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

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A part of successive Governments to concentrate on elementary education towards universal elementary education. "Sarva Shiksha Abhiyan" (SSA) had been launched by the Government in 2001-2002. The learned Solicitor General also pointed out that it is incorrect to say that there has been no proper B consideration of the Bill in Parliament, particularly in relation to Financial Memorandum. It is pointed that debates in Parliament are not usually relevant for construction of the provisions of an Act. The learned Solicitor General also submitted that it cannot seriously be disputed that large sections of the population are •C socially and educationally backward and it is nobody's case that the total population of OBCs in this country is less than 27%. Even on the basis of the facts relied on by the petitioners, namely, National Sample Survey Organisation (NSSO), the total population of OBCs in India is around 36%. The NSSO had IJ conducted this survey for the preparation of its 61 51 Round of survey which was published in October 2006. This survey indicated that the total number of OBCs in India is around 41 %. 27% reservation in relation to admission had been upheld in Indra Sawhney's case (supra) and the Parliament has taken - special care to see that this reservation does not affect seats in the general category. The learned Solicitor General also pointed out that the policy of reservation flows from the mandate of equality till the time the Constitutional objective of real equality is achieved. Moreover, the policy of reservation has been - introduced for the first time after 56 years of coming into force of the Constitution. The learned Solicitor General also pointed out thq:it meticulous care has been taken for the inclusion of certain castes in the OBCs list and reference was made to cases in Rajasthan, Karnataka and Kerala.

61. Shri Gopal Subramanium, the learned Additional Solicitor General, supported the Constitution (Ninety-Third Amendment) Act, 2005 and also the provisions of Act 5 of2007. The learned Additional Solicitor General submitted that the , American doctrines are not applicable to India. In this regard,

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 101 [K.G. BALAKRISHNAN, C.J.I.]

the observations of this Court in A.K. Roy Vs. Union of India A ·t & Ors. 30 , that "we cannot transplant, in the Indian context and conditions, principles which took birth in other soils, without a careful examination of their relevance to the interpretation of our Constitution" were cited. It is pointed by the learned Additional Solicitor General that prepositions enunciated in the B decisions of the United States Supreme Court in Regents of the University of California Vs. Bakke 31 , Grutter Vs. .( Bollinger3 2 and Gratz Vs. Bollinger33 , and Parents Involved in Community Schools Vs. Seattle School District34 , that the Court will apply the standard of strict scrutiny while reviewing c legislation involving suspect classification; that and such legislation would be effected if two conditions are met, namely, (i) there is a compelling governmental interest in making the classification, and (ii) the legislation has been narrowly tailored to meet that classification; that the classification based on race is a suspect classification and that accordingly while race can be a factor in admission policies of educational institutions, it cannot be the sole factor and it cannot lead to the imposition of quotas, which are per se unconstitutional - each of these propositions has been rejected in Indian law and the Indian Constitution neither admits "suspect classification" nor "strict scrutiny". The constitutionality of quotas has been repeatedly affirmed and reliance by the Petitioners on the United States "affirmative action" judgments is wholly misconceived. The learned Additional Solicitor General has made special reference to various American decisions on the doctrine of "affirmative F f- action". The learned Additional Solicitor General has also referred to the decisions of this Court in N.M. Thomas' case (supra) and K.C. Vasanth kumar's case (supra) and other

G 30 1982 (1) sec 271 31 438 us 265 (1978) 32 539 us 306 (2003) 33 539 us 244 (2003) 34 127 S.Ct. 2738 (2007) H

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A decisions to contend that Articles 16(4) and 15(4) are not exceptions to Articles 16(1) and 15(1) respectively and these .;. provisions have to be read together with the principles of governance set out in Part IV of the Constitution and it is beyond doubt that underlying constitutional obligations are towards B socially and educationally backward classes and there is a positive obligation on the State to take steps to eradicate their

c backwardness. The learned Additional Solicitor General also refuted the contentions advanced by Shri P.P. Rao, learned Senior Counsel, and contended that all efforts have been made by the Government to improve primary and upper primary ~ . education in India. The learned Additional Solicitor General also contended that the argument advanced by Dr. Rajeev Dhavan is not correct. He relied upon Arjun Sen Gupta's Report 35 wherein it is stated :- D " ..... Education can b~ a liberating capability but access to it is made difficuit, if not impossible, by such inherited characteristics as lower social status, rural origin, informal ~ work status and gender or a combination of these."

62. Shri Ram Jethmalani , learned Senior Counsel E appearing for the lntervener-Rashtriya Janta Dal Party in W.P. No. 313 of 2007 and W.P. No. 335 of 2007, contended that the attempt of the petitioners in these writ petitions is to off-set the decision of the Nine Judges Bench in Indra Sawhney's case (supra). It is pointed out that the equality of citizens is the basic .F feature of the Indian Constitution but by "equality" is meant not .. "formal or technical equality" but "real and substantial equality". The word "only" used in Articles 15(1) and 16(2) is decisive. Even if reservations are made for castes, the classification will become invalid if it is only on the basis of caste and if some G other additional requirement is imposed, that case would be considered to be outside the prohibition of Article 15(1 ). Reference is made to B. Venkataramana's case (supra). It

35 Arjun Sen Gupta Report on "Conditi; ns of Work and Promotion of H Livelihood in the Unorganised Sector (July 2007)

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 103 [K.G. BALAKRISHNAN, C.J.1.]

was contended that a statute cannot be declared ultra vires merely because backwardness is a complex concept and no precise definition is possible. The Court is bound to assume that a state of facts existed at the time of the enactment of the · statute which would validate that statute and when the Constitution of the United States came into effect it did not contain the constitutional right of equality. Even the Vth· Amendment of 1971 to the Constitution of the United States of .f America did not introduce this concept. The XIVth Amendment of 1868 provided that the "State shall not deny to any person the equal protection of the laws". Even after this injunction, the Unitedc States Supreme Court delivered the judgment in Plessy Vs. Ferguson 36 , which laid down the doctrine of "Equal but Separate". This doctrine was in force till it was reversed in 1954. The learned Senior Counsel also contended that the policy of reservation is not destructive of merit and that the Symbiosis 0 University is not covered by the statute.

63. Shri T.R . Andhyarujina , the learned Senior Counsel appearing for the respondents in W.P. 265/2006, contended thatArticles 15(4) and 16(4) operate in different fields and Article 15(4) enables the State Government to make special provisions for backward classes, SCs and STs which can be done both by law or by executive order. The special provision in Article 15(4) is not restricted to advancement of SEBCs, SCs and STs in educational institutions only and enables the State to make several kinds of positive action programmes in addition to reservations. As a condition for giving aid, the State can make reservations for SEBCs, SCs and STs in educational institutions which are State owned or State aided. The State, however, cannot make such reservations in private unaided educational institutions, as held by this Court in T.M.A. Pai Foundation G (supra) and P.A. lnamdar (supra) . This disability was because of T.M.A. Pai Foundation (supra) which provided that private unaided educational institutions had a fundamental right to

36 (1896)41 L.Ed. 256 H

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A "occupation" of carrying on education under Article 19(1 )(g). Therefore, the Parliament introduced Article 15(5) by the Constitution (Ninety-Third Amendment) Act to enable the State to make special provisions for the advancement of SCs, STs and SEBCs in relation to a specific subject, namely, admission 8 in educational institutions including private educational institutions whether aided or unaided by the State notwithstanding the provisions of Article 19(1 )(g). However, Article 15(5) excluded private educational institutions.which are minority educational institutions referred to in clause (1) of Article c 30. The saving for minority educational institutions in Article 15(5) is really ex abundandi cautela as minority educational institutions were constitutionally protected and at all times considered different from other private educational institutions. Article 15(5) does not take away the "basic structure" of the Constitution. The "basic structure" of the Constitution should not 0 be trivialized to mean other features of the Constitution. Reference was made to the observations made by Khanna, J. in Kesavananda Bharati's case (supra). It was also submitted that Article 15(5) does not amend Entry 25 List Ill to the extent that the State can no more make laws for reservation of seats in minority educational institutions and, therefore, it is incorrect to say that the amendment in Article 15(5) required ratification under Article 368(2). The State's power to legislate under Article 245 is always subject to the other provisions of the Constitution, including fundamental rights. Article 15(4) does 'not take away the power of the State to make reservations in its own institutions by an executive action under Article 162. Right to carry on business is not a part of the basic structure of the Constitution .

64. On behalf of the respondent/State of Bihar in Writ G Petition (Civil) No. 269/2007, learned Senior Counsel Shri Rakesh Dwivedi submitted that the use of non-obstante clauses in Article 15(3), (4) and (5) vis-a-vis Article 15(1) shows that the prohibition against use of only caste as a ground for discrimination qua any citizen is there in so far as making of a special provision for adva'1cement of prescribed categories is H

( J ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 105 [K.G. BALAKRISHNAN, C.J.I.)

concerned. There is no repugnance between 15(4) and 15(5). A .... It was contended that in Kesavananda Bharati's case (supra), it was held that "Part Ill of the Constitution could be amended subject to the basic structure doctrine". The view which was held in l.C. Golak'Nath & Ors. Vs. State of Punjab & Anrs, 37 making Article 368 more restrictive, had been overruled in B Kesavananda Bharati's case (supra). The Fundamental Rights are not absolute and are designed to suffer reasonable . JI restrictions and classifications. Any sort of abridgement by Constitutional Amendment is clearly permissible so long as the invasion does not amount to total elimination or emasculation. c Within the domain of equality there is distinction between formal equality and real equality or equality in fact and both are comprehended in Article 14 and both are part of the basic structure.

65. The learned Senior Counsel also contended that the judicial review ideas of "suspect classification'', "strict scrutiny", i "compelling State interest" and "narrow tailoring" are measures propounded by the U.S. Supreme Court are not applicable and the Supreme Court of India has consistently taken a view that the judgments of the U.S. Supreme Court do norafford safe guidance on account of differing structure of the provisions under the two constitutions and the social conditions in these two countries being different.

66. Reference was made to the various decisions of this ~ court and it was argued that the comparison of the 14th F Amendment of the US Supreme Court read with Civil Rights Act, 1964 on the one hand and the fascicules of equality provisions in the Constitution of India, i.e. Articles 14 to 18 on the other hand shows that the equality provisions of our Constitution are not only differently structured but it contains G provisions for making special provisions for the advancement of SEBCs & SCs/STs. It is pointed out that our Constitution additionally enshrines Directive Principles of State Policy in

37 (1967) 2 SCR 762 H

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A Part-IV of the Constitution requiring the State to strive to promote justice social, economic and political and to minimize the ... inequalities in income and endeavour to remove inequalities in status, facilities and opportunities (Article 38).

67. Shri Ravivarma Kumar, learned Senior Counsel 8 appearing for Pattali Makkal Katchi, contended that the creamy layer principle shall not be invoked for the purpose of Article 15(5). According to the Counsel, reservation in educational institutions is not a poverty alleviation programme nor it is a programme to eradicate unemployment. Reservation under C Article 15(5) is not even a programme to educate all the backward classes. According to the Counsel the one and only goal of the reservation policy under Clause 4 & 5 of Article 15 of the Constitution is to bring about equality among various castes and unless all the castes are brought to one level playing field, the caste system cannot be eradicated. It is intended for removal of inequality between castes so that the castes will come together. These provisions are designed to bring together the leaders of each caste and community together and the same can be achieved only if the best teachers, the best administrators, the best doctors, the best engineers and the best lawyers are brought together. And so long as the gap in education persists between castes, the castes will not come together. It is only when each backward caste is permitted to advance educationally to meet the educational level of upper castes, can there be a real egalitarian society. According to the Counsel, it is precisely for this reason that Clause (2) of Article 38 seeks to eliminate inequality in status, facilities and opportunities, not only among individuals, but also among groups of people. Therefore, it is to provide for such equality in status, facilities and opportunities, that reservation is contemplated to those castes which are socially and educationally below other castes. If the best from the lower caste are deprived of these facilities and opportunities in the name of "creamy layer", it will be counter productive and frustrate the very object of reservation, namely to achieve equality in status, facilities and opportunities. H

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 107 [K.G. BALAKRISHNAN, C.J.I.]

68. The Counsel also contended that the question of A prescribing prior time limit for reservation under the impugned Act is immature and should not be considered at this stage.

69. The link between "caste" and its occupation is an unbreakable bondage to which the caste system has condemned the backward classes. Whether a backward caste 8 man carries on his traditional occupation or not, he continues to

- be socially identified with the said occupation. This link between ' the caste and the occupation has not been severed for thousands of years and it cannot be broken by arguments and theories. The ground reality is that every caste in every village is identified by its traditional occupation. And all the service communities continue to discharge their traditional occupation. It is pointed out that throughout the country in 6.5 lakh villages, it is the barber communities and barber communities alone, which carry on the traditional occupation of hair cuttings and no other community has taken up the said occupation. And they continue to labour 1 without any social security or whatsoever.

70. The Counsel pointed out that the last six decennial censuses have eschewed recording of caste particulars, the three National Commissions and scores of State Commissions E have found these Census data useless in identification of Backward Classes.

71. The learned Counsel submitted that there is no justification for not collecting details of caste identity at the F decennial census operation. According to the Counsel a .massive exercise is rendered useless for the all important work of identification of Backward Classes.

72. It is further submitted that the entire identification of backward classes has not been done on the basis of 1931 G Census data. In each State the identification of Backward Classes has been done on the basis of criteria evolved by the State Commissions on social, educational and economic parameters. Each State has adopted its own methodology. The identification of backward classes is essentially done at the H

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A State level on a very objective criteria and a scientific ... methodology. According to the Counsel, origin of the term "classes of citizens" may be traced to the later part of the 19th century. Quite often classes have been interchangeably used with castes, tribes and communities. Some of the earlier B Committee reports referred to Depressed Classes. Under the 1919 Act, Governors of the provinces give instruction to take

c measures forthe social and industrial welfare of the people and tending to fit all classes of population. And the Provincial ~ Governments prepared a list of Backward Classes with three parts namely, Depressed Classes, Aboriginal Tribes and Backward Communities. Dr. Ambedkar demanded separate - electorate for the Depressed Classes at the Round Table Conference.

73. The Counsel also pointed out that the building of a D casteless society is not the goal of the Constitution. And that it is futile to contend that caste should not be considered for any purpose whatsoever. In every conceivable activity of private life caste system plays an important role. There are hundreds of communal hostels and educational institutions owned and E managed by certain communities. Some castes and communities have communal clubs, associations, cooperatives, banks etc. Their membership and admission are confined to a particular caste or community. Even carrying of the caste names is the guaranteed right of every citizen. There is nothing in the F Constitution to prohibit a person from discriminating on the ground only of caste or community in matters relating to marriage, electing candidates to political position etc. Most of the professional colleges like medical, dental and engineering colleges are established and administered by a body of persons G exclusively belonging -to a class or a community. Though Dr. Ambedkar intended to abolish caste system by abolishing all the privileges and disabilities of the forward classes, the plea was opposed by Shri K.M. Munshi and the Draft Article 3(4) stated: H "Un-touchability is abolished and its practice thereof is

~ J ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 109 [K.G. BALAKRISHNAN, C.J.I.]

punishable by the law of the Union". A ..!

74. The Constitution never prohibits the practice of caste ::j and casteism. Every activity in Hindu society, from cradle to grave is carried on solely on the basis of one's caste. Even after death, a Hindu is not allowed to be cremated in the crematorium which is maintained for the exclusive use of the other caste or B community. Dalits are not permitted to be buried in graves or cremated in crematoriums where upper caste people bury or cremate their dead. Christians have their own graveyards. · Muslims are not allowed to be buried in the Hindu crematoriums and vice-versa. Thus, caste rules the roost in the life of a Hindu c and even after his death. In such circumstances, it is entirely ".. fallacious to advance this argument on the ground that the Constitution has prohibited the use of caste. It was argued what • the Constitution aims at is achievement of equality between the castes and not elimination of castes. D

75. The learned Senior Counsel points out that it would be ./ utopian to expect that by ignoring caste, the castes will perish. And the Counsel contended the Constitution has not abolished the caste system much less has it prohibited its use. The Counsel pointed out that the Constitutional Amendment under the impugned Act in favour of backward classes is an unprecedented leap taking the higher education in the country forward, without depriving a single seat to the forward castes. And the advanced castes, with a population of less than 20% would still be able to get 50% of the seats in the name of merit disproportionate to their known proportion of their.population. It is contended that without the advancement of SCs, $Ts and OBCs constituting over 80% population and mainly living in rural areas, it will not be possible to take the nation forward. And the students who are admitted under the reserved quota have performed much better than the students admitted on the basis of merit. The learned Counsel also placed reliance on the Moily • Report - Case studies from four States.

76. The main challenge in these writ petitions is the H

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A constitutional validity of the Act 5 of 2007. This legislation was passed by Parliament consequent upon The Constitution (Ninety-Third Amendment) Act, 2005, by which sub-article (5) was inserted in Article 15 of the Constitution. The constitutionality of this amendment has also been challenged in the various writ B petitions filed by the petitioners. As the Act itself is based on the Constitution (Ninety-Third Amendment) Act, 2005, the validity of the Act depends on the fact whether the Constitution (Ninety- Third Amendment) Act, 2005 itself is valid or not. Article 15 of the Constitution, afterthe Constitution (Ninety-Third Amendment) c Act, 2005, reads as follows :- "15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.- (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or D any of them. (2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to,- E (a) access to shops, public restaurants, hotels and places of public entertainment; or (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of F State funds or dedicated to the use of the general public. · (3) Nothing in this Article shall prevent the State from making any special provision for women and children. (4) Nothing in this Article or in clause (2) of Article 29 shall G prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes (5) Nothing in this Article or sub-clause (g) of clause (1) of H Article 19 shall prevent the State from making any provision

,, ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS .. 111 [K.G BALAK~ISHNAN, C.J.1.]

by law for the advancement of any socially a.nd educationally backward classes of citizens or the Scheduled Castes or the Scheduled Tribes in so far as such special provision relate to their admission to the educational institutions, including private educational institutions whether aided or unaided by the State other minority educational institutions referred to in clause (1) of Article 30."

77. T.M.A. Pai Foundation (supra) held that a private unaided educational institution has the fundamental right under Article 19(1 )(g) of the Constitution as the running of an c educational institution was treated as an "occupation" and further that the State's regulation in such institutions would not be regarded as a reasonable restriction on that fundamental right to carry on business under Article 19(6). This decision necessitated the Ninety-Third Amendment to the Constitution D since as a result of T.M.A. Pai Foundation (supra) the State would not be in a position to control or regulate the admission in private educational institutions. At the outset, it may have to be stated that no educational institution has come up to challenge the Constitution (Ninety-Third Amendment) Act, 2005. E The challenge about the constitutionality of the Constitution (Ninety-Third Amendment) Act, 2005 has been advanced by the petitioners, who based their contentions on the equality principles enunciated in Articles 14, 15 and 16 of the Constitution. F

78. The Constitution (Ninety-Third Amendment) Act, 2005 is challenged on many grounds. The first ground of attack is that if the Constitution (Ninety-Third Amendment) Act, 2005 is allowed to stand it would be against the "basic structure" of the Constitution itself and this Amendment seriously abridges the G equality principles guaranteed under Article 15 and other ·I provisions of the Constitution. Another contention raised by the petitioners' Counsel is that the Golden Triangle of Articles 14, 19 and 21 is not to be altered and the balance and structure of these constitutional provisions has been ousted by the H

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A Constitution (Ninety-Third Amendment) Act, 2005. Yet another contention urged by Shri K.K. Venugopal, learned Senior Counsel, is that Article 15(4) and 15(5) are mutually exclusive and under Article 15(5) the minority educational institutions are excluded. According to him, this is a clear contravention of the B secular and equality principles. The learned Senior Counsel also pointed out that minority institutions are not severable from the purview of Article 15(5) and therefore, the whole Constitution (Ninety-Third Amendment) Act, 2005 is to be declared illegal. Another argument advanced by the learned Senior Counsel is c that there is inconsistency between Article 15(4) and Article 15(5) and by virtue of the Constitution (Ninety-Third Amendment) Act, 2005, the States are devoid of their wide power under Article 15(5) to make reservation in minority educational institutions which are getting aid from the States and thus it is violative of 0 the very essence of equality. He further argued that the Constitution (Ninety-Third Amendment) Act, 2005 could control the legislative and executive power of the State and, therefore, it is not constitutionally valid. The learned Counsel had further challenged the validity of Act 5 of 2007, with which we will deal separately. E t

1Copy pinpoint1. Whether Ninety-Third Amendment of the Constitution Is against the "basic structure" of the Constitution?

79. The Constitution (Ninety-Third Amendment) Act, 2005, F by which clause (5) was added to Article 15 of the Constitution, is an enabling provision which states that nothing in Article 15 or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward G classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to the educational institutions including private educational institutions, whether aided or unaided by the State. Of course, minority educational institutions referred to in clause H (1) of Article ~Oare excluded. Thus, the newlv added clause (5)

,, ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 113 [K.G. BALAKRISHNAN, C.J.I.] of Article 15 is sought to be applied to educational institutions A r whether aided or unaided. In other words, this newly added constitutional provision would enable the State to make any special provision by law for admissi.on in private educational institutions whether aided or unaided. In al! the petitions which have been filed before us the main challenge is against Act 5 of B

2007. Act 5 of 2007 has been enacted to provide reservation of seats for Scheduled Castes, Scheduled Tribes and SEBCs of citizens in Central Educational Institutions. The "Central Educational Institution" has been defined under Section 2(d) of the Act. They are institutions established or incorporated by or c under the Central Act or set up by an Act of Parliament or deemed Universities maintained by or receiving aid from the Central Government or institutions maintained by or receiving aid from the Central Government or educational institutions set up by the Central Government under the Societies Registration D Act, 1860. Act 5 of 2007 is not intended to provide reservation in "private unaided" educational institutions. None of the private unaided educational institutions have filed petitions before us challenging the Ninety-Third Constitutional Amendment. Though the learned counsel appearing for the petitioners have challenged the Ninety-Third Constitutional Amendment on various grounds, they were vis-a-vis the challenge to Act 5 of

2007. The counter to the challenge by the learned Solicitor General as well as by Shri K. Parasaran, learned Senior Counsel was also in that context. We do not want to enter a finding as to whether the Ninety-Third Constitutional Amendment is violative of the "basic structure" of the Constitution so far as it relates to "private unaided" educational institutions. In the absence of challenge by private unaided educational institutions,,it would not be proper to pronounce upon the constitutional validity of that part of the Constitutional Amendment. As the main challenge in these various petitions was only regarding the provisions of Act 5 of 2007, which related to state maintained institutions, the challenge to the Ninety-Third Constitutional Amendment so far as it relates to private unaided educational institutions, does not strictly arise in these proceedings. In the absence of H

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A challenge by private unaided institutions, it may not be proper for this Court to decide whether the Ninety-Third Constitutional ~ Amendment is violative of the "basic structure" of the Constitution so far as it relates to private unaided educational institutions merely because we are considering its validity in the context of Act 5 of 2007.

We feel that such questions could be decided as the main questions that are involved in these petitions are specific regarding Act 5 of 2007, we leave open the question as to whether the Ninety-Third Amendment to the Constitution by which sub-clause (5) was inserted is violative of the basic structure doctrine or not so far as it relates to "private unaided" educational institutions to be decided in other appropriate cases. We deal only with the question of whether the Ninety- Third Constitutional Amendment is constitutionally valid so far as it relates to the state maintained institutions and aided educational institutions.

80. Several contentions have been advanced by the petitioners' Counsel challenging the constitutional validity of the E Constitution (Ninety-Third Amendment) Act, 2005. The main argument was on the ground that this amendment is against the "basic structure" of the Constitution. In order to appreciate the contention of the petitioners' Counsel, it is necessary to understand the "basic structure" theory that has been propounded in the celebrated case of Kesavananda Bharati F (supra). This case was a decision of 13 Judge Bench of this Court. Though the Judges were not unanimous about what the "basic structure" of the Constitution be, however, Shelat J. (at page 280) in his judgment had indicated the following basic features of the Constitution :- G . "The basic structure of the Constitution is not a vague concept and the apprehensions exp,ressed on behalf of the respondents that neither the citizen nor the Parliament would be able to understand it are unfounded. If the historical background, the Preamble, the entire scheme H

~ , ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 115 [K.G. BALAKRISHNAN, C.J.I.]

L of the Constitution, the relevant provisions thereof including A Article 368 are kept in kind there can be no difficulty in discerning that the following can be regarded as the basic elements of the constitutional structure. (These cannot be catalogued but can only be illustrated) :-

1. The supremacy of the Constitution. B

2Copy pinpoint2. Republican and Democratic form of Government and sovereignty of the country.

3Copy pinpoint3. Secular and federal character of the Constitution. c

4Copy pinpoint4. Demarcation of power between the legislature, the executive and the judiciary.

5Copy pinpoint5. The dignity of the individual secured by the various freedoms and basic rights in Part Ill and the mandate to build a welfare State contained in Part IV. D

6Copy pinpoint6. The unity and the integrity of the nation."

81. Sikri, CJ (at page 165-166) held that:- "The true position is that every provision of the Constitution can be amended provided in the result the basic foundation and structure of the constitution remains the same. The basic structure may be said to consist of the following features :- (1) Supremacy of the Constitution. F (2) Republication and Democratic form of Government. (3) Secular character of the Constitution. (4) Separation of powers between the Legislature, the executive and the judiciary. G= (5) Federal character of the Constitution." ~

82. The power of Parliament to amend the Constitution also was dealt with in detail and majority of the Judges held that the fundamental rights can be amended, altered or abridged. HI

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A The majority decision in Kesavananda Bharati's case (supra) 1 overruled the decision in l.C. Golak Nath Vs. State of Punjab, (supra). Kesavananda Bharati indicates the extent to which amendment of the Constitution could be carried out and lays down that the legality of an amendment is no more open to attack 18 than the Constitution itself. It was held that the validity of an ordinary law can be questioned and when it is questioned it must be justified by reference to a higher law. In the case of the Constitution the validity is inherent and lies within itself. The Constitution generates its own validity. The validity of the ..,"' Constitution lies in the social fact of its acceptance by the community. There is a clear demarcation between an ordinary law made in exercise of the legislative power and the constituent law made in exercise of constitutional power. Therefore, the power to amend the Constitution is different from the power to ) amend ordinary law. The distinction between the legislative power and the constitutional power is vital in a rigid or controlled Constitution because it is that distinction which brings in the doctrin¢ that a law ultra vires the Constitution is void. When the Parliament is engaged in the amending process it is not _ legislating, it is exercising a particular power bestowed upon it sui generis by the amending clause in the Constitution. Sikri, CJ, held that the expression "amendment of this Constitution" does not enable Parliament to abrogate or take away fundamental rights or to completely change the fundamental features of the Constitution so as to destroy its identity. Within these limits Parliament can amend eivery article. Shelat &Grover JJ. (at p 291) concluded that: ''Though the power to amend cannot be narrowly construed and extends to all the Articles it is not unlimited so as to include the power to abrogate or change the identity of the Constitution or its basic features."

83. Hegde & Mukherjee, JJ. finally concluded (at p 355) that: "The power to amend the Constitution under Article 368 -i

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 117 [K.G. BALAKRISHNAN, C.J.I.] as It stood before its amendment empowered the A Parliament by following the form and manner laid down in that Article, to amend each and every Article and each · and every Part of the Constitution ..... Though the power to amend the Constitution under Article 368 is a very wide power, it does not yet include the power to destroy or B emasculate the basic elements or the fundamental features of the Constitution." -f 84. Ray J. (as he then was) (at p 461) held that:- " .. .The Constitution is the supreme law. Third, an c amendment of the Constitution is . an exercise of the constituent power. The majority view in Golak Nath case is with respect wrong. Fourth, there are no express limitations to the power of amendment. Fifth, there are no implied and inherent limitations on the power of amendment. Neither the Preamble nor Article 13(2) is at all a limitation on the power of amendment. Sixth, the power -/ to amend is wide and unlimited. The power to amend means the power to add, alter or repeal any provision of the Constitution. There can be or is no distinction between essential and in-essential features of the Constitution to raise any impediment to amendment of alleged essential features."

85. Palekar, J. (at p. 632) concluded that :- ''The power and the procedure for the amendment of the F Constitution were contained in the unamended Article 368. An Amendment of the Constitution in accordance with the procedure prescribed in that Article is not a 'law' within the meaning of Article 13. An amendment of the Constitution abridging or taking away a fundamental right conferred by G . Part Ill of the Constitution is not void as contravening the provisions of Article 13(2). There were no implied or • inherent limitations on the amending power under the unamended Article 368 in its operation over the fundamental rights . There can be non·e after its H

p. 118 Copy page pinpoint

A amendment."

86. Khanna, J. (at p. 758, 759) concluded that:- "The power to amendment under Article 368 does not include power to abrogate the Constitution nor does it B include the power to alter the basic structure or framework of the Constitution. Subject to the retention of the basic structure or framework of the Constitution, the power of amendment is plenary and includes within itself the power to amend the various articles of the Constitution, including ' .. c those relating to fundamental rights as well as those which may be said to relate to essential features. No part of a fundamental right can claim immunity from amendatory process by being described as the essence or core of that right. The power of amendment would also include within itself the power to add, alter or repeal the various articles."

87. Mathew, J. (at p. 857) held that:- "The only limitation is that the Constitution cannot be repealed or abrogated in the exercise of the power of amendment without substituting a mechanism by which the State is constituted and organized. That limitation flows from the language of the article itself."

88. Beg, J. (at p. 886) held that:- F "The majority view in Golak Nath's case (supra), holding thatArticle 13 operated as a limitation upon the powers of Constitutional amendment found in Article 368, was erroneous." He upheld the 24th Amendment and the 25th Amendment G Act including addition of Article 31C.

89. Dwivedi, J finally concluded that: "The word "amendmenr in Article 368 is broad enough to • authorize the varying or abridging each and every provision H

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 119 [K.G. BALAKRISHNAN; C.J.I.]

of the Constitution, including Part Ill. There are no inherent and implied limitations of the amendment power in Article ·3sa"

90. Finally, Chandrachud, J. (at p. 1000} held.that: "The power of amendment of the Constitution conferred by the then Article 368 was wide and unfettered. It reached every part and provision of the Constitution."

-i 91. A survey of the conclusions reached by the learned Judges in Kesavananda Bharati's case (supra) clearly shows that the power of amendment was very wide and even the fundamental rights could be amended or altered. It is also important to note that the decision in RE : The Berubari Union and Exchange of Enclaves, Reference under Article 143(1) of the Constitution of lndia38 , to the effect that preamble to the Constitution was not part of the Constitution wa~ disapproved in Kesavananda Bharati's case (supra) and it was held that it is a part of the Constitution and the Preamble to the Constitution is of extreme importance and the Constitution should be read and interpreted in the light of the grand and noble visions envisaged in the Preamble. A close analysis of the decisions in E Kesavananda Bharati's case (supra) shows that all the provisions of the Constitution, including the fundamental rights,· could be amended or altered and the only limitation placed is that the basic structure of the Constitution shall not be altered. The judgment in Kesavananda Bharati's case (supra} clearly indicates what is the basic structure of the Constitution. It is not any single idea or principle like equality or any other constitutional principles that are subject to variation, but the principles of equality cannot be completely taken away so as to leave the citizens in this country in a state of lawlessness. But the facets of the principle of equality could always be altered especially to carry out the Directive Principles of the State Policy envisaged in Part IV of the Constitution. The Constitution (Ninely-Third

38 (1960) 3 SCR 250 H

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A Amendment) Act, 2005 is to be examined in the light of the above position.

92. The basic structure of the Constitution is to be taken as a larger principle on which the Constitution itself is framed and some of the illustrations given as to what constitutes the 8 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 y .. c it amounts to alteration of the Basic Structure of the Constitution. For example, the federal character of the Constitution is considered to be the basic structure of the Constitution. There are large number of provisions in the Constitution dealing with the federal character of the Constitution. If any one of the provisions is altered or modified, that does not amount to the alteration of the basic structure of the Constitution. Various fundamental rights are given in the Constitution dealing with various aspects of human life. The Constitution itself sets out principles for an expanding future and is obligated to endure for future ages to come and consequently it has to be adapted to the various changes that may take place in human affairs.

93. For determining whether a particular feature of the Constitution is part of the basic structure or not, it has to be examined in each individual case keeping in mind the scheme of the Constitution, its objects and purpose and the integrity of the Constitution as a fundamental instrument for the country's governance. It may be noticed that it is not open to challenge the ordinary legislations on the basis of the basic structure principle. State legislation can be challenged on the question whether it is violative of the provisions of the Constitution. But as regards constitutional amendments, if any challenge is made on the basis of basic structure, it has to be examined based on the basic features of the Constitution. It may be noticed that the ; majority in Kesavananda Bharati's case (supra) did not hold that all facets of Article 14 or any of the fundamental rights would

' ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. [K.G. BALAKRISHNAN, C.J:I.] 121

\ form part of the basic structure of the Constitution. The majority upheld the validity of the first part of Article 30(1 )(c) which would show that the constitutional amendment which takes away or abridges the right to challenge the validity of an arbitrary law or .. violating a fundamental right under that Article would not destroy or damage the basic structure. Equality is a multi-coloured concept incapable of a single definition as is also the fundamental right under Article 19(1 )(g). The principle of equality ,, is a delicate, vulnerable and supremely precious concept for "' our society. It is true that it has embraced a critical and essential component of constitutional identity. The larger principles of c equality as stated in Article 14, 15 and 16 may be understood as an element of the "basic structure" of the Constitution and may not be subject to amendment, although, these provisions, intended to configure these rights in a particular way; may be changed within the constraints of the broader principle. The D variability of changing conditions may necessitate the I modifications in the structure and design of these rights, but the transient characters of formal a·rrangements 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 E objectionable, rather it is the content of this change in so far as it implicates the question of constitutional identity.

94. The observations made by Mathew, J in Smt. Indra Gandhi Vs. Raj Narain 39 are significant in this regard: F "To be a basic structure it must be a terrestrial concept having its habitat within the four corners of the Constitution." What constitutes basic structure is not like "a. twinkling star up above the Constitution." It does not consist of any abstract ideals to be found outside the provisions of the G Constitution. The Preamble no doubt enumerates great .. concepts embodying the ideological aspirations of the people but these concepts are particularised and their 39 (1976) 2 SCR 347: (AIR 1975 SC 2299) H

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A essential features delineated in the various provisions of the Constitution. It is these specific provisions in the body of the Constitution which determine the type of democracy which the founders of that instrument established; the quality and nature of justice, political, social and economic B which they aimed to realize, the content of liberty of thought and expression which they entrenched in that document and the scope of equality of status and of opportunity which they enshrined in it. These specific provisions enacted in the Constitution alone ccin determine the basic structure c of the Constitution. These specific provisions, either separately or in combination, determine the content of the great concepts set out in the Preamble. It is impossible to spin out any concrete concept of basic structure out of the gossamer concepts set out in the Preamble. The specific provisions of the Constitution are the stuff from which the basic structure has to be woven".

95. If any Constitutional amendment is made which moderately abridges or alters the equality principle or the principles under Article 19(1 )(g), it cannot be said that it violates the basic structure of the Constitution. If such a principle is accepted, our Constitution would not be able to adapt itself to the changing conditions of a dynamic human society. Therefore, the plea raised by the Petitioners' that the present Constitutional Ninety-Third Amendment Act, 2005 alters the basic structure of the constitution is of no force. Moreover, the interpretation of the Constitution shall not be in a narrow pedantic way. The observations made by the Constitution Bench in Nagaraj's case (supra) at page 240 are relevant: · "Constitution Is not an ephermal legal document embodying a set of legal rules for the passing hour. It sets out principles for an expanding future and is Intended to endure for ages to come and consequently to be adapted to the various crisis of human affairs. Therefore, a purposive rather than a strict literal approach to the interpretation should be adopted. A Constitutional provision

\ J ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 123 [K.G. BALAKRISHNAN, C.J.I.] must be construed not in a narrow and constricted sense but in a wide and liberal manner so as to anticipate and take account-of changing conditions and purposes so that constitutional provision does not get fossilized but remains flexible enough to meet the newly emerging problems and challenges." B

96. It has been held in many decisions that when a constitutional provision is interpreted, the cardinal rule is to look ... ~ to the Preamble to the Constitution as the guiding star and the Directive Principles of State Policy as the 'Book of Interpretation'. The Preamble embodies the hopes and aspirations of the c people and Directive Principles set out the proximate grounds in the governance of this country.

97. Therefore, we hold that the Ninety-Third Amendment to the Constitution does not violate the "basic structure" of the D. Constitution so far as it relates to aided educational institutions. Question whether reservation could be made for SCs, STs or SEBCs in private unaided educational institutions on the basis of the Ninety-Third Constitutional Amendment; or whether reservation could be given in such institutions; or whether any such legislation would be violative of Article 19(1 )(g) or Article. E 14 of the Constitution; or whether the Ninety-Third Constitutional Amendment which enables the State Legislatures or Parliament to make such legislation - are all questions to be decided in a properly constituted /is between the affected parties and others who support such legislation. F

2. Whether Articles 15(4) arid 15(5) are mutually contradictory, hence Artlcle 15(5) Is to be held ultra vires?

98. The next contention raised by the petitioner's Counsel G is that Article 15(4) and 15(5) are mutually exclusive and contradictory. The Counsel for the petitioner, particularly the \ petitioner in Writ Petition (C) No. 598 of 2006, submitted that Article 15(4) was a provision and a source of legislative power for the purpose of making reservation for Scheduled Castes H

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A (SCs) and Scheduled Tribes (STs) as well as for Socially and ,_ Educationally Backward Classes (SEBCs) of citizens in aided minority educational institutions. And Article 15(4) was inserted after the decision of this Court in Champakam Dorairajan (supra) and Article 15(5) provides for reservation of seats for B SCs, STs and SEBCs in aided or unaided educational institutions but expressly excludes all such reservation being made in minority educational institutions covered by Article 30( 1) of the Constitution. This, according to the Petitioner's learned , " Counsel, will lead to a situation where the State would not be in c a position to give reservation to SCs, STs and SEBCs even in aided minority institutions which have got protection under Article 30(1) of the Constitution. It is argued that in view of the express provision contained in Article 15(5), the State would no more be able to give the reservation and this according to the petitioner's Counsel would result in annulling the endeavour of 0 the founding fathers and the various provisions for neutralizing the exclusion of SCs & STs from the mainstream of society and development for centuries.

99. It is argued by petitioners' learned Counsel that Article E 15(4) and 15(5) both commence with an exclusionary clause excluding the operation of the rest of the Article 15, and hence would result in a conflict to the extent of inconsistency. According to the petitioners', Article 15(5) is a special provision relating to educational institutions and being a later amendment, it would prevail over Article 15(4), thus in substance and effect resulting in an amendment of Article 15(4) of the Constitution. According to the petitioner's Counsel, "nothing in this Article" in Article 15(5) would include Article 15(4) also and in view of this inconsistent provision, Article 15(5) has to be held to be inconsistent with 15(4) and thus non-operative.

100. Both Article 15(4) and 15(5) are enabling provisions. Article 15(4) was introduced when the "Communal G.O." in the 1 State of Madras was struck down by this Court in Champakam Doralrajan's case (supra). In Unni Krishnan (supra), this Court H held that Article 19(1 )(g) is not attracted for establishing and

\ ' ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. [K.G. BALAKRISHNAN, C.J.I.] 125

running educational institutions. However, in T.M.A. Pai A l Foundation case, (supra), it was held that the right to establish and running educational institutions is an occupation within the meaning of Article 19(1 )(g). The scope of the decision in T.M.A. Pai Foundation's case was later explained in P.A. lnamdar's case, (supra). It was held that as regards unaided institutions, B the State has no control and such institutions are free to admit students of their own choice. The said decision necessitated the enactment of the Constitution Ninety-Third Amendment Act,

2005. Thus, both Article 15(4) and 15(5) operate in different areas. The "nothing in this Article" [mentioned at the beginning c of Article 15(5)] would only mean that the nothing in this Article which prohibit the State on grounds which are mentioned in Article 15(1) alone be given importance. Article 15(5) does not exclude 15(4) of the Constitution. It is a well settled principle of ' constitutional interpretation that while interpreting the provisions D ~I of Constitution, effect shall be given to all the provisions of the "I Constitution and no provision shall be interpreted in a manner as to make any· other provision in the Constitution inoperative or otiose. If the intention of the Parliament was to exclude Article 15(4), they could have very well deleted Article 15(4) of the Constitution. Minority institutions are also entitled to the exercise E 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 F J "I their own field and the validity of any legislation made on the basis of Article 15(4) or 15(5) have to be examined on the basis of provisions contained in such legislation or the special provision j that may be made under Article 15(4) or 15(5). It may also be noticed that no educational institutions or any aggrieved party G have come before us challenging the constitutional amendment on these grounds. The challenge is made by petitioners • objecting to the reservations made under Act 5 of 2007. Therefore, the plea that Article 15(4) and 15(5) are mutually <• contradictory and, therefore, Article 15(5) is not constitutionally H

p. 126 Copy page pinpoint

A valid cannot be accepted. As has been held in N.M. Thomas case (supra) and Indra Sawhney's case (supra), Article 15(4) and 16(4) are not exceptions to Article 15(1) and Article 16(1) but independent enabling provision. Article 15(5) also to be taken as an enabling provision to carry out certain constitutional B mandate and thus it is constitutionally valid and the contentions raised on these grounds are rejected.

3. Whether exclusion of minority educational institutions from Article 15(5) is violative of Article 14 of Constitution? c

101. Another contention raised by the petitioner's Counsel is that the exclusion of minority institutions under Article 15(5) itself is violative of Article 14 of the Constitution. It was contended that the exclusion by itself is not severable from the rest of the o. provision. This plea also is not tenable because the minority institutions have been given a separate treatment in view of Article 30 of Constitution. Such classification has been held to be in accordance with the provisions of the Constitution. The exemption of minority educational institutions has been allowed to conform Article 15(5) with the mandate of Article 30 of the E Constitution. Moreover, both Article 15(4) and Article 15(5) are operative and the plea of non-severability is not applicable.

102. Learned Senior Counsel Dr. Rajeev Dhavan and · 1earned 'Counsel Shri Sushil Kumar Jain appearing for the petitioners contended that the Ninety-Third Constitutional Amendment would violate the equality principles enshrined in Articles 14, 19 and 21 and thereby the "Golden Triangle" of these three Articles could be seriously violated. The learned counsel also contended that exclusion of minorities from the operation of Article 15(5) is also violative of Article 14 of the Constitution. We "do not find much force in this contention. It has been held that Article 15(4) and Article 16(4) are not exceptions to Article 15(1) and Article 16(1) respectively. It may also be noted that if at all there is any violation of Article 14 ~r any other equality principle, the affected educational institution should have H

{~ ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 127 [K.G. BALAKRISHNAN, C.J.1.]

approached this Court to vindicate their rights. No such petition A has been filed before this Court. Therefore, we hold that the exclusion of minority educational institutions from Article 15(5) is not violative of Article 14 of the Constitution as the minority educational institutions, by themselves, are a separate class and their rights are protected by other constitutional provisions. B

4. Whether the Constitutional Amendment followed the procedure prescribed under Article 368 of the Constitution?

103. Another contention raised by the petitioner's Counsel c is that the Ninety-Third Constitutional Amendment is invalid as it violates the proviso to Article 368 of the Constitution. According to the petitioner's Counsel, the procedure prescribed under the proviso to Article 368 was not followed in the case of the Ninety- Third Amendment. According to the petitioner's Counsel, Article D 15(5) of the Constitution interferes with the executive power of the States as it impliedly takes away the power of the State Government under Article 162 of the Constitution.

104. This contention of the petitioner's Counsel has no force. The powers of the Parliament and the State legislatures to legislate are provided for under Article 245-255 of the Constitution. Under the proviso to Article 162, any matter with respect to which the legislature of the State and the Parliament have power to make laws, the executive power of the State shall be subject to and limited by the executive power expressly conferred by the Constitution or by any law made by Parliament upon the Union authorities thereof. The Ninety-Third Constitutional Amendment does not expressly or impliedly take away any such power conferred by Article 162. It may also be noticed that by virtue of the 42nd Amendment to the Constitution, G "education" which was previously in Entry No. 11 in List II was deleted and inserted in List Ill as Entry No. 25 as the field of legislation in List Ill. Article 245 will operate and by reasons of ' proviso to Article 162, the executive power of the State be subject to, limited by, the executive power expressly conferred by the ,,,. H

p. 128 Copy page pinpoint

A Constitution or by any law made by Parliament upon the Union authorities thereof. Subject to restrictions imposed under the Constitution, it has been in existence. Such power of the State is not limited or curtailed by the Ninety-Third Constitutional Amendment as it does not interfere with the power of the State B under Article 162. The Ninety-Third Constitutional Amendment does not fall within the scope of proviso to Article 368. Therefore, the plea raised by the petitioner's Counsel that the Ninety-Third Constitutional Amendment did not follow the prescribed procedure of Article 368 is not correct and the plea is only to be c rejected.

5. Whether the Act 5 of 2007 is constitutionally invalid in view of definition of "Backward Class" and whether the identification of such "Backward Class" based on "caste" is constitutionally valid? D

105. The next important plea raised by the petitioner's Counsel is regarding the validity of the Act 5 of 2007. The several contentions have been raised regarding the validity of the Act 5 of 2007. The first contention which was raised by the petitioner's Counsel that this Act is ex-facie unconstitutional and is a suspect legislation and violative of the Article 14, 15 and 19(1 )(g} of the Constitution. The main attack against the Act was that the socially and educationally backward classes of citizens were not properly identified and the delegation of power to identify the socially and educationally backward classes of citizens to the Central Government itself is illegal and the delegation of such powers by itself without laying down any guidelines is arbitrarily illegal. Elaborate arguments were made by the petitioner's Counsel and the first and foremost contention was that "caste" is the sole basis on which the socially and educationally backward classes of citizens were determined. And this, according to the petitioner's Counsel, is illegal. Reference was made to a series of decisions of this Court on this issue.

106. There is a long jurisprudential history as to whether H

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 129 [K.G. BALAKRISHNAN, C.J.I.]

caste can play any role in determining the socially and educationally backward classes of citizens. In Indra Sawhney's case (supra), which is a Nine Judge Bench decision, it was held that the "caste" could be a beginning point and a determinative factor in identifying the socially and educationally backward classes of citizens. But nevertheless, a brief survey of various decisions on this question would give a history of the jurisprudential development on this subject.

107. Reference to the earlier decisions is necessary because serious doubt has been raised as to whether "caste" could be the basis for recognizing backwardness. Some of the c earlier decisions have stated that caste should not be a basis for recognizing backwardness and gradually there was a shift in the views and finally, in Indra Sawhney's case (supra), it was held that caste could be the starting point for determining the socially and educationally backward classes of citizen .. D

108. In Champakam Dorairajan (supra), this Court struck down the classification made in the Communal G.O. of the then State of Madras. The G.O. was founded on the basis of religion and castes and was struck down on the ground that it is opposed to the Constitution and is in violation of the fundamental rights E guaranteed to the citizens. The court held that Article 46 cannot override the provisions of Article 29 (2) because of the Directive Principles of State Policy which were then taken subsidiary to fundamental rights. This decision led to the first constitutional amendment by which Article 15(4) was added to the F Constitution. 1

109. The next important case is M.R. Balaji & Ors. Vs. State of Mysore (supra). In this case, the State of Mysore issued an order that all the communities except the Brahm in community G would fall within the definition of socially and educationally ~.

backward class and Scheduled Castes and Scheduled Tribes ; and 75% of the seats in educational institutions were reserved for them. It was observed that though caste in relation to Hindus __,. may be a relevant factor to consider while determining social H

p. 130 Copy page pinpoint

A backwardness of groups or classes of citizens, it cannot be made the sole or dominant test. It was held that the classes of citizens who are deplorably poor automatically become socially backward. Moreover, the occupation of citizens and the place of their habitation also result in social backwardness. The B problem of determining who are socially backward classes is undoubtedly very complex, but the classification of socially backward citizens on the basis of their caste alone is not permissible under Article 15 (4). Learned Senior Counsel Shri Harish Salve drew our attention to the various passages in the judgment. Gajendragadkar, J. speaking for the majority of the Judges, said :-

"The Problem of determining who are socially backward classes is undoubtedly very complex. Sociological, social and economic considerations come into play in solving the problem and evolving proper criteria for determining which classes are socially backward is obviously a very difficult task; it will need an elaborate investigation and collection of data and examining the said data in a rational and scientific way. That is the function of the State which purports to act under Article 15 (4)."

110. The court drew a clear distinction between 'caste' and 'class' and tried to make an attempt to find a new basis for ascertaining social and educational backwardness in place of caste and in this decision a majority of Judges held that in a F broad way, a special provision of reservation should be less than 50%; how much less than. 50% would depend upon the relevant and prevailing circumstances in each case.

111. In R. Chitralekha's case (supra), the Government of G Mysore, by an order defining backward classes directed that 30% of the seats in professional and technical colleges and institutions shall be reserved for them and 18% to the SCs and STs. It was laid down that classification of socially and educationally backward classes should be made on the basis of economic condition and occupation. Suba Rao, J. (as he H

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 131 [K.G. BALAKRISHNAN, C.J.I.]

then was), speaking for the majority, held that a classification of backward classes based on economic conditions and occupations is not bad in law and does· not offend Article 15 (4). The caste of a group of citizens may be a relevant circumstance in ascertaining their social backwardness and though it is a relevant factor to dete.rmine social backwardness of a class, it cannot be the sole or dominant test in that behalf. If, in a given situation, caste is excluded in ascertaining a class within the meaning of Article 15 (4), it does not vitiate the classification if it satisfies other tests. The Court observed that various provisions of the Constitution which recognized the factual c existence of backwardness in the country and which make a sincere attempt to promote the welfare of the weaker sections thereof should be construed to effectuate that policy and not to give weightage to progressive sections of the society under the false colour of caste to which they happen to belong. The Court 0 held that under no circumstance a 'class' can be equated to a 'caste' though the caste of an individual or group of individuals may be a relevant factor in putting him in a particular class.

112. Minor P. Rajendran Vs. State of Madras & Ors. 40 is another Constitution Bench decision wherein the order of the E State Government providing reservation of seats for various categories of candidates namely Scheduled Tribes, Scheduled Castes and SEBCs was challenged on various grounds. The main challenge was that the reservation was based entirely on consideration of caste and therefore it violates Article 15. Justice F Wanchoo, held that:- "Now if the reservation in question had been based only on caste and had not taken into account the social and educational backwardness of the castes in question, it would be violative of Article 15 (1). But it must not be G forgotten that a caste is also a class of citizens and if the caste as a whole is socially and educationally backward reservation can be made in favour of such a caste on the .

40 (1968) 2 SCR 786 H

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A ground that it is a socially and educationally backward class of citizens within the meaning of Article 15 (4). Reference in this connection may be made to the observations of this Court in M.R. Balaji v. State of Mysore to the effect that it was not irrelevant to consider the caste B of a class of citizens in determining their social and educational backwardness. It was further observed that though the caste of a class of citizens may be relevant its . importance should not be exaggerated; and if classification of backward classes of citizens was based c solely on the caste of the citizen, it might be open to objection.

(emphasis supplied)

113. It may be noticed that the list prepared by the State showed certain castes, and members of those castes according 0 to the State were really classes of socially and educationally backward citizens. It was observed in that case that the petitioners therein did not make any attempt to show that any caste mentioned in the list of educationally and socially backward classes of citizens was not educationally and socially backward and the list based on caste was upheld by the Constitution Bench and held to be not violative of Article 15(1 ).

114. In Triloki Nath Tiku Vs. State of J & K (1) 41 , 50% of the gazetted posts were to be filled up by promotion in favour of the Muslims of Jammu & Kashmir. The Court held that inadequate representation in State services would not be decisive for determining the backwardness of a section. The Court accordingly gave directions for collecting further material relevant to the subject. And in a subsequent decision, Triloki G Nath(ll) (supra), the court observed that the expression "backward class" is not used as synonymous with "backward caste".

115. In Minor A. Peerikaruppan Vs. State of Tamil Nadu t 41 IH (1967)2 SCR 265

- ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 133 [K.G. BALAKRISHNAN, C.J.I.]

& Ors. (supra), this Court made reference to the earlier A .\ decisions especially in M.R. Balaji case (supra) and R. Chitralekha case (supra). Hegde, J., at paragraph 29, observed :- 'There is no gainsaying the fact that there are numerous castes in this country which are socially and educationally B backward. To ignore their existence is to ignore the facts of life. Hence we are unable to uphold the contention that 1 the impugned reservation is not in accordance with Article 15 (4). But all the same the Government should not proceed r on the basis that once a class is considered as a c backward class it should continue to be backward class for all times. Such an approach would defeat the Very purpose of the reservation because once a class reaches a stage of progress which some modern writers call as take off stage then competition is necessary for their future D progress. The Government should always keep under review the question of reservation of seats and only the classes which are really socially and educationally backward should be allowed to have the benefit of reservation." E

116. The learned Counsel. for the petitioners also made reference to State of Uttar Pradesh & Ors. Vs. Pradip f Tandon & Ors. 42 wherein Chief Justice Ray observed at paragraph 14 :- F "Socially and educationally backward classes of citizens in Article 15 (4) could not be equated with castes. In M.R. Balaji v. State of Mysore and State of A.P. v. Sagar this Court held that classification of backwardness on the basis of castes would violate both Articles 15 (1) and 15 G (4)."

117. Another important decision is that of State of Kerala • & Anr. Vs N.M. Thomas & Ors. (supra), wherein the

42 (1975) 1 sec 267 H

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A constitutional validity of Rule 13-AA of the Kerala State & Subordinate Services Rules was under challenge. The Rule 1-

gave ex~mption of 2 years to members belonging to Scheduled Castes and Scheduled Tribes in services, from passing the departmental test. The High Court of Kerala struck down the B Rule and in an appeal by the State the question of reservation was elaborately considered. Mathew, ~· in his concurring judgment, held that in ord~r to give equality of opportunity for employment to the members of Scheduled Castes and Scheduled Tribes, it is necessary to take note of their social, - c educational and economic backwardness. Not only is the Directive Principle embodied in Article 46 binding on the law- makers as ordinarily understood, but it should equally inform ahd illumina.te the approach of the court when it makes a decision, as the court is also a "State" within the meaning of D Article 12 and makes law even though interstitially. Existence of equality depends not merely on the absence of disabilities but on the presence of disabilities. To achieve it, differential treatment of persons who are unequal is permissible. This is what is styled as compensatory discrimination or affirmative action. E

118. In K.C. Vasanth Kumar Vs. State of Karnataka (supra) the question of identifying socially and educationally backward class came up for consideration. Desai, J., elaborately considered this question in paragraph 20 and observed :- "By its existence over thousands of years, more or less it was assumed that caste should be the criterion for determining social and educational backwardness. In other words, it was said, look at the caste, its traditional functions, its position in relation to upper castes by the standard of purity and pollution, pure and not so pure occupation, once these questions are satisfactorily answered without anything more, those who belong to that caste must be ; labeled socially and educationally backward. This over- H simplified approach ignored a very realistic situation

'~ ' / ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 135 [K.G. BALAKRISHNAN, C.J.I.]

existing in each caste that in every such caste whose A l members claim to be socially and educationally backward, had an economically well-placed segments."

119. Chinnappa Reddy, J., also dealt with the question elaborately and observed :- B "However we look at the question of 'backwardness', . whether from the angle of class, status or power, we find .,.. the economic factor at the bottom of it all and we find -! poverty, the culprit-cause and the dominant characteristic. Poverty, the economic factor brands all backwardness c ·just as the erect posture brands the homosapiens and . distinguishes him from all other animals, in the eyes of the beholder from Mars. But, whether his racial stock is Caucasian, Mongoloid, Negroid, etc., further investigation will have to be made. So too the further question of social and educational backwardness requires further scrutiny. In India, the matter is further aggravated, complicated and pitilessly tyrannized by the ubiquitous caste system, a unique and devastating system of gradation ai:id degradation which has divided the entire Indian and particularly Hindu society horizontally into such distinct layers as to be destructive of mobility, a system which has penetrated and corrupted the mind and soul of every Indian citizen. It is a· notorious fact that there is an upper crust of rural society consisting of the superior castes, generally the priestly, the landlord and the merchant castes, there is . a bottom strata consisting of the 'out-castes' of Indian Rural Society, namely the Scheduled Castes, ·and, in between the highest _and the lowest, there are large segments of population who because of the low gradation of the caste to which they ·belong in the rural society hierarchy, because of the humble occupation which they

' pursue, because of their poverty and ignorance are also condemned to backwardness, social and educational, backwardness which prevents them from competing on H

p. 136 Copy page pinpoint

A equal terms to catch up with the upper crust. "

120. Reference was also made to other decisions, namely, State of Andhra Pradesh & Anr. Vs. P: Sagar43 and T. Devadasan Vs. The Union of India & Anr. 44 . The earlier decisions took the view that caste shall not be a basis for determining the socially and educationally backward class of citizens. But from the later decisions, we find a slight shift in the approach of the court. If the classification of SEBCs is done exclusively on the basis of caste, it would flyin the face of Article 15(1) of the Constitution as it expressly prohibits any discrimination on the grounds of religion, race, caste, sex, place of birth or any of them. After a careful examination of the various previous decisions of this Court, in Indra Sawhney (supra), while examining the validity of the 'Backward Class List' prepared by the Manda! Commisson, Jeevan Reddy. J., D speaking for the majority, held as under:- "705. During the years 1968 to 1971, this Court had to consider the validity of identification of backward classes made by Madras and Andhra Pradesh Governments. P. Rajendran v. State of Madras 3 13 related to specification E of socially and educationally backward classes with reference to castes. The question was whether such an identification infringes Article 15. Wanchoo, CJ, speaking for the Constitution Bench dealt with the contention in the following words: (SCR p. 790-91) F "The contention is that the list of socially and educationally backward classes for whom reservation is made under Rule 5 is nothing but a list of certain castes. Therefore, reservation in favour of certain castes based only on caste considerations violates Article 15(1 ), which prohibits G discrimination on the ground of caste only. Now if the reservation in question had been based only on caste and

43 (1968) 3 SCR 595 44 H (1964) 4 SCR 680

' J ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. [K.G,. BALAKRISHNAN, C.J.I.]

had not taken into account the social and educational A 137

backwardness of the caste in question, it would be violative of Article 15(1). But it must not be forgotten that a caste is ~ also a class of citizens and if the caste as a whole is socially and educationally backward reservation can be made in fa'7our of such a caste on the ground that is a B socially and educationally backward class of citizens within the meaning of Article 15(4) .... It is true that in the present ........., -' cases the list of socially and educationally backward .......... ' }- classes has been specified by caste. But that does not necessarily mean that caste was the sole consideration c and that persons belonging to these castes are also not a class of socially and educationally backward citizens .. .. As it was found that members of these castes as a whole were educationally and socially backward, the list which had been coming on from as far back as 1906 was finally adopted for purposes of Article 15(4) .... In view however of the explanation given by the State of Madras, which has not been controverted by any rejoinder, ~ it must be accepted that though the list shows certain castes, the members at those castes are really classes of educationally and socially backward citizens. No attempt was made on behalf of the petitioners/appellant to show that any caste mentioned in this list was not educationally and socially backward. In this state of the pleadings, we must come to the conclusion that though the list is prepared caste-wise, the castes included therein are as a whole educationally and socially backward and therefore the list is not violative of Article 15. The challenge to Rule 5 must therefore fail."

121. In that decision it was further held that "Backward G Class" in Article 16(4) cannot be read as "Backward Caste". And under Article 340 of the Constitution, the President may by J order appoint a Commission consisting of such persons as he thinks fit to investigate the conditions of socially and educationally backward classes of citizens within the territory of India and the H

p. 138 Copy page pinpoint

A difficulties under which they labour and to make recommendations as to the steps that should be taken by the Union or any State to remove the difficulties and to improve their condition. The object of this provision is to empower the President to appoint a Commission to ascertain the difficulties B and problems of socially and educationally backward classes of citizens. And in Indra Sawhney's case (supra), the majority held that the ideal and wise method would be to mark out various occupations which on the lower level in many cases amongst Hindus would be their caste itself and find out their social c acceptability and educational standard, weigh them in the balance of economic conditions and, the result would be backward class of citizens needing a genuine protective umbrella. And after having adopted occupation as the starting point, the next point should be to ascertain their social acceptability. A person carrying on scavenging becomes an untouchable whereas others who were as law in the social strata as untouchables became depressed. The Court has cautioned that the backwardness should be traditional. Mere educational or social backwardness would not have been sufficient as it would enlarge the field thus frustrating the very purpose of the constitutional goal. It was pointed ~ut 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.

F 122. The learned Counsel for the petitioner contended that caste cannot be used even as one of the criteria for identifying the SEBCs as many persons have ·Shifted their traditional occupations and have become doctors, engineers and lawyers. But these are only a few cases and even such persons continue to suffer social segregation based on caste. In Pradip Tandon's case (supra) it was held at para 17 that: "The expression 'classes of citizens' indicates a homogenous section of the people who are grouped together because of certain likenesses and common traits and who are identifiable by some common attributes. The

ASHOKA KUMAR THAKUR v. UNlON OF INDIA & ORS. 139 [K.G. BALAKRISHNAN, C.J.I.] homogeneity of the class of citizens is social and educational backwardness. Neither caste nor religion nor place of birth will be the uniform element of common attributes to make them a class of citizens."

123. The above statement is not fully correct. Caste plays an important role in determining the backwardness ot the individual. In society, social status and standing depend upon the nature of the occupation followed. In paragraph 779 of Indra .-> 1 Sawhney's case, it is stated: "Lowlier the occupation, lowlier the social standing of the c class in the graded hierarchy. In rural India, occupation- caste nexus is true even today. A few members may have gone to cities or even abroad but when they return - they do, barring a few exceptions - they go into the same fold again. It does not matter if he has earned money. He may not follow that particular occupation. Still, the label remains. His identity is not changed for the purpose of marriage, death and all other social functions, it is his social class - the caste - that is relevant."

124. "Caste" is often used interchangeably with "class" and can be called as the basic unit in social stratification. The most characteristic thing about a caste group is its autonomy in caste related matters. One of the universal codes enforced by all castes is the requirement of endogamy.,Qfher rules have to do with the regulC1tions pertaining to religious purity or cleanliness. F . 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. G

125. The observations made byVenkataramaiah J. in K.C. Vasanth Kumar case are relevant in this regard : "We are aware of the meanings of the words caste, race, or tribe or religious minorities in India. A caste is an· H

p. 140 Copy page pinpoint

A association of families which practise the custom of endogamy i.e. which permits marriages amongst the members belonging to such families only. Caste rules prohibit its members from marrying outside their caste. There are sub-groups amongst the castes which B sometimes inter-marry and sometimes do not. A caste is based on various factors, sometimes it may be a class, a race or a racial unit. A caste has nothing to do with wealth. The caste of a person is governed by his birth in a family. Certain ideas of ceremonial purity are peculiar to each c caste. Sometimes caste practices even led to segregation of same castes in the villages. Even the choice of occupation of members of castes was predetermined in many cases, and the members of a particular caste were prohibited from engaging themselves in other types of callings, professions or occupations. Certain occupations were considered to be degrading or impure. A certain amount of rigidity developed in several matters and many . who belonged to castes which were lower in social order were made to suffer many restrictions, privations and humiliations. Untouchability was practised against members belonging to certain castes. Inter-dining was prohibited in some cases. None of these rules governing a caste had anything to do with either the individual merit of a person or his capacity. The wealth owned by him would not save him from many social discriminations practised by members belonging to higher castes. Children who grew in this caste ridden atmosphere naturally suffered from many social disadvantages apart from the denial of opportunity to live in the same kind of environment in which persons of higher castes lived. Many social reformers have tried in the last two centuries to remove the stigma of caste from which people born in lower castes were suffering. Many laws were also passed prohibiting some of the inhuman caste practices." (p. 110)

126. Rivers, the leading anthropologist, criticizes the use H

• , ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 141 [K.G. BALAKRISHNAN, C.J.1.]

of the terms "caste" and "class" as synonyms 45 . However, many others, such as Lowie 46 and Kimball Young 47 , use these terms as though they were identical. ,

127. Very common is the use of the word caste to indicate hereditary status. Cecil Clare. North 48 , the noted sociologist, accepts the point of view that degrees of rigidity mark the difference between class and caste systems. His definition reads:

"A group in which status, occupation, and culture have become hereditary is known as a caste. As a matter of c fact, however, the distinction between a society based upon caste and one in which open classes prevail is simply one of degree."

128. North concludes by saying that the term "caste" applies to classes that have become fixed, and that all such classes tend to become castes.

129. Maclver⁴⁹ , another leading authority in the field of social class theory, also identifies caste with hereditary status. He attempts to tie his interpretation with the situation in India, a procedure not often followed by the other sociologists. He writes thus,

"Caste as unchangeable status: - The feudal order approximated to a caste system. When status is wholly predetermined, so that men are born to their lot in life without hope of changing it, then class takes the extreme " form of caste. This is the situation in Hindu society. 'Every

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A Hindu necessarily belongs to the caste of his parents, and in that caste he inevitably remains. No accumulation of wealth and no exercise of talents can alter his caste status; and marriage outside his caste is prohibited or severely discouraged.' Caste is a complete barrier to the mobility B of class."

130. Therefore, a class always enjoys certain privileges or at least certain advantages over others in society. When it is more or less rigorously closed, or enjoys hereditary privileges, it is called a "caste''. c

131. However, there are other sociologists who are of the opinion that the Caste system has a hereditary function also. Charles Horton Cooley50 opines that: "if the transmission of function from father to son has D become established, a caste spirit, a sentiment in favour of such transmission and opposed to the passage from one class to another, may arise and be shared even by the unprivileged classes. The individual then thinks of himself and his family as identified with his caste ... "

E 132. Therefore, according to the early sociological theories, the term "caste" has been used to mean "class", hereditary or rigid status, and hereditary occupation.

133. The Mysore Census of 1901 51 is quoted, in this connection, as follows: "In any one of the iinguistic divisions of India there are as many as two hundred castes which can be grouped in classes whose gradation is largely acknowledged by all. But the order of social precedence amongst the individual castes of any class cannot be made definite, because not only is there no ungrudging acceptance of such rank but

5°Charles Horton Cooley, Social Organization (New York, 1909) p. 215 51 G.S. Ghurye, Caste and Race in India (Bombay, 1979) p. 6, Quoting ' H from Mysore Census, 1901, p. 400

•, ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 143 [K.G. BALAKRISHNAN, C.J.I.] -4 f also the ideas of the people on this point are very nebulous A and uncertain. The following observations vividly bring out this state of things." Excepting the Brahm in at· one end and the admittedly degraded castes like the Holeyas at the other, the members of a large proportion of the immediate castes B l think or profess to think that their caste is better than their neighbours, and should be ranked accordingly." ~ ~

134. On the other hand, it is possible that within a caste ~ group there is a marked inequality of status, opportunity, or social c 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 ofa D rich Brahmin may be a poor Brahmin. ;. 135. Hence, there is every reason to believe that within a single caste group there are some classes or groups of people to whom good fortune or perseverance has brought more dignity, social influence and social esteem than it has to others. E

136. In India, caste, in a socio-organizational manner would .,, mean that it is not characterized merely by the physical or occupational characteristics of the individuals who make it up; J rather, it is characterized by its codes and its close-knit socia' , controls. In the case of classes, however, there may not exist, ·F } such close-knit unit social controls, and there may exist great disparity in occupational characteristics.

137. A social class is therefore a homogeneous unit, from the point of view of status and mutual recognition; whereas a G caste is a homogeneous unit from the point of view of common ancestrY, religious rites and strict organizational control. Thus ·/ the manner in which the caste is closed both in the organizational and biological sense causes it to differ from social class. 1 i Moreover, its emphasis upon ritual and regulations pertaining H

p. 144 Copy page pinpoint

A 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 B freely with it.

r38. In a caste, however, the social distance between members is due to the fact that they belong to entirely different organizations. It may be said, therefore, that a caste is a horizontal division and a class, a vertical division. c

139. The Solicitor General, Mr. G.E. Vahanvati, pointed out that for the purpose of reservation under Article 16(4) of the Constitution, the Central List has been in operation for the past 14 years and not a single person has challenged any inclusion in the Central List as void or illegal. 0

140. It was pointed out that the National Commission for the Backward Classes and the State Commission for Backward Classes have prepared a list based on elaborate guidelines and these guiqelines have been framed after studying the criteria/indicators framed by the Mandal Commission and the Commissions set up in the past by different State Governments. Various Commissions held public hearings at various places and the National Commission held 236 public hearings before it finalized the list. It is also pointed out that during the period of its functioning, the National Commission had recommended 297 requests for inclusion and at the same time rejected 288 requests for inclusion of the main castes. It is further pointed out that the Commission took into consideration detailed data with regard to social, educational and economic criteria. The G Commission has also looked into whether there has been any improvement or deterioration in the condition of the caste or community being considered for inclusion during the past twenty years. \

141. It is pointed out that an elaborate questionnaire was prepared by the Commission and the answers in this

~ , ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 145 [K.G. BALAKRISHNAN, C.J.1.]

questionnaire were considered in detail for inclusion/rejection in the list. It is clear that the lists of socially and educationally · backward classes of citizens are being prepared not solely on the basis of the caste and if caste and other considerations are taken into account for determining backwardness, it cannot be said that it would be violative of Article 15(1) of the Constitution. B

142. We hold that the determination of SEBCs is done not solely based on caste and hence, the identification of SEBCs (I is not violative of Article 15(1) of the Constitution.

6. Whether Creamy Layer is to be excluded from c SEBCs?

143. The SEBCs have been identified by applying various criteria. Though for the purpose of convenience, the list is based _, or caste, it cannot be said that 'Backward Class' has been identified solely on the basis of caste. All the castes which D suffered the social and educational backwardness have been /1- included in the list. Therefore, it is not violative of Article 15(1'). The only possible objection that could be agitated is that in many i of the castes included in this list, there may be an affluent section (Creamy Layer) which cannot be included in the list of E SEBCs.

144. When socially and educationally backward classes are determined by giving importance to caste, it shall not be forgotten that a segment of that caste is economically advanced and they do not require the protection of reservation. It was F J argued on behalf of the petitioners that the principle of 'Creamy Layer' should be strictly applied to SEBCs while giving affirmative action and the principles of exclusion of 'Creamy Layer' applied in Indra Sawhney's case should be equally applied to any of the legislations that may be passed as per G Article 15(5) of the Constitution. The Counsel forthe petitioners submitted that SEBCs have been defined under section 2 (g) -{ ·yf of the Act and fhe Central Government has been delegated with the power to determine Other Backward Classes. The Counsel for the petitioners have pointed out that the definition given in H

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A section 2(g) of the Act should be judicially interpreted. That the backward class so stated therein should mean to exclude the 'Creamy Layer'. The learned Senior Counsel appearing for Pattali Makkal Katchi (PMK) stated that exclusion of 'Creamy Layer' shall not apply for reservation in educational institutions. B He pointed out that in case the 'creamy layer' is excluded, the other members of the backward class community would not be in a position to avail the benefit of reservation and the fee structure in many of these centrally administered institutions is I ~

exorbitantly high and the ordinary citizen would not be in a c position to afford the payment of fees and thus the very purpose of the reservation would be frustrated.

145. According to the learned Counsel for the respondents, the creamy layer elimination will only perpetuate caste inequalities. It would enable the advanced castes to eliminate any challenge or competition to their leadership in the professions and services and that they will gain by eliminating all possible beneficiaries of reservation in the name of creamy ., layer especially in the institutions of higher learning. It was argued that the analogy of Creamy Layer applied in reservations to jobs cannot be applied in reservations to educational institutions of higher learning. The position of a student getting admission to an institution of higher learning is totally different and can never be compared to that of backward class person to get a job by virtue of reservation. The study in any educational institution of higher learning is very expensive and the non-creamy layer backward class parent cannot afford his son or his daughter incurring such a huge expenditure. Eliminating them from the Creamy Layer will frustrate the very object of providing reservation. Therefore, it is wholly impracticable and highly counter productive to import the policy of Creamy Layer for reservation in these institutions. And according to the learned Counsel there is a difference between services and education and that under the purview of Act 5 of 2007, around 3 lakh seats would be filled up every year. Whereas the jobs are limited and they will not become vacant every year. H

' "' ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 147 [K.G. BALAKRISHNAN, C.J.I.)

146. The learned Counsel pointed out that grouping of all castes together may enable a less backward caste among the backward classes to corner more seats than it deserves. It is also possible that more b!'ickward classes cannot afford to compete with the less backward classes. The only way to solve the said problem is by categorization of Backward Classes and sub classifying them so as to ensure that under each category only similarly circumstanced castes are grouped together. The { categorization of backward class has successfully worked in ' State of Tamil Nadu where most backward class is provided 20% reservation and the most backward castes and denotified c tribes are grouped together and the backward classes are provided 30% reservation. In the State.of Karnataka, backward classes are divided into 5 categories and separate reservations have been provided. And in the State of Andhra Pradesh, Backward Classes have been divided into 4 divisions and D separate percentage of reservation .has been provided.

147. As noticed earlier, determination of backward class cannot be exclusively based on caste. Poverty, social backwardness, economic backwardness, all are criteria for determination of backwardness. It has been noticed in Indra E Sawhney's case that among the backward class, a section of the backward class is a member of the affluent section of society. They do not deserve any sort of reservatiqn for further progress in life. They are socially and educationally advanced enough to compete for the general seats along with other candidates. F ./ 148. In Indra Sawhney's case (supra) Jeevan Reddy, J., has observed : "In our opinion, it is not a question of permissibility or desirability of such test but one of proper and more G appropriate identification of a class - a backward class. The very concept of a class denotes a number of persons ' having certain common traits which distinguish them from

~ ·.,t the others. In a backward class under clause (4) of Article 16, if the connecting link is the social backwardness, it H