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

c on the basis of occupation cum income, without reference to caste, if it is so advised. (5) There is no constitutional bar to classify the backward classes of citizens into backward and more. backward categories. D (6) (a) and (b) The reservations contemplated in clause (4) of Article 16 should not exceed 50%. While 50% shall be the rule, it is necessary not to put out of ... - consideration certain extra ordinary situation inherent in the great diversity of this country and the people. E

117. In Vasanth Kumar's case (supra) at para 2(4), it was observed as follows: "2(4). The policy of reservations in employment, education and legislative institutions should be reviewed every five F : years or so. That will at once afford an opportunity (i) to the r State to rectify distortions arising out of particular facets ,. of the reservation policy and (ii) to the people, both backward and" non-backward, to ventilate their views in a public debate on the practical impact of the policy of reservations."

118. In State of A.P. & Anr. v. P. Sagar (1968 (3) SCR 595) at para 15, it was observed as follows: • .. "Article 15 guarantees by the first clause a fundamental right of far-rea~hing importance to the public generally.

{ ~ ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 301 [DR. ARIJIT PASAYAT, J.)

Within certain defined limits an exception has been engrafted upon the guarantee of the freedom in cl. (1 ), but being in the nature of an exception, the conditions which justify departure must be strictly shown to exist. When a dispute is raised before a Court that a particular law which is inconsistent with the guarantee against discrimination is valid on the plea that it is permitted under clause (4) of Art. 15 the assertion by the State that the officers of the State had taken into consideration the criteria which had i been adopted by the Courts for determining who the sociaUy and educationally backward classes of the Society c are, or that the authorities had acted in good faith in determining the socially and educationally backward classes of citizens, would not be sufficient to sustain the validity of the claim. The Courts of the country are invested with the power to determine the validity of the law which infringes the fundamental rights of citizens and others and when a question arises whether a law which prima facie - - .' infringes a guaranteed fundamental right is within an exception, the validity of that law has to be determined by the Courts on materials placed before them. By merely asserting that the law was made after full consideration of the relevant evidence and criteria which have a bearing thereon, and was within the exception, the jurisdiction of the Courts to determine whether by making the law a fundamental right has been infringed is not excluded." F , 119. Significant observations were made in Kumari K.S. Jayasree and Anr v. The State of Kera/a and Anr (1976 (3) sec 730 ). At para 22 it was noted as follows: ."The problem of determining who are socially and educationally backward classes is undoubtedly not simple. G Sociological and economic considerations come into play in evolving proper criteria for its determination. ·This is the ... r function of the State. The Court's jurisdiction is to decide whether the tests applied are valid. If it appears that tests applied are proper and valid the classification of socially H

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

A and educationally backward classes based on the tests will have to be consistent with the requirements of Article 15(4). The Commission has found on applying the relevant tests that the lower income group of the communities named in Appendix VII I of the Report constitute the socially B and educationally. backward classes. In dealing with the question as to whether any class of citizens is socially backward or not, it may not be irrelevant to consider the caste of the said group of citizens. It is necessary to remember that special provision is contemplated for • classes of citizens and not for individual citizens as such, " c and so though the caste of the group of citizen may be relevant, its importance should not be exaggerated. If the classification is based solely on caste of the citizen, it may not be logical. Social backwardness is the result of poverty to a very large extent. Caste and poverty are both relevant for determining the backwardness. But neither caste alone nor poverty alone will be the determining tests. When the Commission has determined a class to be _, ' socially and educationally backward it is not on the basis of income alone, and the determination is based on the relevant criteria laid down by the Court. Evidence and material are placed before the Commission. Article 15(4) which speaks of backwardness of classes of citizens indicates that the accent is on classes of citizens. Article 15(4) also speaks of Scheduled Castes and Scheduled F Tribes. Therefore, socially and educationally backward classes of citizens in Article 15(4) cannot be equated with ,. r castes. In R. Chitralekha and Anr. v. State of Mysore and Ors. ( 1964 (6) SCR 368 ) this Court said that the classification of backward classes based on economic G conditions and occupations does not offend Article 15(4)."

120. Further, in Minor A. Peeriakaruppan, Sobha Joseph v. State of Tamil Nadu and Ors. (1971 (1) SCC 38) at para 29 _, it was observed as follows: ' H "Rajendran's Gase (1968 (2) SCR 786) is an authority for l"=

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 303 [DR. ARIJIT PASAYAT, J.]

the proposition that the classification of backward classes A =.,7 on the basis of castes is within the purview of Article 15(4) if those castes are shown to be socially and educationally backward. No further material has been placed before us to show that the reservation for backward classes with which we are herein concerned is not in accordance with B Article 15(4). There is no gainsaying the fact the there are numerous castes in this country which are socially and educationally backward. To ignore their existence is to ~ ignore the facts of life. Hence we are unable to uphold the contention that impugned reservation is not in accordance c with Article 15(4). But all the same the Government should not proceed on the basis that once a class is considered as a backward class it should continue to be backward class for all times. Such an approach would defeat the very purpose of the reservation because once a class reaches a stage of progress which some modern writers call as take off stage then competition is necessary for -. their future progress. The Government should always keep under review the question of reservation of seats and only the classes which are really socially and educationally backward should be allowed to have the benefit of reservation. Reservation of seats should not be allowed to become a vested interest. The fact that candidates of backward classes have secured about 50% of the seats in the general pool does show that the time has come for a de novo comprehensive examination of the question. It F .. .. must be remembered that the Government's decision in this regard is open to judicial review."

121. It has been highlighted that the Act has been made applicable to Central Educational Institutions established, G maintained or aided by the Central Government. Central Educational Institutions have been defined in Section 2(d) as

- .._ , follows: "2(d) Central Educational Institution" means- H

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

. A (i) a university established or incorporated by or under a Central Act; --=::::

(ii) an institution of national importance set up by an Act of Parliament;

B (iii) an institution, declared as a deemed University under Section 3 of the University Grants Commission Act, 1956 and maintained by or receiving aid from the Central Government; r "-= (iv) an institution maintained by or receiving aid from the c Central Government, whether directly or indirectly, and affiliated to an institution referred to in clause (i) or clause (ii), or a constituent unit of an institution referred to in cla,use (iii); (v) an educational institution set up by the Central D Government under the Societies Registration Act, 1860." ' .

122. It is pointed out that there cannot be any reservations in respect of super specialities and institutions imparting education of highly complex subjects. The example of All India Institute of Medical Sciences has been given. It has been pointed out that its status as an institution for super speciality has been judicially recognized. It needs to be noted that in terms of Section ' 4(b) of the Act certain educational institutions have been excluded from the operation of the Act.

123. The Act has been made inapplicable to them. It is to .• be noted that in the said provision, institutions of research, institutions of excellence, institutions of national and strategic importance have been specified in the Schedule to the Act. The G proviso permits the Central Government as and when considered necessary to amend the Schedule. In other words, on an appropriate case being presented and established before the Central Government that the Institution is of excellence and/ ' ... or a research institute and/or an institution of national and ... ' H strategic importance, the Central Government can amend the

ASHOKA KliMAR THAKUR v. UNION OF INDIA & ORS. 305 [DR ARIJIT PASAYAT, J.]

Schedule and include such institution in the Schedule. In other A words, it is permissible for the petitioners and anybody else to highlight to the Government about the desirability to include an Institution in the Schedule of the Act.

124. One of the major issues highlighted by Mr. P.P. Rao was that in several cases the matriculation standard of education 8 was considered to be the measure for measuring backwardness It is, therefore, submitted that when at least half • > of the persons belonging to a particular caste have reached the matriculation level of education, they cannot be considered to be educationaily backward any longer. It is therefore submitted that if that be taken as a yardstick for measuring backwardness then the reservation of seats for technical education or in higher studies cannot be sustained. It has also been highlighted that the shift of emphasis from primary and basic education to higher education is against the constitutional mandate making education compulsory in terms of Article 21-A of the Constitution. - . It is not correct to contend that in fixing the priorities the Goverr.ment is the best Judge as contended by the respondents. It may be correct in matters relating to simple policy decisions _, but when the constitutional mandate is under consideration the underlying object has also to be kept in view. In this context reference is made to Article 46 of the Constitution. It is in that background pointed out by learned counsel for the petitioners that what cannot be lost sight of is the fact that is the foundation for basic, elementary and primary education. The educational F .. backwardness can be obliterated when at least half of the persons belonging to a particular caste come up to a matriculation level. 125 There is substance in this plea. It is not merely the existence of schemes but the effective implementation of the G schemes that is important. It is to be noted that financial

- constraint cannot be a ground to deny fundamental rights and the provision for the schemes and the utilization of the funds are also relevant factors. It appears that better coordination between the funds provider and the utiliser is necessary. It is suggested H

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

A that putting stress on cut off limit by shifting from matriculation to Class XII level education as a benchmark of gauging educational backwardness will be a step in the right direction. Though as rightly contended by Mr. P.P. Rao that in several decisions, for example, M.R. Balaji's case (supra), Ba/ram's B case (supra) and Kumari K.S. Jayasree's case (supra) the secondary education was taken to be the benchmark, ground reality cannot be lost sight of that with the limited availability of jobs and the spiraling increase in population, secondary or matriculation examination can no longer be considered to be c an appropriate bench mark. It has to be at the most graduation. But the question arises whether technical education can be included while considering educational backwardness. A delicate balancing has to be done in this regard. While technical education cannot be the sole criteria for gauging educational backwardness it definitely will form part of 50 per cent norms 0 fixed by this Court. Slightly variable plus or minus would be the appropriate standard to gauge educational backwardness. ..

126. One of the grey areas which have been highlighted by learned counsel for the petitioners is that caste is not a E substitute f.or class and nevertheless the two terms are not synonyms. Much of the argument in this regard is centred round the paragraphs 782 and 783 of Indra Sawhney No. 1 (supra). , The same read as under: "782. Coming back to the question of identification, the fact remains that one has to begin somewhere - with some group, class or section. There is no set or recognised method. There is no law or other statutory instrument prescribinQ. the methodology. The ultimate idea is to survey the entire populace. If so, one can well begin with castes, which represent explicit id.entifiable social classes/ groupings, more particularly when Article 16(4) seeks to ameliorate social backwardness. What is unconstitutional with it, more so when caste, occupation poverty and social -·, backwardness are so closely intertwined in our society? H [Individual survey is out of question, since Article 16(4)

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 307 [DR. ARIJIT PASAYAT, J.]

. speaks of class protection and not individual protection]. A This does not mean that one can wind up the process of identification with the castes. Besides castes (whether found among Hindus or others) there may be other communities, groups, classes and denominations which may qualify as backward class of citizens. For example, B in a particular State, Muslim community as a whole may be found socially backward. (As a matter of fact, they are ~ so treated in the State of Karnataka as we!I as in the State of Kerala by their respective State Governments). Similarly, certain sections and denominations among Christians in c Kerala who were included among backward communities notified in the former princely State of Travancore as far back as in 1935 may also be surveyed and so on and so forth. Any authority entrusted with the task of identifying backward classes may well start with the castes. It can D take caste '/!\, apply the criteria of backwardness evolved ._ , by it to that caste and determine whether it qualifies as a backward class or not. If it does qualify, what emerges is a backward class, for the purposes of clause (4) of Article

16. The concept of 'caste' in this behalf is not confined to castes among Hindus. It extends to castes, wherever they E ='< obtain as a fact, irrespective of religious sanction for such practice. Having exhausted the castes or simultaneously with it, the authority may take up for consideration other occupational groups, communities and classes. For . example, it may take up the Muslim community (after excluding those sections, castes and groups, if any, who have already been considered) and find out whether it can be characterised as a backward class in that State or region, as the case may be. The approach may differ from State to State since the conditions in each State may differ from State to State since the conditions in each State may -~ ~ differ. Nay, even within a State, conditions may differ from region to region. Similarly, Christians may also be considered. If in a given place, like Kerala, there are several denominations, sections or divisions, each of these H

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

A groups may separately be considered. In this manner, all the classes among the populace will be covered and that is the central idea. The effort should be to consider all the available groups, sections and classes of society in whichever order one proceeds. Since caste represents B an existing, identifiable, social group spread over an over whelming majority of the country's population, we say one may well begin with castes, if one so chooses, and then go to other groups, sections and classes. We may say, at this stage, that we broadly commend the approach and c methodology adopted by the Justice 0. Chinnappa Reddy Commission in this respect.

783. We do not mean to suggest - we may reiterate - that the procedure indicated hereinabove is the only procedure or method/approach to be adopted. Indeed, D there is no such thing as a standard or model procedure/ approach. It is for the authority (appointed to identify) to adopt such approach and procedure as it thinks appropriate, and so long as the approach adopted by it is fair and adequate, the court has no say in the matter. The E only object of the discussion in the preceding para is to emphasise that if a Commission/Authority begins its process of identification with castes (among Hindus) and occupational groupings among others, it cannot by that reason alone be said to be constitutionally or legally bad. We must also say that there is no rule of law that a test to be applied for identifying backward classes should be .. only one and/or uniform. In a vast country like India, it is simi:iJy.-not practicable. If the real object is to discover and locate backwardness, and if such backwardness is found in a caste, it can be treated as backward; if it is found in any other group, section or class, they too can be treated as backward."

127. On a closer reading of the paragraphs it appears that this Court took note of the fact that several religions do not .--- ~ have any caste. Therefore, the first sentence of para'782 lays

~ ~ ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 309 [DR. ARIJIT PASAYAT, J.]

emphasis to begin somewhere - with some group, class or section. lt also states that there is no set or recognized method and there is no law or other statutory :nstrument prescribing the methodology. In this context, it has also been stated that one can weil begin with castes which represent explicit identifiable social classes or groupings. Therefore, the emphasis was on beginning with castes which represent as explicit identifiable social classes or grouping. Again in paragraph 783, it has been stated that in a vast country like India it is simply not practicable .,#') to fix the test for identifying backward classes. In that background it was held that if the real objective is to discover and locate the c real backwardness and if such backwardness is found in a caste it can be considered as backwardness. Similarly if it is found in any other group, section or class they too can be treated as backward. The intention therefore is clear that if caste is found to be backward it can certainly be treated as backward. To give D any other meaning would be adding or subtracting to what has been specificaily stated in the decision. ,

128. It is also relevant to take note of certain earlier decisions referred to in Indra Sawhney No. 1 case (supra) which throw beacon light on the issue. They are as under: E

1. M.R. Balaji v. State of Mysore, 1963 Supp (1) SCR 439. "Article 15(4) authorises the State to make a special provision for the advancement of any socially and F • educationally backward classes of citizens, as distinguished from the Scheduled Castes and Scheduled Tribes. No doubt, special provision can be made for both categories of citizens, but in specifying the categories, the first category is distinguished from the second. Sub- < G clauses (24) and (25) of Article 366 define Scheduled Castes and Scheduled Tribes respectively, but there is no clause defining socially and educationally backward classes of citizens, and so, in determining the question as to whether a particular provision has been validly made H

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

A under Article 15(4) or not, the first question which falls to be determined is whether the State has validly determined who should be included in these Backward Classes. It seems fairly clear that the backward classes of citizens for whom special provision is authorised to be made are, B by Article 15(4) itself, treated as being similar to the Scheduled Castes and Scheduled Tribes. Scheduled

c Castes and Scheduled Tribes which have been defined were known to be backward and the Constitution-makers felt no doubt that special provision had to be made for their advancement. It was realised that in the Indian Society - there were other classes of citizens who were equally, or may be somewhat less, backward than the Scheduled Castes and Tribes and it was thought that some special provision ought to be made even for them.

D Let us take the question of social backwardness first. By what test should it be decided whether a particular class is socially backward or not? The group of citizens to whom Article 15(4) applies are described as "classes of citizens", not as castes of citizens. A class, according to the dictionary meaning, shows division of society according to status, rank or caste. In the Hindu social structure, caste unfortunately plays an important part in determining the status of the citizen. Though according to sociologists and vedic scholars, the caste system may have originally begun on occupational or functional basis, in course of time, it became rigid and inflexible. The history of the growth of ,.. • caste -system shows that its original functional and occupational basis was later over-burdened with considerations of purity based on ritual concepts, and that led to its ramifications which introduced inflexibility and rigidity. This artificial growth inevitably tended to create a c feeling of superiority and inferiority, and to foster narrow caste loyalties. Therefore, in dealing with the question as • to whether any class of citizens is socially backward or not, it may not be irrelevant to consider the caste of the H

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 311 [DR. ARIJIT PASAYAT. J.]

said group of citizens. In this connection it is, however, necessary to bear in mind that the special provision is contemplated for classes of citizens and not for individual citizens as such, and so, though the caste of the group of citizens may be relevant, its importance should not be exaggerated. If the classification of backward classes of citizens was based solely on the caste of the citizen, it may not always be logical and may perhaps contain the vice of perpetuating the castes themselves.

xx xx xx c Besides, if the caste of the group of citizens was made the sole basis for determining the social backwardness of the said group, that test would inevitably break down in relation to many sections of Indian society which do not recognise castes in the conventional sense 0 known to Hindu society. How is one going to decide whether Muslims, Christians or Jains. or even Lingayats are socially backward or not? ,The test of castes would be inapplicable to those groups, but that would hardly justify the exclusion of these groups in toto from the operation of Article 15(4). It is not unHkely that in l)ome States some E Muslims or Christians or Jains forming groups may be socially backward. That is why we think that though castes in relation to Hindus may be a re!evant factor to consider in determining the social backwardness of groups or classes of citizens, it cannot be made the sole or the F • dominant test in that behalf. Social backwardness is on the ultimate analysis the result of poverty to a very large extent. The classes of citizens who are deplorably poor automatically become socially backward. They do not enjoy a status in society and have, therefore, to be content to G take a backward seat. It is true that social backwardness which results from poverty is likely to be aggravated by considerations of caste to which the poor citizens may belong, but that only shows the relevance of both caste and poverty in determining the backwardness of citizens. H

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

A 2. R. Chitralekha v State of Mysore AIR 1964 SC 1823

Justice Subba Rao referred to the observations in M.R. Balaji v. State of Mysore and obser\.ed: "15. Two principles stand out prominently from the said B observations, namely, (i) the caste of a group of citizens may be a relevant circumstance in ascertaining their social backwardness; and (ii) though it is a relevant factor to determine the social backwardness of a class of citizens, it cannot be the dole or dominant test in that behalf. The c observations extracted in the judgment of the High Court appear to be in conduct with the observations of this Court. While this Court said that caste is only a relevant circumstance and that it cannot be the dominant test in ascertaining the backwardness of a class of citizens, the High Court said that it is an important basis in determining the class of backward Hindus and that the Government should have adopted caste as one of the tests. As the said observations made by the High Court may lead to some confusion in the mind of the authority concerned who may be entrusted with the duty of prescribing the rules for ascertaining the backwardness of classes of citizens within the meaning of Art. 15(4) of the Constitution, we would hasten to make it clear that caste is only a relevant circumstance in ascertaining the backwardness of a class and there is nothing in the judgment of this Court which precludes the authority concerned from determining the social backwardness of a group of citizens if it can do so without reference to caste. While this Court has not excluded caste from ascertaining the backwardness of a class of citizens, it has not made it one of the compelling circumstances affording a basis for the ascertainment of backwardness of a class. To put it differently, the authority concerned may take caste into consideration in ascertaining the backwardness of a group of persons; but, if it does not, its order will not be bad on that account, if it can ascertain the backwardness of a group of persons

,.. ' ASHOKA KLMAR THAKUR v. UNION OF INDIA & ORS. 313 [DR. ARIJIT PASAYAT, J.]

on the basis of other relevant criteria. A

19 ...... The important factor to be noticed in Art. 15(4) is that it does not speak of castes, but only speaks of classes. If the makers of the Constitution intended to take castes also as units of social and educational backwardness, they would have said so as they have said B in the case of the Scheduled Castes and the Scheduled Tribes. Though it may be suggested that the wider expression "classes" is used in clause (4) of Art. 15 as ~ there are communities without castes, if the intention was to equate classes with castes, nothing prevented the c makers of the Constitution from using the expression "backward classes or castes". The juxtaposition of the expression "backward classes" and "Scheduled Castes" in Art. 15(4) also leads to a reasonable inference that the expression "classes" is not synonymous with castes. l_t D may be that for ascertaining whether a particular citizen or , a group of citizens belong to a backward class or not, his or their caste may have some relevance, but it cannot be either the sole or the dominant criterion for ascertaining the class to which he or they belong. E

20. This interpretation will carry out the intention of the Constitution expressed in the aforesaid Articles. It helps the really backward classes instead of promoting the interests of individuals or groups who, though they belong to a particular caste a majority whereof is socially and F > educationally backward, really belong to a class which is socially and educationally advanced. To illustrate, take a caste in a State which is numerically the largest therein. It may be that though a majority of the people in that caste are socially and educationally backward, an effective G minority may be socially and educationally far more advanced than another small sub-caste the total number ... of which is far less than the said minority. If we interpret the expression "classes" as "castes", the object of the Constitution wHI be frustrated and the people who do not H

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

A deserve any adventitious aid may get it to the exclusion of those who really deserve. This anomaly will not arise if, without equating caste with class, caste is taken as only one of the considerations to ascertain whether a person belongs to a backward class or not. On the other hand, if the entire sub-caste, by and large, is backward, it may be included in the Scheduled Castes by following the appropriate procedure laid down by the Constitution.

21. We do not intend to lay down any inflexible rule for the Government to follow. The laying down of criteria for ascertainment of social and educational backwardness of a class is a complex problem depending upon many circumstances which may vary from State to State and even from place to place in a State. But what we intend to emphasize is that under no circumstances a "class" can be equated to a D "caste", though the caste of an individual or a group of individual may be considered along with other relevant factors in putting him in a particular class. We would also like to make it clear A

that if in a given situation caste is excluded in ascertaining a class within the meaning of Art. 15(4) of the Constitution, it does E not vitiate t~e classification if it satisfied other tests.

3. Minor P. Rajendran v State of Madras (1968 (2) SCR 787) "The first challenge is to r. 5 on the ground that it violates F Art. 15 of the Constitution. Article 15 forbids discrimination against any citizen on the grounds only of religion, race, f

caste, sex, place of birth or any of them. At the same time Art. 15(4) inter alia permits the State to make any special provision for the advancement of any socially and educationally backward classes of citizens. The contention G is that the list of socially and educationally backward classes for whom reservation is made under r. 5 is nothing but a list of certain castes. Therefore, reservation in favour of certain castes based only on caste considerations violates Art. 15(1 ), which prohibits discrimination on the H

~ ~ ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 315 [DR. ARIJIT PASAYAT, J.]

ground o caste only. Now if the reservation in question A ~ rad been based only on caste and had not taken into account the social and educational backwardness of the caste in question, it would be violative of Art. 15(1 ). But it must not be forgotten that a caste is also a class of citizens and if the caste as a whole is socially and educationally B backward reservation can be made in favour of such a caste on the ground that it is a socially and educationally backward class of citizens within the meaning of Art. 15(4). ~ Reference in this connection may be made to the observations of this Col.rt in M. R. Balaji v. State of Mysore c ([1963] Supp. 1 S.C.R. 439 at p. 459-460) to the effect that it was not irrelevant to consider the caste of a class of citizens in determining their social and educational backwardness It was further observed that though the caste of a class of citizens may be relevant its importance should not be exaggerated; and if classification of backward classes of citizens was based solely on the . I' caste of the citizen. 1t :night be open to objection. It is true that m the present cases the list of socially and educationally backward classes has been specified by caste. But that does not necessarily mean that caste was the sole consideration and that persons belonging to these castes are also not a class of socially and educationally backward citizens. In its reply. the State of Madras has given the history as to how this list of backward classes was made, starting from the year 1906 and how the list F ~ . has been kept upto date and necessary amendments made therein. It has also been stated that the main criterion for inclusion in the list was the social and educational backwardness of the caste based on occupations pursued by these castes. Because the members of the caste as a G whole were found to be socially and educationally backward, they were put in the list. The matter was finally .. examined after the Constitution came into force in the light of the provisions contained in Art 15(4). As it was found that members of these castes as a whole were H

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

A educationally and socially backward, the list which had been coming on from as far back as 1906 was finally • adopted for purposes of Art. 15(4). In short the case of the State of Madras is that the castes included in the list are only a compendious indication of the class of people in B those castes and these classes of people had been put in the list for the purpose of Art. 15(4) because they had been found to be socially and educationally backward. This is the position as explained in the Affidavit filed on behalf of the State of Madras. On the other hand the c only thing stated in the petitions is that as the list is based on caste alone it is violative of Art. 15(1 ). In view however of the explanation given by the State of Madras, which has not been controverted by any rejoinder, it must be accepted that though the list shows certain castes, the members of those castes are really classes of educationally and socially backward citizens. No attempt was made on behalf of the petitioners/appellant to show that any caste mentioned in A • this list was not educationally and socially backward. No such averment was made in the affidavit in support of their cases, nor was any attempt made to traverse the case put forward on behalf of tl)e State of Madras by filing a rejoinder affidavit to show that even one of the castes included in the list was not educationally and socially backward. In this state of the pleadings, we must come to the conclusion F . that though the list is prepared caste-wise, the castes included therein are as a whole educationally and socially backward and therefore the list is not violate of Art. 15. The challenge to r. 5 must therefore fail. 4) State of Andhra Pradesh v P. Sagar (1968 (3) SCR G 595) "In the context in which it occurs the expression "class" means a homogeneous section of the people grouped together because of certain likenesses or common traits and who are identifiable by some common attributes such H

ASHOKA KUMAR THAKUR v. UNION OF INDIA & OR9 3'7 [OR. ARIJIT PASAYAT, J.]

as status, rank, occupation, residence in a !ocality. race. A reHgion and the like. In determining whether a particular section forms a class, caste cannot be excluded altogether But in the determination of a class a test solely based upon the caste or community cannot also be accepted. By cl. (1) Art. 15 prohibits the State from discriminating against B any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. By cl. (3) of Art. 15 the State is, notwithstanding the provision contained in cl. (1 ), permitted to make special provision for women and children. By cl. (4) a spedal provision for the advancement c of any socially and educationally backward crasses of citizens or for the Scheduled Castes and Scheduled Trlbes is outside the purview of cl. (1 ). But cl. (4) is an exception to cl. (1 ). Being an exception, it cannot be extended so as in effect to destroy the guarantee of cl. (1 ). The Parliament D has by enacting cl. (4) attempted to balance as against ,. the right of equality of citizens the special necessit:es of the weaker sections of the people by allowing a prov~sron to be made for their advancement. In order that effect may be given to cl. (4), it must appear that the beneficiaries of the special provision are classes whic~ are backward E socially and educationaHy and they are other that the Scheduled Castes and Scheduled Tribes, and that the provision made is for their advancement"

5. F:.!iinor A. Peeriafraruppan (i!iinor) v. State of T.i"!., F • (1971) 1 sec 38 :

"25. A caste has always been recognized as a class. In construing the expression "classes of His iv:ajesty's subject" found in Section 153-A of the lndran Penal Code, Wassoodew, J., observed in Narayan Vasudevv. Emperor G AIR 1940 Bomb 379

- t "In my opinion, the expression 'classes of His Majesty's subjects' in Section 153-A of the Code 1s used in restrictive sense as denoting a collection of H

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

A individuals or groups bearing a common and exclusive designation and also possessing common and exclusive characteristics which may be associated with their origin, race or religion, and that the term 'class' within that section carries with it the B idea of numerical strength so large as could be grouped in a single homogeneous community."

26. In para 10, Chapter V of the Backward Classes Commission's Report, it is observed:

c "We tried to avoid caste but we find it difficult to ignore caste in the present prevailing conditions. We wish it were easy to dissociate caste from social backwardness at the present juncture. In modern time anybody can take to any profession. The Brahman taking to tailoring, does not become a tailor by caste, nor is his social status lowered as a Brahman. A Brahman may be a seller of boots and A • shoes, and yet his social status is not lowered thereby. Social backwardness, therefore, is not today due to the particular profession of a person, but we cannot escape caste in considering the social backwardness in India. In para 1f of that Report it is stated: "It is not wrong to assume that social backwardness has largely contributed to the educational backwardness of a large number of social groups."

27. Finally in para 13, the committee concludes with following observations: G "All this goes to prove that social backwardness is mainly based on racial, tribal, caste and denominational differences." i -.

28. The validity of the impugned list of backward cla:;ses came up for consideration before this Court in Rajendran H

{ ~ ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS 319 [DR. ARIJIT PASAYAT, J.]

case and this is what this Court observed therein. A

"The contention is that the list of socially and educationally backward classes for whom reservation is made under Rule 5 nothing but a Hst of certain castes. Therefore. reservation m favour of certain B castes based only on caste considerations violates Article 15(1 ), which prohibits discrimination on the ground of caste only. Now if the reservation in question had been based only on caste and had not taken into account the social and ed;.;cationa: backwardness of the justice in question. it would be c violative of Article 15(1 ). But it must not be forgotten that a caste is also a class of citizens and if the caste as a whole is socially and educationally backward. reservation can be made in favour of such a caste on the ground that it is a socially and educationally D backward class of citizens within the meaning of ,. Article 15(4)."

29. Ra1endran case is a~ authority for the proposition that the classification of backward classes on the basis of castes is within the purview of Article 15(4) 1fthose castes' E are shown to be socially and educationally backward. No further material has been placed before us to show that the reservation for backward classes with which we are herein concerned is not in accordance with Article 15(4) There 1s no gainsaying the fact that there are numerous F

" castes in this country which are socially and educationally backward. To ignore their existence is to ignore the facts of life. Hence we are unable to uphold the contention that the impugned reservat:on is not in accordance with Article 15(4). But all the same the Government stiould not proceed G on the basis that once a class is considered as a

- J ~ backward class it should continue to be backward crass for all times. Such an approach would defeat the very purpose of the reservation because once a class reaches a stage of progress which some modern writers call as H

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

A take off stage then competition is necessary for their future progress. The Government should always keep und.er review the question of reservation of seats and only the classes which are really socially and educationally backward should be allowed to have the benefit of B reservation. Reservation of seats should not be allowed to become a vested interest. The fact that candidates of backward classes have secured about 50% of the seats in the general pool does show that the time has come for a de nova comprehensive examination of the question. It c must be remembered that the Government's decision in this regard is open to judicial review."

6. State of A.P. v. U.S. \I. Bairam, (1972) 1 SCC 660, at page 685 : "82 ...... In the determination of a class to be grouped as backward, a test solely based upon caste or community cannot be accepted as valid. But, in our opinion, though Directive Principles contained in Article 46 cannot be enforced by courts.Article 15(4) will have to be given effect to in order to assist the weaker sections of the citizens, as the State has been charged with such a duty. No doubt, we are aware that any provision made under this clause must be within the well defined limits and should not be on the basis of caste alone. But it should not also be missed that a caste is also a class of citizens and that a caste as such may be socially and educationally backward. If after collecting the necessary data, it is found that the caste as a whole is socially and educationally backward, in our opinion, the reservation made of such persons will have to be upheld notwithstanding the fact that a few individuals in that group may be both socially and educationally above the general average. There :s no gainsaying the fact that there are numerous castes in the country, which are socially and educationally backward and therefore a suitable provision will have to be made by the State, as charged in Article 15(4) to safeguard their interest".

ASHOKA KLMAR THAKUR v. UNION OF INDIA & ORS. 321 [DR. ARIJIT PASAYAT, J.]

94. To conc~ude. though prima fac1e the list of Backward Classes which is under attack before us may be considered to be on the basis of caste, a closer examination will clearly show that it 1s only a description of the group following the particular occupations or professions, exhaustively referred to by the Commission. Even on the assumption that the list is based exclusively on caste, it is clear from the materials before the Comm~ssion and the reasons given by it in its report that the entire caste is socially and educationally backward and therefore their :nclus1on in the list of Backward Classes is warranted by Article 15(4). The groups mentioned therein have been included in the list of Backward Classes as they satisfy the various tests, which have been laid down by this Court for ascertaining the social and educational backwardness of a class."

7. Janki Prasad Parimoo v. State of J&K, (1973) 1 SCC 420, at page 432 :

"22. Articie 15(4) speaks about "socially and educationally backward classes of citizens" while Article 16(4) speaks only of "any backward class citizens". However, it is now settled that the expressron "backward class of citizens" in Article 16(4) means the same thing as the expression ·'any sociaily and educationally backward class of citizens" F t in Article 15(4). In order to qualify for being called a "backward class citizen" he must be a member of a socially and educationally backward class. It is social and educational backwardness of a class which is material for the purposes of both Articles 15(4) and 16(4)." G )()( )()( xx ,,. f

24. It is not merely the educational backwardr,ess or the social backwardness which makes a class of citizens backward; the class identified as a class as above must H

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

A be both educationally and socially backward. In India social and educational backwardness is further associated with economic backwardness and it is observed in Balaji case referred to above that backwardness, socially and educationally, is ultimately and primarily due to proverty. B But if proverty is the exclusive test, a very large proportion of the population in India would have to be regarded as socially and educationally backward, and if reservations ~ are made only on the ground of economic considerations, an untenable situation may arise. Even in sectors which c are recognised as socially and educationally advanced there are large pockets of poverty. In this country except for a small percentage of the population the people are generally poor- some being more poor, others less poor. Therefore, when a social investigator tries to identify socially and educationally backward classes, he may do it with confidence that they are bound to be poor. His chief concern is, therefore, to determine whether the class or group is socially and educationally backward. Though the two words "socially" and "educationally" are used cumulatively for the purpose of describing the backward class, one may find that if a class as a whole is educationally advanced it is generally also socially advanced because of the reformative effect of education on that class. The words "advanced" and "backward" are only relative terms - there being several layers or strata of classes, hovering between "advanced" and "backward", f

and the difficult task is which class can be recognised out of these several layers as been socially and educationally backward." 25 ..... lndeed all sectors in the rural areas deserve encouragement but whereas the former by their. enthusiasm for education can get on without special ... ,. treatment, the latter require to be goaded into the social stream by positive efforts by the State. That accounts for the raison-d'etre. of the principle explained in Balaji case H

ASHOKA KUMAR THAKUR v. UNION OF !NOIA & ORS. 323 · [DR. ARIJIT PASAYAT, J.]

which pointed out that backward classes for whose A improvement special provision was contemplated by Article 15(4) must be comparable to Scheduled Castes and Scheduled Tribes who are standing examples of backwardness socially and educationally. If those examples are steadily kept before the mind the difficulty s in determining which other classes should be ranked as backward classes will be considerably eased." - 8. State of Kera/a at page 367: v. N.M. Thomas, (1976) 2 SCC 310, c "135. We may clear the clog of Article 16(2) as it stems from a confusion about caste in the. terminology of scheduled castes and scheduled tribes. This latter expression has been defined in Articles 341 and 342. A bare reading brings out the quintessential concept that 0 they (sic there) are ·no castes in the Hindu fold but an amalgam of castes, races, groups, tribes, communities or parts thereof found on investigation to be the lowliest and in need of massive State aid and notified as such by the President. To confuse this backwardmost social composition with castes is to commit a constitutional error, E misled by a compendious appellation. So that, to protect harijans is not to prejudice any caste but to promote citizen solidarity. Article 16(2) is out of the way and to extend protective discrimination to this mixed bag of tribes, races, groups, communities and non-castes outside the four-fold F Hindu division is not to compromise with the acceleration of castelessness enshrined in the sub-article. The discerning sense of the Indian Corpus Juris has generally regarded scheduled castes and scheduled tribes, not as caste but as a large backward group deserving of societal G compassion ...... "

9. State of U.P. v. Pradip Tandon, (1975) 1SCC267, at page 273: "14. Article 15(4) speaks of socially and educationally H

ij I

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

A backward classes of citizens. The State described the rural, hill and Uttrakhand areas as socially and educationally backward areas. The Constitution does not enable the State to bring socially and educationally backward areas within the protection of Article 15(4). The B Attorney-General however submitted that the affidavit evidence established the rural, hill and Uttrakhand areas to have socially and educationally backward classes of citizens. The backwardness contemplated under Article 15(4) is both social and educational. Article 15(4) speaks c of backwardness of classes of citizens. The accent is on classes of citizens. Article 15(4) also speaks of Scheduled Castes and Scheduled Tribes. Therefore, socially and educationally backward classes of citizens in Article 15(4) could not be equated with castes. In MR. Balaji v. State of Mysore and State of A.P v. Sagar this Court held that classification of backwardness on the basis of castes would violate both Articles 15(1) and 15(4).

15Copy pinpoint15. Broadly stated, neither caste nor race nor religion can be made the basis of classification for the purposes of determining social and educational backwardness within the meaning of Article 15(4). When Article 15(1) forbids discrimination on grounds only of religion, race, caste, caste cannot be made one of the criteria for determining social and educational backwardness. If caste or religion is recognised as a criterion of social and educational backwardness Article 15(4) will stultify Article 15(1). It is true that Article 15(1) forbids discrimination only on the ground of religion, race, caste, but when a classification takes recourse to caste as one of the criteria in determining socially and educationally backward classes the expression "classes" in that case violates the rule of expressio unius est exclusio alterius. The socially and educationally backward classes of citizens are groups other than groups ba$<;,~! )n caste. .1

16Copy pinpoint16. The expression "socially and educationally backward

ASHOKA KUMAR THAKUR v. UNtON OF INDIA & ORS. 325 [DR. ARIJIT PASAYAT, J.]

classes· in Article 15(4) was explained in Ba/aji case to A be comparable to Scheduled Castes and Scheduled Tribes The reason is that the Scheduled Castes and Scheduled Tribes illustrated social and educational backwardness It is difficult to define the expression "socially and educationally backward classes of citizens". B The traditional unchanging occupations of citizens may contribute to social and educational backwardness. The place of habitation and its environment is also a determining factor !n judging the social and educational backwardness. c

17Copy pinpoint17. The expression "classes of citizens" indicates a homogeneous section of the people who are grouped together because of certain likenesses and common traits and who are identifiable by some common attr;butes. The homogeneity of the class of citizens is social and D educational backwardness. Neither caste nor religion nor place of birth will be the uniform element of common attributes to make them a class of citizens."

10. K.S. Jayasree (Kumari) v. State of Kera/a, (1976) E 3 sec 730, at page 733 :

"13. Backward classes for whose improvement special provisions are contemplated by Article 15(4) are in the matter of their backwardness comparable to scheduled castes and scheduled tribes. This Court has emphasised F :n decisions that the backwardness under Article 15(4) must be both social and educational. In ascertaining social backwardness of a class of citizens, the caste of a citizen cannot be the sole or dominant test. Just as caste_is not the sole or dominant test. similarly poverty is not the G decisive and determining factor of social backwardness. xx xx xx

21. In ascertaining social backwardness of a class of citizens :t may not be irrelevant to consider the caste of H

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

A the group of citizens. Caste cannot however be made the sole or dominant test. Social backwardness is in the ultimate analysis the result of poverty to a large extent. Social backwardness which results from poverty is likely to be aggravated by considerations of their caste. This B shows the relevance of both caste and poverty in determining the backwardness of citizens. Poverty by itself is not the determining factor of social backwardness. Poverty is relevant in the context of social backwardness. • The commission found that the lower income group c constitutes socially and educationally backward classes. The basis of the reservation is not income but social and educational backwardness determined· on the basis of relevant criteria. If any classification of backward classes of citizens is based solely on the caste of the citizen it will perpetuate the vice of caste system. Again, if the classification is based solely on poverty it will not be logical. The society is taking steps for uplift of the people. In such a task groups or classes who are socially and educationally backward are helped by the society. That is the philosophy of our Constitution. It is in this context that social backwardness which results from poverty is likely to be magnified by caste considerations. Occupations, place of habitation may also be relevant factors in determining who are socially and educationally backward classes. Social and economic considerations come into operation in solving the problem and evolving the proper criteria of determining which classes are socially and educationally backward. That is why our Constitution provided for special consideration of socially and educationally backward classes of citizens as also scheduled castes and tribes. G It is only by directing the society and the State to offer them all facilities for social and educational uplift that the problem is solved. It is in that context that·the commission ~ in the present case found that income of the classes of citizens mentioned in Appendix VIII was a relevant factor in determining their social and educational backwardness."

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 327 [DR. ARIJIT PASAYAT, J.]

129. In Chitrelekha's case (supra) it was stated that the caste is the starting point. This is subject of course to the parameters that if the caste itself satisfies the test of backwardness which is implicit and inherent as noted in para 782 of Indra Sawhney No.1 (supra). In that case caste becomes the relevant factor. The view expressed in Chitralekha's case B (supra) was not dissented from in Indra Sawhney No. 1 (supra). In fact Justice Jeevan Reddy in the majority judgment in Indra ... Sawhney No.1 (supra) referred to Chitrelekha's case (supra) at para 704. As noted above in para 782 of Indra Sawhney No. 1 (supra) it has not been held that caste is class. In the said c paragraph it has been stated that individual survey is out of question since Article 16(4) speaks of class protection and not individual protection. In that context also it has been said that it does not mean that one can wind up the process of identification for the castes. It has also been emphasized in the said paragraph that having exhausted the castes or simultaneously t with it, the authority may take up for consideration other occupational groups, communities and classes. If caste is a substitute for class, the question of any simultaneous ' consideration of others does not arise. Therefore, the Court observed that one may well begin with castes if one chooses and then go to other groups, sections and classes. If the Court meant to substitute the word caste with class the question of going to other classes would not arise.

130. Reference may also be made to Akhil Bharatiya F Soshit Karamchari Sangh (Railway) v. Union of India (UOI) and Ors. (1981(1) sec 246) where at para 22 it was noted as follows: "This is not mere harmonious statutory construction of Article 16(1) and (4) but insightful perception of our G constitutional culture, reflecting the current of resurgent India bent on making, out of a sick and stratified society of inequality and poverty, a brave new Bharat. If freedom, justice and equal opportunity to unfold one's own personality, belong alike to bhangi and brahmin, prince H

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

A and pauper, ifthe panchama proletariat is to feel the social transformation Article 16(4) promises, the State must apply equalising techniques which will enlarge their opportunities and thereby progressively diminish the need for props. The success of State action under Article 16(4) consists B in the speed with which result-oriented reservation withers away as, no longer a need, not in the everwidening and everlasting operation of an exception [Article 16(4)] as if it were a super-fundamental right to continue backward all the time. To lend immortality to the reservation policy is to c defeat its raison de'etre; to politicise this provision for communal support and Party ends is to subvert the solemn undertaking of Article16(1 ), to casteify 'reservation' even beyond the dismal groups of backward-most people, euphemistically described as SC & ST, is to run a grave constitutional risk. Caste, ipso facto, is not class in a D secular State."

131. Much emphasis has been laid on the use of the word 'only'. It is to be noted that while the respondents contend that where it is demonstrated that caste is not the only consideration the permissible provision will operate. Reference was made to Venkataraman's case (supra). As has been rightly contended by learned counsel for the petitioners the true effect of the word 'only' has been clarified in the decision itself.

132. It is unnecessary to decide as it has been contended by learned counsel for the petitioners whether the concept of strict scrutiny is a measure of judicial scrutiny as highlighted by the conditions in India. It is submitted that label is not relevant.

133. The ultimate object is the eradication of castes and that is the foundation for reservation. While considering the method adopted for eradication by adopting the process of reservation indirectly the facet of strict scrutiny comes in. The strict scrutiny test was applied in the background of Article 19 vis-a-vis compelling State needs. The principle was recognized in Chintaman Rao v. The State ot /i/!adhya Pradesh (1950 SCR H

ASHOKA KUMAR THAKUR v. UNION OF !NOIA & ORS. 329 [DR ARIJIT PASAYAT J]

759). It was inter-alia quoted as follows: A "The question for decision is whether the statute under the guise of protecting public •nterests arbitrarily interferes with private business and imposes unreasonab!e and unnecessarily restrictive regulations upon lawful occupation; '.n other words, whether the total prohibition of 8 carrying on the business of manufacture of bid is within the agricultural season amounts to a reasonable restriction on the fundamental rights mentioned in article 19 (1 )(g) of the Constitution. Unless it is shown that there is a reasonable re!ation of the provisions of the Act to the C purpose •n view, the right of freedom of occupation and business cannot be curtai!ed by it The phrase "reasonable restriction" connotes that the limitation imposed on a person in enjoyment of the right 0 should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The word "reasonable" implies intelligent care and deliberation, that is, the choice of a course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of E reasonableness and unless it strikes a proper balance between the freedom guaranteed in Article 19(1)(g) and the social control permitted by clause (6) of Article19, it must be held to be wanting in that quality" F

134. Again in State of Madras v VG. Row (AIR 1952 SC 196) it was observed as follows: "13. Before proceeding to consider this question we think it right to point out, what is sometimes overlooked. that our Constitution contains express provisions for judicial G review of legislation as to its conformity with the constitution unlike as in America where tre Supreme Court has assumed extensive power of reviewing legislative acts under cover of the widely interpreted "due process" clause in the Fifth and Fourteenth An:endments. If, tren. the courts H

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

A in this country face up to such important and none too easy task, it is not out of any desire to tilt at legislative authority in a crusader's spirit, but in discharge of a duty plainly laid upon them by the Constitution. This is especially true as regards the "fundamental rights" as to which this B Court has been assigned the role of a sentinel on the qui vive. While the Court naturally attaches great weight to the legislative judgment, it cannot dessert its own duty to determine finally the constitutionality of an impugned statute. We have ventured on these obvious remarks c because it appears to have been suggested in some quarters that the courts in the new set up are out to seek clashes with the legislatures in the country".

135. At the outset, it may be pointed out that the stand of petitioners is that the primary consideration in selection of candidates for admission to the higher educational institutions must be merit. The object of any rules, which may be made for regulating admissions to such institutions therefore, must be to secure the best and most meritorious students. The national interest and the demand of universal excellence may even override the interests of the weaker sections. In this context, Krishna Iyer J aptly observed: "To sympathise mawkishly with the weaker sections by selecting substandard candidates, is to punish society as a whole by denying the prospect of excellence, say, in hospital service. Even the poorest, when stricken by critical illness, needs the attention of super-skilled specialists not humdrum second rates".

136. Thus, the interest of no person, class or region can be higher than that of the nation. The philosophy and pragmatism of universal excellence through equality of opportunity for education and advancement across the nation is part of the constitutional creed. It is, therefore, the best and most meritorious ,. students that must be selected for admission to technical institutions and medical colleges and no citizen can be regarded H

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 331 [DR. ARIJIT PASAYAT, J.]

as outsider in the constitutional set-up without serious detriment A i to the 'unity and integrity' of the nation. The Supreme Court has laid down that so far as admissions to post graduate course such as MS, MD and the like are concerned, it would be imminently desirable not to provide for any reservation based on residence or institutional preference. However, a certain B percentage of seats are allowed to be reserved on the ground of institutional preference. But even in this regard, so far as super specialties such as neurosurgery and cardiology are concerned there should be no reservation at all even on the basis of institutional preference and admissions should be granted purely c on all-India basis. Further, classification made on the basis of super-specialties may serve the interests of the nation better, though interests of individual states may to a small extent, be affected.

137. The need of a region or institution cannot prevail at the highest scale of specialty where the best skill or talent must be hand-picked by selecting them according to capability. At the level of Ph.D., M.D. or levels of higher proficiency where international measure of talent is made, where losing one great scientist or technologist in the making is a national loss, the considerations we have expanded upon as important, lose their potency.·

138. The inevitable conclusion is that the impugned Statute can be operative only after excluding the creamy layer from identifiable OBCs. There has to be periodic review of the classes F '\) who can be covered by the Statute. The periodicity should be five years To strike constitutional balance there is need for making provision for suitable percentage for socially and economica!ly backward classes in the 27% fixed. G

139. To sum up, the conclusions are as follows: (1) For implementation of the impugned Statute creamy layer must be excluded. (2) There must be periodic review as to the desirability H

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

A of continuing operation of the Statute. This shall be ~ done once in every five years. (3) The Central Government shall examine as to the desirability of fixing a cut off marks in respect of the candidates belonging to the Other Backward Classes B (OBCs). By way of illustration it can be indicated that five marks grace can be extended to such candidates below the minimum eligibility marks fixed for general categories of students. This would ensure quality and merit would not suffer. If any seats remain vacant c after adopting such norms they shall be filled up by candidates from general categories. (4) So far as determination of backward classes is concerned, a Notification should be issued by the Union of India. This can be done only after exclusion of the creamy layer for which necessary data must be obtained by the Central Government from the State Governments and Union Territories. Such Notification is open to challenge on the ground of wrongful exclusion or inclusion. Norms must be fixed keeping in view the peculiar features in different States and Union Territories. (5) There has to be proper identification of Other Backward Classes (OBCs.). For identifying backward classes, the Commission set up pursuant to the directions of this Court in Indra Sawhney No. 1 ~

has to work more effectively and not merely decide applications for inclusion or exclusion of castes. While determining backwardness, graduation (not technical graduation) or professional shall be the standard test yardstick for measuring backwardness. (6) To strike the constitutional balance it is necessary t' and desirable to ear-mark certain percentage of seats out of permissible limit of 27% for socially and economically backward classes.

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 333 [DR. ARIJIT PASAYAT, J.]

(7) In the Constitution for the purposes of both Articles A 15 and 16. caste is not synonyms with class and this is clear from the paragraphs 782 and 783 of Indra Sawhney No. 1. However, when creamy layer is excluded from the caste, the same becomes an identifiable class for the purpose of Articles 15 and B 16.

(8) Stress has to be on primary and secondary education so that proper foundation for higher education can be effectively !aid. c (9) So far as the constitutional amendments are concerned:

(i) Articles 16(1) and 16(4) have to be harmoniously construed. The one 1s not an exception to the other. D

(ii) Articles 15(4) and 15(5) operate in different fields. Article 15(5) does not render Article 15(4) inactive or inoperative.

(10) While interpreting the constitutional prov1st0ns, E foreign decisions do not have great determinative value. They may prov!de materials for deciding the question regarding constitutionality. In that sense. the strict scrutiny test is not applicable and indepth scrutiny has to be made to decide the constitutiol"ality or otherwise, of a statute. (11) If material is shown to the Central Government that the Institution deserves to be included :n the Schedule, the Central Government must take an appropriate decision on the basis of mater:a1s placed and on examining the concerned issues as to whether Institution deserves to be included in the Schedule. (12) Challenge relating to private ur-aided educationai institutions has not been examined because ro such H

' p . 334 SUPREME COURT REPORTS [2008] 4 S.C.R.

A institution has laid any challenge. It is to be noted ~ that the petitioners have made submissions in the background of Article 19(6) of the Constitution. Since none of the affected institutions have made any challenge we do not propose to consider it necessary B to express any opinion or decide on the question.

140. In view of the above-said conclusions, the writ petitions and the Contempt Petition (Civil) No.112/2007 in W.P. (C) No.265/2006 are disposed of.

c DALVEER BHANDARI, J. 1. The 93rct Amendment to the Constitution directly or indirectly affects millions of citizens of this country. It has been challenged in a number of writ petitions. This Court heard these petitions intermittently over the course of several months. Appearing on behalf of petitioners and respondents, the country's finest legal minds assisted us. D '

2. The fundamental question that arises in these writ petitions is: Whether Article 15(5), inserted by the 93rct ~ Amendment, is consistent with the other provisions of the Constitution or whether its impact runs contrary to the E Constitutional aim of achieving a casteless and classless society?

3. On behalf of the petitioners, Senior Advocate Mr. F.S. Nariman, eloquently argued that if Article 15(5) is permitted to remain in force, then, instead of achieving the goal of a casteless F and classless society, India would be converted into a caste- .... ridden society. The country would forever remain divided on caste lines. The Government has sought to repudiate this argument. Petitioners' argument, however, echoes the grave concern of our Constitution's original Framers. G

4. On careful analysis of the Constituent Assembly and the Parliamentary Debates, one thing is crystal clear: our leaders have always and unanimously proclaimed with one voice that our constitutional goal is to establish a casteless and classless society. Mahatma Gandhi said: "The caste system as we know H

\ ~ ASHOKA KUMAR "J:HAKUR v. JNION OF INDIA & ORS. 335 [DALVEER BHANDARI, J.]

is an anachronism. It must go if both Hinduism and India are to live and grow from day to day." The first Prime Minister. Pt. Jawahar Lal Nehru, said that "no one should be left in any doubt that the future Indian Society was to be casteless and classless". Dr. B. R. Ambedkar called caste "anti-national".

5. After almost four decades of independence, while participating in the Parliamentary Debate on the Mandal issue, then Pnrne Minister Shri Raj!v Gandhi on 5th September, 1990 again reiterated the same sentiments: "I think, nobody in this House will say that the removal of casteism is not part of the national goal, therefore, it would be in the larger interest of the nation to get rid of the castes as early as possib!e". It is our bounden duty and obligation to examine the validity of the 93rd Amendment :n the bad 3round of the Preamble and the ultimate goal that runs through the pages of the Constitution. D

6. To attain an egalitarian society, we have to urgently remove socio-economic inequalities. All learned counsel for the petitioners asserted that we must deliver the benefits of reservation to only those who really deserve it. This can oniy be done if we remove the creamy layer. Learned counsel for the Union of India and other respondents opposed this assertion. E The principle of creamy layer emanates from the broad doctrine of equality itself. Unless the creamy layer is removed from admissions and service reservation, the benefits would not reach the group :n whose name the impugned legislation was passed -the poorest of the poor. Therefore, including the creamy layer F would be inherently unjust.

7. Creamy layer exclusion, however, is just one of the many issues raised by the parties. I need to examine various facets of this case in order to decide the validity of the 93rd Amendment G and the Central Educational Institutions (Reservation in Admission) Bill, 2006 (passed as Act 5 of 2007) (hereinafter called the "Reservation Act"). I shall focus my analysis on the following issues:

1A. Whether the creamy layer be excluded from the H

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

A 93.rd Amendment (Reservation Act)?

18Copy pinpoint18. What are the parameters for creamy layer exclusion? 1C. Is creamy layer exclusion applicable to SC/ST?

B 2. Can the Fundamental Right under Article 21A be accomplished without great emphasis on primary education?

3. Does the 93rd Amendment violate the Basic c Structure of the Constitution by imposing reservation on unaided institutions?

4. Whether the use of caste to identify SEBCs runs afoul of the casteless/classless society, in violation of Secularism. D

5. Are Articles 15(4) and 15(5) mutually contradictory, such that 15(5) is unconstitutional?

6. Does Article 15(5)'s exemption of minority institutions from the purview of reservation violate Article 14 of the Constitution?

7. Are the standards of review laid down by the U.S. Supreme Court applicable to our review of affirmative action under Art 15(5) and similar provisions?

8. With respect to OBC identification, was the Reservation Act's delegation of power to the Union Government excessive?

G 9. Is the impugned legislation invalid as it fails to se: a time-limit for caste-based reservation? .J At what point is a student no longer Edu1..3tionally Backward and thus no longer ei.g1ble fur special provisions under 15(5)?

\ ~ ASHOKA KUMAR THAKUR v. UNION OF !NOIA & ORS 337 [DALVEER BHANDARI. ..;.]

> 11. Would it be reasonable to balance OBC • reservation with societal interests by instituting OBC cut-off marks that are slightly lower than that of the general category?

8. I have carefully exalT'ined the pieadings ard written submissions submitted at !ength. Admittedly, the provis:ors of 8 the Constitution and the Preamble lead to the irres stible conclusion trat the Nation ras always wanted to act"ieve a casteless and classless society. !f we perm:t tris ilT'pugred legislation to be 'mpler1ented, I alT' afraid. 'r~stead of a casteiess and classless India, we would be left with a caste-ridden society C

9. The first place where caste car. be eradicated is the classroom. It all starts with education. !n other words. if you belong to a lower caste but are weil qualified. hardly anyone wouid care about your caste. Free and cornpi.;lsory education is row a 0 fundamental right under Article 2~ A. ;re State is duty bound to implement this Article on a priority basis. There has been grave laxity :nits 'mplementation. This laxity adversely affects almost every walk of life. In my opinion. nothirg is more important for the Urion of India than to :mplement this cr'tical Article. E

10. I direct the Union of India to set a time·:ilT'it withir which this Article is going to be completely implemented . .,.his time- lilT'it Must be set within six ~ontlis 'r Ct's" '"'r ' 1"'c ~ .,f ·rr1·., fails to fix the time-limit, then perhaps this work will also have to be done by the Court. F-

11. The Union of India should appreciate in proper prospective that the root cause of social and edi.;catonal backwardness 1s poverty. ,A !I efforts have to be "lade to eradicate this fundamental probler:' i..,;nless the crear;y layer is removed. tre benefit would not reach those who are in need G Reservat:or sends the wrong message f veryoody is Kev !o get tre berefit of backward class <.!,L;s ·r '.'•"' ,·1a.~• '" 'w;i11y he!p the sociaily educatona 1y a:id eccr101":' ca y bacw11'1 1

classes. we need to earnest:y focus or 1mp!e"1e"'. "J : " 21 A. We mi.;st provide educatiora1 opportun:ty r~'J("'. .' j , '

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

A Only then will the caste less/classless society be within our grasp. Once children are of college-going age, it is too late for "' reservation to have much of an effect. The problem with the Reservation Act is that most of the benefi9iaries will belong to the creamy layer, a group for which no benefits are necessary. B Only non-creamy layer OBCs can avail of reservations in college admissions, and once they graduate from college they should no longer be eligible for post-graduate reservation. 27% is the upper limit for OBC reservation. The Government need not ~ always provide the maximum limit. Reasonable cut off marks c should be set so that standards of excellence greatly effect. The unfilled seats should revert to the general category.

12. These issues first arise out of the text of the impugned Amendment. Reservation for Socially and Educationally Backward Classes of Citizens (SEBCs) was introduced by the D 93rd Amendment. Article 15(5) states: "Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special .. provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the E Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than minority educational institutions referred to in clause F (1) of article 30." , ~

• Excluding the Creamy Layer from receiving special benefits:

13. Affirmative action is employed to eliminate substantive social and economic inequality by providing opportunities to those who may not otherwise gain admission or employment. Articles 14, 15 and 16 allow for affirmative action. To promote Article 14 egalitarian equality, the State may classify citizens ~

into groups, giving preferential treatment to one over another. H When it classifies, the State must keep those who are unequal

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 339 [DALVEER BHANDARI, J.]

). out of the same batch to achieve constitutional goal of egalitar:an A • society. • Arguments of the Union of India in regard to the creamy layer:

14. Mr. G.E. Vahanvati, learned Solicitor General and i11lr B K. Parasaran, Senior Advocate appearing for the Government contend that creamy layer exclusion is a bad poiicy. They argue that if you exclude the creamy layer, there would be a shortage of candidates who can afford to pay for higher education. This argument harms rather than helps the Government. It cannot be c seriously disputed that most of the college-going OB Cs belong to the creamy layer for whom reservations are unnecessary: they have the money to attend good schools, tuitions and coaching courses for entrance exams. Naturally, these advantages resu~t m higher test scores vis-a-vis the non-creamy layer OBCs. The D result is that creamy OB Cs would fill the bulk of the OBC quota, leaving the non-creamy no better off than before. If the creamy '... get most of the benefit, why have reservations in the first place? Learned Senior Counsel for petitioners, Mr. Harish Salve, is justified in arguing that before carrying out Constitutional Amendments the Union of India must clearly target its E beneficiaries. He rightly submitted that we should not make law first and thereafter target the law's beneficiaries. Failure to exclude the creamy layer is but one example of this problem. . F " 15. The Government further submitted that the creamy layer "' should be included to ensure that enough qualified candidates fill 27% of the seats reserved to OBCs. The Oversight Committee disagreed. The Committee relied on data from Karnataita to disprove the contention that seats go unfilled when the c•earry G ls excluded·" ... the apprehension that seats will not be filled up if the creamy layer is excluded has been comprehensively shown . ~ to be unfounded." [See: Oversight Committee, Vol. 1, Sept

2006. p 69, para 1. 7 ] We shall later review the Oversight Committee opinion ;n greater detail. H

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

A The reasons for which the creamy layer should be excluded: •"

16. At the outset, I note that the Parliament rejected the Hindi version of the Reservation Act. The Hindi version of the Reservation Act would have expressly excluded the creamy layer. B [See: Prof. Rasa Singh Rawat's comments in the Parliamentary Debate on the Reservation Act, 14 December 2006]

17. The Parliament eventually passed the English version in which the creamy layer is not mentioned, making its intention c clear. It wanted to include the creamy layer. For all practical purposes, it did so. Therefore, I will treat it as included. Counsel for the Union of India argued that it is still theoretically possible for the executive to exclude the creamy layer. Much is possible in theory. Given the executive's failure to take action since the time the Act was passed, I find this argument unavailing. D

18. With the Parliament's intention in view, I will deal in some detail with the reasons as to why the creamy layer should + . be excluded from reservation. I do so because I want to emphasize that the creamy layer must never be included in any E affirmative action legislation. It also becomes imperative to gather the original Framers' and the Framers' intention. At the outset, we recognise a distinction between the original Framers and the Framers, i.e., Members of the First Parliament. Members of the Constituent Assembly and the First Parliament F were one in the same. But the distinction is necessary to the ... ~

extent that the First Parliament deviated from its constitutional ... philosophy. By examining the debate on Article 15(4), I may a~certain whether the Framers wanted to exclude the creamy !J11e1 { j

19Copy pinpoint19. The First Parliament believed that "economic" was inc1uded in the "social" portion of "socially and educationally b::i.-kward." Prime Minister Nehru said as much: ~

"One of the main amendments or ideas put forward is in regard to the addition of the word "economical". Frankly, H

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 341 [DALVEER BHANDARI, J.]

~ the argument put forward, with slight variation, I would A • accept, but my difficult is this that when we chose those particular words there, "for the advancement of any socially and educationally backward classes", we chose them because they occur in article 340 and we wanted to bring them bodily from there. Otherwise I would have had not B the slightest objection to add "economically". But if I added "economically" I would at the same time not make it a kind ~)- of cumulative thing but would say that a person who is lacking in any of these things should be helped. "Socially" is a much wider word including many things and certainly c including economically. Therefore, I felt that "socially and educationally" really cover the ground and at the same • time you bring out a phrase used in another part of the Constitution in a slightly similar context." (See: the Parliamentary Debates on First Amendment Bill, 1 June D 1951, p. 9830.) Had it not been for a desire to achieve symmetry in drafting, "economically" would have been included. Had this been done, the creamy layer would have been excluded ab initio.

20Copy pinpoint20. In the 15(4) debate, Shri M.A. Ayyangar's wanted to add "economic" to ensure that the rich SEBCs would not receive special provisions. "I thought "economic" might be added so that rich men may not take advantage of this provision. In my part of the F ~

country there are the Nattukkottai Chettiars who do not " care to have English education. but they are the richest of the lot ... should there be s12ecial reservation for them?" (See: The Parliamentary Debates on First Amendment Bill, 1June1951, p. 9817.) G (emphasis added). . ~ This hesitation aside, Shri M.A. Ayyangar was satisfied that the term "economic" was included in the term "social." The Framers were worried about creamy layer inclusion, albeit under H

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

A a different name. They wanted to ensure that the "richest of the .... [backward] lot" would not benefit from special provisions. With ' their sentiment on our side, we are even more confident that we should strike out in the direction that strikes down laws that include the creamy layer. B • Including the creamy layer means unequals are treated as equals in violation of the right to equality under Articles 14, 15 and 16.

21Copy pinpoint21. In the present case, Dr. Rajeev Dhavan, the learned .f -

c Senior Counsel and Mr. S.K. Jain, the learned counsel vehemently argued on behalf of petitioners that it is precisely because equality is at issue that the creamy layer must be . removed. The creamy layer has been the subject matter of a .L

number of celebrated judgments of this Court. In a seven Judge Bench in State of Kera/a & Another v. N. M. Thomas & Others D (1976) 2 SCC 310, Justice Mathew, in his concurring judgment, dealt with the right to equality in the following words: "66. The guarantee of equality before the law or the equal opportunity in matters of employment is a guarantee of ' E something more than what is required by formal equality. It implies differential treatment of persons who are unequal. Egalitarian principle has therefore enhanced the growing belief that Government has an affirmative duty to eliminate inequalities and to provide opportunities for the exercise of human rights and claims .......... " ~

(emphasis added) ~

22Copy pinpoint22. In Indra Sawhney & Others v. Union of India & Others ( 1992) Supp (3) SCC 217, (hereinafter referred to as G Sawhney /), this Court has aptly observed that reservation is given to backward classes until they cease to be backward, and not indefinitely. This Court in para 520 (Sawant, J.) has stated as under: "Society does not remain static. The industrialisation and H the urbanisation which necessarily followed in its wake,

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 343 [OALVEER BHANDARI, J.]

the advance on political, social and economic fronts made A •• particularly after the commencement of the Constitution, the social reform movements of the last several decades, the spread of education and the advantages of the special provisions including reservations secured so far, have all undoubtedly seen at least some individuals and families B in the backward classes, however small in number, gaining sufficient means to develop their capacities to compete with others in every field. That is an undeniable fact. Legally, therefore, they are not entitled to be any longer called as part of the backward classes whatever their c original birthmark. It can further hardly be argued that once a backward class, always a backward class. That would defeat the very purpose of the special provisions made in the Constitution for the advancement of the backward classes, and for enabling them to come to the 0 level of and to compete with the forward classes, as equal citizens." •... (emphasis supplied).

23Copy pinpoint23. For our purposes, creamy layer OBCs and non-creamy layer OBCs are not equals when it comes to moving up the socio- E economic ladder by means of educational opportunity. Failing to remove the creamy layer treats creamy layer OBCs and non- creamy layer OBCs as equals. In the same paragraph, Justice Sawant stated that' ... to rank [the creamy layer] with the rest of the backward classes would ... amount to treating the unequals F equally... " violating the equality provisions of the Constitution.

24Copy pinpoint24. According to the Kerala Legislature, there was no creamy layer in Kerala. The legislation was challenged in Indra Sawhney v Union of India & Others (2000) 1 SCC 168, G (hereinafter referred to as Sawhney II). The Court struck the two provisions that barred creamy layer exclusion, concluding that non-inclusion of the creamy-layer and inclusion of forward castes in reservation violates the right to equality under Article 14 and the basic structure. H

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

25Copy pinpoint25. In Sawhney II at para 65, the Court had gone to the .l, • extent of observing that not even the Parliament, by constitutional amendment, could dismantle the basic structure by including the creamy layer in reservation: "What we mean to say is that the Parliament and the B 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. -f ... Whether the creamy layer is not excluded or whether forward castes get included in the list of backward classes, c the position will be the same, namely, that there will be a breach not only of Article 14 but of the basic structure of the Constitution. The non-exclusion of the creamy layer or the inclusion of forward castes in the list of backward classes will, therefore, be totally illegal. Such an illegality offending the root of the Constitution of India cannot be allowed to be perpetuated even by constitutional amendment." ~ .

26Copy pinpoint26. By definition, the creamy and non-creamy are unequal when it comes to schooling. Relative to their non-creamy counterparts, the creamy have a distinct advantage in gaining admission. While the creamy and non-creamy are given equal opportunity to gain admission in the reserved category, this equality exists in name only. Will the OBC daughter of a Minister, IAS officer or affluent business owner attend better schools than her non-creamy counterpart? Yes. Will she go to private tuitions ~ . unaffordable to her non-creamy counterpart? Certainly. And where will she cram for the all-decisive entrance exams? In a coaching center? Of course. Will she come home from school to find a family member waiting? Probably. And when she seeks help from her parents, are they educated and able to give superior assistance with schoolwork? Most likely.

27Copy pinpoint27. I take judicial notice of these anecdotes, for they flesh out a simple fact: she has all the resources that her non-creamy "'' counterpart lacks. It is no surprise that she will outperform the H

{~ ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 345 [DALVEER BHANDARI, J.]

non-creamy. On average, her lot will take the reserved seats. A ~ • 28. I cannot consider the OBC Minister's daughter and the non-creamy OBC as equals in terms of their chances at earning a university seat; nor can I allow them to be treated equally. To :ump them in the same category is an unreasonable classification. Putting them in head-to-head competition for the 8 same seats violates the right to equality in Articles 14, 15 and 16.

29Copy pinpoint29. In its conclusion at para 122, M. Nagaraj & Others v. Union of India & Others (2006) 8 SCC 212, a Constitution c Bench of this Court while dealing with Article 16(4A) and 16(48) with regard to SC and ST observed as under:-

"We reiterate that the ceiling limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements •I, without which the structure of equality of opportunity in Article 16 would collapse." It was contended that Nagraj is obiter in regard to creamy layer exclusion. According to Nagraj, reservation in promotion for SC/ST is contingent on exclusion of the creamy layer. (paras 122, 123 and 124). The contention of the Union of India cannot be accepted. The discussion regarding creamy layer is far from obiter in Nagraj. If the State fails to exclude the SC/ST creamy F .. layer, the reservation must fall. Placing this contingency in the conclusion makes the discussion of creamy layer part of the ratio.

30Copy pinpoint30. In sum. creamy layer inclusion violates the right to equality. That is. non-exclusion of creamy layer and inclusion of G forward castes in reservation violates the right to equality in Articles 14. 15 and 16 as well as the basic structure of the :::::c~sHution. -~ If you belong to the creamy layer, you are not SEBC. H

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

31Copy pinpoint31. One of the prominent questions raised in the writ ... I petitions is whether creamy layer OBCs should be considered socially and educationally backward under the provisions of Article 15(5). While interpreting this provision, a basic syllogism must govern our decision. If you belong to the creamy layer, you B are socially advanced and cannot be given the benefit of reservation. (See: Sawhney I).

32Copy pinpoint32. Once one is socially advanced, he cannot be socially and educationally backward. He who is socially forward is likely ~ ..,. to be educationally forward as well. If either condition (social or c educational) goes unmet, one cannot qualify for the benefit of reservation as SEBC. Being socially advanced, the creamy layer is not socially backward pursuant to Articles 15(4) and 15(5) of the Constitution.

33Copy pinpoint33. Even the text of Articles 15(4) and 15(5) provides for creamy layer exclusion. In this sense, one could say that the term "creamy layer" is synonymous with "non-SEBC". -J

34Copy pinpoint34. Similar interpretation is given to "backward classes" under Article 16(4). The Parliament could not reasonably make reservation for non-backwards. Such a Bill on the face of it would violate the Constitution. In Sawhney I, the Government of India issued an O.M. on 13 August 1990, reserving 27% of Government posts to SEBCs. Writing for the majority, at para 792 of page 724, Justice Reddy explained that the creamy layer was not SEBC. "The very concept of a class denotes a number of persons " having certain common traits which distinguish them from the others. In a backward class under Clause (4) of Article 16, if the connecting link is the social backwardness, it should broadly be the same in a given class. If some of the members are far too advanced socially (which in the context, necessarily means economically and, may also mean educationally) the connecting thread between them ~- and the remaining class snaps. They would be misfits in the class. After excluding them alone, would the class be

- '~ ASHOKA KUMAR THAKUR v< UNION OF INDIA & ORS. 347 [DALVEER BHANDARI, J.]

a compact class. In fact, such exclusion benefits the truly A •• backward"

Even though the O<M. was silent on the issue of creamy layer, Justice Reddy excluded the creamy layer at para 859(3)(d). The O M could not go into effect until the creamy layer was excluded< [para 861 (b}]. Exclusion was only in regard to OBC; B SC/ST were not touched. (para 792). In Sar1hney I, the entire discussion was confined only to Other Backward Classes<

-- ~ Similarly, in the instant case, the entire discussion was confir.ed only to Other Backward Classes. Therefore, I express no opinion with regard to the app!icability of exclusion of creamy layer to c the Scheduled Castes and Scheduled Tribes.

• Creamy Layer OBCs are not educationally backward

35Copy pinpoint35. In addition to social backwardness, the text of 15(5) D demands that recipient& are also educationally backward. Even ' though the creamy layer's status as socially advanced is " sufficient to disqualify them for preferential treatment, the creamy layer from any community is usually educated and will want the same for its children. They know that education is the key to E success. For most, it made them. People belonging to this group do not require reservation.

• Creamy Layer Inclusion Robs the Poor and Gives to the Rich: F

36Copy pinpoint36. In a number of judgments, the view has been taken "' that the creamy layer's inclusion takes from the poor and gives to the rich.

37Copy pinpoint37. Our Courts in following cases had taken the same view. [See: N.fti Thomas (supra), para 124 (seven-Judge Bench); G K. C. Vasa nth Kumar &Another v. State of J(arnatalca. 1985 (Supp) SCC 714. paras 2, 24 and 28 (five-Judge Bench); - ~ Sawhney /., paras 520, 793 and 859(3)(d) (nine-Judge Bench); Asholca Kumar Thakur v< State of Bihar & Others (1995) 5 SCC 403, paras 3, 17 and 18 (two-Judge Bench); Sawhney H

38Copy pinpoint38. In Akhil Bharatiya Soshit Karamchari Sangh B (Railway) v. Union of India & Others (1981) 1 SCC 246, Justice Iyer had this to say about the creamy layer:

"92 .... Maybe, some of the forward lines of the backward ~ ........ classes have the best of both the worlds and their c electoral muscle qua caste scares away even radical parties from talking secularism to them. We are not concerned with that dubious brand. In the long run, the recipe for backwardness is not creating a vested interest in backward castes but liquidation of handicaps, social and economic, by constructive projects. All this is in another street and we need not walk that way now. 94 .... Nor does the specious plea that because a few " . harijans are better off, therefore, the bulk at the bottom deserves no jack-up provisions merit scrutiny. A swallow does not make a summer. Maybe, the State may, when social conditions warrant, justifiably restrict harijan benefits to the harijans among the harijans and forbid the higher harijans from robbing the lowlier brethren."

39Copy pinpoint39. Creamy layer inclusion was not enough to strike an entire provision in this case. He suggests that creamy layer , exclusion is an issue to be dealt with at a later time. "98. The argument that there are rich and influential harijans who rob all the privileges leaving the serf-level sufferers as suppressed as ever. The Administration may well innovate and classify to weed out the creamy layer of SCs/ STs but the court cannot force the State in that behalf." , Thus, Justice Iyer does not mandate creamy layer ~

exclusion; rather, he leaves the question to the State. H

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 349 [DALVEER BHANDARI, J.]

•• 40. Apart from judicial pronouncements, the Oversight A Committee suggested that failure to exclude the creamy layer would lead to unfair results. The Committee was cautious to reach a conclusion.

41Copy pinpoint41. In its Report, it stated that "... the decision taken was to leave the matter to the Government of India, keeping in mind B the fact that the 'creamy layer' 1s not covered in the Reservation Act, 2006." (See: Oversight Committee, Vol. 1, p. 33 and 4.2.) ·~

42Copy pinpoint42. Before "leaving" the matter to the Government. the Committee nevertheless made its recommendation: "In case it c is decided not to exclude the 'creamy layer', the poorest among the OBCs will be placed at a disadvantage." (emphasis added). (See. Oversight Committee at Appendix I in its Report at p. 70, para 1.13). At page 69 of Vol. I of its Report, the Committee offered data to support this conclusion: D . ~ "1.6: Appendix-2 examines in detail the status of the socio- economic development of OBCs in respect of such parameters as relate to poverty, health, education, unemployment, workforce participation, land ownership etc. The analysis of the NSS data clearly brings out that inclusion of the creamy layer will result E in reserved seats getting pre-empted by the OBCs from the top two deciles at the cost of the poorer income deciles of the OBCs. Thus almost all rural OBCs as well as Urban OBCs from the Northern, Central and Eastern regions of India will be deprived of the intended benefits of reservation. F [emphasis added]

1. 7: On the other hand, it was argued that if the creamy layer of OBCs is denied access to reservation in education pari- passau with the principle applied in the case of employment, G the reserved seats may not get filled up, again defeating the ., purpose of bringing in reservation for the OBCs. In a case study > from Karnataka (included in Annexure X), it has been clearly shown that the OBC quotas have been utilized without any compromise with academic excellence in a situation where the H