15(4). It is not unlikely that in some States some
Muslims or Christians or Jains forming groups may be socially
backward. That is why we think that though castes in relation
to Hindus may be a relevant factor to consider in determining
the social backwardness of groups or classes of citizens, it
cannot be made the sole or the dominant test in that behalf.
Social backwardness is on the ultimate analysis the result of
poverty to a very large extent. The classes of citizens who are
deplorably poor automatically become socially backward. They
do not enjoy a status in society and have, therefore, to be
content to take a backward seat. It is true that social
backwardness which results from poverty is likely to be
aggravated by considerations of caste to which the poor
citizens may belong, but that only shows the relevance of both
caste and poverty in determining the backwardness of citizens.
2. R. Chitralekha v State of Mysore AIR 1964 SC 1823
Justice Subba Rao referred to the observations in M.R.
Balaji v. State of Mysore and observed:
“15. Two principles stand out prominently from the said
observations, namely, (i) the caste of a group of citizens may
be a relevant circumstance in ascertaining their social
backwardness; and (ii) though it is a relevant factor to
determine the social backwardness of a class of citizens, it
cannot be the dole or dominant test in that behalf. The
observations extracted in the judgment of the High Court
appear to be in conduct with the observations of this Court.
While this Court said that caste is only a relevant
circumstance and that it cannot be the dominant test in
ascertaining the backwardness of a class of citizens, the High
Court said that it is an important basis in determining the
class of backward Hindus and that the Government should
have adopted caste as one of the tests. As the said
observations made by the High Court may lead to some
confusion in the mind of the authority concerned who may be
entrusted with the duty of prescribing the rules for
ascertaining the backwardness of classes of citizens within the
meaning of Art. 15(4) of the Constitution, we would hasten to
make it clear that caste is only a relevant circumstance in
ascertaining the backwardness of a class and there is nothing
in the judgment of this Court which precludes the authority
concerned from determining the social backwardness of a
group of citizens if it can do so without reference to caste.
While this Court has not excluded caste from ascertaining the
backwardness of a class of citizens, it has not made it one of
the compelling circumstances affording a basis for the
ascertainment of backwardness of a class. To put it differently,
the authority concerned may take caste into consideration in
ascertaining the backwardness of a group of persons; but, if it
does not, its order will not be bad on that account, if it can
ascertain the backwardness of a group of persons on the basis
of other relevant criteria.
19……The important factor to be noticed in Art. 15(4) is that it
does not speak of castes, but only speaks of classes. If the
makers of the Constitution intended to take castes also as
units of social and educational backwardness, they would
have said so as they have said in the case of the Scheduled
Castes and the Scheduled Tribes. Though it may be suggested
that the wider expression "classes" is used in clause (4) of Art.
15 as there are communities without castes, if the intention
was to equate classes with castes, nothing prevented the
makers of the Constitution from using the expression
"backward classes or castes". The juxtaposition of the
expression "backward classes" and "Scheduled Castes" in Art.
15(4) also leads to a reasonable inference that the expression
"classes" is not synonymous with castes. It may be that for
ascertaining whether a particular citizen or a group of citizens
belong to a backward class or not, his or their caste may have
some relevance, but it cannot be either the sole or the
dominant criterion for ascertaining the class to which he or
they belong.
20. This interpretation will carry out the intention of the
Constitution expressed in the aforesaid Articles. It helps the
really backward classes instead of promoting the interests of
individuals or groups who, though they belong to a particular
caste a majority whereof is socially and educationally
backward, really belong to a class which is socially and
educationally advanced. To illustrate, take a caste in a State
which is numerically the largest therein. It may be that though
a majority of the people in that caste are socially and
educationally backward, an effective minority may be socially
and educationally far more advanced than another small sub-
caste the total number of which is far less than the said
minority. If we interpret the expression "classes" as "castes",
the object of the Constitution will be frustrated and the people
who do not deserve any adventitious aid may get it to the
exclusion of those who really deserve. This anomaly will not
arise if, without equating caste with class, caste is taken as
only one of the considerations to ascertain whether a person
belongs to a backward class or not. On the other hand, if the
entire sub-caste, by and large, is backward, it may be included
in the Scheduled Castes by following the appropriate
procedure laid down by the Constitution.
21. We do not intend to lay down any inflexible rule for the
Government to follow. The laying down of criteria for
ascertainment of social and educational backwardness of a
class is a complex problem depending upon many
circumstances which may vary from State to State and even
from place to place in a State. But what we intend to
emphasize is that under no circumstances a "class" can be
equated to a "caste", though the caste of an individual or a
group of individual may be considered along with other
relevant factors in putting him in a particular class. We would
also like to make it clear that if in a given situation caste is
excluded in ascertaining a class within the meaning of Art.
15(4) of the Constitution, it does not vitiate the classification if
it satisfied other tests.
3.Minor P. Rajendran v State of Madras (1968 (2) SCR
787)
“The first challenge is to r. 5 on the ground that it violates Art.
15 of the Constitution. Article 15 forbids discrimination
against any citizen on the grounds only of religion, race, caste,
sex, place of birth or any of them. At the same time Art. 15(4)
inter alia permits the State to make any special provision for
the advancement of any socially and educationally backward
classes of citizens. The contention is that the list of socially
and educationally backward classes for whom reservation is
made under r. 5 is nothing but a list of certain castes.
Therefore, reservation in favour of certain castes based only on
caste considerations violates Art. 15(1), which prohibits
discrimination on the ground o caste only. Now if the
reservation in question had been based only on caste and had
not taken into account the social and educational
backwardness of the caste in question, it would be violative of
Art. 15(1). But it must not be forgotten that a caste is also a
class of citizens and if the caste as a whole is socially and
educationally backward reservation can be made in favour of
such a caste on the ground that it is a socially and
educationally backward class of citizens within the meaning of
Art. 15(4). Reference in this connection may be made to the
observations of this Court in M. R. Balaji v. State of Mysore
([1963] Supp. 1 S.C.R. 439 at p. 459-460) to the effect that it
was not irrelevant to consider the caste of a class of citizens in
determining their social and educational backwardness. It was
further observed that though the caste of a class of citizens
may be relevant its importance should not be exaggerated; and
if classification of backward classes of citizens was based
solely on the caste of the citizen, it might be open to objection.
It is true that in the present cases the list of socially and
educationally backward classes has been specified by caste.
But that does not necessarily mean that caste was the sole
consideration and that persons belonging to these castes are
also not a class of socially and educationally backward
citizens. In its reply, the State of Madras has given the history
as to how this list of backward classes was made, starting
from the year 1906 and how the list has been kept upto date
and necessary amendments made therein. It has also been
stated that the main criterion for inclusion in the list was the
social and educational backwardness of the caste based on
occupations pursued by these castes. Because the members of
the caste as a whole were found to be socially and
educationally backward, they were put in the list. The matter
was finally examined after the Constitution came into force in
the light of the provisions contained in Art. 15(4). As it was
found that members of these castes as a whole were
educationally and socially backward, the list which had been
coming on from as far back as 1906 was finally adopted for
purposes of Art. 15(4). In short the case of the State of Madras
is that the castes included in the list are only a compendious
indication of the class of people in those castes and these
classes of people had been put in the list for the purpose of
Art. 15(4) because they had been found to be socially and
educationally backward.
This is the position as explained in the Affidavit filed on behalf
of the State of Madras. On the other hand the only thing
stated in the petitions is that as the list is based on caste
alone it is violative of Art. 15(1). In view however of the
explanation given by the State of Madras, which has not been
controverted by any rejoinder, it must be accepted that though
the list shows certain castes, the members of those castes are
really classes of educationally and socially backward citizens.
No attempt was made on behalf of the petitioners/appellant to
show that any caste mentioned in this list was not
educationally and socially backward. No such averment was
made in the affidavit in support of their cases, nor was any
attempt made to traverse the case put forward on behalf of the
State of Madras by filing a rejoinder affidavit to show that even
one of the castes included in the list was not educationally
and socially backward. In this state of the pleadings, we must
come to the conclusion that though the list is prepared caste-
wise, the castes included therein are as a whole educationally
and socially backward and therefore the list is not violate of
Art. 15. The challenge to r. 5 must therefore fail.
4)State of Andhra Pradesh v P. Sagar (1968 (3) SCR 595)
“In the context in which it occurs the expression "class" means
a homogeneous section of the people grouped together
because of certain likenesses or common traits and who are
identifiable by some common attributes such as status, rank,
occupation, residence in a locality, race, religion and the like.
In determining whether a particular section forms a class,
caste cannot be excluded altogether. But in the determination
of a class a test solely based upon the caste or community
cannot also be accepted. By cl. (1) Art. 15 prohibits the State
from discriminating against any citizen on grounds only of
religion, race, caste, sex, place of birth or any of them. By cl.
(3) of Art. 15 the State is, notwithstanding the provision
contained in cl. (1), permitted to make special provision for
women and children. By cl. (4) a special provision for the
advancement of any socially and educationally backward
classes of citizens or for the Scheduled Castes and Scheduled
Tribes is outside the purview of cl. (1). But cl. (4) is an
exception to cl. (1). Being an exception, it cannot be extended
so as in effect to destroy the guarantee of cl. (1). The
Parliament has by enacting cl. (4) attempted to balance as
against the right of equality of citizens the special necessities
of the weaker sections of the people by allowing a provision to
be made for their advancement. In order that effect may be
given to cl. (4), it must appear that the beneficiaries of the
special provision are classes which are backward socially and
educationally and they are other that the Scheduled Castes
and Scheduled Tribes, and that the provision made is for their
advancement.”
5.Minor A. Peeriakaruppan (Minor) v. State of T.N.,
(1971) 1 SCC 38 :
“25. A caste has always been recognized as a class. In
construing the expression “classes of His Majesty’s subject”
found in Section 153-A of the Indian Penal Code, Wassoodew,
J., observed in Narayan Vasudev v. Emperor AIR 1940 Bomb
379
“In my opinion, the expression ‘classes of His Majesty’s
subjects’ in Section 153-A of the Code is used in restrictive
sense as denoting a collection of individuals or groups bearing
a common and exclusive designation and also possessing
common and exclusive characteristics which may be
associated with their origin, race or religion, and that the term
‘class’ within that section carries with it the idea of numerical
strength so large as could be grouped in a single homogeneous
community.”
26. In para 10, Chapter V of the Backward Classes
Commission’s Report, it is observed:
“We tried to avoid caste but we find it difficult to ignore caste
in the present prevailing conditions. We wish it were easy to
dissociate caste from social backwardness at the present
juncture. In modern time anybody can take to any profession.
The Brahman taking to tailoring, does not become a tailor by
caste, nor is his social status lowered as a Brahman. A
Brahman may be a seller of boots and shoes, and yet his
social status is not lowered thereby. Social backwardness,
therefore, is not today due to the particular profession of a
person, but we cannot escape caste in considering the social
backwardness in India.
In para 11 of that Report it is stated:
“It is not wrong to assume that social backwardness has
largely contributed to the educational backwardness of a large
number of social groups.”
27. Finally in para 13, the committee concludes with following
observations:
“All this goes to prove that social backwardness is mainly
based on racial, tribal, caste and denominational differences.”
28. The validity of the impugned list of backward classes came
up for consideration before this Court in Rajendran case and
this is what this Court observed therein:
“The contention is that the list of socially and educationally
backward classes for whom reservation is made under Rule 5
nothing but a list of certain castes. Therefore, reservation in
favour of certain castes based only on caste considerations
violates Article 15(1), which prohibits discrimination on the
ground of caste only. Now if the reservation in question had
been based only on caste and had not taken into account the
social and educational backwardness of the justice in
question, it would be violative of Article 15(1). But it must not
be forgotten that a caste is also a class of citizens and if the
caste as a whole is socially and educationally backward,
reservation can be made in favour of such a caste on the
ground that it is a socially and educationally backward class
of citizens within the meaning of Article 15(4).”
29. Rajendran case is an authority for the proposition that the
classification of backward classes on the basis of castes is
within the purview of Article 15(4) if those castes are shown to
be socially and educationally backward. No further material
has been placed before us to show that the reservation for
backward classes with which we are herein concerned is not
in accordance with Article 15(4). There is no gainsaying the
fact that there are numerous castes in this country which are
socially and educationally backward. To ignore their existence
is to ignore the facts of life. Hence we are unable to uphold the
contention that the impugned reservation is not in accordance
with Article 15(4). But all the same the Government should
not proceed on the basis that once a class is considered as a
backward class it should continue to be backward class for all
times. Such an approach would defeat the very purpose of the
reservation because once a class reaches a stage of progress
which some modern writers call as take off stage then
competition is necessary for their future progress. The
Government should always keep under review the question of
reservation of seats and only the classes which are really
socially and educationally backward should be allowed to have
the benefit of reservation. Reservation of seats should not be
allowed to become a vested interest. The fact that candidates
of backward classes have secured about 50% of the seats in
the general pool does show that the time has come for a de
novo comprehensive examination of the question. It must be
remembered that the Government’s decision in this regard is
open to judicial review.”
6.State of A.P. v. U.S.V. Balram, (1972) 1 SCC 660 , at
page 685 :
“82……In the determination of a class to be grouped as
backward, a test solely based upon caste or community
cannot be accepted as valid. But, in our opinion, though
Directive Principles contained in Article 46 cannot be enforced
by courts. Article 15(4) will have to be given effect to in order
to assist the weaker sections of the citizens, as the State has
been charged with such a duty. No doubt, we are aware that
any provision made under this clause must be within the well
defined limits and should not be on the basis of caste alone.
But it should not also be missed that a caste is also a class of
citizens and that a caste as such may be socially and
educationally backward. If after collecting the necessary data,
it is found that the caste as a whole is socially and
educationally backward, in our opinion, the reservation made
of such persons will have to be upheld notwithstanding the
fact that a few individuals in that group may be both socially
and educationally above the general average. There is no
gainsaying the fact that there are numerous castes in the
country, which are socially and educationally backward and
therefore a suitable provision will have to be made by the
State, as charged in Article 15(4) to safeguard their interest”.
xx xx xx
94. To conclude, though prima facie the list of Backward
Classes which is under attack before us may be considered to
be on the basis of caste, a closer examination will clearly show
that it is only a description of the group following the
particular occupations or professions, exhaustively referred to
by the Commission. Even on the assumption that the list is
based exclusively on caste, it is clear from the materials before
the Commission and the reasons given by it in its report that
the entire caste is socially and educationally backward and
therefore their inclusion in the list of Backward Classes is
warranted by Article 15(4). The groups mentioned therein have
been included in the list of Backward Classes as they satisfy
the various tests, which have been laid down by this Court for
ascertaining the social and educational backwardness of a
class.”
7.Janki Prasad Parimoo v. State of J&K, (1973) 1 SCC
420, at page 432 :
“22. Article 15(4) speaks about “socially and educationally
backward classes of citizens” while Article 16(4) speaks only of
“any backward class citizens”. However, it is now settled that
the expression “backward class of citizens” in Article 16(4)
means the same thing as the expression “any socially and
educationally backward class of citizens” in Article 15(4). In
order to qualify for being called a “backward class citizen” he
must be a member of a socially and educationally backward
class. It is social and educational backwardness of a class
which is material for the purposes of both Articles 15(4) and
16(4).”
xx xx xx
24. It is not merely the educational backwardness or the
social backwardness which makes a class of citizens
backward; the class identified as a class as above must be
both educationally and socially backward. In India social and
educational backwardness is further associated with economic
backwardness and it is observed in Balaji case referred to
above that backwardness, socially and educationally, is
ultimately and primarily due to proverty. But if proverty is the
exclusive test, a very large proportion of the population in
India would have to be regarded as socially and educationally
backward, and if reservations are made only on the ground of
economic considerations, an untenable situation may arise.
Even in sectors which are recognised as socially and
educationally advanced there are large pockets of poverty. In
this country except for a small percentage of the population
the people are generally poor — some being more poor, others
less poor. Therefore, when a social investigator tries to identify
socially and educationally backward classes, he may do it with
confidence that they are bound to be poor. His chief concern
is, therefore, to determine whether the class or group is
socially and educationally backward. Though the two words
“socially” and “educationally” are used cumulatively for the
purpose of describing the backward class, one may find that if
a class as a whole is educationally advanced it is generally
also socially advanced because of the reformative effect of
education on that class. The words “advanced” and
“backward” are only relative terms — there being several
layers or strata of classes, hovering between “advanced” and
“backward”, and the difficult task is which class can be
recognised out of these several layers as been socially and
educationally backward.”
25…..Indeed all sectors in the rural areas deserve
encouragement but whereas the former by their enthusiasm
for education can get on without special treatment, the latter
require to be goaded into the social stream by positive efforts
by the State. That accounts for the raison-d’etre of the
principle explained in Balaji case which pointed out that
backward classes for whose improvement special provision
was contemplated by Article 15(4) must be comparable to
Scheduled Castes and Scheduled Tribes who are standing
examples of backwardness socially and educationally. If those
examples are steadily kept before the mind the difficulty in
determining which other classes should be ranked as
backward classes will be considerably eased.”
8.State of Kerala v. N.M. Thomas, (1976) 2 SCC 310 , at
page 367 :
“135. We may clear the clog of Article 16(2) as it stems from a
confusion about caste in the terminology of scheduled castes
and scheduled tribes. This latter expression has been defined
in Articles 341 and 342. A bare reading brings out the
quintessential concept that they (sic there) are no castes in the
Hindu fold but an amalgam of castes, races, groups, tribes,
communities or parts thereof found on investigation to be the
lowliest and in need of massive State aid and notified as such
by the President. To confuse this backwardmost social
composition with castes is to commit a constitutional error,
misled by a compendious appellation. So that, to protect
harijans is not to prejudice any caste but to promote citizen
solidarity. Article 16(2) is out of the way and to extend
protective discrimination to this mixed bag of tribes, races,
groups, communities and non-castes outside the four-fold
Hindu division is not to compromise with the acceleration of
castelessness enshrined in the sub-article. The discerning
sense of the Indian Corpus Juris has generally regarded
scheduled castes and scheduled tribes, not as caste but as a
large backward group deserving of societal compassion…...”
9.State of U.P. v. Pradip Tandon, (1975) 1 SCC 267 , at
page 273 :
“14. Article 15(4) speaks of socially and educationally
backward classes of citizens. The State described the rural,
hill and Uttrakhand areas as socially and educationally
backward areas. The Constitution does not enable the State to
bring socially and educationally backward areas within the
protection of Article 15(4). The Attorney-General however
submitted that the affidavit evidence established the rural, hill
and Uttrakhand areas to have socially and educationally
backward classes of citizens. The backwardness contemplated
under Article 15(4) is both social and educational. Article 15(4)
speaks of backwardness of classes of citizens. The accent is on
classes of citizens. Article 15(4) also speaks of Scheduled
Castes and Scheduled Tribes. Therefore, socially and
educationally backward classes of citizens in Article 15(4)
could not be equated with castes. In M.R. Balaji v. State of
Mysore and State of A.P. v. Sagar this Court held that
classification of backwardness on the basis of castes would
violate both Articles 15(1) and 15(4).
15. Broadly stated, neither caste nor race nor religion can be
made the basis of classification for the purposes of
determining social and educational backwardness within the
meaning of Article 15(4). When Article 15(1) forbids
discrimination on grounds only of religion, race, caste, caste
cannot be made one of the criteria for determining social and
educational backwardness. If caste or religion is recognised as
a criterion of social and educational backwardness Article
15(4) will stultify Article 15(1). It is true that Article 15(1)
forbids discrimination only on the ground of religion, race,
caste, but when a classification takes recourse to caste as one
of the criteria in determining socially and educationally
backward classes the expression “classes” in that case violates
the rule of expressio unius est exclusio alterius. The socially
and educationally backward classes of citizens are groups
other than groups based on caste.
16. The expression “socially and educationally backward
classes” in Article 15(4) was explained in Balaji case to be
comparable to Scheduled Castes and Scheduled Tribes. The
reason is that the Scheduled Castes and Scheduled Tribes
illustrated social and educational backwardness. It is difficult
to define the expression “socially and educationally backward
classes of citizens”. The traditional unchanging occupations of
citizens may contribute to social and educational
backwardness. The place of habitation and its environment is
also a determining factor in judging the social and educational
backwardness.
17. The expression “classes of citizens” indicates a
homogeneous section of the people who are grouped together
because of certain likenesses and common traits and who are
identifiable by some common attributes. The homogeneity of
the class of citizens is social and educational backwardness.
Neither caste nor religion nor place of birth will be the uniform
element of common attributes to make them a class of
citizens.”
10.K.S. Jayasree (Kumari) v. State of Kerala, (1976) 3
SCC 730, at page 733 :
“13. Backward classes for whose improvement special
provisions are contemplated by Article 15(4) are in the matter
of their backwardness comparable to scheduled castes and
scheduled tribes. This Court has emphasised in decisions that
the backwardness under Article 15(4) must be both social and
educational. In ascertaining social backwardness of a class of
citizens, the caste of a citizen cannot be the sole or dominant
test. Just as caste is not the sole or dominant test, similarly
poverty is not the decisive and determining factor of social
backwardness.
xx xx xx
21. In ascertaining social backwardness of a class of citizens it
may not be irrelevant to consider the caste of the group of
citizens. Caste cannot however be made the sole or dominant
test. Social backwardness is in the ultimate analysis the result
of poverty to a large extent. Social backwardness which results
from poverty is likely to be aggravated by considerations of
their caste. This shows the relevance of both caste and poverty
in determining the backwardness of citizens. Poverty by itself
is not the determining factor of social backwardness. Poverty
is relevant in the context of social backwardness. The
commission found that the lower income group constitutes
socially and educationally backward classes. The basis of the
reservation is not income but social and educational
backwardness determined on the basis of relevant criteria. If
any classification of backward classes of citizens is based
solely on the caste of the citizen it will perpetuate the vice of
caste system. Again, if the classification is based solely on
poverty it will not be logical. The society is taking steps for
uplift of the people. In such a task groups or classes who are
socially and educationally backward are helped by the society.
That is the philosophy of our Constitution. It is in this context
that social backwardness which results from poverty is likely
to be magnified by caste considerations. Occupations, place of
habitation may also be relevant factors in determining who are
socially and educationally backward classes. Social and
economic considerations come into operation in solving the
problem and evolving the proper criteria of determining which
classes are socially and educationally backward. That is why
our Constitution provided for special consideration of socially
and educationally backward classes of citizens as also
scheduled castes and tribes. It is only by directing the society
and the State to offer them all facilities for social and
educational uplift that the problem is solved. It is in that
context that the commission in the present case found that
income of the classes of citizens mentioned in Appendix VIII
was a relevant factor in determining their social and
educational backwardness.”
129. In Chitrelekha’s case (supra) it was stated that the caste
is the starting point. This is subject of course to the
parameters that if the caste itself satisfies the test of
backwardness which is implicit and inherent as noted in para
782 of Indra Sawhney No.1 (supra). In that case caste
becomes the relevant factor. The view expressed in
Chitralekha’s case (supra) was not dissented from in Indra
Sawhney No.1 (supra). In fact Justice Jeevan Reddy in the
majority judgment in Indra Sawhney No.1 (supra) referred to
Chitrelekha’s case (supra) at para 704. As noted above in para
782 of Indra Sawhney No.1 (supra) it has not been held that
caste is class. In the said paragraph it has been stated that
individual survey is out of question since Article 16(4) speaks
of class protection and not individual protection. In that
context also it has been said that it does not mean that one
can wind up the process of identification for the castes. It has
also been emphasized in the said paragraph that having
exhausted the castes or simultaneously with it, the authority
may take up for consideration other occupational groups,
communities and classes. If caste is a substitute for class, the
question of any simultaneous consideration of others does not
arise. Therefore, the Court observed that one may well begin
with castes if one chooses and then go to other groups,
sections and classes. If the Court meant to substitute the
word caste with class the question of going to other classes
would not arise.
130. Reference may also be made to Akhil Bharatiya Soshit
Karamchari Sangh (Railway) v. Union of India (UOI) and Ors.
(1981(1) SCC 246) where at para 22 it was noted as follows:
“This is not mere harmonious statutory construction of Article
16(1) and (4) but insightful perception of our constitutional
culture, reflecting the current of resurgent India bent on
making, out of a sick and stratified society of inequality and
poverty, a brave new Bharat. If freedom, justice and equal
opportunity to unfold one's own personality, belong alike to
bhangi and brahmin, prince and pauper, if the panchama
proletariat is to feel the social transformation Article 16(4)
promises, the State must apply equalising techniques which
will enlarge their opportunities and thereby progressively
diminish the need for props. The success of State action under
Article 16(4) consists in the speed with which result-oriented
reservation withers away as, no longer a need, not in the
everwidening and everlasting operation of an exception [Article
16(4)] as if it were a super-fundamental right to continue
backward all the time. To lend immortality to the reservation
policy is to defeat its raison de'etre; to politicise this provision
for communal support and Party ends is to subvert the solemn
undertaking of Article16(1), to casteify 'reservation' even
beyond the dismal groups of backward-most people,
euphemistically described as SC & ST, is to run a grave
constitutional risk. Caste, ipso facto, is not class in a secular
State.”
131. Much emphasis has been laid on the use of the word
‘only’. It is to be noted that while the respondents contend that
where it is demonstrated that caste is not the only
consideration the permissible provision will operate.
Reference was made to Venkataraman’s case (supra). As has
been rightly contended by learned counsel for the petitioners
the true effect of the word ‘only’ has been clarified in the
decision itself.
132. It is unnecessary to decide as it has been contended
by learned counsel for the petitioners whether the concept of
strict scrutiny is a measure of judicial scrutiny as highlighted
by the conditions in India. It is submitted that label is not
relevant.
133. The ultimate object is the eradication of castes and that
is the foundation for reservation. While considering the
method adopted for eradication by adopting the process of
reservation indirectly the facet of strict scrutiny comes in. The
strict scrutiny test was applied in the background of Article 19
vis-à-vis compelling State needs. The principle was recognized
in Chintaman Rao v. The State of Madhya Pradesh (1950 SCR
759). It was inter-alia quoted as follows:
“The question for decision is whether the statute under the
guise of protecting public interests arbitrarily interferes with
private business and imposes unreasonable and unnecessarily
restrictive regulations upon lawful occupation; in other words,
whether the total prohibition of carrying on the business of
manufacture of bidis within the agricultural season amounts
to a reasonable restriction on the fundamental rights
mentioned in article 19 (1)(g) of the Constitution. Unless it is
shown that there is a reasonable relation of the provisions of
the Act to the purpose in view, the right of freedom of
occupation and business cannot be curtailed by it.
The phrase "reasonable restriction" connotes that the
limitation imposed on a person in enjoyment of the right
should not be arbitrary or of an excessive nature, beyond what
is required in the interests of the public. The word
"reasonable" implies intelligent care and deliberation, that is,
the choice of a course which reason dictates. Legislation which
arbitrarily or excessively invades the right cannot be said to
contain the quality of reasonableness and unless it strikes a
proper balance between the freedom guaranteed in Article
19(1)(g) and the social control permitted by clause (6) of
Article19, it must be held to be wanting in that quality”.
134. Again in State of Madras v. V.G. Row (AIR 1952 SC 196)
it was observed as follows:
“13. Before proceeding to consider this question we think it
right to point out, what is sometimes overlooked, that our
Constitution contains express provisions for judicial review of
legislation as to its conformity with the constitution unlike as
in America where the Supreme Court has assumed extensive
power of reviewing legislative acts under cover of the widely
interpreted "due process" clause in the Fifth and Fourteenth
Amendments. If, then, the courts in this country face up to
such important and none too easy task, it is not out of any
desire to tilt at legislative authority in a crusader's spirit, but
in discharge of a duty plainly laid upon them by the
Constitution. This is especially true as regards the
"fundamental rights" as to which this Court has been assigned
the role of a sentinel on the qui vive. While the Court naturally
attaches great weight to the legislative judgment, it cannot
dessert its own duty to determine finally the constitutionality
of an impugned statute. We have ventured on these obvious
remarks because it appears to have been suggested in some
quarters that the courts in the new set up are out to seek
clashes with the legislatures in the country”.
135. At the outset, 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. In this context, Krishna Iyer J aptly observed:
“To sympathise mawkishly with the weaker sections by
selecting substandard candidates, is to punish society as a
whole by denying the prospect of excellence, say, in hospital
service. Even the poorest, when stricken by critical illness,
needs the attention of super-skilled specialists not humdrum
second rates”.
136. Thus, 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 advancement across the 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 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
of individual states may to a small extent, be affected.
137. 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 we have expanded upon as important, lose
their potency.
138. 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.
I
139. To sum up, the conclusions are as follows:
(1) For implementation of the impugned Statute
creamy layer must be excluded.
(2) There must be periodic review as to the
desirability of continuing operation of the Statute. This shall
be done once in every five years.
(3) The Central Government shall examine as to
the desirability of fixing a cut off marks in respect of the
candidates belonging to the Other Backward Classes (OBCs).
By way of illustration it can be indicated that five marks grace
can be extended to such candidates below the minimum
eligibility marks fixed for general categories of students. This
would ensure quality and merit would not suffer. If any seats
remain vacant after adopting such norms they shall be filled
up by candidates from general categories.
(4) So far as determination of backward classes
is concerned, a Notification should be issued by the Union of
India. This can be done only after exclusion of the creamy
layer for which necessary data must be obtained by the
Central Government from the State Governments and Union
Territories. Such Notification is open to challenge on the
ground of wrongful exclusion or inclusion. Norms must be
fixed keeping in view the peculiar features in different States
and Union Territories.
(5)There has to be proper identification of Other Backward
Classes (OBCs.). For identifying backward classes, the
Commission set up pursuant to the directions of this Court in
Indra Sawhney No.1 has to work more effectively and not
merely decide applications for inclusion or exclusion of castes.
While determining backwardness, graduation (not technical
graduation) or professional shall be the standard test
yardstick for measuring backwardness.
(6)To strike the constitutional balance it is necessary and
desirable to ear-mark certain percentage of seats out of
permissible limit of 27% for socially and economically
backward classes.
(7)In the Constitution for the purposes of both Articles 15
and 16, caste is not synonyms with class and this is clear
from the paragraphs 782 and 783 of Indra Sawhney No.1.
However, when creamy layer is excluded from the caste, the
same becomes an identifiable class for the purpose of Articles
15 and 16.
(8)Stress has to be on primary and secondary education so
that proper foundation for higher education can be effectively
laid.
(9)So far as the constitutional amendments are concerned:
(i)Articles 16(1) and 16(4) have to be harmoniously
construed. The one is not an exception to the other.
(ii)Articles 15(4) and 15(5) operate in different fields.
Article 15(5) does not render Article 15(4) inactive or
inoperative.
(10)While interpreting the constitutional provisions, foreign
decisions do not have great determinative value. They may
provide materials for deciding the question regarding
constitutionality. In that sense, the strict scrutiny test is not
applicable and indepth scrutiny has to be made to decide the
constitutionality or otherwise, of a statute.
(11)If material is shown to the Central Government that the
Institution deserves to be included in the Schedule, the
Central Government must take an appropriate decision on the
basis of materials placed and on examining the concerned
issues as to whether Institution deserves to be included in the
Schedule.
(12)Challenge relating to private un-aided educational
institutions has not been examined because no such
institution has laid any challenge. It is to be noted that the
petitioners have made submissions in the background of
Article 19(6) of the Constitution. Since none of the affected
institutions have made any challenge we do not propose to
consider it necessary to express any opinion or decide on the
question.
140. In view of the above-said conclusions, the writ
petitions and the Contempt Petition (Civil) No.112/2007 in
W.P. (C) No.265/2006 are disposed of.
…...........................J.
(Dr. ARIJIT PASAYAT)
…………………………J.
(C.K. THAKKER)
New Delhi,
April 10, 2008
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO.265 OF 2006
Ashoka Kumar Thakur ……. Petitioner
Versus
Union of India & Ors. …… Respondents
WITH
Writ Petition (C) No.269/2006
Writ Petition (C) No.598/2006
Writ Petition (C) No.29/2007
Writ Petition (C) No.35/2007
Writ Petition (C) No.53/2007
Writ Petition (C) No.33/2007
Writ Petition (C) No.313/2007
Writ Petition (C) No.335/2007
Writ Petition (C) No.231/2007
Writ Petition (C) No.425/2007
Writ Petition (C) No.428/2007
Contempt Petition (C) No.112/2007 in Writ Petition (C) No.265/2006
J U D G M E N T
R. V. Raveendran J.
It has been my privilege to read the drafts of the Judgments proposed
by the learned Chief Justice, learned brothers Pasayat J. and Bhandari J. I
respectfully agree with them as indicated below :
A.Validity of 93
rd
Amendment to the Constitution of India.
I agree with the learned Chief Justice and Pasayat, J. that clause (5) of
Article 15 is valid with reference to state maintained educational institutions
and aided educational institutions; and that the question whether Article
15(5) would be unconstitutional on the ground that it violates the basic
structure of the Constitution by imposing reservation in respect of private
unaided educational institutions is left open.
I have indicated an additional reason for rejecting the challenge to Article
15(5) on the ground that it renders Article 15(4) inoperative/ineffective .
B.Validity of Central Educational Institutions (Reservation in
Admissions) Act, 2006 – Act No.5 of 2007 :
I agree with the learned Chief Justice and Pasayat J. that (i)
identification of other backward classes solely on the basis of caste will be
unconstitutional; (ii) failure to exclude the ‘creamy layer’ from the benefits
of reservation would render the reservation for other backward classes under
Act 5 of 2007 unconstitutional; and (iii) Act 5 of 2007 providing for
reservation for other backward classes will however be valid if the definition
of ‘other backward classes’ is clarified to the effect that if the identification
of other backward classes is with reference to any caste considered as
socially and economically backward, ‘creamy layer’ of such caste should be
excluded.
I have indicated briefly my reasons for the same.
I agree with the decision of learned Chief Justice that the Act is not
invalid merely because no time limit is prescribed for caste based
reservation, but preferably there should be a review after ten years by
change of circumstances. A genuine measure of social reservation may not
be open to challenge when made. But during a period of time, if the
reservation is continued in spite of achieving the object of reservation, the
law which was valid when made, may become invalid.
(C). What should be parameters for determining the creamy layer in
respect of OBCs?
I agree with the learned Chief Justice that OM dated 8.9.1993 of the
Government of India can be applied for such determination.
(D)Whether reservation to an extent of 27% in regard to other backward
class under Act 5 of 2007 is valid?
I agree with the decision of learned Chief Justice that reservation of 27%
for other backward classes is not illegal.
I would however leave open the question whether members belonging to
other backward classes who get selected in the open competition field on the
basis of their own merit should be counted against the 27% quota reserved
for other backward classes under an enactment enabled by Article 15(5) of
the Constitution.
2.Let me now briefly add a few words on two aspects as indicated
above.
Whether Article 15(5) renders Article 15(4) are in conflict with each other?
3.This Court has held that clause (4) of Article 15 is neither an
exception nor a proviso to clause (1) of Article 15. Clause (4) has been
considered to be an instance of classification inherent in clause (1) and an
emphatic restatement of the principle implicit in clause (1) of Article 15 (see
: State of Kerala v. N.M. Thomas - 1976 (2) SCC 310, K.C. Vasanth Kumar
v. State of Karnataka - 1985 Supp. SCC 714 and Indra Sawhney v. Union of
India - 1992 Supp. (3) SCC 217). Clauses (1) and (2) of Article 15 bars
discrimination. Clause (1) contains a prohibition that State shall not
discriminate against any citizen on grounds only on religion, caste, creed,
sex or birth. Clause (2) declares that no citizen shall, on grounds only of
religion, race, caste, sex, place of birth or any of them be subject to any
disability, liability, restriction or condition with regard to access to shops,
public restaurants, hotels and places of public entertainment, or the use of
wells, tanks, bathing ghats, roads and places of public resort maintained
wholly or partly out of State funds or dedicated to the use of the general
public. Clauses (3) to (5) enable the State to make special provisions in
specified areas. The words ‘Nothing in this article’ occurring in clauses (3),
(4) and (5) therefore refer to clauses (1) and (2) of Art. 15. When clause (4)
starts with those words, it does not obviously refer to clause (3). Similarly
when clause (5) starts with those words, it does not refer to clauses (3) and
(4). Clauses (3) (4) and (5) of Article 15 are not to be read as being in
conflict with each other, or prevailing over each other. Nor does an
exception made under clause (5) operate as an exception under clause (4).
While clauses (4) and (5) may operate independently, they have to be read
harmoniously.
The need for exclusion of creamy layer.
4.Section 3 of Act 5 of 2007 mandates reservation of seats in central
educational institutions for other backward classes to an extent of 27%. The
term ‘other backward classes’ is defined as meaning the class or classes of
citizens who are socially and economically backward, and are so determined
by the central Government. The Act does not define the term ‘socially and
educationally backward classes’, nor does it contain any norms or guidelines
as to how the central Government should determine any class or classes as
socially and educationally backward, so as to entitle them to the benefit of
reservation under the Act. The petitioners contend that the Act vests
unguided power in the executive to pick and choose arbitrarily certain
classes for the benefit of reservation. The Central Government however
intends to proceed on the basis that castes which have been identified for the
benefit of reservations under Article 16(4) by the Mandal Commission with
the additions thereto made by the National Commission for Backward
Classes, from time to time, will constitute the socially and educationally
backward classes for the purpose of availing the benefit of 27% reservation
under the Act. This again is challenged by the petitioners on the ground that
identification of any class of citizens as ‘backward’, for the purpose of
Article 16(4), cannot be considered as identification of ‘socially and
educationally backward classes of citizens’ under Article 15(5). It is pointed
out that the term ‘backward classes’ in Article 16(4) is much wider than
‘socially and educationally backward classes of citizens’ occurring in Article
15(4) and (5).
5.Article 15(4) provides that nothing in that Article or in clause (2) of
Article 29 shall prevent the State from making any special provision for the
advancement of any socially and educationally backward class of citizens or
for Scheduled Castes and Scheduled Tribes. Article 29(2) provides that no
citizen shall be denied admission into any educational institution managed
by the State or receiving aid out of State funds, on grounds only of religion,
race, caste, language or any of them. On the other hand, clause (5) of Article
15 provides that notwithstanding anything contained in that Article or in
Article 19(1)(g), State may make a special provision for advancement of
socially and educationally backward class of citizens or for Scheduled
Castes and Scheduled Tribes by providing for reservation relating to
admission in any educational institution either aided or unaided by the State,
other than the minority educational institutions referred to in Article 30(1).
While clause (4) excluded the application of Article 29(2), clause (5) does
not exclude Article 29(2). It is therefore contended that in regard to a law
made in exercise of power under Article 15(5), the bar Article 29(2) will
apply, and if so, there cannot be any affirmative action by way of reservation
on the ground of caste alone.
6.It is submitted on behalf of the petitioners that the Constitution
prohibits any kind of special provision including reservation, merely on the
ground of caste. The object of the Constitution is to achieve an egalitarian
society and any attempt to divide the citizens or the society on the ground of
race, religion or caste should be straightaway rejected. It is submitted that
the Constitution nowhere recognizes or refers to ‘caste’ (except Scheduled
Castes and Tribes) as a criterion for conferment of any right or benefit; that
both clauses (4) and (5) of Article 15 refer to socially and educationally
backward ‘classes’ and not ‘castes’; that Constitution has always referred to
caste in a negative sense, that is to prohibit any discrimination or affirmative
action on the basis of ‘caste’ - [Vide Article 15(1) and (2), 16(2) and 29(2)];
that when Constitution discourages caste, it is paradoxical that caste is
sought to be made the criterion by the State for purposes of making a special
provision for socially and educationally backward classes. It is submitted
that there cannot be any special provision for any group of citizens merely
on the ground that they belong to a particular caste or community (except
Scheduled Castes and Tribes who are separately mentioned in Articles
15(4), 15(5), 16(4), 335, 340, 346 etc).
7.This Court in a series of decisions commencing from M.R. Balaji v.
State of Mysore [1963 Supp. (1) SCR 439], R.Chitralekha v. State of Mysore
[1964 (6) SCR 368], Minor P.Rajendran v. State of Madras [1968 (2) SCR
786], State of Andhra Pradesh v. P.Sagar [1968 (3) SCR 595], Janki
Prasad Parimoo v. State of Jammu & Kashmir [1973 (1) SCC 420], State of
Kerala v. N.M.Thomas [1976 (2) SCC 310] and K.C.Vasanth Kumar v. State
of Karnataka [1985 Supp. SCC 714] has explained what is social and
educational backwardness. All these decisions have laid down the principle
that caste cannot be made the sole or dominant test to determine
backwardness, and any classification determining backwardness only with
reference to caste will be invalid. These decisions recognized the fact that
caste is not equated to class and all backwardness, either social or
educational, is ultimately and primarily due to poverty or economic
conditions.
8.However, in Rajendran (supra), it was held that if a caste, as a whole,
is socially and educationally backward then reservation can be made in
favour of such a caste on the ground that it is a socially and educationally
backward class within the meaning of Article 15(4). The decision followed
Balaji and therefore proceeded on the basis that where the extent of social
and educational backwardness of the caste in question is virtually the same
as the social and educational backwardness of Scheduled Castes and
Scheduled Tribes, reservation can be made on the basis of caste itself. In that
case, it was found as a question of fact that members of certain castes as a
whole, were socially and educationally backward, and therefore it was held
that the reservation the basis of caste was permissible in respect of those
castes.
9.In A.Peeriakaruppan v. Sobha Joseph [1971 (1) SCC 38], this Court
referred to the cases starting from Balaji to Rajendran. It reiterated the
principle stated in Rajendran that if a caste as a whole is socially and
educationally backward, reservation can be made in favour of such a caste
on the ground that it is a socially and educationally backward class of
citizens within the meaning of Article 15(4). It also cautioned that the
Government should not proceed on the basis that once a class is considered
as a backward class, it will continue to be backward class for all times.
10.Therefore neither Rajendran nor Periakaruppam really departed from
or diluted the principle laid down in Balaji. On the other hand, the principle
laid down in Balaji was reiterated. Rajendran and Periakaruppam only
show that in extreme cases where it is found that the caste under
consideration was, as a whole, socially and educationally backward, and
therefore akin to a Scheduled Caste, reservation could be made only on the
basis of caste alone.
11.Vasanth Kumar (supra) held that only a caste comparable to the
Scheduled Castes and Scheduled Tribes in the matter of backwardness,
could be considered to be a socially and educationally backward class in
favour of which reservation could be made merely on the basis of caste.
Vasanth Kumar therefore, reiterated Balaji. Then came to the decision of
nine Judges in Indra Sawhney v. Union of India [1992 Supp. (3) SCC 217].
This Court held that the use of the word 'class' in Article 16(4) refers to
social class, and that reservation under Article 16(4) is in favour of a
backward class and not a caste. It held that ‘ backward class of citizens’
contemplated in Article 16(4) is not the same as ‘socially and educationally
backward classes’ referred to in Article 15(4), but much wider. It held that
there was no reason to qualify or restrict the meaning of the expression
'backward class of citizens' by saying that it means only those other
backward classes who are situated similarly to Scheduled Castes and/or
Scheduled Tribes (para 795). This Court held :
"If any group of class is situated similarly to the Scheduled Castes, they may have a case
for inclusion in that class but there seems to be no basis either in fact or in principle for
holding that other classes/groups must be situated similarly to them for qualifying as
backward classes. There is no warrant to import any such a priori notions into the concept
of Other Backward Classes. At the same time, we think it appropriate to clarify that
backwardness, being a relative term, must in the context be judged by the general level of
advancement of the entire population of the country or the State, as the case may be.
More than this, it is difficult to say."
In the context of Article 16(4) this Court also observed that a caste can be
and quite often is a social class in India (as in the case of Scheduled Castes)
and if it is backward socially, it would be a ‘backward class’ for the
purposes of Article 16(4). It held that the accent in Article 16(4) is on social
backwardness, whereas the accent in Article 15(4) is on ‘social and
educational backwardness’. Ultimately, this Court held :
" Neither the Constitution nor the law prescribes the procedure or method of
identification of backward classes. Nor is it possible or advisable for the court to lay
down any such procedure or method. It must be left to the authority appointed to identify.
It can adopt such method/procedure as it thinks convenient and so long as its survey
covers the entire populace, no objection can be taken to it. Identification of the backward
classes can certainly be done with reference to castes among, and along with, other
occupational groups, classes and sections of people.
The Court however made it clear that a caste can be the starting point for
determining a backward class; and that if a caste or class should be
designated as ‘a backward class’ then the creamy layer from such class or
caste should be excluded. This Court observed :
"In a backward class under clause (4) of Article 16, if the connecting link is the social
backwardness, it should broadly be the same in a given class. If some of the members are
far too advanced socially (which in the context, necessarily means economically and,
may also mean educationally) the connecting thread between them and the remaining
class snaps. They would be misfits in the class. After excluding them alone, would the
class be a compact class.
12.It is thus seen that Indra Sawhney certainly went a step further than
Balaji and other cases in holding that a caste can be the starting point for
determination of backwardness -- social and economic. But it is clear from
the decision that caste itself is not the final destination, that is, a caste by
itself, cannot be determinative of social and educational backwardness. A
caste can be identified to be socially and economically backward, only when
the creamy layer is removed from the caste and a compact class emerges
which can be identified as a socially and educationally backward class. Thus
the determination is not by first identifying a caste as a socially and
educationally backward class and, thereafter, remove or exclude the creamy
layer for the purpose of enjoying the benefits flowing to such class. On the
other hand, until and unless, the creamy layer is removed from a caste, there
is no compact class which can be termed as socially and educationally
backward class at all. Thus, while the process of identifying socially and
educationally backward class can conveniently start with a socially and
educationally backward caste, remove the creamy layer therefrom results in
the emergence of compact class which can be termed as a socially and
educationally backward class. In this sense, it can be said that Indra
Sawhney is only a development of the principles laid down in Balaji,
R.Chitralekha, Parimoo, Pradip Tandon, N.M.Thomas N.M. and Vasanth
Kumar, which pointed out that the advanced section of a backward caste
constituting the creamy layer is virtually the same as forward class. If the
creamy layer is not excluded the benefit of reservation will be appropriated
by such advanced sections. Referring to this aspect, Indra Sawhney (supra)
said :
“To continue to confer upon such advanced sections, special benefits, would
amount to treating equals unequally. Secondly, to rank them with the rest of
the backward classes would amount to treating the unequals equally.”
This Court directed that a permanent mechanism in the nature of a
Commission to be created to examine the requests for inclusion, and
complaints of over-inclusion and under-inclusion in the lists of OBCs of
citizens, and to advise the Government and such advice should normally be
binding upon the Government. There is therefore, no doubt that only when a
caste identified or perceived as a socially and educationally backward caste
sheds its creamy layer, it becomes a socially and educationally backward
class. The need for exclusion of creamy layer is also evident from the
subsequent decision in Ashoka Kumar Thakur v. State of Bihar – 1995 (5)
SCC 403, Indra Sawhney v. Union of India (II) – 1996 (6) SCC 506,
M.Nagaraj v. Union of India – 2006 (8) SCC 212. When Indra Sawhney has
held that creamy layer should be excluded for purposes of Article 16(4),
dealing with ‘backward class’ which is much wider than ‘socially and
educationally backward classes occurring in Article 15(4) and (5), it goes
without saying that without the removal of creamy layer there cannot be a
socially and educationally backward class.
13.Caste has divided this country for ages. It has hampered its growth.
To have a casteless society will be realization of a noble dream. To start
with, the effect of reservation may appear to perpetuate caste. The
immediate effect of caste based reservation has been rather unfortunate. In
the pre-reservation era people wanted to get rid of the backward tag -- either
social or economical, and were keen to be known as forward. But post
reservation, every one, including those who are considered ‘forward’ fight
for ‘backward’ tag, in the hope of enjoying the benefits of reservations.
When more and more people aspire for ‘backwardness’ instead of
‘forwardness’ the country itself stagnates. Reservation as an affirmative
action is required only for a limited period to bring forward the socially and
educationally backward classes by giving them a gentle supportive push.
But if there is no review after a reasonable gap and there is any tendency to
continue reservations indefinitely, the country will become a caste divided
society permanently. Instead of developing into an united society with
diversity, we will end up as a fractured society for ever suspicious of each
other. While affirmative discrimination is a road to equality, care should be
taken that the road does not become a rut in which the vehicle of progress
gets entrenched and stuck. Any provision for reservation should not become
crutches which themselves create a permanent disability. They should
merely be temporary aid to achieve normalcy. Though the constitutional
goal is a casteless society, Constitution advisedly does not specifically
prescribe a casteless society nor try to abolish caste. But by barring
discrimination in the name of caste and by providing for affirmative action
Constitution seeks to remove the difference in status on the basis of caste.
When the differences in status among castes are removed, all castes will
become equal and gradually lose their importance. A beginning will thus be
made for a casteless egalitarian society.
14.I agree that the petitions shall stand disposed of in the manner stated
by the learned Chief Justice.
………………………J
(R. V. Raveendran)
New Delhi;
10
th
April, 2008
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO.265 OF 2006
Ashoka Kumar Thakur …… Petitioner
Versus
Union of India & Others …… Respondents
WITH
Writ Petition (Civil) Nos.269 AND 598 of 2006, Writ Petition
(Civil) Nos.29, 35, 53, 336, 313, 335, 231, 425, 428 of 2007
AND Contempt Petition (C) No.112 of 2007 in Writ Petition (C)
No.265 of 2006.
* * * * *
J U D G M E N T
Dalveer Bhandari, J.
1.The 93
rd
Amendment to the Constitution directly or
indirectly affects millions of citizens of this country. It has
been challenged in a number of writ petitions. This Court
heard these petitions intermittently over the course of several
months. Appearing on behalf of petitioners and respondents,
the country’s finest legal minds assisted us.
2.The fundamental question that arises in these writ
petitions is: Whether Article 15(5), inserted by the 93
rd
Amendment, is consistent with the other provisions of the
Constitution or whether its impact runs contrary to the
Constitutional aim of achieving a casteless and classless
society?
3.On behalf of the petitioners, Senior Advocate Mr. F.S.
Nariman, eloquently argued that if Article 15(5) is permitted to
remain in force, then, instead of achieving the goal of a
casteless and classless society, India would be converted into
a caste-ridden society. The country would forever remain
divided on caste lines. The Government has sought to
repudiate this argument. Petitioners’ argument, however,
echoes the grave concern of our Constitution’s original
Framers.
4.On careful analysis of the Constituent Assembly and the
Parliamentary Debates, one thing is crystal clear: our leaders
have always and unanimously proclaimed with one voice that
our constitutional goal is to establish a casteless and classless
society. Mahatma Gandhi said: “The caste system as we know
is an anachronism. It must go if both Hinduism and India are
to live and grow from day to day.” The first Prime Minister,
Pt. Jawahar Lal Nehru, said that “no one should be left in any
doubt that the future Indian Society was to be casteless and
classless”. Dr. B. R. Ambedkar called caste “anti-national”.
5.After almost four decades of independence, while
participating in the Parliamentary Debate on the Mandal
issue, then Prime Minister Shri Rajiv Gandhi on 6
th
September, 1990 again reiterated the same sentiments: “I
think, nobody in this House will say that the removal of
casteism is not part of the national goal, therefore, it would be
in the larger interest of the nation to get rid of the castes as
early as possible”. It is our bounden duty and obligation to
examine the validity of the 93
rd
Amendment in the background
of the Preamble and the ultimate goal that runs through the
pages of the Constitution.
6.To attain an egalitarian society, we have to urgently
remove socio-economic inequalities. All learned counsel for
the petitioners asserted that we must deliver the benefits of
reservation to only those who really deserve it. This can only
be done if we remove the creamy layer. Learned counsel for
the Union of India and other respondents opposed this
assertion. The principle of creamy layer emanates from the
broad doctrine of equality itself. Unless the creamy layer is
removed from admissions and service reservation, the benefits
would not reach the group in whose name the impugned
legislation was passed – the poorest of the poor. Therefore,
including the creamy layer would be inherently unjust.
7.Creamy layer exclusion, however, is just one of the many
issues raised by the parties. I need to examine various facets
of this case in order to decide the validity of the 93
rd
Amendment and the Central Educational Institutions
(Reservation in Admission) Bill, 2006 (passed as Act 5 of 2007)
(hereinafter called the “Reservation Act”). I shall focus my
analysis on the following issues:
1A. Whether the creamy layer be excluded from the 93
rd
Amendment (Reservation Act)?
1B. What are the parameters for creamy layer exclusion?
1C. Is creamy layer exclusion applicable to SC/ST?
2. Can the Fundamental Right under Article 21A be
accomplished without great emphasis on primary
education?
3.Does the 93
rd
Amendment violate the Basic Structure
of the Constitution by imposing reservation on unaided
institutions?
4.Whether the use of caste to identify SEBCs runs afoul
of the casteless/classless society, in violation of
Secularism.
5.Are Articles 15(4) and 15(5) mutually contradictory,
such that 15(5) is unconstitutional?
6.Does Article 15(5)’s exemption of minority
institutions from the purview of reservation violate Article
14 of the Constitution?
7. Are the standards of review laid down by the U.S.
Supreme Court applicable to our review of affirmative
action under Art 15(5) and similar provisions?
8. With respect to OBC identification, was the
Reservation Act’s delegation of power to the Union
Government excessive?
9. Is the impugned legislation invalid as it fails to set a
time-limit for caste-based reservation?
10. At what point is a student no longer Educationally
Backward and thus no longer eligible for special provisions
under 15(5)?
11.Would it be reasonable to balance OBC reservation
with societal interests by instituting OBC cut-off marks
that are slightly lower than that of the general category?
8.I have carefully examined the pleadings and written
submissions submitted at length. Admittedly, the provisions
of the Constitution and the Preamble lead to the irresistible
conclusion that the Nation has always wanted to achieve a
casteless and classless society. If we permit this impugned
legislation to be implemented, I am afraid, instead of a
casteless and classless India, we would be left with a caste-
ridden society.
9.The first place where caste can be eradicated is the
classroom. It all starts with education. In other words, if you
belong to a lower caste but are well qualified, hardly anyone
would care about your caste. Free and compulsory education
is now a fundamental right under Article 21A. The State is
duty bound to implement this Article on a priority basis.
There has been grave laxity in its implementation. This laxity
adversely affects almost every walk of life. In my opinion,
nothing is more important for the Union of India than to
implement this critical Article.
10.I direct the Union of India to set a time-limit within which
this Article is going to be completely implemented. This time-
limit must be set within six months. In case the Union of
India fails to fix the time-limit, then perhaps this work will
also have to be done by the Court.
11.The Union of India should appreciate in proper
prospective that the root cause of social and educational
backwardness is poverty. All efforts have to be made to
eradicate this fundamental problem. Unless the creamy layer
is removed, the benefit would not reach those who are in need.
Reservation sends the wrong message. Everybody is keen to
get the benefit of backward class status. If we want to really
help the socially, educationally and economically backward
classes, we need to earnestly focus on implementing Article
21A. We must provide educational opportunity from day one.
Only then will the casteless/classless society be within our
grasp. Once children are of college-going age, it is too late for
reservation to have much of an effect. The problem with the
Reservation Act is that most of the beneficiaries will belong to
the creamy layer, a group for which no benefits are necessary.
Only non-creamy layer OBCs can avail of reservations in
college admissions, and once they graduate from college they
should no longer be eligible for post-graduate reservation.
27% is the upper limit for OBC reservation. The Government
need not always provide the maximum limit. Reasonable cut
off marks should be set so that standards of excellence are not
greatly affected. The unfilled seats should revert to the
general category.
12.These issues first arise out of the text of the impugned
Amendment. Reservation for Socially and Educationally
Backward Classes of Citizens (SEBCs) was introduced by the
93
rd
Amendment. Article 15(5) states:
“Nothing in this article or in sub-clause (g) of clause (1) of
article 19 shall prevent the State from making any special
provision, by law, for the advancement of any socially and
educationally backward classes of citizens or for the
Scheduled Castes or the Scheduled Tribes in so far as such
special provisions relate to their admission to educational
institutions including private educational institutions, whether
aided or unaided by the State, other than minority educational
institutions referred to in clause (1) of article 30.”
·Excluding the Creamy Layer from receiving
special benefits:
13.Affirmative action is employed to eliminate substantive
social and economic inequality by providing opportunities to
those who may not otherwise gain admission or employment.
Articles 14, 15 and 16 allow for affirmative action. To promote
Article 14 egalitarian equality, the State may classify citizens
into groups, giving preferential treatment to one over another.
When it classifies, the State must keep those who are unequal
out of the same batch to achieve constitutional goal of
egalitarian society.
·Arguments of the Union of India in regard to
the creamy layer:
14.Mr. G.E. Vahanvati, learned Solicitor General and Mr K.
Parasaran, Senior Advocate appearing for the Government
contend that creamy layer exclusion is a bad policy. They
argue that if you exclude the creamy layer, there would be a
shortage of candidates who can afford to pay for higher
education. This argument harms rather than helps the
Government. It cannot be seriously disputed that most of the
college-going OBCs belong to the creamy layer for whom
reservations are unnecessary; they have the money to attend
good schools, tuitions and coaching courses for entrance
exams. Naturally, these advantages result in higher test
scores vis-à-vis the non-creamy layer OBCs. The result is that
creamy OBCs would fill the bulk of the OBC quota, leaving the
non-creamy no better off than before. If the creamy get most of
the benefit, why have reservations in the first place? Learned
Senior Counsel for petitioners, Mr. Harish Salve, is justified in
arguing that before carrying out Constitutional Amendments
the Union of India must clearly target its beneficiaries. He
rightly submitted that we should not make law first and
thereafter target the law’s beneficiaries. Failure to exclude the
creamy layer is but one example of this problem.
15.The Government further submitted that the creamy layer
should be included to ensure that enough qualified candidates
fill 27% of the seats reserved to OBCs. The Oversight
Committee disagreed. The Committee relied on data from
Karnataka to disprove the contention that seats go unfilled
when the creamy is excluded: “… the apprehension that seats
will not be filled up if the creamy layer is excluded has been
comprehensively shown to be unfounded.” [See: Oversight
Committee, Vol. 1, Sept. 2006, p. 69, para 1.7.] We shall later
review the Oversight Committee opinion in greater detail.
·The reasons for which the creamy layer should
be excluded:
16.At the outset, I note that the Parliament rejected the
Hindi version of the Reservation Act. The Hindi version of the
Reservation Act would have expressly excluded the creamy
layer. [See: Prof. Rasa Singh Rawat’s comments in the
Parliamentary Debate on the Reservation Act, 14 December
2006]
17.The Parliament eventually passed the English version in
which the creamy layer is not mentioned, making its intention
clear. It wanted to include the creamy layer. For all practical
purposes, it did so. Therefore, I will treat it as included.
Counsel for the Union of India argued that it is still
theoretically possible for the executive to exclude the creamy
layer. Much is possible in theory. Given the executive’s failure
to take action since the time the Act was passed, I find this
argument unavailing.
18.With the Parliament’s intention in view, I will deal in
some detail with the reasons as to why the creamy layer
should be excluded from reservation. I do so because I want
to emphasize that the creamy layer must never be included in
any affirmative action legislation. It also becomes imperative
to gather the original Framers’ and the Framers’ intention. At
the outset, we recognise a distinction between the original
Framers and the Framers, i.e., Members of the First
Parliament. Members of the Constituent Assembly and the
First Parliament were one in the same. But the distinction is
necessary to the extent that the First Parliament deviated from
its constitutional philosophy. By examining the debate on
Article 15(4), I may ascertain whether the Framers wanted to
exclude the creamy layer.
19.The First Parliament believed that “economic” was
included in the “social” portion of “socially and educationally
backward.” Prime Minister Nehru said as much:
“One of the main amendments or ideas put forward is in
regard to the addition of the word “economical”. Frankly, the
argument put forward, with slight variation, I would accept,
but my difficult is this that when we chose those particular
words there, “for the advancement of any socially and
educationally backward classes”, we chose them because they
occur in article 340 and we wanted to bring them bodily from
there. Otherwise I would have had not the slightest objection
to add “economically”. But if I added “economically” I would at
the same time not make it a kind of cumulative thing but
would say that a person who is lacking in any of these things
should be helped. “Socially” is a much wider word including
many things and certainly including economically. Therefore,
I felt that “socially and educationally” really cover the ground
and at the same time you bring out a phrase used in another
part of the Constitution in a slightly similar context.” (See: the
Parliamentary Debates on First Amendment Bill, 1 June 1951,
p. 9830.)
Had it not been for a desire to achieve symmetry in drafting,
“economically” would have been included. Had this been
done, the creamy layer would have been excluded ab initio.
20.In the 15(4) debate, Shri M.A. Ayyangar’s wanted to add
“economic” to ensure that the rich SEBCs would not receive
special provisions.
“I thought “economic” might be added so that rich men may
not take advantage of this provision. In my part of the country
there are the Nattukkottai Chettiars who do not care to have
English education, but they are the richest of the lot … should
there be special reservation for them? ” (See: The
Parliamentary Debates on First Amendment Bill, 1 June 1951,
p. 9817.)
(emphasis added).
This hesitation aside, Shri M.A. Ayyangar was satisfied that
the term “economic” was included in the term “social.” The
Framers were worried about creamy layer inclusion, albeit
under a different name. They wanted to ensure that the
“richest of the [backward] lot” would not benefit from special
provisions. With their sentiment on our side, we are even
more confident that we should strike out in the direction that
strikes down laws that include the creamy layer.
·Including the creamy layer means unequals
are treated as equals in violation of the right to
equality under Articles 14, 15 and 16.
21.In the present case, Dr. Rajeev Dhavan, the learned
Senior Counsel and Mr. S.K. Jain, the learned counsel
vehemently argued on behalf of petitioners that it is precisely
because equality is at issue that the creamy layer must be
removed. The creamy layer has been the subject matter of a
number of celebrated judgments of this Court. In a seven
Judge Bench in State of Kerala & Another v. N. M. Thomas
& Others (1976) 2 SCC 310, Justice Mathew, in his
concurring judgment, dealt with the right to equality in the
following words:
“66. The guarantee of equality before the law or the equal
opportunity in matters of employment is a guarantee of
something more than what is required by formal equality. It
implies differential treatment of persons who are unequal.
Egalitarian principle has therefore enhanced the growing belief
that Government has an affirmative duty to eliminate
inequalities and to provide opportunities for the exercise of
human rights and claims. ………”
(emphasis added)
22.In Indra Sawhney & Others v. Union of India &
Others (1992) Supp (3) SCC 217, (hereinafter referred to as
Sawhney I), this Court has aptly observed that reservation is
given to backward classes until they cease to be backward,
and not indefinitely. This Court in para 520 (Sawant, J.) has
stated as under:
“Society does not remain static. The industrialisation and the
urbanisation which necessarily followed in its wake, the
advance on political, social and economic fronts made
particularly after the commencement of the Constitution, the
social reform movements of the last several decades, the
spread of education and the advantages of the special
provisions including reservations secured so far, have all
undoubtedly seen at least some individuals and families in the
backward classes, however small in number, gaining sufficient
means to develop their capacities to compete with others in
every field. That is an undeniable fact. Legally, therefore, they
are not entitled to be any longer called as part of the backward
classes whatever their original birthmark. It can further hardly
be argued that once a backward class, always a backward
class. That would defeat the very purpose of the special
provisions made in the Constitution for the advancement of
the backward classes, and for enabling them to come to the
level of and to compete with the forward classes, as equal
citizens.”
(emphasis supplied).
23.For our purposes, creamy layer OBCs and non-creamy
layer OBCs are not equals when it comes to moving up the
socio-economic ladder by means of educational opportunity.
Failing to remove the creamy layer treats creamy layer OBCs
and non-creamy layer OBCs as equals. In the same
paragraph, Justice Sawant stated that “… to rank [the creamy
layer] with the rest of the backward classes would … amount
to treating the unequals equally...” violating the equality
provisions of the Constitution.
24.According to the Kerala Legislature, there was no creamy
layer in Kerala. The legislation was challenged in Indra
Sawhney v. Union of India & Others (2000) 1 SCC 168,
(hereinafter referred to as Sawhney II). The Court struck the
two provisions that barred creamy layer exclusion, concluding
that non-inclusion of the creamy-layer and inclusion of
forward castes in reservation violates the right to equality
under Article 14 and the basic structure.
25.In Sawhney II at para 65, the Court had gone to the
extent of observing that not even the Parliament, by
constitutional amendment, could dismantle the basic structure
by including the creamy layer in reservation:
“What we mean to say is that the Parliament and the
legislature in this country cannot transgress the basic feature
of the Constitution, namely, the principle of equality enshrined
in Article 14 of which Article 16(1) is a facet. Whether the
creamy layer is not excluded or whether forward castes get
included in the list of backward classes, the position will be the
same, namely, that there will be a breach not only of Article 14
but of the basic structure of the Constitution. The non-
exclusion of the creamy layer or the inclusion of forward castes
in the list of backward classes will, therefore, be totally illegal.
Such an illegality offending the root of the Constitution of
India cannot be allowed to be perpetuated even by
constitutional amendment.”
26.By definition, the creamy and non-creamy are unequal
when it comes to schooling. Relative to their non-creamy
counterparts, the creamy have a distinct advantage in gaining
admission. While the creamy and non-creamy are given equal
opportunity to gain admission in the reserved category, this
equality exists in name only. Will the OBC daughter of a
Minister, IAS officer or affluent business owner attend better
schools than her non-creamy counterpart? Yes. Will she go to
private tuitions unaffordable to her non-creamy counterpart?
Certainly. And where will she cram for the all-decisive
entrance exams? In a coaching center? Of course. Will she
come home from school to find a family member waiting?
Probably. And when she seeks help from her parents, are they
educated and able to give superior assistance with
schoolwork? Most likely.
27.I take judicial notice of these anecdotes, for they flesh out
a simple fact: she has all the resources that her non-creamy
counterpart lacks. It is no surprise that she will outperform
the non-creamy. On average, her lot will take the reserved
seats.
28.I cannot consider the OBC Minister’s daughter and the
non-creamy OBC as equals in terms of their chances at
earning a university seat; nor can I allow them to be treated
equally. To lump them in the same category is an
unreasonable classification. Putting them in head-to-head
competition for the same seats violates the right to equality in
Articles 14, 15 and 16.
29.In its conclusion at para 122, M. Nagaraj & Others v.
Union of India & Others (2006) 8 SCC 212, a Constitution
Bench of this Court while dealing with Article 16(4A) and
16(4B) with regard to SC and ST observed as under:-
“We reiterate that the ceiling limit of 50%, the concept of
creamy layer and the compelling reasons, namely,
backwardness, inadequacy of representation and overall
administrative efficiency are all constitutional requirements
without which the structure of equality of opportunity in
Article 16 would collapse.”
It was contended that Nagraj is obiter in regard to creamy
layer exclusion. According to Nagraj, reservation in promotion
for SC/ST is contingent on exclusion of the creamy layer.
(paras 122, 123 and 124). The contention of the Union of
India cannot be accepted. The discussion regarding creamy
layer is far from obiter in Nagraj. If the State fails to exclude
the SC/ST creamy layer, the reservation must fall. Placing
this contingency in the conclusion makes the discussion of
creamy layer part of the ratio.
30.In sum, creamy layer inclusion violates the right to
equality. That is, non-exclusion of creamy layer and inclusion
of forward castes in reservation violates the right to equality in
Articles 14, 15 and 16 as well as the basic structure of the
Constitution.
·If you belong to the creamy layer, you are not
SEBC.
31.One of the prominent questions raised in the writ
petitions is whether creamy layer OBCs should be considered
socially and educationally backward under the provisions of
Article 15(5). While interpreting this provision, a basic
syllogism must govern our decision. If you belong to the
creamy layer, you are socially advanced and cannot be given
the benefit of reservation. (See: Sawhney I).
32.Once one is socially advanced, he cannot be socially and
educationally backward. He who is socially forward is likely to
be educationally forward as well. If either condition (social or
educational) goes unmet, one cannot qualify for the benefit of
reservation as SEBC. Being socially advanced, the creamy
layer is not socially backward pursuant to Articles 15(4) and
15(5) of the Constitution.
33.Even the text of Articles 15(4) and 15(5) provides for
creamy layer exclusion. In this sense, one could say that the
term “creamy layer” is synonymous with “non-SEBC”.
34.Similar interpretation is given to “backward classes”
under Article 16(4). The Parliament could not reasonably
make reservation for non-backwards. Such a Bill on the face
of it would violate the Constitution. In Sawhney I, the
Government of India issued an O.M. on 13 August 1990,
reserving 27% of Government posts to SEBCs. Writing for the
majority, at para 792 of page 724, Justice Reddy explained
that the creamy layer was not SEBC.
“The very concept of a class denotes a number of persons
having certain common traits which distinguish them from the
others. In a backward class under Clause (4) of Article 16, if
the connecting link is the social backwardness, it should
broadly be the same in a given class. If some of the members
are far too advanced socially (which in the context, necessarily
means economically and, may also mean educationally) the
connecting thread between them and the remaining class
snaps. They would be misfits in the class. After excluding
them alone, would the class be a compact class. In fact, such
exclusion benefits the truly backward”
Even though the O.M. was silent on the issue of creamy layer,
Justice Reddy excluded the creamy layer at para 859(3)(d).
The O.M. could not go into effect until the creamy layer was
excluded. [para 861(b)]. Exclusion was only in regard to OBC;
SC/ST were not touched. (para 792). In Sawhney I, the
entire discussion was confined only to Other Backward
Classes. Similarly, in the instant case, the entire discussion
was confined only to Other Backward Classes. Therefore, I
express no opinion with regard to the applicability of exclusion
of creamy layer to the Scheduled Castes and Scheduled
Tribes.
·Creamy Layer OBCs are not educationally
backward
35.In addition to social backwardness, the text of 15(5)
demands that recipients are also educationally backward.
Even though the creamy layer’s status as socially advanced is
sufficient to disqualify them for preferential treatment, the
creamy layer from any community is usually educated and will
want the same for its children. They know that education is
the key to success. For most, it made them. People belonging
to this group do not require reservation.
· Creamy Layer Inclusion Robs the Poor and
Gives to the Rich:
36.In a number of judgments, the view has been taken that
the creamy layer’s inclusion takes from the poor and gives to
the rich.
37.Our Courts in following cases had taken the same view.
[See: N.M Thomas (supra), para 124 (seven-Judge Bench);
K.C. Vasanth Kumar & Another v. State of Karnataka,
1985 (Supp) SCC 714, paras 2, 24 and 28 (five-Judge Bench);
Sawhney I., paras 520, 793 and 859(3)(d) (nine-Judge
Bench); Ashoka Kumar Thakur v. State of Bihar & Others
(1995) 5 SCC 403, paras 3, 17 and 18 (two-Judge Bench);
Sawhney II, paras 8-10, 27, 48 and 65-66 (three-Judge
Bench); Nagaraj (supra), paras, 120-124 (five-Judge Bench);
Nair Service Society v. State of Kerala, (2007) 4 SCC 1;
paras 31 and 49-54 (two-Judge Bench)].
38.In Akhil Bharatiya Soshit Karamchari Sangh
(Railway) v. Union of India & Others (1981) 1 SCC 246,
Justice Iyer had this to say about the creamy layer:
“92. … Maybe, some of the forward lines of the backward
classes have the best of both the worlds and their electoral
muscle qua caste scares away even radical parties from
talking secularism to them. We are not concerned with that
dubious brand. In the long run, the recipe for backwardness is
not creating a vested interest in backward castes but
liquidation of handicaps, social and economic, by constructive
projects. All this is in another street and we need not walk
that way now.
94. … Nor does the specious plea that because a few harijans
are better off, therefore, the bulk at the bottom deserves no
jack-up provisions merit scrutiny. A swallow does not make a
summer. Maybe, the State may, when social conditions
warrant, justifiably restrict harijan benefits to the harijans
among the harijans and forbid the higher harijans from
robbing the lowlier brethren.”
39.Creamy layer inclusion was not enough to strike an
entire provision in this case. He suggests that creamy layer
exclusion is an issue to be dealt with at a later time.
“98.The argument that there are rich and influential harijans
who rob all the privileges leaving the serf-level sufferers as
suppressed as ever. The Administration may well innovate and
classify to weed out the creamy layer of SCs/STs but the court
cannot force the State in that behalf.”
Thus, Justice Iyer does not mandate creamy layer exclusion;
rather, he leaves the question to the State.
40.Apart from judicial pronouncements, the Oversight
Committee suggested that failure to exclude the creamy layer
would lead to unfair results. The Committee was cautious to
reach a conclusion.
41.In its Report, it stated that “… the decision taken was to
leave the matter to the Government of India, keeping in mind
the fact that the ‘creamy layer’ is not covered in the
Reservation Act, 2006.” (See: Oversight Committee, Vol. 1, p.
33 and 4.2.)
42.Before “leaving” the matter to the Government, the
Committee nevertheless made its recommendation: “In case it
is decided not to exclude the ‘creamy layer’, the poorest among
the OBCs will be placed at a disadvantage.” (emphasis added).
(See: Oversight Committee at Appendix I in its Report at p. 70,
para 1.13). At page 69 of Vol. I of its Report, the Committee
offered data to support this conclusion:
“1.6: Appendix-2 examines in detail the status of the socio-
economic development of OBCs in respect of such parameters
as relate to poverty, health, education, unemployment,
workforce participation, land ownership etc. The analysis of
the NSS data clearly brings out that inclusion of the creamy
layer will result in reserved seats getting pre-empted by the
OBCs from the top two deciles at the cost of the poorer income
deciles of the OBCs. Thus almost all rural OBCs as well as
Urban OBCs from the Northern, Central and Eastern regions
of India will be deprived of the intended benefits of reservation.
[emphasis added]
1.7: On the other hand, it was argued that if the creamy layer
of OBCs is denied access to reservation in education pari-
passau with the principle applied in the case of employment,
the reserved seats may not get filled up, again defeating the
purpose of bringing in reservation for the OBCs. In a case
study from Karnataka (included in Annexure X), it has been
clearly shown that the OBC quotas have been utilized without
any compromise with academic excellence in a situation where
the creamy layer has been excluded. The apprehension that
seats will not be filled up if the creamy layer is excluded has
been comprehensively shown to be unfounded. The case
study shows that the performance of students from below the
creamy layer is outstanding and much better than general
category students.”
43.The Committee could have played it safe. Despite some
opposition, the Committee included its opinion on the matter.
And that opinion is unequivocal: the creamy must be
excluded.
44.What is allegedly for the poor goes to the rich. Is that
reasonable? Trumpeted by the Parliament as a “…boost to the
morale of the downtrodden” and “… in the right direction of
ensuring social justice to other backward classes …” and
“ensuring social justice to those weaker sections …”, Article
15(5) dupes those who actually need preferential treatment.
(See: Prof. Basudeb Barman, M.P., the Parliamentary Debates,
p. 531, December 21, 2005; Prof. M. Ramadass, M.P., at p.
510; and Shri C.K. Chandrappan, M.P., at p. 494 respectively).
For the poorest of the poor, reservation in college is an empty
promise. Few of the financially poor OBCs attend high school,
let alone college. Instead of rewarding those that complete Plus
2, the 93
rd
Amendment (Art 15(5)) poses another barrier: they
will have to compete with the creamy layer for reserved seats.
45.As explained, the poor lack the resources to compete with
the creamy, who “snatch away” those seats. {N. M. Thomas
(supra), para 124 (Iyer, J.)}. With the creamy excluded, poor
OBCs would compete with poor OBCs – the playing field
levelled. As it stands, the Amendment and Act serve one
purpose: they provide a windfall of seats to the rich and
powerful amongst the OBCs. It is unreasonable to classify
rich and poor OBCs as a single entity. As noted, this violates
the Article 14 right to equality.
46.Unless the creamy layer is removed, OBCs cannot
exercise their group rights. The Union of India and other
respondents argued that creamy layer exclusion is wrong
because the text of the 93
rd
Amendment bestows a benefit on
“classes”, not individuals. While it is a group right, the group
must contain only those individuals that belong to the group. I
first take the entire lot of creamy and non creamy layer OBCs.
I then remove the creamy layer on an individual basis based
on their income, property holdings, occupation, etc. What is
left is a group that meets constitutional muster. It is a group
right that must also belong to individuals, if the right is to
have any meaning. If one OBC candidate is denied special
provisions that he should have received by law, it is not the
group’s responsibility to bring a claim. He would be the one to
do so. He has a right of action to challenge the ruling that
excluded him from the special provisions afforded to OBCs. In
this sense, he has an individual right. Group and individual
rights need not be mutually exclusive. In this case, it is not
one or the other but both that apply to the impugned
legislation.
· Whether the Creamy Layer exists outside
India?:
47.An interesting question arises: does the concept of
creamy layer exist outside India? A 2003 study carried out in
the United States suggests that it does. The study by William
Bowen, former president of Princeton University, found that
when you look at students with the same Scholastic Aptitude
Test (SAT) scores, certain groups have a better chance of being
admitted to college. “The New Affirmative Action,” by David
Leonhardt, New York Times, 30 September 2007, p. 3. All
things being equal, one’s chance of gaining admission is
augmented by belonging to one of the preferred groups.
Individuals belonging to these groups are given preferential
treatment over those who do not.
48.The study demonstrated that Black, Latino and Native-
Americans with the same SAT scores as White or Asian
students had a 28% better chance than the White or Asian
students at gaining admission; those whose parents attended
the college had a 20% advantage over those whose parents did
not; and the poor received no advantage whatsoever over the
rich. (See: New York Times article, p. 3.)
49.The statistics indicate that the failure to exclude the
creamy layer ultimately leads to a situation in which deserving
students are excluded. When we revert to the Indian scenario,
as long as the Government gives handouts to certain groups,
the creamy layer therein will “lap” them up. A scheme in
which the poor receive no advantage can be remedied by
excluding the creamy layer.
50.Even the Mandal Commission, which was established in
1979 with a mandate to identify the socially and educationally
backward, admitted that the creamy layer was robbing fellow
OBCs of reservation. In reference to Tamil Nadu, it said: “In
actual operation, the benefits of reservation have gone
primarily to the relatively more advanced castes amongst the
notified backward classes.” (See: P.37, 8.13 of the Report of
the Backward Classes Commission, First Part, Vols. 1-2,
1980). It also stated that: “it is no doubt true that the major
benefits of reservation…..will be cornered by the more
advanced sections…..” but reasoned that this was acceptable
because reform is presumably slow and should start with the
more advanced of the backward. ( See: Page 62, para 13.7
(recommendations)).
51.In N. M. Thomas & Others case (supra), Krishna Iyer,
J. in his concurring judgment in para 124 noted that the
research conducted by the A.N. Sinha Institute of Social
Studies, Patna, had revealed a dual society among harijans in
which a tiny elite gobbles up the benefits.
· Severing the Creamy Layer
52.Technically speaking, I am severing the implied inclusion
of the creamy layer. It is severable for two reasons. First, a
nine-Judge Bench in Sawhney I severed a similar provision
wherein the creamy layer was not expressly included,
upholding the rest of the O.M.’s reservation scheme. Second,
because the Parliament must have known that Sawhney I
had excluded the creamy layer, it seems likely that the
Parliament also realized that this Court may do the same. A
cursory review of the Parliamentary Debates regarding Article
15(5) clearly reveals that the Parliament discussed the
Sawhney I judgment in detail. (See: for example, comments
made by Shri Mohan Singh, p.474 and Shri Devendra Prasad,
pages 478-479 on 21 December 2005). Had the Parliament
insisted on creamy layer inclusion, it could have said as much
in the text of 15(5). Instead, the Parliament left the text of
15(5) silent on the issue, delegating the issue of OBC
identification to the executive in Section 2(g) of the Reservation
Act.
53.The test for severability asks a subjective question: had
the Parliament known its provision would be struck would it
still have passed the rest of the legislation? (See: R.M.D.
Chamarbaugwalla & Another v. Union of India &
Another, AIR 1957 SC 628 at page 637 at para 23). It is never
easy to say what the Parliament would have done had it
known that part of its amendment would be severed.
Nevertheless, I find it hard to imagine that the Parliament
would have said, “if the creamy is excluded, the rest of the
OBCs should be denied reservation in education.” It seems
unlikely that it would have been an all-or-nothing proposition
for the Parliament, when the very goal of the impugned
legislation of promoting OBC educational advancement does
not depend on creamy layer inclusion. For these reasons, I
sever or exclude the implied inclusion of the creamy layer.
· Identification of Creamy Layer
54.Income as the criterion for creamy layer exclusion is
insufficient and runs afoul of Sawhney I. (See: page 724 at
para 792). Identification of the creamy layer has been and
should be left to the Government, subject to judicial direction.
For a valid method of creamy layer exclusion, the Government
may use its post-Sawhney I criteria as a template. (See: O.M.
of 8-9-1993, para 2(c)/Column 3, approved by this Court in
Ashoka Kumar Thakur (supra), para 10). This schedule is a
comprehensive attempt to exclude the creamy layer in which
income, Government posts, occupation and land holdings are
taken into account. The Office Memorandum is reproduced
hereunder:
“No. 36012/22/93- Estt (SCT)
Government of India
Ministry of Personnel, Public Grievances & Pension
(Department of Personnel & Training)
New Delhi, the 8
th
September, 1993
OFFICE MEMORANDUM
Subject:Reservation for Other Backward Classes in Civil
Posts and Services under the Government of India –
Regarding.
The undersigned is directed to refer to this Department’s
O.M. No.36012/31/90-Estt(SCT) dated 13
th
August, 1990 and
25
th
September, 1991 regarding reservation for Socially and
Economically Backward Classes in Civil Posts and Services
under the Government of India and to say that following the
Supreme Court judgment in Indra Sawhney v. Union of
India & Others (Writ Petition (Civil) No.930 of 1990) the
Government of India appointed an Expert Committee to
recommend the criteria for exclusion of the socially advanced
persons/sections from the benefits of reservation for Other
Backward Classes in civil posts and services under
Government of India.
2.Consequent to the consideration of the Expert
Committee’s recommendation this Department’s Office
Memorandum No.36012/31/90-Estt. (SCT), dated 13.8.1990
referred to in para (1) above is hereby modified to provide as
follows:-
(a)27% (Twenty seven percent) of the vacancies in civil posts
and services under the Government of India, to be filled
through direct recruitment, shall be reserved for the Other
Backward Classes. Detailed instructions relating to the
procedure to be followed for enforcing reservation will be
issued separately.
(b)Candidates belonging to OBCs recruited on the basis of
merit in an open competition on the same standards
prescribed for the general candidates shall not be adjusted
against the reservation quota of 27%.
(c) (i)The aforesaid reservation shall not apply to
persons/sections mentioned in column 3 of the Schedule to
this Office Memorandum.
(ii)The rule of exclusion will not apply to persons working as
artisans or engaged in hereditary occupations, callings. A list
of such occupations, callings will be issued separately by the
Ministry of Welfare.
(d)The OBCs for the purpose of the aforesaid reservation
would comprise, in the first phase, the castes and
communities which are common to both the lists in the report
of the Mandal Commission and the State Government’s Lists.
A list of such castes and communities is being issued
separately by the Ministry of Welfare.
(e)The aforesaid reservation shall take immediate effect.
However, this will not apply in vacancies where the
recruitment process has already been initiated prior to the
issue of this order.
3.Similar instructions in respect of public sector
undertakings and financial institutions including public sector
banks will be issued by the Department of Public Enterprises
and by the Ministry of Finance respectively from the date of
this Office Memorandum.
SCHEDULE
Description of
Category
To whom rule of exclusion will
apply.
I.
CONSTITUTIONAL
POSTS
Son(s) and daughter(s) of
(a) President of India;
(b) Vice President of India;
(c) Judges of the Supreme Court
and of the High Courts;
(d) Chairman & Members of
UPSC and of the State Public
Service Commission; Chief
Election Commissioner;
Comptroller & Auditor General of
India;
(e) Persons holding Constitutional
positions of like nature.
II.
SERVICE CATEGORY
A. Group A/Class 1
officers of the All India
Central and State
Services (Direct
Recruits)
Son(s) and daughter(s) of
(a) parents, both of whom are
Class I officers;
(b) parents, either of whom is a
Class I officer;
(c) parents, both of whom are
Class I officers, but one of them
dies or suffers permanent
incapacitation.
(d) parents, either of whom is a
Class I officer and such parent
dies or suffers permanent
incapacitation and before such
death or such incapacitation has
had the benefit of employment in
any International Organisation
like UN, IMF, World Bank, etc. for
a period of not less than 5 years.
(e) parents, both of whom are
class I officers die or suffer
permanent incapacitation and
before such death or such
incapacitation of the both, either
of them has had the benefit of
employment in any International
Organisation like UN, IMF, World
Bank, etc. for a period of not less
than 5 years.
(f) Provided that the rule of
exclusion shall not apply in the
following cases :-
(a) Sons and daughters of parents
either of whom or both of whom
are Class-I officers and such
parent(s) dies / die or suffer
permanent incapacitation.
(b) A lady belonging to OBC
category has got married to a
Class-I officer, and may herself
like to apply for a job.
Group B/Class II
officers of the Central &
State Services (Direct
Recruitment)
Son(s) and daughter(s) of
(a) parents both of whom are
Class II officers.
(b) parents of whom only the
husband is a Class II officer and
he gets into Class I at the age of
40 or earlier.
(c) parents, both of whom are
Class II officers and one of them
dies or suffers permanent
incapacitation and either one of
them has had the benefit of
employment in any International
Organisation like UN, IMF, World
Bank, etc. for a period of not less
than 5 years before such death or
permanent incapacitation;
(d) parents, of whom the husband
is a Class I officer (direct recruit
or pre-forty promoted) and the
wife is a Class II officer and the
wife dies; or suffers permanent
incapacitation; and
(e) parents, of whom the wife is a
Class I officer (Direct Recruit or
pre-forty promoted) and the
husband is a Class II officer and
the husband dies or suffers
permanent incapacitation.
Provided that the rule of
exclusion shall not apply in the
following cases:
Sons and daughters of
(a) Parents both of whom are
Class II officers and one of them
dies or suffers permanent
incapacitation.
(b) Parents, both of whom are
Class II officers and both of them
die or suffer permanent
incapacitation, even though
either of them has had the
benefit of employment in any
International Organisation like
UN, IMF, World Bank, etc. for a
period of not less than 5 years
before their death or permanent
incapacitation.
C. Employees in Public
Sector Undertakings
The criteria enumerated in A & B
above in this Category will apply
etc. mutatis mutandi to officers
holding equivalent or comparable
posts in PSUs, banks, Insurance
Organisations, Universities, etc.
and also to equivalent or
comparable posts and positions
under private employment,
Pending the evaluation of the
posts on equivalent or
comparable basis in these
institutions, the criteria specified
in Category VI below will apply to
the officers in these Institutions.
III.
ARMED FORCES
INCLUDING
PARAMILITARY
FORCES
(Persons holding civil
posts are not included)
Son(s) and daughter(s) of parents
either or both of whom is or are
in the rank of Colonel and above
in the Army and to equivalent
posts in the Navy and the Air
Force and the Para Military
Forces;
Provided that:-
(i) if the wife of an Armed Forces
Officer is herself in the Armed
Forces (i.e., the category under
consideration) the rule of
exclusion will apply only when
she herself has reached the rank
of Colonel;
(ii) the services ranks below
Colonel of husband and wife shall
not be clubbed together:
(iii) if the wife of an officer in the
Armed Forces is in civil
employment, this will not be
taken into account for applying
the rule of exclusion unless the
falls in the service category under
item No.II in which case the
criteria and conditions
enumerated therein will apply to
her independently.
IV.
PROFESSIONAL CLASS
AND THOSE
ENGANGED IN TRADE
AND INDUSTRY
(I) Persons engaged in
profession as a doctor,
lawyer, Chartered
Accountant, Income-
Tax Consultant,
financial or
management
consultant, dental
surgeon, engineer,
architect, computer
specialist, film artists
and other film
professional, author,
playwright, sports
person, sports
professional, media
professional or any
other vocations of like
status. Criteria
specified against
Category VI will apply:
(II) Persons engaged in
trade, business and
industry
Criteria specified against
Category VI will apply:
Criteria specified against
Category VI will apply:
Explanation:
(i) Where the husband is in some
profession and the wife is in a
Class II or lower grade
employment, the income / wealth
test will apply only on the basis
of the husband’s income.
(ii) If the wife is in any profession
and the husband is in
employment in a Class II or lower
rank post, then the
income/wealth criterion will
apply only on the basis of the
wife’s income and the husband’s
income will not be clubbed with
it.
V.
PROPERTY OWNERS
A. Agricultural holdings
Son(s) and daughter(s) of persons
belonging to a family (father,
mother and minor children)
which owns
(a) only irrigated land which is
equal to or more than 85% of the
statutory ceiling area, or
(b) both irrigated and unirrigated
land, as follows:
(i) The rule of exclusion will
apply where the pre-condition
exists that the irrigated area
(having been brought to a single
type under a common
denominator) 40% or more of the
statutory ceiling, limit for
irrigated land (this being,
calculated by excluding the
unirrigated portion). If this pre-
condition of not less than 40%
exists, then only the area of
unirrigated land will be taken
into account. This will be done by
converting the unirrigated land
on the basis of the conversion
formula existing, into the
irrigated type. The irrigated area
so computed from unirrigated
land shall be added to the actual
area of irrigated land and if after
such clubbing together the total
area in terms of irrigated land is
80% or more of the statutory
ceiling limit for irrigated land,
then the rule of exclusion will
apply and dis-entitlement will
occur.
(ii)The rule of exclusion will
not apply if the land holding of a
family is exclusively unirrigated.
B. Plantations
(i) Coffee, tea, rubber,
etc.
(ii) Mango, citrus, apple
plantations etc.
Criteria of income/wealth
specified in Category VI below will
apply.
Deemed as agricultural holding
and hence criteria at A above
under this Category will apply.
C. Vacant land and/or
buildings in urban
areas or urban
agglomerations
Criteria specified in Category VI
below will apply.
Explanation: Building may be
used for residential, industrial or
commercial purpose and the like
two or more such purposes.
VI.INCOME/WEALTH
TEST
Son(s) and daughter(s) of
(a) Persons having gross income
of Rs.1 lakh or above or
possessing wealth above the
exemption limit as prescribed in
the Wealth Tax Act for a period of
three years.
(b) Persons in Categories I, II, III
and VA who are not disentitled to
the benefit of reservation but
have income from other sources
of wealth which will bring them
within the income/wealth criteria
mentioned in (a) above.
Explanation:
(i) Income from salaries or
agricultural land shall not be
clubbed;
(ii)The income criteria in
terms of rupee will be modified
taking into account the change in
its value every three years. If the
situation, however, so demands,
the interregnum may be less.
Explanation: Wherever the expression “permanent
incapacitation” occur in this schedule, it shall mean
incapacitation which results in putting an officer out of
service.
Smt. Sarita Prasad
Joint Secretary to the Government of India.”
55.In sum, the schedule excludes the children of those who
hold constitutional posts, e.g., the children of the President of
India, Supreme Court Judges, Chairman and Members of
UPSC and others are excluded. Class 1 Officers’ children are
not eligible for OBC perks either. When both parents are
Class-II Officers, their children are excluded. The same
criteria that apply to Class-I and II officers apply to children of
parents who work at high levels within the private sector.
Agricultural owners are excluded when their irrigated holdings
are more than or equal to 85% of the statutory ceiling. The
O.M. further excludes persons having a gross annual income
of Rs.2.5 lakh or more. The Government raised the income
limit from Rs.1 to Rs.2.5 lakh on 09.03.2004 vide O.M.
36033/3/2004.
56.The creamy layer schedule of the O.M. dated 8.9.93, in
my opinion, is not comprehensive. This should be revised
periodically - preferably once in every 5 years, in order to
ensure that creamy layer criteria take changing circumstances
into account.
57.Apart from the people who have been excluded vide the
office memo, I urge the Government to make it more
comprehensive. The Government should consider excluding
the children of sitting and former Members of Parliament (MP)
and Members of Legislative Assemblies (MLA) from special
benefits. If constitutional authorities have been excluded from
benefits because of their status or resources, the same should
apply to children of former and sitting MPs and MLAs. I hope
the judiciary will not have to involve itself in this matter.
2. Applying Article 21A to the Reservation Act
58.On 18 December 2006, in the Rajya Sabha Debate on the
Reservation Act, Member of Parliament and former Governor,
Dr. P.C. Alexander summed up what would become one of
Petitioners’ arguments. Should Rs.17,000 crores be spent on
implementing the Reservation Act for higher education when
primary/secondary schooling is in such bad shape? Dr.
Alexander stated:
“Sir, this spending Rs.17,000 crores or whatever amount is
needed for adding seats in the Engineering colleges, IIMs and
IITs is reversing our priorities. If you have the money for
education, spend it on schools. Spend it on the rural areas for
primary schools; spend it on the schools, which are poorly
starved in the urban areas. Instead of doing that, you spend it
by adding to the numbers because you want to appease the
so-called poorer sections in the higher castes. So, we have
taken care of you and you tell the backward classes we are
taking care of all of you. This is where we land ourselves in
trouble. We have cash resources. They should be spent
where priorities are fixed clearly in our eyes and we don’t want
to do that.”
Spending on higher at the expense of lower education raises
the specter of conflict with Article 21A. By the 86
th
Amendment, Article 21A was inserted in our Constitution.
Article 21A reads as follows:
“The State shall provide free and compulsory education to all
children of the age of six to fourteen years in such manner as
the State may, by law, determine.”
59.Under Article 21A, it is a mandatory obligation of the
State to provide free and compulsory education to all children
aged six to fourteen. In order to achieve this constitutional
mandate, the State has to place much greater emphasis on
allocating more funds for primary and secondary education.
There is no corresponding constitutional right to higher
education. The entire Nation’s progress virtually depends
upon the proper and effective implementation of Article 21A.
60.This Court in Unni Krishnan, J.P. & Others v. State of
Andhra Pradesh & Others (1993) 1 SCC 645 para 166 held
as under:
“… right to education is implicit in and flows from the right to
life guaranteed by Article 21. That the right to education has
been treated as one of transcendental importance in the life of
an individual [and] has been recognized not only in this
country since thousands of years, but all over the world. …
without education being provided to citizens of this country,
the objectives set forth in the Preamble to the Constitution
cannot be achieved. The Constitution would fail.”
This observation encouraged the Parliament to insert Article
21A into the Constitution.
61.In Unni Krishnan (supra), Justice Reddy observed that
the quality of education in Government schools was extremely
poor and that the schools were woefully inadequate to the
needs of the children. He noted that many countries spend
6% to 8% of Gross Domestic Product on education. Our
expenditure on education is just 4% of GDP.
62.Though an improvement over past performance, the
overall education picture leaves much to be desired. The bad
news is really bad. Even where we have seen improvement,
there is still failure. A survey by Pratham, an NGO, fleshes
out the acute problems found in rural schools. (See: ASER
2007 – Rural Annual Status of Education Report for 2007,
published on January 16, 2008). The survey covered 16,000
villages. As Pratham indicates, there are an estimated 140
million children in the age group 6 to 14 years in primary
schools. Of these 30 million cannot read, 40 million can
recognize a few alphabets, 40 million can read some words,
and 30 million can read paragraphs. Over 55 million of these
children will not complete four years of school, eventually
adding to the illiterate population of India. The national
literacy rate is 65%.
63.24 districts with more than 50,000 out of school children
means we have failed 24 times over. 71 districts in which
there are 60 students per teacher is just as bad, if not worse.
According to Pratham (and in line with the Ministry of HRD’s
six-month review), the number of out of school children has
hovered around 7,50,000. [page 6]. Moreover, it goes without
saying that children need proper facilities. Today, just 59% of
schools can boast of a useable toilet. [page 49].
64. The quality of education is equally troubling. For
standards I and II, only 78.3% of students surveyed could
recognize letters and read words or more in their own
language. [page 47]. In 2006, it was even worse – only 73.1%
could do so. It is disheartening to peruse the statistics for
standards III to V, where only 66.4% could read Standard I
text or more in their own language in 2007. [page 47]. As
Pratham stated at page 7:
“What should be more worrying though, is the fact that in
class 2, only 9 percent children can read the text appropriate
to them, and 60 percent cannot even recognise numbers
between 10 and 99.”
65.In the third to fifth standards, 40% of students surveyed
could not subtract. The latest figures indicate that 58.3%
children in the fifth standard read at the level appropriate for
second Standard students. [page 32]. In both 2005 and 2007,
only 74.1% of enrolled children were in attendance. [page 49].
66.The learned Solicitor General, Mr Vahanvati, submitted
that the Government has now placed sufficient emphasis on
primary education. In 2001-2002, the Government launched
Sarva Shiksha Abhiyan (SSA). This national programme’s goal
is to universalize elementary education. It supplements
Governmental spending on education. As the Solicitor
General explained, it was founded on the idea that education
for those between the ages of six to fourteen is a fundamental
right. In this way, SSA seeks to fulfill the Government’s
obligation under Article 21A to provide free and compulsory
education to this age group. Some of the SSA’s
accomplishments merit mention.
67.By March 2007, 2,03,577 toilets had been constructed or
were under construction, covering 87% of the goal; more than
six crore free textbooks had been supplied – 96% of the goal;
1,93,220 new schools had been completed or were under
construction, i.e., 80% of the desired mark. The learned
Solicitor General further provided that enrolment for all
districts in 2004-05 for classes I-V was 11,82,96,540. In
2005-06, the number increased to 12,46,15,546. A similar
increase was seen in Classes VI-VII/VIII: from 3,77,17,490 to
4,36,67,786. The total number of teachers increased from
36,67,637 in 2003-04 to 46,90,176 in 2005-06.
68.It is the learned Solicitor General’s contention that SSA
was responsible for many of the gains cited above. This
includes the improved statistics on the student-teacher ratio,
out of school children and enrollment rate for girls.
69.While the Government is on the right track with regard to
improving the infrastructure of our system, books and
buildings only go so far. They are necessary but not sufficient
for achieving the ultimate goals of (1) keeping children in
school, (2) ensuring that they learn how to think critically and
(3) ensuring that they learn skills that will help them secure
gainful employment. The quality of education provided in the
majority of primary schools is woeful. That is why I find it
necessary to review Government spending on education –
especially at the primary/secondary level.
70.Undoubtedly, the Government has allocated more funds
of late for education, but we need to have far more allocation
of funds and much greater emphasis on free and compulsory
education. Anything less would flout Article 21A’s mandate.
According to H.R.D. Annual Reports read with the Union of
India Budget 2008-09, we spend roughly seven times as much
on the individual college student than the individual primary
or secondary student.
Spending per Student: Comparing that which is spent
on each primary/secondary student versus each
higher education student
Year & Level of
Schooling
Estimated # of
Enrolled Students*
Total Rs. Allocated**Expenditure per
student in Rs.
2006-2007
School Education/
Literacy
219083879 168970000000 771
2006-2007
Tertiary Education
11777296 69120900000 5868
2007-2008
School Education/
Literacy
219083879 231913500000 1059
2007-2008
Tertiary Education
11777296 63973600000 5432
2008-2009
School Education/
Literacy
219083879 278500000000 1271
2008-2009
Tertiary Education
11777296 108528700000 9215
* = Estimated number of students for primary/secondary level is taken
from 2004-2005 Annual Report, p. 250 at
http://www.education.nic.in/AR/AR0607-en.pdf . In the same Annual
Report, 11777296 students were enrolled in higher education in 2004-
2005. For consistency’s sake, I have used the 2004-2005 estimates. I
have found no information that suggests that enrolment for one has
significantly outpaced the other.
** = Government of India, Expenditure Budget Vol. 1, 2008-2009, p. 6, Total
Expenditure of Ministries/Departments (school education/literacy and higher education
have been added).
71.In a country where only 18% of those in the relevant age
group make it to higher education, this is incredible. See
NSSO 1999-2000. It is not suggested that higher education
needs to be neglected or that higher education should not
receive more funds, but there has to be much greater
emphasis on the primary education. Our priorities have to be
changed. Nothing is really more important than to ensure
total compliance with Article 21A. How can a sizeable portion
of the population be precluded from realizing the benefits of
development when almost everyone acknowledges that the
children are our future?
1. Education for children up to the age of fourteen years
should be free. This has also been suggested in the
recommendations of the Kothari Commission on Education in
1966. Taking the country’s rampant poverty into account, free
education up to the age 14 years is absolutely imperative.
There is no other way for the poor to climb their way out of
this predicament.
2. Mr. P.P. Rao, learned Senior Advocate, rightly
submitted that when you lack a school building, teachers,
books and proper facilities, your schooling might be “free” but
it is not an “education” in any proper sense. Adequate
number of schools must be established with proper
infrastructure without further delay. In order to achieve the
constitutional goal of free and compulsory education, we have
to appreciate the reality on the ground. A sizeable section of
the country is still so poor that many parents are compelled to
send their children to work. The State must carve out
innovative policies to ensure that parents send their children
to school. The Mid-Day Meal Scheme will go a long way in
achieving this goal. But, apart from Mid-Day Meals, the
Government should provide financial help to extremely poor
parents.
74.In addition to free education and/or other financial
assistance, they should also be given books, uniforms and any
other necessary benefits so that the object of Article 21A is
achieved. Time and again, this Court, in a number of
judgments, has observed that the State cannot avoid its
constitutional obligation on the ground of financial inabilities.
(See: Hussainara Khatoon & Others (III) v. Home
Secretary, State of Bihar, Patna (1980) 1 SCC 98, 107 at
para 10).
75.In Vasanth Kumar (supra) at para 150, Justice
Venkataramiah suggested that the State provide preferential
treatment such as tuition, scholarships, free boarding and
lodging, etc. According to UNESCO’s Education for All, Global
Monitoring Report (2008) at page 115, at least fourteen
countries have cash-transfer programmes that target poor
households with school-age children. The largest programme
is in Brazil, where 46 million people receive an education
transfer of up to $44 USD monthly per household in extreme
poverty with children below age 16. According to the Report,
the programme has reduced drop-out rates by up to 75%
among beneficiaries in its more recent stage.
76.Such a programme is not foreign to India. According to
UNICEF, the State of Gujarat put the idea of financial
incentives for youth into action:
“Figures indicate that the school enrolment drive of the state
Government supported by incentives like Vidyalaxmi bond of
Rs.1,000 given to each girl who completes primary education
and 60 kg of wheat for tribal girls attending school, has met
with significant success. In addition to the various incentives
by the Government, many a corporate houses and community
have also come forward to motivate parents and children by
donating school bags, uniforms, stationery, etc. As a result,
the drop-out rate has come down from 35.31 % in 1997-1998
to 3.24% in 2006-2007 in class 1-5. In girls, this rate has
dropped from 38.95% to 5.97 in the same time period.”
77.In January 2008, Haryana Chief Minister Mr. Bhupinder
Singh Hooda unfurled an incentive scheme for SC students in
which students would receive a one-time payment in addition
to a monthly stipend for attending school. (See: “Incentives
announced to curb dropout rate”, The Tribune, 5 Jan. 2008).
The relevant portion is mentioned hereinbelow:
“Secretary, education, Rajan Gupta said a one-time allowance
of Rs.740 to Rs.1,450 would be given to SC students from
class I to XII. … Under the monthly incentive scheme, boys
and girls studying in class I to V would be given Rs100 and
Rs.150, respectively, per month and boys and girls of class VI
to VIII Rs.150 and Rs.200. Similarly, boys and girls of class IX
to XII would be given Rs.200 and Rs.300, respectively, and
boys and girls studying science subjects in class XI and XII
Rs.300 and Rs.400, respectively. … This monthly incentive to
the students would be deposited in their bank accounts to
maintain transparency in the scheme, he added.”
78.In the name of transparency, students’ attendance
records could be made available to administrators and
parents. Students would be paid to attend school. They
would receive a sum for each day of school that they attended.
If you only attend 7 out of 10 school days, you would only
receive 70% of the stipend.
79.Ultimately, this is the most important aspect of
implementing Article 21A, incentives should be provided to
parents so that they are persuaded to send their children to
school. More than punishment, creative incentive programmes
will go a long way in the implementation of the fundamental
right enshrined under Article 21A.
· Historical Perspective on Compulsory
Education:
80.Almost two centuries ago, Clause 43 of The Charter Act
of 1813 made education a State responsibility. [See: “Free
and Compulsory Education: Genesis and Execution of
Constitutional Philosophy”, Dr. P.L. Mehta and Rakhi Poonga,
Deep and Deep Publications, New Delhi (1997)]. [pages 42-47].
The Hunter Commission (1882-83) was the first to recommend
universal education in India. Thereafter, the Patel Bill, 1917
was the first compulsory education legislation. It proposed to
make education compulsory from ages 6 to 11.
81.The Government of India Act, 1935 provided that
“education should be made free and compulsory for both boys
and girls.” Free and compulsory education got a further boost
when the Zakir Hussain Commission recommended that the
State should provide it. The 1944 Sargent Report strongly
recommended free and compulsory education for children
aged six to fourteen. By 1947, primary education had been
made compulsory in 152 urban areas and 4995 rural areas.
82.The State has been making some endeavour to provide
free and compulsory education since 1813 in one form or the
other. When the original Framers gathered at the Constituent
Assembly, their desire to provide free and compulsory
education was well established. The real question in the
Debate was whether the original Framers would make free and
compulsory education justiciable or not. They oscillated
between the options, first placing it in the fundamental rights
and later moving it to the directive principles of State policies
under Article 45 of the Constitution.
83.Over 50 years later, the Parliament revisited the subject.
The Parliamentary debate on Article 21A offers a glimpse into
the history of compulsory education in other countries. The
then Minister of Human Resource Development, Dr. M.M.
Joshi, referred to the speech of Shri Gopal Krishna Gokhale on
compulsory education. While debating a bill in the imperial
legislative council in 1911, Shri Gokhale said that in most
countries:
“…elementary education is both compulsory and free, and in a
few, though the principle of compulsion is not strictly enforced
or has not been introduced it is either wholly or for the most
part gratitutious, in India alone it is neither compulsory nor
free. Thus in Great Britain and Ireland, France, Germany,
Switzerland, Austria, Hungary, Italy, Belguim, Norway,
Sweden, the United States of America, Canada, Australia and
Japan it is compulsory and free. …. In Spain, Portugal,
Greece, Bulgaria, Servia and Rumania, it is free, and in
theory, compulsory, though compulsion is not strictly
enforced.” [Lok Sabha Debates, 28 November, 2001, Vol.20,
page 476].
84.In 1948, the United Nations made its own
pronouncement on compulsory education. Article 26(1) of the
Universal Declaration of Human Rights made free and
compulsory education a lofty if not enforceable goal. While
many states consider it an authoritative interpretation of the
United Nations Charter, the Declaration is not a treaty and is
not intended to be legally binding. Article 26(1) states:
“Everyone has the right to education. Education shall be free,
at least in the elementary and fundamental stages.
Elementary education shall be compulsory. Technical and
professional education shall be made generally available and
higher education shall be equally accessible to all on the basis
of merit.”
85.Our original Framers put a similar emphasis on the
matter, placing free and compulsory education in the Directive
Principles. The un-amended Article 45 provided that:
“The State shall endeavour to provide, within a period of ten
years from the commencement of this Constitution, for free
and compulsory education for all children until they complete
the age of fourteen years.”
86.At this juncture, I deem it appropriate to refer to the
Parliamentary Debate on the aspect of free and compulsory
education. In the Lok Sabha debate of 28 November 2001 at
Vol. 20, Shri M.V.V.S. Murthi, at page 499, stated:
“Unless the Government makes primary education
compulsory, no village can develop. If I say what they are
doing in Andhra Pradesh, some Members may again cry foul.
In Andhra Pradesh, we are having Education Committees. If
there are any dropouts, the Committee will go to the village
and find out the reason as to why they have dropped out. It is
very important.”
87.The Report of the Kothari Commission, 1964-1966,
headed by Prof. D. S. Kothari, provided important
recommendations on compulsory education. Nevertheless, the
circumstances of the day compelled it to soften its
suggestions. The Nation was relatively poor and could not
afford drastic increases in education spending. Some excerpts
of this report are reproduced as under:
“5.01. …But in any given society and at a given time, the
decisions regarding the type, quantity and quality of
educational facilities depend partly upon the resources
available and partly upon the social and political philosophy of
the people. Poor and traditional societies are unable to develop
even a programme of universal primary education. But rich
and industrialized societies provide universal secondary
education and expanding and broad-based programmes of
higher and adult education. Feudal and aristocratic societies
emphasize education for a few. But democratic and socialistic
societies emphasize mass education and equalization of
educational opportunities. The principal problem to be faced
in the development of human resources, therefore, is precisely
this: How can available resources be best deployed to secure
the most beneficial form of educational development? How
much education, of what type or level of quality, should
society strive to provide and for whom?
5.03 Increasing the Educational Level of Citizens. In the next
two decades the highest priority must be given to programmes
aimed at raising the educational level of the average citizen.
Such programmes are essential on grounds of social justice,
for making democracy viable and for improving the
productivity of the average worker in agriculture and industry.
The most crucial of these programmes is to provide, as
directed by Article 45 of the Constitution, free and compulsory
education of good quality to all children up to the age of 14
years. In view of the immense human and physical resources
needed, however, the implementation of this programme will
have to be phased over a period of time.”
88.When Article 21A was introduced, some Members of
Parliament argued that financially poor parents who fail to
send their children to school should not be punished and that
the word “compulsion” in this Article should be understood to
apply exclusively to the State.
89.Let me examine this argument. The 86
th
Amendment
made three changes to the Constitution. It added Articles 21A
and 51A(k) and amended Article 45. I turn my focus to Article
51A(k). In addition to rejecting an amendment that would
have neutered compulsory education, the Parliament made a
positive gesture. Though it never passed legislation seeking to
implement compulsory education, it had not completely
ignored the subject. From Article 51A(k), it becomes clear that
parents would be responsible for sending their children to
school. Article 51A read with 51A(k) is reproduced as under:
“It shall be the duty of every citizen of India – who is a parent
or guardian to provide opportunities for education to his child
or, as the case may be, ward between the age of six and
fourteen years.”
90.Just as Article 51A(a) does not penalize disrespect of the
National Flag, Article 51A(k) does not penalize
parents/guardian for failing to send children to school. There
is, of course, legislation that gives teeth to Article 51A(a). (See:
The Prevention of Insults to National Honour Act, 1971,
Section 3A).
91.Article 51A(k) indicates that it is parents, not the State,
who are responsible for making sure children wake up on time
and reach school. Thus, Article 21A read with Article 51A(k)
distributes an obligation amongst the State and parents: the
State is concerned with free education, parents with
compulsory. Notwithstanding parental duty, the State also
has a role to play in ensuring that compulsory education is
feasible – a topic I will cover below.
92.The Central Government has made some effort to fulfill
its obligation under Article 21A with regard to “free education.”
Sarva Shiksha Abhiyan is one such example. When it comes
to “compulsory education,” the Central Government has made
no such effort. The Parliament has not passed any legislation.
The executive has not issued any order. What we have is a
patchwork of different State and Union Territory laws. These
States/UTs (and NCR) include:
Assam, Andhra Pradesh, Bihar, Chhatisgarh, Goa, Gujarat,
Haryana, Himachal Pradesh, Jammu & Kashmir, Karnataka,
Kerala, Madhya Pradesh, Maharashtra, Orissa, Punjab,
Rajasthan, Sikkim, Tamil Nadu, Uttar Pradesh, West Bengal,
Delhi, Andaman & Nicobar Islands.
93.The majority of the States and Union Territories levy very
small fines on parents. I note that these laws do not go into
effect with one unexcused absence. Notice is given to the
parents, giving them time to remedy the problem. Of course,
enforcement is almost always a different story.
94.In contrast to the relatively light aforementioned
sentences, the Compulsory Education Bill, 2006 introduced in
the Rajya Sabha would provide six months imprisonment as a
penalty for those who preclude children from going to school.
If this Bill becomes law, Section 7 would dictate the following:
"If any person including parents of children prevents any boy
or girl child from going to school or causes hindrance or
obstruction in any way, he shall be punishable with
imprisonment, which may extend to six months."
95.It seems that the Bill simultaneously targets employers
and parents. Employers would be punished when they hire a
child to work too much or during school hours. Similarly,
parents would also be punished for allowing this to happen.
The Bill would also provide for scholarships, free hostel
facilities and other incentives, “whenever necessary” and “as
may be prescribed".
96.In Bandhua Mukti Morcha v. Union of India &
Others, (1997) 10 SCC 549 at page 557 at para 11, the Court
explained why education should be compulsory. In essence, a
citizen is only free when he can make a meaningful challenge
to his fellow citizens or Government’s attempt to curtail his
natural freedom. For this to happen, he needs a certain
degree of education. This is why Article 21A may be the most
important fundamental right. Without it, a citizen may never
come to know of his other rights; nor would he have the
resources to adequately enforce them. The relevant passage at
para 11 reads as under:-
“A free educated citizen could meaningfully exercise his
political rights, discharge social responsibilities satisfactorily
and develop a spirit of tolerance and reform. Therefore,
education is compulsory. Primary education to the children,
in particular, to the child from poor, weaker sections, Dalits
and Tribes and minorities is mandatory. The basic education
and employment-oriented vocational education should be
imparted so as to empower the children within these segments
of the society to retrieve them from poverty and, thus, develop
basic abilities … to live a meaningful life … Compulsory
education, therefore, to these children is one of the principal
means and primary duty of the State for stability of the
democracy, social integration and to eliminate social
tensions.”
97.In contrast to Article 51A(k), State and Union Territory
laws and Parliamentary intent with regard to Article 21A, the
Court in Mukti Morcha was inclined to suggest, not hold, that
the State was exclusively responsible for compulsory
education. It went on to reaffirm M.C. Mehta v. State of
Tamil Nadu & Others (child labour matter) (1996) 6 SCC
756. In that case, the Court took up the issue of child labour
in hazardous fields when it learnt of an accident in a cracker
factory in Sivakasi.
98.The said case at para 28 identified poverty as the root
cause of child labour:
“Of the aforesaid causes, it seems to us that … poverty is basic
reason which compels parents of a child, despite their
unwillingness, to get it employed. The Survey Report of the
Ministry of Labour (supra) had also stated so. Otherwise, no
parents, specially no mother, would like that a tender-aged
child should toil in a factory in a difficult condition, instead of
its enjoying its childhood at home under the paternal gaze.”
99.In other words, parents send children to work because
parents have no other choice. Food comes first. If the State
does not provide extra income so as to remove the incentive to
send children to work, it is wasting its time on mere gesture.
The Court in para 29 concluded that action must be taken:
“It may be that [child labour] would be taken care of to some
extent by insisting on compulsory education. Indeed, Neera
[Burns] thinks that if there is at all a blueprint for tackling the
problem of child labour, it is education. Even if it were to be
so, the child of a poor parent would not receive education, if
per force it has to earn to make the family meet both the ends.
Therefore, unless the family is assured of income aliunde,
problem of child labour would hardly get solved; and it is this
vital question which has remained almost unattended. We
are, however, of the view that till an alternative income is
assured to the family, the question of abolition of child labour
would really remain will-o’-the-wisp.” (emphasis added).
100.It is interesting to note that compulsory education has
been introduced in one form or the other in various countries.
From the historical experience of these nations, we learn that
the legislation pertaining to compulsory education has played
an important role in improving educational outcomes.
· Compulsory education’s roots in the United
States
101.Compulsory education has had a long history outside of
India. In 1852, the State of Massachusetts enacted the first
compulsory attendance law in the United States; though
compulsory education laws existed much earlier in many
states, the first dating back to 1642 in Massachusetts. “Were
Compulsory Attendance and Child Labor Laws Effective? (See:
An analysis from 1915 to 1939.” (2001) at p. 2. Prof. Adriana
Lleras-Muney of Princeton University.)
· Reasons from abroad for implementing
compulsory education:
102. Prof. Lleras-Muney explains that those who advocated
for compulsory education believed that universal education
was necessary to promote democracy and guarantee a
common American culture. (Page 11). Given the influx of
immigrants, some of whom came from undemocratic
countries, many supporters of legislation viewed compulsory
education as an instrument for assimilation.
103.Other reasons cited by compulsory education proponents
in the United States included the reduction of crime, racism
and inequality. Prof. Oreopoulos of the University of Toronto
cites to sources that make it appear as though the reasons for
adopting compulsory education in Canada mirrored those
cited in the United States: the emphasis was on good
citizenship and economic development:
“Archibald Macallum, an Ontario teacher, summarized
the latter argument vigorously in an 1875 report favouring the
introduction of compulsory schooling in Canada: ‘Society has
suffered so cruelly from ignorance, that its riddance is a
matter of necessity, and by the universal diffusion of
knowledge alone can ignorance and crime be banished from
our midst; in no other way can the best interests of society be
conserved and improved than by this one remedy – the
compulsory enforcement of this great boon – the right of every
Canadian child to receive that education that will make him a
good, loyal subject, prepared to serve his country in the
various social functions which he may be called on to fill
during his life; and prepare him, through grace, for the life to
come’ (Annual Report of the Ontario Teachers’ Association,
1875, as cited in Prentice and Houston 1975, 175–6). (See:
The Canadian Journal of Economics, Vol. 39, No.1, February
(2006) “The compelling effects of compulsory schooling: the
evidence from Canada,” Prof. Oreopoulos, at page 23).”
· Empirical data indicating that compulsory
education has a positive effect:
104. Prof. Oreopoulos provides data that show the fruits of
imposing education on citizens. Crime may be lowered, health
improved and civic activity increased. Compulsory education
may also lead to a substantial increase in income for
individuals. Moreover, compulsory education, if it does not
cause, may at least contribute to an increase in bilingualism
and employment and a reduction in poverty. The relevant
portion is reproduced hereunder:
“(Page 24). Other papers find evidence of social returns, but
for non-pecuniary outcomes. Lochner and Moretti (2002), for
example, find that compulsory schooling lowers crime, while
Lleras-Muney (2002) finds a correlation with improved health.
In studies of the United States and United Kingdom, Dee
(2003) and Milligan, Moretti, and Oreopoulos (2003) estimate
that tighter restrictions on leaving school early correspond to
increased levels of civic activity (like voting and discussing
politics). … My analysis suggests that students compelled to
complete an extra grade of school have historically
experienced an average increase of 9–15% in annual income.
(Page 48). I find that the introduction of tighter provincial
restrictions on leaving school between 1920 and 1990 raised
average grade attainment and incomes. Students compelled to
attend an extra year of school experienced an average increase
in annual income of about 12%. I also find that compulsory
schooling is associated with significant benefits in terms of
other socio-economic outcome measures ranging from
bilingualism, employment, and poverty status. These results
hold up against many specifications checks and are entirely
consistent with previous studies.”
105.In addition to increased income, Prof. Lleras-Muney
found that legally requiring a child to attend school for one
more year increased educational attainment by roughly five
percentage points. (Page 8). Educational attainment refers to
time spent in school.
· Example of compulsory education statutes
106.The causes of low enrolment, high drop-out rates and
frequent truancy in the U.S. and India differ, but the
consequences thereof do not. In either case, citizens who lack
education are at an extreme disadvantage. In India, poverty
has been identified as the ultimate cause of lackluster
enrolment and attendance rates. Children are compelled to
work. In developed countries like the United States or
Canada, children rarely fail to attend school because of
economic constraints. Instead, a number of different factors
may contribute to truancy. High school students may drop
out “… because they detest school, lack motivation, or
anticipate little reward from graduation.” (See: The Canadian
Journal of Economics, “The compelling effects of compulsory
schooling: the evidence from Canada,” Prof. Oreopoulos, p. 23,
(quoting from Eckstein, Zvi, and Kenneth I. Wolpin (1999)
“Why youths drop out of high school: the impact of preferences,
opportunities, and abilities,” Econometrica 67, 1295–339).
107.As I detail below, students and parents in the United
States often face the same fines when students fail to attend
school. Fines for students make more sense when low self-
control is the reason for which they fail to attend school. At
the same time, punishing Indian students who have no choice
but to work would make no sense. Such a punishment should
not be borrowed from the United States.
108.In many jurisdictions in the United States, the
attendance officer is responsible for enforcing compulsory
attendance laws for his area or school. Given the
overwhelming problem of sub-par enrolment and attendance
in India, we doubt that one school official could sufficiently do
the work of inspecting places of employment for children who
have violated attendance laws.
109.Indeed, existing legislation in India already envisages the
employment of attendance officers. The Delhi Primary
Education Act, 1960, Sec. 7. Yet, there is nothing to suggest
that these employees have adequately dealt with truancy. As
mentioned, this is, in part, due to the economic conditions in
which many parents find themselves. Financial assistance or
incentives must be given. Only then, may the Government
actively enforce compulsory attendance legislation.
110.We must also remember that it is not only the child who
fails to attend but also the child who fails to enroll that has
violated an attendance law.
111.Before taking issue with State/Union Territory
compulsory education statutes, I note that education has
traditionally been reserved for the States. Only in 1976, vide
the 42
nd
Amendment of the Constitution, did education
become a part of Concurrent List of Schedule 7. In its 165
th
Report, the Law Commission of India has also recommended
enactment of Central Legislation in this respect. Putting
education in the Concurrent List turns out to be a positive
development, given the States’ failure to provide effective
legislation.
112.The States’ laws fail on two accounts. First, they are too
lenient to have a deterrent effect. Second, the legislation is
not adequately enforced, in part, because it does not require
police officers to do the job. If we analyze the legislation
passed by different States, another conclusion becomes
obvious: no State has provided for an adequate punishment
whose effect would be to deter citizens from committing a
violation.
113.It is necessary to reproduce some of the various
compulsory education laws of the States.
114.Under Section 7 of The Tamil Nadu Compulsory
Elementary Education Act, 1994:
“Every parent or guardian of a child of school age who fails to
discharge his duty under section 4 [duty of parent to cause
child to attend elementary school] shall be punishable with
fine which may extend to one hundred rupees.”
115.Section 18(1) of The Delhi Primary Education Act, 1960
states:
“If any parent fails to comply with an attendance order passed
under Section 13, he shall be punishable with fine not
exceeding two rupees, and, in the case of continuing
contravention, with an additional fine not exceeding fifty naye
paise for every day during which such contravention continues
after conviction for the first of such contraventions. Provided
that the amount of fine payable by any one person in respect
of any child in any one year shall not exceed fifty rupees.”
116. Analysis of these State laws reveals that they are weak
in character and perhaps have never been implemented. If we
compare these laws with their sister statutes in United States,
we realize that the U.S. laws are far stronger.
117. In Wisconsin, parents who fail to send their children to
school may have to pay a fine of not more than $500 or face
imprisonment for not more than 30 days or both. [Wisconsin
Statute Sections 118.15(1)(a) and 118.15(5)(a)1.a]. For a
second or subsequent offense, they may face a fine of not more
than $1,000 or imprisonment for not more than 90 days or
both. [Wisconsin Statute Sections 118.15(1)(a) and 118.15(5)
(a)1.b]. Alternatively, they may be sentenced to perform
community service. [Wisconsin Statute Sections 118.15(1)(a)
and 118.15(5)(a)2] .
Unlike Wisconsin, Tamil Nadu and Delhi’s laws have no teeth.
118.The other main problem is implementation of these laws.
Neither the State Governments nor their police agencies are at
all serious about implementing these compulsory laws. There
are hardly any cases where even fines have been imposed.
Some form of compulsory education has been on the statute
books since 1917. We have seen Western countries enforce
these laws. Most Western countries enjoy almost universal
literacy while 35% of our population is illiterate. While a
robust financial incentive programme may not have been
possible in 1917, it is today. If we wish to develop further, we
must educate each and every citizen aged six to fourteen.
119.In order to give effect to the constitutional right under
Article 21A, it is imperative that the Central Government pass
suitable legislation. The fine should be suitably increased.
Imprisonment should be a sentencing option as well. The
current patchwork of State/UT legislation on compulsory
education is insufficient. Small monetary fines do not go far
enough to ensure the implementation of Article 21A.
120. A disclaimer is attached to these recommendations.
The recommendations for the enforcement of compulsory
education are contingent upon the implementation of a
financial incentive program that would make education viable
for the poor. The carrot must come before the stick. If there
is no financial incentive program in place, the Government
cannot expect the poorest of the poor to send their children to
school.
121.The Parliament should criminally penalize those parents
who receive financial benefits and, despite such payments,
send their children to work and penalize those employers who
preclude children from attending school or completing
homework. It has become necessary that the Government set
a realistic target within which it must fully implement Article
21A regarding free and compulsory education for the entire
country. The Government should suitably revise budget
allocations for education. The priorities have to be set
correctly. The most important fundamental right may be
Article 21A, which, in the larger interest of the nation, must be
fully implemented. Without Article 21A, the other fundamental
rights are effectively rendered meaningless. Education stands
above other rights, as one’s ability to enforce one’s
fundamental rights flows from one’s education. This is
ultimately why the judiciary must oversee Government
spending on free and compulsory education.
122.At the same time, spending is an area in which the
judiciary must not overstep its constitutional mandate. The
power of the purse is found in Part V, Chapter II of the
Constitution, which is dedicated to the Parliament. ( See:
Articles 109 and 117 for “Money Bills.”) Nevertheless, it
remains within the judiciary’s scope to ensure that the
fundamental right under Article 21A of Part III is upheld. In
M.C. Mehta v. Union of India (vehicular pollution) (1998) 6
SCC 63, this Court did not ignore the Article 21 right to life
when deadly levels of pollution put the right at stake. Nor will
this Court ignore the Article 21A right to education, when a
dearth of quality schooling put it in jeopardy. The
Government’s education programmes and expenditures,
wanting in many respects, are an improvement over past
performance. They nearly fall short of the constitutional
mark. Lackluster performance in primary/secondary schools
is caused in part because Government places college students
on a higher pedestal. Money will not solve all our education
woes, but a correction of priorities in step with the
Constitution’s mandate will go a long way.
· Opposition to Compulsory Education
123.“Compulsory” connotes enforcement. The Parliament
rejected an amendment that would have saved parents from
penal penalties. If education were not compulsory, who checks
in with parents who have sent their children to work? If no
authorities inquire, the message is clear: We, the State, do
not care if your child goes to school. Taking the opposing
view, Shri G.M. Banatwalla wanted to make sure parents were
not punished:
“…this word ‘compulsion’ needs to be properly defined. The
word, ‘compulsion’ is not to be related to the student or the
parents. Parents cannot be penalized for being too poor to
send their children to school. The word, ‘compulsion’ has to
be understood in relation to the State and the obligation of the
State to provide for free education. p. 523.” ( See: The
Parliamentary Debates on Article 21A, p. 523, 28 November
2001 at Vol. 20, No. 6-10)
124.The Parliament had the opportunity to accept such a
definition of “compulsory.” But they chose otherwise.
Amendment number four, moved by Shri G.M. Banatwalla at
p. 548, stated that:
“Provided that in making any law to provide for free and
compulsory education under this article, the State shall not…
(b) enforce any penal sanctions on a parent or guardian.”
1.Of paramount importance, this Amendment was
“negatived.” [See p. 548]. Those who wanted a safe-haven
from penal sanction for parents lost. From this vote, we know
that the Parliament intended to allow for future legislation that
would impose penal sanctions for violations of legislation
under Article 21A.
· Conclusion on Free and Compulsory Education
2.Given that so many children drop out of, or are absent
from, school before they turn fourteen, “free education” alone
cannot solve the problem. The current patchwork of laws on
compulsory education is insufficient. Monetary fines do not go
far enough to ensure that Article 21A is upheld.
3.A carrot-and-stick approach appears to be the best way
to implement Article 21A. Financial incentive programmes
have worked well in other countries. We should follow their
lead. Once that is done, the Government should strictly
enforce effective compulsory education laws. Such a policy is
bound to pay off.
In sum, the Central Government should enact legislation
that:
(a) provides low-income parents/guardians with financial
incentives such that they may afford to send their children to
school;
(b)criminally penalizes those who receive financial
incentives and despite such payment send their children to
work;
(c)penalizes employers who preclude children from
attending school or completing homework;
(d) the penalty should include imprisonment; the
aforementioned Bill would serve as an example. The State is
obligated under Article 21A to implement free and compulsory
education in toto;
(e) Until we have achieved the object of free and compulsory
education, the Government should continue to increase the
education budget;
(f) the Parliament should set a deadline by which time free
and compulsory education will have reached every child. This
must be done within six months.
128.With regard to (a), the state cannot cite budgetary
constraints or lack of resources as an excuse for failing to
provide financial assistance/incentives to poor parents. See
Hussainara Khatoon (supra), at page 107, para 10.
129.Article 21A’s reference to “education” must mean
something. This conclusion is bolstered by the Parliament’s
Statement of Objects and Reasons for Article 21A:
“The Constitution of India in a Directive Principle contained in
article 45, has made a provision for free and compulsory
education for all children up to the age of fourteen years
within ten years of promulgation of the Constitution. We
could not achieve this goal even after 50 years of adoption of
this provision. The task of providing education to all children
in this age group gained momentum after the National Policy
of Education (NPE) was announced in 1986. The Government
of India, in partnership with the State Governments, has made
strenuous efforts to fulfill this mandate and, though
significant improvements were seen in various educational
indicators, the ultimate goal of providing universal and quality
education still remains unfulfilled. In order to fulfill this goal,
it is felt that an explicit provision should be made in the Part
relating to Fundamental Rights of the Constitution.
1.With a view to making right to free and compulsory
education a fundamental right, the Constitution (Eighty-third
Amendment) Bill, 1997 was introduced in the Parliament to
insert a new article, namely, article 21A conferring on all
children in the age group of 6 to 14 years the right to free and
compulsory education. The said Bill was scrutinized by the
Parliament Standing Committee on Human Resource
Development and the subject was also dealt with in its 165
th
Report by the Law Commission of India.
2.After taking into consideration the report of the Law
Commission of India and the recommendations of the
Standing Committee of the Parliament, the proposed
amendments in Part III, Part IV and Part IVA of the
Constitution are being made which are as follows …
3. The Bill seeks to achieve the above objects”
130.The Article seeks to usher in “the ultimate goal of
providing universal and quality education.” (emphasis
supplied). Implied within “education” is the idea that it will be
quality in nature. Current performance indicates that much
improvement needs to be made before we qualify “education”
with “quality.” Of course, for children who are out school,
even the best education would be irrelevant. It goes without
saying that all children aged six to fourteen must attend
school and education must be quality in nature. Only upon
accomplishing both of these goals, can we say that we have
achieved total compliance with Article 21A.
131.Though progress has been made, the Parliament’s
observation upon passing Art 21A still applies: the goal of
providing universal and quality education “… still remains
unfulfilled.”
3.Does the 93
rd
Amendment violate the Basic
Structure of the Constitution by imposing
reservation on unaided institutions?
132. Imposing reservation on unaided institutions violates the
basic structure by obliterating citizens’ 19(1)(g) right to carry
on an occupation. Unaided entities, whether they are
educational institutions or private corporations, cannot be
regulated out of existence when they are providing a public
service like education. That is what reservation would do.
That is an unreasonable restriction. When you do not take a
single paisa of public money, you cannot be subjected to such
restriction. The 93
rd
Amendment’s reference to unaided
institutions must be severed.
133.No unaided institution filed a writ petition in this case.
Had either this Court or respondents had an objection, they
could have raised it at any time during the proceedings. We
listened to the parties for months. We received voluminous
written submissions from the parties, yet no objection was
made with regard to the fact that no unaided institution had
filed a writ petition. While we would usually implead a party if
we felt their presence was necessary to the resolution of the
dispute, the facts of this case are peculiar. The best lawyers
in the country argued the case for both sides, and a brief from
an unaided institution would not have added much if anything
to the substance of the arguments. The Government will likely
target unaided institutions in the future. At that time, this
Court will have to go through this entire exercise de novo to
determine if unaided institutions should be subject to
reservation. Such an exercise would unnecessarily cause
further delay. The fate of lakhs of students and thousands of
institutions would remain up in the air. (See: Minerva Mills
Ltd. & Others v. Union of India & Others (1980) 3 SCC
625). Therefore, looking to the extraordinary facts, I have
decided to proceed with this aspect of the matter in the larger
public interest.
134.Amendments by their very nature are often enabling
provisions. If they clear the way for future legislation that
would in fact violate the basic structure, the Court need not
wait for a potential violation to become an actual one. It can
strike the entire amendment ab initio. The question of
potential width was resolved in Minerva Mills (supra), paras
38-39. The Court acknowledged that it generally does not
anticipate constitutional issues before they arise, but it held
that circumstances required it to act before unconstitutional
provisions could be passed under the authority of an
unconstitutional amendment.
“38. But, we find it difficult to uphold the preliminary
objection because, the question raised by the petitioners as
regards constitutionality of Sections 4 and 55 of the 42
nd
Amendment is not an academic or a hypothetical question.
The 42
nd
Amendment is there for anyone to see and by its
Sections 4 and 55 amendments have been made to Articles
31-C and 368 of the Constitution. An order has been passed
against the petitioners under Section 18-A of the Industries
(Development and Regulation) Act, 1951, by which the
petitioners are aggrieved.”
“39. Besides there are two other relevant considerations which
must be taken into account while dealing with the preliminary
objection. There is no constitutional or statutory inhibition
against the decision of questions before they actually arise for
consideration. In view of the importance of the question
raised and in view of the fact that the question has been
raised in many a petition, it is expedient in the interest of
justice to settle the true position. Secondly, what we are
dealing with is not an ordinary law which may or may not be
passed so that it could be said that our jurisdiction is being
invoked on the hypothetical consideration that a law may be
passed in future which will injure the rights of the petitioners.
We are dealing with a constitutional amendment which has
been brought into operation which, of its own force, permits
the violation of certain freedoms through laws passed for
certain purposes. We, therefore, overrule the preliminary
objection and proceed to determine the point raised by the
petitioners.”
[emphasis added]
There is not one precise definition of the width test, however.
The test asks if an amendment is so wide that in effect (actual
or potential), it goes beyond the Parliament’s amending power.
Kesavananda, paras 531-532: “But that the real
consequences can be taken into account while judging the
width of the power is settled. The Court cannot ignore the
consequences to which a particular construction can lead …”
To make such a determination, it follows that the Court
should ask whether an amendment infringes constitutional
limitations as opposed to those evolved from mere common
law. (See: Nagaraj, para 103).
135.As a preliminary matter, I turn to the cases by which the
basic structure doctrine has been established. It has been
stated that, “Kesavananda had propounded the doctrine, the
Indira Gandhi Election case had upheld it, and Minerva
engraved it on stone.” (See: Granville Austin, “Working a
Democratic Constitution”, at page 506].
136.Kesavananda and its progeny provide that an
amendment to the Constitution must not alter the
Constitution’s basic structure. To reach a conclusion
regarding a basic structure challenge, I employ the following
general standard: an amendment alters the basic structure if
its actual or potential effect would be to damage a facet of the
basic structure to such an extent that the facet’s original
identity is compromised.
137.To determine if legislation infringes constitutional
limitations and is thus invalid, we use the two-step effect test
(also known as the impact or rights test). Step One requires
us to first ask if legislation affects a facet of the basic
structure.
If it does, then at Step Two we ask if the effect on the facet of
the structure is to such an extent that the facet’s original
identity has been altered. Applying the effect test is another
way of saying that the form of an amendment is irrelevant; it
is the consequence thereof that matters. (See: Kesavanda at
para 532 and I.R. Coelho v. State of Tamilnadu (2007) 2
SCC 1 at Conclusion (ii) at page 111).
138.The terms “abridge” and “abrogate” have been employed
by this Court to distinguish between acceptable and
unacceptable legislation. Whether legislation abridges or
abrogates is a question of degree. Using these terms is
another way of asking whether the legislation had such an
effect that it changed the basic structure of the Constitution.
If legislation merely abridges the basic structure, the
structure’s identity remains. The legislation is upheld. In this
sense, the Parliament may take away or destroy fundamental
rights by amending the Constitution, provided that the basic
structure is not altered.
139.If it abrogates the basic structure, the structure and thus
the Constitution lose their identities. The legislation must be
struck down. This is determined on a case-by-case basis by
applying the effect test (impact/rights tests). (See: Coehlo). I
further note that a total deprivation of fundamental rights,
even in one limited area, may amount to an abrogation of the
basic structure. (See: Minerva Mills, para 59).
· Step One: Does Article 15(5) affect a facet of
the basic structure?
140.In the instant case, Article 15(5) expressly precludes the
application of Article 19(1)(g). Whenever reservations are
implemented under Article 15(5), citizens are stripped of their
fundamental rights under Article 19(1)(g). By excluding Article
19(1)(g), Article 15(5) obviously affects Article 19(1)(g), a facet
of the basic structure of the Constitution. Step One is
therefore cleared. What is more, Article 19(1)(g) belongs to the
Golden Triangle – Articles 14, 19 and 21 are the three
fundamental rights that stand above the rest. Writing for the
majority in Minerva Mills, Justice Chandrachud provides an
eloquent justification for shielding the Golden Triangle from
attack. To achieve a more egalitarian society, individual
liberty must be protected:
"Para 74 of Minerva Mills: Three Articles of our Constitution,
and only three, stand between the heaven of freedom into
which Tagore wanted his country to awake and the abyss of
unrestrained power. They are Articles 14, 19 and 21. Article
31C has removed two sides of that golden triangle which
affords to the people of this country an assurance that the
promise held forth by the Preamble will be performed by
ushering an egalitarian era through the discipline of
fundamental rights, that is, without emasculation of the rights
to liberty and equality which alone can help preserve the
dignity of the individual.”
141.The Golden Triangle’s significance becomes clear when
we consider that Government may suspend Article 14 and 19
rights in order to implement an emergency. (See: Articles 358
and 359) (prior to the 44
th
Amendment, all Part III rights could
be curtailed during emergency; this Amendment precludes the
State from denying Articles 20 and 21 to citizens during
emergency). In a sense, democracy is only restored when the
Triangle is returned to the citizens. Without the Triangle,
democracy is impossible:
“para 63… Every State is goal-oriented and claims to strive for
securing the welfare of its people. The distinction between the
different forms of Government consists in that a real
democracy will endeavour to achieve its objectives through the
discipline of fundamental freedoms like those conferred by
Articles 14 and 19. Those are the most elementary freedoms
without which a free democracy is impossible and which
must therefore be preserved at all costs . Besides, as
observed by Brandies, J., the need to protect liberty is the
greatest when Government's purposes are beneficent. If
the discipline of Article 14 is withdrawn and if immunity from
the operation of that article is conferred, not only on laws
passed by the Parliament but on laws passed by the State
Legislatures also, the political pressures exercised by
numerically large groups can tear the country asunder by
leaving it to the legislature to pick and choose favoured areas
and favourite classes for preferential treatment.”
142.United States Supreme Court Justice Brandeis’ word of
caution is relevant to today’s dispute wherein the Government
trumpets reservation in higher education as an answer to our
age-old problems of poverty and caste. At first blush, it
sounds as if reservation in higher education would help the
backward help themselves. The road out of poverty is paved
with education. However, the “devil is the details.” With
elementary freedom on the line, I must carefully scrutinize
those details.
143.The right to freedom under Article 19 has been long
recognized as a natural and inalienable right that belongs to
all citizens. Indeed, what would Independence mean without
it? Chief Justice Sikri cites the following passage in
Kesavananda at para 300:
"That article (Article 19) enumerates certain freedoms under
the caption "right to freedom" and deals with those great and
basic rights which are recognised and guaranteed as the
natural rights inherent in the status of a citizen of a free
country." (Per Patanjali Sastri, C.J., in State of West Bengal v.
Subodh Gopal Bose [1954] S.C.R. 587, 596).”
144.With fundamental rights in jeopardy, I shall review the
cases in which the basic structure doctrine has been
implemented to invalidate constitutional amendments. By
looking at these cases synoptically, we get a sense as to how
much damage the basic structure can withstand before
crumbling. In Kesavananda, the second part of Article 31C
precluded courts from reviewing whether a law under Article
39(b) or (c) promoted the policy for which it was enacted. This
violated the basic structure. Article 31C was introduced by
the 25
th
Amendment.
145.In Indira Nehru Gandhi v. Raj Narain & Another
(1975) Supp SCC 1, the Court struck Article 329A(4) as
violative of the basic structure. This provision appropriated
the Court’s power to adjudicate election laws, encroaching on
the judiciary in violation of separation of powers. See Justice
Matthew’s opinion at para 325. It was introduced by the 39
th
Amendment. In Minerva Mills, the Court held sections 4 and
55 of the 42
nd
Amendment in violation of the basic structure.
Section 4 sought to expand 31C such that all laws giving effect
to Directive Principles, not just those intended to promote
Article 39(b) or (c), would be immune to an Article 14 or 19
challenge. Section 55 would have barred judicial review of
constitutional amendments.
146.In P. Sambamurthy v. State of A.P. (1987) 1 SCC 362,
the Court invalidated Article 371-D(5), finding that the
Parliament had violated the rule of law and consequently the
basic structure, by removing judicial review from the High
Court and placing it in the hands of one of the parties – the
State Government. In L. Chandra Kumar v. Union of India
(1997) 3 SCC 261, the Court held that Articles 323A-2D and
323B-3D violated the basic structure in that they removed
judicial review of the High Courts and Supreme Court under
Articles 226/227 and 32, respectively. These articles were
introduced by the 42
nd
Amendment to empower the Parliament
or the State Legislatures to establish Tribunals for various
substantive areas of law: tax, labour, criminal, etc.
147.Two broad themes surface from these cases. When
judicial review is barred, democracy evaporates. And when
Fundamental Rights are at stake, they must be harmonized
with, not made subject to, the Directive Principles. Sections 4
and 55 of the 42
nd
Amendment were especially egregious
violations of the basic structure. Had Section 4 been upheld,
citizens’ fundamental rights would have been at the mercy of
one organ of Government. “If Governments always could be
trusted, there would have been no need for Fundamental
rights.” Mr Palkhivala in oral arguments in Kesavananda,
quoting from the learned Mr H.M. Seervai, who was opposing
counsel in that case. Mr Palkhivala was reading from Seervai,
H.M., “Fundamental Rights: A Basic Issue,” published in three
installments in the Times of India, 14, 15, 16 February 1955.
(See: Granville Austin at pages 263-264 in “ Working a
Democratic Constitution”)
148. Government cannot be trusted; that is precisely why we
divide its powers into separate organs. If it could be trusted,
there would be no need for co-equal branches in which power
is shared. Separation of powers is an axiom of democracy.
149.Had Section 55 of the 42
nd
Amendment been upheld, the
basic structure of the Constitution could have been destroyed
by a single slash. Future constitutional amendments would
not have been reviewed. The impugned Amendment looks
rather mild in comparison to the damage that would have
been wrought by the 42
nd
Amendment. The impugned
legislation limits one fundamental right in one limited
circumstance. Yet an amendment need not be as invidious as
the 42
nd
Amendment for us to invalidate it. If the standard
were that high, amendments could destroy the basic structure
or the essence of the Constitution by a thousand slashes.
150.Since Kesavananda’s time, many amendments have
been passed and many challenges under the basic structure
have been made. This Court has used caution and has
refrained from using the doctrine, even when it may have been
justified. For example, there were grounds for striking the
entire 10
th
Schedule as violative of the basic structure in
Kihoto Hollohan v Zachillhu & Others 1992 Supp (2) SCC
651. Rather than resort to the basic structure, this Court
made a narrow ruling on procedural grounds. ( See: S.P.
Sathe, Judicial Activism in India: Transgressing Borders and
Enforcing Limits, 2nd Edn., 2002 (Oxford University Press)
pages 92-93). The Court upheld the 10
th
Schedule, only
severing a paragraph from the same. I agree that an
abundance of caution ought to be taken before employing the
basic structure doctrine. The violation must truly abrogate
the basic structure. Anything short of this standard must be
upheld – the will of the people, through their elected
representatives, heard.
151.Before making such a determination, it is prudent to
briefly revisit the rulings of two landmark cases: P.A.
Inamdar & Others v. State of Maharashtra & Others ,
(2005) 6 SCC 537; T.M.A. Pai Foundation & Others v. State
of Karnataka & Others (2002) 8 SCC 481. In Inamdar
(supra), paras 26-27 (seven-Judge Bench), unaided (minority
and non-minority) professional institutions filed petitions to
determine, inter alia, whether the State could impose quotas
on unaided (minority and non-minority) institutions. A seven-
Judge Bench was constituted such that Islamic Academy’s
clarification of Pai could be reviewed. Islamic Academy was
a five-Judge Bench. Given that Pai was an eleven-Judge
Bench, Inamdar could clarify but not overrule Pai.
152.At para 124, Inamdar held that the State cannot impose
quotas on unaided (minority and non-minority) institutions.
To do so would nationalize seats, contrary to Pai. (See:
Inamdar at para 125). In dictum, Pai suggested that the
State could compel unaided institutions to admit a reasonable
percentage of students via reservation. ( Pai, para 68).
Inamdar clarified this point, stating that Pai should be read
to mean that the State and unaided institutions may enter
into consensual agreement regarding reservation. ( See:
Inamdar at para 126). Unaided institutions (minority and
non-minority) can admit as they choose, provided their
process is fair, transparent, non-exploitative and merit-based.
Inamdar stated:
“124: So far as appropriation of quota by the State and
enforcement of its reservation policy is concerned, we do not
see much of difference between non-minority and
minority unaided educational institutions . We find great
force in the submission made on behalf of the petitioners that
the States have no power to insist on seat sharing in the
unaided private professional educational institutions by fixing
a quota of seats between the management and the State. The
State cannot insist on private educational institutions
which receive no aid from the State to implement State's
policy on reservation for granting admission on lesser
percentage of marks, i.e. on any criterion except merit.
125. As per our understanding, neither in the judgment of Pai
Foundation nor in the Constitution Bench decision in Kerala
Education Bill, which was approved by Pai Foundation, there is
anything which would allow the State to regulate or control
admissions in the unaided professional educational
institutions so as to compel them to give up a share of the
available seats to the candidates chosen by the State, as if it
was filling the seats available to be filled up at its discretion in
such private institutions. This would amount to
nationalization of seats which has been specifically
disapproved in Pai Foundation. Such imposition of quota
of State seats or enforcing reservation policy of the State
on available seats in unaided professional institutions
are acts constituting serious encroachment on the right
and autonomy of private professional educational
institutions.
Such appropriation of seats can also not be held to be a
regulatory measure in the interest of minority within the
meaning of Article 30(1) or a reasonable restriction within
the meaning of Article 19(6) of the Constitution . Merely
because the resources of the State in providing professional
education are limited, private educational institutions, which
intend to provide better professional education, cannot be
forced by the State to make admissions available on the basis
of reservation policy to less meritorious candidate. Unaided
institutions, as they are not deriving any aid from State
funds, can have their own admissions if fair,
transparent, non-exploitative and based on merit .”
To the extent that Islamic Academy had approved of quotas
in unaided institutions, a scheme in which the States could fix
quota for seat sharing between management and the State,
Islamic was overruled. [Inamdar at para 130]
153. In T.M.A. Pai Foundation (supra) para 2 (eleven- Judge
Bench), private educational institutions, aided and unaided,
filed writ petitions to challenge regulations that impeded their
rights. They wanted to establish and administer educational
institutions, unfettered by Government interference. [para 2].
Reading Article 29(2) and 30(1) harmoniously, the six-Justice
majority held that (1) unaided institutions could admit
students free of Government interference, as long as their
admission process was transparent and merit-based; (2)
minority aided institutions may still admit their own students,
contingent upon admitting a reasonable number of non-
minority students per the percentage provided by the State
Government.
154.For our purposes, it is important to note that education
falls within the meaning of “occupation” under 19(1)(g). This
is so because a large number of persons are employed as
teachers and administrative staff. For them, education is an
occupation. Pai stated:
“20: “Article 19(1)(g) employs four expressions, viz., profession,
occupation, trade and business. Their fields may overlap, but
each of them does have a content of its own. Education is per
se regarded as an activity that is charitable in nature [See The
State of Bombay v. R.M.D. Chamarbaugwala, … Education has
so far not been regarded as a trade or business where profit is
the motive. Even if there is any doubt about whether
education is a profession or not, it does appear that education
will fall within the meaning of the expression "occupation".
Article 19(1)(g) uses the four expressions so as to cover all
activities of a citizen in respect of which income or profit is
generated, and which can consequently be regulated under
Article 19(6) .
25 The establishment and running of an educational
institution where a large number of persons are employed as
teachers or administrative staff, and an activity is carried on
that results in the imparting of knowledge to the students,
must necessarily be regarded as an occupation, even if there is
no element of profit generation. It is difficult to comprehended
that education, per se, will not fall under any of the four
expressions in Article 19(1)(g). "Occupation" would be an
activity of a person undertaken as a means of livelihood or a
mission in life. ...”
[emphasis added]
155. Stripping private unaided institutions of their right to
select students would be unreasonable:
“para 40: Any system of student selection would be
unreasonable if it deprives the private unaided institution of
the right of rational selection, which it devised for itself,
subject to the minimum qualification that may be prescribed
and to some system of computing the equivalence between
different kinds of qualifications, like a common entrance test.
Such a system of selection can involve both written and oral
tests for selection, based on principle of fairness.”
156.Like Article 15(5) in the instant case, Unni Krishnan
effectively nationalized education. Pai overturned Unni
Krishnan. (See: para 45).
“38: The scheme in Unni Krishnan's case has the effect of
nationalizing education in respect of important features, viz.,
the right of a private unaided institution to give admission and
to fix the fee. By framing this scheme, which has led to the
State Governments legislating in conformity with the scheme
the private institutions are undistinguishable from the
Government institutions; curtailing all the essential features of
the right of administration of a private unaided educational
institution can neither be called fair or reasonable.”
157.Pai traces the autonomy of institutions back to
Chitralekha and Rajendran. The proposition is simple: he
who funds or runs the institution holds the power to select
students. The State cannot ask these institutions to abridge
this right in exchange for affiliation/recognition. The relevant
paragraphs are reproduced hereunder:
“36: The private unaided educational institutions impart
education, and that cannot be the reason to take away their
choice in matters, inter alia, of selection of students and
fixation of fees. Affiliation and recognition has to be available
to every institution that fulfills the conditions for grant of such
affiliation and recognition. The private institutions are right in
submitting that it is not open to the Court to insist that
statutory authorities should impose the terms of the scheme
as a condition for grant of affiliation or recognition; this
completely destroys the institutional autonomy and the very
objective of establishment of the institution.
42. In R. Chitralekha and Anr. v. State of Mysore and Ors.
[citation omitted], while considering the validity of a viva-voce
test for admission to a Government medical college, it was
observed at page 380 that colleges run by the Government,
having regard to financial commitments and other relevant
considerations, would only admit a specific number of
students. It had devised a method for screening the applicants
for admission. While upholding the order so issued, it was
observed that "once it is conceded, and it is not disputed before
us, that the State Government can run medical and engineering
colleges, it cannot be denied the power to admit such qualified
students as pass the reasonable tests laid down by it. This is a
power which every private owner of a College will have, and
the Government which runs its own Colleges cannot be denied
that power." (italics added by Pai; underscore is mine).
43. Again, in Minor P. Rajendran v. State of Madras and Ors
… , it was observed at page 795 that "so far as admission is
concerned, it has to be made by those who are in control of the
Colleges, and in this case the Government, because the medical
colleges are Government colleges affiliated to the University. In
these circumstances, the Government was entitled to frame
rules for admission to medical colleges controlled by it subject
to the rules of the university as to eligibility and qualifications."
The aforesaid observations clearly underscore the right of the
colleges to frame rules for admission and to admit students.
The only requirement or control is that the rules for admission
must be subject to the rules of the university as to eligibility
and qualifications. The Court did not say that the university
could provide the manner in which the students were to be
selected.
61. In the case of unaided private schools, maximum
autonomy has to be with the management with regard to
administration, including the right of appointment,
disciplinary powers, admission of students and the fees to be
charged.”
158.Unaided institutions may admit students of their choice,
subject to an objective and rational procedure of selection.
They might admit a small percentage of students belonging to
the weaker sections of the society by granting those sections
freeships or scholarships, if not granted by the Government.
[See: Pai at para 53]. Given a transparent and reasonable
selection process, it is up to the institution to define “merit”
according to its own values. Pai stated:
“65. The reputation of an educational institution is established
by the quality of its faculty and students, and the educational
and other facilities that the colleges has to offer. The private
educational institutions have a personality of their own, and
in order to maintain their atmosphere and traditions, it is but
necessary that they must have the right to choose and select
the students who can be admitted to their courses of studies.
If is for this reason that in the St. Stephen's College case, this
Court upheld the scheme whereby a cut-off percentage was
fixed for admission, after which the students were interviewed
and thereafter selected. While an educational institution
cannot grant admission on its whims and fancies, and must
follow some identifiable or reasonable methodology of
admitting the students, any scheme, rule or regulation that
does not give the institution the right to reject candidates who
might otherwise be qualified according to say their
performance in an entrance test, would be an unreasonable
restriction under Article 19(6), though appropriate
guidelines/modalities can be prescribed for holding the
entrance test a fair manner. Even when students are required
to be selected on the basis of merit, the ultimate decision to
grant admission to the students who have otherwise qualified
for the grant of admission must be left with the educational
institution concerned. However, when the institution rejects
such students, such rejection must not be whimsical or for
extraneous reasons.”
159.The Court distinguishes between reasonable and
unreasonable regulations by asking which functions lie at the
heart of an institution’s autonomy. Regulations that strike at
the core of autonomy are unreasonable. For example,
prescribing minimum qualifications for teachers is a
reasonable regulation; actually selecting the teachers is not.
“55. But the essence of a private educational institution is the
autonomy that the institution must have in its management
and administration. There, necessarily, has to be a difference
in the administration of private unaided institutions and the
Government-aided institutions. Whereas in the latter case, the
Government will have greater say in the administration,
including admissions and fixing of fees, in the case of private
unaided institutions, maximum autonomy in the day-to-day
administration has to be with the private unaided institutions.
Bureaucratic or Governmental interference in the
administration of such an institution will undermine its
independence. While an educational institution is not a
business, in order to examine the degree of independence that
can be given to a recognized educational institution, like any
private entity that does not seek aid or assistance from the
Government, and that exists by virtue of the funds generated
by it, including its loans or borrowings, it is important to note
that the essential ingredients of the management of the private
institution include the recruiting students and staff, and the
quantum of fee that is to be charged.”
160.The same argument was framed in similar terms in St.
Stephen’s College v. University of Delhi, 1992 (1) SCC 558.
In that case, the Court distinguished regulations based on
whether they directly or indirectly affected management.
Those that indirectly affected management were reasonable;
those that directly affected the management of the institution
were not. [Pai at para 125].
161.In St. Stephen’s, this Court referred to the earlier
decisions, and with regard to Article 30(1) observed at page
596, paragraph 54, as follows:
"… But the standards of education are not a part of the
management as such. The standard concerns the body politic
and is governed by considerations of the advancement of the
country and its people. Such regulations do not bear directly
upon management although they may indirectly affect it. The
State, therefore has the right to regulate the standard of
education and allied matters.”
162.Once a private institution (non-minority) takes aid, it is
subject to (1) reservation and (2) regulation of administration
and maintenance of the institution. Pai stated:
“71: “While giving aid to professional institutions, it would be
permissible for the authority giving aid to prescribe by rules or
regulations, the conditions on the basis of which admission
will be granted to different aided colleges by virtue of merit,
coupled with the reservation policy of the state. …
72: “Once aid is granted to a private professional educational
institution, the Government or the state agency, as a condition
of the grant of aid, can put fetters on the freedom in the
matter of administration and management of the institution.
The state, which gives aid to an educational institution, can
impose such conditions as are necessary for the proper
maintenance of the high standards of education as the
financial burden is shared by the state. …”
163.I now query if the Parliament may subject Article 19(1)(g)
to Article 15(5), when this Court has held that reservation in
unaided institutions is an unreasonable restriction that
cannot be saved by Article 19(6).
164.I answer this question in the affirmative. The structure
of our Constitution permits fundamental rights, and even the
Golden Triangle of Articles 14, 19 and 21, to be abridged in
limited circumstances. To say that subjecting Articles 19(1)(g)
to 15(5) violates the basic structure per se is to ignore the
examples in which the most fundamental of rights is limited.
Article 16(4) expressly limits the right to formal equality in
16(1), a specific facet of Article 14. In this light, Article 16(4)
impliedly limits the general right to formal equality in Article 14.
The right to equality is expressed in the negative in 15(1): the
State shall not discriminate based on religion, race, caste, etc.
In other words, the State shall treat citizens of different
religions, races and castes equally. Like Article 16(4), Article
15(4) limits 15(1) -- another facet of Article 14 formal equality
-- such that egalitarian equality may be pursued. Generally
speaking, Articles 15(3) and (4) and 16(4) allow the State to
impose affirmative action programs on the public sector. Such
provisions necessarily limit the right to formal equality. If the
right to equality, considered by some as a basic postulate of
the Constitution, has been limited, a fortiori Article 19(1)(g)
can be too.
165.Along these lines, I could turn to Articles 31A, 31B and
31C for further support. Those Articles exclude challenges
under Articles 14 and 19. In agreement with Dr. Dhavan’s
submission, I decline to rely on Articles 31A, 31B and 31C for
support. As explained in Minerva Mills, the Court had
previously upheld Article 31A out of concern for stare decisis.
The Court never approved of the exclusion of Articles 14 and
19 on a principled basis. Nor did it make a ruling as to
whether the exclusion violated the basic structure. (See: para
71-72 of Minerva Mills. See also para 43 of Waman Rao ,
(1981) 2 SCC 362).
166. A basic structure challenge becomes an issue of
institutional competence. Is it for the legislature to decide
what is a reasonable restriction under 19(1)(g) read with 19(6)?
Or is it for the judiciary? It is well established that the
Parliament, expressing the will of the people, may enact
amendments to overrule a judgment of this Court. The First
Parliament added Article 15(4) to the Constitution to overrule
State of Madras v. Champakam Dorairajan , AIR 1951 SC
226. Other examples include the 77
th
Amendment, which
overruled Sawhney I by adding Article 16(4-A); the 81
st
Amendment further overruled Sawhney I by adding Art 16
(4-B); the 82
nd
Amendment overruled S. Vinod Kumar &
Another v. Union of India & Another (1996) 6 SCC 580 by
amending Article 335; and the 85
th
Amendment overruled
Virpal Singh Chauhann and Ajit Singh I by amending
Article 16(4-A), (1995) 6 SCC 684 and (1996) 2 SCC 715,
respectively. Nevertheless, the duty to interpret the content of
our fundamental rights has been left to the Courts. “The
important point to be noted is that the content of a right is
defined by the Courts. The final word on the content of the
right is of this Court.” (Nagaraj at para 21). (emphasis added).
While the Parliament may amend the Constitution, it cannot
alter the Constitution’s basic structure. (See: Kesavananda,
Indira Nehru Gandhi (Election Case), Minerva Mills,
Sambamurthy, L. Chandra Kumar and Coelho ).
· Step Two: Does Article 15(5) affect Article
19(1)(g) to such an extent that Article 19(1)(g)’s
original identity has been altered?
167.In other words, does Art 15(5) in effect merely abridge or
completely abrogate Article 19(1)(g). If the former, 15(5)
stands. If the latter, it falls. As noted above, Coelho directs
me to apply the impact/rights test to determine whether the
basic structure has been violated. [See Coehlo at Conclusion
(ii) at page 111]. Thus, my query is whether to consider the
impact on the entire constitutional framework, or to examine
the effect on citizens engaged in unaided education as an
occupation. I think it is the latter. I am not concerned here
with those engaged in education in aided institutions. One is
naturally subject to greater regulation when one relies on
Government funding. (See: Pai/Inamdar). Individual liberty
and freedom, as protected by the Golden Triangle, must carry
greater weight for those who set off on their own and refuse
Government money.
168. This brings me to the question as to how large I should
draw the circle when I ask who is affected by reservation in
unaided institutions. Justice Chandrachud provides that “[a]
total deprivation of fundamental rights, even in a limited area,
can amount to abrogation of fundamental right just as a
partial deprivation in every area can.” (See: Minerva Mills,
para 59).
169.Freedom under Article 19 belongs to individual citizens.
Article 19(1)(g) provides that “all citizens shall have the right to
practice any profession, or to carry on any occupation, trade
or business.” The reference to “all citizens” means that each
and every individual citizen possesses Article 19 rights. For
the impugned legislation to fall, it need not touch every sphere
of society. If even one individual’s freedom has been curtailed,
this Court is duty bound to entertain his or her claim. It is he
or she who possesses the Article 19(1)(g) right to carry on an
occupation.
170. If 15(5) were implemented, the educator in unaided
institutions would still have students to educate. I use
“educator” in the broadest sense of the term and include
teachers, professors, lecturers, faculty, staff, administrators
and those who finance institutions. Without one of the
aforementioned, the institution cannot function properly.
171.Though affected by reservation, the educator still has a
job. His occupation remains intact. Students will come.
Classes will commence. Marks will be distributed. The
greatest impact on the educator is that neither he nor his
institution will choose whom to teach.
172.Almost half of the time (49.5%), the State would decide
for them. Selecting students or employees goes to the heart of
an organization’s autonomy. The essence of an unaided
educational institution is the freedom to manage its affairs,
according to Pai at paragraph 55. That is, “… the essential
ingredients of the management of the private institution
include the recruiting [of] students and staff … .” The same
argument was framed in similar terms (at para 54) in St.
Stephen’s College (regulations imposing standards of
education upheld, because they “… do not bear directly upon
management although they may indirectly affect it …”). This
Court has stated in Pai as clarified by Inamdar that
subjecting unaided institutions is an unreasonable restriction.
As noted, Article 19(6) provides no safe haven for reservations.
173. The Government-imposed selection of students in turn
has wide-ranging consequences for unaided institutions and
their educators. I am required to examine the effect of the
impugned Amendment. At least four problems will likely arise:
(1) academic standards suffer;
(2) attracting and retaining good faculty becomes more
difficult;
(3) the incentive to establish a first rate unaided institution
is diminished;
(4) and ultimately the global reputation of our unaided
institutions is severely compromised.
174.First, once the State tells them whom to teach, standards
of excellence will suffer. This is because those institutions will
no longer be able to admit the highest-scoring students. As
good as some of our institutions are, they do not teach blank
slates. The best universities are the best, in part, because
they attract the best students. The same can be said for
almost any organization. In the case of higher education, the
universities that admit the best will likely churn out the best.
The precise extent to which the university made the best so
good cannot be qualified. The point is that universities alone
cannot produce qualified job candidates. Forced to admit
students with lower marks, the university’s final product will
not be as strong. Once the creamy is excluded, cut-off marks
would likely drop considerably in order to fill the 27% quota
for non creamy layer OBCs. When the creamy layer is not
removed, as in the case of Tamil Nadu, the difference in cut off
marks for the general and backward categories may be
insignificant. (See para 408 of Sawhney I). Of course, the
extent to which standards of excellence would suffer would
vary by institution. As I mention below, I urge the
Government to set OBC cut off marks no lower than 10 marks
below that of the general category. This is only a
recommendation, however. It may never be adopted.
175.Second, reservations weaken the incentive to establish
unaided institutions: if the State usurps the right to select
students, would one still spend the time and money to
establish an unaided institution? The question is all the more
relevant today. Counsel for petitioners posit that tomorrow’s
knowledge economy requires a well-educated populace. “Well-
educated” does not imply a string of degrees from less than
taxing institutions. Rather, it means that one will possess the
skills, knowledge and creativity to compete globally. Our
unaided institutions must remain places where these traits
are refined.
176.Third, those inclined to teach the brightest students have
even less of a reason to leave private sector jobs for the
teaching profession or to join the profession in the first place.
“Brightest” would come with an asterisk. They would be the
brightest available under the Government’s reservation
scheme. These potential teachers may ask themselves: how
will I teach a class in which half the students are advanced
relative to the other half? In many institutions, the shortage
of top-rate faculty will only get worse. Fourth, reservations
may have a negative impact on students seeking employment
in the burgeoning knowledge economy. Recruiters have begun
to trickle into campuses. They hail from domestic as well as
international entities, and they too may take note of
reservations in unaided institutions. The effect on educators,
from the top down, would be felt. For them, little more than a
semblance of occupation would remain.
177.Given the dramatic effect that reservations would have on
educators, the unaided institutions in which they teach and,
consequently, society as a whole, Article 19(1)(g) has been
more than abridged. When education is effectively
nationalized, freedom stands obliterated. The identity of the
Constitution is altered when unreasonable restrictions make a
fundamental right meaningless. The 93
rd
Amendment’s
imposition of reservation on unaided institutions has
abrogated Article 19(1)(g), a basic feature of the Constitution,
in violation of our Constitution’s basic structure. Therefore, I
sever the 93
rd
Amendment’s reference to “unaided” institutions
as ultra vires of the Constitution.
178.The case law on severability asks the following question:
had the Parliament known its provision would be severed
would it still have passed the rest of the legislation? (See:
R.M.D. Chamarbaugwalla (supra)).
179.At page 943 of R.M.D. Chamarbaugwalla (supra), the
Court relied in part on The State of Bombay & Another v.
F.N. Balsara (1951) SCR 682, where the question at issue
was whether the Bombay Prohibition Act was valid:
Sections 12 and 13 of the Act imposed restrictions on the
possession, consumption and sale of liquor, which had been
defined in s. 2(24) of the Act as including “(a) spirits of wine,
methylated spirits, wine, beer, toddy and all liquids consisting
of or containing alcohol, and (b) any other intoxicating
substance which the Provincial Government may, by
notification in the Official Gazette, declare to be liquor for the
purposes of this Act”. Certain medicinal and toilet
preparations had been declared liquor by notification issued
by the Government under s. 2(24)(b). The Act was attacked in
its entirety as violative of the rights protected by Art. 19(1)(f).
But this Court held that the impugned provisions were
unreasonable and therefore void in so far as medicinal and
toilet preparations were concerned, but valid as to the rest.
Then, the contention was raised that “as the law purports to
authorise the imposition of a restriction on a fundamental
right in language wide enough to cover restrictions both within
and without the limits of constitutionally permissible
legislative action affecting such right, it is not possible to
uphold it even so far as it may be applied within the
constitutional limits, as it is not severable”. In rejecting this
contention, the Court observed:
‘These items being thus treated separately by the legislature
itself and being severable, and it is not being contended, in
view of the directive principles of State policy regarding
prohibition, that the restrictions imposed upon the right to
possess or sell or buy or consume or use those categories of
properties are unreasonable, the impugned sections must be
held valid so far as these categories are concerned.’
This decision is clear authority that the principle of
severability is applicable even when Act’s invalidity arises by
reason of its contravention of constitutional limitations.”
180.At page 944, the court in R.M.D. Chamarbaugwalla
sought guidance from American case law on severability:
“In discussing the effect of a severability clause, Brandies, J.
observed in Dorchy v. State of Kansas (1924) 264 US 286
that it “provides a rule of construction, which may sometimes
aid in determining that intent. But it is an aid merely; not an
inexorable command”. The weight to be attached to a
classification of subjects made in the statute itself cannot, in
our opinion, be greater than that of a severability clause.”
181. The court in R.M.D Chambarbaugwalla went on to cite
Patanjali Sastri, C.J., in The State of Bombay & Another v.
The United Motors (India) Ltd. & Others (1953) SCR 1069:
“dealing with the contention that a law authorizing the
imposition of a tax on sales must be declared to be wholly void
because it was bad in part as transgressing constitutional
limits observed:
‘It is a sound rule to extend severability to include separability
in enforcement in such cases, and we are of opinion that the
principle should be applied in dealing with taxing statutes in
this country.’”
182. Here, I believe the Parliament would have gone forward
without unaided institutions. While some Members of
Parliament sought to overrule Pai and Inamdar, the
Parliament’s actions speak louder than its words. Once it had
passed Article 15(5), it limited itself to imposing greater
reservations on aided institutions. Had unaided institutions
been the Parliament’s priority, it could have included them in
the Reservation Act. It seems that the Parliament’s intent is to
pass as much reservation as possible. That would explain why
it has gone forward with 27% reservation for OBCs without
confirming that at least 27% of the population is OBC. For
these reasons, I conclude that had the Parliament known that
unaided institutions were going to be severed, it would have
nevertheless carried out its reservation scheme for aided
institutions.
1.The Casteless and Classless Society versus
Caste-based Reservation:
183.The caste system is peculiar to this country. Perhaps
the entire society has been divided on the basis of caste. This
social problem can be compared to some extent with that of
American society. In the U.S., the problem of racial
discrimination has existed for centuries. The cases of
affirmative action decided in the United States are relevant.
They show us how that society has dealt with the problem of
racial discrimination. At the outset, I would like to make it
clear that decisions of foreign countries are not binding on
Indian courts. Indian Courts have not adopted American
standards of review. But the judgments delivered by U.S.
courts on affirmative action have great persuasive value and
they may provide broad guidelines as to how we should tackle
our prevailing condition. A large number of English laws have
been inherited by India and America. English and American
cases are frequently cited by our courts. We need to keep our
window open and permit the light of knowledge to enter from
any source. In this light, I shall refer to some US decisions.
· Affirmative Action cases and standards of
review from the United States:
184.In 1978, Regents of the University of California v.
Bakke put an end to reservation (“quotas”) in education
(reserving 16 out of 100 seats for minorities in medical school
deemed unconstitutional). (438 U.S. 265). Justice Powell’s
concurring judgment is considered the key opinion in the
case.
185.Justice Powell concluded that diversity was a compelling
State interest that could withstand strict scrutiny. Relying on
Bakke, the court later reaffirmed preferential treatment in
college admissions as a means to ensure diversity in the
classroom – racial diversity being just one among many types
of diversity (“overcoming personal adversity and family
hardship” was another form of diversity), (See: Grutter v.
Bollinger, 539 U. S. 306, 338 (2003)). The Grutter Case
insisted that universities make an individualized evaluation of
a student seeking admission, rather than one that
mechanically accepted or rejected students on the basis of
race. (Grutter at 337). Such an evaluation would ensure that
race was only considered as one type of diversity, rather than
a pretext for achieving racial balance. Quotas could not be
covertly installed in the name of diversity. This reasoning led
the court to strike down an admission scheme that
automatically assigned more points to minority students than
to residents of the State or to athletes, for example. (Gratz v.
Bollinger, 539 U.S. 244, 270).
186.Justice O’Conner for the majority in Grutter came to a
very significant conclusion. She suggested that there was time
limit on preferential treatment for certain races as a means of
promoting diversity. Justice O’Connor stated: “we expect that
25 years from now, the use of racial preferences will no longer
be necessary to further the interest approved today.”
187.In Parents Involved in Community Schools v. Seattle
School District No.1 et al, reported in 168 Lawyers Ed. 2d
508 & 517 (2007), school districts used a student’s race to
assign that student to a particular school within the district.
In Seattle, this was done to achieve racial balance amongst the
district’s schools. One school should not be overwhelmingly
white, another all non-white. Unlike the system approved in
Grutter, race was not just one among many types of diversity
that was considered by the district in assigning students.
Seattle at 525. Instead, it was, at times, the decisive factor.
The court held the programmes unconstitutional. Chief
Justice Roberts summed up the plurality’s view on racial
classifications: “the way to stop discrimination on the basis of
race is to stop discriminating on the basis of race.”
188.This was far from a complete victory for the plurality. In
his concurring opinion, Justice Kennedy found the
programmes unconstitutional. However, he would not go so
far as to treat all racial balancing as per se unconstitutional.
He considered the plurality opinion to represent “… an all-too-
unyielding insistence that race cannot be a factor in instances,
when, in [his] view, it may be taken into account.” (Seattle at
565).
189.Justice Kennedy found that schools have a compelling
interest to prevent racial isolation or achieve a diverse student
population. (Seattle at 572). Like Justice Powell’s concurring
opinion in Bakke, Justice Kennedy’s concurring opinion
leaves the door open for further use of racial classification for
so-called benign purposes in school admissions.
190.More important than any one case are the standards by
which the court scrutinized discriminatory legislation. Of
course, Indian courts have not accepted the principles of
narrow tailoring and strict scrutiny. Nevertheless, we should
seek guidance from any corner and permit the light from any
quarter.
191.Whenever legislation is challenged as unconstitutional,
courts must ask themselves how much deference they will give
to the legislature. The answer is that it depends on the nature
of the impugned legislation. The United States Supreme Court
has evolved three standards of review for Government action
that treats different people differently. The first is the rational
basis standard. When the classification is rationally related to
any legitimate Government purpose, the court defers to the
State and upholds the classification. This is the most
deferential of the three standards. The second standard is
intermediate scrutiny, which is less deferential to Government.
Here, the court asks whether the classification is substantially
related to any important Government purpose. The third and
highest level of review is known as strict scrutiny, whereby the
court requires that the classification are narrowly tailored to a
compelling state interest. Strict scrutiny test is the least
deferential to Government.
192.Of the classifications on which there is case law, the one
that most closely resembles caste is race. This is because
both are immutable traits. They are used by the powerful, or
those seeking power, to justify oppression. Racism and
casteism have long haunted both Nations. In the United
States, race raises red flags. It is often, though not always,
reviewed under strict scrutiny: “Government action dividing
people by race is inherently suspect because such
classifications promote ‘notions of racial inferiority and lead to
a politics of racial hostility,’ (Croson at 102 L. Ed. 2d 854) and
“racial classifications are simply too pernicious to permit any
but the most exact connection between the justification and
the classification.” (Gratz v. Bollinger, 539 U.S. 244, 270
(quoting J. Stevens’ dissent in Fullilove v. Klutznick, 448
U.S. 448, 537)).
193.Legislation whose text does not classify based on race is
considered facially neutral. When facially neutral legislation
has a disproportionate impact on a particular race, American
courts ask whether it was passed with an intention to
discriminate. If no intention is found, the rational basis test
applies. [See: Hernandez v New York, 500 U.S. 352 (1991)
(quoting from Arlington Heights v. Metropolitan Housing
Development Corp., 429 U.S. 252, 264-265 (1977)]:
“A court addressing this issue must keep in mind the
fundamental principle that "official action will not be held
unconstitutional solely because it results in a racially
disproportionate impact. . . . Proof of racially discriminatory
intent or purpose is required to show a violation of the Equal
Protection Clause.”
See also Washington v. Davis, 426 U.S. 229, 239 (1976). The
exception to this rule is Yick Wo v. Hopkins, 118 U.S. 356
(1886), where extreme disproportionate impact warranted
greater scrutiny. Where there is disproportionate impact and
discriminatory intention, then even facially neutral legislation
triggers strict scrutiny. However, in this framework,
affirmative action classifies on the face of legislation and
automatically gets strict scrutiny treatment.
194.As I have observed, American courts carefully review
racial classifications. Given that the 93
rd
Amendment on its
face discriminates against general category students, we
should give it careful scrutiny. The Article 14 right to formal
equality deserves as much. If 49.5% caste-based reservation
was upheld in Sawhney I for Government employment, it
follows that 49.5% caste-based reservation is permitted in
aided educational institutions. While I compelled by
Sawhney I to hold that the impugned legislation passes
careful scrutiny with respect to reservation in aided
institutions, its implementation is contingent upon the
directions given in this opinion.
· The Framers’ ultimate goal: the Classless and
Casteless society:
195.Did the original Framers intend to provide caste-based
reservation in education to the lower classes? No, the original
Framers did not. Soon after the Constitution was adopted, the
very same Framers acted quickly to permit reservation for
SC/ST/SEBCs in education by adding Art 15(4), vide the First
Amendment, to the Constitution. In doing so, they deviated
from their own goal – the casteless society would have to wait.
In Sawhney I, the Court upheld this decision and bound us to
a certain degree on this point. I have no choice but to uphold
the impugned legislation by which the Government may still
identify SEBCs, in part, by using caste.
196.Caste-based reservation was initially a temporary
measure that was to only last for ten years. The original
Framers considered caste-based reservation a necessary evil.
Thus, they limited it in time. Extending this time limit has
only exacerbated casteism.
197.The Parliamentary Debates clearly reflect that the
ultimate aim of reservation was a casteless and classless
society for India. To this end, reservation should only be given
for a specific period of time. If these reservations or benefits
have to continue perpetually, then the basic goal of achieving
casteless and classless society would never be accomplished.
198.The need for caste-based reservation has “worn out” over
time. Evidence for the proposition that caste is no longer a
valid determinant of one’s ability to move up in society is
strong. More than the way society judges you based on caste,
the relevant question is whether caste precludes you from
rising. If caste doesn’t, then what does? The answer is
simple: money.
199.Income is a much better determinant of educational
achievement than caste. The table below was derived from the
Reproductive Child and Health Survey, 2002-2004 (600,000
households surveyed).
Average years of schooling:
SC OBC Upper caste Hindu
Poorest Rural Quintile 1.6 1.7 2.2
Richest Rural Quintile 5.1 5.5 6.1
For the upper caste, caste barely helps. These numbers
indicate that it is one’s income, not caste, that makes a real
difference in determining how much schooling one completes.
Therefore, if income be the bar to education, economic criteria
should be the means by which we identify beneficiaries of
special provisions under Article 15(5).
· No original intent to provide caste-based
quotas in education:
200.As drafters, the original Framers were prolific. They
made our Constitution the world’s longest – removing as many
doubts as possible and in that way limiting the Court’s role.
The Constitution contains a number of Articles that reserve
seats for various groups. The original Framers, however,
imposed various limitations on reservation. These limitations
provide insight into the original Framers’ compromise between
formal and substantial/egalitarian equality.
201.Reservation is only provided for certain groups (SC, ST
and backward classes) in certain areas of the public sector.
(See: Article 16(4) (reservation of posts in Government service
for backward classes), Article 330 (reservation of seats for SC
and ST in the Lok Sabha) and Article 332 (reservation of seats
for SC and ST in Legislative Assemblies of the States)).
202.Dr Ambedkar stated that “the report of the Minorities
Committee provided that all minorities should have two
benefits or privileges, namely representation in the legislatures
and representation in the services.” (emphasis added) (See:
CAD, 26 August 1949, vol. 9, p. 702). Given this limitation,
we must take extra caution when reviewing the
constitutionality of adding additional benefits.
203.Article 334 fixed a 10-year time limit on the legislative
reservations provided in Articles 330 and 332. In the
discussion regarding draft Article 292, Sardar Hukam Singh
said, “we are accepting this reservation of seats [in legislative
bodies] as an unavoidable evil for the present, thought it is
only for the Scheduled Castes and scheduled tribes.” (See: p.
645, Constituent Assembly Debates, Vol. 9, 24 August 1949).
204.Shri Singh’s comment sums up the limitations on
legislative reservation. OBC/SEBCs were excluded, and
reservations were limited in time. Unlike the legislative
reservations, Article 16(4) contains no fixed time limit. It does,
however, preclude the State from making reservations in
Government service if the backward classes are adequately
represented. The idea is that, at some point in time, the
backward classes would no longer need reservations.
205.In discussing draft Article 10 (Article 16(4) of the
Constitution), Pandit Hirday Nath Kunzru stated:
“We are all aware that when the Report of the Minorities
Committee was considered by the House, the entire House was
anxious that reservations of whatever kind should be done
away with as quickly as possible. … whatever protection might
be considered necessary now, should be granted temporarily
only, so that the population of the county might become fully
integrated, and no community or class might be tempted to
claim special advantage for itself.” (CAD Vol.7 dated 30
th
November 1948, p. 681)”
(emphasis supplied)
Instead of moving to remove reservations, the Parliament has
gone the other way by extending time limits and adding
beneficiaries. Article 15(5) is just the latest example.
206.While the original Framers went out of their way to put
SC/ST in the Parliament and State Assemblies and
SC/ST/backward classes in Government service, they did not
reserve a single classroom seat. Instead, Article 29(2)
prohibited caste-based discrimination in admissions, and
Article 15(2) prohibited caste-based discrimination in general.
Education was to remain reservation-free.
207.When preferential treatment was given in regard to
education, it was limited to educational grants. There was no
question of doling out reservations for special groups. Article
337 provided educational grants to Anglo-Indian schools for
the benefit of that community. In the spirit of conciliation, the
original Framers allowed the grants that were already going to
those schools to continue for 10 years. (See: p 936-941 of
Constituent Assembly Debates, Vol. 8 1949).
208.Rather than advocate for reservation, the original
Framers preferred free/compulsory education and
scholarships. In the debate on Draft Article 294, Shri
Brajeshwar Prasad stated that reservation in legislative bodies
would fail to uplift SC/ST. Instead, he suggested that:
“it should be laid down clearly in express terms that … free
education shall be imparted to them. … [and] for the tribals
and Harijans provision must be made in the constitution that
free agricultural lands should be given to them. If we cannot
give any one of these, I am quite clear in my own mind that by
giving them a few seats here and there, their economic
condition and their educational level will in no way be
improved. (CAD, Vol. 9, 24 August 1948, pages 663-664)”
(emphasis supplied)
209. Shri Prasad’s comments are relevant because he
recognizes the limited effect of reservation. Rather than
reserve seats for a few, he advocated for free education for all.
210.In the debate regarding Article 15 of the Constitution,
Syed Abdur Rouf summed up the essence of the provision:
“The intention of this article is to prohibit discrimination
against citizens.” (See: p. 650 of CAD, Vol.7, 29 Nov 1948).
This intention was only qualified for women and children. In
fact, the original Framers rejected an amendment that would
have watered down Article 15’s prohibition against
discrimination. Prof. K. T. Shah sought special protection for
SC/ST. He wanted to ensure that Article 15 would allow
SC/ST to benefit from affirmative action. To this end, he
introduced an amendment that would have altered 15(3) to
read as follows: “Nothing in this article shall prevent the State
from making any special provision for women and children or
for the Scheduled Castes or backward tribes, for their
advantage, safeguard or betterment.” (Shah amendment in
italics). Prof. Shah proposed the amendment:
“… so that any special discrimination in favour of them may
not be regarded as violating the basic principles of equality for
all classes of citizens in the country. They need and must be
given for some time to come at any rate, special treatment in
regard to education , in regard to opportunity for employment,
and in many other cases where their present inequality, the
present backwardness is only a hindrance to the rapid
development of the country. … equality is not to be equality of
name only or on paper only, but equality of fact. [pages 655-
656 CAD, Vol. 7, 29 November 1948].”
(emphasis supplied)
211.Relevant to the instant case, he explains that his
amendment would allow the State to provide SC/ST special
treatment in regard to education. In other words, Prof. Shah
effectively wanted the equivalent to 15(4) and 15(5) but did not
get it. His amendment was negated. (p. 664 of Constituent
Assembly Debates, Vol. 7, 29 November, 1948).
212.Dr. Ambedkar disagreed with Prof. Shah on the limited
ground that it would have given States the green light to
segregate SC/ST from general category students:
“The object which all of us have in mind is that the Scheduled
Castes and Scheduled tribes should not be segregated from
the general public. For instance, none of us, I think, would
like that a separate school should be established for the
Scheduled Castes … If these words are added, it will probably
give a handle for a State to say, ‘Well, we are making special
provision for the Scheduled Castes.’ To my mind they can
safely say so by taking shelter under the article if it is
amended in the manner the Professor wants it.” [page 661,
CAD, Vol. 7, 29 November 1948].
213.Dr Ambedkar did not reject the Shah amendment
because it would have allowed the States to implement
affirmative action for SC/ST in education. He was concerned
that special provisions would lead to negative discriminatory
action in the guise of affirmative action. Whether or not this
would have happened is unclear, but his concern seems well
placed. A similar problem arises today, when the general
category looks down upon or questions the qualifications of
SC/ST/OBC professionals. Though the individual may have
earned admission on marks alone, others may presume that
reservation was a factor. Such a belief, regardless of veracity,
cannot bode well for the career prospects of SC/ST/SEBCs.
Irrespective of the reason for which the Shah amendment was
rejected, the original Framers contemplated special provisions
for SC/ST that would have included education. At the end of
the day, they decided that only women and children should
benefit from discriminatory provisions.
214.Article 15(4) and the Shah amendment only differ in that
Article 15(4) provides special provisions to SC/ST and SEBC,
while Shah only gave the same to SC/ST. Of course, if the
original Framers rejected special provisions for SC/ST, they
would have done the same with respect to SEBC/SC/ST. In
sum, by limiting Article 15(3) to women and children and
rejecting an amendment equivalent to Article 15(4), the
original Framers’ intent was clear: no special provisions for
backward classes (SEBC/SC/ST) in education were to dilute
Article 15(1)’s prohibition against discrimination based on
caste.
215.In the instant case, the Union of India argued that Article
15(4), the First Amendment to the Constitution, reflects the
intent of the original Framers because it was passed by the
same members that drafted the original Constitution. In the
Parliamentary debates in 1951, Prime Minister Nehru argued
in favour amending the Constitution. He and other Framers,
as distinguished from the original Framers who had drafted
the original Constitution, did not hide their disapproval of
Champakam Dorairajan (supra). Article 15(4) was to
overturn 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, as explained
above, had no intention of providing special provisions for
SC/ST in education (and a fortiori if not for them, nor for
SEBC). What “should be intended” is a far cry from what they
specifically enacted and specifically rejected. It follows that
Article 15(4) deviated from the original Framers’ original
intent.
· Limitations on Reservation must be seen in
the light of providing a casteless society:
216.Seeking to remove the blight created by caste, the
original Framers were social reformers. “The social revolution
meant ‘to get (India) out of the medievalism based on birth,
religion, custom, and community and reconstruct her social
structure on modern foundations of law, individual merit, and
secular education’.” (See: Granville Austin, Indian Constitution:
Cornerstone of a Nation at page 26, 1
st
Ed, 1972, Oxford
University press: (quoting from: K. Santhanam (an Assembly
member) in Magazine Section, The Hindustan Times New
Delhi, 8 September 1946).
217.India’s first President Rajendra Prasad assured the
Nation that the assembly and the Government’s aim was to
“end poverty and squalor … to abolish distinction and
exploitation and to ensure decent conditions of living”.
[Cornerstone at page 27, fn. 5 (quoting from Prasad in CAD V,
I, 2)]. The original Framers took steps to abolish caste-based
distinction. For example, they outlawed untouchability in
Article 17, promised all equal treatment before the law in
Article 14, prohibited discrimination based on caste in 15(1)
and 29(2) and selected joint over separate electorates. The
legislative reservations for SC/ST were an exception to
overarching goal of creating a casteless society; that is why
they were set to expire in 1960. With respect to electorates,
Granville Austin explains:
“Desiring above all to promote national unity, members of the
Constitutional Assembly rejected these devices by substituting
direct elections for indirect in lower houses, by rejecting
separate electorates in favour of joint electorates and by
abolishing … except for Scheduled Castes and Tribes …
reserved seats. The Assembly believed, in Jenning’s words,
that ‘to recognize communal claims . . . is to strengthen
communalism’. [see: Austin, p. 323 of Cornerstone.]”
(emphasis added)
The same can be said today. Reservation based on caste
strengthens communalism. Non-SEBCs naturally seek SEBC
status so that they may capture SEBC benefits. Upper castes,
denied a seat, harbor ill will against lower castes who gain
admission (whether it was by merit or not).
218.These feelings are the basis for discriminatory action. On
16 September 2006, The Hindu reported: “While medical
students at the All India Institute of Medical Sciences (AIIMS)
have complained of caste discrimination, now doctors from the
reserved category at the Guru Teg Bahadur Hospital (GTBH)
too have written about ‘biased attitude towards reserved
category junior residents’.”
219.Discrimination is not the only problem exacerbated by
reservation. Given that reserved category students gain
admission with lower marks, it also stands to reason that they
would exhibit less confidence in their studies when pitted
against the general category. In her work on the unintended
consequences of preferential treatment for minorities in college
admissions in the United States, Marie Gryphon, a policy
analyst for the Cato Institute (Washington, D.C.), writes:
“…recent research shows that affirmative action impedes
academic achievement by undermining minority students’
confidence. …
Preferences harm students’ self-images, and this harm has
practical costs in terms of grades and graduation rates. Both
studies build on earlier work by Stanford University sociologist
Claude Steele, who coined the term “stereotype threat” to refer
to the decline in performance suffered by members of groups
who become afraid of confirming negative group stereotypes.
Steele tested his theory by giving standardized exams to
groups of white and African-American undergraduates at
Stanford University.
Testers told some groups that the exam evaluated
psychological factors related to testing, and that it was not a
measure of ability. They told other groups that the exam
measured their intellectual abilities, and in some instances
had them indicate their race on the exam. The African-
American students who had been implicitly “threatened” with
the stereotype of minority academic inferiority did markedly
worse on the exam than black students in the other groups.
…
Even minority students who do not need preferences respond
to an environment characterized by the relative academic
weakness of minorities by worrying about confirming a
negative stereotype. [Researchers] also determined that
vulnerability to Claude Steel’s stereotype threat is related to
lower grades earned by minority students.” ( See: p. 9-10
(internal citations omitted), Executive Summary, No. 540,
April 6, 2005, “The Affirmative Action Myth.”)
The point is that affirmative action produces consequences
that may outweigh its supposed benefits.
220.To rid ourselves of reservation and its unintended
consequences like casteism, we must focus our efforts on
strengthening education at the primary and secondary level.
Only then will we achieve the casteless/classless society the
original Framers envisaged. And only then will there be
reason to scrap reservation altogether.
221.In his speeches to the Parliament regarding 15(4), Prime
Minister Nehru could not have been clearer: “After all the
whole purpose of the Constitution, as proclaimed in the
Directive Principles is to move towards what I may say a
casteless and classless society” … and in an attempt to
achieve an egalitarian society, “… we want to put an end to all
those infinite divisions that have arisen in our social life; I am
referring to the caste system and other religious divisions, call
them by whatever name you like.” (emphasis added).
[Parliamentary Debates on 13 June, 1951 and 29 May, 1951
respectively].
·If reservation is allowed, then how can a
casteless society still be realized?
222.This raises the issue of how beneficiaries of special
provisions are to be classified. As mentioned above, Mr Salve
and other learned counsel for petitioners pleaded that the
Government cannot go forward with the Reservation Act when
it has yet to identify its beneficiaries. No one can say with
certainty what percentage of the population is OBC, yet the
Government is content with giving OBCs 27% of the seats in
universities. We do not know what proportion of the
population is OBC because the census does not count OBCs.
It has been Central Government policy practically since
Independence to avoid the question. Eminent American
Professor Mark Galanter writes that the absence of caste data
was the deliberate policy of Sardar Patel, the Home Minister
until 1950. Mr. Patel rejected caste tabulation as a device to
confirm the British theory that India was a caste-ridden
country and as an expedient “to meet the needs of
administrative measures dependent on caste division” (See:
Professor Marc Galanter, (1978)“Who are the OBCs?” An
Introduction to a Constitutional Puzzle. 13 Economic and
Political Weekly 1812 at page 1824 at footnote 78 (quoting
from Mr. Patel’s 1950 address to the census conference).
Taking an OBC census is horrifying because it encourages
Government to enact policy on the basis of caste. Doing so
only furthers the caste-divide, contrary to our constitutional
aim. This has been recognized since 1950. If the Central
Governments have consistently rejected an OBC census
because it would promote casteism, how can this Central
Government make reservation on the same ground? It is one
thing to ask a citizen his caste, it is even worse to grant or
reject his college application on that ground. The Government
is between a rock and a hard place. The only way out is to use
exclusively economic criteria. This would negate the need for a
caste-based census while ensuring that reservation go to the
poor, the group for which the Reservation Act was purportedly
passed. The Parliament eventually settled on enabling States
to provide provisions for “socially and educationally backward
classes.” Article 15(4). This Court has interpreted “backward
classes” to include caste as one of the criteria of classification
under Article 16(4). Sahwney I, para 859(3)(b). In other
words, caste falls under class according to Sawheny I, para
859(3)(a).
· Economic criteria allows for reservation on
grounds other than caste:
223.Despite the goal of a casteless society, the Parliament
allowed for caste-based reservation and, consequently, caste-
based discrimination. Ultimately, they subjected Articles 29(2)
and Article 15 to Article 15(4). Dr. Ambedkar saw no choice
but to discriminate based on caste, stating that “if you make a
reservation in favour of what are called backward classes
which are nothing else but collection of certain castes, those
who are excluded are persons who belong to certain castes.
Therefore, in the circumstances of this country, it is
impossible to avoid reservation without excluding some people
who have got a caste.”
224.In draft article 10, Dr. Ambedkar tried to reconcile the
view of those who were in favour of equality of opportunity
with the demand of certain communities who remained
neglected and who wanted to have a share in the
administration. In doing so, he was clear that the concept of
equality, which is the very basis of democracy, should not be
violated. Part of his compromise meant that reservation had
to remain reasonable. Explaining his views on the matter, he
said:
“Supposing, for instance, we were to concede in full the
demand of those communities who have not been so far
employed in the public services to the fullest extent, what
would really happen is, we shall be completely destroying the
first proposition upon which we are all agreed, namely, that
there shall be an equality of opportunity. Let me give an
illustration. Supposing, for instance, reservations were made
for a community or a collection of communities, the total of
which came to something like 70 per cent of the total posts
under the State and only 30 per cent are retained as the
unreserved. Could anybody say that the reservation of 30 per
cent as open to general competition would be satisfactory from
the point of view of giving effect to the first principle, namely,
that there shall be equality of opportunity? It cannot be in my
judgment. Therefore the seats to be reserved, if reservation is
to be consistent with sub-clause (1) of Article 10, must be
confined to a minority of seats. (see CAD, Vol.7, 30
th
November, 1948 pp 701-02).”
225.On 17
th
November, 1949, the Constituent Assembly
began the third reading of the Constitution Bill. While
replying to the debate, Dr. Ambedkar stated:
“This anxiety is deepened by the realization of the fact that in
addition to our old enemies in the form of castes and creeds
we are going to have many political parties with diverse and
opposing political creeds. Will Indians place the country
above their creed or will they place creed above country? I do
not know. But this much is certain that if the parties place
creed above country, our independence will be put in jeopardy
a second time and probably be lost forever. This eventuality
we must all resolutely guard against. We must be determined
to defend our independence with the last drop of our blood.
(See: CAD on 25
th
November, 1949 pp 977-978)”
(emphasis supplied).
226.Exhibiting tunnel vision, our First Parliament failed to
look beyond caste. Another option was available, an option
that adhered to the original Framers’ ideals. Contrary to Dr
Ambedkar’s view, it was possible to provide reservation to
backward classes without discriminating based on caste.
Economic criteria target the poorest of the poor, irrespective of
caste. As noted, these criteria also simultaneously remove the
creamy layer.
227.One of the other prominent advocates of reservation later
realised that the policy did more harm than good. Prime
Minister Nehru wrote the following letter to the Chief Ministers
on June 27
th
, 1961:
“I have referred above to efficiency and to our getting out of
our traditional ruts. This necessitates our getting out of the
old habit of reservations and particular privileges being given
to this caste or that group. The recent meeting we held here,
at which the chief ministers were present, to consider national
integration, laid down that help should be given on economic
considerations and not on caste. It is true that we are tied up
with certain rules and conventions about helping Scheduled
Castes and Tribes. They deserve help but, even so, I dislike
any kind of reservation, more particularly in service. I react
strongly against anything which leads to inefficiency and
second-rate standards. I want my country to be a first class
country in everything. The moment we encourage the second-
rate, we are lost.
The only real way to help a backward group is to give
opportunities for good education. This includes technical
education, which is becoming more and more important.
Everything else is provision of some kind of crutches which do
not add to the strength or health of the body. We have made
recently two decisions which are very important: one is,
universal free elementary education, that is the base; and the
second is scholarships on a very wide scale at every grade of
education to bright boys and girls, and this applies not merely
to literary education, but, much more so, to technical,
scientific and medical training. I lay stress on bright and able
boys and girls. I have no doubt that there is a vast reservoir of
potential talent in this country if only we can give it
opportunity.
But if we go in for reservations on communal and caste basis,
we swamp the bright and able people and remain second-rate
or third-rate. I am grieved to learn of how far this business of
reservation has gone based on communal consideration. It has
amazed me to learn that even promotions are based
sometimes on communal and caste considerations. This way
lies not only folly, but disaster. Let’s help the backward groups
by all means, but never at the cost of efficiency. How are we
going to build our public sector or indeed any sector with
second-rate people?”
· Upon expiry of the time limit, the criteria for
identifying OBCs should only be economic in
nature because our ultimate aim is to establish a
casteless and classless society
228.I am not the first to propose economic criteria as the
exclusive means of identifying SEBCs. In Vasanth Kumar’s
case, counsel sought an opinion from the Court regarding
reservations in employment and education for SC/STs and
OBCs. The opinion would guide the Karnataka Government in
implementing reservation. [para 1]. It serves our purposes to
review their thorough analysis of the identification issue.
229.The Court in Vasanth Kumar observed as under:
“24. ... No one is left in any doubt that the future Indian
Society was to be casteless and classless. Pandit Jawaharlal
Nehru the first Prime Minister of India said that Mahatma
Gandhi has shaken the foundations of caste and the masses
have been powerfully affected. But an even greater power than
Gandhi is at work, the conditions of modern life — and it
seems at last this hoary and tenacious ralic of past times must
die. (Discovery of India by Pandit Nehru, Ch VI, p 234)
Mahatma Gandhi, the Father of the Nation said, “The caste
system as we know is an anachronism. It must go if both
Hinduism and India are to live and grow from day to day”. In
its onward march towards realising the constitutional goal,
every attempt has to be made to destroy caste stratification.
Article 38(2) enjoins the State to strive to minimise the
inequality in income and endeavour to eliminate inequalities
in status, facilities and opportunities, not only amongst
individuals but also amongst groups of people residing in
different areas or engaged in different vocations. Article 46
enjoins duty to promote with special care the educational and
economic interests of the weaker sections of the people, and in
particular, of the Scheduled Castes and Scheduled Tribes, and
shall protect them from social injustice and all forms of
exploitation. Continued retention of the division of the society
into various castes simultaneously introduces inequality of
status. And this inequality in status is largely responsible for
retaining inequality in facilities and opportunities, ultimately
resulting in bringing into existence an economically depressed
class far transcending caste structure and caste barrier. The
society therefore, was to be classless casteless society. In order
to set up such a society, steps have to be taken to weaken and
progressively eliminate caste structure. Unfortunately, the
movement is in the reverse gear. Caste stratification has
become more rigid to some extent, and where concessions and
preferred treatment schemes are introduced for economically
disadvantaged classes, identifiable by caste label, the caste
structure unfortunately received a fresh lease of life. In fact
there is a mad rush for being recognised as belonging to a
caste which by its nomenclature would be included in the list
of socially and educationally backward classes. ... Rane
Commission took note of the fact that there was an organised
effort for being considered socially and educationally backward
castes. Rane Commission recalled the observations in Balaji
case [(1963) Supp (1) SCR 439] that “Social backwardness is
on the ultimate analysis the result of poverty to a very large
extent”. … The Commission came to an irrefutable conclusion
that amongst certain castes and communities or class of
people, only lower income groups amongst them are socially
and educationally backward. …”
230.In this judgment, this Court further observed that if State
patronage for preferred treatment accepts caste as the only
insignia for determining social and educational backwardness,
the danger looms large that this approach alone would
legitimize and perpetuate the caste system. Caste-based
reservation does not go well with our secular character as
enshrined in the Preamble to the Constitution.
231.That said, the majority in Sawhney I later sided with
Justice Chinnappa Reddy’s view: caste can be a factor in
identifying SEBCs. This view should not hold the day forever.
Eventually, the words of Justice Desai should be revived.
232.Justice Desai wanted to achieve two goals with one fell
swoop of the pen. Had his opinion prevailed (1) the creamy
layer would have been removed ensuring that the truly
deserving get the benefit and (2) the casteless society would
have been furthered. To these ends, he would have applied
economic criteria to remove the creamy layer and
simultaneously rid reservation of caste.
233.He explained that poverty is the bane of Indian society.
Given rampant poverty, it comes as no surprise that “… the
bank balance, the property holding and the money power
determine the social status of the individual and guarantee
the opportunities to rise to the top echelon.” [ Vasanth
Kumar at para 27]. As a result, the way “…wealth is acquired
has lost significance.” And “upper caste does not enjoy the
status or respect … any more even in rural areas what to
speak of highly westernised urban society.” Finally, his
Lordship recognized that creamy layer exclusion is inherently
linked with identification based on economic criteria, i.e.,
“occupation, income and land holdings”:
“30. … If economic criterion for compensatory discrimination
or affirmative action is accepted, it would strike at the root
cause of social and educational backwardness, and
simultaneously take a vital step in the direction of destruction
of caste structure which in turn would advance the secular
character of the Nation. This approach seeks to translate into
reality the twin constitutional goals: one, to strike at the
perpetuation of the caste stratification of the Indian Society so
as to arrest progressive movement and to take a firm step
towards establishing a casteless society; and two, to
progressively eliminate poverty by giving an opportunity to the
disadvantaged sections of the society to raise their position
and be part of the mainstream of life which means eradication
of poverty.”
234.Economic criteria must include occupation and land
holdings because income alone is insufficient. To decrease the
likelihood that the undeserving evade identification, it is wise
to employ more than one criterion.
235.In Vasanth Kumar , Justice Chinnappa Reddy departs
from Justice Desai’s use of economic criteria as the sole
means of identification. Nevertheless, he recognizes that “ …
attainment of economic equality is the final and only solution
to the besetting problems.” In Justice Chinnappa Reddy’s
opinion, it is easier to classify based on caste than economic
criteria:
“80: Class poverty, not individual poverty, is therefore the
primary test. Other ancillary tests are the way of life, the
standard of living, the place in the social hierarchy, the habits
and customs, etc. etc. Despite individual exceptions, it may be
possible and easy to identify socially backwardness with
reference to caste, with reference to residence, with reference
to occupation or some other dominant feature.
Notwithstanding our antipathy to caste and sub-regionalism,
these are facts of life which cannot be wished away. If they
reflect poverty which is the primary source of social and
educational backwardness, they must be recognised for what
they are along with other less primary sources.”
It all depends on how one defines “class.” Once economic
criteria remove the relatively wealthy families (from all castes
and communities), a “class” will remain. This “class” is known
as “the poor.” The class would share the same characteristic,
irrespective of caste. They would all lack money.
236.In a number of judgments, this Court has spelt out our
constitutional philosophy regarding caste. On numerous
occasions, this Court has proclaimed that the cherished goal
of the Nation is to realise a casteless society. In Shri V. V.
Giri v. Dippala Suri Dora & Others (1960) 1 SCR 426 at
442, the Court observed as under:-
“……..The history of social reform for the last century and
more has shown how difficult it is to break or even to relax the
rigour of the inflexible and exclusive character of the caste
system. It is to be hoped that this position will change, and in
course of time the cherished ideal of casteless society truly
based on social equality will be attained under the powerful
impact of the doctrine of social justice and equality proclaimed
by the Constitution and sought to be implemented by the
relevant statutes and as a result of the spread of secular
education and the growth of a rational outlook and of proper
sense of social values; but at present it would be unrealistic
and utopian to ignore the difficulties which a member of the
depressed tribe or caste has to face in claiming a higher status
amongst his co-religionists. It is in the light of this
background that the alternative plea of the appellant must be
considered.”
237.In N M. Thomas (supra), a seven Judge Bench observed
as under:
“This consummation is accomplished only when the utterly
depressed groups can claim a fair share in public life and
economic activity, including employment under the State, or
when a classless and casteless society blossoms as a result of
positive State action.”
238.In his dissenting opinion, in Sawhney I Justice Kuldip
Singh observed as under:
“339. Secularism is the basic feature of the Indian
Constitution. It envisages a cohesive, unified and casteless
society. ... The prohibition on the ground of caste is total, the
mandate is that never again in this country caste shall raise
its head. Even access to shops on the ground of caste is
prohibited. The progress of India has been from casteism and
egalitarianism from feudalism to freedom.
340.The caste system which has been put in the grave by the
framers of the Constitution is trying to raise its ugly head in
various forms. Caste poses a serious threat to the secularism
and as a consequence to the integrity of the country. Those
who do not learn from the events of history are doomed to
suffer again.”
239.In Akhil Bhartiya Soshit Karamchari Sangh
(Railway) (supra), it was observed as under::
“14. These forces nurtured the roots of our constitutional
values among which must be found the fighting faith in a
casteless society, not by obliterating the label but by
advancement of the backward …
240.Returning to Vasanth Kumar , one of Justice Reddy’s
arguments deals with the level of effort required to identify the
poor compared to the effort expended on identifying caste. In
the current context, a number of factors, including economic,
are measured to determine SEBC status. ( See: the National
Commission of Backward Classes’ Guidelines for
considerations of Requests for inclusion and complaints of
under-inclusion in the Central List of Other Backward
Classes).
241.The National Commission for Backward Classes aside, I
have set out to eventually install a system that only takes
cognizance of economic criteria. Using purely economic criteria
would lighten the identification load, as ascertaining caste
would no longer be required. Respondents and others level a
common criticism against the exclusive use of economic
criteria. Most of the country is poor.
242.Thus, too many people would be eligible for the benefit.
This is only a problem if you hand out reservations based on
the group’s proportion of the total population. Such a
reservation would be excessively unreasonable and would
likely violate the Balaji cap of 50% [see M.R. Balaji & Ors. v.
State of Mysore [(1963) Supp (1) SCR 439]. If economic
reservation were limited to a reasonable number, it could be
upheld.
243. In addition to the problem of extending the benefit to too
many, Reddy, J. cannot contemplate the idea of bestowing
reservation on an economically poor Brahmin. “The idea that
poor Brahmins may also be eligible for the benefits of Articles
15(4) and 16(4) is too grotesque even to be considered.” He
says that they are not “socially backward”, thus they should
not receive the benefit. But can one call a Brahmin sweeper,
poor by occupation, socially forward? To do so would be a
stretch.
244.The majority in Sawhney I reiterates Justice Chinnappa
Reddy’s message in Vasanth Kumar. They rejected the sole
use of economic criteria to exclude the creamy layer, deeming
it to be just one measure of advancement. Justice Jeevan
Reddy qualified that sentiment to an extent. If income were
extremely high, it could be the sole factor. In such a case,
income alone would ensure that one were socially forward.
Justice Jeevan Reddy was convinced that caste mattered more
than money – especially in rural areas. He makes his point by
way of example at para 792:
“A member of backward class, say a member of carpenter
caste, goes to Middle East and works there as a carpenter. If
you take his annual income in rupees, it would be fairly high
from the Indian standard. Is he to be excluded from the
Backward Class? Are his children in India to be deprived of
the benefit of Article 16(4)?”
245.Unless the carpenter became a factory owner, where his
income would be a reflection of his status, Justice Reddy
would answer his own question in the negative. This is where
we part ways. Today, the NRI carpenter’s children will have
likely attended the best schools, tuitions and coaching classes
that money can buy. These children do not need special
provisions. That is why I am removing the creamy layer,
calling for a time-limit on caste-based reservation and urging
the Government to use exclusively economic criteria to identify
OBCs who may avail of special provisions.
246.The United States Supreme Court has taken a similar
position with regard to setting a time-limit on race-based
affirmative action. As mentioned above, Justice Sandra Day
O’Connor opined that there may be a time-limit to promoting
diversity via preferential treatment for certain races: “We
expect that 25 years from now, the use of racial preferences
will no longer be necessary to further the interest approved
today.” (See: Grutter at 343).
247.In our context, one need not look past the Parliament’s
affinity with extending time-limits on reservation to see that
only the judiciary can put a stop to caste-based reservation.
Article 334 originally said that reservation for SC/ST/Anglo-
Indians in the Lok Sabha and State Legislative Assemblies
would expire on the Constitution’s tenth birthday. The
Parliament later substituted “ten” for “thirty years” vide the
45th Amendment. When that was to expire, the Parliament
extended it for another ten years vide the 62nd Amendment.
When that was to expire, it extended it for another ten years
vide the 79
th
Amendment. History has shown that it is not
politically feasible for the Parliament to say “no” to reservation
– especially when caste is involved.
248.Nevertheless, I have noted that Sawhney I rejects purely
economic criteria (occupation/income/property holdings/or
similar measures of economic power) with respect to
classification under 16(4). [para 859, 4(a)]. Sawhney I’s
nine-Judge holding precludes us from striking the impugned
legislation to the extent that it has not yet ruled out the use of
caste-based criteria for identifying SEBC status. It also
precludes us from forcing the Government to wean itself off
caste-based reservation by a certain date. In order to achieve a
casteless and classless society, after a lapse of ten years,
special preference or reservation should be granted only on
the basis of economic criteria as long as grave disparity and
inequality persist.
· Secularism is Part of the Basic Structure
249. To be clear, there is no claim arising out of the goal to
promote a casteless society. No right of action exists. The
right of action is found in secularism. Though not explicitly
found in the un-amended Constitution, the original Framers
made it clear that India was to be a secular democracy.
Discrimination based on religion is prohibited by Articles 14,
15(1) and 15(2), 16(1) and 16(2), 29(2) and 325. The original
Framers went out of their way to ensure that minorities would
be able to maintain their identity. (See: Articles 28, 29 and
30). Article 27 precludes the state from adopting a state
religion, whereas Article 25 grants citizens the right to profess,
practice and propagate religion. With rights come
responsibilities. One of them is found at Article 51A(3), which
instructs citizens “… to promote harmony and spirit of
brotherhood amongst all people … transcending religious …
diversities.”
250. Relying on these provisions, Bommai (1994) 3 SCC 1 at
para 304 declared secularism “….a constitutional goal and a
basic feature of the Constitution as affirmed in Kesavananda
Bharati and Indira N. Gandhi v. Raj Narain . Any step
inconsistent with this constitutional policy is, in plain words,
unconstitutional.” The Court reasoned that the original
Framers adopted Articles 25, 26 and 27 so as to further
secularism. (See: Bommai at para 28 (Ahmadi, J.)).
Secularism was very much embedded in their constitutional
philosophy. [para 29]. During the Constituent Assembly
Debates, Pandit Laxmikantha Mitra stated (as quoted at para
28 of Bommai):
“By secular State, as I understand it, it is meant that the State
is not going to make any discrimination whatsoever on the
ground of religion or community against any person professing
any particular form of religious faith. … no citizen … will have
any preferential treatment … simply on the ground that he
professed a particular form of religion.”
This is relevant today because quotas are state-sponsored
discrimination against those who are not deemed SEBCs -
caste being a by-product of religion. Though affirmative action
is allowed, there is a point at which it violates secularism.
Finally, I note that the 42nd Amendment, which formally
inserted secularism into the Preamble, merely made what was
already implicit explicit. (See Bommai at para 29).
· Conclusion on the Casteless Society
251. In conclusion, the First Parliament, by enacting Article
15(5), deviated from the original Framers’ intent. They passed
an amendment that strengthens, rather than weakens
casteism. If caste-based quotas in education are to stay, they
should adhere to a basic tenet of secularism: they should not
take caste into account. Instead, exclusively economic criteria
should be used. For a period of ten years, other factors such
as income, occupation and property holdings etc. including
caste, may be taken into consideration and thereafter only
economic criteria should prevail. Sawhney I has tied our
hands. I nevertheless believe that caste matters and will
continue to matter as long as we divide society along caste-
lines. Caste-based discrimination remains. Violence between
castes occurs. Caste politics rages on. Where casteism is
present, the goal of achieving a casteless society must never
be forgotten. Any legislation to the contrary should be
discarded.
5.Are Articles 15(4) and 15(5) mutually contradictory,
such that 15(5) is unconstitutional?
252.While contradictory, I am able to read them
harmoniously. Learned senior counsel for petitioners, Mr.
K.K. Venugopal, argued that Articles 15(5) and 15(4) are
inconsistent to the extent that 15(5) exempts minority
institutions from reservation and 15(4) incorporates aided
minority institutions in the reservation scheme. Because both
provisions contain “non-obstante clauses”, they render each
other void. He further submitted that the Court is in the
position of having to choose between them in regard to this
inconsistency. He provided three tests of statutory
interpretation that give us guidance in resolving such a
conflict.
253. First, if the Court cannot harmonize the two provisions, it
must invalidate the one that completely destroys the other’s
purpose. Sarwan Singh & Another v. Kasturi Lal (1977) 1
SCC 750, pages 760-761, at para 20). In the instant case, one
of the express purposes of 15(5) was to exempt minority
institutions and thus avoid conflict with Article 30(1). This is
found in the text of Article 15(5) itself.
254.With nothing in the text of 15(4) to guide us, we turn to
its Statement of Objects and Reasons:
“……The Act also amplifies Article 15(3) so as to ensure that
any special provisions that the State may make for the
educational, economic or social advancement of any backward
class citizens may not be challenged on the ground of being
discriminatory. “
255.Thus, Article 15(4) was not passed with an express
intention to include minority institutions; nor did it arise out
of a case in which minority institutions were a party. Then
again, it was open to the First Parliament to exclude minority
institutions from the beginning. Articles 15(4) and 15(5)’s
purposes do not necessarily conflict. I find the first test
inconclusive and thus turn to the other ones. The second test
asks which provision came into effect at a later date (i.e., was
“later in time?”)? That which is later shall prevail. Here, 15(5)
was enacted later in time. In J.K. Cotton Spinning and
Weaving Mills Co. Ltd. v. State of Uttar Pradesh & Others
AIR 1961 SC 1170 at page 1174, para 9, I find the third test; it
provides that the specific clause must trump the general.
Article 15(5) is specific in that it refers to special provisions
that relate to admission in educational institutions, whereas
15(4) makes no such reference to the type of entity at which
special provisions are to be enjoyed.
256.Because 15(5) is later in time and specific to the question
presented, it must neutralize 15(4) in regard to reservation in
education. Mr K. Parasaran, learned senior counsel for the
respondents, correctly pointed out that constitutional articles
are to be read harmoniously, not in isolation. (See: T.M.A.
Pai (supra) at page 582, para 148). Our interpretation is
harmonious because Article 15(4) still applies to other areas in
which reservation may be passed.
6.Does Article 15(5)’s exemption of minority
institutions from the purview of reservation violate
Article 14 of the Constitution?
257.Given the inherent tension between Articles 29(2) and
30(1), I find that the overriding constitutional goal of realizing
a casteless/classless society should serve as a tie-breaker.
We will take a step in the wrong direction if we subject
minority institutions (even those that are aided) to reservation.
258.Minority aided institutions were subject to a limited form
of reservation. In order to preserve the minority character of
the institution, reservation could only be imposed to a
reasonable extent. Minority aided institutions could select
their own students, contingent upon admitting a reasonable
number of non-minority students per the percentage provided
by the State Government. This conclusion was derived from
two conflicting constitutional articles. Of course, I am only
concerned with minority aided institutions because I have
already determined that the State shall not impose reservation
on unaided institutions (minority or non-minority).
259.Article 30(1) provides that “all minorities, whether based
on religion or language, shall have the right to establish and
administer educational institutions of their choice.” Article
29(2) states that “no citizen shall be denied admission into any
educational institution maintained by the State or receiving
aid out of State funds on grounds only of religion, race, caste,
language or any of them.”
260.In other words, 30(1) by itself would allow minority aided
institutions to reject all non-minority candidates, and 29(2) by
itself would preclude the same as discrimination based solely
on religion. Yet neither provision exists by itself. Rather than
disturb the Constitution, this Court struck a compromise and
diluted each provision in order to uphold both. Reading
Articles 30(1) and 29(2) harmoniously, Kerala Education Bill
provided that once minority institutions receive aid, a
sprinkling of outsiders must be admitted.
261.“Sprinkling” ensured that the minority character of the
institution would not be lost. In regard to the “sprinkled”
seats, minority institutions cannot discriminate based on
religion in violation of Article 29(2). At the same time, if the
State compelled aided minority institutions to take too many
non-minority students, the institution would be “minority” in
name only. But what does “too many” mean? Can “sprinkling”
be quantified? Clearing up the ambiguity, St. Stephen’s held
that minority institutions must make 50% of their seats
available to outsiders and that admission for the other 50%
(its own community) must be done on merit. Pai later rejected
the rigidity attached to this fixed percentage. Along these
lines, Pai returned to a more flexible standard, one akin to
“sprinkling” in Kerala Education Bill: the moment a minority
institution takes aid, it has to admit non-minority students to
a reasonable extent, whereby the character of the institution
was maintained and yet citizens’ Article 29(2) rights were not
subverted. (Also see: Pai at para 149).
Thus, two admission pools were created for aided minority
institutions: minority and non-minority. In the minority
pool, merit was to be observed. From the non-minority pool,
reservations for the weaker sections may be made while the
remaining seats, if any, would be distributed based on merit to
non-minority students.
“… It would be open to the state authorities to insist on
allocating a certain percentage of seats to those belonging to
weaker sections of society, from amongst the non-minority
seats.” [Pai at para 152].
262.With regard to the percentage of reservation, the State
Governments were to determine the percentage of non-
minority seats according to the needs of that State. As a
compliment to reservation, aided minority institutions were
also subject to regulation of administration and management.
Pai declared at para 72 as noted above that:
“Once aid is granted to a private professional educational
institution, the Government or the state agency, as a condition
of the grant of aid, can put fetters on the freedom in the
matter of administration and management of the institution.
The state, which gives aid to an educational institution, can
impose such conditions as are necessary for the proper
maintenance of the high standards of education as the
financial burden is shared by the state. …”
263.In addition to the general power to impose conditions
that seek to maintain high standards or “excellence in
education,” the State could implement the same under a
related but different rationale. That is, said regulations could
be upheld in the name of national interest. [Pai at para 107].
Yet the Government could not destroy the minority character
of an institution. [para 107]. Nor could it obliterate the
establishment or administration of a minority institution.
[para 107]. A balance was to be struck between (a)
maintaining academic quality and (b) preserving the minority
right to establish/administer educational institutions.
Regulations that embraced these two objectives were
considered reasonable. [Pai at para 122].
264.A question of great import is whether Article 30 was
designed to put minorities on equal or higher footing than
non-minorities. This question played out in detail in a debate
between Khare, C.J. and Justice Sinha in Islamic Academy.
Writing for the majority, Chief Justice Khare takes issue with
Pai. The Chief Justice says that Pai has wrongly categorized
minority rights as equal to those of the non-minority. He has
a point. Minorities can establish and administer institutions
for their communities per Article 30; non-minorities cannot.
His Lordship observed: (para 9 page 723)
“…We do not read these paragraphs to mean that non-
minority educational institutions would have the same rights
as those conferred on minority educational institutions by
Article 30 of the Constitution of India. Non-minority
educational institutions do not have the protection of Article
30. Thus, in certain matters they cannot and do not stand on
a similar footing as minority educational institutions. Even
though the principle behind Article 30 is to ensure that the
minorities are protected and are given an equal treatment yet
the special right given under Article 30 does give them certain
advantages…”
Relying on St. Xavier’s case (1975) 1 SCR 173, Pai
concluded that the object of Article 30 was to ensure
minorities of equal treatment and nothing more.
265.It was observed in St. Xaviers College case, at page 192,
that "the whole object of conferring the right on minorities
under Article 30 is to ensure that there will be equality
between the majority and the minority. If the minorities do not
have such special protection, they will be denied equality." The
minority institutions must be allowed to do what the non-
minority institutions are permitted to do. [Pai at para 138].
266. In contrast to the majority in Islamic, Justice Sinha
concludes that Article 30(1) raises minorities to an equal
platform and no higher. Relevant portion is reproduced
hereinbelow:
“The statement of law contained in paras 138 and 139 is
absolutely clear and unambiguous and no exception can be
taken thereto. The doubt, if any, that the minorities have a
higher right in terms of Article 30(1) of the Constitution of India
may be dispelled in clearest terms inasmuch as the right of
the minorities and non-minorities is equal. Only certain
additional protection has been conferred under Article 30(1) of
the 'Constitution of India to bring the minorities on the same
platform as that of non-minorities as regards the right to
establish and administer an educational institution for the
purpose of imparting education to members of their own
community whether based on religion or language. [see: Islamic
Academy at para 105].”
267. Justice Sinha considers it constitutionally immoral to
discriminate against non-minorities in the guise of protecting
the constitutional rights of minorities. [See: Islamic Academy
at para 118]. Even in the face of Articles that provide
preferential treatment to minority or weaker sections, e.g.,
30(1), 15(4) and 16(4), the right to equality must mean
something.
268.Justice Khare, as he then was, concludes that original
Framers conferred Article 30(1) on minorities in order to instill
in them a sense of confidence and security. [Pai at page 615
at para 229]. Their right to establish and administer
educational institutions could not be usurped by mere
legislation. Khare, J. stated at para 229 p.615:-
“Thus, while maintaining the rule of non-discrimination
envisaged by Article 29(2), the minorities should have also
right to give preference to the students of their own
community in the matter of admission in their own institution.
Otherwise, there would be no meaningful purpose of Article
30(1) in the Constitution. True, the receipt of State aid makes
it obligatory on the minority educational institution to keep
the institution open to non-minority students without
discrimination on the specified grounds. But, to hold that the
receipt of State aid completely disentitles the management of
minority educational institutions from admitting students of
their community to any extent will be to denude the essence of
Article 30 of the Constitution. It is, therefore, necessary that
the minority be given preferential rights to admit students of
their own community in their own institutions in a reasonable
measure otherwise there would be no meaningful purpose of
Article 30 in the Constitution.”
269.Minorities possess one right or privilege that non-
minorities do not: establishing and administering institutions
for their community. The right to admit your own students in
aided minority institutions was subject to admitting a
reasonable number of outsiders. In the instant case, aided
minority institutions stand to benefit from the Reservation Act:
instead of having to admit a reasonable number of outsiders
they would be exempted from reservation. However, their non-
minority counterparts would not. Does this elevate their
status? While it does to a certain extent, however, we must
also keep our constitutional goal and philosophy in mind.
Given the ultimate goal of furthering a classless/casteless
society, there is no need to go out on a limb and rewrite them
into the Amendment. Such a ruling would subject even more
institutions to caste-based reservation. This would be a step
back for the Nation, furthering the caste divide. I refuse to go
in that direction.
7) Are the standards of review laid down by the
U.S. Supreme Court applicable to our review of
affirmative action under Article 15(5) and similar
provisions?
270.As noted above, U.S. law is, of course, not binding but
does have great persuasive value. This is because their
problem of race is akin to our problem of caste. Where others
have reviewed similar issues in great detail, it behooves us to
learn from their mistakes as well as accomplishments.
Mr. R. Venkataraman, former President of India in a
foreword to a book of eminent constitutional expert Dr. L.M.
Singhvi “Democracy And Rule of Law : Foundation And
Frontiers”, has aptly observed which reads as under:
“Society progresses only by exchange of thoughts and ideas.
Imagine what a sorry state the world would have been in had
not thoughts and ideas spread to all corners of the globe.
Throughout history, philosophers, reformers, thinkers, and
scholars have recorded their thoughts, regardless of whether
they were accepted or not in their times, and thus contributed
towards progress of humankind. India was the first to
encapsulate this seminal global thought. The Rig Veda says:
Ano bhadrah Krtavo yantu Viswatah
Let noble thought come to us from every side.”
8) With respect to OBC identification, was the
Reservation Act’s delegation of power to the Union
Government excessive?
271.It is not an excessive delegation. I agree with the Chief
Justice’s reasoning at para 185 of his judgment.
9) Is the impugned legislation invalid as it fails to
set a time-limit for caste-based reservation?
272.It is not invalid because it fails to set a time-limit. Given
the Parliament’s history of extending time-limits on other
reservation schemes, there is much force to the argument that
the Parliament will forever continue to extend reservations. As
noted above, it is consistent with our constitutional goal of
achieving a classless/casteless society that a time-limit be set.
But I am bound by Sawhney I and believe that only a larger
bench could make such a ruling. A larger bench could
certainly hold that only economic criteria could be used to
identify SEBCs and that it should be done by a certain date.
10) At what point is a student no longer
Educationally Backward and thus no longer eligible
for special provisions under 15(5)?
273.Once a candidate graduates from a university, he must
be considered educationally forward. Senior counsel for
petitioners, Mr. P.P. Rao, contended that those who have
completed Plus 2 should be considered educationally forward.
In other words, they would no longer be eligible for reservation
in university or post-graduate studies. There is some force in
this argument where only 18% in the relevant age-group have
completed Plus 2. From this vantage point, this means that
they are educationally elite. But the answer to most questions
in law is not so simple. The answer often depends on the
circumstances surrounding the issue. In the marketplace, a
candidate who has completed higher secondary education
cannot be considered “forward”. The real value of the higher
secondary degree is that it is a prerequisite for college
admissions. The general quality of education imparted upto
Plus 2 is of extremely indifferent quality and apart from that,
today some entry-level Government positions only accept
college graduates. One is educationally backward until the
candidate has graduated from a university. Once he has, he
shall no longer enjoy the benefits of reservation. He is then
deemed educationally forward. For admission into Master’s
programmes, such as, Master of Engineering, Master of Laws,
Master of Arts etc., none will be a fortiori eligible for special
benefits for admission into post graduation or any further
studies thereafter.
11.Would it be reasonable to balance OBC
reservation with societal interests by instituting
OBC cut-off marks that are slightly lower than that
of the general category?
274.Balaji (supra) concluded that reservation must be
reasonable. The Oversight Committee has made a
recommendation that will ensure the same. At page 34 of
Volume I of its Report, the Oversight Committee recommended
that institutions of excellence set their own cut off marks such
that quality is not completely compromised. Cut offs or
admission thresholds as suggested by the Oversight
Committee are reproduced:
“4.4.2 The Committee recognizes that those
institutions of higher learning which have established a global
reputation (e.g. IITs, IIMs, IISc, AIIMS and other such
exceptional quality institutions), can only maintain that if the
highest quality in both faculty and students is ensured.
Therefore, the committee recommends that the threshold for
admission should be determined by the respective institutions
alone, as is done today, so that the level of its excellence is not
compromised at all.
4.4.3 As regards ‘cut-offs’ in institutions other than
those mentioned in para 7, these may be placed somewhere
midway between those for SC/ST and the unreserved
category, carefully, calibrated so that the principles of both
equity and excellence can be maintained.
4.4.4 The Committee strongly feels that the students
who currently tend to get excluded must be given every single
opportunity to raise their own levels of attainment, so that
they can reach their true potential. The Government should
invest heavily in creating powerful, well designed and executed
remedial preparatory measures to achieve this objective fully.”
275.Standards of excellence however should not be limited to
the best aided institutions. The Nation requires that its
citizens have access to quality education. Society as a whole
stands to benefit from a rational reservation scheme.
276.Finding 68% reservation in educational institutions
excessive, Balaji at pages 470-471 (supra) admonished States
that reservation must be reasonable and balanced against
other societal interests. States have “… to take reasonable
and even generous steps to help the advancement of weaker
elements; the extent of the problem must be weighted, the
requirements of the community at large must be borne in
mind and a formula must be evolved which would strike a
reasonable balance between the several relevant
considerations.” To strike such a balance, Balaji slashed the
impugned reservation from 68 to less than 50%.
277.Balaji thus serves as an example in which this Court
sought to ensure that reservation would remain reasonable.
We heed this example. There should be no case in which the
gap of cut off marks between OBC and general category
students is too large. To preclude such a situation, cut off
marks for OBCs should be set no lower than 10 marks below
the general category.
278.To this end, the Government shall set up a committee to
look into the question of setting the OBC cut off at nor more
than 10 marks below that of the general category. Under such
a scheme, whenever the non-creamy layer OBCs fail to fill the
27% reservation, the remaining seats would revert to general
category students.
SUMMARY OF FINDINGS
1A. Whether the creamy layer be excluded from the
93
rd
Amendment (Reservation Act) ?
Yes, it must. The 93
rd
amendment would be ultra vires and
invalid if the creamy layer is not excluded.
See paras 22, 25, 27, 30, 34, 35, 43, 44.
1B. What are the parameters for creamy layer
exclusion?
For a valid method of creamy layer exclusion, the Government
may use its post-Sawhney I criteria as a template. (See: Office
Memorandum dated 8-9-1993, para 2(c)/Column 3). I urge
the Government to periodically revise the O.M. so that
changing circumstances can be taken into consideration while
keeping our constitutional goal in view.
I further urge the Government to exclude the children of
former and present Members of the Parliament and Members
of Legislative Assemblies and the said O.M. be amended
accordingly.
See paras 55-57.
1C. Is creamy layer exclusion applicable to SC/ST?
In Indra Sawhney-I, creamy layer exclusion was only in
regard to OBC. Justice Reddy speaking for the majority at
para 792 stated that “this discussion is confined to Other
Backward Classes only and has no relevance in the case of
Scheduled Tribes and Scheduled Castes”. Similarly, in the
instant case, the entire discussion was confined only to Other
Backward Classes. Therefore, I express no opinion with
regard to the applicability of exclusion of creamy layer to the
Scheduled Castes and Scheduled Tribes.
See para 34.
2. Can the Fundamental Right under Article 21A
be accomplished without great emphasis on
primary education?
No, it cannot.
An inversion in priorities between higher and
primary/secondary education would make compliance with
Article 21A extremely difficult. It is not suggested that higher
education needs no encouragement or that higher education
should not receive more funds, but there has to be much
greater emphasis on primary education. Our priorities have to
be changed. Nothing is really more important than to ensure
total compliance of Article 21A. Total compliance means good
quality education is imparted and all children aged six to
fourteen regularly attend schools. I urge the Government to
implement the following:
The current patchwork of laws on compulsory education is
insufficient. Monetary fines do not go far enough to ensure
that Article 21A is implemented. The Central Government
should enact legislation that:
(a) provides low-income parents/guardians with
financial incentives such that they may afford to send their
children to schools;
(b) criminally penalizes those who receive financial
incentives and despite such payment send their children to
work;
(c) penalizes employers who preclude children from
attending schools;
(d) the penalty should include imprisonment; the
aforementioned Bill would serve as an example. The State is
obligated under Article 21A to implement free and compulsory
education in toto.
(e) until we have accomplished for children from six
to fourteen years the object of free and compulsory education,
the Government should continue to increase the education
budget and make earnest efforts to ensure that children go to
schools and receive quality education;
(f) The Parliament should fix a deadline by which
time free and compulsory education will have reached every
child. This must be done within six months, as the right to
free and compulsory education is perhaps the most important
of all the fundamental rights. For without education, it
becomes extremely difficult to exercise other fundamental
rights.
See paras 126-131.
3.Does the 93
rd
Amendment violate the Basic
Structure of the Constitution by imposing
reservation on unaided institutions?
Yes, it does. Imposing reservation on unaided
institutions violates the Basic Structure by stripping citizens
of their fundamental right under Article 19(1)(g) to carry on an
occupation. T.M.A. Pai and Inamdar affirmed that the
establishment and running of an educational institution falls
under the right to an occupation. The right to select students
on the basis of merit is an essential feature of the right to
establish and run an unaided institution. Reservation is an
unreasonable restriction that infringes this right by destroying
the autonomy and essence of an unaided institution. The
effect of the 93
rd
Amendment is such that Article 19 is
abrogated, leaving the Basic Structure altered. To restore the
Basic Structure, I sever the 93
rd
Amendment’s reference to
“unaided” institutions.
See paras 132-182.
4.Whether the use of caste to identify SEBCs
runs afoul of the casteless/classless society, in
violation of Secularism.
Sawhney I compels me to conclude that use of caste is valid.
It is said that if reservation in education is to stay, it should
adhere to a basic tenet of Secularism: it should not take caste
into account. As long as caste is a criterion, we will never
achieve a casteless society. Exclusively economic criteria
should be used. I urge the Government that for a period of ten
years caste and other factors such as
occupation/income/property holdings or similar measures of
economic power may be taken into consideration and
thereafter only economic criteria should prevail; otherwise we
would not be able to achieve our constitutional goal of
casteless and classless India.
See paras 194, 195, 231, 248, 251.
5.Are Articles 15(4) and 15(5) mutually
contradictory, such that 15(5) is unconstitutional?
I am able to read them harmoniously.
See paras 252-256.
6.Does Article 15(5)’s exemption of minority
institutions from the purview of reservation violate
Article 14 of the Constitution?
Given the inherent tension between Articles 29(2) and
30(1), I find that the overriding constitutional goal of realizing
a casteless/classless society should serve as a tie-breaker.
We will take a step in the wrong direction if minority
institutions (even those that are aided) are subject to
reservation.
See paras 268-269.
7) Are the standards of review laid down by the
U.S. Supreme Court applicable to our review of
affirmative action under Art 15(5) and similar
provisions?
The principles enunciated by the American Supreme Court,
such as, “Suspect Legislation” “Narrow Tailoring” “Strict
Scrutiny” and “Compelling State necessity” are not strictly
applicable for challenging the impugned legislation.
Cases decided by other countries are not binding but do have
great persuasive value. Let the path to our constitutional
goals be enlightened by experience, learning, knowledge and
wisdom from any quarter. In the words of Rigveda, let noble
thoughts come to us from every side.
See para 183.
8) With respect to OBC identification, was the
Reservation Act’s delegation of power to the Union
Government excessive?
It is not an excessive delegation. With respect to this issue, I
agree with the reasoning of the Chief Justice in his judgment.
9) Is the impugned legislation invalid as it fails to
set a time-limit for caste-based reservation?
It is not invalid because it fails to set a time-limit.
See para 272.
10) At what point is a student no longer
Educationally Backward and thus no longer eligible
for special provisions under 15(5)?
Once a candidate graduates from a university, the said
candidate is educationally forward and is ineligible for special
benefits under Article 15(5) of the Constitution for post
graduate and any further studies thereafter.
See para 273.
11.Would it be reasonable to balance OBC
reservation with societal interests by instituting
OBC cut-off marks that are slightly lower than that
of the general category?
It is reasonable to balance reservation with other societal
interests. To maintain standards of excellence, cut off marks
for OBCs should be set not more than 10 marks out of 100
below that of the general category.
See paras 274-278.
These Writ Petitions and Contempt Petition are accordingly
disposed of. In the facts and circumstances, the parties are
to bear their own costs.
…...............................J.
(Dalveer Bhandari)
New Delhi;
April 10, 2008
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