Ashoka Kumar Thakur v. Union Of India And Others

Guide to Salient Points in the Headnote

I. Main rulings of law on validity of Ninety-third Constitution Amendment i.e Art. 15(5), and impugned Act 5 of 2007 Shortnotes A and B ……………………… p. 1 II. Effect of Caste-based Reservation on society in the short and long term Shortnotes C and D …………………… pp. 3, 4 III. Role of elementary education in eradicating caste and rendering reservation unnecessary—Implementation of Art. 21-A Shortnotes G, H, I and J ………………….. pp. 10-12 IV. Criteria for identification of OBCs/SEBCs using caste, and purely economic criteria—Permissibility and extent Shortnotes L and N …………………. pp. 19, 26 V. Absence of time-limit for expiry of reservation under Act 5 of 2007 Shortnote O ………………………… p. 31 VI. Exclusion of creamy layer from OBCs/SEBCs, and from SCs & STs Shortnotes P, Q, R, S, T and YE ……………. pp. 35, 36 and 52 VII. Parameters for identification of creamy layer Shortnote W ………………………… p. 43 VIII. Standard to determine educational backwardness: Graduates if “backward” Shortnotes X and Y ……………………… p. 45 IX. Validity of quantum of reservation provided under Act 5 of 2007 Shortnotes YA and YB …………………… p. 48 X. Cut-off marks for Reserved Category candidates Shortnote YC ……………………….. p. 50 XI. Reversion of unfilled reserved seats to General Category Shortnote YD ………………………. p. 50 XII. Art. 15(5) if violates Basic Structure of the Constitution Shortnotes YF, YM, YO, YP and YU ……………….. pp. 53, 60, 63, 64, 68 XIII. Arts. 15(5) & (4)—If contradictory, and exclusion of minority institutions if violative of Art. 14 Shortnote YV ………………………. p. 68 XIV. Art. 15(5) if inserted in violation of Art. 368(2) proviso Shortnote YX ………………………. p. 71 XV. Applicability of US case law on Race-based Affirmative Action in Indian context Shortnote YY ……………………….. p. 72

C. Constitution of India — Preamble and Arts. 14, 15 & 16 and 19 and 25, 26 & 27 and 368 — Goal of casteless society — If envisaged by the Constitution — Affirmative action — Permissible scope — Limits imposed by basic structure of Constitution — Role of education in eradicating caste — Reservation based on caste (in tertiary education) as a mode for affirmative action — Efficacy and justifiability of — Violation of ethos of secularism, if any — Effect of (such) reservation on society in the short and long term — Affirmative action if to be extended in favour of the economically backward, irrespective of caste — Scope of judicial review

— Per Balakrishnan, C.J, 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 the duty of State to promote positive measures to remove barriers of inequality — Reservations provide that extra advantage to persons who, without such support, can forever dream of university education, without ever being able to realise it — This advantage is necessary — However, the fact remains that any reservation or preference shall not lead to reverse discrimination

— Per Pasayat and Thakker, JJ., the ultimate objective of the Constitution is to see that no person gets discriminated against because of his caste — Hence, it cannot be said that the ultimate objective is not a casteless society — 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 affirmative action does not infringe the principles of equality and/or unreasonably restrain or restrict other fundamental freedoms and that it does not violate the basic structure of the Constitution — It needs no emphasis that individual rights are superior to the social rights — All fundamental rights are to be read together — Classification on the basis of castes in the long run has the tendency of inherently becoming pernicious — Therefore, the test of reasonableness has to apply — When the object is elimination of castes and not perpetuation thereof, to achieve the goal of a casteless society and a society free from discrimination based on caste, judicial review within permissible limits is not ruled out — Fact of no exclusion from the list of OBCs, noted — If reservation does not work, then alternative methods can be adopted — 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 — A balance in this respect is crucial

— Per Raveendran, J., to have a casteless society will be the realisation of a noble dream — The Constitution does not specifically prescribe a casteless society nor tries to abolish caste — But by barring discrimination in the name of caste and by providing for affirmative action the 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 — That will be the beginning for a casteless egalitarian society — The immediate effect of caste-based reservation has been rather unfortunate — Post reservation, there is a tendency even among the “forward” to seek the “backward” tag — When more and more people aspire for “backwardness” instead of “forwardness” the country itself stagnates — If there is no review of caste-based reservation, the country will become a caste divided society permanently — Instead of developing a united society with diversity, we will end up as a fractured society forever suspicious of each other — While affirmative action 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 — Reservation is a temporary crutch and should not become a permanent liability

— Per Bhandari, J., our constitutional goal is to establish a casteless and classless society — The original Framers of the Constitution did not intend to provide caste-based reservation in education to the backward classes — In inserting Art. 15(4) by the First Constitutional Amendment, Members of the First Parliament deviated from their own goal set in the Constituent Assembly — Art. 15(4) strengthens, rather than weakening casteism — Indra Sawhney case, 1992 Supp (3) SCC 217, upheld this decision of the First Parliament and has bound this Bench — Caste matters and will continue to matter as long as society is divided along caste lines — Implementation of Act 5 of 2007, instead of leading to a casteless India, would lead to a caste-ridden society — However, no right of action arises out of the goal to promote a casteless society, but is founded in secularism — Caste-based quotas are State-sponsored discrimination against those who are not deemed socially and educationally backward classes (SEBCs) since caste is a by-product of religion — Though affirmative action is allowed, there a point at which it violates secularism — Reservation based on caste strengthens communalism — Reservation sends the wrong message as everybody is keen to get the benefit of backward class status — Non-SEBCs naturally seek SEBC status so that they may capture SEBC benefits — Upper castes, denied a seat, harbour ill will against lower castes who gain admission (whether it was by merit or not) — These feelings are the basis for discriminatory action in social life

D. Constitution of India — Arts.. 14, 15 and 16 — Reservation in education — Negative effects on the beneficiaries of reservation — Per Bhandari, J., reservation may lead to negative discriminatory action inasmuch as General Category candidates might look down upon or question the qualifications of SC/ST/OBC professionals: though the individual may have earned admission on merit alone, others may presume that reservation was a factor — Further, given that reserved category students gain admission with lower marks, it stands to reason that they would exhibit less confidence in their studies when pitted against the General Category — Research on this issue conducted in the US shows that reservation impedes academic achievement by undermining reserved category students' confidence — Thus, reservation produces consequences that may outweigh its supposed benefits

E. Constitution of India — Preamble and Arts. 14, 15, 16, 25 to 30, 51-A(e) & 325 and 368 — Secularism — Inherence of, in basic structure of the Constitution, re-emphasised — Reclarified that Constitution (Forty-second Amendment) by inserting “secularism” into the Preamble, only made explicit what was already implicit (per Bhandari, J.)

F. Constitution of India — Preamble, Pt. III and Arts.. 14, 19 & 21 — Primacy of individual rights over social rights — Per Pasayat and Thakker, JJ., it needs no emphasis that individual rights are superior to the social rights — Civil and Human Rights

The Constitution (Ninety-third Amendment) Act, 2005 and the enactment of the Central Educational Institutions (Reservation in Admission) Act, 2006 (5 of 2007) (“Act 5 of 2007”) giving reservation to Other Backward Classes (OBCs), Scheduled Castes (SCs) and Scheduled Tribes (STs) were impugned in these writ petitions.

Article 15(5) as inserted by the Constitution (Ninety-third Amendment) Act, 2005 reads as follows:

“15(5). 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 insofar as such special provisions relate to their admission to 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.”

Section 3 of Act 5 of 2007 provided for reservation of 15% seats for Scheduled Castes, 7½% seats for Scheduled Tribes and 27% for Other Backward Classes in only such State-aided institutions which were defined as “Central Educational Institutions” in Section 2(d) and not any other private unaided institutions. The percentage of reservation to various groups such as Scheduled Castes, Scheduled Tribes and Other Backward Classes was with reference to the annual permitted strength of the Central Educational Institutions. Section 5 of the Act mandated a proportionate increase of seats in the Central Educational Institutions over three years to provide for the abovesaid reservation.

Though the reservation in favour of SCs and STs was not opposed by the petitioners, the reservation of 27% in favour of Other Backward Classes/Socially and Educationally Backward Classes was strongly opposed by various writ petitioners in these cases.

Unanimously upholding the reservation in favour of OBCs subject to the exclusion of the “creamy layer”, the Supreme Court

Held :

Per Balakrishnan, C.J

Per Balakrishnan, C.J

Reservation for admission in educational institutions or for public employment has been a matter of challenge in various litigations in the Supreme 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.

(Para 1)

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 realise it. This advantage is necessary. However, the fact remains that any reservation or preference shall not lead to reverse discrimination.

(Paras 6 and 9)

IInd Constituent Assembly Debates, 317 (Wednesday, 22-1-1947); Vth Constituent Assembly Debates, 2 (Thursday, 14-8-1947); XIth Constituent Assembly Debates, 979 (Friday, 25-11-1949); Lauterpacht: An International Bill of the Rights of the Man (New York, Columbia University Press, 1945); Universal Declaration of Human Rights, Preamble, G.A Res. 217-A, UN GAOR, 3rd Session, Part 1, at 71, UN Doc A/810 (1948); Lyndon B. Johnson: Harvard University Commencement Address, To Fulfill These Rights, 4-6-1965; Justice Ruth Bader Ginsburg at the 51st Cardozo Memorial Lecture in 1999, referred to

Arjun Sen Gupta Report on “Conditions of Work and Promotion of Livelihood in the Unorganised Sector” (July 2007), cited

Per Pasayat and Thakker, JJ.

The respondents submit that while 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 caste. 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 leveller. In that sense, the ultimate object is that every Indian citizen could 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 against because of his caste. If that be so, it would not be right to say that the ultimate objective is not a casteless society.

(Para 238)

As has been conceded, 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 restrains or restricts other fundamental freedoms and that it does not violate the basic structure of the Constitution.

(Para 325)

Classification 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 caste, judicial review within the permissible limits is not ruled out. But at the same time compelling State interest can be considered while assessing backwardness.

(Para 328)

The ultimate object is to bring those who are disadvantaged to a level where they no longer continue to be disadvantaged. 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 from the list of OBCs raises a doubt about the real concern to remove inequality. The ultimate objective is to bring people to a particular level so that there can be equality of opportunity. In that context, one has to keep in view the justice and redress principles. There should not be mere equality in law but equality in fact.

(Paras 278 and 279)

Per Pasayat and Thakker, JJ.

The necessary ingredients of equality essentially involve equalisation of unequals. Linked with this question the problem posed by the petitioners is whether reservation is the only way to equalise 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.

(Para 280)

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 overburdened 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.

(Para 319)

Per Raveendran, J.

Caste has divided this country for ages. It has hampered its growth. To have a casteless society will be the realisation 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. But post reservation, there is a tendency even among those who are considered as “forward”, to seek the “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 period and if reservation is continued, the country will become a caste divided society permanently. Instead of developing a united society with diversity, we will end up as a fractured society forever 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 is a temporary crutch. Such crutch by unnecessary prolonged use, should not become a permanent liability. It is significant that the Constitution does not specifically prescribe a casteless society nor tries to abolish caste. But by barring discrimination in the name of caste and by providing for affirmative action the 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. That will be a beginning for a casteless egalitarian society.

(Para 666)

Per Bhandari, J.

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. It is our bounden duty and obligation to examine the validity of the Ninety-third Constitution Amendment in the background of the Preamble and the ultimate goal that runs through the pages of the Constitution. If we permit this impugned legislation to be implemented, instead of a casteless and classless India, we would be left with a caste-ridden society.

(Paras 364, 365 and 368)

The original Framers of the Constitution did not intend to provide caste-based reservation in education to the backward classes. Soon after the Constitution was adopted, the very same Framers acted quickly to permit reservation for SC/ST/SEBCs in education by adding Article 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. The First Parliament, by enacting Article 15(4), deviated from the original Framers' intent. They passed an amendment that strengthens, rather than weakening casteism. In Indra Sawhney case, 1992 Supp (3) SCC 217, the Supreme Court upheld this decision and bound us to a certain degree on this point. Indra Sawhney case has tied our hands. 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.

(Paras 557, 562 to 568, 574 and 605)

Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385, followed

Per Bhandari, J.

The intention of Article 15 is to prohibit discrimination against citizens. This intention was only qualified for women and children. In fact, the original Framers rejected an amendment that would have watered down the prohibition in Article 15 against discrimination. A Member of the Constituent Assembly, Prof. K.T Shah sought special protection for SC/STs. Prof. Shah effectively wanted the equivalent to Articles 15(4) and 15(5) in the Constitution but did not get it. His amendment was negated. Dr. Ambedkar disagreed with Prof. Shah on the limited ground that it would have given States the green light to segregate SC/STs from General Category students. Dr. Ambedkar 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.

(Paras 569 to 571)

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/STs) in education were to dilute Article 15(1)'s prohibition against discrimination based on caste.

(Paras 573 and 574)

Constituent Assembly Debates, Vol. 7, pp. 650, 655-56, 661 and 664 dated 29-11-1948 and p. 681 dated 30-11-1948; Vol. 8, 1949, pp. 936-41; Vol. 9, pp. 645, 663-64 dated 24-8-1949 and p. 702 dated 26-8-1949; Granville Austin: Indian Constitution: Cornerstone of a Nation, pp. 26, 27, fn. 5, and p. 323, 1st Edn., 1972; Parliamentary Debates on 13-6-1951 and 29-5-1951 respectively, referred to

In the instant case, the Union of India argued that Article 15(4), inserted by 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 of amending the Constitution. He and other Members of the First Parliament, as distinguished from the original Framers who had drafted the original Constitution, did not hide their disapproval of Champakam Dorairajan, AIR 1951 SC 226. Article 15(4) was introduced 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), 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/STs in education (and a fortiori if not for them, nor for SEBCs). What “should be intended” is a far cry from what they specifically enacted and specifically rejected. It follows that Article 15(4) deviated from the original Framers' original intent.

(Para 574)

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 unamended 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. Articles 25 to 30 may be referred to. With rights come responsibilities. One of them is found at Article 51-A(e). Relying on these provisions, S.R Bommai, (1994) 3 SCC 1, declared secularism “… a constitutional goal and a basic feature of the Constitution. 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. Secularism was very much embedded in their constitutional philosophy. 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, it is noted that the Forty-second Amendment, which formally inserted secularism into the Preamble, merely made explicit what was already implicit.

(Paras 603 and 604)

S.R Bommai v. Union of India, (1994) 3 SCC 1, relied on

Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225; Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1 : AIR 1975 SC 2299 : (1976) 2 SCR 347, referred to

The use of caste to identify SEBCs runs afoul of the casteless/classless society, in violation of secularism. 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. Reservation based on caste strengthens communalism. Reservation sends the wrong message. Everybody is keen to get the benefit of backward class status. Non-SEBCs naturally seek SEBC status so that they may capture SEBC benefits. Upper castes, denied a seat, harbour ill will against lower castes who gain admission (whether it was by merit or not). These feelings are the basis for discriminatory action in social life.

(Paras 637, 371 and 576)

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 that recent research shows that reservation impedes academic achievement by undermining reserved category students' confidence. That preferences harm students' self-images, and this harm has practical costs in terms of grades and graduation rates. The point is that reservation produces consequences that may outweigh its supposed benefits.

(Para 577)

The Affirmative Action Myth, Executive Summary, No. 540, 6-4-2005, pp. 9-10, relied on

One of the prominent advocates of reservation later realised that the policy did more harm than good. Prime Minister Nehru wrote the following letter to Chief Ministers on 27-6-1961: “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.”

(Para 585)

G. Constitution of India — Arts.. 21-A, 45, 46 & 51-A(k) and Art. 15(5) — Importance and vital significance of the fundamental right under Art. 21-A to the Nation's progress — Effectuation of right to free and compulsory education under Art. 21-A — Necessity of — Role of primary/secondary education in eradicating caste and rendering reservation unnecessary

— Primary/secondary education and special provisions for socially and educationally backward classes in higher education — Balancing of priorities and expenditure between — Discretion open to Government in respect of — Financial constraints as an excuse — Non-availability of — Extent of judicial intervention permissible

— Held (per Bhandari, J.; Pasayat and Thakker, JJ. impliedly in concurrence), the root cause of social and educational backwardness is poverty — Reservation sends the wrong message as 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 Art. 21-A — We must provide educational opportunities 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 most important fundamental right may be Art. 21-A, since without Art. 21-A 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 — Education should be compulsory because 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 — Without education a citizen may never come to know of his other rights — Nor would a citizen have the resources to adequately enforce them without education — This is ultimately why the judiciary must oversee Government spending on free and compulsory education

— The State is under a mandatory obligation to implement Art. 21-A on a priority basis — There is no corresponding constitutional right to higher education — An inversion in priorities between higher and primary/secondary education would make compliance with Art. 21-A extremely difficult — Spending on higher at the expense of primary/secondary education raises the spectre of conflict with Art. 21-A — According to HRD Annual Reports read with the Union of India Budget 2008-2009, roughly seven times as much is spent on individual college students than the individual primary or secondary student — In a country where only 18% of those in the relevant age group make it to higher education, this state of affairs is unacceptable — Statistics showing the dismal state of affairs with regard to availability of educational opportunities and the quality of education being imparted, discussed in detail — Our priorities have to be changed and the State has to place much greater emphasis on allocating more funds for primary and secondary education — Time and again, the Supreme Court has observed that the State cannot avoid its constitutional obligation on the ground of financial liabilities — Though the power of the public purse is vested in Parliament, nevertheless it remains within the judiciary's scope to ensure that the fundamental right under Art. 21-A is upheld — Supreme Court will not ignore the Art. 21-A right to education, when a dearth of quality schooling puts it in jeopardy

— Held (per Pasayat and Thakker, JJ.), though the Government has a large area of discretion in choosing priorities, the fundamental stress has to be on primary and secondary education so that a proper foundation for higher education can be effectively laid — It is not merely the existence of schemes but the effective implementation thereof that is important — Better coordination between the funds provider and utiliser is necessary — Lastly, financial constraint cannot be a ground to deny fundamental rights — Education — Rights and Entitlements — Fundamental right to education

H. Constitution of India — Art. 21-A — Total compliance with — What is — Necessity of providing quality education — Held (per Bhandari, J.; Pasayat and Thakker, JJ. impliedly in concurrence), total compliance with Art. 21-A means that good quality education is imparted and all children aged six to fourteen regularly attend schools — Art. 21-A's reference to “education” must mean something — Implied within “education” is the idea that it will be quality education — Current performance indicates that much improvement needs to be made before “education” can be qualified with “quality” — The ultimate goals to be achieved under Art. 21-A would be (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 — Statistics showing dismal state of affairs with regard to availability of educational opportunities and the quality of education being imparted, discussed in detail — Contribution of Sarva Shiksha Abhiyan noted — Education — Rights and Entitlements

I. Constitution of India — Arts.. 21-A, 45, 46 and 51-A(k) — Provision of compulsory education under Art. 21-A — Persons responsible for ensuring that children attend school — Per Bhandari, J., Art. 21-A read with Art. 51-A(k) distributes the obligation of ensuring that children regularly attend school between parents, the State and potential employers of children — Role and efficacy of attendance officers and the police in the Indian context, discussed — Education — Delhi Primary Education Act, 1960 (39 of 1960) — S. 7

J. Constitution of India — Art. 21-A — Implementation of fundamental right under — Per Bhandari, J., various measures to be taken — Need for following carrot and stick approach i.e financial incentives for ensuring school attendance and strict criminal penalties for preventing or not ensuring school attendance — Time-frame/deadline to be set by which Art. 21-A to be fully implemented

— Detailed recommendations given as to: (1) enactment of comprehensive Central legislation pertaining to compulsory education that penalises employers who prevent, and parents who do not ensure that children attend school regularly, both monetarily and with imprisonment (though importation of practice of imposing fines upon the children themselves, as followed in United States, cautioned against); (2) provision of financial incentives to poor families for regular school attendance by their children, and imposition of criminal penalties on those parents availing the incentives but not sending children to school; (3) continual and consistent increases in budgetary allocation for primary and secondary education and provision of material and infrastructural support by State until full compliance with Art. 21-A is achieved; and (4) ensuring that quality education is provided

— Failure of existing patchwork of State legislation on compulsory education reviewed and explained — Efficacy of financial incentive programmes to ensure school attendance of children from poor families in various countries and Indian States of Gujarat and Haryana, highlighted

— Emphasised, that the giving of financial incentives for ensuring school attendance was the most important aspect of implementing Art. 21-A, given that in India the single most important reason why poor parents did not send children to school was that without the children working there was not enough to eat for the family

— Union of India directed to set a time-limit within which Art. 21-A was going to be completely implemented — Such time-limit to be set within six months, else, to invite intervention by the Supreme Court — Education — Rights and Entitlements — Compulsory Education Bill, 2006 — S. 7 — T.N Compulsory Elementary Education Act, 1994 (33 of 1995) — Delhi Primary Education Act, 1960 (39 of 1960) — S. 18

K. Constitution of India — Pt. III — Effectuation of fundamental rights — Financial constraints faced by State, held (per Pasayat and Thakker, JJ. and Bhandari, J.), cannot be a ground to deny fundamental rights

Per Pasayat and Thakker, JJ.

According to the National Institute of Educational Planning and Administration (in 2003) the state of affairs at the primary level of education was as under:

(i) About 63,000 schools in the country do not have a school building and are operating in tents or under the trees;

(ii) In about 71,000 primary schools — no classroom;

(iii) In about 95,000 primary schools — single classroom;

(iv) In about 8000 primary schools — no teacher;

(v) In about 1,15,000 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 about 85,000 schools — no blackboard;

(viii) In more than 1,00,000 schools — no electricity.

Apart from the above, according to ncert (in 1998), only about 35% of government schools had safe drinking water, 13% had urinals and 5% had urinals for girls and only 6% had a lavatory.

It is true that there has been considerable effort in providing adequate education to all citizens. But one question still remains to be answered. There has to be balancing of priorities. The Government has said that this balancing is prerogative of the Government. It is true that the Government has a large area of discretion in choosing its priorities. But one factor cannot be lost sight of. The fundamental stress has to be on elementary education. If that is done, as a consequence there would be reduction in the need for spending more money on higher education. Stress on primary and elementary education would be a leap forward towards higher education. There has been considerable number of dropouts in the higher classes. This is a reality 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. Stress has to be on primary and secondary education so that proper foundation for higher education can be effectively laid.

[Paras 284 and 358(8)]

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 utilisation of the funds are also relevant factors. It appears that better coordination between the funds provider and the utiliser is necessary.

(Para 345)

Unni Krishnan, J.P v. State of A.P, (1993) 1 SCC 645; Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161 : 1984 SCC (L&S) 389; Brown v. Board of Education, 9 8 L Ed 873 : 347 US 483 (1953); AIIMS Students' Union v. AIIMS, (2002) 1 SCC 428; Mohini Jain v. State of Karnataka, (1992) 3 SCC 666, relied on

Per Bhandari, J.

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 under Article 45 of the Constitution.

(Para 443)

P.L Mehta and Rakhi Poonga: Free and Compulsory Education: Genesis and Execution of Constitutional Philosophy, New Delhi (1997) pp. 42-47; Lok Sabha Debates, 28-11-2001, Vol. 20, p. 476; Report of the D.S Kothari Commission, 1964-1966, referred to

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

(Para 578)

Per Bhandari, J.

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 21-A. The State is duty-bound to implement this Article on a priority basis. There has been grave laxity in its implementation. This laxity adversely affects almost every walk of life. Nothing is more important for the Union of India than to implement this critical Article.

(Para 369)

The Union of India should appreciate in proper perspective that the root cause of social and educational backwardness is poverty. All efforts have to be made to eradicate this fundamental problem. 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 21-A. 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 most important fundamental right may be Article 21-A, which, in the larger interest of the nation, must be fully implemented. Without Article 21-A 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 the Government spending on free and compulsory education.

(Paras 371 and 482)

Education should be compulsory because 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 21-A 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.

(Para 457)

Bandhua Mukti Morcha v. Union of India, (1997) 10 SCC 549, followed

Article 21-A's reference to “education” must mean something. The Article seeks to usher in “the ultimate goal of providing universal and quality education”. 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”.

(Paras 489 and 490)

The fundamental right under Article 21-A cannot be accomplished without great emphasis on primary education. An inversion in priorities between higher and primary/secondary education would make compliance with Article 21-A extremely difficult. 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 21-A's mandate. According to HRD Annual Reports read with the Union of India Budget 2008-2009, we spend roughly seven times as much on the individual college student than the individual primary or secondary student. 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 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 with Article 21-A. Total compliance means good quality education is imparted and all children aged six to fourteen regularly attend schools. A sizeable portion of the population cannot be precluded from realising the benefits of development when almost everyone acknowledges that the children are our future.

(Paras 634, 431, 432 and 490)

The specific question that has been raised by the petitioners is: should the Rs 17,000 crores allocated for the purpose of implementing Act 5 of 2007 for higher education be spent for the said purpose when primary/secondary schooling is in such bad shape? Spending on higher at the expense of lower education raises the spectre of conflict with Article 21-A.

(Para 419)

[Ed.: There is one golden lining though in Act 5 of 2007 for the most ardent opponent of reservation: that within a time-limit of three years all affected Central Educational Institutions have to increase their capacity by 50% i.e proportionate with the extent of reservation to be provided.]

Under Article 21-A, 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 21-A. Many countries spend 6% to 8% of gross domestic product on education. Our expenditure on education is just 4% of GDP.

(Paras 420 and 422)

Unni Krishnan, J.P v. State of A.P, (1993) 1 SCC 645, relied on

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 16-1-2008.) The survey covered 16,000 villages. As Pratham indicates, there are an estimated 14 crore children in the age group 6 to 14 years in primary schools. Of these 3 crores cannot read, 4 crores can recognise a few alphabets, 4 crores can read some words, and 3 crores can read paragraphs. Over 5.5 crores of these children will not complete four years of school, eventually adding to the illiterate population of India. The national literacy rate is 65%.

(Para 423)

Twenty four districts with more than 50,000 out-of-school children means we have failed Twenty four times over. Seventy one 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 7.5 lakhs. Moreover, it goes without saying that children need proper facilities. Today, just about 60% of schools can boast of a usable toilet.

(Para 424)

The quality of education is equally troubling. For Standards I and II, only about 78% of students surveyed could recognise letters and read words or more in their own language. In 2006, it was even worse—only 73% could do so. It is disheartening to peruse the statistics for Standards III to V, where only about 66% could read a Standard I text or more in their own language in 2007. As Pratham stated what should be more worrying though is the fact that in Class 2, only 9% children can read the text appropriate to them, and 60% cannot even recognise numbers between 10 and 99. In the third to fifth standards, 40% of students surveyed could not subtract. The latest figures indicate that 58% children in the fifth standard read at the level appropriate for second standard students. In both 2005 and 2007, only 74% of enrolled children were in attendance.

(Paras 425 and 426)

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 it is found necessary to review government spending on education—especially at the primary/secondary level.

(Para 430)

In addition to free education and/or other financial assistance, students should also be given books, uniforms and any other necessary benefits so that the object of Article 21-A is achieved. Time and again, the Supreme Court, in a number of judgments, has observed that the State cannot avoid its constitutional obligation on the ground of financial inabilities.

(Para 435)

Taking the country's rampant poverty into account, free education up to the age of 14 years is absolutely imperative. There is no other way for the poor to climb their way out of this predicament. This has also been suggested in the recommendations of the Kothari Commission on education in 1966. The Central Government has made some effort to fulfil its obligation under Article 21-A with regard to “free education”. Sarva Shiksha Abhiyan is one such example.

(Paras 433 and 453)

The Government should suitably revise budget allocations for education. The priorities have to be set correctly. 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 Parliament. Nevertheless, it remains within the judiciary's scope to ensure that the fundamental right under Article 21-A of Part III is upheld. The Supreme Court will not ignore the Article 21-A right to education, when a dearth of quality schooling puts it in jeopardy. Lacklustre performance in primary/secondary schools is caused in part because the 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.

(Paras 482 and 483)

Hussainara Khatoon (IV) v. Home Secy., State of Bihar, (1980) 1 SCC 98 : 1980 SCC (Cri) 40; M.C Mehta v. Union of India, (1998) 6 SCC 63, relied on

From Article 51-A(k), it becomes clear that parents would be responsible for sending their children to school. Article 51-A(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 21-A read with Article 51-A(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.

(Paras 450 and 452)

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.

(Para 461)

When it comes to “compulsory education”, the Central Government has made no such effort as the Sarva Shiksha Abhiyan. 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. Though, Section 7 of the Compulsory Education Bill, 2006 does envisage simultaneously targeting 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. It must also be remembered that that it is not only the child who fails to attend but also the child who fails to enrol that has violated an attendance law. “Compulsory” connotes enforcement. Parliament rejected an amendment that would have saved parents from penal penalties. Those who wanted a safe haven from penal sanction for parents lost. From this vote, we know that Parliament intended to allow for future legislation that would impose penal sanctions for violations of legislation under Article 21-A.

(Paras 453, 455, 456, 471 and 484 to 486)

The Indian States' laws on compulsory education fail on two accounts: (1) they are too lenient to have a deterrent effect i.e no State has provided for an adequate punishment whose effect would be to deter citizens from committing a violation, and (2) the legislation is not adequately implemented or enforced, in part, because it does not require police officers to do the job. Section 7, T.N Compulsory Elementary Education Act, 1994 and Section 18(1), Delhi Primary Education Act, 1960 may be referred to in this regard. Some form of compulsory education has been on the statute books since 1917. However, 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. In order to give effect to the constitutional right under Article 21-A, 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 21-A.

(Paras 473 and 475 to 480)

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, it is doubtful that one school official could sufficiently do the work of inspecting places of employment for children who have violated attendance laws. Indeed, existing legislation in India already envisages the employment of attendance officers: Section 7 of the Delhi Primary Education Act, 1960 may be referred to. Yet, there is nothing to suggest that these employees have adequately dealt with truancy.

(Paras 469 and 470)

In the name of transparency, students' attendance records could be made available to administrators and parents.

(Para 439)

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.

(Para 460)

Parents send children to work in India 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. Financial assistance or incentives must be given. Only then may the Government actively enforce compulsory attendance legislation. The carrot must come before the stick. If there is no financial incentive programme in place, the Government cannot expect the poorest of the poor to send their children to school.

(Paras 468, 470, 479 and 481)

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 dropout rates up to 75% among beneficiaries in its more recent stage. 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. As a result, the dropout rate has come down from about 35% in 1997 to about 3% in 2006 in Classes 1-5. In girls, this rate has dropped from about 39% to about 6% in the same time period. Also students could 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. In January 2008 the Government of Haryana 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.

(Paras 436 to 439)

Ultimately, this is the most important aspect of implementing Article 21-A. More than punishment, creative incentive programmes will go a long way in the implementation of the fundamental right enshrined under Article 21-A.

(Para 440)

Bandhua Mukti Morcha v. Union of India, (1997) 10 SCC 549; M.C Mehta v. State of T.N, (1996) 6 SCC 756 : 1997 SCC (L&S) 49, relied on

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; The Compelling Effects of Compulsory Schooling: The Evidence from Canada, Prof. Oreopoulos, p. 23, Canadian Journal of Economics, [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]; The Parliamentary Debates on Article 21-A, p. 523, 28-11-2001 at Vol. 20, Nos. 6-10; UNESCO's Education for All, Global Monitoring Report (2008) at p. 115; Incentives announced to curb dropout rate, The Tribune, 5-1-2008, relied on

[Ed.: For a recent review of the working of Brazil's Bolsa Família (“Family Fund”) anti-poverty scheme see “Happy Families” in The Economist issue dated 7-2-2008. Bolsa Família works as follows. Where a family earns less than 120 reais ($68) per head per month, mothers are paid a benefit of up to 95 reais on condition that their children go to school and take part in government vaccination programmes. Municipal governments do much of the collection of data on eligibility and compliance, but payments are made by the federal government. Each beneficiary receives a debit card which is charged up every month, unless the recipient has not met the necessary conditions, in which case (and after a couple of warnings) the payment is suspended.]

The State is obligated under Article 21-A to implement free and compulsory education in toto. A carrot and stick approach appears to be the best way to implement Article 21-A.

[Paras 487, 635, 487(d) and 635(d)]

In sum,

(1) The Central Government should enact legislation that provides low income parents/guardians with financial incentives such that they may afford to send their children to school. The State cannot cite budgetary constraints or lack of resources as an excuse for failing to provide financial assistance/incentives to poor parents. The said legislation should criminally penalise those who receive financial incentives and despite such payment send their children to work.

[Paras 487(a) & (b), 635(a) & (b), 482 and 488]

Hussainara Khatoon (IV) v. Home Secy., State of Bihar, (1980) 1 SCC 98 : 1980 SCC (Cri) 40, relied on

(2) The Central Government should enact legislation that penalises employers who preclude children from attending school or completing homework.

[Paras 487(c), 482 and 635(c)]

(3) The Central Government should enact legislation that the penalty should include imprisonment; the Compulsory Education Bill, 2006 would serve as an example.

[Paras 487(d) and 635(d)]

(4) The Central Government should enact legislation that 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.

[Paras 487(e) and 635(e)]

(5) It has become necessary that the Government set a realistic target within which it must fully implement Article 21-A regarding free and compulsory education for the entire country. 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. The Union of India is directed to set a time-limit within which Article 21-A 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.

[Paras 370, 482, 487(f) and 635(f)]

L. Constitution of India — Arts.. 15(5) and 15(1) — “Socially and educationally backward classes” (SEBCs) eligible for special provisions under Art. 15(5) — Identification of — Caste if, and extent to which, may be used as a criterion — Non-caste based groups, if also eligible for special provisions under Art. 15(5) — Scope of judicial review — Nature of protection available under Art. 15(5), if class or group and not individual based — Validity of Act 5 of 2007 in this regard

— Held (per curiam), classification of SEBCs cannot be done exclusively on the basis of caste as it would violate Art. 15(1) — Poverty, social backwardness, economic backwardness, all are criteria for determination of backwardness — However, following Indra Sawhney case, 1992 Supp (3) SCC 217, reiterated, caste can be a starting point, though the “creamy layer” must be excluded from the caste found to be socially and educationally backward

— Per Balakrishnan, C.J, as laid down in Indra Sawhney case, 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 an eligible backward class of citizens — Caste plays an important role in determining the backwardness of the individual — In the present case, it was clear from the material on record that the lists of SEBCs were being prepared validly, not solely on the basis of caste, but after consideration of detailed data with regard to social, educational and economic criteria — Therefore Act 5 of 2007 is not invalid for this reason

— Per Pasayat and Thakker, JJ., caste is the starting point, subject of course to the parameters that the caste itself satisfies the test of backwardness — In Indra Sawhney case it has been held that individual surveys as to backwardness are out of the question since Art. 16(4) speaks of class protection and not individual protection — Thus, if the real backwardness is found in a caste, it can be considered backward — Similarly if real backwardness is found in any other group, section or class they too can be treated as backward — Furthermore, there has to be proper identification of OBCs — For the same, the Commission set up pursuant to Indra Sawhney case, 1992 Supp (3) SCC 217, has to work more effectively and not merely decide applications for inclusion or exclusion of castes — A notification should be issued by the Union of India, after exclusion of the creamy layer for which necessary data must be obtained by the Central Government from the State Governments and UTs — Such notification would be open to challenge on the ground of wrongful exclusion or inclusion — Also, a periodic revision of the backward class lists by the Central Government is a statutory mandate [see also Shortnote O, below]

— Per Raveendran, J., it is clear from Indra Sawhney case that caste itself is not the final destination, that is, caste by itself cannot be determinative of social and educational backwardness, though caste can be the starting point for determination of backwardness

— Per Bhandari, J., if 49.5% caste-based reservation was upheld in Indra Sawhney case for government employment, it follows that 49.5% caste-based reservation is permitted in aided educational institutions — Indra Sawhney case compels the conclusion that use of caste is valid — Hence, there is no choice but to uphold the impugned legislation by which the Government may still identify SEBCs, in part, by using caste — Education — Central Educational Institutions (Reservation in Admission) Act, 2006 (5 of 2007) — Ss. 2(g) and 3

M. Constitution of India — Arts.. 14, 15 and 16 — “Class” and “caste” — Nature, scope and meanings of — Interrelationship between, discussed — Held (per curiam), class and caste are not synonymous — Words and Phrases

Per Balakrishnan, C.J

The Founding Fathers of the Constitution were 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 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.

(Para 2)

There is a long jurisprudential history as to whether caste can play any role in determining the socially and educationally backward classes of citizens (SEBCs). 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. Determination of backward class cannot be exclusively based on caste. Poverty, social backwardness, economic backwardness, all are criteria for determination of backwardness. However, in Indra Sawhney case, 1992 Supp (3) SCC 217, which is a nine-Judge Bench decision, it was finally settled that the “caste” could be a beginning point and a determinative factor in identifying the socially and educationally backward classes of citizens.

(Paras 133, 145 and 168)

In Indra Sawhney case 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 low 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.

(Para 146)

The petitioners contended that caste cannot be used even as one of the criteria for identifying 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. 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.

(Paras 147 and 148)

“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. According to the early sociological theories, the term “caste” has been used to mean “class”, hereditary or rigid status, and hereditary occupation. Degrees of rigidity mark the difference between class and caste systems. 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”.

(Paras 149 and 152 to 154)

Per Balakrishnan, C.J

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 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. 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.

(Para 156)

In India, caste, in a socio-organisational manner would mean that it is not characterised merely by the physical or occupational characteristics of the individuals who make it up; rather, it is characterised 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.

(Para 157)

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 organisational control. Thus the manner in which the caste is closed both in the organisational and biological sense causes it to differ from social class. Moreover, its emphasis upon ritual and regulations pertaining to cleanliness and purity differs radically from the secular nature and informality of social class rules. In a social class, the exclusiveness would be based primarily on status. Social classes divide homogeneous populations into layers of prestige and esteem, and the members of each layer are able to circulate freely with it. In a caste, however, the social distance between members is due to the fact that they belong to entirely different organisations. It may be said, therefore, that a caste is a horizontal division and a class, a vertical division.

(Paras 158 and 159)

Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385, followed

M.R Balaji v. State of Mysore, AIR 1963 SC 649 : 1963 Supp (1) SCR 439; R. Chitralekha v. State of Mysore, AIR 1964 SC 1823 : (1964) 6 SCR 368; P. Rajendran (Minor) v. State of Madras, AIR 1968 SC 1012 : (1968) 2 SCR 786; A. Peeriakaruppan (Minor) v. State of T.N, (1971) 1 SCC 38; State of Kerala v. N.M Thomas, (1976) 2 SCC 310 : 1976 SCC (L&S) 227; K.C Vasanth Kumar v. State of Karnataka, 1985 Supp SCC 714, clarified and relied on

State of U.P v. Pradip Tandon, (1975) 1 SCC 267, limited

State of Madras v. Champakam Dorairajan, AIR 1951 SC 226 : 1951 SCR 525; Triloki Nath Tiku v. State of J&K, AIR 1967 SC 1283 : (1967) 2 SCR 265; Triloki Nath Tiku v. State of J&K, AIR 1969 SC 1 : (1969) 1 SCR 103; T. Devadasan v. Union of India, AIR 1964 SC 179 : (1964) 4 SCR 680; State of A.P v. P. Sagar, AIR 1968 SC 1379 : (1968) 3 SCR 595, referred to

C.A Rajendran v. Union of India, AIR 1968 SC 507 : (1968) 1 SCR 721; B. Venkataramana v. State of Madras, AIR 1951 SC 229 : (1951) 1 MLJ 625, cited

W.H.R Rivers: Social Organization (New York, 1924), p. 143; Robert H. Lowie: The Origin of the State (New York, 1927), p. 21; Robert H. Lowie: An Introduction to Cultural Anthropology (New York, 1940), p. 268; Kimball Young: An Introductory Sociology (New York, 1924); Cecil Clare North: Social Differentiation (Chapel Hill, 1926), p. 254; R.N MacIver: Society: A Textbook of Sociology (New York 1937), p. 171.9; Charles Horton Cooley: Social Organization (New York, 1909), p. 215; G.S Ghurye: Caste and Race in India (Bombay, 1979), p. 6; Mysore Census, 1901, p. 400, referred to

In the present case the Solicitor General 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. 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 finalised 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. 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.

(Paras 160 to 162)

Thus, 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. Therefore, Act 5 of 2007 is not invalid for this reason.

(Paras 162 to 164 and 225)

Per Pasayat and Thakker, JJ.

In respect of identifying Other Backward Classes, the first sentence of para 782 of Indra Sawhney case, 1992 Supp (3) SCC 217, lays emphasis to begin somewhere—with some group, class or section. It also states that there is no set or recognised 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 explicit identifiable social classes or groupings. Again in para 783 of Indra Sawhney, 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 backward. 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 Indra Sawhney case.

(Para 347)

Much emphasis has been laid on the use of the word “only” in Articles 15(1) and 16(2). It is to be noted that the respondents contend that where it is demonstrated that caste is not the only consideration the permissible provision will operate. 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 case. In that case caste becomes the relevant factor. In para 782 of Indra Sawhney case 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 emphasised 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.

(Paras 349 and 351)

Per Pasayat and Thakker, JJ.

In the Constitution for the purposes of both Articles 15 and 16, caste is not synonymous with class and this is clear from paras 782 and 783 of Indra Sawhney case. However, when creamy layer is excluded from the caste, the same becomes an identifiable class for the purpose of Articles 15 and 16.

[Para 358(7)]

Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385, clarified and followed

M. Nagaraj v. Union of India, (2006) 8 SCC 212; R. Chitralekha v. State of Mysore, AIR 1964 SC 1823 : (1964) 6 SCR 368; A. Peeriakaruppan (Minor) v. State of T.N, (1971) 1 SCC 38; K.S Jayasree v. State of Kerala, (1976) 3 SCC 730, relied on

M.R Balaji v. State of Mysore, AIR 1963 SC 649 : 1963 Supp (1) SCR 439; P. Rajendran (Minor) v. State of Madras, AIR 1968 SC 1012 : (1968) 2 SCR 786; State of A.P v. P. Sagar, AIR 1968 SC 1379 : (1968) 3 SCR 595; A. Peeriakaruppan (Minor) v. State of T.N, (1971) 1 SCC 38; State of A.P v. U.S.V Balram, (1972) 1 SCC 660; Janki Prasad Parimoo v. State of J&K, (1973) 1 SCC 420 : 1973 SCC (L&S) 217; State of Kerala v. N.M Thomas, (1976) 2 SCC 310 : 1976 SCC (L&S) 227; State of U.P v. Pradip Tandon, (1975) 1 SCC 267; Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India, (1981) 1 SCC 246 : 1981 SCC (L&S) 50; B. Venkataramana v. State of Madras, AIR 1951 SC 229 : (1951) 1 MLJ 625, referred to

Narayan Vasudev Phadke v. Emperor, AIR 1940 Bom 379, cited

Classification 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 caste, judicial review within the permissible limits is not ruled out. But at the same time compelling State interest can be considered while assessing backwardness. The impact of poverty on backwardness cannot be lost sight of. Economic liberation and freedom are also important.

(Para 328)

A periodic revision of the Backward Class lists by the Central Government is a statutory mandate. The petitioners have highlighted that there is no exclusion and on the other hand there has been inclusion. 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 National Commission for Backward Classes Act, 1993. 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. 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.

(Paras 309 and 310)

The National Commission for Backward Classes Act, 1993 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 of the respondents 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 undetermined data. It may be as rightly contended by 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.

(Para 312)

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 is to be maintained without definite data the rights of those who belong to the unfortunate categories of other economic backward classes deserve to be considered, else there shall be no definite determination of number of Other Backward Classes. While fixing the measure for creamy layer it would not be difficult also to fix the norms for the socially and economically backward classes, rather the latter exercise would be easier to undertake.

(Para 334)

There has to be proper identification of Other Backward Classes (OBCs). For identifying backward classes, the Commission set up pursuant to the directions of the Supreme Court in Indra Sawhney case, 1992 Supp (3) SCC 217, has to work more effectively and not merely decide applications for inclusion or exclusion of castes. 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.

[Paras 358(4) and (5)]

Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385, clarified and followed

Per Raveendran, J.

Identification of Other Backward Classes solely on the basis of caste will be unconstitutional. A caste can be the starting point for determination of backwardness. But it is clear from Indra Sawhney, 1992 Supp (3) SCC 217, that caste itself is not the final destination, that is, a caste by itself, cannot be determinative of social and educational backwardness.

(Paras 650 and 664)

I agree that the petitions shall stand disposed of in the manner stated by Balakrishnan, C.J

(Paras 647 and 667)

Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385; M.R Balaji v. State of Mysore, AIR 1963 SC 649 : 1963 Supp (1) SCR 439; R. Chitralekha v. State of Mysore, AIR 1964 SC 1823 : (1964) 6 SCR 368; State of A.P v. P. Sagar, AIR 1968 SC 1379 : (1968) 3 SCR 595; Janki Prasad Parimoo v. State of J&K, (1973) 1 SCC 420 : 1973 SCC (L&S) 217; State of Kerala v. N.M Thomas, (1976) 2 SCC 310 : 1976 SCC (L&S) 227, followed

A. Peeriakaruppan (Minor) v. State of T.N, (1971) 1 SCC 38; P. Rajendran (Minor) v. State of Madras, AIR 1968 SC 1012 : (1968) 2 SCR 786, explained and followed

K.C Vasanth Kumar v. State of Karnataka, 1985 Supp SCC 714, held, limited

Per Raveendran, J.

Per Bhandari, J.

The Supreme Court has interpreted “backward classes” to include caste as one of the criteria of classification under Article 16(4). Caste falls under class according to Indra Sawhney case, 1992 Supp (3) SCC 217, paras 859(3)(a) and (b). If 49.5% caste-based reservation was upheld in Indra Sawhney case for government employment, it follows that 49.5% caste-based reservation is permitted in aided educational institutions. While I am compelled by Indra Sawhney case 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. Indra Sawhney case compels me to conclude that use of caste is valid. Thus, I have no choice but to uphold the impugned legislation by which the Government may still identify SEBCs, in part, by using caste.

(Paras 556, 557, 580, 602 and 637)

Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385, followed

N. Constitution of India — Art. 15(5) — “Socially and educationally backward classes” (SEBCs) eligible under Art. 15(5) for special provisions — Identification of — Social and educational backwardness if may be determined purely on economic criteria — Scope of economic criteria to be employed — Extent of population to be covered/quantum of reservation in case of reservation based on solely economic criteria — Easing of the identification load in case purely economic criteria are used — Negation of the (horrifying) need for a caste-based census — Advantage of the simultaneous removal of the creamy layer

— Recommended (per Pasayat and Thakker, JJ.; Bhandari, J. impliedly in concurrence), passage of time shows that the occupational label has lost much of its significance — A blind eye cannot be turned to the poor, those covered by the all-encompassing expression “economically backward classes” — 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 — If the creamy layer has to be excluded the economically backward classes have to be included — That would be social balancing and would be giving true meaning to 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, instead of lightening the society from castes or classes it will be overburdened — Timely steps in this regard will save Indian society and democracy from a catastrophe of collapse because of something which the Constitution wants to obliterate — Hence, to strike a constitutional balance it is necessary and desirable to earmark certain percentage of seats out of the permissible limit of 27% for socially and economically backward classes — Further, while considering the question as to whether the quota of 27% fixed for OBCs under S. 3 of Act 5 of 2007 is to be maintained without definite data, the rights of those who belong to the categories of other economic backward classes deserve to be considered — Further, 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

— Per Bhandari, J., 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 — Rather, the valid determinant is economic status — The data shows that income is a better determinant of educational achievement than caste — Therefore, economic criteria should be the sole means by which beneficiaries of special provisions under Art. 15(5) are to be identified — Economic criteria however must include occupation and landholdings, because income alone is insufficient — Using purely economic criteria would lighten the identification load, as ascertaining caste would no longer be required — The problem of too many people becoming eligible on the basis of economic criteria would only arise if reservation was made based on the group's proportion of the total population — If economic reservation were limited to a reasonable number, it could be upheld — Hence, the Government is urged that for a period of 10 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

— Per Balakrishnan, C.J (disagreeing on this point), as cautioned in Indra Sawhney case, 1992 Supp (3) SCC 217, backwardness should be traditional, based on occupations and their social acceptability and educational standard — Mere educational or social backwardness cannot be sufficient as it would enlarge the field, thus frustrating the very purpose of the constitutional goal — The contention that many persons have shifted their traditional occupations and hence caste cannot be used even as one of the criteria for identifying SEBCs cannot be accepted — Even persons who have become doctors, engineers and lawyers continue to suffer social segregation based on caste — Education — Central Educational Institutions (Reservation in Admission) Act, 2006 (5 of 2007) — Ss. 2(g) and 3

Per Balakrishnan, C.J

In Indra Sawhney case, 1992 Supp (3) SCC 217, 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 low 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.

(Para 146)

Per Balakrishnan, C.J

The petitioners contended that caste cannot be used even as one of the criteria for identifying 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. 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.

(Paras 147 and 148)

Per Pasayat and Thakker, JJ.

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 caste, judicial review within the permissible limits is not ruled out. But at the same time compelling State interest can be considered while assessing backwardness. The impact of poverty on backwardness cannot be lost sight of. Economic liberation and freedom are also important.

(Para 328)

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. At some point of time occupation was the background for determination of castes. Maybe, at some point of time it depended on the income of the individual. But it appears to have taken a disastrous turn with difference of status of various castes leading to social inequality. But passage of time shows that the occupational label has lost much of its significance. But at the same time the poor and downtrodden who belong to the caste of their own were the founders of poor.

(Para 312)

In Indra Sawhney case 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 unmistakably recognised that economic backwardness is a factor which can never be lost sight of.

(Para 316)

One must take life in one's stride, let today embrace the past with remembrance and the future with longing. Don't look for the path far away, the path exists under your feet. What is past and what cannot be prevented should not be grieved for.

(Paras 313 to 315)

A Nelson eye cannot be turned to the poor, those covered by all-encompassing expression “economically backward classes”. This class of people cannot be kept out of the mainstream of governmental priorities and policies because they belong to a particular caste. 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.

(Para 317)

The haves and the have nots have to coexist. 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 to 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 overburdened 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.

(Para 319)

Per Pasayat and Thakker, JJ.

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 is to be maintained without definite data the rights of those who belong to the unfortunate categories of other economic backward classes deserve to be considered, else there shall be no definite determination of number of Other Backward Classes. While fixing the measure for creamy layer it would not be difficult also to fix the norms for the socially and economically backward classes, rather the latter exercise would be easier to undertake.

(Para 334)

To strike the constitutional balance it is necessary and desirable to earmark certain percentage of seats out of permissible limit of 27% for socially and economically backward classes.

[Paras 357 and 358(6)]

K.S Jayasree v. State of Kerala, (1976) 3 SCC 730, relied on

R. Chitralekha v. State of Mysore, AIR 1964 SC 1823 : (1964) 6 SCR 368, cited

William Cobbett: Advice to Young Men, referred to

Per Bhandari, J.

Chinnappa Reddy, J.'s view in K.C Vasanth Kumar case, 1985 Supp SCC 714, that caste can be a factor in identifying SEBCs, as upheld in Indra Sawhney case, 1992 Supp (3) SCC 217, should not hold the day forever. Instead, the view of Desai, J. in K.C Vasanth Kumar case should be revived. Desai, J. wanted to achieve two goals with one fell swoop of the pen. To these ends, he would have applied economic criteria to remove the creamy layer and simultaneously rid reservation of caste. 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.

(Paras 588, 589, 599 and 602)

Constituent Assembly Debates, Vol. 7, pp. 701-02 dated 30-11-1948; Constituent Assembly Debates, Vol. 10, p. 978 on 25-11-1949, referred to

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. It is not known what proportion of the population is OBC because the census does not count OBCs. It has been the Central Government policy practically since Independence to avoid the question. Taking an OBC census is horrifying because it encourages the Government to enact policy on the basis of caste. Doing so only furthers the caste divide, contrary to our constitutional aim. This has been recognised 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 goes to the poor, the group for which Act 5 of 2007 was purportedly passed.

(Paras 579 and 580)

Marc Galanter: “Who are the OBCs?” An Introduction to a Constitutional Puzzle, (1978) 13 Economic and Political Weekly, 1812 at p. 1824 at fn 78, referred to

Per Bhandari, J.

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 (6 lakh 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 castes, 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). 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. Economic criteria target the poorest of the poor, irrespective of caste. These criteria also simultaneously remove the creamy layer.

(Paras 561, 591 and 584)

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

(Para 590)

Using purely economic criteria would lighten the identification load, as ascertaining caste would no longer be required. The respondents and others level a common criticism against the exclusive use of economic criteria. Most of the country is poor. 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 M.R Balaji, AIR 1963 SC 649 , cap of 50%. If economic reservation were limited to a reasonable number, it could be upheld.

(Para 597)

In addition to the problem of extending the benefit to too many, Chinnappa Reddy, J. in K.C Vasanth Kumar case could not contemplate the idea of bestowing reservation on an economically poor Brahmin. But can one call a Brahmin sweeper, poor by occupation, socially forward? To do so would be a stretch.

(Para 598)

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. 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. 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 one based on caste, the relevant question is whether caste precludes one from rising. If caste does not, then what does? The answer is simple: money.

(Paras 558 to 560)

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. As long as caste is a criterion, we will never achieve a casteless society. The Government is urged 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.

(Paras 637, 590 and 605)

K.C Vasanth Kumar v. State of Karnataka, 1985 Supp SCC 714, discussed and relied on

V.V Giri v. D. Suri Dora, AIR 1959 SC 1318 : (1960) 1 SCR 426; State of Kerala v. N.M Thomas, (1976) 2 SCC 310 : 1976 SCC (L&S) 227; Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India, (1981) 1 SCC 246 : 1981 SCC (L&S) 50; M.R Balaji v. State of Mysore, AIR 1963 SC 649 : 1963 Supp (1) SCR 439, relied on

Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385, opinion of Kuldip Singh, J., referred to

O. Education — Central Educational Institutions (Reservation in Admission) Act, 2006 (5 of 2007) — Ss. 3 and 2(g) — Reservation of 27% seats for OBCs in State-aided institutions under — Absence of time-limit for expiry of — Effect on validity of Act 5 of 2007 — Periodic review of backward class lists — Need for — Scope of judicial review

— Held (per curiam), Act 5 of 2007 is not invalid for the reason that there is no time-limit prescribed for its operation but majority of the Judges are of the view that the review should be made as to the need for continuance of reservation at the end of 5 years

— Per Balakrishnan, C.J, it is the constitutional duty of Parliament to review the situation as and when social conditions require — There is also the safeguard of judicial review and the court can say that the affirmative action has carried out its mission and is thus no longer required — Thus, there could be a periodic review after a period of 10 years

— Per Pasayat and Thakker, JJ., there has to be more effective implementation of the National Commission for Backward Classes Act, 1993 — The exercise to be undertaken under S. 11 of the said 1993 Act has to be not only effective but also result oriented — The “leap” of affirmative action envisaged under S. 3 of Act 5 of 2007 has to end somewhere — It cannot hang in the air as there is nothing immortal in this world — It would therefore be rational and logical (1) to restrict operation of the impugned statute to a period of 10 years from its inception; (2) there must be periodic review as to the desirability of continuing operation of the statute every 5 years; and (3) a periodic revision of the backward class lists by the Central Government is a statutory mandate: the periodicity should be five years

— Per Raveendran, J., a genuine measure of reservation may not be open to challenge when made — But during a period of time if the reservation is continued in spite of achieving its object the law which was valid when made may become invalid — 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 of caste-based reservation, the country will become a caste divided society permanently — Instead of developing a united society with diversity we will end up as a fractured society forever suspicious of each other — While affirmative action 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 — Reservation is a temporary crutch and should not become a permanent liability

— Per Bhandari, J., one need not look past Parliament's affinity with extending time-limits on reservation to see that only the judiciary can put a stop to caste-based reservation — However, Indra Sawhney case, 1992 Supp (3) SCC 217, precludes this Bench from forcing the Government to wean itself off caste-based reservation by a certain date and only a larger Bench could make such a ruling — After a lapse of 10 years, special preference or reservation should be granted only on the basis of economic criteria as long as grave disparity and inequality persist — Constitution of India — Arts.. 14, 15 and 16 — Temporal validity limit for affirmative action measures — Achievement of aims of affirmative action — Effect — Scheduled Castes, Scheduled Tribes and Other Backward Classes — National Commission for Backward Classes Act, 1993 — S. 11

Per curiam

Act 5 of 2007 is not invalid for the reason that there is no time-limit prescribed for its operation but majority of the Judges are of the view that the review should be made as to the need for continuance of reservation at the end of 5 years.

(Para 671)

[Ed.: See also Art. 14, ‘(b)(2) Temporal reasonableness—Effect of passage of time’ pp. 758, et seq., in Vol. 4, Complete Digest of Supreme Court Cases, 2nd Edn. and the recently decided landmark case of Satyawati Sharma v. Union of India, (2008) 5 SCC 287, Shortnote B.]

Per Balakrishnan, C.J

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 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. Parliament can certainly review the situation and even though a specific class of citizens is in the legislation it is the constitutional duty of Parliament to review such affirmative action as and when the social conditions require. 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 Parliament could examine whether the reservation has worked for the good of the country. Therefore, 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.

(Paras 213, 214 and 231)

Per Balakrishnan, C.J

Per Pasayat and Thakker, JJ.

One of the grey areas focused on by the petitioners and the respondents is the ever perplexing question “how long”. Admittedly, there is no deletion from the list of Other Backward Classes. It goes on increasing. 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. If it is true, as contended by the respondents that backwardness has increased instead of decreasing, then one is bound to raise eyebrows as to the effectiveness of providing reservations or quotas.

(Para 277)

The ultimate objective is to bring people to a particular level so that there can be equality of opportunity. In that context, one has to keep in view the justice and redress principles. There should not be mere equality in law but equality in fact.

(Paras 278 and 279)

A periodic revision of the Backward Class lists by the Central Government is a statutory mandate. The petitioners have highlighted that there is no exclusion and on the other hand there has been inclusion. 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 National Commission for Backward Classes Act, 1993. 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. 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.

(Paras 309 and 310)

The National Commission for Backward Classes Act, 1993 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.

(Para 312)

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 (1) restrict operation of the impugned statute for a period of 10 years from its inception; (2) there must be periodic review as to the desirability of continuing operation of the statute: this shall be done once in every 5 years; and (3) there has to be periodic review of the classes who can be covered by the statute: the periodicity should be 5 years.

[Paras 281, 357 and 358(2)]

Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385; M.R Balaji v. State of Mysore, AIR 1963 SC 649 : 1963 Supp (1) SCR 439; K.C Vasanth Kumar v. State of Karnataka, 1985 Supp SCC 714; Motor General Traders v. State of A.P, (1984) 1 SCC 222, relied on

State of Kerala v. N.M Thomas, (1976) 2 SCC 310 : 1976 SCC (L&S) 227; GM, Southern Railway v. Rangachari, AIR 1962 SC 36 : (1962) 2 SCR 586, cited

Bhaiyalal Shukla v. State of M.P, AIR 1962 SC 981 : 1962 Supp (2) SCR 257; M.K Prithi Rajji v. State of Rajasthan, Civil Appeal No. 327 of 1956 decided on 2-11-1960; State of M.P v. Gwalior Sugar Co. Ltd., Civil Appeals Nos. 98 & 99 of 1957 decided on 30-11-1960, cited

Oversight Committee Report, referred to

Per Pasayat and Thakker, JJ.

Per Raveendran, J.

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 period and if reservation is continued, the country will become a caste divided society permanently. Instead of developing a united society with diversity, we will end up as a fractured society forever 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 is a temporary crutch. Such crutch by unnecessary prolonged use, should not become a permanent liability.

(Para 666)

The Act is not invalid merely because no time-limit is prescribed for caste-based reservation, but preferably there should be a review after 10 years to take note of the change of circumstances. A genuine measure of 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.

(Para 651)

Per Bhandari, J.

One need not look past Parliament's affinity with extending time-limits on reservation to see that only the judiciary can put a stop to caste-based reservation. History has shown that it is not politically feasible for Parliament to say “no” to reservation—especially when caste is involved. However, the impugned legislation is not invalid as it fails to set a time-limit for caste-based reservation. Indra Sawhney case, 1992 Supp (3) SCC 217, precludes this Bench from forcing the Government to wean itself off caste-based reservation by a certain date and 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. In order to achieve a casteless and classless society, after a lapse of 10 years, special preference or reservation should be granted only on the basis of economic criteria as long as grave disparity and inequality persist.

(Paras 601, 602, 625, 564 and 565)

Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385, followed

P. Constitution of India — Arts.. 14, 15 and 16 — Reservation of 27% seats for OBCs in State-aided institutions under S. 3 r/w S. 2(g) of Act 5 of 2007 — Exclusion of the “creamy layer” from a caste when SEBCs are determined by giving importance to caste — Mandatory requirement of — Reasons therefor, discussed in detail

— Shortage of “non-creamy” SEBC candidates in case of exclusion of the creamy layer — Irrelevance of [See also Shortnote YD, below]

— Held (per curiam), following Indra Sawhney case, 1992 Supp (3) SCC 217, the “creamy layer” is to be excluded from a caste deemed to be an SEBC — The “Other Backward Classes” defined in S. 2(g) of Act 5 of 2007 is to be read as “socially and educationally backward classes” other than SCs and STs, determined as “Other Backward Classes” by the Central Government and if such determination is with reference to caste, it shall exclude the “creamy layer” from among such caste

— Per Balakrishnan, C.J, when socially and educationally backward classes are determined by giving importance to caste, the segment of that caste that is economically advanced does 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 — All the reasonings set out in Indra Sawhney case with respect to the exclusion of the “creamy layer” from the benefit of reservation under Art. 16(4) are equally applicable to reservation or any special action contemplated under Art. 15(5) — The contention is rejected that if the “creamy layer” is excluded there may practically be 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 or get admission even within the reserved quota

— Per Pasayat and Thakker, JJ., non-exclusion of the creamy layer cannot be countenanced — By inclusion of the creamy layer a fresh lease of life is given to those who should have been left out — Their continuance would mean keeping the weakest amongst the weak always weak and leaving the fortunate ones to enjoy the benefits

— Per Raveendran, J., when Indra Sawhney case has held that the creamy layer should be excluded for purposes of Art. 16(4), dealing with “backward class” which is much wider than “socially and educationally backward class” occurring in Arts. 15(4) and 15(5), it goes without saying that without the removal of the creamy layer there cannot be a socially and educationally backward class — Hence failure to exclude the creamy layer from the benefits of reservation would render the reservation for OBCs under Act 5 of 2007 unconstitutional

— Per Bhandari, J., the benefits of reservation must be delivered to only those who really deserve them — This can only be done if we remove the creamy layer — In Indra Sawhney case, it has been aptly observed that reservation is given to backward classes until they cease to be backward, and not indefinitely — If either condition (social or educational backwardness) goes unmet, one cannot qualify for the benefit of reservation as SEBC — Being socially advanced, the creamy layer is not socially backward — Creamy layer inclusion robs the poor and gives to the rich — With the creamy layer excluded, poor OBCs would compete with poor OBCs: the playing field levelled — Further, the contention that exclusion of the creamy layer would lead to shortage of candidates who can afford to pay for higher education cannot be accepted, firstly since this does not seem to be borne out by the data, and secondly, this argument is self-defeating: if the creamy layer gets most of the benefit of reservation, why have reservations in the first place? — Before carrying out constitutional amendments the Union of India must clearly target its beneficiaries — The law should not be made first and the beneficiaries targeted only thereafter — Lastly, exclusion of the creamy layer does not violate the group rights of the classes sought to be benefited by Art. 15(5) for the group must contain only those individuals that belong to the group — Education — Central Educational Institutions (Reservation in Admission) Act, 2006 (5 of 2007) — Ss. 3 and 2(g)

Q. Constitution of India — Arts.. 14, 15 & 16 and 368 — Reservation of 27% seats for OBCs in State-aided institutions under S. 3 r/w S. 2(g) of Act 5 of 2007 — Non-exclusion of creamy layer if violates the basic structure of the Constitution

— Held (per Pasayat and Thakker, JJ. and Bhandari, J.), non-exclusion of the creamy layer and forward castes from the list of backward classes will not only breach Art. 14 but also violate the basic structure of the Constitution — Per Bhandari, J., the creamy layer must be excluded from the Constitution (Ninety-third Amendment) [as far as SEBCs/OBCs are concerned; no opinion expressed on exclusion of creamy layer amongst SCs and STs: see Shortnote YE, below] — Not even Parliament, by constitutional amendment, could dismantle the basic structure by including the creamy layer in reservation — Hence, the implied inclusion of the creamy layer amongst SEBCs/OBCs in Art. 15(5) is severed

R. Constitution of India — Arts.. 14, 15 and 16 — Exclusion of the “creamy layer” when providing reservation to SEBCs/OBCs by giving importance to caste — Nature of the principle — Per Balakrishnan, C.J, the “creamy layer” principle is applied not as a general principle of equality or reservation but only as a principle of identifying the socially and educationally backward class — Per Raveendran, J., 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 — The determination is not by first identifying a caste as an SEBC and, thereafter, to remove or exclude the creamy layer for the purpose of bestowing benefits flowing to such class — Per Bhandari, J., the principle of creamy layer emanates from the broad doctrine of equality itself — Pasayat and Thakker, JJ., expressing no opinion on this point

S. Constitution of India — Arts.. 368 and 15(5) — Severing of part of constitutional amendment found to be in violation of the basic structure — Test of severability applied to implied inclusion of the creamy layer [amongst OBCs] in Art. 15(5) as the same violated the basic structure of the Constitution (per Bhandari, J.; Pasayat and Thakker, JJ. impliedly in concurrence)

T. Constitution of India — Arts.. 13(2) & 245 and 14, 15 & 16 — Doctrine of severability — Applicability — Severing of the creamy layer from the benefit of reservation conferred on SEBCs under S. 3 of Act 5 of 2007 — Test of severability applied to definition of OBCs in S. 2(g) of Act 5 of 2007 (per curiam)

U. Constitution of India — Arts.. 15(5) & (4) and 16(4) — Nature of right conferred under — Group or class based rather than being individual based — Per Pasayat and Thakker, JJ., in Indra Sawhney case, 1992 Supp (3) SCC 217, it has been held that individual surveys as to backwardness are out of the question since Art. 16(4) speaks of class protection and not individual protection — Per Bhandari, J., exclusion of the creamy layer from a caste identified as an SEBC is consistent with the group rights of the group sought to be benefited by Art. 15(5) — Jurisprudence — Conceptual Jurisprudence — Entitlements — Group rights and individual rights — Interrelationship between, discussed

V. Constitution of India — Arts.. 16(4) and 15(4) & (5) — Relative scope of “backward class” occurring in Art. 16(4) and “socially and educationally backward class” occurring in Arts. 15(4) and (5) — Per Raveendran, J., the latter is wider than the former

Per curiam

Act 5 of 2007 is constitutionally valid subject to the definition of “Other Backward Classes” in Section 2(g) of Act 5 of 2007 being clarified as follows: if the determination of “Other Backward Classes” by the Central Government is with reference to a caste, it shall exclude the “creamy layer” among such caste.

(Para 669)

Per Balakrishnan, C.J

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 has been noticed in Indra Sawhney case, 1992 Supp (3) SCC 217 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.

(Paras 165 and 168)

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 SEBC is poverty. Thus, the “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 Articles 15(4), 15(5) or 16(4) solely on the basis of caste is expressly prohibited by various decisions of the Supreme 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.

(Paras 170 and 171)

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.

(Para 171)

Lastly, the majority in Indra Sawhney case upheld the exclusion of “creamy layer” for the purpose of reservation in Article 16(4). Therefore, this Bench is bound by the larger Bench decision of the Supreme Court in Indra Sawhney case and it cannot be said that the “creamy layer” principle cannot be applied for identifying SEBCs. All the reasonings set out in Indra Sawhney case in respect of the exclusion of the “creamy layer” from the benefit of reservation under Article 16(4) are equally applicable to the reservation or any special action contemplated under Article 15(5). Therefore, it cannot be accepted that if the “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.

(Paras 171 and 173)

Per Balakrishnan, C.J

Hence, “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. 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.

(Paras 176, 226 and 234)

Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385, applied

Indra Sawhney v. Union of India, (2000) 1 SCC 168 : 2000 SCC (L&S) 1, cited

Per Pasayat and Thakker, JJ.

It has been rightly observed in Indra Sawhney case, (2000) 1 SCC 168, whether creamy layer is not excluded or whether forward castes get included 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. 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.

(Para 295)

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. 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 a fresh lease of life is given to those who should have been left out. 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. If the caste system as we know is an anachronism, 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.

(Paras 297 and 298)

Per Pasayat and Thakker, JJ.

Hence, for implementation of the impugned statute creamy layer must be excluded.

[Paras 357 and 358(1)]

Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385; Indra Sawhney v. Union of India, (2000) 1 SCC 168 : 2000 SCC (L&S) 1; Indira Sawhney v. Union of India, (1996) 6 SCC 506 : 1996 SCC (L&S) 1477; Nair Service Society v. State of Kerala, (2007) 4 SCC 1; State of Kerala v. N.M Thomas, (1976) 2 SCC 310 : 1976 SCC (L&S) 227; K.C Vasanth Kumar v. State of Karnataka, 1985 Supp SCC 714, followed

R.M.D Chamarbaugwalla v. Union of India, AIR 1957 SC 628 : 1957 SCR 930; Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225; Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845; Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC 651, relied on

Attorney General for Ontario v. Reciprocal Insurers, 1924 AC 328; Citizens Insurance Co. of Canada v. Parsons, (1881) 7 AC 96 : (1881-85) All ER Rep 1179; Union Colliery Co. of British Columbia Ltd. v. Bryden, 1899 AC 580 (PC); Great West Saddlery Co. v. R., (1921) 2 AC 91 : 1921 All ER Rep 605 (PC); Shankari Prasad Singh Deo v. Union of India, AIR 1951 SC 458 : 1952 SCR 89; Attorney General for the Commonwealth of Australia v. Colonial Sugar Refining Co. Ltd., 1914 AC 237 (PC); Attorney General for Alberta v. Attorney General for Canada, 1947 AC 503 (PC); Hindu Women's Rights to Property Act, In re, 1941 FCR 12; State of Bombay v. United Motors (India) Ltd., AIR 1953 SC 252 : 1953 SCR 1069; Punjab Province v. Daulat Singh, 1946 FCR 1; Romesh Thappar v. State of Madras, AIR 1950 SC 124 : 1950 SCR 594; Chintaman Rao v. State of M.P, AIR 1951 SC 118 : 1950 SCR 759; Indra Sawhney v. Union of India, (1995) 5 SCC 429, cited

In para 782 of Indra Sawhney case, 1992 Supp (3) SCC 217, it has been stated that individual survey is out of question since Article 16(4) speaks of class protection and not individual protection.

(Para 349)

Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385, followed

Per Raveendran, J.

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 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.

(Para 650)

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, to remove or exclude the creamy layer for the purpose of bestowing 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, removing the creamy layer therefrom results in the emergence of compact class which can be termed as a socially and educationally backward class. If the creamy layer is not excluded the benefit of reservation will be appropriated by such advanced sections.

(Para 664)

When Indra Sawhney case, 1992 Supp (3) SCC 217, 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 class” occurring in Articles 15(4) and (5), it goes without saying that without the removal of creamy layer there cannot be a socially and educationally backward class. Therefore, when a caste is identified as a socially and educationally backward caste, it becomes a “socially and educationally backward class” only when it sheds its creamy layer.

(Para 665)

Per Raveendran, J.

Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385, explained and followed

Ashoka Kumar Thakur v. State of Bihar, (1995) 5 SCC 403 : 1995 SCC (L&S) 1248 : (1995) 31 ATC 159; Indira Sawhney v. Union of India, (1996) 6 SCC 506 : 1996 SCC (L&S) 1477; M. Nagaraj v. Union of India, (2006) 8 SCC 212, followed

M.R Balaji v. State of Mysore, AIR 1963 SC 649 : 1963 Supp (1) SCR 439; R. Chitralekha v. State of Mysore, AIR 1964 SC 1823 : (1964) 6 SCR 368; K.C Vasanth Kumar v. State of Karnataka, 1985 Supp SCC 714, referred to

Per Bhandari, J.

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

(Para 373)

The benefits of reservation must be delivered to only those who really deserve them. This can only be done if we remove the creamy layer. 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. The creamy layer must never be included in any affirmative action legislation.

(Paras 366 and 378)

It becomes imperative to gather the original Framers' and the Members of the First Parliament's intention. Members of the Constituent Assembly and the First Parliament were one and the same. But the distinction is necessary to the extent that the First Parliament deviated from its constitutional philosophy. The First Parliament believed that “economic” was included in the “social” portion of “socially and educationally backward”. Had it not been for a desire to achieve symmetry in drafting between the words occurring in Article 340 and the proposed Article 15(4), only “economically” would have been included. Had this been done, the creamy layer would have been excluded ab initio. 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.

(Paras 378 to 380)

Parliamentary Debates on Constitution (First Amendment) Bill, 1-6-1951, pp. 9817 and 9830, relied on

In Indra Sawhney, 1992 Supp (3) SCC 217, the Supreme Court has aptly observed that reservation is given to backward classes until they cease to be backward, and not indefinitely. 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. It has been held that not even Parliament, by constitutional amendment, could dismantle the basic structure by including the creamy layer in reservation.

(Paras 382, 383 and 385)

Per Bhandari, J.

If you belong to the creamy layer, you are socially advanced and cannot be given the benefit of reservation. 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.

(Paras 391 and 392)

The problem with Act 5 of 2007 is that most of the beneficiaries will belong to the creamy layer, a group for which no benefits are necessary. 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. The OBC daughter of say a Minister, IAS officer or affluent business owner will attend better schools than her non-creamy counterpart. She will go to private tuitions unaffordable to her non-creamy counterpart. She will study for the all-decisive entrance exams in a coaching centre. She will probably come home from school to find a family member waiting. And when she seeks help from her parents, they are most likely educated and able to give superior assistance with school work. Judicial notice is taken 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. The OBC Minister's daughter and the non-creamy OBC cannot be considered as equals in terms of their chances at earning a university seat; nor can they be allowed 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.

(Paras 371, 386 to 388)

The statistics indicate that the failure to exclude the creamy layer ultimately leads to a situation in which deserving students are excluded. Creamy layer inclusion robs the poor and gives to the rich. Article 15(5) dupes those who actually need preferential treatment. 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. The poor lack the resources to compete with the creamy, who “snatch away” those seats. 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. With the creamy layer excluded, poor OBCs would compete with poor OBCs—the playing field levelled. As it stands, the amendment and the 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. This violates the Article 14 right to equality.

(Paras 397, 404, 405, 410 and 411)

The proponents of reservation contended that if you exclude the creamy layer, there would be a shortage of candidates who can afford to pay for higher education. The Oversight Committee disagreed. The Committee relied on data from Karnataka to disprove the contention that seats go unfilled when the creamy is excluded. Furthermore, 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 layer OBCs would fill the bulk of the OBC quota, leaving the non-creamy layer no better off than before. If the creamy layer gets most of the benefit, why have reservations in the first place? The petitioners are justified in arguing that before carrying out constitutional amendments the Union of India must clearly target its beneficiaries. 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.

(Paras 374 and 375)

Oversight Committee, Vol. 1, September 2006, p. 69, Para 1.7, relied on

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 Ninety-third 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.

(Para 406)

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”. Similar interpretation is given to “backward classes” under Article 16(4). Parliament could not reasonably make reservation for non-backwards. Such a Bill on the face of it would violate the Constitution.

(Paras 393, 394 and 396)

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.

(Para 390)

Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385; Indra Sawhney v. Union of India, (2000) 1 SCC 168 : 2000 SCC (L&S) 1; M. Nagaraj v. Union of India, (2006) 8 SCC 212; Nair Service Society v. State of Kerala, (2007) 4 SCC 1; State of Kerala v. N.M Thomas, (1976) 2 SCC 310 : 1976 SCC (L&S) 227; K.C Vasanth Kumar v. State of Karnataka, 1985 Supp SCC 714; Ashoka Kumar Thakur v. State of Bihar, (1995) 5 SCC 403 : 1995 SCC (L&S) 1248 : (1995) 31 ATC 159, followed

Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India, (1981) 1 SCC 246 : 1981 SCC (L&S) 50, referred to

Prof. Basudeb Barman, MP, p. 531; Prof. M. Ramadass, MP, p. 510; and Shri C.K Chandrappan, MP, p. 494, respectively, Parliamentary Debates, 21-12-2005; Oversight Committee, Vol. 1, pp. 33, 69 and 4.2, Appendix 1 in its Report at p. 70, Para 1.13; David Leonhardt: The New Affirmative Action, New York Times, 30-9-2007, p. 3; Report of the Backward Classes Commission, First Part, Vols. 1-2, 1980, p. 37, 8.13; (Recommendations), p. 62, para 13.7, relied on

Prof. Rasa Singh Rawat, Parliamentary Debate on Act 5 of 2007, 14-12-2006, referred to

The creamy layer must be excluded from the Ninety-third Amendment and Act 5 of 2007. The Ninety-third Amendment would be ultra vires and invalid if the creamy layer is not excluded.

(Para 630)

Technically speaking, the implied inclusion of the creamy layer is to be severed. It is severable for two reasons. First, a nine-Judge Bench in Indra Sawhney case, 1992 Supp (3) SCC 217, severed a similar provision wherein the creamy layer was not expressly included, upholding the rest of the OM's reservation scheme. Second, because Parliament must have known that Indra Sawhney case had excluded the creamy layer, it seems likely that Parliament also realised that the Supreme Court may do the same. Had Parliament insisted on creamy layer inclusion, it could have said as much in the text of Article 15(5). Instead, Parliament left the text of Article 15(5) silent on the issue, delegating the issue of OBC identification to the executive in Section 2(g) of Act 5 of 2007.

(Paras 413 and 414)

R.M.D Chamarbaugwalla v. Union of India, AIR 1957 SC 628 : 1957 SCR 930, applied

Shri Mohan Singh, p. 474 and Shri Devendra Prasad, pp. 478-79, Parliamentary Debates, 21-12-2005, referred to

W. Constitution of India — Art. 15(5) — Reservation of 27% seats for OBCs in State-aided institutions under S. 3 r/w S. 2(g) of Act 5 of 2007 — Parameters to be followed for the exclusion of the “creamy layer” from a caste when SEBCs are determined by giving importance to caste

— Delegation of power in this regard to the Government if a valid delegation of power

— Held (per Balakrishnan, C.J and Raveendran, J. and Bhandari, J.), 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-Indra Sawhney case criteria as a template, as contained in the Office Memorandum issued by Government of India, Department of Personnel and Training, dated 8-9-1993

— Per Pasayat and Thakker, JJ., there has to be proper identification of OBCs — For the same, the Commission set up pursuant to Indra Sawhney case, 1992 Supp (3) SCC 217, has to work more effectively and not merely decide applications for inclusion or exclusion of castes — A notification should be issued by the Union of India, after exclusion of the creamy layer for which necessary data must be obtained by the Central Government from the State Governments and UTs [See also Shortnotes L and O, above]

— Further (per Balakrishnan, C.J and Bhandari, J.), the delegation of power in this regard to the Government is not invalid — Education — Central Educational Institutions (Reservation in Admission) Act, 2006 (5 of 2007) — Ss. 3 and 2(g) — National Commission for Backward Classes Act, 1993 — Ss. 9 and 11

Per Balakrishnan, C.J

The parameters contained in the Office Memorandum issued by the Government of India, Department of Personnel and Training on 8-9-1993 may be applied for exclusion of creamy layer. And the definition of “Other Backward Classes” under Section 2(g) of 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. However, it is made clear that same principle of determining the creamy layer for providing 27% reservation for backward classes for appointment as set out in the abovesaid Office Memorandum dated 8-9-1993 need not be strictly followed in case of reservation envisaged under Article 15(5) of the Constitution.

(Paras 227 and 174)

Per Balakrishnan, C.J

“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. Articles 340, 15(4) and 16(4) may be referred to in this behalf. 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 this has been in practise since the past fourteen years. It is in this background that the Union of India has been given the task of determining the backward classes.

(Para 212)

The determination of backward classes itself is a laborious task and Parliament cannot do it by itself. It is incorrect to say that there are not 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 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. The challenge to Act 5 of 2007 on that ground fails.

(Paras 212 and 230)

Per Pasayat and Thakker, JJ.

There has to be proper identification of Other Backward Classes (OBCs). For identifying backward classes, the Commission set up pursuant to the directions of the Supreme Court in Indra Sawhney, 1992 Supp (3) SCC 217, has to work more effectively and not merely decide applications for inclusion or exclusion of castes. 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.

[Paras 358(4) and (5)]

Per Raveendran, J.

The OM dated 8-9-1993 of the Government of India can be applied for determining the creamy layer in respect of OBCs.

(Para 652)

Per Bhandari, J.

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-Indra Sawhney case criteria as a template. See the OM of 8-9-1993, Para 2(c)/Column 3, approved by the Supreme Court in Ashoka Kumar Thakur, (1995) 5 SCC 403, para 10. This schedule is a comprehensive attempt to exclude the creamy layer in which income, government posts, occupation and landholdings are taken into account.

(Paras 415 and 416)

Ashoka Kumar Thakur v. State of Bihar, (1995) 5 SCC 403 : 1995 SCC (L&S) 1248 : (1995) 31 ATC 159, relied on

Per Bhandari, J.

However, the creamy layer schedule of the OM dated 8-9-1993 is not comprehensive. This should be revised periodically—preferably once in every five years, in order to ensure that creamy layer criteria take changing circumstances into account while keeping our constitutional goal in view. Also, apart from the people who have been excluded vide the abovesaid Office Memorandum, the Government is urged to make it more comprehensive. The Government should consider excluding the children of sitting and former Members of Parliament (MPs) and Members of Legislative Assemblies (MLAs) from special benefits and the said OM be amended accordingly. If constitutional authorities have been excluded from benefits because of their status or resources, the same should apply to children of former and sitting MPs and MLAs. It is hoped that the judiciary will not have to involve itself in this matter.

(Paras 417, 418, 631 and 632)

With respect to OBC identification Act 5 of 2007's delegation of power to the Union Government is not an excessive delegation. I agree with the Chief Justice's reasoning in this respect.

(Paras 624 and 642)

X. Constitution of India — Art. 15(5) — Educational backwardness — Standard to determine — Held (per Pasayat and Thakker, JJ.; Bhandari, J. concurring), while determining backwardness, graduation (not technical graduation) or professional shall be the standard test yardstick for measuring backwardness — Per Bhandari, J., once a candidate has graduated from a university, the said candidate is educationally forward and is ineligible for special benefits under Art. 15(5) for postgraduate and any further studies — Held (per Balakrishnan, C.J and Pasayat and Thakker, JJ. and Bhandari, J.), the educational standard of matriculation or (10+2) cannot be accepted as the standard to assess educational backwardness — Education — Central Educational Institutions (Reservation in Admission) Act, 2006 (5 of 2007) — Ss. 3 and 2(g)

Y. Education — Central Educational Institutions (Reservation in Admission) Act, 2006 (5 of 2007) — Ss. 4(b), 3 and 2(g) and Sch. — Exclusion of educational institutions such as superspecialities, institutions of excellence, research and institutions of national and strategic importance, etc. from operation of the Act i.e by inclusion in the Schedule to the Act — Factors to be considered (per Pasayat and Thakker, JJ.)

Per Balakrishnan, C.J

It was contended that 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. 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 where 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. 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.

(Paras 215, 217 and 232)

Per Balakrishnan, C.J

Per Pasayat and Thakker, JJ.

The ground reality cannot be lost sight of that with the limited availability of jobs and the spiralling increase in population, secondary or matriculation examination can no longer be considered to be an appropriate benchmark. 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 criterion for gauging educational backwardness it definitely will form part of 50% norms fixed by the Supreme Court. Slightly variable plus or minus would be the appropriate standard to gauge educational backwardness.

(Para 345)

So, while determining backwardness, graduation (not technical graduation) or professional shall be the standard test yardstick for measuring backwardness.

[Para 358(5)]

M.R Balaji v. State of Mysore, AIR 1963 SC 649 : 1963 Supp (1) SCR 439; State of A.P v. U.S.V Balram, (1972) 1 SCC 660; K.S Jayasree v. State of Kerala, (1976) 3 SCC 730, referred to

“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, its 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 superspecialities. 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 superspecialities.

(Para 324)

In terms of Section 4(b) of Act 5 of 2007 certain educational institutions have been excluded from the operation of the said Act. Act 5 of 2007 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. 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. 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.

(Para 342)

The Supreme Court has laid down that so far as admissions to postgraduate courses 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 superspecialities 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 superspecialities may serve the interests of the nation better, though interests of individual States may to a small extent, be affected.

(Para 355)

The need of a region or institution cannot prevail at the highest scale of speciality where the best skill or talent must be hand-picked by selecting them according to capability. At the level of PhD, MD 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.

(Para 356)

Per Pasayat and Thakker, JJ.

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 issues concerned as to whether the institution deserves to be included in the Schedule.

[Para 358(11)]

Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385; AIIMS Students' Union v. AIIMS, (2002) 1 SCC 428; M.R Balaji v. State of Mysore, AIR 1963 SC 649 : 1963 Supp (1) SCR 439; State of Kerala v. N.M Thomas, (1976) 2 SCC 310 : 1976 SCC (L&S) 227; K.C Vasanth Kumar v. State of Karnataka, 1985 Supp SCC 714; Jagadish Saran v. Union of India, (1980) 2 SCC 768, relied on

Per Bhandari, J.

There is some force in the contention that those who have completed Plus 2 should be considered educationally forward 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 up to Plus 2 is of extremely indifferent quality and apart from that, today some entry-level government positions only accept college graduates.

(Para 644)

Once a candidate graduates from a university, he must be considered educationally forward. In other words, one is educationally backward until the candidate has graduated from a university. 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 postgraduate reservation. Once a candidate has graduated from a university, the said candidate is educationally forward and is ineligible for special benefits under Article 15(5) of the Constitution for postgraduate and any further studies. 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 postgraduation or any further studies thereafter.

(Paras 626, 644 and 371)

Per Bhandari, J.

YA. Education — Central Educational Institutions (Reservation in Admission) Act, 2006 (5 of 2007) — S. 3 — Reservation of 27% seats for OBCs under — Validity of quantum of reservation provided

— Held (per curiam), the same is not illegal

— Per Balakrishnan, C.J, Parliament must be deemed to have taken into consideration all relevant circumstances and have been aware of the statistical details of country's population

— Per Pasayat and Thakker, JJ., the foundation for fixing 27% appears to be the view that 52% of the population belong to OBCs — There is no supportable data for this proposition — The Commission set up pursuant to the directions in Indra Sawhney case, 1992 Supp (3) SCC 217, has not acted based on the real purpose for which it was set up i.e to identify the backward classes and not merely to act upon petitions filed for inclusion and exclusion from the list of backward classes

— Per Bhandari, J., taking an OBC census is horrifying because doing so only furthers the caste divide, contrary to our constitutional aim — The Government is between a rock and a hard place — 27% is the upper limit for OBC reservation — The Government need not always provide the maximum limit

(Para 48)

YB. Education — Central Educational Institutions (Reservation in Admission) Act, 2006 (5 of 2007) — S. 3 — Reservation of 27% seats for OBCs under — OBC candidates obtaining admission in the open competition field on the basis of their own merit whether to be counted against the 27% quota for OBCs under an enactment enabled by Art. 15(5) — Question to be left open for an appropriate case (per Raveendran, J.) — Question not considered by the other learned Judges — Constitution of India — Art. 15(5)

Per curiam

Quantum of reservation of 27% of seats to Other Backward Classes in the educational institutions provided in the Act is not illegal.

(Para 670)

Per Balakrishnan, C.J

The quantum of reservation provided under Act 5 of 2007 is based on the detailed facts available with Parliament. Various commissions have been in operation determining as to who shall form SEBCs. Though a castewise census is not available, several other data and statistics are available. In Indra Sawhney, 1992 Supp (3) SCC 217, the Mandal Commission was accepted in principle though the details and findings of the Commission were not fully accepted by the Supreme Court. 27% of reservation in the matter of employment was accepted by the Supreme Court. The 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. 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, 27% reservation provided in the Act is not illegal nor on that account, can the Act itself be struck down. It is therefore held that reservation of 27% of seats for Other Backward Classes is not illegal and Parliament must be deemed to have taken into consideration all relevant circumstances when fixing the 27% reservation.

(Paras 220, 219 and 233)

Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385; State of Rajasthan v. Union of India, (1977) 3 SCC 592, relied on

Per Balakrishnan, C.J

Per Pasayat and Thakker, JJ.

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 the Supreme Court seems to have acted somewhat on the petitions filed by the people claiming exclusion or inclusion. That was not the real purpose of the Supreme 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.

[Paras 325, 358(4) and (5)]

Per Raveendran, J.

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 for consideration in an appropriate case.

(Para 653)

Per Bhandari, J.

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. It is not known what proportion of the population is OBC because the census does not count OBCs. It has been the Central Government policy practically since Independence to avoid the question. Taking an OBC census is horrifying because it encourages the Government to enact policy on the basis of caste. Doing so only furthers the caste divide, contrary to our constitutional aim. This has been recognised 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. 27% is the upper limit for OBC reservation. The Government need not always provide the maximum limit.

(Paras 579, 580 and 371)

YC. Constitution of India — Art. 15(5) — Reservation of 27% for OBCs in specified State-aided Central universities under Act 5 of 2007 — Setting of cut-off marks for — Factors to be considered and concerns to be balanced

Per Bhandari, J.

— Per Balakrishnan, C.J, Government can make relaxation to some extent

— Held (per Pasayat and Thakker, JJ. and Bhandari, J.), reasonable cut-off marks should be set so that standards of excellence are not greatly affected — Society as a whole stands to benefit from a rational reservation scheme — Per Pasayat and Thakker, JJ., five (5) grace marks can be extended to OBC candidates below the minimum eligibility marks fixed for General Category students — Per Bhandari, J., cut-off marks for OBC candidates should be set no more than ten (10) marks out of 100 below that of the General Category — Education — Central Educational Institutions (Reservation in Admission) Act, 2006 (5 of 2007) — S. 3

YD. Constitution of India — Art. 15(5) — Reservation of 27% for OBCs in specified State-aided Central Universities under Act 5 of 2007 — Reversion of seats remaining vacant due to insufficient non-creamy layer OBC candidates to General Category [See also Shortnote P, above]

— Held (per Pasayat and Thakker, JJ. and Bhandari, J.), whenever the non-creamy layer OBCs fail to fill the 27% reservation after adopting cut-off marks [of 5 marks or 10 marks] below that of the cut-off for the General Category, the unfilled seats shall revert to and be filled up by candidates from the General Category

— Per Balakrishnan, C.J (contra), if the candidates are not available the State can issue appropriate guidelines to effectuate the implementation of the reservation purposefully

Per Balakrishnan, C.J

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. The 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 SEBCs are properly determined in accordance with the guidelines given by the Supreme Court. In this regard the principle of determining the creamy layer laid down for appointments in OM dated 8-9-1993 need not be strictly followed. If, even by applying this principle, still the candidates are not available, the State can issue appropriate guidelines to effectuate the implementation of the reservation purposefully.

(Para 175)

[Ed.: In para 170, Balakrishnan, C.J is emphatic on the exclusion of creamy layer candidates because without doing so “there cannot be proper identification of the backward class”. Else Article 15(1) and Article 16(1) would be violated, and so “the exclusion of ‘creamy layer’ is essential” (para 170). Further, it is opined in the next paragraph that for determining socially and educationally backward classes the “principle of ‘creamy layer’ is necessary”. Feeling bound by the nine-Judge Bench decision in Indra Sawhney, 1992 Supp (3) SCC 217, His Lordship cites from the opinion of Sawant, J. therein and concludes that “all these reasonings [in respect of the exclusion of the creamy layer vis-à-vis Article 16(4)] are equally applicable to the reservation or any special action contemplated under Art. 15(5)” (para 173). Hence His Lordship rejects the contention “that if the ‘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”. (para 173) [See Shortnote P, above.] Later, faced with the real possibility of insufficient number of candidates being available to fill the reserved seats after exclusion of creamy layer despite “relaxation [of the admission cut-offs] to some extent” (para 175), His Lordship opines: (1) the OM dated 8-9-1993 for determining the creamy layer “need not be strictly followed” (para 175), and (2) that “the State can issue appropriate guidelines to effectuate the implementation of the reservation purposefully”. (Para 175) How then the said OM should be followed and what kind of guidelines, keeping the constitutional requirements in view, can be issued has not been spelt out. With admissions two/three months away, the need of the hour was certainty in this regard for those entrusted with implementation of the 27% reservation in their educational institutions. Fortunately for them, a definitive majority view arising from the opinions of Pasayat and Thakker, JJ. and Bhandari, J. (see below) does meet the likely situation by laying down that if any reserved category seats remain vacant they shall be filled up by candidates from the General Category.]

Per Balakrishnan, C.J

Per Pasayat and Thakker, JJ.

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.

(Para 355)

The Central Government shall examine the desirability of fixing 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 that quality and merit would not suffer.

[Para 358(3)]

If any seats remain vacant after adopting such norms they shall be filled up by candidates from general categories.

[Para 358(3)]

Per Bhandari, J.

It is reasonable to balance reservation with other societal interests. Reasonable cut-off marks should be set so that standards of excellence are not greatly affected. Standards of excellence 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. There should be no case in which the gap of cut-off marks between OBC and General Category students is too large. 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. To this end, the Government shall set up a committee to look into the question of setting the OBC cut-off at not more than 10 marks below that of the General Category.

(Paras 371, 627 to 629 and 645)

The Government is urged to set OBC cut-off marks no lower than 10 marks below that of the General Category. This is only a recommendation.

(Para 535)

M.R Balaji v. State of Mysore, AIR 1963 SC 649 : 1963 Supp (1) SCR 439, followed

Oversight Committee, Vol. 1, September 2006, p. 34, Vol. 1, relied on

Whenever the non-creamy layer OBCs fail to fill the 27% reservation, the remaining seats would revert to General Category students.

(Paras 629 and 371)

YE. Constitution of India — Arts.. 15(5) and 341 & 342 — Special provisions that may be made for SCs and STs under Art. 15(5) — Creamy layer in SCs and STs, if to be excluded — Ruling in M. Nagaraj case, (2006) 8 SCC 212, on this point, if any

Per Bhandari, J.

— Per Balakrishnan, C.J, so long as “creamy layer” principle is not applied as one of the principles of equality and is merely a principle of identification of socially and educationally backward classes, the “creamy layer” principle cannot be applied to STs and SCs, as they are separate classes in themselves and they are identified by virtue of the notification issued by the President under Arts. 341 and 342 of the Constitution — Clarified that in M. Nagaraj case it has not been discussed or decided that creamy layer principle would be applicable to SCs and STs — Per Pasayat and Thakker, JJ., the present case does not concern SCs and STs — Also, in M. Nagaraj case though some observations of a general nature have been made so far as the applicability of principles to SCs and STs are concerned, really that case did not concern SCs and STs — Per Bhandari, J., in the instant case, the entire discussion was confined only to OBCs — Therefore, no opinion is expressed with regard to applicability of exclusion of creamy layer to SCs and STs — However, according to M. Nagaraj case reservation in promotion for SCs and STs is contingent on exclusion of the creamy layer — The discussion regarding creamy layer is far from being obiter in M. Nagaraj case — It was held therein that if the State fails to exclude SC/ST creamy layer, the reservation must fail — Placing this contingency in the conclusion makes the discussion of creamy layer part of the ratio decidendi of M. Nagaraj case

Per Balakrishnan, C.J

Firstly, in none of the decisions of the Supreme Court is it stated that the “creamy layer” principle would apply to SCs and STs. In Indra Sawhney case, 1992 Supp (3) SCC 217, it is specifically stated that the “creamy layer” principle will not apply to STs and SCs. In Nagaraj case, (2006) 8 SCC 212, in paras 110 and 120 and finally in paras 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 case it has not been discussed or decided that the “creamy layer” principle would be applicable to SCs/STs. Therefore, it cannot be said that the observations made in Nagaraj case are contrary to the decision in Indra Sawhney case.

(Para 182)

State of Kerala v. N.M Thomas, (1976) 2 SCC 310 : 1976 SCC (L&S) 227; K.C Vasanth Kumar v. State of Karnataka, 1985 Supp SCC 714; M. Nagaraj v. Union of India, (2006) 8 SCC 212, clarified

Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385, relied on

Secondly, so far the Supreme Court has not applied the “creamy layer” principle as a principle of equality or as a general principle applicable to all affirmative actions or 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. 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. Therefore, principally, the “creamy layer” principle cannot be applied to STs and SCs, as SCs and STs are separate classes by themselves. In an earlier decision it has been 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.

(Paras 183 to 186)

E.V Chinnaiah v. State of A.P, (2005) 1 SCC 394; K.C Vasanth Kumar v. State of Karnataka, 1985 Supp SCC 714, relied on

Per Balakrishnan, C.J

Thus, the “creamy layer” principle is not applicable to Scheduled Castes and Scheduled Tribes.

(Paras 186 and 228)

Per Pasayat and Thakker, JJ.

Though in M. Nagaraj case, (2006) 8 SCC 212, some observations of general nature have been made so far as the applicability of the principles to Scheduled Castes and Scheduled Tribes is 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 case is unexceptionable.

(Para 293)

M. Nagaraj v. Union of India, (2006) 8 SCC 212, clarified

M.G Badappanavar v. State of Karnataka, (2001) 2 SCC 666 : 2001 SCC (L&S) 489; Ajit Singh (II) v. State of Punjab, (1999) 7 SCC 209 : 1999 SCC (L&S) 1239; Ajit Singh Januja v. State of Punjab, (1996) 2 SCC 715 : 1996 SCC (L&S) 540 : (1996) 33 ATC 239; Union of India v. Virpal Singh Chauhan, (1995) 6 SCC 684 : 1996 SCC (L&S) 1 : (1995) 31 ATC 813, cited

Per Bhandari, J.

It was contended that Nagaraj, (2006) 8 SCC 212, is obiter in regard to creamy layer exclusion. The contention of the Union of India cannot be accepted. According to Nagaraj reservation in promotion for SC/ST is contingent on exclusion of the creamy layer (paras 122, 123 and 124). The discussion regarding creamy layer is far from obiter in Nagaraj. 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.

(Para 389)

M. Nagaraj v. Union of India, (2006) 8 SCC 212, clarified

However, in Indra Sawhney case the entire discussion was confined only to Other Backward Classes. Similarly, in the instant case, the entire discussion was confined only to Other Backward Classes. Therefore, no opinion is expressed with regard to the applicability of exclusion of creamy layer to the Scheduled Castes and Scheduled Tribes.

(Paras 395 and 633)

Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385, followed

YF. Constitution of India — Arts.. 14, 15 & 16, Preamble, Pt. IV and Art. 368 — Right to equality — Nature and scope of — Extent to which may be amended or altered without violating the basic structure of the Constitution — Art. 15(5) if violated the basic structure of the Constitution to the extent that it pertained to State maintained or aided private institutions

— Per curiam, the Constitution (Ninety-third Amendment) Act, 2005 does not violate the basic structure of the Constitution so far as it relates to State maintained institutions and aided educational institutions [question as to validity of the said amendment with respect to private unaided institutions left open, except per Bhandari, J.: see Shortnote YO, below]

Per Balakrishnan, C.J, equality is a multicoloured concept incapable of a single definition — The principle of equality is a delicate, vulnerable and supremely precious concept for our society and has embraced a critical and essential component of constitutional identity — The larger principles of equality as stated in Arts. 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 insofar as it implicates the question of constitutional identity — The principles of equality cannot be completely taken away so as to leave citizens in a state of lawlessness — But the facets of the principle of equality can always be altered, especially to carry out the directive principles of State policy — If any constitutional amendment is made which moderately abridges the principle of equality, it cannot be said that it violates the basic structure of the Constitution

— Per Pasayat and Thakker, JJ., it needs no emphasis that individual rights are superior to the social rights

— Per Bhandari, J., when fundamental rights are at stake, they must be harmonised with, not made subject to, the directive principles

YG Constitution of India — Art. 19(1)(g) and Art. 368 — Right under Art. 19(1)(g) — Nature and scope of — Extent to which may be amended or altered without violating the basic structure of the Constitution — Per Balakrishnan, C.J, the fundamental right under Art. 19(1)(g) is a multicoloured concept incapable of a single definition — If any constitutional amendment is made which moderately abridges the principles under Art. 19(1)(g), it cannot be said that it violates the basic structure of the Constitution — Per Bhandari, J., following Minerva Mills case, (1980) 3 SCC 625, a total deprivation of fundamental rights, even in one limited area, may amount to an abrogation of the basic structure

YH. Constitution of India — Art. 368, Preamble and Pt. III — Basic structure of the Constitution — What is, and when violated or altered — Use of terms “abridge” and “abrogate” — Meaning and significance of — Applicability of the Two-Step Effect Test as laid down in I.R Coelho case, (2007) 2 SCC 1 (also known as Impact or Rights test) — Amendability of fundamental rights — Scope — Approach of and standard to be followed by Court

— Per Balakrishnan, C.J, for determining whether a particular feature of the Constitution is part of the basic structure, 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 has not been held in Kesavananda, (1973) 4 SCC 225 that all facets of Art. 14 or any of the fundamental rights would form part of the basic structure — 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 — However, if any one of the provisions relating to a particular basic feature of the Constitution is altered or modified, that does not amount to the alteration of the basic structure

— Per Bhandari, J., to determine if a constitutional amendment violates the basic structure a Two-Step Effect Test as laid down I.R Coelho case, (2007) 2 SCC 1 (also known as the Impact or Rights Test) is to be applied on a case-by-case basis — Step One requires us to ask if the impugned amendment affects a facet of the basic structure — If it does, then Step Two requires us to ask if the effect on the facet of the basic structure is to such an extent that the facet's original identity has been altered — Applying the Effect Test amounts to saying that the form of a constitutional amendment is irrelevant: it is the consequence thereof that matters — A total deprivation of fundamental rights, even in one limited area, may amount to abrogation of the basic structure — A constitutional amendment need not be as invidious as the Forty-second Constitution Amendment for the Supreme Court to invalidate it — If the standard were that high, constitutional amendments could destroy the basic structure by a thousand slashes — However, 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, is to be heard — Words and Phrases — “Abridge”, “abrogate” — Meanings and relative scope

YI. Constitution of India — Arts.. 368, 245 and 13 — Basic structure doctrine — Applicability of — Reiterated, per Balakrishnan, C.J, the same is applicable only to constitutional amendments and not to ordinary legislation

YJ. Constitution of India — Pts. III & IV — Primacy inter se — Held (per Pasayat and Thakker, JJ. and Bhandari, J.), it needs no emphasis that individual rights are superior to the social rights — When fundamental rights are at stake, they must be harmonised with, not made subject to, the directive principles — Per Balakrishnan, C.J (contra), the facets of the principle of equality could always be altered, especially to carry out the directive principles — Merely because the directive principles are non-justiciable by the judicial process does not mean that they are of subordinate importance

YJJ. Constitutional Interpretation — Internal aids — Preamble and directive principles of State policy — Per Balakrishnan, C.J, when a constitutional provision is interpreted, the cardinal rule is to look to the Preamble as the guiding star and the directive principles as the “book of interpretation”

YK. Constitution of India — Arts.. 32, 226, Pt. III and Art. 51 — Separation of powers — Justification for — Eternal vigilance against encroachment on civil liberties by the State — Need for — Per Bhandari, J., it is precisely because the Government cannot be trusted that the powers of the State are divided amongst separate organs — Constitutional Law

Per curiam

The Constitution (Ninety-third Amendment) Act, 2005, is valid and does not violate the “basic structure” of the Constitution so far as it relates to the State maintained institutions and aided educational institutions. The 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 not considered and left open to be decided in an appropriate case. Bhandari, J. in his opinion, has, however, considered the issue and has held that the Constitution (Ninety-third Amendment) Act, 2005 is not constitutionally valid so far as private unaided educational institutions are concerned.

(Para 668)

Per Balakrishnan, C.J

It has been held in many decisions of the Supreme Court that when a constitutional provision is interpreted, the cardinal rule is to look to the Preamble of 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.

(Paras 121 and 114)

A survey of the conclusions reached by the Judges in Kesavananda Bharati case, (1973) 4 SCC 225, clearly shows that the power of constitutional amendment is very wide and a close analysis of the opinions in Kesavananda Bharati case 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.

(Para 114)

Kesavananda Bharati case 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.

(Para 114)

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 directive 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 State shall not be made accountable immediately for not fulfilling these obligations. Merely because the directive principles are non-justiciable by the judicial process does not mean that they are of subordinate importance.

(Para 195)

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.

(Para 115)

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 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.

(Para 116)

The majority in Kesavananda Bharati case, (1973) 4 SCC 225 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 31-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.

(Para 117)

Equality is a multicoloured concept incapable of a single definition as is also the fundamental right under Article 19(1)(g). The principle of equality is a delicate, vulnerable 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 Articles 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 insofar as it implicates the question of constitutional identity.

(Para 118)

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 not 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 Constitution (Ninety-third Amendment) Act, 2005 alters the basic structure of the Constitution is of no force. Moreover, the interpretation of the Constitution shall not be in a narrow pedantic way.

(Para 120)

Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, explained and applied

Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1 ; Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625; M. Nagaraj v. Union of India, (2006) 8 SCC 212, relied on

Golak Nath v. State of Punjab, AIR 1967 SC 1643 : (1967) 2 SCR 762, held, overruled

Berubari Union and Exchange of Enclaves, Reference under Article 143(1) of the Constitution of India, In re, AIR 1960 SC 845 : (1960) 3 SCR 250, held, partly overruled

I.R Coelho v. State of T.N, (2007) 2 SCC 1, cited

Therefore it is held that 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.

(Paras 122 and 221)

Per Pasayat and Thakker, JJ.

It needs no emphasis that individual rights are superior to the social rights. All fundamental rights are to be read together.

(Para 278)

Per Raveendran, J.

Article 15(5) is valid with reference to State maintained educational institutions and aided educational institutions.

(Para 648)

Per Bhandari, J.

Kesavananda Bharati, (1973) 4 SCC 225, 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, the following general standard will be employed: 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.

(Para 496)

To determine if legislation infringes constitutional limitations and is thus invalid, the Two-Step Effect Test (also known as the Impact or Rights Test) as laid down in I.R Coelho case, (2007) 2 SCC 1, is to be used. Step One requires us to first ask if the impugned 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 basic 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.

(Para 497)

I.R Coelho v. State of T.N, (2007) 2 SCC 1, applied

The terms “abridge” and “abrogate” have been employed by the Supreme 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, Parliament may take away or destroy fundamental rights by amending the Constitution, provided that the basic structure is not altered. 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). As held in Minerva Mills case, (1980) 3 SCC 625, para 59 a total deprivation of fundamental rights, even in one limited area, may amount to an abrogation of the basic structure.

(Paras 498, 499 and 529)

I.R Coelho v. State of T.N, (2007) 2 SCC 1; Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625, followed

Two broad themes surface from 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. When judicial review is barred, democracy evaporates. And when fundamental rights are at stake, they must be harmonised with, not made subject to, the directive principles.

(Paras 508 and 504)

The 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.

(Para 509)

Per Bhandari, J.

Had Section 55 of the Forty-second Amendment to the Constitution 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 Forty-second Amendment. The impugned legislation limits one fundamental right in one limited circumstance. Yet an amendment need not be as invidious as the Forty-second Amendment for the Supreme Court 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.

(Para 510)

Since Kesavananda time, many amendments have been passed and many challenges under the basic structure have been made. The Supreme Court has used caution and has refrained from using the doctrine, even when it may have been justified. 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.

(Para 511)

Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225; Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1 ; Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625; I.R Coelho v. State of T.N, (2007) 2 SCC 1; P. Sambamurthy v. State of A.P, (1987) 1 SCC 362 : (1987) 2 ATC 502; L. Chandra Kumar v. Union of India, (1997) 3 SCC 261 : 1997 SCC (L&S) 577, relied on

Granville Austin: “Working a Democratic Constitution”, p. 506; Seervai, H.M: “Fundamental Rights: A Basic Issue”, published in three instalments in The Times of India, 14-2-1955, 15-2-1955 and 16-2-1955 (see Granville Austin at pp. 263-64 in Working a Democratic Constitution); S.P Sathe: Judicial Activism in India: Transgressing Borders and Enforcing Limits, 2nd Edn., 2002, pp. 92-93, referred to

YL. Constitution of India — Arts.. 368, 13, 32 and Pt. III — Content of fundamental rights and basic structure — Authority competent to interpret content of the fundamental rights and determine violation of basic structure of Constitution, reiterated per Bhandari, J., is the Supreme Court — Though Parliament, expressing the will of the people, may enact amendments to overrule a judgment of the Supreme Court, the final word on the content of a right is of the Supreme Court

Per Bhandari, J.

While Parliament may amend the Constitution, it cannot alter the Constitution's basic structure. A basic structure challenge becomes an issue of institutional competence. It is not for the legislature to decide what is a reasonable restriction under Article 19(1)(g) read with Article 19(6), but for the judiciary. It is well established that Parliament, expressing the will of the people, may enact amendments to overrule a judgment of the Supreme Court. 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 the Supreme Court.

(Para 527)

I.R Coelho v. State of T.N, (2007) 2 SCC 1; M. Nagaraj v. Union of India, (2006) 8 SCC 212; Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225; Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1 ; Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625; P. Sambamurthy v. State of A.P, (1987) 1 SCC 362 : (1987) 2 ATC 502; L. Chandra Kumar v. Union of India, (1997) 3 SCC 261 : 1997 SCC (L&S) 577, followed

State of Madras v. Champakam Dorairajan, AIR 1951 SC 226 : 1951 SCR 525; S. Vinod Kumar v. Union of India, (1996) 6 SCC 580 : 1996 SCC (L&S) 1480; Union of India v. Virpal Singh Chauhan, (1995) 6 SCC 684 : 1996 SCC (L&S) 1 : (1995) 31 ATC 813; Ajit Singh Januja v. State of Punjab, (1996) 2 SCC 715 : 1996 SCC (L&S) 540 : (1996) 33 ATC 239, held, constitutionally superseded

Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385, held, partially constitutionally superseded

YM. Constitution of India — Arts.. 15(5) and 19(1)(g) — Validity of Art. 15(5), to the extent that it pertained to private unaided institutions — Per Balakrishnan, C.J and Pasayat and Thakker, JJ. and Raveendran, J., question left open as (i) the impugned legislation in question i.e Act 5 of 2007 did not pertain to private unaided institutions, and (ii) no private unaided institution had challenged Art. 15(5) — Per Bhandari, J., Art. 15(5) to the extent it sought to include private unaided institutions within its purview violated the basic structure of the Constitution, and hence was invalid — Reference to private unaided institutions in Art. 15(5) hence severed [see Shortnote YO, below] — Central Educational Institutions (Reservation in Admission) Act, 2006 (5 of 2007) — Validity of

Per Balakrishnan, C.J

The scope of the decision in T.M.A Pai Foundation case, (2002) 8 SCC 481, was later explained in P.A Inamdar case, (2005) 6 SCC 537. 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.

(Paras 125, 111 and 106)

T.M.A Pai Foundation v. State of Karnataka, (2002) 8 SCC 481; P.A Inamdar v. State of Maharashtra, (2005) 6 SCC 537, referred to

Unni Krishnan, J.P v. State of A.P, (1993) 1 SCC 645, held, overruled on this point

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 challenging the Constitution (Ninety-third Amendment). Though the petitioners have challenged the Constitution (Ninety-third Amendment) on various grounds, they were vis-à-vis the challenge to Act 5 of 2007. The counter by the Union of India was also in that context. 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 Constitution (Ninety-third 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 the Supreme Court to decide whether the Constitution (Ninety-third Amendment) is violative of the “basic structure” of the Constitution so far as it relates to private unaided educational institutions merely because the Court is considering its validity in the context of Act 5 of 2007, and so the question is left open to be decided in other appropriate cases.

(Paras 106, 109 to 111, 122 and 221)

Per Balakrishnan, C.J

Per Pasayat and Thakker, JJ.

Challenge relating to private unaided 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 it is not considered necessary to express any opinion or decide on this question.

[Para 358(12)]

Per Raveendran, J.

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.

(Para 648)

Per Bhandari, J.

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. 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 Ninety-third Amendment is such that Article 19 is abrogated, leaving the basic structure altered. To restore the basic structure, I sever the Ninety-third Amendment's reference to “unaided” institutions.

(Para 636)

[See fully below Shortnote YO et seq. below]

T.M.A Pai Foundation v. State of Karnataka, (2002) 8 SCC 481; P.A Inamdar v. State of Maharashtra, (2005) 6 SCC 537, relied on

YN. Constitution of India — Arts.. 368 and 32 — Anticipatory challenge to an enabling constitutional amendment on ground that amendment concerned created the potential for a violation of the basic structure — Maintainability of such challenge — Meaning and applicability of “width test” — Practical considerations that may be taken into account by Supreme Court in deciding to consider such anticipatory challenge — Non-impleadment of parties directly affected, when inconsequential

— Per Bhandari, J., constitutional 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 down the entire amendment ab initio

— The “width test” asks if an amendment is so wide that in effect (actual or potential), it goes beyond Parliament's amending power — What is relevant is that the real consequences can be taken into account while judging the width of the power — The Court cannot ignore consequences to which a particular construction would lead

— Even though no private unaided institution filed a writ petition, this Constitutional Bench heard the parties for months, the best lawyers in the country argued 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 and the Supreme Court will have to go through the entire exercise de novo — Such an exercise would unnecessarily cause further delay — The fate of lakhs of students and thousands of institutions is indeterminate — Hence in the public interest it would be expedient to determine the question

Per Bhandari, J.

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 down the entire amendment ab initio. The question of potential width was resolved in Minerva Mills, (1980) 3 SCC 625, 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. There is no constitutional or statutory inhibition against the decision of questions before they actually arise for consideration.

(Para 494)

In the present case, 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. 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 Parliament's amending power. What is relevant is 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.

(Para 494)

No unaided institution filed a writ petition in this case. Had either the Supreme Court or the respondents an objection, they could have raised it at any time during the proceedings. This Constitutional Bench of the Supreme Court listened to the parties for months. It 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 the court would usually implead a party if it 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, the Supreme 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. Therefore, looking to the extraordinary facts, it has been decided to proceed with this aspect of the matter in the larger public interest. 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.

(Paras 493 and 494)

Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625; Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225; M. Nagaraj v. Union of India, (2006) 8 SCC 212, relied on

Per Bhandari, J.

YO Constitution of India — Arts.. 19(1)(g), 15(5) and Art. 368 — Right under Art. 19(1)(g) — Extent to which may be amended or altered without violating the basic structure of the Constitution — Validity of Art. 15(5), to the extent that it pertained to private unaided private institutions — Application of the Two-Step Effect Test as laid down in I.R Coelho case, (2007) 2 SCC 1 (also known as Impact or Rights Test)

— Per Bhandari, J. (the other four learned Judges leaving the question open), it cannot be said that subjecting Art. 19(1)(g) to Art. 15(5) violates the basic structure per se — If the right to equality, considered by some as a basic postulate of the Constitution, has been limited, a fortiori Art. 19(1)(g) can be too — However, applying the Effect Test, Art. 15(5) is invalid to the extent that it pertains to private unaided institutions as it abrogates Art. 19(1)(g) and hence violates the basic structure of the Constitution

— Since reservations would have a dramatic effect on educators, the unaided institutions in which they teach and, consequently, society as a whole, Art. 19(1)(g) has been more than abridged — When education is effectively nationalised, freedom stands obliterated — The identity of the Constitution is altered when unreasonable restrictions make a fundamental right meaningless — 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 State cannot ask these institutions to abridge this right in exchange for affiliation/recognition — 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 — He who funds or runs the institution holds the power to select students — Given a transparent and reasonable selection process, it is up to the unaided institution to define “merit” according to its own values — To restore the basic structure, the Ninety-third Amendment's reference to “unaided” institutions is severed

YP. Constitution of India — Arts.. 19(1)(g), 15(5), 32 and 368 — Significance of individual liberty and freedom — Determination of whether Art. 19(1)(g) has been infringed to the extent that there has been a violation of the basic structure of the Constitution — Application of the Effect Test or Impact or Rights Test — Effect or impact on whom or what to be seen

— Question arising as to impact or effect of Art. 15(5) on Art. 19(1)(g) rights of private unaided institutions — Choice being between considering the impact (1) on the entire constitutional framework, or (2) on citizens engaged in unaided education as an occupation, per Bhandari, J., it is the latter that must be examined — 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

YQ. Constitution of India — Arts.. 19, 32 and 368 — Infringement of Art. 19 rights of citizens — Number of citizens to be affected for a challenge to the infringement to be maintainable — Per Bhandari, J., freedom under Art. 19 belongs to individual citizens — The reference to “all citizens” in Art. 19 means that each and every individual citizen possesses Art. 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, the Supreme Court is duty bound to entertain his or her claim

YR. Constitution of India — Arts.. 19(1)(g) & (6), 14 & 21 and Preamble — Importance and significance of Art. 19(1)(g) in the constitutional scheme and the basic structure — Significance of the Golden Triangle — Per Bhandari, J., Art. 19(1)(g) is a facet of the basic structure of the Constitution — The right to freedom under Art. 19 has been long recognised as a natural and inalienable right that belongs to all citizens — Indeed, Independence would mean little without it — Also, Art. 19(1)(g) belongs to the Golden Triangle: Arts. 14, 19 and 21 are the three fundamental rights that stand above the rest — Without the Golden Triangle, democracy is impossible — Furthermore, Art. 19(6) provides no safe haven for reservations

YS. Constitution of India — Arts.. 368 and Pt. III — Abridgement of fundamental rights — When amounts to violation of the basic structure — Total deprivation in a limited area vis-à-vis partial deprivation in every area — Reiterated per Bhandari, J., following Minerva Mills case, (1980) 3 SCC 625, the former can amount to abrogation of a fundamental right just as much as the latter can so as to amount to a violation of the basic structure of the Constitution

YT Constitution of India — Arts.. 14, 15 and 16 — Formal equality as enshrined in Arts. 14, 15(1) and 16(1) — Existing limitations on — Per Bhandari, J., generally speaking, Arts. 15(3), (4) and 16(4) necessarily limit the right to formal equality

Per Bhandari, J.

Step One: Does Article 15(5) affect a facet of the basic structure?

Parliament may subject Article 19(1)(g) to Article 15(5), even though the Supreme Court has held that reservation in unaided institutions is an unreasonable restriction that cannot be saved by Article 19(6). The structure of our Constitution permits fundamental rights, and even the Golden Triangle of Articles 14, 19 and 21, is to be abridged in limited circumstances. To say that subjecting Article 19(1)(g) to Article 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 Article 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 Article 15(1). Like Article 16(4), Article 15(4) limits Article 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 Programmes 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.

(Paras 524 and 525)

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. The right to freedom under Article 19 has been long recognised as a natural and inalienable right that belongs to all citizens. Indeed, what would Independence mean without it? 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. The Golden Triangle's significance becomes clear when we consider that the Government may suspend Articles 14 and 19 rights in order to implement an Emergency. In a sense, democracy is only restored when the Triangle is returned to the citizens. Without the Triangle, democracy is impossible.

(Paras 500, 501 and 503)

I.R Coelho v. State of T.N, (2007) 2 SCC 1; Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225; Waman Rao v. Union of India, (1981) 2 SCC 362, relied on

Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625, clarified and followed

Step Two: Whether Art. 15(5) affects Art. 19(1)(g) to the extent that it violates the basic structure?

As observed by Justice Brandeis of the US Supreme Court, the need to protect liberty is the greatest when Government's purposes are beneficent. 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, these details must be carefully scrutinised.

(Paras 501 and 502)

Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625, relied on

I.R Coelho case, (2007) 2 SCC 1, has held that the Court must apply the impact/rights test to determine whether the basic structure has been violated. Of the two questions as to (1) whether to consider the impact on the entire constitutional framework, or (2) whether to examine the effect on citizens engaged in unaided education as an occupation it is the latter that must be examined. 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.

(Para 528)

I.R Coelho v. State of T.N, (2007) 2 SCC 1, applied

The next question is to ascertain who is affected by reservation in unaided institutions. As held in Minerva Mills Ltd. case, (1980) 3 SCC 625 at para 59, 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. Freedom under Article 19 belongs to individual citizens. The reference to “all citizens” in Article 19 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, the Supreme 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.

(Paras 529, 499 and 530)

Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625, followed

If Article 15(5) were implemented, the educator in unaided institutions would still have students to educate. “Educator” is used 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.

(Para 531)

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. Almost half of the time (49.5%), the State would decide for them. Selecting students or employees goes to the heart of an organisation's autonomy. The essence of an unaided educational institution is the freedom to manage its affairs. It has been held that subjecting unaided institutions to reservation is an unreasonable restriction. Article 19(6) provides no safe haven for reservations.

(Paras 532 and 533)

The Government-imposed selection of students in turn has wide-ranging consequences for unaided institutions and their educators. 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.

(Para 534)

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 organisation. 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.

(Para 535)

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. 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.

(Para 536)

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.

(Para 537)

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.

(Para 538)

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 nationalised, freedom stands obliterated. The identity of the Constitution is altered when unreasonable restrictions make a fundamental right meaningless. The Ninety-third 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. 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. 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. 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 effect of the Ninety-third Amendment is such that Article 19 is abrogated, leaving the basic structure altered. To restore the basic structure, the Ninety-third Amendment's reference to “unaided” institutions is severed.

(Paras 492, 539 and 636)

Unaided institutions (minority and non-minority) can admit students as they choose, provided their selection process is rational, objective, fair, transparent, non-exploitative and merit based. Stripping private unaided institutions of their right to select students would be unreasonable. Like Article 15(5) in the instant case, Unni Krishnan, (1993) 1 SCC 645, effectively nationalised education. T.M.A Pai, (2002) 8 SCC 481, overturned Unni Krishnan. 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. Unaided institutions 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. Given a transparent and reasonable selection process, it is up to the institution to define “merit” according to its own values.

(Paras 513 and 517 to 520)

T.M.A Pai Foundation v. State of Karnataka, (2002) 8 SCC 481; P.A Inamdar v. State of Maharashtra, (2005) 6 SCC 537; St. Stephen's College v. University of Delhi, (1992) 1 SCC 558, followed

Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385, relied on

Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625, relied on

Unni Krishnan, J.P v. State of A.P, (1993) 1 SCC 645, held, overruled on this point

Islamic Academy of Education v. State of Karnataka, (2003) 6 SCC 697, held, partly overruled

R. Chitralekha v. State of Mysore, AIR 1964 SC 1823 : (1964) 6 SCR 368; P. Rajendran (Minor) v. State of Madras, AIR 1968 SC 1012 : (1968) 2 SCR 786, referred to

YU. Constitution of India — Arts.. 368 and 19(1)(g) & 15(5) — Severing of part of constitutional amendment found to be in violation of the basic structure — Test of severability applied to inclusion of private unaided institutions within the purview of Art. 15(5) as the same violated the basic structure of the Constitution by abrogating the Art. 19(1)(g) right of such institutions (per Bhandari, J.)

(Paras 540 and 544)

R.M.D Chamarbaugwalla v. Union of India, AIR 1957 SC 628 : 1957 SCR 930, applied

State of Bombay v. United Motors (India) Ltd., AIR 1953 SC 252 : 1953 SCR 1069, relied on

State of Bombay v. F.N Balsara, AIR 1951 SC 318 : 1951 SCR 682, held, partly relied on

T.M.A Pai Foundation v. State of Karnataka, (2002) 8 SCC 481; P.A Inamdar v. State of Maharashtra, (2005) 6 SCC 537, referred to

Dorchy v. State of Kansas, 68 L Ed 686 : 264 US 286 (1923), cited

YV. Constitution of India — Arts.. 15(4) & (5), 14, 29, 30 and 368 — Art. 15(5) whether invalid as (i) it was contradictory to Art. 15(4), and (ii) the exclusion of minority institutions from its purview violated Art. 14

— Held (per curiam), Art. 15(5) is not contradictory to Art. 15(4) — Both Arts. 15(4) and 15(5) being enabling provisions will operate independently in different areas — The non obstante clauses at the beginning of both Arts. 15(4) and 15(5) i.e “Nothing in this article” refer to Arts. 15(1) and 15(2) and not to each other

— Further (per Balakrishnan, C.J and Bhandari, J.; Pasayat and Thakker, JJ. and Raveendran, J. expressing no opinion), the exclusion of minority institutions from the purview of Art. 15(5) does not violate Art. 14 — Constitutional Interpretation — Basic rules — Harmonious construction — No constitutional provision to be rendered otiose — Tests to be applied

YW. Constitution of India — Arts.. 30 and 19(1)(g) — Minorities if possess a right or privilege which non-minorities do not (per Bhandari, J.)

Per Balakrishnan, C.J

As has been held in N.M Thomas case, (1976) 2 SCC 310 , and Indra Sawhney case, 1992 Supp (3) SCC 217, Articles 15(4) and 16(4) are not exceptions to Articles 15(1) and 16(1) but independent enabling provisions. Article 15(5) is also to be taken as an enabling provision to carry out a certain constitutional mandate and thus it is constitutionally valid and the contentions raised on these grounds are rejected. Both Articles 15(4) and 15(5) operate in different areas. The “[n]othing in this article” [mentioned at the beginning of Article 15(5)] would only mean that the nothing in this article which prohibits the State on grounds which are mentioned in Article 15(1) alone be given importance. Article 15(5) does not exclude Article 15(4) of the Constitution.

(Paras 125, 126 and 108)

It is a well-settled principle of constitutional interpretation that while interpreting the provisions of the 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 Parliament was to exclude Article 15(4), it 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 Articles 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 Articles 15(4) or 15(5).

(Para 126)

Per Balakrishnan, C.J

Further, no educational institutions or any aggrieved party has come before the Supreme Court challenging the constitutional amendment on these grounds. The challenge is made by the petitioners objecting to the reservations made under Act 5 of 2007. Article 15(5) is constitutionally valid and Articles 15(4) and 15(5) are not mutually contradictory.

(Paras 126 and 222)

Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385; State of Kerala v. N.M Thomas, (1976) 2 SCC 310 : 1976 SCC (L&S) 227, relied on

State of Madras v. Champakam Dorairajan, AIR 1951 SC 226 : 1951 SCR 525; T.M.A Pai Foundation v. State of Karnataka, (2002) 8 SCC 481; P.A Inamdar v. State of Maharashtra, (2005) 6 SCC 537, referred to

State of A.P v. U.S.V Balram, (1972) 1 SCC 660, cited

The petitioners contended 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 the 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 Articles 15(4) and 15(5) are operative and the plea of non-severability is not applicable.

(Para 127)

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 the Supreme Court to vindicate their rights. No such petition has been filed before the Supreme Court. Therefore, it is held 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.

(Paras 128 and 223)

Per Pasayat and Thakker, JJ.

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(2)(a) and 15(2)(b), though, they form a part of the equality concept, each of which is so found in our Constitution.

(Para 326)

Provisions of the Constitution have to be read harmoniously and no part can be treated to be redundant. 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).

(Para 332)

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.

[Para 358(9)]

M. Nagaraj v. Union of India, (2006) 8 SCC 212; Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625 : AIR 1980 SC 1789; T.M.A Pai Foundation v. State of Karnataka, (2002) 8 SCC 481; State of A.P v. P. Sagar, AIR 1968 SC 1379 : (1968) 3 SCR 595; Sarwan Singh v. Kasturi Lal, (1977) 1 SCC 750; J.K Cotton Spg. and Wvg. Mills Co. Ltd. v. State of U.P, AIR 1961 SC 1170 : (1961) 3 SCR 185; Shiv Shakti Coop. Housing Society v. Swaraj Developers, (2003) 6 SCC 659; CIT v. Hindustan Bulk Carriers, (2003) 3 SCC 57, relied on

Per Raveendran, J.

Articles 15(3) to (5) enable the State to make special provisions in specified areas. The words “[n]othing in this article” occurring in Clauses (3), (4) and (5) therefore refer to Clauses (1) and (2) of Article 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.

(Para 655)

Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385; State of Kerala v. N.M Thomas, (1976) 2 SCC 310 : 1976 SCC (L&S) 227; K.C Vasanth Kumar v. State of Karnataka, 1985 Supp SCC 714, relied on

Per Bhandari, J.

Three tests of statutory interpretation that give guidance in resolving a conflict between statutory provisions have been laid down. First, if the Court cannot harmonise the two provisions, it must invalidate the one that completely destroys the other's purpose. 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. The third test provides that the specific clause must trump the general.

(Paras 606 to 608)

Sarwan Singh v. Kasturi Lal, (1977) 1 SCC 750; J.K Cotton Spg. and Wvg. Mills Co. Ltd. v. State of U.P, AIR 1961 SC 1170 : (1961) 3 SCR 185, applied

While contradictory, Articles 15(4) and 15(5) can be read harmoniously. One of the express purposes of Article 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. 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. The first test is inconclusive. As far as the second test is concerned here, Article 15(5) was enacted later in time. As far as the third test is concerned, Article 15(5) is specific in that it refers to special provisions that relate to admission in educational institutions, whereas Article 15(4) makes no such reference to the type of entity at which special provisions are to be enjoyed. Because Article 15(5) is later in time and specific to the question presented, it must neutralise Article 15(4) in regard to reservation in education. The respondents, correctly pointed out that constitutional articles are to be read harmoniously, not in isolation. Our interpretation is harmonious because Article 15(4) still applies to other areas in which reservation may be passed.

(Paras 606 to 609 and 638)

T.M.A Pai Foundation v. State of Karnataka, (2002) 8 SCC 481, relied on

Furthermore, given the inherent tension between Articles 29(2) and 30(1), the overriding constitutional goal of realising a casteless/classless society should serve as a tie-breaker. It will be a step in the wrong direction if minority institutions (even those that are aided) are subjected to reservation.

(Paras 610, 611 and 639)

Minorities possess one right or privilege that non-minorities do not: establishing and administering institutions for their community. The right to admit own-minority students in aided minority institutions has only been made subject to admitting a reasonable number of outsiders. In the instant case, aided minority institutions stand to benefit from Act 5 of 2007: instead of having to admit a reasonable number of outsiders they would be exempted from reservation. However, their non-minority counterparts would not. While this does elevate their status to a certain extent, however, the constitutional goal and philosophy must also be kept 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. Therefore no step will be taken in that direction.

(Para 622)

T.M.A Pai Foundation v. State of Karnataka, (2002) 8 SCC 481; Ahmedabad St. Xavier's College Society v. State of Gujarat, (1974) 1 SCC 717 : (1975) 1 SCR 173; Islamic Academy of Education v. State of Karnataka, (2003) 6 SCC 697, referred to

Per Bhandari, J.

YX. Constitution of India — Arts.. 15(5), 368 and 162 — Constitutional amendment inserting Art. 15(5) — If violated procedure prescribed under Art. 368(2) proviso — Held (per Balakrishnan, C.J), since the said amendment did not affect the executive power of the States under Art. 162, it was not necessary to follow the procedure prescribed under Art. 368(2) proviso — Constitution (Ninety-third Amendment) Act, 2005 — Validity of

(Paras 224 and 131)

YY. Constitution of India — Arts.. 14, 15, 16, 19, 46 and 368 — Affirmative action — Principles applicable for testing validity of — Comparability of social problems associated with caste and race — Effect of structural differences between Indian and US Constitutions — Principles laid down by US Supreme Court for testing legislation relating to affirmative action, held (per Balakrishnan, C.J and Pasayat and Thakker, JJ.), are inapplicable in the Indian context — There are structural differences between the Indian and the US Constitutions and the social conditions as well as other factors are widely different in both countries — In any case, 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 has been applied in the background of Article 19 vis-à-vis compelling State needs — Per Bhandari, J. (contra), we need to keep our window open and permit the light of knowledge to enter from any source — Though the caste system is peculiar to India, this social problem can be compared to some extent with the American social problem of race — Of the basis of classification on which there is case law, the one that most closely resembles caste is race — This is because both are immutable traits — Thus, though US decisions are not binding, judgments delivered by US courts on affirmative action have great persuasive value and they may provide broad guidelines as to how we should tackle our prevailing condition — Given that the Ninety-third Amendment on its face discriminates against General Category students, it should be given careful scrutiny — The Art. 14 right to formal equality deserves as much

YZ. Constitution of India — Arts.. 245 and 13 — Constitutional validity of legislation — Standards and tests applied by US Supreme Court (“rational basis standard”, “intermediate scrutiny” and “strict scrutiny”), explained and summarised — Statute Law — Words and Phrases — “Rational basis standard”, “intermediate scrutiny”, “strict scrutiny”, “suspect legislation”, “compelling State necessity”

Z. Precedents — Applicability of foreign case law (American and English) in constitutional contexts — Constitutional Interpretation — External aids

Per Balakrishnan, C.J

The Indian Supreme Court has repeatedly held that the American decisions are not strictly applicable to us. The decisions of the United States Supreme Court have not been 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.

(Paras 188 and 209)

Saurabh Chaudri v. Union of India, (2003) 11 SCC 146; Bhikaji Narain Dhakras v. State of M.P, AIR 1955 SC 781 : (1955) 2 SCR 589; A.S Krishna v. State of Madras, AIR 1957 SC 297 : (1957) SCR 399; Kameshwar Prasad v. State of Bihar, AIR 1962 SC 1166 : 1962 Supp (3) SCR 369; Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, relied on

A.K Roy v. Union of India, (1982) 1 SCC 271 : 1982 SCC (Cri) 152, cited

There are structural differences in the Constitution of India and the Constitution of the United States of America. The Fourteenth Amendment to the US Constitution inter alia provides that no State shall “deny to any person within its jurisdiction the equal protection of the laws”. Whereas in India, Articles 14 to 18 are differently structured and contain express provisions for special provision for the advancement of SEBCs, STs and SCs. Further, 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. In the Indian 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 minimise the inequalities of income and endeavour to eliminate inequalities in status, facilities and opportunities (Article 38).

(Paras 190 and 194)

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 directive 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 State shall not be made accountable immediately for not fulfilling these obligations. Merely because the directive principles are non-justiciable by the judicial process does not mean that they are of subordinate importance.

(Para 195)

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 recognised.

(Para 197)

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. 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.

(Paras 190, 193 and 194)

Per Balakrishnan, C.J

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.

(Para 205)

The principles of strict scrutiny and suspect legislation 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 Parliament is presumed to be constitutionally valid unless otherwise proved.

(Para 209)

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.

(Paras 229 and 210)

State of Kerala v. N.M Thomas, (1976) 2 SCC 310 : 1976 SCC (L&S) 227; K.C Vasanth Kumar v. State of Karnataka, 1985 Supp SCC 714, followed

Kerala Education Bill, 1957, In re, AIR 1958 SC 956 : 1959 SCR 995; Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625 : AIR 1980 SC 1789, relied on

T. Devadasan v. Union of India, AIR 1964 SC 179 : (1964) 4 SCR 680, held, dissenting opinion transmuted into law

GM, Southern Railway v. Rangachari, AIR 1962 SC 36 : (1962) 2 SCR 586; M.R Balaji v. State of Mysore, AIR 1963 SC 649 : 1963 Supp (1) SCR 439; T. Devadasan v. Union of India, AIR 1964 SC 179 : (1964) 4 SCR 680; Triloki Nath Tiku v. State of J&K, AIR 1967 SC 1283 : (1967) 2 SCR 265, held, overruled on this point

State of Madras v. Champakam Dorairajan, AIR 1951 SC 226 : 1951 SCR 525; Dred Scott v. Sandford, 15 L Ed 691 : 60 US 393 (1856); Plessy v. Ferguson, 41 L Ed 256 : 163 US 537 (1895); Brown v. Board of Education, 98 L Ed 873 : 347 US 483 (1953); Gratz v. Bollinger, 156 L Ed 2d 257 : 539 US 244 (2003); Regents of the University of California v. Bakke, 57 L Ed 2d 750 : 438 US 265 (1978); Grutter v. Bollinger, 156 L Ed 2d 304 : 539 US 306 (2003); Adarand Constructors, Inc. v. Pena, 132 L Ed 2d 158 : 515 US 200 (1995); Parents Involved in Community Schools v. Seattle School District, 168 L Ed 2d 508 : 127 S Ct 2738 (2007), considered

Granville Austin: The Indian Constitution: Cornerstone of a Nation, p. 52, relied on

Per Pasayat and Thakker, JJ.

There is a conceptual difference between the cases decided by the American Supreme Court and the cases at hand. 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 the Fourteenth Amendment to the American Constitution. 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 in-depth scrutiny has to be made to decide the constitutionality or otherwise of a statute.

[Paras 252 and 358(10)]

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. In the first phase of the US constitutional law there was only affirmative action. On the other hand 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 recognised, in America, the rights have been conferred on individuals and not so much on the groups. Further, in the Indian Constitution right from the beginning affirmative action has been provided, for example, provisions made for Scheduled Castes and Scheduled Tribes. On the other hand, in India 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 minimise the inequalities in income. The Constitution from its inception contained Article 17 which abolishes untouchability.

(Paras 253, 273 and 274)

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.

(Para 268)

It needs to be clarified that the use of the expression “strict scrutiny” in Narendra Kumar case, AIR 1960 SC 430 has been used in a context different from its settled American usage. 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.

(Para 269)

Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385; Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625 : AIR 1980 SC 1789; State of Kerala v. N.M Thomas, (1976) 2 SCC 310 : 1976 SCC (L&S) 227; A.K Roy v. Union of India, (1982) 1 SCC 271 : 1982 SCC (Cri) 152; State of W.B v. Anwar Ali Sarkar, AIR 1952 SC 75 : 1952 SCR 284; State of Bombay v. F.N Balsara, AIR 1951 SC 318 : 1951 SCR 682, relied on

Narendra Kumar v. Union of India, AIR 1960 SC 430 : (1960) 2 SCR 375, clarified

Plessy v. Ferguson, 41 L Ed 256 : 163 US 537 (1895); United States v. Carolene Products, 82 L Ed 1234 : 304 US 144 (1937); Skinner v. Oklahoma, 86 L Ed 1655 : 316 US 535 (1941); Regents of the University of California v. Bakke, 57 L Ed 2d 750 : 438 US 265 (1978); Grutter v. Bollinger, 156 L Ed 2d 304 : 539 US 306 (2003), referred to

It is unnecessary to decide as it has been contended by 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.

(Para 352)

Per Pasayat and Thakker, JJ.

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 has been applied in the background of Article 19 vis-à-vis compelling State needs.

(Para 353)

Chintaman Rao v. State of M.P, AIR 1951 SC 118 : 1950 SCR 759; State of Madras v. V.G Row, AIR 1952 SC 196, relied on

Per Bhandari, J.

At the outset, it is made 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 US 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. US law is, of course, not binding but does have great persuasive value. Where others have reviewed similar issues in great detail, it behoves us to learn from their mistakes as well as accomplishments. We need to keep our window open and permit the light of knowledge to enter from any source. Let the path to our constitutional goals be enlightened by experience, learning, knowledge and wisdom from any quarter. The Rig Veda says:

Ano bhadrah krtavo yantu viswatah

“Let noble thought come to us from every side.”

(Paras 545, 623, 640 and 641)

R. Venkataraman, former President of India in Foreword to Dr. L.M Singhvi: “Democracy and Rule of Law: Foundation and Frontiers”, referred to

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 the 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 is narrowly tailored to a compelling State interest. The strict scrutiny test is the least deferential to the Government.

(Para 553)

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. This is because their problem of race is akin to our problem of caste. In the US, 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.

(Paras 545 and 623)

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. American courts carefully review racial classifications. Given that the Ninety-third Amendment on its face discriminates against General Category students, it should be given careful scrutiny. The Article 14 right to formal equality deserves as much.

(Paras 554 and 556)

Per Bhandari, J.

ZA. Interpretation of Statutes — External aids — Parliamentary debates and Ministers' speeches — Relevance of — Respect for proceedings of the legislature — Per Pasayat and Thakker, JJ., it is a settled position that there can be only limited use of parliamentary debates — Courts should not normally critically analyse the proceedings of Parliament — Constitution of India — Arts.. 122 and 212 — Constitutional Law — Separation of powers

(Para 248)

ZB. Constitution of India — Arts.. 13, 32, 122 and 212 — Short length of parliamentary debate in passing legislation — Effect — Per Pasayat and Thakker, JJ., the same cannot and does not become a ground for invalidity of the decision

(Para 250)

Per Pasayat and Thakker, JJ.

State of Mysore v. R.V Bidap, (1974) 3 SCC 337 : 1973 SCC (L&S) 538, relied on

Builders Assn. of India v. Union of India, 1995 Supp (1) SCC 41; K. Nagaraj v. State of A.P, (1985) 1 SCC 523 : 1985 SCC (L&S) 280, referred to

ZC. Constitution of India — Arts.. 30(1) and 29(1) — Relative scope — Aided minority institutions — Scope of rights of — Admission, administration and management — Curbs that may be placed on — Reservation for minority students — Extent permissible — Principles reiterated and summarised (per Bhandari, J.)

(Paras 612 to 616)

T.M.A Pai Foundation v. State of Karnataka, (2002) 8 SCC 481; St. Stephen's College v. University of Delhi, (1992) 1 SCC 558; Kerala Education Bill, 1957, In re, AIR 1958 SC 956 : 1959 SCR 995, referred to

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