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

p. 148 Copy page pinpoint

A should broadly be the same in a given class. If some of the members are far too advanced socially (which in the context, necessarily means economically and, may also mean educationally) the connecting thread between them and the remaining class snaps. They would be misfits in B the class. After excluding them alone, would the class be a compact class. In fact, such exclusion benefits the truly backward." (p. 724)

149. It is to be understood that "creamy layer" principle is I .\

introduced merely to exclude a section of a particular caste on c the ground that they are economically advanced or educationally forward. They are excluded because unless this segment of caste is excluded from that caste group, there cannot be proper identification of the backward class. If the "Creamy Layer" principle is not applied, it could easily be said that all the castes D that have be.en included among the socially and educationally backward classes have been included exclusively on the b.asis of caste. Identification of SEBC for the purpose of either Article 15(4), 15(5) or 16(4) solely on the basis of caste is expressly "" I prohibited by various decisions of this Court and it is also against ... E Article 15(1) and Article 16(1) of the Constitution. To fulfil the conditions and to find out truly what is socially and educationally backward class, the exclusion of "creamy layer" is essential.

150. It may be noted that the "creamy layer" principle is ' applied not as a general principle of reservation. It is applied for the purpose of identifying the socially and educationally backward class. One of the main criteria for determining the SEBC is poverty. If that be so, the principle of exclusion of "creamy layer" is necessary. Moreover, the majority in Indra Sawhney's case upheld the exclusion of "creamy layer" for the purpose of reservation in Article 16(4). Therefore, we are bound by the larger Bench decision of this Court in Indra Sawhney's case, and it cannot be said that the "creamy layer" principle cannot be applied for identifying SEBCs. Moreover, Articles \ 15(4) and 15(5) are designed to provide opportunities in education thereby raising educational, social and economical

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 149 [K.G. BALAKRISHNAN, C.J.I.]

levels of those who are lagging behind and once this progress is achieved by this section, any legislation passed thereunder should be deemed to have served its purpose. By excluding those who have already attained economic well being or educational advancement, the special benefits provided under these clauses cannot be further extended to them and, if done so, it would be unreasonable, discriminatory or arbitrary, resulting in reverse discrimination.

151 . Sawant, J. also made observation in Indra Sawhney's case to ensure removal of 'creamy layer'. He observed:- C

" .... at least some individuals and families in the backward classes - - gaining. sufficient means to develop their capacities to compete with others in every fi~ld .... Legally, therefore, they are not entitled to be any longer called as part of the backward classes whatever their original birth mark - to continue to confer upon such advanced sections from the backward classes the special benefits, would amount to treating equals unequally violating the equality provisions of the Constitution. Secondly, to rank them with the rest of the backward .classes would equally violate the right to equality of the rest in those classes, since it would amount to treating the unequals equally.... It will lead to perverting the objectives of the special constitutional provisions since the forwards among the backward classes will thereby be enabled to tap up all the special benefits to the exclusion and to the cost of the rest in those classes, thus keeping the rest in perpetual backwardness."

152. All these reasonings are equally applicable to the reservation or any special action contemplated under Article G 15(5). Therefore, we are unable to agree with the contention raised by the respondent's learned Counsel that if 'creamy layer' is excluded, there may be practically no representation for a particular backward class in educational institutions because the remaining members, namely, the non-creamy layer, may not H

p. 150 Copy page pinpoint

A have risen to the level or standard necessary to qualify to get admission even within the reserved quota. If the creamy layer is not excluded, the identification of SEBC will not be complete and any SEBC without the exclusion of 'creamy layer' may not be in accordance with Article 15(1) of the Constitution.

7Copy pinpoint7. What should be the para-meters for determining the "creamy layer" group ?

153. After the decision in Indra Sawhney's case (supra), the Government of India, Ministry of Personnel, Public c Grievances and Pensions (Department of Personnel and Training) issued an Office Memorandum dated 08.09.1993 providing for 27% reservation for Other Backward Classes. The Memorandum reads as follows :- "OFFICE MEMORANDUM D Subject: Reservation for Other Backward Classes in Civil Posts and Services Under the Government of India -regarding The undersigned is directed to refer to this Department's OM No. 36012/31/90-Estt. (SCT), dated the 13th August, 1990 E and 25th September, 1991 regarding reservation for Socially and Educationally Backward Classes in Civil Posts and Services under the Government of India and to say that following the Supreme Court judgment in the Indra Sawhneyvs. Union of India (Writ Petition (Civil) No. 930of1990) the Government of F India appointed an Expert Committee to recommend the criteria for exclusion of the socially advanced persons/sections from the benefits of reservations for Other Backward Classes in Civil Posts and Services under the Government of India.

2. Consequent to the consideration of the Expert G Committee's recommendations this Department's Office Memorandum No. 36012/31/90-Estt. (SCT), dated 13.8.1990 referred to in para (1) above is hereby modified to provide as follows: (a) 27% (twenty-seven per cent) of the vacancies in Civil H

.' ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 151 [K.G. BALAKRISHNAN, C.J.I.)

-f.- Posts and Services under the Government of India, to be A filled through direct recruitment, shall be reserved for the Other Backward Classes. Detailed instructions relating to the procedure to be followed for enforcing reservation will be issued separately. *** B (b) (c) (i) The aforesaid reservation shall not apply to persons/ sections mentioned in Column 3 of the Schedule to this office memorandum. (ii) The rule of exclusion will not apply to persons working C as artisans or engaged in hereditary occupations, callings. A list of such occupations, callings will be issued separately by the Ministry of Welfare. (d)-(e) * * * D * * *

3. SCHEDULE Description of category To whom rule of exclusion will apply E 1 2 3

I I. CONSTITUTIONAL POSTS Son(s) and daughter(s) of (a) President of India; (b) Vice-President of India; F

(c) Judges of the Supreme Court and of the High Courts; (d) Chairman & Members of UPSC and of the State Public G Service Commission; Chief Election Commissioner; Comptroller and Auditor General of India; H

p. 152 Copy page pinpoint

... A (e) persons holding _. constitutional positions of like nature.

II. SERVICE CATEGORY Son(s) and daughter(s) of B A. Group A/Class I Officers (a) parents, both of whom are of the All India Central Class I Officers; and State Services (b) parents, either of whom is a Class I officer; I~ ('

(Direct Recruits) (c) parents, both of whom are c Class I Officers, but one of them dies or suffers permanent incapacitation;

(d) parents, either of whom is a Class I officer and such D parent dies or suffers permanent incapacitation and -", before such death or such incapacitation has had the benefit of employment in any E International Organisation like UN, IMF, World Bank, etc. for a period of not less than 5 years;

F (e) parents, both of whom are Class I officers die or suffer permanent incapacitation and " before such death or such incapacitation of the both, either of them has had the G benefit of employment in any International Organisation like UN, IMF, World Bank, etc. for y a period of not less than 5 years. H

' , ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 153 [K.G. BALAKRISHNAN, C.J.I.)

·+ Provided that the rule of . A exclusion shall not apply in the following cases :

(a) Son(s) and daughter(s) of parents either of whom or both 8 of whom are class I officers and such parent(s) dies/die or suffer permanent "} "'"'\ incapacitation;

't (b) A lady belonging to OBC c category has got married to a / Class I officer, and may herself like to apply for a job. -'I B. Group B/Class II officers Son(s) and daughter(s) of of the Central and State (a) Parents both of whom D Services are Class II officers; ,,... (Direct Recruitment) (b) parents of whom only the husband is a Class II officer and he get into Class I at the age of 40 or earlier; E

(c) parents, both of whom are Class 11 officers and one of them dies or suffers ~ permanent incapacitation and F .j ,,. either one of them has had the benefit of employment in any International Organisation like UN, IMF, World Bank etc. for a period of not less than 5 years before such death or G permanent incapacitation; -,; (d) parents of whom the husband is a Class I officer (direct recruit or pre-forty H

p. 154 Copy page pinpoint

., A promoted) and the wife is a Class II officer and the wife dies; or suffers permanent incapacitation; and

B (e) parents, of whom the wife is a Class I officer (direct recruit or pre-forty promoted) and the husband is a Class II officer and the husband dies or suffers permanent c incapacitation: Provided that the rule of exclusion shall not apply in the following cases: D Son(s) and daughter(s) of (a) parents both of whom are Class II officers and one of them dies or suffers permanent incapacitation; (b) parents, both of whom are Class II officers and both of them die or suffer permanent incapacitation, even though either of them has had the benefit of employment in any International Organisation like UN, IMF, World Bank etc. for a period of not less than 5 years before their death or permanent incapacitation. C. Employees in Public Sector Undertakings etc. The criteria enumerated in A and H

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 155 [K.G. BALAKRISHNAN, C.J.I.]

B above in this category will A apply mutatis mutandis to officers holding equivaleot or comparable posts in PSUs, Banks, Insurance Organisations, Universities, B etc. and also to equivalent or comparable posts and positions under private employment, pending the evaluation of the posts on c equivalent or comparable basis in these institutions, the criteria specified in Category VI below will apply to the officers in these institutions. D Ill. ARMED FORCES Son(s) and daughter(s) of INCLUDING parents either or both of whom PARAMILITARY is or are in the rank of Colonel FORCES (Persons and above in the Army and holding civil posts to equivalent posts in the Navy E are not Included) and the Air Force and the Paramilitary Forces: Provided that:

I (i) If the wife of an Armed F ,A Forces officer is herself in the Armed Forces (i.e. the category under consideration) the rule of exclusion will apply only when she herself has G reached the rank of Colonel; (ii) The service ranks below Colonel of husband and wife shall not be clubbed together; H

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A (iii) If the wife of an officer in the Armed Forces is in civil employment, this will not be taken into account for applying the rule of exclusion unless she B falls in the service category under Item No. II in which case the criteria and conditions .t enumerated therein will apply f ••

to her independently. c IV. PROFESSIONAL CLASS AND THOSE ENGAGED IN TRADE AND INDUSTRY D (i) Persons engaged in profession as a doctor, lawyer, chartered ..... accountant, Income Tax consultant, financial or management consultant, dental surgeon, engineer, architect, computer specialist, film artists and other film professional, author, playwright, sports persons, sports professional, media professional or any other vocations of like status. (ii) Persons engaged in Criteria specified against '-f

trade, business and Category VI will apply- H

' , ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 157 [K.G. BALAKRISHNAN, C.J.I.)

industry. Criteria specified against A Category VI will apply- Explanation: (i) Where the husband is in same profession and the wife 8 is in a Class II or lower grade employment, the income/ wealth test will apply only on the basis of the husband's income; c (ii) If the wife .is in any profession and the husband is in employment in a Class II or lower rank post, then the income/wealth criterion will D apply only on the basis of the ,> wife's income and the husband's income will not be clubbed with it. V. PROPERTY OWNERS E A. Agricultural holdings Son(s) and daughter(s) of persons belonging to a family (father, mother and minor children) which owns only F irrigated land which is equal to or inore than 85% of the statutory area; or -·· (a) both irrigated and unirrigated land, as follows : G (i) The rule of exclusion will apply where the precondition exists that the irrigated area (having been brought to a H

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A single type under a common denominator) 40% or more of the statutory ceiling limit for irrigated land (this being calculated by excluding the B unirrigated portion). If this precondition of not less than 40% exists, then only the area .t. of unirrigated land will be ' taken into account. This will be c done by converting the unirrigated land on the basis of the conversion formula existing, into the irrigated type. The irrigated area so computed from unirrigated land shall be added to the actual area of irrigated land and if after such clubbing together the total area in terms of irrigated land is 80% or more of the statutory ceiling limit for irrigated land, then the rule of exclusion will apply and disentitlement will occur;

F (ii) The rule of exclusion will not apply if the land holding of a family is exclusively unirrigated. Criteria of income/wealth G specified in Category VI below will apply Deemed as agricultural holding and hence criteria at H I

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 159 [K.G. BALAKRISHNAN, C.J.I.]

A A above under this category -+ will apply. Criteria specified in Category VI below will apply. Explanation: Building may be 8 used for residential, ir:idustrial or commercial purpose and " .. the like two or more such purposes. c B. Plantations (i) Coffee, tea, rubber etc. (ii) Mango, citrus, apple D plantations, etc.

,>.. C. Vacant land and/or buildings, in urban areas or urban agglomerations VI. INCOME/ Son(s) and daughter(s) of E WEALTH TEST (a) persons having gross of annual income Rs. 1 lakh or above or possessing wealth above the exemption limit as prescribed in the Wealth Tax F ! ,;:, Act for a period of thre.e consecutive years; (b) persons in Categories I, II, Ill and V-A who are not G disentitled to the benefit of reservation but have income y from other sources of wealth which will bring them within the income/wealth criteria H

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A mentioned in (a) above. Explanation. (i) Income from salaries or agricultural land shall not be B clubbed; (ii) The income criteria in terms of rupee will be modified taking into account the change c in its value every three years; If the situation,- however, so demands, the interregnum may be less.

Explanation: Wherever the expression 'permanent incapacitation' occurs in this Schedule, it shall mean incapacitation which results in putting an officer out of service."

154. We make it clear that same principle of determining the creamy layer for providing 27% reservation for backward classes for appointment need not be strictly followed in case of reservation envisaged under Article 1°5(5) of the Constitution. As pointed by Shri Ravivarma Kumar, learned Senior Counsel, if a strict income restriction is made for identifying the "creamy layer'', those who are left in the particular caste may not be able to have a sufficient number of candidates for getting admisslon in the central institutions as per Act 5 of 2007. Government can make a relaxation to some extent so that sufficient number of candidates may be available for the purpose of filling up the G 27% reservation. It is for the Union Government and the State Governments to issue appropriate guidelines to identify the "creamy layer" so that SEBC are properly determined in accordance with the guidelines given by this Court. If, even by applying this principle, still the candidates are not available, the State can issue appropriate guidelines to effectuate the H

~ , ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 161 [K.G. BALAKRISHNAN, C.J.1.]

implementation of the reservation purposefully. A

155. As noticed earlier, "backward class" defined in Section 2(g) does not exclude "creamy layer''. Therefore, we make it clear that backward class as defined in Section 2(g) of Act 5 of 2007 must be deemed to have been such backward class by applying the· principle of exclusion of "creamy layer". B

8Copy pinpoint8. Whether the "creamy layer" principle is applicable ~). to Scheduled Tribes and Scheduled Castes ?

156. Learned Senior Counsel Dr. Rajeev Dhavan submitted that "cr~amy layer" principle is to be applied to SCs c and STs. He drew inspiration from the observations made by Justice Krishna Iyer in N.M. Thomas's case (supra) and also from the observations made in Nagaraj's case and reference was made to paragraphs 80, 110 and 120 to 123 of Nagaraj's case (supra). D

157. N.M. Thomas's case (supra) does not state that "creamy layer" principle should apply to SCs and STs. In K.C. Vasanth Kumar's case (supra) the "creamy layer" was used in the case of backward caste or class. In K.C. Vasanth Kumar5 2 (supra), Desai J. quoted from N.M. Thomas (supra) E as follows :-

"In the light of experience, here and elsewhere, the danger of 'reservation', it seems to me, is threefold. Its ben~fits, ) by and large, are snatched away by the top creamy layer F .;'- of the 'backward' caste or class, thus keeping the weakest among the weak always weak and leave the fortunate . layers to consume the whole cake." (N.M. Thomas (supra) p. 363, para 124) G

158. In Nagaraj's case (supra) in paragraph 80, it is stated that while "applying the 'creamy layer' test, this Court held that if roster-point promotees are given consequential seniority, it

52 (supra) p. 733 H

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., } A will violate the equality principle which is part of the basic structure of the Constitution and in which even Article 16(4-A) cannot be of any help to the reserved category candidates." This was with reference to the observations made in Indra Sawhney's case· (supra) and earlier in M.G. Badappanavar B &Anr. Vs. State of Karnataka & Ors. 53 ; Ajit Singh & Ors. (II) vs. State of Punjab & Ors.54 and Union of India & Ors. Vs . .Virpal Singh Chauhan & Ors. 55 . Virpal Singh Chauhan's case (supra) dealt with reservation of railway employees wherein ,~ it is held that once the number of posts reserved for being filled C by reserved category candidates in a cadre, category or grade (unit for application of rule of reservation) are filled by the operation of roster, the object of the rule of reservation should be deemed to have been achieved. Ajit Singh ll's case (supra) dealt with consequential seniority on promotion and held that roster points fixed at Level 1 are not intended to determine any 0 seniority at Level 1 between general candidates and the reserved candidates and the roster point merely becomes operative whenever a vacancy reserved at Level 2 becomes available. Thereby holding that if promotion is obtained by way of reservation, the consequential seniority will not be counted. E M.G. Badappanavar's case (supra) followed the cases of Ajit Singh II (supra) and Virpal Singh (supra).

159. In none of these decisions it is stated that the "creamy layer" principle would apply to SCs and STs. In Indra F Sawhney's case (supra), it is specifically stated that the "creamy layer" principle will not apply to STs and SCs. In ,._ Nagaraj's case (supra) , in paragraphs 110 and 120 and finally in paragraphs 121, 122 and 123, it is only stated that when considering questions of affirmative action, the larger principle G of equality such as 50% ceiling (quantitative limitation) and "creamy layer'' (quantitative exclusion) may be kept in mind. In

(J ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 163 [K.G. BALAKRISHNAN, C.J.1.]

Nagaraj's case (supra) it has not been discussed or· decided that the creamy layer principle would be applicable to SCs/STs. Therefore, it cannot be said that the observations made in Nagaraj's case are contrary to the decision in Indra Sawhney's case (supra).

160. Moreover, the "creamy layer" principle is not yet applied as a principle of equality or as a general principle to apply for all affirmative actions. The observations made by -I . Chinnappa Reddy, J. in K.C. Vasanth Kumar case are relevant in this regard. The learned Judge observed as under : c "One cannot quarrel with the statement that social science ·research and not judicial impressionism should form the basis of examination, by courts, of the sensitive question of reservation for backward classes. Earlier we mentioned how the assumption that efficiency will be impaired if reservation exceeds 50%, if reservation is extended to promotional posts or if the carry forward rule is adopted, is not based on any scientific data. One must, however, enter a caveat to the criticism that the benefits of reservation are often snatched away by the top creamy layer of backward class or caste. That a few of the seats and posts reserved for backward classes are snatched away by the more fortunate among them is not to say that reservation is not necessary. This is bound to happen in a competitive society such as ours. Are not the unreserved seats and posts snatched away, in the same way, by the F j top creamy layer of society itself? Seats reserved for the backward classes are taken away by the top layers amongst them on the same principle of merit on which the unreserved seats are taken away by the top layers of society." (p. 763) G

161. So far, this Court has not applied the "creamy layer" y . principle to the general principle of equality for the purpose of reservation. The "creamy layer" so far has been applied only to ,' identify the backward class, as it required certain parameters H

p. 164 Copy page pinpoint

A to determine the backward classes. "Creamy layer" principle is one of the parameters to identify backward classes. Therefore; principally, the "creamy layer" principle cannot be applied to STs and SCs, as SCs and STs are separate classes by themselves. Ray, CJ., in an earlier decisions, stated that "Scheduled Castes B and Scheduled Tribes are not a caste within the ordinary meaning of caste". And they are so identified by virtue of the Notification•issued by the President of India under Arti.cles 341 and 342 of the Constitution. The President may, after .. ~ consultation with the Governor, by public notification, specify the c caste·s, races or tribes or parts of or groups within castes, races or tribes which for the purpose of the Constitution shall be deemed to be Scheduled Castes of Scheduled Tribes. Once the N'otification is issued, they are deemed to be the members of Scheduled Castes or Scheduled Tribes, whichever is applicable. In E.V. Chinnaiah (supra), concurring with the majority judgment, S.B. Sinha, J. said :- · "The Scheduled Castes and Scheduled Tribes occupy a special place in our Constitution. The President of India is the sole repository of the power to specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of the Constitution be deemed to be Scheduled Castes. The Constitution (Scheduled Castes) Order, 1950 made in terms of Article 341(1) is exhaustive. The object of Articles 341 and 342 F is to provide for grant of protection to the backward class of citizens who are specified in the Scheduled Castes .... Order and Scheduled Tribes Order having regard to the economic and education backwardness wherefrom they suffer. Any legislation which would bring them out of the 1:1urview thereof or tinker with the order issued by the G President of India would be unconstitutional. (Paras 52, 111 and 84) y (emphasis supplied)

162. A plea was raised by the respondent-State that H •

ASHOKA KUMAR THAKUR v. UNION OF !NOIA & ORS. 165 [K.G. BALAKRISHNAN, C.J.I.]

categorization of Scheduled Castes could be justified by A applying the "creamy layer" test as used in Indra Sawhney's case (supra) which was specifically rejected in paragraph 96 of the E.V. Chinnaiah's case (supra). It is observed :-

But we must state that whenever such a situation arises in respect of S~heduled Caste, it will be Parliament alone to 8 take the necessary legislative steps in terms of clause (2) of Article 341 of the Constitution. The States concededly do not have the legislative competence therefor." (p. 430)

163. Moreover, right from the beginning, the Scheduled c Castes and Scheduled Tribes were treated as a separate category and nobody ever disputed identification of such classes. So long as "creamy layer" is not applied as one of the · principles of equality, it cannot be applied to Scheduled Castes and Scheduled Tribes. So far, it is applied only to identify the 0 soeially and educationally backward classes. We make it clear that for the purpose of reservation, the principles of "creamy layer" are not applicable for Scheduled Castes and Scheduled Trib~. .

9Copy pinpoint9. Whether the principles laid down by the United E. States Supreme Court for affirmative action such as "suspect legislation", "strict scrutiny" and "compelling State necessity" are applicable to principles of reservation or other affirmative action contemplated under Article 15(5) of the Constitution F _,._I of India?

164. Based on the Ninety-Third Constitutional Amendment Act, Act 5 of 2007 has been enacted. According to the petitioner's Counsel, this is a "suspect legislation" and therefore, it is to be subjected to "strict scrutiny" as laid by the United States G Supreme Court and only by passing this test of ·"strict scrutiny", ·such legislation could be put into practice.

165. At the. outset, it must be stated that the decisions of the United States Supreme Court were not applied in the lncjian H

p. 166 Copy page pinpoint

A context as it was felt that the structure of the provisions under the two Constitutions and the social conditions as well as other >- factors are widely different in both the countries. Reference may be made to Bhikaji Narain Dhakras & Ors. Vs. The State of Madhya Pradesh & Anr.56 and A.S. Krishna Vs. State of 57 B Madras wherein this Court specifically held that the due process clause in the Constitution of the United States of America is not applicable to India. While considering the scope and applicability of Article 19( 1)(g) in Kameshwar Prasad and .. t Others Vs. State of Bihar and Another58 , it was observed "- • c "As regards these decisions of the American Courts, it should be borne in mind that though the First Amendment to the Constitution of the United States reading "Congress shall make no law .. .-.abridging the freedom of speech .... " appears to confer no power on the Congress to impose any restriction on the exercise of the guaranteed right, still it has always been understood that the freedom guaranteed .is subject to the police power - the scope of which however .... ~has not been defined with precision or uniformly. " (p. 378)

166. In Kesavananda Bharati 59 case also , while considering the extent and scope of the power of amendment under Article 368 of the Constitution of India, the Constitution of the United States of America was extensively referred to and Ray, J. , held :-

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 167 [K.G. BALAKRISHNAN, C.J.I.]

~ and the underlying concepts of law and judicial approach A · over a period of nearly 200 years, cannot be used to persuade this Court to apply their approach in determining the cases arising under our Constitution". (p. 615)

167. It may also be noticed that there are structural differences in the Constitution of India and the Constitution of B the United States of America. Reference may be made to the 14th Amendment to the U.S. Constitution. Some of the relevant i';. .> portions thereof are as follows: "All persons born or naturalized in the United States, and c subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property D without due process of law nor deny to any person within >- its jurisdiction the equal protection of the laws." 1·68. Whereas in India, Articles 14 and 18 are differently structured and contain express provisions for special provision ;~ for the advancement of SEBCs, STs and SCs. Moreover, in our E Constitution there is a specific provision under the Directive Principles of State Policy in Part IV of the Constitution requiring the State to strive for justice - social, economic and political - and to minimize the inequalities of income and endeavour to eliminate inequalities in status, facilities and opportunities F ).' (Article 38). Earlier, there was a view that Articles 16(4) and 15(5) are exceptions to Article 16(1) and 15(1) respectively. This view was held in The General Manager Southern Railways Vs. Rangachari 60 and M.R. Balaji Vs. State of Mysore61 .

p. 168 Copy page pinpoint

A exception to Article 16(1 ). He observed:- "... The expression 'nothing in this article' is a legislative device to express its intention in a most emphatic way that the power conferred thereunder is not limited in any way by the main provision but falls outside it. It has not B really carved out an exception, but has preserved a power untrammeled by the other provisions of the Article."

170. In two other subsequent decisions, i.e. in Triloki Nath (1) 63 (supra) and T. Devadasan case (supra), it was held that, c article 15(4) and 16(4) are exceptions to Article 15(1) and 16(1) respectively. But a 7-Judge Bench in State of Kerala Vs. N.M. Thomas (supra) held that Article 15(4) and 16(4) are not exceptions to Article 15(1) and 16(1) respectively. Fazal Ali J., said: D "This form of classification which is referred to as reservation, is in my opinion, clearly covered by Article 16(4) of the Constitution which is completely exhaustive .... on this point. That is to say clause (4) of Article 16 is not an exception to Article 14 in the sense that whatever E classification can be made, can be done only through clause (4) of Article 16. Claus~ (4) of Article 16, however, ' is an explanation containing an exhaustive and exclusive provision regarding reservation which is one of the forms of classification."

F 171. This brought out a drastic change in the view of this Court. In K.C. Vasanth Kumar Vs. State of Karnataka 64 (supra), Venkatramaiah J. observed: "Article 14 of the Constitution consists of two parts. It asks the State not to deny to any person equality before law. It G also asks the State not to deny the equal protection of the laws. Equality before law connotes absence of any ''( 63 (supra) at 104 ,..._ 64 H (supra) at 800

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 169 [K.G. BALAKRISHNAN, C.J.I.]

discriminatic;m in law. The concept of equal protection required the State to mete out differential treatment to persons in different situations in order to establish an equilibrium amongst all. This is the basis of the rule that equals should be treated equally and unequals must be treated unequally if the doctrine of equality which is one of the corner-stone of our Constitution is to be duly implemented. In order to do justice amongst unequals, the State has to resort to compensatory or protective discrimination . Article 15(4) and Article 16(4) of the Constitution were enacted as measures of compensatory c ·or protective discrimination to grant relief to persons . belonging to socially oppressed castes and minorities." .

172. The amendment to Article 15 by inserting Article 15(5) and the new Act (Act 5 of 2007) are to be viewed in · the background of these constitutional provisions. It may also be recalled that the Preamble to the Constitution and the·Directive Principles of State Policy give a positive mandate to the State and the State is obliged to remove inequalities and backwardness from society. While considering the constitutionality of a social justice legislation, it is worthwhile to note the objectives which have been incorporated by the Constitution makers in the Preamble of the Constitution and how they are sought to be secured by enacting fundamental rights in Part 111 and Directives Principles of State Policy in Part IV of the Constitution. The Fundamental Rights represent the civil and political rights and the Directive Principles embody social and economic rights. Together they are intended to carry out the objectives set out in the Prea~ble of the Constitution. 1 Granville Austin, in his· book65 , states : .

"Both types of rights have developed as a common demand, products of the national and social revolutions, of their almost inseparable intertwining, and of the

65 Granville Austin : The Indian Constitution : Corner-stone o·fa Nation, . ~~ . H

A 170 SUPREME COURT REPORTS

character of Indian politics itself." [2008] 4 S.C.R. -"' I-

173. From the constitutional history of India, it can be seen that from the point of view of importance and significance, no distinction can be made between the two sets of rights, namely, Fundamental Rights which are made justicia.ble and the B Directives Principles which are made non-justiciable. The Directive Principles of State Policy are made non-justiciable for the reason that the' implementation of many of these rights would depend on the financial capability of the State. Non- justiciable clause was provided for the reason that an infant State "' c shall not be made accountable immediately for not fulfilling these obligations. Merely because the Directive Principles are non- justiciable by the judicial process does not mean that they are of subordinate importance. In Champakam Dorairajan's case (supra), it was observed that "the Directive Principles have to D conform to and run subsidiary to the Chapter of Fundamental Rights." But this view did not hold for a long time and was later changed in a series of subsequent decisions. (See : In Re. . . Kerala Education Bill, 195766 ; Minerava Mills (supra))

174. In Minerva Mills 67 (supra) Bhagwati, J observed : E "The Fundamental Rights are no doubt important and valuable in a democracy, but there can be no real democracy without social and economic justice to the common man and to create socio-economic conditions in F which there can be social and economic justice to every one, is the theme of the Directive Principles. It is the Directive Principles which nourish the roots of our democracy, provide strength and vigour to it and attempt to make it a real participatory democracy which does not remain merely a political democracy with Fundamental G Rights available to all irrespective of their power, position or wealth. The dynamic provisions of the Directive y

67 1959 SCR 995 AIR 1980 SC 1789, at p. 1847 ·-

.- ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 171 [K.G. BALAKRISHNAN, C.J.I.]

Principles fertilise the static provisions of the Fundamental A Rights. The object of the Fundamental Rights is to protect individual liberty, but can individual liberty be considered in isolation from the socio-economic structure in which it is to operate. There is a real connection between individual liberty and the shape and form of the social and economic B structure of the society. Can there be any individual liberty at all for the large masses of people who are suffering 1" from want and privation and who are cheated out of their individual rights by the exploitative economic system? Would their individual liberty not come in conflict with the c liberty of the socially and economically more powerful class and in the process, get mutilated or destroyed? It is exiomatic that the real controversies in the present day society are not between power and freedom but between one form of liberty and another. Under the present socio- D economic system, it is the liberty of the few which is in conflict with the liberty of the many. The Directive Principles therefore, impose an obligation on the State to take positive action for creating socio-economic conditions in which there will be an egalitarian social order with social and economic justice to all, so that individual liberty will E become a cherished value and the dignity of the individual a living reality, not only for a few privileged persons but for the entire people of the country. It will thus be seen that the Directive Principles enjoy a very high place in the

.A . constitutional scheme and it is only in the framework of the F ·socio-economic structure envisaged in the Directive Principles that the Fundamental Rights are intended to operate, for it is only then they can become meaningful and significant for the millions of our poor and deprived people who do not have been the bare necessities of life G and who are living below the poverty level."

175. Article 46 enjoins upon the State to promote with v special care the educational and economic interests of the weaker sections of the people and to protect them from social H

172 SUPREME COURT REPORTS [2008] 4 S.C.R

A injustice and all forms of exploitation whereas urider the Constitution of the United States of America, we get an entirely different picture. Though equality was one of the solemn affirmations of the American Declaration of Independence, slavery continued unabatedly and it was, to some extent, legally recognized. In Dred Scott Vs. Saunders 68 wherein Chief Justice Taney held that [African-Americans] were not entitled to get citizenship. He was of the view that 'once a slave always a slave', and one slave never would become the citizen of America. This view held by the Chief Justice Taney continued for a long time and after the Civil War, the 14th amendment was enacted in 1868 and this amendment gave (equal protection of laws to all persons). In Plassy Vs. Ferguson 69 which involved a challenge to a Louisiana statute that provided for equal but separate accommodations for black and white passengers in trains, the United States Supreme Court was of the view that racial segregation was a reasonable exercise of State police power for the promotion of the public good and upheld the law. Several affirmative actions were challenged and the landmark decision of Brown Vs. Board of Education 70 was delivered in 1954. In many cases, the strict scrutiny doctrine was being applied to all laws of racial classifications. The learned Counsel for the petitioner made reference to Gratz Vs. Bollinger (supra) and some of the earlier decisions of the UniteJStates Supreme Court. During the past two decades, the Court has become sceptical of race-based affirmative action practiced or ordered by the State. The Supreme Court of the US is of the view that affirmative action plans must rest upon a sufficient showing or predicate. of past discrimination which must go beyond the effects of societal discrimination.

176. The 14th Amendment to the Constitution of the United G States of America and Title VI of the 1964 Civil Rights Act,

68 60 us 393( 1856) •.,.- 69 163 us 537(1896) H 70 347 us 483

•' ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 173 [K.G BALAKRISHNAN, C.J.I.]

~ prohibit universities to discriminate on the basis of classifications A such as race, colour, national origin and the like in all their .., operations. In a number of decisions of the United States 1 Supreme Court spanning decades of jurisprudence, a heavy " 'I burden has been placed on institutionswhose affirmative action "' programmes are challenged before the United States Supreme B Court on grounds that have been recognized as suspect or unconstitutional. According to the United States Supreme Court, l_j all such programmes are inherently suspect since they rely on suspect forms of classification (such as race). Therefore, because such forms of classification are inherently suspect, the c courts have subjected all affirmative action programmes relying -j on them to a very high standard of scrutiny, wherein those ....._ practicing these affirmative action programmes have to adhere to a very high standard of proof, which we know as the "strict "') I scrutiny" test. D >-. 177. The case of Regents of the University of California Vs. Bakke 71 provided a starting point and from this case onwards, affirmative action programmes can be justified only on two distinct grounds, and only these grounds have been recognized as compelling enough so as to satisfy the "strict E _, scrutiny'' test, as developed by the United States Supreme Court. The two grounds are as follows:

1. Remedial Justification: All efforts aimed at remedying ~. past injustices against certain identified groups of people, who ,,,,' were unlawfully discriminated against in the past, serve as F adequate justifications and all affirmative action programmes that are implemented with this aim serve the compelling institutional interest in removing all vestiges of discrimination that occurred in the past. G In the case of City of Richmond Vs. J A Croson Co. 72 , the United States Supreme Court held that if a university is able y ' 71 438 us 265 (1978) 72 488 U.S. 469 (1989) H

174 SUPREME COURT REPORTS (2008] 4 S.C.R.

A to show "some showing of prior discrimination" in its existing affirmative action program furthering racial exclusion then the university may take "affirmative steps to dismantle such a system". However, it is to be noted that the US Supreme Court also attached a warning with the above observation. While B scrutinizing such programmes, it was held that the Court would make "searching judicial inquiry into the justification for such race-based measures... [and to] identify that discrimination ... with some specificity before they may use race-conscious "t relief'. (Croson's Case73 ) c 2. Diversity- All affirmative action programmes aimed at bringing about racial diversity among the scholarship of the institution(s) may be said to in furtherance of compelling institutional interest. The starting point for this ground is Justice Powell's detailed opinion regarding the issue of diversity in the D case of Regents of the University of California Vs. Bakke74 (supra). In this case, according to Justice Powell, "[t]he attainment of a diverse student body is clearly a constitutionally permissible goal for an institution of higher education". He quoted from two of the Supreme Court's decisions regarding 75 E academic freedom [Sweezy Vs. New Hampshire and Keyishian Vs. Board of Regents 76 } and observed: "[l]t is the business of a university to provide that atmosphere which is most conducive to speculation, ..... experiment and creation ......... The atmosphere of F speculation, experiment and creation - so essential to ~

the quality of higher education - is widely believed to be promoted by a diverse student body.... [l]t is not too much to say that the nation's future depends upon leaders trained through wide exposure to the ideas and mores of students G 73 (supra), p. 492-93 y 14 (supra) at 311-313 75 (1957) 354 US 234 at 263 H 1s ( 1967) 385 US 589 at 603

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 175 [K.G. BALAKRISHNAN, C.J.I.] __.. as diverse as this Nation of many peoples." A

178. The other part of the "strict scrutiny" test is the "narrow tailoring" test. The University, whose affirmative action programme is in question before the United States Supreme Court, is required to prove that its affirmative action programme has been designed in the narrowest possible manner, in order 8 to benefit only those specific people who are to be benefited, ! ,. thus serving the "compelling purposes" of the affirmative action programme. The program cannot be made in a broad manner to encompass a large group of people, and it has to serve the minimum possible requirement, in order to achieve its goal. c Otherwise, it may be possible that the rights of other people may be infringed upon, which would make the affirmative action programme unconstitutional.

179. Thus, the first limb of the strict scrutiny test that D elucidates the "compelling institutional interest" is focused on the objectives that affirmative action programmes are designed to achieve. The second limb, that of "narrow tailoring", focuses on the details of specific affirmative action programmes and on the specific people it aims to benefit. E

180. The United States Supreme Court has held that race may be one of the many factors that can be taken into account while structuring an affirmative action programme. At this stage, an analogy may be drawn with the Indian situation wherein the Supreme Court of India, in various cases, has held that caste F " may be one of the factors that can be taken into account, while providing for reservations for the socially and educationally backward classes. However, caste cannot be the "only" factor, just as race alone cannot be the only factor in the United States, while structuring reservation or affirmative action programmes. G

181. Furthermore, the courts, both in India as well as in the United States of America, have looked with extreme caution and care at any legislation that aims to discriminate on the basis of race in the US and caste in lr:idia. As the US Supreme Court elucidated in the case of Grutter Vs. Bollinger (supra), H

176 SUPREME COURT REPORTS [2008] 4 S.C.R.

A "Because the Fourteenth Amendment "protect[s] persons, not f

groups," all governmental action based on race ought to be subjected to a very detailed and careful judicial inquiry and scrutiny so as to ensure that the personal right to equal protection of the laws has not been infringed. (See : Adarand 77 B Constructors Inc. Vs. Peiia) .

182. It therefore follows that the Government may treat people differently because of their race but only for those reasons that serve what is known as "compelling Government ~' , interest". c

183. Furthermore, for any affirmative action programme to survive the strict standard of judicial scrutiny, the Courts want "compelling evidence", that proves without any doubt that the affirmative action program is narrowly tailored and serves only the most compelling of interests. Thus, the bar for the State or institution that practices affirmative action programmes based on suspect classifications has been effectively raised. " Therefore, in cases where a compelling interest is found, race- based methods may be used only after all other methods have been considered and found deficient, and that too only to that limited extent which is required to remedy a discrimination that has been identified, and only when it has been shown that the identified beneficiaries have suffered previously in the past, and lastly, only if all undue burdens that may impinge upon the rights of other non- beneficiaries are avoided. F .~

184. The aforesaid principles applied by the Supreme Court of the United States of America cannot be applied directly to India as the gamut of affirmative action in India is fully supported by constitutional provisions and we have not applied the principles of "suspect legislation" and we have been following G the doctrine that every legislation passed by the Parliament is presumed to be constitutionally valid unless otherwise proved. ~- We have repeatedly held that the Am~,,ican decisions are not

77 H (1995) 515 US 200 at 227

' ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. [K.G. BALAKRISHNAN, C.J.I.] 177

strictly applicable to us and the very same principles of strict A --'. scrutiny and suspect legislation were sought to be applied and this Court rejected the same in Saurabh Chaudhari Vs. Union of lndia 78 . Speaking for the bench, V.N. Khare, CJI, said: "The strict scrutiny test or the intermediate scrutiny test applicable in the United States of America as argued by B Shri Salve cannot be applied in this case. Such a test is not applied in Indian Courts. In any event, such a test may -J;. be applied in a case where a legislation ex facie is found to be unreasonable. Such a test may also be applied in a case where by reason of a statute the life and liberty of a c citizen is put in jeopardy. This Court since its inception apart from a few cases where the legislation was found to be ex facie wholly unreasonable proceeded on the doctrine that constitutionality of a statute is to be presumed and the burden to prove contra is on him who asserts the same." D

185. Learned Counsel Shri Sushil Kumar Jain contended _; .. that the classification of OBCs was not properly done and it is not clear as to whose benefit the legislation itself is made therefore, it is a suspect legislation. This contention cannot be accepted. We are of the view that the challenge to Act 5 of 2007 E on the ground that it does not stand the "strict scrutiny" test and there was no "compellable State necessity" to enact this legislation cannot be accepted.

10Copy pinpoint10. Whether delegation of power to the Union F Government to determine as to who shall be the ·""· backward class is constitutionally valid?

186. The learned Counsel for the petitioners contended that though "Backward Class" is defined under Section 2(g) of Act 5 of 2007, it is not stated in the Act how the "Backward G Class" would be identified and the delegation of such power to the Union of India to determine as to who shall be the "backward y class" without their being proper guidelines is illegal as it 76 2003 (11) sec 146 H

178 SUPREME COURT REPORTS [2008] 4 S.C.R.

A amounts to excessive delegation. According to the learned Counsel for the petitioners, the Parliament itself should have laid down the guidelines and decided that who shall be included in the backward class as defined under Section 2(g) of the Act 5 of 2007. "Backward class" is not a new word. Going by the B Constitution, there are sufficient constitutional provisions to have an idea as to what "backward class" is. Article 340 of the Constitution specifically empowers the President of India to appoint a Commission to investigate the conditions of the socially and educationally backward classes within the territory c of India. Socially and educationally backward classes of citizens are mentioned in Article 15(4) of the Constitution, which formed the First Amendment to the Constitution. Backward class citizens are also mentioned in Article 16(4) of the Constitution. It is only for the purpose of Act 5 of 2007 that the Union of India has been entrusted with the task of determining the backward class. There 0 is already a National Commission and also various State Commissions dealing with the affairs of the backward class of citizens in this country. For the purpose of enforcement of the legislation passed under Article 16(4), the backward class of citizens have already been identified and has been in practice since the past 14 years. It is in this background that the Union of India has been given the task of determining the backward classes. The determination of backward classes itself is a laborious task and the Parliament cannot do it by itself. It is incorrect to say that there are no sufficient guidelines to determine the backward classes. Various parameters have been used and it may also be noticed that if any undeserving caste or group of persons are included in the backward class, it is open to any person to challenge the same through judicial review. Therefore, it is incorrect to say that the Union of India G has been given wide powers to determine the backward classes. The challenge to Act 5 of 2007 on that ground fails.

11Copy pinpoint11. Whether the Act is invalid as there is no time limit y prescribed for its operation and no periodical review is contemplated? •

'J ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 179 [K.G. BALAKRISHNAN, C.J.I.]

187. The learned Counsel for the petitioners contended that the reservation of 27% provided for the backward classes in the educational institutions contemplated under the Act does not prescribe any time limit and this is opposed to the principle of equality. According to learned Counsel for the petitioners, this affirmative action that is to bring about equality is calculated B """ to produce equality on a broader basis by eliminating de facto inequalities and placing the weaker sections of the community on a footing of equality with the stronger and more power section ".•. • so that each member of the community, whatever is his birth, occupation or social position may enjoy equal opportunity of c using to the full, his natural endowments of physique, of character and of intelligence. This compensatory state action can be continued only for a period till that inequality is wiped off. Therefore, the petitioners have contended that unless the period is prescribed, this affirmative action will continue for an indefinite period and would ultimately result in reverse discrimination. It is true that there is some force in the contention advanced by the >. learned Counsel for the petitioners but that may happen in future if the reservation policy as contemplated under the Act is successfully implemented. But at the outset, it may not be possible to fix a time limit or a period of time. Depending upon the result of the measures and improvements that have taken place in the status and educational advancement of the socially and educationally backward classes of citizens, the matter could be examined by the Parliament at a future time but that cannot be a ground for striking down a legislation. After some period, if F ,;, it so happens that any section of the community gets an undue advantage of the affirmative action, then such community can very well be excluded from such affirmative action programme. The Parliament can certainly review the situation and even though a specific class of citizens is in the legislation, it is the G constitutional duty of the Parliament to review such affirmative action as and when the social conditions are required. There is ,.,, also the safeguard of judicial review and the court can exercise its powers of judicial review and say that the affirmative action has carried out its mission and is thus no longer required. In the H

180 SUPREME COURT REPORTS [2008] 4 S.C.R.

A case of reservation of 27% for backward classes, there could ' )

be a periodic review after a period of 10 years and the !-

Parliament could examine whether the reservation has worked for the good of the country. Therefore, the legislation cannot be held to be invalid on that ground but a review can be made after B a period of 10 years.

12Copy pinpoint12. What shall be the educational standard to be prescribed to find out whether any class is educationally backward? •• ..- c 188. Learned Senior Counsel Shri P.P. Rao contended that under Article 15(5) of the Constitution, the reservation or any other affirmative action could be made for the advancement of only socially and educationally backward classes of citizens or Scheduled Castes or Scheduled Tribes and the educational standard to be assessed shall be matriculation or 10+2 and not more than that. It was argued that many castes included in the backward class list have got a fairly good number of members who have passed 10+2 and thus such castes are to be treated as educationally forward and the present legislation, namely, Act 5 of 2007, is intended to give reservation to students in higher institutions of learning and the same is not permissible under Article 15(5) of the Constitution. He contended that the Parliament should not have made this legislation for reservation in the higher institutions of learning as it is not part of the duty of the State under Article 46 of the Constitution. According to the learned Counsel, education contemplated under Article 46 is only giving education upto the standard of 10+2. The learned >.

Counsel argued that this was the desire of the Founding Fathers of the Constitution. The learned Counsel contended further that the State is not taking adequate steps to improve primary education.

189. In reply to Shri P.P. Rao's arguments, learned Solicitor General Shri G. E. Vahanvati drew our attention to various steps taken by the Union Government to improve the primary school ... education and also the upper primary school education. It is H

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 181 [K.G. BALAKRISHNAN, C.J.I.]

incorrect to suggest that there have been no efforts on the part of successive Governments to concentrate on level of education towards universal elementary education. "Sarva Shiksha Abhiyanf" (SSA} had been launched by the Government in 2001-:

2002. The major components .of SSA include opening of new schools, distribution of teaching: equipments, school grant for teachers and maintenance for schools, community participation &training, carrying out Civil works in school buildings, additional class rooms, distribution of free text books for ST students and girls. It was pointed out that in the year 2006-2007, nearly Rs. 15,000 crores had been spent for such education . The c Integrated Child Development Services (ICDS} scheme was started in 1975. Latest figures show that progress has been made in the field of education. It is pointed out that the primary school coverage has increased from 86.96% (2002) to 96% and that of Upper Primary School has increased from 78.11 % D to 85.3% with the opening of 1.34 Lakh Primary Schools and 1.01 lakh Upper Primary Schools. The gross enrolment has also > increased at the primary as well as upper primary stage. Drop out rate-has fallen by 11.3%. It is also pointed out that girls enrolment has increased from 43.7% (2001) to 46.7% (2004) at primary and from 40.9% to 44% at upper primary stage. The E Union of India has granted funds to various states for the purpose of meeting the education requirements. The entire details were furnished to the Court and we do not think it necessary to go into these details. Though at the time of attaining Independence, the basic idea was to improve primary and secondary level F j

,J., education, but now, after a period of more than 50 years, it is idle to contend that the backward classes shall be determined on the basis of their attaining education only to the level of 10+2 stage. In India there are a large number of arts, science and professional colleges and in the field of education, it is G anachronistic to contend that primary education or secondary education shall be the index for fixing backward class of citizens. '/ We find no force in the contention advanced by the learned Counsel for the petitioners and it is only to be rejected. H

182 SUPREME COURT REPORTS [2008] 4 S.C.R.

13Copy pinpoint13. Whether the quantum of reservation provided for in the Act is valid and whether 27% of seats for SEBC was required to be reserved? . 190. The main contention of the petitioner's Counsel especially that of Shri Sushil Kumar Jain is that the entire Act is 8 liable to be set aside as there was no necessity to provide any reservation to socially and educationally backward classes and according to him most of the castes included in the list which is prepared in accordance with the Mandal Commission are educationally very much advanced and the population of such C group is not scientifically collected and the population ratio of backward classes is projected only on the basis of the 1931 census and the entire legislation is an attempt to please a section of the society as part of a vote catching mechanism.

191. A legislation passed by the Parliament can be 0 challenged only on constitutionally recognized grounds. Ordinarily, grounds of attack of a legislation is whether the legislature has legislative competence or whether the legislation is ultra vires of the provisions of the Constitution. If any of the provisions of the legislation violates fundamental rights orany other provisions of the Constitution, it could certainly be a valid ground to set aside the legislation by invoking the power of judicial review. A legislation could also be challenged as unreasonable if it violates the principles of equality adumbrated in our Constitution or it unreasonably restricts the fundamental rights under Article 19 of the Constitution. A legislation cannot be challenged simply on the ground of unreasonableness because that by itself does not constitute a ground. The validity of a constitutional amendment and the validity of plenary legislation have to be decided purely as questions of constitutional law. This Court in State of Rajasthan & Ors. Vs. Union of India and Others 79 said : " ... if a question brought before the Court is purely a

H 79 (1977) 3 sec 592 at p. 660

\ ' ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 183 [K.G. BALAKRISHNAN, C.J.I.]

politically question not involving determination of any legal A or constitutional right or obligation, the court would not entertain it, since the Court is concerned only with adjudication of legal rights and liabilities."

192. Therefore, the plea of the Petitioner that the legislation itself was intended to please a section of the community as part 8 of the vote catching mechanism is not a legally acceptable plea and it is only to be rejected.

193. The quantum of reservation provided under the Act 5 of 2007 is based on the detailed facts available with the c Parliament. Various commissions have been in operation determining as to who shall form the SEBCs. Though a caste- wise census is not available, several other data and statistics are available. In the case of Indra Sawhney (supra), the Mandal Commission was accepted in principle though the details and 0 findings of the commissions were not fully accepted by this Court. 27% of reservation in the matter of employment was accepted by this Court. Petitioners have not produced any documents to show that the backward class citizens are less than 27%, vis-a-vis, the total population of this country or that there was no requirement of 27% reservation for them. The E Parliament is invested with the power of legislation and must be deemed to have taken into consideration all relevant circumstances when passing a legislation of this nature. It is futile to contend whether Parliament was not aware of the statistical details of the population of this country and, therefore, F J we do not think that 27% reservation provided in the Act is illegal or on that account, the Act itself is liable to be struck down. Questions:

1. Whether the Ninety-Third Amendment of the G Constitution is against the "basic structure" of the Constitution? The Constitution (Ninety-Third Amendment) Act, 2005 does not violate the "basic structure" of the Constitution so far as it H

184 SUPREME COURT REPORTS [2008] 4 S.C.R.

., A relates to the state maintained institutions and aided educational institutions. Question whether the Constitution (Ninety-Third t- Amendment) Act, 2005 would be constitutionally valid or not so far as "private unaided" educational institutions are concerned, is left open to be decided in an appropriate case. (Paragraph B 79)

2. Whether Articles 15(4) and 15(5) are mutually contradictory, hence Article 15(5) is to be held ultra vires? •" • c Article 15(5) is constitutionally valid and Articles 15(4) and 15(5) are not mutually contradictory. (Paragraph 100)

3. Whether exclusion of minority educational institutions from Article 15(5) is violative of Article 14 of Constitution? D Exclusion of minority educational institutions from Article 15(5) is not violative of Article 14 of the Constitution as the minority educational institutions, by themselves, are a separate class and their rights are protected by other constitutional provisions. (Paragraph 102)

4. Whether the Constitutional Amendment· followed the procedure prescribed under Article 368 of the Constitution? The Ninety-Third Amendment of the Constitution does not affect the executive power of the State under Article 162 of the Constitution and hence, procedure prescribed under Proviso to Article 368(2) is not required to be followed. (Paragraph 103)·

5. Whether the Act 5 of 2007 is constitutionally invalid in view of definition of "Backward Class" and whether the identification of such "Backward Class" based on "caste" is constitutionally valid? H Identification of "backward class" is not done solely based

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 185 [K.G. BALAKRISHNAN, C.J.I.]

on caste. Other parameters are followed in identifying the A backward class. Therefore, Act 5 of 2007 is not invalid for this reason. (Paragraph 142)

6. Whether ·~creamy Layer" is to be excluded from SEBCs? B "Creamy Layer" is to be excluded from SEBCs. The identification of SEBCs will not be complete and without the exclusion of "creamy layer" such identification may not be valid under Article 15(1) of the Constitution. (Paragraph 152)

7. What should be the para-meters for determining C the "creamy layer" group? The parameters contained in the Office Memorandum issued by the Government of India, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and 0 Training) on 08.09.1993 may be applied. And the definition of "Other Backward Classes" under Section 2(g) of the Act 5 of · 2007 should be deemed to mean class or classes of citizens who are socially and educationally backward, and so determined by the Central Government; and if the determination is with reference to caste, then the backward class shall be after E excluding the creamy layer. (Paragraphs 153 and 155)

8. Whether the "creamy layer" principle is applicable to Scheduled Tribes and Scheduled . ,;., Castes? F "Creamy Layer" principle is not applicable to Scheduled Castes and Scheduled Tribes. (Paragraph 163)

9. Whether the principles laid down by the United States Supreme Court for affirmative action such G as "suspect legislation", "strict scrutiny" and "compelling State necessity" are applicable to principles of reservation or other affirmative action contemplated under Article 15(5) of the Constitution? H

186 SUPREME COURT REPORTS [2008) 4 S.C.R.

A The principles laid down by the United States Supreme ~ Court such as "suspect legislation", "strict scrutiny" and "compelling State necessity" are not applicable for challenging the validity of Act 5 of 2007 or reservations or other affirmative action contemplated under Article 15(5) of the Constitution. B (Paragraphs 184)

10. Whether delegation of power to the Union Government to determine as to who shall be the backward class is constitutionally valid?

c The delegation of power to the Union Government to determine as to who shall be the "other backward classes" is not excessive delegation. Such delegation is constitutionally valid. (Paragraph 186)

11. Whether the Act is invalid as there is no time D limit prescribed for its operation and no periodical review is contemplated? ;.

The Act 5 of 2007 is not invalid for the reason that there is no time limit prescribed for its operation, but a review can be made after a period of 10 years. (Paragraph 187) E

12. What shall be the educational standard to be prescribed to find out whether any class is educationally backward? The contention that educational standard of matriculation F or (10+2) should be the benchmark to find out whether any class . J..

is educationally backward is rejected. (Paragraph 189)

13. Whether the quantum of reservation provided for in the Act is valid and whether 27% of seats for SEBC was required to be reserved? G 27% of seats for other backward classes is not illegal and the Parliament must be deemed to have taken into consideration .v all relevant circumstances when fixing the 27% reservation. (Paragraph 193) H

' , " ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 187 ' [DR. ARIJIT PASAYAT, J.]

These Writ Petitions are disposed off in light of the above findings, and the "Other Backward Classes" defined in Section 2(g) of Act 5 of 2007 is to be read as "Socially and Educationally Backward Classes" other than Scheduled Castes and .....;, Scheduled Tribes, determined as 'Other Backward Classes' by the Central Government and if such determination is with reference to caste, it shall exclude "Creamy Layer" from among such caste. In Contempt Petition (Civil) No. 112/2007 in Writ

- -.; \. Petition (C) No. 265/2006, no orders are required. It is dismissed. Dr. ARIJIT PASAYAT, J. 1. The issues involved in the c present writ petitions have far reaching consequences and in essence pose several questions of seminal importance. In essence, they raise questions which have no easy answers. The complexity can be gauged from the fact that on one hand the petitioners have questioned the logic of providing D ). reservations/quotas for a class of people whom they described as "unidentifiable" or "undetermined" while the respondents justify their action by labelling them as measures taken for upliftment of vast majority of people who have suffered social humiliation and sneer for the social backwardness. Complex E questions like whether the expressions 'class' and 'castes' are synonyms, whether reservations provide the only solution for social empowerment measures, alleged lack of concern for the economically weaker group of citizens are some of the basic . ,A. issues which need to be addressed. It has been emphatically highlighted by the petitioners that when the ultimate objective is classless and casteless in Indian democracy, there is no question of unendingly providing the reservation and that too without any definite data regarding backwardness. In essence, they contend that these measures perpetuate backwardness and do not remove them. On the epicenter of challenge is the Central Educational Institutions (Reservation in Admission) Act 2006 )I (in short the 'Act') and the 93rd Amendment to the Constitution of India, 1950 (in short the 'Constitution~). Interestingly, both the petitioners and the respondents rely strongly on certain H

188 SUPREME COURT REPORTS [2008] 4 S.C.R.

A observations made by this Court in Indra Sawhney v. Union of India 1992 (Suppl. 3) SCC 217 (commonly known as 'Indra Sawhney No.1 ')

2. When the writ petitions were placed before a Bench of two Judges, considering the importance of the matter they were ... B referred to be heard by a larger bench and certain questions which arise for consideration were formulated. That is how these cases are before this Bench.

3. Arguments have been advanced by both the sides as to J - c whether Constitution contemplates casteless society. While the respondents submit that the Constitution really does not think of a casteless society, it prohibits untouchability in the background of Article 17. It has to be noted that both in Articles 15 and 16 the stress is on non-discrimination on the ground of castes. The Preamble of the Constitution also throws light on this aspect. D Ultimately if the social status of a man goes in the higher direction because of his education, the difference in status gets obliterated. Education is a great leveller. In that sense, the ultimate object is that every Indian citizen should have the social status which is not inferior to another and that would be E obliteration of the difference in status. The ultimate objective is to see that no person gets discriminated because of his caste. If that be so, it would not be right to say that the ultimate objective is not the casteless society.

F 4. Various Articles of the Constitution of India and the . .l.. Preamble provide an insight to the. monumental document i.e. the Constitution of India. Article 14 guarantees equality before the law in addition to equal protection of law. Article 15(1) mandates that there shall not be any discrimination against any citizen on the grounds of religion, caste, sex, race, or place of G birth. Article 16(1) makes the fundamental right of equality specific relating to job opportunities. Article 16(2) significantly ~ speaks of government employment by providing that no citizen shall be ineligible only on the grounds of religion, race, caste, sex, descent, place of birth or any of them or discriminated H

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against in respect of any employment or office under the State. A -4 Article 16(4) is an important provision which empowers the State ~ ~ permitting the provision for the reservation of appointments and posts in favour of any backward class of citizens which in the opinion of the State is not adequately represented in the services of the State. The stress is on backwardness of the citizens and B inadequate representation in the services under the State.

5. If one takes a walk on the pathway relating to the views \. expressed by this Court in the matter of reservation or quotas for the other backward classes one comes across many milestones. Some of them were noted extensively in Indra c Sawhney No. 1. They are: The State of Madras v. Sm. Champakam Dorairajan & Anr. (AIR 1951 SC 226), Minor A Peeriakaruppan v. Sobha Joseph (1971 (1) SCC 38), The State of Andhra Pradesh and Ors. v. U.S. V Bairam, etc. (1972 (1) SCC 660), Shri Janki Prasad Parimoo and Ors. v. State of D Jammu and Kashmir and Ors. (1973(1) SCC 420), State of ·~ )... Uttar Pradesh and Ors. v. Pradip Tandon and Ors. (1975 (1) SCC 267), State of Kera/a and Anr. v. N.M. Thomas and Ors. (1976(2) SCC 310), Kumari KS. Jayashree and Anr. v. The State of Kera/a and Anr. (1976 (3) SCC 730), K.C. Vasanth E Kumar and Anr. v. State of Kamataka (1985 (Supp) SCC 714) and Indra Sawhney v. Union of India and Ors. (2000 (1) SCC 168) (known as Indra Sawhney No.2).

6. Two recent decisions have also been highlighted by the parties. They are M. Nagaraj and Ors. v. Union of India and F Jo- . Ors. (2006 (8) SCC 212) and Nair Service Society v. State of Kera/a (2007 (4) sec 1). It is to be noted that some of the arguments which have been raised relate to broad principles of law and the jurisprudential approach. They are the applicability of the foreign decisions, more particularly, the decisions of the G American Courts. They relate to the principles of strict scrutiny and narrow tailoring. 'f 7. Learned counsel for the petitioners have stressed on these decisions to show as to what should be the approach in H \

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A matters relating to social empowerment. Learned counsel for the respondents have however submitted that the approach is to be different because the problems before the American Courts essentially related to individual rights while the Indian Courts are more concerned with group rights i.e. rights of class B of citizens. We shall deal with this in some length later.

8. The other issue which was hotly contested related to the exclusion of the creamy layer.

9. One of the major challenges raised by the petitioners is c based on the allegation that there is no acceptable data for fixing the percentage of other backward classes. This has been highlighted to show that there is no rational basis for fixing the percentage of reservation at 27% for the other backward classes. It is pointed out that the figures appear to have been culled out from some survey done more than seven decades 0 back i.e. 1931 to be precise. Thereafter, there seems to be no definite data to know the actual percentage. It is pointed out that in Indra Sawhney No. 1 (supra) this Court had laid considerable stress on having a Commission to identify and determine the criteria for determining the socially and educationally backward classes. Very little appears to have been done. It is surprising, it was contended, that there has been not even a single case of exclusion but on the other hand more than 250 new castes/sub-castes have been added. This shows that •• there is really no serious attempt to identify the other backward classes. On the other hand, there has been over-jealous anxiety . to include more number of people so that they can get the ..... benefits of reservations/quotas and this has been termed as "vote bank politics". It is highlighted that even when a serious matter relatfng to adoption of the Act was under consideration there was hardly any discussion and every political party was exhibiting its anxiety to get the Statute passed. Crocodile tears were shed to show lip sympathy for the backwardness of the people. In reality, the object was to give a wrong impression to the people that they were concerned about the backwardness of the people and they were the 'Messiahs' of the poor and the

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down trodden. In reality, in their hearts the ultimate object was A -+ to grab more votes. The lack of seriousness of the debate exhibits that the debate was nothing but a red-herring to divert attention from the sinister, politically motivated design masked by the "tearful" faces of the people masquerading as champions of the poor and down trodden. It is pointed out that contrary to. B what was being projected by the parties when the discussions were going on, in an impassioned speech by late Rajeev Gandhi who was the leader of opposition at an earlier point of \ time, the fallacies in adopting the Manda! Report were highlighted. It is surprising, it is submitted, that those very people c who were the champions of anti-reservation and anti- quota as members. of opposition, have done summersault and were saying just the opposite. It is pointed out that when one member Shri P.C. Alexandar exhibited real courage and highlighted the fallacies in the stand taken, his view appears to have been lightly brushed aside and the Statute hustled through. It is also submitted that the objectivity and sanctity of the report submitted in the Parliament commonly known as "Oversight Committee Report" has been lightly brushed aside. This only indicates that there was no serious debate about the consequences. The foresight of late Rajiv Gandhi in saying that the country will be divided on caste basis and that would lead to disaster has been prophetically proved to be correct and it is a reality. It is submitted that the enactment has created a sharp divide amongst the citizens of the country and it has not even an iota of good results flowing from it. On the contrary, the country will be divided sharply F ) ... leading to social unrest and caste-wars. It is pointed out that in the recent past such caste wars have resulted in large scale . loss of life and destruction of public properties.

10. The relevance of the parliamentary debate or the G speech of the Minister has been highlighted by this Court in many cases. It is a settled position in law that there can be only limited use of the parliamentary debate. The Courts should not '~ I normally critically analyse the proceedings of Parliament. This flows from a very fundamental aspect i.e. mutual respect of the H ~

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A Parliament and the Judiciary for each other. Each of these great institutions in a democracy operates in different fields. It is not .... expected that one wing of democracy would criticize the manner of functioning of another wing. That would be against the basic desirability 'of mutual respect. Any opinion or comment or B criticism about the manner of functioning of one by the other would be not only undesirable but imperatively avoidable. The citizens of this country expect a great deal from the Parliament and the Judiciary. It is but natural that the people of this country ./ would be disappointed and dis-heartened and their hopes will c be shattered if instead of showing respect for each other, there is mudslinging, unwanted criticism or impermissible criticism about the manner of functioning or the rationale of a decision or a view taken. In this context, it would be relevant to take note of what this Court said in Builders Association of India v. Union of India and Ors. (1995 Supp (1) sec 41), and K. Nagaraj and D Ors. v. State of Andhra Pradesh and Anr. (1985 (1) SCC 523). In State of Mysore v. R. V Bidap (1974 (3) SCC 337), it was observed as follows: "5. Anglo-American jurisprudence, unlike other systems, has generally frowned upon the use of parliamentary debates and press discussions as throwing light upon the meaning of statutory provisions. Willes, J. in Miller v. Tayler, [1769] 4 Burri, 2303, 2332., stated that the sense and meaning of an Act of Parliament must be collected from what it says when passed into law, and not from the history of changes it underwent in the House where it took its rise. ;.. That history is not known to the other House or to the Sovereign. In Assam Railways and Trading Company Ltd. v. l.R.C., [1935] A.C. 445 at p. 458, Lord Writ in the Privy Council said : G "It is clear that the language of a Minister of the Crown in proposing in Parliament a measure which eventually becomes law is inadmissible and the 1' ~

report of commissioners is even more removed from value as evidence of intention, because it does not

~ , ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 193 [DR. ARIJIT PASAYAT, J.)

follow that their recommendations were accepted." A The rule of grammatical construction has been accepted in India before and after Independence. In the State of Travancore-Cochin and Ors. v. Bombay Company Ltd., Alleppey, (AIR 1952 S.C. 366), Chief Justice Patanjali Sastri delivering the judgment of the Court, said :- B

,• "It remains only to point out that the use made by the learned Judges below of the speeches made by the members of the Constituent Assembly in the course of the debates on the draft Constitution is c unwarranted. That this form of extrinsic aid to the interpretation of statutes is not admissible has been generally accepted in England, and the same rule has been observed in the construction of Indian statutes-see Administrator-General of Bengal v. D Prem Lal Mullick, 22 Ind. Appl. 107 (P.C.) at p. 118. The reason behind the rule was explained by one of "· us in Gopalan v. State of Madras, (1950) S.C.R. 88 thus: speech made in' the course of the debate on a bill E could at best be indicative of the subjective intent of the speaker, but it could not reflect the inarticulate mental process lying behind the majority vote which carried the bill. Nor is it reasonable to assume that the minds of all those legislators were in accord". F ' .~ Or, as it is more tersely put in an American case- "Those who did not speak may not have agreed with those who did; and those who spoke might differ from each other-United States v. Trans-Missouri G Freight Association, (1897) 169 U.S. 290 at p. 318 (sic). , T This rule of exclusion has not always been adhered to in America, and sometimes distinction is made between using such material to ascertain the purpose H

194 SUPREME COURT REPORTS [2008] 4 S.C.R.

A of a statute and using it for ascertaining its meaning. It would seem that the rule is adopted in Canada and Australia-see Craies on Statute Law, 5th Edn. p. 122 (pp. 368-9)".

11. In the American jurisdiction, a more natural note has B sometimes been struck. Mr. Justice Frankfurter was of the view that- )' "If the purpose of construction is the ascertainment (

of meaning, nothing that is logically relevant should c be excluded, and yet, the Rule of Exclusion, which is generally followed in England, insists that, in interpreting statutes, the proceedings in the Legislatures, including speeches delivered when the statute was discussed and adopted, cannot be cited in courts." D

12. Crawford on Statutory Construction at page 388 notes that- 'The judicial opinion on this point is certainly not quite uniform and there are American decisions to the effect that the general history of a statute and the various steps leading up to an enactment including amendments or modifications of the original bill and reports of Legislative Committees can be looked at for ascertaining the intention of the legislature where it is in doubt; but they hold definitely that the legislative J..

history is inadmissible when there is no obscurity in the meaning of the statute." The Rule of Exclusion has been criticised by jurists as artificial. The trend of academic opinion and the practice in the G European system suggest that interpretation of a statute being an exercise in the ascertainment of meaning, everything which _., is logically relevant should be admissible. Recently, an eminent Indian jurist has reviewed the legal position and expressed his agreement with Julius Stone and Justice Frankfurter. Of course, H

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_. nobody suggests that such extrinsic materials should be A decisive but they must be admissible. Authorship and interpretation must mutually illumine and interact. There is authority for the proposition that resort may be had to these sources with great caution and only when incongruities and ambiguities are to be resolved. A.K. Gopalan v. State of Madras B (1950 SCR 88). There is a strong case for whittling down the Rule of Exclusion followed in the British courts and for less --( apologetic reference to legislative proceedings and like ~ materials to read the meaning of the words of a statute. Where it is plain, the language prevails, but where there is obscurity or c lack of harmony with other provisions and in other special circumstances, it may be legitimate to take external assistance such as the object of the provisions, the mischief sought tq be remedied, the social context, the words of the authors and other allied matters. The law of statutory construction is a strategic D branch of jurisprudence which must, it may be felt, respond to the great social changes but a conclusive pronouncement on the particular point arising here need not detain us because nothing decisive as between the alternative interpretations flows from a reliance on the Constituent Assembly proceedings or the broad purposes of the statutory scheme. E

13. One thing however needs to be noted here that mere short length of debate cannot and does not become a ground for invalidity of the decision and the reverse is also not true. • .). .

14Copy pinpoint14. Elaborate arguments have been advanced about the applicability of the foreign decisions, more particularly, the American Courts. It is to be noted that the American cases which have been highlighted by the petitioners relate essentially to strict classification, strict scrutiny and narrow tailoring. This issue is of considerable importance when so much debate is taking place about respect being shown by courts of a country to a '<;. decision of another country. The factual scenario and the basic issues involved in the cases sometimes throw light on the controversy. It has been rightly contended by Mr. Vahanvati and Mr. Gopal Subramanium that there is a conceptual difference H•

196 SUPREME COURT REPORTS [2008] 4 S. C.R.

A between the cases decided by the American Supreme Court and the cases at hand. In Saurabh Chaudri and Ors. v. Union of India and Ors. (2003 (11) SCC 146) it was held that the logic of strict classification and strict scrutiny does not have much relevance in the cases of the nature at hand. If one looks at the B different Statutes in India, Article 14 of the Constitution is . conceptually different from 14th Amendment to the American Constitution as was noted in State of West Bengal vs. Anwar Ali Sarkar (1952 SCR 284) and State of Bombay and Anr. v. .r , FN. Balsara (1952 SCR 682). In Anwar Ali's case (supra) at c pages 363 and 364 it was noted as follows: "I find it impossible to read these portions of the Constitution without regard to the background out of which they arose. I cannot blot out their history and omit from consideration the brooding spirit of the times. They are not just dull, lifeless words static and hide- bound as in some mummified manuscript, but, living flames intended to give life to a great nation and order its being, tongues of dynamic fire, potent to mould the future as well as guide the present. The Constitution must, in my judgment, be left elastic enough to meet from time to time the altering conditions of a changing world with its shifting emphasis and differing needs. I feel therefore that in each case judges must look straight into the heart of things and regard the facts of each case concretely much as a jury would do; and yet, not quite as a jury, for we are considering here a matter of law and not just one of fact; Do these "laws" "' which have been called in question offend a still greater law before which even they must bow?

99. Doing that, what is the history of these provisions? G They arose out of the fight for freedom in this land and are but the endeavour to compress into a few pregnant phrases some of the main attributes of a sovereign .r democratic republic as seen through Indian eyes. There was present to the collective mind of the Constituent H Assembly, reflecting the mood of the peoples of India, the

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 197 [DR. ARIJIT PASAYAT, J.]

memory of grim trials by hastily constituted tribunals with novel forms of procedure set forth in Ordinances promulgated in haste because of what was then felt to be the urgent necessities of the moment. Without casting the slightest reflection of the judges and the Courts so constituted, the fact remains that when these tribunals were declared invalid and the same persons were retfred in the ordinary Courts, many were acquitted, many who had been sentenced to death were absolved. That was not the fault of the judges but of the imperfect tools with which they were compelled to work. The whole proceedings were c repugnant to the peoples of this land, and to my mind, article 14 is but a reflex of this mood . .100. What I am concerned to see is not whether there is absolute equality in any academical sense of the term but whether the collective conscience of a sovereign democratic republic can regard the impugned law, f. contrasted with the ordinary law of the land, as the sort of substantially equal treatment which men of resolute minds and unbiased views can regard as right and proper in a democracy of the kind we have proclaimed ourselves to be. Such views must take into consideration the practical necessities of government, the right to alter the laws and many other facts, but in the forefront must remain the freedom of the individual from unjust and unequal • treatment, unequal in the broad sense in which a F ,J... democracy would view it. In my opinion, 'law' as used in Article 14 does not mean the "legal precepts which are actually · recognised and applied in tribunals of a given time and place" but "the more general body of doctrine and tradition from which those precepts are chiefly drawn, G and by which we criticise, them."

....,. 15. It needs no emphasis that the formal equality concept came to be recognized in U.S.A. after about 10 years of its inception. In the first phase of the U.S.A. Constitutional Law there was only affirmative action but in the Indian Constitution right H

198 SUPREME COURT REPORTS [2008] 4 S.C.R. - A from the beginning affirmative action has been provided, for ~ example, provisions made for Scheduled Castes and Schedules Tribes. A distinction has been noted in para 640 of Indra Sawhney No.1. Articles 38(1) and 38(2) read with Article 46 of the Constitution make the position clear that the State is charged B with the duty to secure interests of the weaker sections of the people and minimize the inequalities in income. The Constitution from its inception contained Article 17 which abolishes untouchability. r- •

16. In this context the following paras need to be noted. c

17. In Minerva Mills Ltd. and Ors. v. Union of India and Ors. (1980) 3 SCC 625) in para 63 it was held as follows: "63. The learned Attorney General argues that the State is under an obligation to take steps for promoting the welfare of the people by bringing about a social order in which social, economic and political justice shall inform all the ~ institutions of the national life. He says that the deprivation of some of the fundamental rights for the purpose of achieving this goal cannot possibly amount to a destruction of the basic structure of the Constitution. We are unable to accept this contention. The principles enunciated in · Part IV are not the proclaimed monopoly of democracies alone. They are common to all polities, democratic or authoritarian. Every State is goal-oriented and claims to strive for securing the welfare of its people. The distinction between the different forms of Government consists in .... that a real democracy will endeavour to achieve its objectives through the discipline of fundamental freedoms like those conferred by Articles14 and 19. Those are the most elementary freedoms without which a free democracy is impossible and which must therefore be preserved at all costs. Besides, as observed by Brandies, J., the need to protect liberty is the greatest when Government's ~

purposes are beneficent. If the discipline of Article 14 is withdrawn and if immunity from the operation of that article H

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 199 [DR. ARIJIT PASAYAT, J.]

is conferred, not only on laws passed by the Parliament A but on laws passed by the State Legislatures also, the political pressures exercised by numerically large groups can tear the country asunder by leaving it to the legislature to pick and choose favoured areas and favourite classes for preferential treatment." B

18. In His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kera/a and Anr. (1973 (4) SCC 225) it was held as under: "531 . According to Mr. Palkhivala, the test of the true width c of a power is not how probable it is that it may be exercised but what can possibly be done under it; that the abuse or misuse of power is entirely irrelevant; that the question of the extent of the power cannot be mixed up with the question of its exercise and that when the real question is as to the width of the power, expectation that it will never be used is as wholly irrelevant as an imminent danger of its use. The court does not decide what is the best and what is the worst. It merely decides what can possibly be done under a power if the words conferring it are so construed as to have an unbounded and limitless width, as claimed on behalf of the respondents.

532. It is difficult to accede to the submission on behalf of the respondents that while considering the consequences with reference to the width of an amending power F ·' contained in a Constitution any question of its abuse is ""' involved. It is not for the courts to enter into the wisdom or policy of a particular provision in a Constitution or a statute. That is for the Constitution makers or for the parliament or the legislature. But that the real consequences can be G taken into account while judging the width of the power is well settled. The Court cannot ignore the consequences '1';- to which a particular construction can lead while ascertaining the limits of the provisions granting the power. According to the learned Attorney General, the declaration H

200 SUPREME COURT REPORTS (2008) 4 S.C.R.

A in the preamble to our Constitution about the resolve of the people of India to constitute it into a Sovereign, Democratic Republic is only a declaration of an intention which was made in 194 7 and it is open to the amending body now under Article 368 to change the Sovereign B Democratics Republic into some other kind of polity. This by itself shows the consequence of accepting the construction sought to be put on the material words in that article for finding out the ambit and width of the power .. ' conferred by it." c 19. In Sajan Singh v. Maharashtra Sugar Mills Ltd. (AIR 1965 SC 845) it was held as follows:

"6. It is obvious that the fundamental rights enshrined in Part Ill are not included in the proviso, and so, if Parliament intends to amend any of the provisions contained in Articles D 12 to 35 which are included in Part Ill, it is not necessary to take recourse to the proviso and to satisfy the additional requirements prescribed by it. Thus far, there is no difficulty. But in considering the scope of Art. 368, it is necessary to remember that Art. 226, which is included in Chapter V of E Part VI of the Constitution, is one of the constitutional provisions which fall under clause (b) of the proviso; and so, it is clear that if Parliament intends to amend the provisions of Art. 226, the bill proposing to make such an amendment must satisfy the requirements of the proviso. F The question which calls for our decision is : what would ;.. be the requirement about making an amendment in a constitutional provision contained in Part Ill, if as a result of the said amendment, the powers conferred on the High Courts under Art. 226 are likely to be affected? The G petitioners contend that since it appears that the powers prescribed by Art. 226 are likely to be affected by the intended amendment of the provisions contained in Part :r Ill, the bill introduced for the purpose of making such an amendment. must attract the proviso, and as the impugned H Act has admittedly not gone through the procedure

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 201 [DR. ARIJIT PASAYAT, J.]

prescribed by the proviso, it is invalid; and that raises the A question about the construction of the provisions contained in Art. 368 and the relation between the substantive part of Art. 368 with its proviso.