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

8. On the other hand, if the substantive part of Art. 368 is very liberally and generously construed and it is held that B · even substantial modification of the fundamental rights which may make a very serious and substantial inroad on the powers of the High Courts under Art. 226 can be made without invoking the proviso, it may deprive clause (b) of the proviso of its substance. In other words, in construing c both the parts of Art. 368, the rule of harmonious construction requires that if the direct effect of the amendment of fundamental rights is to make a substantial inroad on the High Courts' powers under Art. 226, it would become necessary to consider whether the prov.iso would cover such a case or not. If the effect of the amendment ).. , made in the fundamental rights on the powers of the High Courts prescribed by Art. 226, is indirect, incidental, or is otherwise of an insignificant order, it may be that the proviso will not apply. The proviso would apply where the amendment in question seeks to make any change, inter alia, in Art. 226, and the question in such a case would be : does the amendment seek to make a change in the provisions of Art. 226? The answer to this question would depend upon the effect of the amendment made in the fundamental rights. ).

9. In dealing with constitutional questions of this character, courts generally adopt a test which is described as the pith and substance test. In Attorney-General for Ontario v. Reciprocal Insurers ([1924] AC. 328), the Privy Council G was called upon to consider the validity of the Reciprocal Insurance Act, 1922 (12 & 13 Geo. 5, Ont., c. 62) ands. ~,, 50Bc which had been added to the Criminal Code of Canada by ss. 7 & 8 Geo. 5, c. 29 Dom. Mr. Justice Duff, who spoke for the Privy Council, observed that in an enquiry H

202 SUPREME COURT REPORTS [2008] 4 S.C.R. .._

A like the one with which the Privy Council was concerned in that case, "it has been formally laid down in judgments of this Board, that in such an inquiry the Courts must ascertain the 'true nature and character' of the enactment : Citizens' Insurance Co. of Canada v. Parsons ([1881] 7 B AC 96); its 'pith and substance' : Union Colliery Co. of British Columbia Ltd. v. Bryden ([1899] A.C. 580); and it is the result of this investigation, not the form alone, which the stp• ite may have assumed under the hand of the [ drc> .,intsman, that will determine within which of the <

c categories of subject matters mentioned in ss. 91 and 92 the legislation falls; and for this purpose the legislation must be 'scrutinised in its entirety' : "Great West Saddlery Co. v. The King" ([1921] 2A.C. 91, 117). ltis not necessary to multiply authorities in support of the proposition that in considering the constitutional validity of the impugned Act, D it would be relevant to inquire what the pith and substance of the impugned Act is. This legal position can be taken to be established by the decisions of this Court which have consistently adopted the view expressed by Justice Duff, to which we have just referred. E

14. Thus, it would be seen that the genesis of the amendments made by Parliament in 1951 by adding Articles 31A and 31 B to the Constitution, clearly is to assist the State Legislatures in this country to give effect to the economic policy in which the party in power passionately believes to bring about much needed agrarian reform. It .... is with the same object that the second amendment was made by Parliament in 1955, and as we have just indicated, the object underlying the amendment made by the impugned Act is also the same. Parliament desires that agrarian reform in a broad and comprehensive sense must be introduced in the interests of a very large section of Indian citizens who live in villages and whose financial ~" prospects are integrally connected with the pursuit of progressive agrarian policy. Thus, if the pith and substance H

' , ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 203 [DR. ARIJIT PASAYAT, J.]

test is applied to the amendment made by the impugned A Act, it would be clear that Parliament is seeking to amend fundamental rights solely with the object of removing any possible obstacle in the fulfilment of the socio-economic policy in which the party in power believes. If that be so, the effect of the amendment on the area over which the ·B High Courts' powers prescribed by Art. 226 operate, is incidental and in the present case can be described as of an insignificant order. The impugned Act does not purport .., i to change the provisions of Art. 226 and it cannot be said even to have that effect directly or in any appreciable c measure. That is why we think that the argument that the impugned Act falls under the proviso, cannot be sustained. It is an Act the object of which is to amend the relevant Articles in Part Ill which conferfundamental rights on citizens and as such it falls under the substantive part of Art. 368 0 and does not attract the provisions of clause (b) of the proviso. If the effect of the amendment made in the fundamental rights on Art. 226 is direct and not inciclental and is of a very significant order, different considerations may perhaps arise. But in the present case, there is no occasion to entertain or weigh the said considerations. E Therefore the main contention raised by the petitioners and the interveners against the validity of the impugned Act must be rejected."

20. In Kihoto Ho/Johan v. Zachil/hu and Ors. (1992 Supp. F • ). (2) sec 651) it wa~.pbserved as follows: "61. The propositions that fell for consideration in Sankari Prasad Singh's and Sajjan Singh'scases are indeed different. There the jurisdiction and power of the Courts under Articles 136 and 226 were not sought to be taken G away nor was there any change brought about in those provisions either "in terms or in effect", since the very rights which could be adjudicated under and enforced by the Courtswere themselves taken away by the Constitution. The result was that there was no area for the jurisdiction H

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

•, A of the Courts to operate upon. Matters are entirely different in the context of paragraph 7. Indeed the aforesaid cases, }-..

by necessary implication support the point urged for the petitioners. The changes in Chapter IV of Part V and Chapter V of Part VI envisaged by the proviso need not B be direct.The change could be either "in terms of or in effecf'. It is not necessary to change the language of Articles 136 and 226 of the Constitution to attract the proviso. If in effect these Articles are rendered ineffective and made inapplicable where these articles could otherwise have ,_ c been invoked or would.but for Paragraph 7, have operated there is ·in effect' a change in those provisions attracting the proviso. Indeed this position was recognised in Salian Singh'scase (supra) where it was observed: "If the effect of the amendment made in the D fundamental rights on Article 226 is direct and not incidental and is of a very significant order, different considerations may perhaps arise." ...

62. In the present cases, though the amendment does not bring in any change directly in the language of Article 136, E 226 and 227 of the Constitution, however, in effect paragraph 7 curtails the operation of those Articles respecting matters falling under the Tenth Schedule. There is a change in the effect in Article 136, 226 and 227 within the meaning of clause (b) of the proviso to Article 368(2). F Paragraph 7, therefore, attracts the proviso and ratification was necessary. Accordingly, on Point B, we hold: :.. 'That having regard to the background and evolution of the principles underlying the Constitution (52"d Amendment) Act, 1985, in so far as it seeks to G introduce the Tenth Schedule in the Constitution of India, the provisions of Paragraph 7 of the Tenth Schedule of the constitution in terms and in effect bring about a change in the operation and effect to' .r Articles 136, 226 and 227 of the Constitution of India H

.' ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. [DR. ARIJIT PASAYAT, J.] 205

and, therefore, the amendment would require to be A ratified in accordance with the proviso to sub-Article (2) of Article 368 of the Constitution of India."

21. In Shri Sarwan Singh and Anr. v. Shri Kasturi Lal (1977 (1) sec 750) it was observed as follows: B "20. Speaking generally, the object and purpose of a legislation assume greater relevance if the language of the law is obscure and ambiguous. But, it must be stated ~ that we have referred to the object of the provisions newly introduced into the Delhi Rent Act in 1975 not for seeking c light from it for resolving in ambiguity, for there is none, but for a different purpose altogether. When two or more laws operate in the same field and each contains a non obstante clause stating that its provisions will override those of any other law, stimulating and incisive problems of D interpretation arise. Since statutory interpretation has no conventional protocol, cases of such conflict have to be )., decided in reference to the object and purpose of the laws under consideration. A piquant situation, like the one before us, arose in Shri Ram Narain v. Simla Banking & Industrial Co. Ltd. competing statutes being the Banking E Companies Act, 1949 as amended by Act 52 of 1953, and the Displaced Persons (Debts Adjustment) Act, 1951. Section 45A of the Banking Companies Act, which was introduced by the amending Act of 1953, and Section 3 of . ,J. the Displaced Persons Act 1951 contained such a non obstante clause, providing that certain provisions would F

have effect "notwithstanding anything inconsistent therewith contained in any other law for the time being in force". This Court resolved the conflict by considering the object and purpose of the two laws and giving precedence to the G "' Banking Companies Act by observing : "It is, therefore, desirable to determine the overriding effect of one or the "¥ other of the relevant provisions in these two Acts, in a given case, on much broader considerations of the purpose and policy underlying the two Acts and the clear H

t 206 SUPREME COURT REPORTS [2008] 4 S.C.R. ' A intendment conveyed by the language of the relevant provisions therein." (p. 615) As indicated by us, the special and specific purpose which motivated the enactment of Section 14Aand Chapter lllAofthe Delhi RentActwould be wholly frustrated if the provisions of the Slum Clearance B Act requiring permission of the competent authority were to prevail over them. Therefore, the newly introduced provisions of the Delhi Rent Act must hold the field and be given full effect despite anything to the contrary contained in the Slum Clearance Act. . ~

c 21. For resolving such inter se conflicts, one other test may also be applied though the persuasive force of such a test is but one of the factors which combine to give a, fair meaning to the language of the law. That test is that the later enactment must prevail over the earlier one. D Section 14A and Chapter lllA having been enacted with effect from December 1, 1975 are later enactments in reference to Section 19 of the Slum Clearance Act which, in Its present form, was placed on the statute book with effect from February 28, 1965 and in reference to Section E 39 of the same Act, which came into force in 1956 when the Act itself was passed. The legislature gave overriding effect to Section 14A and Chapter lllA with the knowledge that Sections 19 and 39 of the Slum Clearance Act contained non obstante clauses of equal efficacy. Therefore F the later enactment must prevail over the former. The same test was mentioned with approval by this Court in Shri :... Ram Narain's case at page 615.

23. The argument of implied repeal has also no substance in it because our reason for according priority to the provisions of the Delhi Rent Act is not that the Slum Clearance Act stands impliedly repealed protanto. Bearing in mind the language of the two laws, their object and purpose, and the fact that one of them is later in point of time and was enacted with the knowledge of the non obstante clauses in the earlier law, we have come to the

,. ' ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 207 [DR. ARIJIT PASAYAT, J.] conclusion that the provisions of Section 14A and Chapter A lllA of the Rent Control Act must prevail over those contained in Sections 19 and 39 of the Slum Clearance Act.

22. In J.K. Cotton Spinning and weaving co. Ltd. v. State ofU.P. andAnr. (1961 (3) SCR 185) it was observed as under: B "There will be complete harmony however if we hold instead that clause 5(a) will apply in all other cases of proposed dismissal or discharge except where an inquiry is pending within the meaning of clause 23. We reach the same result· c by applying another well known rule of construction that general provisions yield to special provisions. The learned Attorney-General seemed to suggest that while this rule of construction is applicable to resolve the conflict between the general provision in one Act and the special provision in another Act, the rule cannot apply in resolving a conflict between general and special provisions in the same .>.. legislative instrument. This suggestion does not find support in either principle or authority. The rule that general provisions should yield to specific provisions is not an arbitrary principle made by lawyers and judges but springs from the common understanding of men and women that when the same person gives two directions one covering a large number of matters in general and another to only some of them his intention is that these latter directions . should prevail as regards these while as regards all the F ,.i rest the earlier direction should have effect. In Pretty v. Solly [(1859-53 ER 1032) (quoted in Craies on Statute Law at p. 205, 5th Edition) Romilly, M. R. mentioned the rule thus:- G ''The rule is, that whenever there is a particular eAactment and a general enactment in the same statute and the latter, taken in its most comprehensive 'j. sense, would overrule the former, the particular enactment must be operative, and the general H

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

A enactment must be taken to affect only the other parts of the statute to which it may properly apply". The rule has been applied as between different provisions of the same statute in numerous cases some of which only need be mentioned : De Winton v. Brecon B [(1858) 28 L.J. Ch. 598], Churchill v. Crease [(1828) 5 Bing. 177), United States v. Chase [(1889) 135 U.S. 255] and Carroll v. Greenwich Ins. Co. [(1905) 199 U.S. 401)."

23. In R.M.D. Chamarbaugwalla v. UOI (1957 SCR 930) C it was held as under: "The question whether a statute which is void in part is to be treated as void in toto, or whether it is capable of enforcement as to that part which is valid is one which can arise only with reference to laws enacted by bodies which D do not possess unlimited powers of legislation, as, for example, the legislatures in a Federal Union. The limitation on their powers may be of two kinds: It may be with reference to the subject-matter on which they could legislate, as, for example, the topics enumerated in the E Lists in the Seventh Schedule in the Indian Constitution, • ss. 91 and 92 of the Canadian Constitution, ands. 51 of the Australian Constitution; or it may be with reference to the character of the legislation which they could enact in respect of subjects assigned to them, as for example, in relation to the fundamental rights guaranteed in Part Ill of the Constitution and similar constitutionally protected rights in the American and other Constitutions. When a legislature whose authority is subject to limitations aforesaid enacts a law which is wholly in excess of its powers, it is entirely void and must be completely ignored. But where the legislation falls in part within the area allotted to it and in part outside it, it is undoubtedly void as to the latter; but does it on that account become necessarily void in its entirety? The answer to this question must depend on whether what is v·alid could be separated from what is

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 209 [DR. ARIJIT PASAYAT, J.]

invalid, and that is a que&tion which has to be decided by the court on a consideration of the provisions of the Act. This is a principle well established in American Jurisprudence, Vide Cooley's Constitutional Limitations, Vol. I, Chap. VII, Crawford on Statutory Construction, Chap. 16 and Sutherland on Statutory Construction, 3rd Edn, B Vol. 2, Chap. 24. It has also been applied by the Privy Council in deciding on the validity of laws enacted by the legislatures of Australia and Canada, Vide Attorney- General for the Commonwealth of Australia v. Colonial Sugar Refining Company Limited [[1914] A.C. 237] and c Attorney-General for Alberta v. Attorney-General for Canada [L.R. [1947] A.C. 503]. It was approved by the Federal Court in In re Hindu Women's Rights to Property Act [[1941] F.C.R. 12] and adopted by this Court in The State of Bombay and anotherv. F. N. Balsara [[1951] S.C.R. D 682] and The State of Bombay v. The United Motors (India) Ltd., and others [[1953] S.C.R. 1069]. These decisions are relied on by Mr. Seervai as being decisive in his favour. Mr. Palkhiwala disputes this position, and maintains that on the decision of the Privy Council in Punjab Province v. Daulat Singh and others [[1946] F.C.R. 1] and of the E decisions of this Court in Romesh Thappar v. State of Madras [[1950] S.C.R. 594] and Chintaman Rao v. State of Madhya Pradesh [[1950] S.C.R. 759], the question must be answered in this favour. We must now examine the . l precise scope of these decisions . F

The resulting position may thus be stated : When a statute is in part void, it will be enforced as regards the rest, if that is severable from what is invalid. It is immaterial for the purpose of this rule whether the invalidity of the statute G arises by reason of its subject-matter being outside the competence of the legislature or by reason of its provisions contravening constitutional prohibitions. That being the position in law, it is now necessary to consider whether the impugned provisions are severable H

210 SUPREME GOURT REPORTS [2008) 4 S.C.R.

A In their application to competitions of a gambling character, t'- ~

assuming of course that the definition of 'prize competition' In s. 2(d) Is wide enough to Include also competitions Involving skill to a substantial degree. It will be useful for the determination of this question to refer to certain rules B of construction laid down by the American Courts, where the question of severablllty has been the subject of consideration In numerous authorities. They may be summarised as follows : r

1. In determining whether the valid parts of a statute are c separable from the Invalid parts thereof, It Is the Intention of the legislature that is the determining factor. The test to be applied Is whether the legislature would have enacted the valid part If it had known that the rest of the statute was invalid. Vlde Corpus Juris Secundum, Vol. 82, p. 156; D Sutherland on Statutory Construction, Vol. 2, pp, 176-177.

2. If the valid and Invalid provisions are so inextricably mixed up that they cannot be separated from one another, then the Invalidity of a portion must result In the Invalidity of the Act In Its entirety. On the other hand, If they are so E distinct and separate that after striking out what Is Invalid, what remains Is In Itself a complete code Independent of the rest, then It wlll be upheld notwithstanding that the rest has become unenforceable. Vlde Cooley's Constitutional Limitations, Vol. 1 at pp. 360-361: Crawford on Statutory· F Construction, pp. 217·216. ""'

3. Even when the provisions which are valid are distinct and seporate from those which are invalid, If they all form part of a single scheme which is intended to be operntive as a whole, then also the Invalidity of a part will result in the failure of the whole. Vide Crawford on Statutory Construction, pp. 218·219. ~

4. Likewi~e. when the valid and invalid r Jhs of a statute are independent and do not form part gf a oeheme but what is left after omitting the invalid pgrtion ia so thin and

ASHOKA KUMAR THAKUR v. UNION OF INOIA & ORS. 211 !DR. ARIJIT PASAYAT, J.J truncated as to be In substance different from what It was when It emerged out of the legislature, then also It will be rejected In lte entirety.

5. The separability of the valid and Invalid provisions.of a statute does not depend on whether the law is enacted In the same section or different sections; (Vide Cooley's B Constitutional Limitations, Vol. 1, pp. 361 ·362); it is not the form, but the substance of the matter that Is material, and that has to be ascertained on an examination of the Act as a whole and of the setting of the relevant provisions therein. C

6. If after the Invalid portion Is expunged from the statute what remains cannot be enforced. without making alterations and modifications therein, then the whole of It must be struck down as void, as otherwise It will amount to judicial legislation. Vlde Sutherland on Statutary D Construction, Vol. 2, p, 194,

7. In determining the legislative Intent on the question of 11eparablllty, It will be legitimate to take Into acgount the history gf the legislation, Its object, the titlt:! and the i; preamble to It. Vlde Sutherland on 6ti:1tutory Construction, Vol. 2, pp, 177,flfil," 24, In AllM$ Studf3nf$ Unionv, A/IMS (2002 (1) SOC 428) In para ~P It was observed Elli> fi:illows: · ) F "36, ihe pringiple pf institutii;inal l:lontinulty whllt:! seeking i:1dmission tg higher levelis gf stwdy as prnpi;iynfled by th@ learned @guni:iel for th@ 1:1ppellant§ the.Ygh 1;1r1;1ueg at l!!mf:Jth dges not have mYch rogm eivail1;1t;ile fgr innQvi:JtiV§ i1.Jflicial ieal t\:.l Play, ft::!r the gn;iund !i!lrflady §t!ilnd§ !i!lm@st PG@Yi:>ie!'l (3 by Iii §@t g( pregedents, m1:ire §§when we 1=1re d@E!liflg with profe§siim~I or teghni!3-!i!I @oYr§e§ of §tudy, It wgyig §uffi@e tg hi:Jve a brief resume th!:!regf ngtigin~ the detetil§ wh!:!rever nece§§ary", It wa§ again highlight!lld in p!i!rE! 44 Iii§ fgllow§: H

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

A "44. When protective discrimination for promotion of equalisation is pleaded, the burden is one the party who seeks to justify the ex facie deviation from equality. The basic rule is equality of opportunity for every person in the country, which is a constitutional guarantee. A candidate who gets more marks than another is entitled to preference for admission. Merit must be the test when choosing the best, according to this rule of equal chance for equal marks. This proposition has greater importance when we reach the higher levels and education like post-graduate courses. c Reservation, as an exception, may be justified subject to discharging the burden of proving justification in favour of the class which must be educationally handicapped-the reservation geared up to getting over the handicap. The rationale of reservation in the case of medical students must be removal of regional or class inadequacy or like D disadvantage. Even there the quantum of reservation should not be excessive or societally injurious. The higher the level of the speciality the lesser the role of reservation."

E 25. A bare reading of the provision goes to show that the burden is on the person who justifies deviation from equality.

26. Even then, this doctrine was upheld by the Supreme Court of U.S.A. in Plessy v. Ferguson (163 U.S. 537(1896). This case involved a challenge to a Louisiana statute that F provided for equal but separate accommodations for black and .... white passengers in trains. The Court rejected the challenge. Justice Brown famously observed: If one race be inferior to the other socially, the constitution of the United States cannot put them upon the same plane. G (163 U.S. at 552)

27. He held that racial segregation was a reasonable .r exercise of State police power for the promotion of the public good and upheld the law. H

""' ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 213 [DR. ARIJIT PASAYAT, J.] • -t

28. Thus, even in this second phase, affirmative action was never truly initiated - the country was still struggling to establish even a formally equal society.

29. At the same time, another very important development in its constitutional law was taking place, which would later have a serious impact on affirmative action programmes. This was the birth of the doctrine of strict scrutiny.

... -1 30. 'Strict scrutiny' is one of the three standards for judicial review of legislative and administrative action developed in the United States, the other being "rational basis" and "intermediate c scrutiny".

31. The origin of this standard can be traced to the decision in United States v Carotene Products (304 U.S. 144 (1938). The question before the Court was whether the Filled Milk Act, 1923 which prohibited the shipment in interstate commerce of skimmed milk compounded with any fat or oil other than milk ,>- fat, so as to resemble milk or cream, transcended the power of Congress to regulate inter state commerce or infringed the Fifth Amendment. Justice Harlan Stone, writing the opinion for the Court, upheld the law, holding that the existence of facts supporting the legislative judgment was to be presumed, for regulatory legislation affecting ordinary commercial transactions was not to be pronounced unconstitutional unless in the light of the facts made known or generally assumed it was of such a character as tci preclude the assumption that it rested upon some F ) rational basis within the knowledge and experience of the legislators. However, he added what has been described as "the most celebrated footnote in constitutional law". ·"There may be narrower scope for operation of the presumption of constitutionality when legislation appears G on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments, -r which are deemed equally specific when held to be embraced within the Fourteenth." H

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

A 32. What the Court was saying was that economic ~-

leglslatlon would be judged by a standard of "rational basis" - so long as the law was a rational way of furthering a legitimate governmental purpose, It was valid. However, where the leglslatlon "on Its face" appeared to be violating any of the B fundamental rights, a more exacting standard would be applied.

33. The precise term "strict scrutiny" was used by the Court for the first time In Sklnnerv. Oklahoma (316 U.S. 535 (1942). t ... The Oklahoma Habitual Crlmlnal Sterlllsation Act provided for vasectomy to be performed on any person convicted two or more c times for crimes amounting to "felonies Involving moral turpitude'', Justice Douglas, giving the opinion of the Court, described the statute as vlolatlng the right to have offspring - "a right which Is basic to the perpetuation of a race". The question before the Court was whether this statute violated the 141" D Amendment. Holding that It did, Justice Douglas observed: "Strict scrutiny of the classlflcatlon which a State makes In .... a sterilization law Is essential, lest unwittingly or otherwise Invidious discriminations are made against groups or types of Individuals In violation of the constitutional guarantee of just and equal laws."

34. In India there has to be collective commitment for upliftment of those who needed It. In that sense, the question again comes back to the basic issue as to whether the action taken by the Government can be upheld after making judicial scrutiny. Much a111Si&tance Ii not available to the petitioners from " the American declaions.

36. It i& to be noted that the doctrine of separation as i8 prevalent in the American Society ia not of much comsequenc:e G in the Indian scenario. It need& tc:> be clarified that the expres§ion '§triet scrutiny' ha11 also been used by the lndi~rn Courts in Narendra Kumar and Ors. v. Union of India and Ors. (1960 (2) SCR 376) but it appears to have be.en used in different context. Wh111t really i:tppe111rs to be the intention for the. use of the 19 expre.Hion is ''careful and deeper scrutiny" and not in the ae.nae

ASHOKA KUMAR THAKUR v. UNION OF INOIA & ORS. 215 [DR. ARIJIT PASAYAT, J.J -1 of strict scrutiny of the provisions as Is prevalent In the American A . jurisprudence. It Is used In different sense. The application appears to be In technical sense In the American Courts, for example, Regents of University of Cal/fornla v. Allan Bakke (438 U.S. 266).

36. Some of the judgments of American Courts throwing light on the controversy need to be noted: .!> i 37. In Allan Bakka's case (supra) It was held as follows: "Hence, the purpose of helping certain groups whom the faculty of the Davis Medical School perceived as victims of "societal discrimination" does not justify a classification that Imposes disadvantages upon persons llke respondent, who bear no responslblllty for whatever harm the beneficiaries of the special admissions'', D "The fatal flaw In petitioner's preferential program Is Its , )- - . disregard of Individual rights as guaranteed by the Fourteenth Amendment. Shelley v. Kri:iemer, 334 US, at 22, 92 Led 1161, 66 S Ct 636, 3ALRd 441. Such rights are not absolute, But when a State'a.dlstribution of benefits E or imposition of burdens hinges on ancestry or the color. of a person's skin or ancestry, that Individual Is @ntltled to a demi;instrntlon thi;it the challenged classlflcatlon Is nec~:u11rnry to promote a sutn~ti;intial state interest. Petitioner has fll!iled tP earry this burden." _) . r 36, In Gmtter v; So/linger (539 U.S. 306) It wll!a held as f1;;1ll!~ws:

[21. 22-a) "We !\'lckn()wledi:Je that "there are serious problem§ i;if jYstiee egnneeted with the idea of pr!!!lferenee ltr11elf," Bakke, 4~~ \..1$, lilt ~ea. 57 L md 2d 760, fl!P s et Q 27~~ (opinion of Powell, J), Narrow tail@ring, therefgre, requires th!i!t a rac1M~onsci@Ys @dmissions program n9t uni:luly h11rm members gf @ny rac:iit11l 9rnup, Even remedi@I rt11ce"b11sed 91;;1vernmental @l'ition generli!llY !!remains 1rnbject to c~mtirrning oversight to @ssure that it will wgrk H

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

[22b, 23] We are satisfied that the Law School's r• admissions program does not. Because the Law School c considers "all pertinent elements of diversity," it can (and does) select non-minority applicants who have greater potential to enhance student body diversity over underrepresented minority applicants. See Bakke, supra, at 317, 57 L Ed 2d 750, 98 S Ct 2733 (opinion of Powell, D J). As Justice Powell recognized in Bakke, so long as a race-conscious admissions program uses race as a "plus" factor in the context of individualized consideration, a rejected applicant "will not have been foreclosed from all consideration for that seat simply because he was not the E right color or had the wrong surname ...... His qualifications would have been weighed fairly and competitively, and he would have no basis to complain of unequal treatment under the Fourteenth Amendment." 438 US, at 318, 57 L Ed 2d 750, 98 S Ct 2733. F [13f, 22C] We agree that, in the context of its individualized ... inquiry into the possible diversity contributions of all applicants, the Law School's race-conscious admissions program does not unduly harm nonminority applicants. [24, 25a, 26] We are mindful, however, that "[a] core purpose G of the Fourteenth Amendment was to do away with all governmentally imposed discrimination based on race" Palmo~e v Sidoti, (539 US 342] 466 US 429, 432, 80 L Ed 2d, 421, 104 s Ct 1879 (1984). Accordingly, race- • H conscious admissions policies must be limited in time.

a - ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. [DR. ARIJIT PASAYAT, J.) 217

_, This requirement reflects that racial classifications, however, compelling their goals are potentially so dangerous that they may be employed no more broadly than the interest demands. Enshrining a permanent justification for racial preferences would offend this fundamental equal protection principle. We see no reason to exempt race-conscious admissions programs from the requirement that all governmental use of race must have ·1 a logical end point. The Law School, too, concedes that .,,- -i' ' all "race-conscious programs must have reasonable durational limits." Brief for Respondent Bollinger et al. 32. c [25b] In the context of higher education, the durational requirement can be met by sunset provisions in race- conscious admissions policies and periodic reviews to determine whether racial preferences are still necessary to achieve student body diversity. Universities in California, D Florida, and Washington State, where racial preferences in admissions are prohibited by state law, are currently ,)-, engaged in experimenting with a wide variety of alternative approaches. Universities in other States can and should draw on the most promising aspects of these race-neutral alternatives as they develop. Cf. United States v. Lopez, E 514 US 549, 581, 131 L Ed 2d 626, 115 S Ct 1624 (1995) (Kennedy, J., concurring) ("[T] he States may perform their role as laboratories for experimentation to devise various solutions where the best solution is far from clear"). The requirement that all race-conscious admissions programs F ~ '- have a termination point "assure[s] all citizens that the deviation from the norm of equal treatment of all racial and ethnic groups is a temporary matter, a measure taken in the service of the goal of equality itself." Richmond v. J.A. Croson Co., 488 US, at 510, 102 L Ed 2d 854, 109 S Ct G 706 (plurality opinion); see also Nathanson & Bartnik. The Constitutionality of Preferential Treatment for Minority '1-' Applicants to Professional Schools, [539 US 343] 58 Chicago Bar Rec. 282, 293 (May-June 1977) ("It would be a sad day indeed, were America to become a quota- H

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A ridden society, with each identifiable minority assigned ,_ proportional representation in every desirable walk of life. But that is not the rationale for programs of preferential treatment; the acid test of their justification will be their efficacy in eliminating the need for any racial or ethnic B preferences at all."

39. The provisions of the American Constitution in United States relating to formal equality concept do not appear to have operated from the beginning of the American Constitution. r ' c 40. Although even under the 1919 and 1935 Government of India Acts the rights of certain class of people like Scheduled Castes, Scheduled Tribes and the deprived classes have been recognized, in America, the rights have been conferred on individuals and so much on the groups. The freedoms contemplated by the Indian Constitution originally related to D seven categories which presently stand at six after the property rights were deleted. The stand of Mr. Vahanvati and Mr. Gopal Subramanium is that the logic of strict scrutiny, compelling the "' Government and narrow tailoring do not have relevance so far as the present case is concerned. E

41. In Thomas's case (supra) it was clearly noticed by this Court that American conditions do not apply adequately for the Indian scenario. Unlike U.S.A., the targeted beneficiaries are alien to our Constitution. In India cognizance has been taken constitutionally. The victims of untouchability, identifying social and economic backwardness have been accepted as "- permissible measures. However, the question how long they can be continued is another aspect which shall be dealt with separately. Rationality in that sense is a measure for the special provisions. But the question that still needs to be addressed is whether these groups are really identifiable. While formulating the policy all factors need not be specifically expressed but there must be some criteria to identify social and educational { backwardness.

H 42. In A.K. Roy v. Union of India (1982 (1) SCC 271) it

a a ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 219 [DR. ARIJIT PASAYAT, J.]

was noted as follows: A _, "8. We are not, as we cannot be, unmindful of the danger to people's liberties which comes in any community from what is called the tyranny of the majority. Uncontrolled power in the executive is a great enemy of freedom and therefore, eternal vigilance is necessary in the realm of liberty. But B we cannot transplant, in the Indian context and conditions, principles which took birth in other soils, without a careful examination of their relevance to the interpretation of our - . -j - Constitution. No two Constitutions are alike, for it is not mere words that make a Constitution. It is the history of a c people which lends colour and meaning to its Constitution. We must therefore turn inevitably to the historical origin of the ordinance making power conferred by 9ur Constitution and consider the scope of that power in the light of the restraints by which that power is hedged. Neither in D England nor in the United States of America does the .>- executive enjoy anything like the power to issue ordinances . In India, that power has a historical origin and the executive, at all times, has resorted to it freely as and when it considered it necessary to do so. One of the larger States E in India has manifested its addiction to that power by making an overgenerous use of it- so generous indeed, that ordinances which lapsed by efflux of time were renewed successively by a chain of kindred creatures, one after another. And, the ordinances embrace everything under the sun, from Prince to pauper and crimes to ) contracts. The Union Government too, so we are informed passed about 200 Ordinances between 1960 and 1980, out of which 19 were passed in 1980".

43. One of the grey areas focused by learned counsel for the petitioners and the respondents is the ever perplexing question "how long". The respondents say that so long as the ·~ problems of backwardness exist they can be continued. The petitioners have highlighted that notwithstanding the concerns shown in Indra Sawhney No. 1 and in a large number of cases H

220 SUPREME COURT REPORTS (2008] 4 S.C.R. ·

A that the reservations are not meant to be a permanent feature there is a case for concern. Admittedly, there is no deletion from '- the list of other backward classes. It goes on increasing. Learned counsel for the respondents have stated that in large number of cases where applications were made for inclusion they have B been turned down. But that is no answer to the question as to why and how there has been no exclusion. Is it that backwardness has increased instead of decreasing. If the answer is 'yes', as contended by the respondents, then one is bound to raise eyebrows as to the effectiveness of providing c reservations or quotas.

44. The ultimate object is to bring those who are disadvantaged to a level where they no longer continue to be dis-advantaged. It needs no emphasis that individual rights are superior to the social rights. All fundamental rights are to be read together. The inequalities are to be removed. Yet the fact that there has been no exclusion raises a doubt about the real concern to remove inequality.

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

46. The necessary ingredients of equality essentially involve equalization of unequals. Linked with this question the problem posed by the petitioners is whether reservation is the only way to equalize unequals? There are several methods and modes. If reservation really does not work as contended by the petitioners, then the alternative methods can be adopted. It is the stand of the respondents that not only reservations but other incentives like free lodging and boarding facilities have been provided in some States.

47. Learned counsel for the respondents have stated that the measures under challenge are nothing but a much needed r leap towards attainment of the objectives. If it is true, the leap has to end somewhere. It cannot hang in the air as there is

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 221 [DR. ARIJIT PASAYAT, J.] _, nothing immortal in this world; much less, a progressive measure purportedly intended to benefit the other backward classes. If after nearly six decades the objectives have not been achieved, necessarily the need for its continuance warrants deliberations. ,, It is to be noted that some of the provisions were intended to be '· replaced after a decade but have continued. It indirectly shows that backwardness appears to have purportedly increased and not diminished. It would therefore be rational and logical to restrict operation of the impugned Statute for a period of 10 years from its inception. -1 48. At this juncture, report of the Oversight Committee c throws considerable light on the controversy. Some parts of the Report need to be noted. I llf/ This report seeks to expand the provision of Higher :) • Education while at the same time ensuring social inclusion D I and academic excellence. A society which excludes a ./ ~1 ... significant section of its population from access to higher • education cannot be said to be providing equality of opportunity. Equally, if academic excellence gets compromised in the process of expansion, it would lose its competitive edge in the emerging knowledge society E - an edge which can propel India into a position of global leadership. Page X and XI of the report

~ A simpler way of implementing reservations was to F steamroll our way through, in the name of social equity, regardless of its impact on quality and excellence. We have deliberately chosen the more difficult way which delivers equity in a manner that enhances excellence i.e. by making concomitant investments in faculty & G infrastructure and by bringing much needed governance \ related reforms involving institutional, financial and administrative autonomy and process re-engineering in our Higher Educational Governance system. It is easy to equalize by "mindlessly leveling everyone down to lowest H

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A common-denominator". Our effort has been to create an '- upward moving equalization process- where the disabilities are overcome by the erstwhile excluded sections and the system brings out the best in them. Besides the many out of the box innovative ideas B concerning faculty and infrastructure related issues, I believe three of our recommendations, which cut horizontally across the five groups, are critical to the establishment of the goal of an "inclusive society, in pursuit of excellence". These four programmes are considered c by the Oversight Committee to be integral to the above vision and should be considered to be inseverable part of our core recommendations. (page-x) We have to acknowledge that the challenges facing ... us in the entire education sector are enormous and in the D Tertiary Education Sector these can be met, only if both public and private funding to educational institutions increased several fold. The need for private participation in this mammoth task cannot be over-emphasized but market forces themselves cannot deliver justice. The E relative importance of public vs. private funding is brought out very strongly by Joseph Stiglitz when he opined "I had studied the failures of both markets and governments, and was not so na'ive to think that the government could remedy every failure. Neither was I so foolish as to believe that markets by themselves solved every societal problem. ~ Inequality, unemployment, pollution: these are all important issues in which Government has to take an importance role." "Expansion, Inclusion and Excellence" has been our credo. They have remained the abiding theme guiding all our deliberations. I will be failing in my duty if the Oversight { Committee does not acknowledge the source of inspiration for our deliberations. It is the Prime Minister's speech giving the overpowering vision of the "need to create the ,_ H

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 223 [DR. ARIJIT PASAYAT, J.] . I second wave of nation building" which has inspired us in A our thoughts and deliberations. I would also like to express my gratitude to Hon'ble HRD Minister, Sri Arjun Singhji for his affection and guidance right through. (Page-xi) Treatment of the creamy Layer (Chapter IV- Report of Oversight Committee Vot.-1) B

. 4.2 (b) The true benefit of reservations will be realized only when the high school enrolment of OBCs, especially in rural areas, increases significantly. Attention will need to be paid to this issue in the coming years. c Chapter VI- Estimate of Resources required for the expansion 6.1 In overall terms, the total estimated expenditure on the expansion has now been assessed by the five Sub-Groups D in their final reports at Rs.18, 197.83 crore, as compared to the amount of Rs.16,563.34 crore, that was included by the Oversight Committee in its interim report. The summary statement of additional student strength, faculty required and estimates of recurring and non-recurring expenditure that have been projected by the Groups are as at Table E 6.1 and the year-wise break up is at table 6.2. 6.3 The Committee in its discussions with the individual Groups, had stressed. the need to estimate the additional infrastructure and manpower that would be required after F taking into account the slack, if any, in the existing facilities as also the scope for using IT as a resource multiplier. While the Groups seems to have accepted this m principle their expenditure projections, and the norms on which they are based seems to have just extrapolated past trends G The Committee has had some input regarding global trends and the best practices being followed in the world's leading institutions. Based on this, and in consultation with experts, the Committee has developed a plan for a "Gyan Vahini" project, as has been explained in an earlier Chapter H

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A in this report. The total expenditure on this component of the expansion and upgradation project would be Rs.1752 crore in 5 years. Apart from significantly enhancing the quality of instruction and learning, and brining it close to the best levels in the world, this investment will certainly B contribute to efficiency and to reducing the conventional costs of the higher education system. Summary Statement of Expenditure Requirements r (As given in the Final Reports of the Groups) c Sector No. Existing Annual Addi. Non Recur· Total of Student Addi. Facility Recur· ring Exp. lnstn Intake Student Re· ring Exp. In Intake quired Ex. (SY rs) 5 Yrs.

Agriculture 5 825 454 187 102.75 92.71 195.46 D Central 17 92011 49689 6609 2702.11 2455.92 5158.03 Universities

Management 7 1791 966 139 511.32 177.48 688.80

E Medical 11 993 565 N.A. 1783.98 1027.69 2811.67

Engineering 38 29671 16440 4919 5503.83 3840.04 9343.87

Grand Total 125291 68114 11854 10603.99 7593.84 18197.83 F Chapter VII- The Way Forward 7.1 As indicated earlier in this report, this opportunity for expansion, inclusion and excellence should only be the beginning of a larger process, which is to build a G knowledge society in India and allow the country to take its rightful place in the comity of nations. Our recent economic growth and the values of knowledge and education carried forward by a billion diverse people, point to India's potential future as a knowledge society. Other H countries that visualize a similar future have planned

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 225 [DR. ARIJIT PASAYAT, J.]

massive investments in order to enhance both the quality A -· and quantity of higher education and research. China, for example, has made substantial increase in its allocation of resources of higher education. In the first phase, China has provided a grant of US $ 125 million to each of the 1O leading universities and US $ 225 million to Beijing and B Tsinghua Universities. In the second phase, China proposes to provide additional grants to 30 universities, with the objective of having 100 high quality universities in China in the 21 51 century and with 15% of the citizens in the age group 18-22 receiving tertiary education. c 7.2 India has suffered in the past because of severe under investment in higher education. This has been caused partly by the thinking that looks at primary and higher education in an either or manner. It is very clear however that large public investment is needed in both sectors. As D Prime Minister Dr. Manmohan Singh said, while launching the Knowledge Commission, "At the bottom of the • knowledge pyramid, the challenge is one of improving access to primary education. At the top of the pyramid there is need to make our institutions of higher education E and research world class. The time has come for India to embark on a second wave of nation building. Denied this investment, the youth will become a social and economic liability.

49. It was emphasized by learned counsel for the F . ). petitioners that the massive financial burden question finds no place in the parliamentary debate. In response, Mr. Vahanvati has submitted that before the Parliamentary Standing Committee, the report of the Oversight Committee was available. When the Oversight Committee's report was discussed in detail, G needless to say the financial aspect was also considered.

50. It has been highlighted by Mr. P.P. Rao that unmindful of the duty to focus on primary and elementary education, large sums of money are intended to be used for implementation of H

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

A Statute. Various figures and datas have been highlighted to show that there is really no concern for the primary and elementary education. Repelling these contentions Mr. Vahanvati has highlighted that there is no laxity so far as primary and elementary education is concerned. He has referred to voluminous details B relating to Sarva Shiksha Abhiyan. It is contended that uniform policy of elementary education and the progress made upto 31.3.2007 shows the concern of the Government to translate into reality the constitutional objective of providing adequate education to all citizens. It is true that there has been c considerable effort in this regard. But one question still remains to be answered. There has to be balancing of priorities. Mr. Vahanvati has said that this balancing is prerogative of the Government. It is true that Government has a large area of discretion in choosing its priorities. But one factor cannot be lost sight of: The fundamental stress has to be on elementary 0 education. If that is done, as a consequence there would be reduction in the need for spending more money on higher education. Stress on primary and elementary education would be a leap forward towards higher education. There has been considerable number of drop outs in the higher classes. This is E a reality in spite of all steps which the Government claims to have adopted to ensure that every child of a particular age group has education as warranted by the Constitution as a fundamental right.

F 51. Unni Krishnan, J.P and Ors. v. State of A.P and Ors. (1993 (1) sec 645) emphasized on the importance of education in the following words: "166. In Bandhua Mukti Morcha this Court held that the right to life guaranteed by Article 21 does take in G "educational facilities". (The relevant portion has been quoted herein before). Having regard to the fundamental significance of education to the life of, an individual and the nation, and adopting the reasoning and logic adopted in the earlier decisions of this Court referred to herein H before, we hold, agreeing with the statement in Bandhua

.., ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. [DR. ARIJIT PASAYAT, J.] 227

Mukti Morcha, that right to education is implicit in and A -~ flows from the right to life guaranteed by Article 21. Th~t the right to education has been treated as one of transcendental importance in the life of an individual has been recognised not only in this country since thousands of years, but all over the world. In Mohini Jain, the B impatience of education has been duly and rightly stressed. The relevant observations have already been set out in para 7 herein before. In particular, we agree with the ! observation that without education being provided to the citizens of this country, the objectives set forth in the c Preamble to the Constitution cannot be achieved. The Constitution would fail. We do not think that the importance of education could have been better emphasised than in the above words. The importance of education was emphasised in the "Neethishatakam' by Bhartruhari (First D Century B.C. in the following words: Translation: Education is the special manifestation of man; Education is the treasure which can be preserved without the fear of loss; Education secures material E pleasure, happiness and fame; Education is the teacher of the teacher; Education is God incarnate; Education secures honour at the hands of the State, not money. A man without education is equal to animal. F ).

168. In Brown v. Board of Education (347 US 483 (1954) Earl Warren, C.J., speaking for the U.S. Supreme Court emphasized the right to education in the following words: "Today, education is perhaps the most important G function of State and local governments ... It is required in the performance of our most basic responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is the principal instrument in awakening the child to H

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

A cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful any child may reasonably be expected to succeed in life if he is denied the opportunity of an education."

B 52. Observations of this Court in A/IMS Students' Union case (supra) highlight the importance of higher education and the modalities to be adopted for ensuring excellence are in the following words:

c "58. The Preamble to the Constitution of India secures, as one of its objects, fraternity assuring the dignity of the individual and the unity and integrity of the nation to 'we he people of India'. Reservation unless protected by the constitution itself, as given to us by the founding fathers and as adopted by the people of India, is sub-version of fraternity, unity and integrity and dignity of the individual. While dealing with Directive Principles of State Policy, Article 46 is taken note of often by overlooking Articles 41 and 47. Article 41 obliges the State inter alia to make effective provision for securing the right to work and right to education. Any reservation in favour of one, to the extent of reservation, is an inroad on the right of others to work and to learn. Article 47 recognises the improvement of public health as one of the primary duties of the State. Public health can be improved by having the best of doctors, specialists and super specialists. Under-graduate level is a primary or basic level of education in medical sciences wherein reservation can be understood as the fulfilment of societal obligation of the State towards the weaker segments of the society. Beyond this, a reservation is a reversion or diversion from the performance of primary duty of the State. Permissible reservation at the lowest or primary rung is a step in the direction of assimilating the lesser fortunates in mainstream of society by bringing them to the level of others which they cannot achieve unless protectively pushed. Once that is done the protection needs

,.. ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. [DR. ARIJIT PASAYAT, J.] 229

to be withdrawn in the own interest of protectees so that A _, they develop strength and feel confident of stepping on higher rungs on their own legs shedding the crutches. Pushing the protection of reservation beyond the primary level betrays bigwigs' desire to keep the crippled crippled for ever. Rabindra Nath Tagore's vision of a free India 8 cannot be complete unless "knowledge is free" and "tireless striving stretches its arms towards perfection". Almost a quarter century after the people of India have given the ... j Constitution unto themselves, a chapter on fundamental duties came to be incorporated in the Constitution. c Fundamental duties, as defined in Article 51A, are not made enforceable by a writ of court just as the fundamental rights are, but it cannot be lost sight of that 'duties' in Part IVA - Article 51A are prefixed by the same word 'fundamental' which was prefixed by the founding fathers of the Constitution to 'rights' in Part Ill. Every citizen of India is fundamentally obliged to develop the scientific temper and humanism. He is fundamentally duty bound to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievements. State is, all the citizens placed together and hence though Article 51A does not expressly cast any fundamental duty on the State, the fact remains that the duty of every citizen of India is the collective duty of the Sate. Any reservation, apart from being sustainable on the constitutional anvil, must also be F < ,J. reasonable to be permissible. In assessing the reasonability one of the factors to be taken into consideration would be - whether the character and quantum of reservation would stall or accelerate achieving the ultimate goal of excellence enabling the nation G constantly rising to higher levels. In the era of globalisation, where the nation as a whole has to compete with other nations of the world so as to survive, excellence cannot be given an unreasonable go by and certainly not compromised in its entirety. Fundamental duties, though H

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

A not enforceable by a writ of the court, yet provide a valuable guide and aid to interpretation of constitutional and legal issues. In case of doubt or choice, people's wish as manifested through Article 51A, can serve as a guide not only for resolving the issue but also for constructing or B moulding the relief to be given by the courts. Constitutional enactment of fundamental duties, if it has to have any meaning, must be used by courts as a tool to tab, even a taboo, on State action drifting away from constitutional values". 1 ~-

c 53. Respondents have vehemently contended that the concept of creamy layer may have relevance for the purpose of Article 16(4), but is really inconsequential so far as Articles 15(4) and 15(5) are concerned. It is submitted that Article 16(4) is relatable to inadequate representation in Government services D and in that context the well to do in the socially and educationally backward classes have to be excluded in view of the decisions of this Court. But that logic cannot apply to the present dispute which relates to admissions to educational institutions. Before considering the question as to the desirability of excluding E 'creamy layer' the concept of creamy layer needs to be focused upon. Observations of this Court in various cases on this concept need to be noted.

54. In N.M. Thomas's case (supra) at page 363, it was inter alia observed as follows : F "124. A word of sociological caution. In the light of ,. experience, here and elsewhere, the danger of "reservation", it seems to me, is threefold. Its benefits, by and large, are snatched away by the top creamy layer of the "backward" caste or class, thus keeping the weakest G among the weak always weak and leaving the fortunate layers to consume the whole cake. Secondly, this claim is overplayed extravagantly in democracy by large and vocal groups whose burden of backwardness has been substantially lightened by the march of time and measures H

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 231 [DR. ARIJIT PASAYAT, J.]

of better education and more opportunities of employment, but wish to wear the "weaker section" label as a means to score over their near-equals formally categorised as the upper brackets. Lastly, a lasting solution to the problem comes only from improvement of social environment, added educational facilities and cross-fertilisation of castes by inter-caste and inter-class marriages sponsored as a massive State programme, and this solution is calculatedly hidden from 'liew by the higher "backward" groups with a vested interest in the plums of backwardism. But social science research, not judicial impressionism, c will alone tell the whole truth and a constant process of objective re-evaluation of progress registered by the "underdog" categories is essential lest a once deserving "reservation" should be degraded .into "reverse discrimination". Innovations in administrative strategy to 0 help the really untouched, most backward classes also emerge from such socio-legal studies and audit exercises, if dispassionately made. In fact, research conducted by the A.N. Sinha Institute of Social Studies, Patna, has revealed a dual society among harijans, a tiny elite gobbling up the benefits and the darker layers sleeping distances away from the special concessions. For them, Articles 46 and 335 remain a "noble romance", the bonanza going to the "higher" harijans. I mention this in the present case because lower division clerks are likely to be drawn from the lowest levels of harijan humanity and promotion prospects being accelerated by withdrawing, for a time, "test" qualifications for this category may perhaps delve deeper. An equalitarian breakthrough in a hierarchical structure has to use many weapons and Rule 13/AA perhaps is one. G Xx xx xx

139. It is platitudinous constitutional law that Articles 14 to 16 are a common code of guaranteed equality, the first laying down the broad doctrine, the other two applying it H

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

A to sensitive areas historically important and politically polemical in a climate of communalism and jobbery.

55. In Vasant Kumar's case (supra) at page 732 the view was re-iterated in the following words : B "24. In order to appreciate the view point advanced by Mr Desai which appeals to me both for its indepth study of the problem, and a fresh outlook on this vexed problem, at the outset let me take a look at the futuristic view of the Indian Society as envisaged in the Constitution. No one is c left in any doubt that the future Indian Society was to be casteless and classless. Pandit Jawaharlal Nehru the first Prime Minister of India said that Mahatma Gandhi has shaken the foundations of caste and the masses have been powerfully affected. But an even greater power than Gandhi is at work, the conditions of modern life - and it seems at last this hoary and tenacious ralic of past times must die. Mahatma Gandhi, the Father of the Nation said, "The caste system as we know is an anachronism. It must go if both Hinduism and India are to live and grow from day to day". In its onward march towards realising the constitutional goal, every attempt has to be made to destroy caste stratification. Article 38(2) enjoins the State to strive to minimise the inequality in income and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations. Article 46 enjoins duty to promote with special care the educational and economic interests of the weaker sections of the people, and in particular of the Scheduled Castes and Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation. Continued retention of the division of the society into various castes simultaneously introduces inequality of status. And this inequality in status is largely responsible for retaining inequality in facilities and opportunities, ultimately resulting in bringing into existence an economically depressed

,,- ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 233 [DR. ARIJIT PASAYAT, J.] _, class for transcending caste structure and caste barrier. A The society therefore was to be classless caste less society. In order to set up such a society, steps have to be taken to weaken and progressively eliminate caste structure. Unfortunately, the movement is in the reverse gear. Caste stratification has become more rigid to some extent, and B where concessions and preferred treatment schemes are introduced for economically disadvantaged classes, ~ " ~ identifiable by caste label, the caste structure unfortunately received a fresh lease of life. In fact there is a mad rush for being recognized as belonging to a caste which by its c nomenclature would be included in the list of socially and educationally backward classes. To illustrate: Bakshi Commission in Gujarat recognized as many as 82 castes · as being. socially and educationally backward. On the publication of its report, Government of Gujarat received representations by members of those castes who had not made any representation to the Bakshi Commission for treating them as socially and educationally backward. This phenomenon was noticed by Mandal Commission when it observed: "Whereas the Commission has tried to make the State-wise lists of OBCs as comprehensive as possible, it is quite likely that several synonymy of the castes listed as backward have been left out. Certain castes are known by a number of synonymy which vary from one region to the other and their complete coverage is almost , impossible". Mandal Commission found a way out by recommending that if a particular caste has been listed as backward then all its synonyms whether mentioned in the State lists or not should also be treated as backward. Gujarat Government was forced to appoint a second commission known as Rane Commission. Rane G Commission took note of the fact that there was an organised effort for being considered socially and educationally backward castes. Rane Commission recalled the observations in Balaji case that "Social backwardness is on the ultimate analysis the result of H

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

A poverty to a very large extent". The Commission noticed h that some of the castes just for the sake of being considered as socially and educationally backward, have degraded themselves to such an extent that, they had no hesitation in attributing different types of vices to and B associating other factors indicative of backwardness, with their castes. The Commission noted that the malaise requires to be remedied. The Commission therefore, devised a method for determining socially and t • educationally backward classes without reference to caste, c beneficial to all sections of people irrespective of the caste to whi_ch they belong. The Commission came to an irrefutable conclusion that amongst certain castes and communities or class of people, only lower income groups amongst them are socially and educationally backward. We may recall here a trite observation in case of N. M. D Thomas which reads as under (SCC pg.363 para 124): A-

"A word of sociological caution. In the light of · experience, here and elsewhere, the danger of 'reservation', it seems to me, is threefold. Its benefits, by and large, are snatched away by the top creamy layer of the 'backward' caste or class, thus keeping the weakest among the weak always weak and leaving the fortunate layers to consume the whole cake. Secondly, this claim is overplayed extravagantly in democracy by large and vocal groups whose burden of backwardness has been substantially lightened by the march of time and measures of better education and more opportunities of employment, but wish to wear the 'weaker section' label as a means to score over their near-equals formally categorised as the upper brackets."

25. A few other aspects for rejecting caste as the basis for identifying social and educational backwardness may be briefly noted. If State H patronage for preferred treatment accepts caste as

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 235 [DR. ARIJIT PASAYAT, J.]

the only insignia for determining social and educational backwardness, the danger looms large that this approach alone would legitimise and perpetuate caste system. It does not go well with our proclaimed secular character as enshrined in the Preamble to the Constitution. The assumption that all members of same caste a re equally socially and educationally backward is not well-founded. Such an approach provides an over-simplification of a complex problem of identifying the social and educational backwardness. The Chairman of the c Backward Classes Commission, set up in 1953, after having finalised the report, concluded that "it would have been better if we could determine the criteria of backwardness on principles other than caste". Lastly it is recognised without dissent that the caste based 0 reservation has been usurped by the economically well-placed section in the same caste. To illustrate, it may be pointed that some years ago, I came across a petition for special leave against the decision of the Punjab and Haryana High Court in which the reservation of 2Y:z per cent for admission to medical E and engineering colleges in favour of Majhabi Sikhs was challenged by none other than the upper crust of the members of the Scheduled castes amongst Sikhs in Punjab; proving that the labeled weak exploits the really weaker. Add to this, the findings of the Research F Planning Scheme of sociologists assisting the Mandal Commission when it observed: "while determining the criteria of socially and educationally backward classes, social backwardness should be considered to be the critical element and educational G backwardness to be the linked element though not necessarily derived from the former". The team ultimately concluded that "social backwardness refers to ascribed status, and it considered social backwardness as the critical element and H

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

A educational backwardness to be the linked though 1- not derived element". The attempt is to identify socially and educationally backward classes of citizens. The caste, as is understood in Hindu Society, is unknown to Muslims, Christians, Parsis, Jews etc. Caste B criterion would not furnish a reliable yardstick to identify socially and educationally backward group in the aforementioned communities though economic backwardness would. r ~.

28. Reservation in one or other form has been there c for decades. If a survey is made with reference to families in various castes considered to be socially and educationally backward, about the benefits of . preferred treatment, it would unmistakably show that the benefits of reservations are snatched away by D the top creamy layer of the backward castes. This has to be avoided at any cost. _.\.

56. Significantly in Indra Sawhney No. 1 it was emphatically noted as follows: E "520. Society does not remain static. The industrialisation and the urbanisation which necessarily followed in its wake, the advance on political, social and economic fronts made particularly after the commencement of the Constitution, the social reform movements of the last several decades, F the spread of education and the advantages of the special provisions including reservations secured so far, have all ... undoubtedly seen at least some individuals and families in the backward classes, however small in number, gaining sufficient means to develop their capacities to compete with others in every field. That is an undeniable fact. Legally, G therefore, they are not entitled to be any longer called as part of the backward classes whatever their original birthmark. It can further hardly be argued that once a .( backward class, always a backward class. That would defeat the very purpose of the special provisions made in H

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 237 [DR. ARIJIT PASAYAT, J.]

the Constitution for the advancement of the backward classes, and for enabling them to come to the level of and to compete with the forward classes, as equal citizens. On the other hand, to continue to confer upon such advanced sections from the backward classes the special benefits, would amount to treating equals unequally violating the equality provisions of the Constitution. Secondly, to rank them with the rest of the backward .• classes would equally violate the right to equality of the rest in those classes, since it would amount to treating the unequals equally. What is more, it will lead to perverting c the objectives of the special constitutional provisions since the forwards among the backward classes will thereby be enabled to lap up all the special benefits to the exclusion and at the cost of the rest in those classes, thus keeping the rest in perpetual backwardness. The object of the special constitutional provisions is not to uplift a few individuals and families in the backward classes but to ensure the advancement of the backward classes as a whole. Hence, taking out the forwards from among the backward classes is not only permissible but obligatory under the Constitution. However, it is necessary to add that just as the backwardness of the backward groups cannot be measured in terms of the forwardness of the forward groups, so also the forwardness of the forwards among the backward classes cannot be measured in terms of the backwardness of the backward sections of the said classes. It has to be judged on the basis of the social capacities gained by them to compete with the forward classes. So long as the individuals belonging to the backward classes do oot develop sufficient capacities of their own to compete with others, they can hardly be classified as forward. xx xx xx

629. More backward and backward is an illusion. No constitutional exercise is called for it. What is required is H

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

A practical approach to the problem. The collectivity or the 'group may be backward class but the individuals from that class may have achieved the social status or economic affluence. Disentitle them from claiming reservation. Therefore, while reserving posts for backward classes, B the departments should make a condition precedent that every candidate must disclose the annual income of the parents beyond which one could not be considered to be backward. What should be that limit can be determined ) '• by the appropriate State. Income apart, provision should c be made that wards of those backward classes of persons who have achieved a particular status in society either political or social or economic or if their parents are in higher services then such individuals should be precluded to avoid monopolisation of the services reserved for backward classes by a few. Creamy layer, thus, shall stand D eliminated. And once a group or collectivity itself is found to have achieved the constitutional objective then it should be excluded from the list of backward class. Therefore, (1) No reservation can be made on economic criteria. E (2) It may be under Article 16(4) if such class satisfies the test of inadequate representation. · (3) Exclusion of creamy layer is a social purpose. Any legislative or executive action to remove such persons individually or collectively cannot be constitutionally invalid. Xx xx xx

790. 'Means-test' in this discussion signifies imposition of an income limit, for the purpose of excluding persons (from the backward class) whose income is above the said limit. This submission is very "Often referred to as the "creamy layer" argument. Petitioners submit that some members of the designated backward classes are highly advanced socially as well as economically and educationally. It is submitted that they constitute the forward H

r ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 239 [DR. ARIJIT PASAYAT, J.] _,,, section of that particular backward class - as forward as any other forward class member - and that they are lapping up all the benefits of reservations meant for that class, without allowing the benefits to reach the truly backward members of that class. These persons are by no means backward and with them a class cannot be treated as backward. It is pointed out that since Jayasree almost every decision has accepted the validity of this . I submission .

791. On the other hand, the learned counsel for the States of Bihar, Tamil Nadu, Kerala and other counsel for c respondents strongly oppose any such distinction. It is submitted that once a class is identified as a backward class after applying the relevant criteria including the economic one, it is not permissible to apply the economic criteria once again and sub-divide a backward class into D ... two sub-categories. Counsel for the State of Tamil Nadu submitted further that at one stage (in July 1979) the State o f Tamil Nadu did indeed prescribe such an income limit but had to delete it in view of the practical difficulties encountered and also in view of the representations E received. In this behalf, the learned counsel invited our attention to Chapter 7-H (pages 60 to 62) of the Ambashankar Commission (Tamil Nadu Second Backward Classes Commission) Report. According to the respondents the argument of 'creamy layer' is but a F '.... mere ruse, a trick, to deprive the backward classes of the benefit of reservations. It is submitted that no member of backward class has come forward with this plea and that it ill becomes the members of forward classes to raise this point. Strong reliance is placed upon the observations G • of Chinnappa Reddy, J in Vasanth kumar to the following effect (SCC p.763, para 72) ~ " .... One must, however, enter a caveat to the criticism that the benefits of reservation are often snatched away by the top creamy layer of backward class or caste. That H

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

A 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 B same way, by the top creamy layer of society itself? Seats reserved for the backward classes are taken away by the top layers amongst them on the same principle of merit on which the unreserved seats are taken away by >. the top layers of society. How can it.be bad if reserved c seats and posts are snatched away by the creamy layer of backward classes, if such snatching away of unreserved posts by the top creamy layer of society itself is not bad?"

792. In our opinion, it is not a question of permissibility or D desirability of such test out one ·of proper and more appropriate identification of a class - a backward class. The very concept of a class denotes a number of persons having certain common traits which distinguish them from the others. In a backward class under clause (4) of Article E 16, if the connecting link is the social backwardness, it should broadly be the same in a given class. If some of the members are far too advanced socially (which in the context, necessarily means economically and, may also mean educationally) the connecting thread between them and the remaining class snaps. They would be misfits in the class. After excluding them alone, would the class be ;.

a compact class. In fact, such exclusion benefits the truly backward. Difficulty, however, really lies in drawing the line - how and where to draw the line? For, while drawing the line, it should be ensured that it does n·ot result in taking away with one hand what is given by the other. The • basis of exclusion should not merely be economic, unless, of course, the economic advancement is so high that it ~

necessarily means social advancement. Let us illustrate the point. A member of backward class, say a member of H

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 241 [DR. ARIJIT PASAYAT, J.)

carpenter caste, goes to Middle East and works there as A a carpenter. If you take his annual income in rupees, it would be fairly high from the Indian standard. Is he to be excluded from the Backward Class? Are his children in India to be deprived of the benefit of Article 16(4)? Situation may, however, be different, if he rises so high economically as to become - say a factory owner himself. In such a situation, his social status also rises. He himself would be in a position to provide employment to others. In such a case, his income is merely a measure of his social status. Even otherwise there are several practical difficulties too in imposing an income ceiling. For example, annual income of Rs.36,000 may not count for much in a city like Bombay, Delhi or Calcutta whereas it may be a handsome income in rural India anywhere. The line to be drawn must be a realistic one. Another question would be, should such 0 a line be uniform for the entire country or a given State or should it differ from rural to urban areas and so on. Further, income from agriculture may be difficult to assess and, therefore, in the case of agriculturists, the line may have to be drawn with reference to the extent of holding. While · the income of a person can be taken as a measure of his social advancement, the limit to be prescribed should not be such as to result in taking away with one hand what is given with the other. The income limit must be such as to mean and signify social advancem,ent. At the same time, it must be recognised that there are certain positions, the occupants of which can be treated as socially advanced without any further enquiry. For example, if a member of a designated backward class becomes a member of IAS or IPS or any other All India Service, his status is society (social status) rises; he is no longer socially disadvantaged. His children get full opportunity to realize their potential. They are in no way handicapped in the race of life.

793. Keeping in mind all these considerations, we direct H

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

A the Government of India to specify the basis of exclusion - whether on the basis of income, extent of holding or otherwise - of 'creamy layer'. This shall be done as early as possible, but not exceeding four months. On such specification persons falling within the net of exclusionary B rule shall cease to be the members of the Other Backward Classes (covered by the expression 'backward class of citizens') for the purpose of Article 16(4). The impugned Office Memorandums dated August 13, 1990 and l September 25, 1991 shall be implemented subject only to c such specification and exclusion of socially advanced persons from the backward classes contemplated by the said O.M. In other words, after the expiry of four months from today, the implementation of the said O.M. shall be subject to the exclusion of the 'creamy layer' in accordance with the criteria to be specified by the Government of India D and not otherwise".

57. In.Indra Sawhney v. Union of India (1996) 6 SCC 506) at page 508) it was noted as follows : "3. Thereafter the matter again came up before the Court E on 20-3-1995. Finding that the State of Kerala has not taken any steps, this Court issued notice to show cause why action should not be taken for non-compliance of this Court's order. Again the matter came up on 10-7-1995. Even on that date no report of compliance was submitted F to the Court; instead an affidavit sworn to by the Chief Secretary to the State was handed over explaining the ,.. circumstances why the implementation of the judgment was delayed. )()( )()( )()( G

5. In the circumstanc,es, out of sheer exhaustion and having ,....- regard to the fact that the constitutionality of the Kera la Act 16of1995 is pending disposal before this Court, we have -F decided to get the information ourselves regarding "creamy H layer" issue through a High Level Committee.

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 243 [DR. ARIJIT PASAYAT,. J.]

6. Accordingly, we request the learned Chief Justice of the A Kerala High Court to appoint a retired Judge of the High Court to be the Chairman of the High Level Committee who will induct not more than 4 members from various walks of life to identify the "creamy layer'' among "the designated other backward classes" in Kerala State in B the light of the ruling of this Court in Manda/ case and forward the report to this Court within 3 months from the date of receipt of this order."

58. In Indra Sawhney No. 2 it was observed as follows: c "7. Our Constitution is wedded to the concept of equality and equality is a basic feature. Under Article 15(2), there is a prohibition that the State shall not discriminate against any citizen on the grounds only of religion, race, caste, sex and place of birth or any of them. It is equally t~ue that ours is a caste-ridden society. Still, it is a constitutional mandate not to discriminate on the basis of caste alone. Provisions + can be made for the upliftment of socially and educationally backward classes, Scheduled Castes or Scheduled Tribes or for women and children. Article 1-6(4) empowers the States for making any provision for reservation in appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State. Reservation is permissible ( i ) in favour of any backward class of citizens; and ( ii ) if it is not adequately represented in services under the State. "

8. Caste only cannot be the basis for reservation. Reservation can be for a backward class citizen of a particular caste. Therefore, from that caste, the creamy layer and the non-backward class of citizens are to be · excluded. If the caste is to be taken into consideration then for finding out the socially and economically backward class, the creamy layer of the caste is to be eliminated for granting benefit of reservation, because that creamy layer H

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

A cannot be termed as socially and economically backward. These questions are exhaustively dealt with by a nine- Judge Bench of this Court in Indra Sawhney v. Union of India and it has been specially held that "only caste" cannot be the basis for reservation.

B 9. Inclusion of castes in the list of backward classes cannot be mechanical and cannot be done without adequate relevant data. Nor can it be done for extraneous reasons ... Likewise, periodic examination of a backward class could c lead to its exclusion if it ceases to be socially backward or if it is adequately represented in the services. Once backward, always backward is not acceptable. In any case, the "creamy layer" has no place in the reservation system.

10. If forward classes are mechanically included in the list of backward classes or if the creamy layer among backward classes is not excluded, then the benefits of reservation will not reach the really backward among the + backward classes. Most of the benefits will then be knocked away by the forward castes and the creamy layer. That will leave the truly backward, backward forever. xx xx xx

13. In Indra Sawhney on the question of exclusion of the "creamy layer'' from the backward classes, there was agreement among eight out of the nine learned Judges of this Court. There were five separate judgments in this behalf which required the "creamy layer'' to be identified and excluded. xx xx xx G

22. As appears from the judgments of six out of the eight Judges, viz. Jeevan Reddy (for himself and three others), Sawant and Sahai, JJ. - (i.e. six learned Judges out of nine), - they specifically refer to those in higher services like IAS, IPS and All India Services or near about as H

' , ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 245 [DR. ARIJIT PASAYAT, J.]

persons who have reached a higher level of social advancement and economic status and therefore as a matter of law, such persons are declared not entitled to be treated as backward. They are to be treated as creamy layer "without further inquiry". Likewise, persons living in sufficient affluence who are able to provide employment to others are to be treated as having reached a higher social status on account of their affluence, and therefore outside the backward class. Those holding higher levels of agricultural landholdings or getting income from property, beyond a limit, have to be excluded from the backward c classes. This, in our opinion, is a judicial " declaration" made by this Court. Xx )()( )()(

27. As the "creamy layer" in the backward class is to be 0 treated "on a par'' with the forward classes and is not entitled to benefits of reservation, it is obvious that if the "creamy layer'' is not excluded, there will be discrimination and violation of Articles 14 and 16(1) inasmuch as equals (forwards and creamy layer of backward classes) cannot be treated unequally . Again, non-exclusion of creamy E layer will also be violative of Articles 14, 16(1) and 16(4) of the Constitution of India since unequals (the creamy layer) cannot be treated as equals , that is to say, equal to the rest of the backward class. These twin aspects of discrimination are specifically elucidated in the judgment F '... of Sawant, J. where the learned Judge stated as follows: (SCC p. 553, para 520) 'To continue to confer upon such advanced sections special benefits, would amount to treating equals G unequally. Secondly, to rank them with the rest of the backward classes would amount to treating the unequals equally." Thus, any executive or legislative action refusing to exclude the creamy layer from the benefits of reservation will be H

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

A violative of Articles 14 and 16(1) and also of Article 16(4). We shall examine the validity of Sections 3, 4 and 6 in the light of the above principle. Xx xx xx

B 64. The Preamble to the Constitution of India emphasises the principle of equality as basic to our Constitution. In Kesavananda Bharati v. State of Kera/a it was ruled that even constitutional amendments which offended the basic structure of the Constitution would be ultra vires the basic c structure. Sikri, C.J. laid stress on the basic features enumerated in the Preamble to the Constitution and said that there were other basic features too which could be gathered from the constitutional scheme (para 506-A of SCC). Equality was one of the basic features referred to in the Preamble to our Constitution. Shelat and Grover, D JJ. also referred to the basic rights referred to in the Preamble. They specifically referred to equality (paras 520 and 535-A of SCC). Hegde and Shelat, JJ. also referred to the Preamble (paras 648, 652). Ray, J. (as he then was) also did so (para 886). Jaganmohan Reddy, J. E too referred to the Preamble and the equality doctrine (para 1159). Khanna, J. accepted this position (para 1471). Mathew, J. referred to equality as a basic feature (para 1621). Dwivedi, J. (paras ~882, 1883) and Chandrachud, J. (as he then was) (see para 2086) F accepted this position.

65. What we mean to say is that Parliament and the legislature in this country cannot transgress the basic feature of the Constitution, namely, the principle of equality enshrined in Article 14 of which Article 16(1) is a facet. G Whether the creamy layer is not excluded or whether forward castes get included in the list of backward classes , the position will be the same, namely, that there will be a breach not only of Article 14 but of the basic structure of the Constitution. The non-exclusion of the creamy layer H

' , ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 247 [DR. ARIJIT PASAYAT, J.]

or the inclusion of forward castes in the list of backward A classes will, therefore, be totally illegal. Such an illegality offending the root of the Constitution of India cannot be allowed to be perpetuated even by constitutional amendment. The Kerala Legislature is, therefore, least competent to perpetuate such an illegal discrimination. B What even Parliament cannot do, the Kerala Legislature cannot achieve." ,. "i 59. Though in M. Nagaraj's case (supra) some observations of general nature have been made so far as the applicability of the principles to Scheduled Castes and c Scheduled Tribes are concerned, really that case did not concern with Scheduled Castes and Scheduled Tribes. Similar is the position here. The focus on the identity test in M. Nagaraj's case (supra) is unexceptionable. At paras 80 and 110, it was noted as follows: D "80. Before concluding, we may refer to the judgment of this Court in M.G Badappanavar. In that case the facts were as follows. Appellants were general candidates. They contended that when they and the reserved candidates were appointed at Level-1 and junior reserved candidates E got promoted earlier on the basis of roster- points to Level- 2 and again by way of roster-points to Level-3, and when the senior general candidate got promoted to Level-3, then the general candidate would become senior to the ·reserved candidate at Level-3. At Level-3, the reserved F •). candidate should have been considered along with the senior general candidate for promotion to Level-4. In support of their contention, appellants relied upon the judgment of the Constitution Bench in Ajit Singh (//).The above contentions raised by the appellants were rejected G by the tribunal. Therefore, the general candidates came to this Court in appeal. This Court found on facts that the "• Service Rule concerned did not contemplate computation of seniority in respect of roster promotions. Placing reliance on the judgment of this Court in Ajit Singh(/) and in Virpa/ H

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

A Singh, this Court held that roster promotions were meant only for the limited purpose of due representation of backward classes at various levels of service and, therefore, such roster promotions did not confer consequential seniority to the roster-point promotee. In B Ajit Singh (//) , the circular which gave seniority to the roster-point promotees was held to be violative of Articles 14and16. ltwas further held in M.G Badappanavarthat equality is the basic feature of the Constitution and any treatment of equals as unequals or any treatment of c unequals as equals violated the basic structure of the Constitution. For this proposition, this Court placed reliance on the judgment in Indra Sawhneywhile holding that if creamy layer among backward classes were given some benefits as backward classes, it will amount to equals being treated unequals. Applying the creamy layer test, this Court held that if roster-point promotees are given consequential seniority, it will violate the equality principle which is part of the basic structure of the Constitution and in which event, even Article 16(4A) cannot be of any help to the reserved category candidates. This is the only judgment of this Court delivered by three-Judge bench saying that if roster-point promotees are given the benefit of consequential seniority, it will result in violation of equality principle which is part of the basic structure of the Constitution. Accordingly, the judgment of the tribunal was set aside. xx xx xx

110. As stated above, the boundaries of the width of the power, namely, the ceiling-limit of 50% (the numerical benchmark), the principle of creamy layer, the compelling reasons, namely, backwardness, inadequacy of representation and the overall administrative efficiency are not obliterated by the impugned amendments. At the appropriate time, we have to consider the law as enacted H · by various States providing for reservation if challenged.

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

At that time we have to see whether limitations on the A 249

exercise of power are violated. The State is free to exercise its discretion of providing for reservation subject to limitation, namely, that there must exist compelling reasons of backwardness, inadequacy of representation in a class of post(s) keeping in mind the overall administrative B efficiency. It is made clear that even if the State has reasons

. ,,. ~ to make reservation, as stated above, if the impugned law violates any of the above substantive limits on the width of the power the same would be liable to be set aside." ·60. There is an interesting article by an author dealing with c Affirmative Action which reads as follows: "In his much referred to speech on 26November1949, Dr. Ambedkar said that India was wanting in its recognition of the principle of fraternity. What does fraternity mean? D Fraternity means a sense of common brotherhood of all Indians - of India being one people. The virtues of liberty by themselves do not create fraternity. This is why several liberal theorists are unsure about whether or not state interventions should be allowed for when the issue of overcoming disprivileges are concerned. The central E concern then is how to inculcate a sense of 'common brotherhood' among people with divergent histories and who occupy vastly different positions in the economic and social structure of a society. F "A. Before we go further on discussing the specifics of caste and reservations in India it is worth recording that liberty and equality can sometimes be contradictorily positioned. This is why it is important for democracy to redress these community-based grievances within a G framework that does not violate liberal principles. While i the individual needs to be protected, there are individuals in certain groups and communities that need safeguards ''~ and support as well. After all it must be remembered that communities do not create citizens, but that there are H

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

A citizens within communities. Also, while it is rather risky to ,,_ say that communities have rights, there is no doubt at all that within liberal democracies, individuals have rights. Indeed, these rights were secured historically so that individuals did not have to be burdened by community B and ascriptive pressures on them. The rationale behind affirmative action is that it releases suppressed talents and expands the pool of social assets in society for the general good. If today we are .. r.,. looking for a justification for affirmative action in this fashion, c several decades ago it was precisely this enlarging of the social pool of talents that recommended equal treatment for women. As L.T. Hobhouse argued then that when women are repressed then there is a loss of all the elements in the common stock which the free play of the woman's mind would contribute. By increasing the sum of realized talents in society individuals can actually gain greater inter- subjectivity in their everyday lives. As the set of -+- resemblances between them is now so much larger, they can practice, pace Rawls, the moral precept of participating in one another's fate. In this process, fraternal values of citizenship gain materiality and fulfilment. It should be recognized that fraternity can only come about through a basic set of resemblances between citizens. This conception of resemblances is about citizens being equally able to avail of institutional facilities that ensure their acquisition of those skills that are considered to be socially valuable. In other words, social opportunities exist for individual self-expansion, and it is only individuals now who can exclude themselves. If grinding poverty comes in the way of acquiring such socially valuable skills, then those blocks should be met by developmental interventions such as the anti-poverty programmes. But on no account should the removal of poverty be made synonymous with ..... - reservations. Reservations are only meant to create a measure of confidence and dignity among those who didn't H