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

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A creamy layer has been excluded. The apprehension that seats .-\ j will not be filled up if the creamy layer is excluded has been comprehensively shown to be unfounded. The case study shows that the performance of students from below the creamy layer is outstanding and much better than general category students."

43Copy pinpoint43. The Committee could have played it safe. Despite some opposition, the Committee included its opinion on the matter. And that opinion is unequivocal: the creamy must be excluded. ~

c 44. What is allegedly for the poor goes to the rich. Is that reasonable? Trumpeted by the Parliament as a "... boost to the morale of the downtrodden" and. "... in the right direction of ensuring social justice to other backward classes ... " and "ensuring social justice to those weaker sections ... ", Article 15(5) dupes those who actually need preferential treatment. D (See: Prof. Basudeb Barman, M.P., the Parliamentary Debates, p. 531. December 21, 2005; Prof. M. Ramadass, M.P., at p. , 510; and Shri C.K. Chandrappan, M.P., at p. 494 respectively). f

For the poorest of the poor, reservation in college is an empty promise. Few of the financially poor OBCs attend high school, let alone college. Instead of rewarding those that complete Plus 2, the 93rd Amendment (Art 15(5)) poses another barrier: they will have to compete with the creamy layer for reserved seats.

45Copy pinpoint45. As explained, the poor lack the resources to compete with the creamy, who "snatch away" those seats. {N. M. Thomas (supra), para 124 (Iyer, J.)}. With the creamy excluded, poor ~ ... - OBCs would compete with poor OBCs-the playing field levelled. As it stands, the Amendment and Act serve one purpose: they provide a windfall of seats to the rich and powerful amongst the OBCs. It is unreasonable to classify rich and poor OBCs as a G single entity. As noted, th is violates the Article 14 right to equality. ~,

46Copy pinpoint46. Unless the creamy layer is removed, OBCs cannot exercise their group rights. The Union of India and other H respondents argued that creamy layer exclusion is wrong

ASHOKA KUMAR THAKUR v. UNION OF }NOIA & ORS 351 [DALVEER BHANDARI, J]

• because the text of the 93'0 Amendment bestows a benefit on A "classes", not individuals. While it is a group right the group must contain only those individuals that belong to the group. I first take the entire lot of creamy and non creamy layer OBCs. 1 then remove the creamy layer on an 1ndividu.al basis based on their income, property holdings. occupation, etc. What is left is B a group that meets constitutional rnusteL It 1s a group right that must also belong to individuals. if the right '.s to have any \.. meaning. If one OBC candidate is denied special provisions that he should have received by law, it is not the group's responsibility to bring a craim. He would be the one to do so. He has a right of action to chatlenge the ruling that excluded him c from the special provisions afforded to OBCs. In this sense, he has an individual right. Grou~ and indiv!dual rights need not be mutually exclusive. In this cas,e. it is not one or the other but both that apply to the impugned legislation D • Whether the Creamy Layer exists outside • ~ India?:

47Copy pinpoint47. An interesting question arises: does the concept of creamy layer exist outside India? A 2003 study carried out m the United States suggests that it does. The study by William E Bowen, former president of Princeton University. found that when you look at students with the same Scholastic Aptitude Test (SAT) scores, certain groups have a better chance of being admitted to college. ''The New Affirmative Action." by David Leonhardt. ~ New York Times, 30 September 2007, p. 3. All things being F ~

equal, one's chance of gaining admission is augmented by belonging to one of the preferred groups. lndividuais belonging to these groups are given preferential treatment over those who do not. G 48 The study demonstrated that Stack, Latino and Native- Americans with the same SAT scores as White or Asian ). studerts had a 28% better chance than the White or Asian studer ·- ... ; gaining admrssior those whose parents attended the college had a 20% advantage over those whose parents H

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A did not; and the poor received no advantage whatsoever over J, ' the rich. (See: New York Times article, p. 3.)

49Copy pinpoint49. The statistics indicate that the failure to exclude the creamy layer ultimately leads to a situation in which deserving students are excluded. When we revert to the Indian scenario, B as long as the Government gives handouts to certain groups, the creamy layer therein will "lap" them up. A scheme in which the poor receive no advantage can be remedied by excluding ·~ the creamy layer.

c 50. Even the Mandal Commission, which was established in 1979 with a mandate to identify the socially and educationally backward, admitted that the creamy layer was robbing fellow OBCs of reservation. In reference to Tamil Nadu, it said: "In actual operation, the benefits of reservation have gone primarily to the relatively more advanced castes amongst the notified backward classes." (See: P.37, 8.13 of the Report of the Backward Classes Commission, First Part, Vols. 1-2, 1980). It also stated f . that: "it is no doubt true that the major benefits of r reservation ..... will be cornered by the more advanced sections ..... " but reasoned that this was acceptable because reform is presumably slow and should start with the more advanced of the backward. (See: Page 62, para 13.7 (recommendations)).

51Copy pinpoint51. In N. M. Thomas & Others case (supra), Krishna Iyer, F J. in his concurring judgment in para 124 noted that the research .; -,.... conducted by the A.N. Sinha Institute of Social Studies, Patna, • had revealed a dual society among harijans in which a tiny elite gobbles up the benefits. • Severing the Creamy Layer G

52Copy pinpoint52. Technically speaking, I am severing the implied inclusion of the creamy layer. It is severable for two reasons. First, a nine-Judge Bench in Sawhney I severed a similar ... ' .. provision wherein the creamy layer was not expressly included, upholding the rest of the O.M.'s re:;ervation scheme. Second, H

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 353 [DALVEER BHANDARI, J.]

because the Parliament must have known that Sawhne!' I had A • excluded the creamy layer, it seems likely that the Parliarnent ' also realized that this Court may do the same. A cursory revie'.'f of the Parliamentary Debates regarding Article 15(5) clearly reveals that the Parliament discussed the Sawhney f judgmero• m detail. (See: for example. comments made by Shri Moh"'n H Singh, pA74 and Shri Devendra Prasad, pages 478-479 on 21 December 2005) Had the Parliament insisted on creamy layer inclusion, it could have said as much in the text of 15(5). Instead, the Parliament left the text of 15(5) silent on the issue, delegating the issue of OBC identification to the executive in c Section 2(g) of the Reservation Act.

53Copy pinpoint53. The test for severability asks a subjective question. had the Parliament known its provision would be struck would it still have passed the rest of the legislation? (See. R.i.:l.D. Chamarbaugwalla & Another v. Union of India & Another, D AIR 1957 SC 628 at page 637 at para 23). It is never easy to •lr say what the Parliament would have done had it known that part of its amendment would be severed. Nevertheless, I find it hard to imagine that the Parliament would have said, "if the creamy is excluded, the rest of the OBCs should be denied reservation E :n education." It seems unlikely that it would have been an a!l-or- nothing proposition for the Parliament, when the very goal of the impugned legislation of promoting OBC educational advancement does not depend on creamy layer inclusion. For these reasons, I sever or exclude the implied inclusion of the creamy layeL • Identification of Creamy Layer

54Copy pinpoint54. Income as the criterion for creamy layer exclusion is insufficient and runs afoul of Sawhney I (See· page 724 at para 792). !dentification of the creamy layer has been and should be left to the Government, subject to judicial direction. For a vatid method of creamy layer exclusion, the Government may ·~ use.its post-Sawhney I criteria as a template. (See: O.lvL of 8- 9-1993, para 2(c)/Colurrn 3. approved by this Court in Asholra H

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A Kumar Thakur (supra), para 10). This schedule is a ~

comprehensive attempt to exclude the creamy layer in which income, Government posts, occupation and land holdings are taken into account. The Office Memorandum is reproduced hereunder: B "No. 36012/22/93- Estt (SCT) Government of India Ministry of Personnel, Public Grievances & Pension (Department of Personnel & Training) New Delhi, the 8th September, 1993 c OFFICE MEMORANDUM

Subject: Reservation for Other Backward Classes in Civil Posts and Services under the Government of India - Regarding. D The undersigned is directed to refer to this Department's O.M. No.36012/31/90-Estt(SCT) dated 13th August, 1990 and 25th September, 1991 regarding reservation for Socially and i-'

Economically Backward Classes in Civil Posts and Services under the Government of India and to say that following the E Supreme Court judgment in Indra Sawhney v. Union of India & Others (Writ Petition (Civil) No.930 of 1990) the Government of India appointed an Expert Committee to recommend the criteria for exclusion of the socially advanced persons/sections from the benefits of reservation for Other Backward Classes in civil posts and services under Government of India. 1 ~

2. Consequent to the consideration of the Expert " Committee's recommendation this Department's Office Memorandum No.36012/31 /90-Estt. (SCT), dated 13.8.1990 referred to in para (1) above is hereby modified to provide as follows:c (a) 27% (Twenty seven percent) of the vacancies in civil posts and services under the Government of -4'.

India, to be filled through direct recruitment, shall be reserved for the Other Backward Classes.

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS 355 [DALVEER BHANDARI, J.]

Detai!ed instruct:ons relating to the procedure to A •• be followed for enforcing reservation will be issued separate:y. (b) Candidates belonging to OBCs recruited on the basis of merit in an open competition on the same 8 standards prescribed for the general candidates shall not be adjusted against the reservation quota of 27%.

(c) (i) The aforesaid reservation shall not apply to persons/sections mentioned in column 3 of the C Schedule to this Office Memorandum.

(ii) The rule of exclusion will not apply to persons working as artisans or engaged in hereditary occupations, callings. A list of such occupations, camngs will be issued separateiy by the Ministry of Welfare. (d) The OBCs for the purpose of the aforesaid reservation would comprise, in the first phase. the castes and communities which are common to both the lists in the report of the Mandal Commission and the State Government's Lists. A list of such castes and communities is being issued separateiy by the Ministry of Welfare. F (e) The aforesaid reservation shall take immediate eftect However, this will not apply in vacancies whero th~ recruitment process has already been initiated prior to the issue of this order. 3 Similar instructions in respect of public sector G undertakings and financial :nstitutions including public sector banks will be issued by the Department of Public Enteror:ses "- and by the Ministry of Finance respectively from the date of this Office Memorandum. H

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A SCHEDULE

Description of To whom rule of exclusion Category will apply.

B I. CONSTITUTIONAL Son(s) and daughter(s) of POSTS (a) President of India; (b) Vice President of India; (c) Judges of the Supreme Court c and of the High Courts; (d) Chairman & Members of UPSC and of the State Public Service Commission; Chief Election Commissioner; D Comptroller & Auditor General of India; (e) Persons holding Constitutional positions of like nature. E II. SERVICE Son(s) and daughter(s) of CATEGORY A. Group NClass 1 (a) parents, both of whom F officers of the All are Class I officers; India Central and (b) parents, either of whom State Services is a Class I officer; ' (Direct Recruits) (c) parents, both of whom are G Class I officers, but one of them dies or suffers permanent incapacitation. •

(d) parents, either of whom is a ~- Class I officer and such parent H

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 357 [DALVEER BHANDARI, J.)

A ;. dies or suffers permanent ' incapacitation and before such death or such incapacitation has had the benefit of employment in any International Organisation'.:'.:'. UN, IMF, World Bank, etc. for a B period of not less than 5 years. (e) parents, both of whom are class I officers die or suffer permanent incapacitation and c before such death or such incapacitation of the both, either of them has had the benefit of employment in any International Organisation like UN, IMF, World D Bank, etc. for a period of not less than 5 years . . • (f) Provided that the rule of exclusion shall not apply in the following cases :- E (a) Sons and daughters of parents either of whom or both of whom are Class-I officers and such parent(s) dies I die or suffer permanent incapacitation. f

(b) A lady belonging to OBC category has got married to a Class-I officer, and may herself like to apply for a job. c Group B/Class II Son(s) and daughter(s) of officers of the Central (a) parents both of whom & State Services are Class II officers. (Direct Recruitment) (b) parents of whom only the H

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A husband is a Class II officer and -I I he gets into Class I at the age of 40 or earlier. (c) parents, both of whom are 8 Class II officers and one of them dies or suffers permanent incapacitation and either one of them has had the benefit of ~ r employment in any International c Organisation like UN, IMF, World Bank, etc. for a period of not less than 5 years before such death or permanent incapacitation; (d) parents, of whom the husband [j is a Class I officer (direct recruit . or pre-forty promoted) and the wife is a Class II officer and the wife dies; or suffers permanent • incapacitation; and E (e) parents, of whom the wife is a Class I officer (Direct Recruit or pre-forty promoted) and the husband is a Class 11 officer and the husband dies or suffers F permanent incapacitation. . Provided that the rule of exclusion " shall not apply in the following cases: G Sons and daughters of (a) Parents both of whom are Class II officers and one of them dies or suffers permanent _.-' incapacitation. H

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 359 [DALVEER BHANDARI, J.]

(b) Parents, both of whom are A Class II officers and both of them die or suffer permanent incapacitation, even though either of them has had the benefit of ' empioyment in any International 8 Organisation Hke UN, IMF, World Bank, etc. for a period of not less than 5 years before their death or permanent incapacitation. The criteria enumerated in A & B c C Employees in Public Sector above in this Category will apply Undertakings etc. mutatis mutandi to officers holding equivalent or comparable posts in PSUs, banks, Insurance D Organisations, Universities, etc. and also to equivalent or ..• comparable posts and positions under private employment, Pending the evaluation of the posts on equivalent or E comparable basis in these institutions, the criteria specified '.n Category VI below will apply to the officers in these Institutions. F • Ill. ARMED FORCES Son(s) and daughter(s) of parents INCLUDING either or both of whom is or are in PARAMILITARY the rank of Colonel and above in FORCES the Army and to equivalent posts G (Persons holding in the Navy and the Air Force and civil posts are not the Para Military Forces; included) Provided that:- H

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A (i) if the wife of an Armed Forces Officer is herself in the Armed Forces (i.e., the category under consideration) the rule of exclusion will apply only when she herse,1r B has reached the rank of Colonel; (ii) the services ranks below Colonel of husband and wife shall not be clubbed together: ... c (iii) if the wife of an officer in the Armed Forces is in civil employment, this will not be taken into account for applying the rule of exclusion unless the falls in the D service category under item No.II in which case the criteria and conditions enumerated therein will ,,. apply to her independently.

E IV. PROFESSIONAL CLASS AND THOSE ENGAN- GED IN TRADE & INDUSTRY F (I) Persons engaged in profession as a doctor, lawyer, Chartered G Accountant, Income-Tax Consultant, financial or management H consultant, dental

\ ' ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. [DALVEER BHANDARI, J.] 361

A surgeon, engineer, architect, computer specialist, film artists and other film professional, author, playwright, B sports person, sports professional, media professional or any other voca- tions of like status. c Criteria specified against Category VI will apply: (II) Persons engaged in Criteria specified against D trade, business and Category VI will apply: •.. industry Explanation: (i) Where the husband is in some profession and the wife is in a E Class II or lower grade employment, the income I wealth test will apply only on the basis of the husband's income. • F (ii) If the wife is in any profession and the husband is in employment in a Class II or lower rank post, then the income/wealth criterion will apply only on the basis of the G wife's income and the husband's income will not be clubbed with it.

V. PROPERTY Son(s) and daughter(s) of H

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A ~ OWNERS persons belonging to a family I

A. Agricultural (father, mother and minor children) holdings which owns (a) only irrigated land which is B equal to or more than 85% of the statutory ceiling area, or (b) both irrigated and unirrigated ~ land, as follows:

c (i) The rule of exclusion will apply where the pre-condition exists that the irrigated area (having been brought to a single type under a common denominator) 40% or more of the statutory ceiling, limit for irrigated land (this being, calculated by excluding the y' unirrigated portion). If this pre- condition of not less than 40% exists, then only the area of unirrigated land will be taken into account. This will be done by converting the unirrigated land on the basis of the conversion formula existing, into the irrigated type. The irrigated area so ~ ~

computed from unirrigated land shall be added to the actual area of irrigated land and if after such clubbing together the total area in terms of irrigated land is 80% or more of the statutory ceiling limit for irrigated land, then the rule of ~/ exclusion will apply and dis- entitlement will occur. H

I ~ ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 363 [DALVEER BHANDARI, J.]

(ii) The rule of exclusion will not A apply if the land holding of a family is exclusively unirrigated.

8. Plantations (i) Coffee, tea, Criteria of income/wealth 8 rubber. etc. specified in Category VI below will apply. (ii) Mango, citrus, apple Deemed as agricultural holding plantations etc. and hence criteria at A above c under this Category will apply. C. Vacant land and/or Criteria specified in Category VI buildings in urban below will apply. areas or urban agglomerations Explanation: Building may be D used for residential, industrial or commercial purpose and the like two or more such purposes.

VI. INCOME/ Son(s) and daughter(s) of E WEALTH TEST (a) Persons having gross income of Rs.1 lakh or above or possessing wealth above the exemption limit as prescribed in the Wealth Tax Act for a period of three years. (b) Persons in Categories I, 11, Ill and VA who are not disentitled to the benefit of reservation but have income from other sources of wealth which will bring them within the income/wealth criteria mentioned in (a) above. I H

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A Explanation: (i) Income from salaries or agricultural land shall not be clubbed; B (ii) The income criteria in terms of rupee will be modified taking into account the change in its value every three years. If the situation, however, so demands, the c interregnum may be less. Explanation: Wherever the expression "permanent incapa- citation" occur in this D schedule, it shall mean incapacitation which results in putting an officer out of service.

E Smt. Sarita Prasad Joint Secretary to the Government of India."

55Copy pinpoint55. In sum, the schedule excludes the children of those who hold constitutional posts, e.g., the children of the President of India, Supreme Court Judges, Chairman and Members of F UPSC and others are excluded. Class 1 Officers' children are not eligible for OBC perks either. When both parents are Class- 11 Officers, their children are excluded. The same criteria that apply to Class-I and II officers apply to children of parents who work at high levels within the private sector. Agricultural owners G are excluded when their irrigated holdings are more than or equal to 85% of the statutory ceiling. The O.M. further excludes persons having a gross annual income of Rs.2.5 lakh or more. The Government raised the income limit from Rs.1 to Rs.2.5 lakh on 09.03.2004 vide O.M. 36033/3/2004. H

\ ~ ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 365 [DALVEER BHANDARI, J.]

.\ 56. The creamy layer schedule of the O.M. dated 8.9.93, A in my opinion, is not comprehensive. This should be revised periodically- preferably once in every 5 years, in order to ensure that creamy layer criteria take changing circumstances into account. 8

57Copy pinpoint57. Apart from the people who have been excluded vide the office memo, I urge the Government to make it more comprehensive. The Government should consider excluding the children of sitting and former Members of Parliament (MP) and Members of Legislative Assemblies (MLA) from special benefits. lf constitutional authorities have been excluded from c benefits because of their status or resources, the same should apply to children of former and sitting MPs and MLAs. I hope the judiciary will not have to involve itself in this matter.

2. Applying Article 21A to the Reservation Act D

58Copy pinpoint58. On 18 December 2006, in the Rajya Sabha Debate " on the Reservation Act, Member of Parliament and former Governor, Dr. P.C. Alexander summed up what would become one of Petitioners' arguments. Should Rs.17 .000 crores be spent on implementing the Reservation Act for higher education E when primary/secondary schooling is in such bad shape? Dr. Alexander stated: "Sir, this spending Rs.17,000 crores or whatever amount is needed for adding seats in the Engineering colleges, F ,.• llMs and llTs is reversing our priorities. If you have the money for education, spend it on schools. Spend it on the rural areas for primary schools; spend it on the schools, which are poorly starved in the urban areas. Instead of doing that, you spend it by adding to the numbers because G you want to appease the so-called poorer sections in the higher castes. So, we have taken care of you and you tell '~ the backward classes we are taking care of all of you. This is where we land ourselves :n trouble. We have cash resources. They should be spent where priorities are fixed H

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A clearly in our eyes and we don't want to do that." Spending on higher at the expense of lower education raises the specter of conflict with Article 21A. By the 86 1h Amendment, Article 21Awas inserted in our Constitution. Article 21A reads as follows: 8 "The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine."

59Copy pinpoint59. Under Article 21A, it is a mandatory obligation of the C State to provide free and compulsory education to all children aged six to fourteen. In order to achieve this constitutional mandate, the State has to place much greater emphasis on allocating more funds for primary and secondary education. There is no corresponding constitutional right to higher D education. The entire Nation's progress virtually depends upon the proper and effective implementation of Article 21A.

60Copy pinpoint60. This Court in Unnl Krishnan, J.P. & Others v. State of Andhra Pradesh & Others (1993) 1 SCC 645 para 166 E held as under: •... right to education is implicit in and flows from the right to life guaranteed by Article 21. That the right to education has been treated as one of transcendental importance in the life of an individual [and] has been recognized not only F in this country since thousands of years, but all over the world .... without education being provided to citizens of this country, the objectives set forth in the Preamble to the Constitution cannot be achieved. The Constitution would fail." G This observation encouraged the Parliament to i~sert Article 21A into the Constitution.

61Copy pinpoint61. In Unnl Krishnan (supra), Justice Reddy observed that the quality of education in Government schools was H

., ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 367 [DALVEER BHANDARI, J.]

.., extremely poor and that the schools.were woefully inadequate to the needs of the children. He noted that many countries spend 6% to 8% of Gross Domestic Product on education. Our expenditure on education is just 4% of GDP.

62Copy pinpoint62. Though an improvement over past performance, the overall education picture leaves much to be desired. The bad news is really bad. Even where we have seen improvement, ,. there is still failure. A survey by Pratham, an NGO, fleshes out the acute problems found in rural schools. (See: ASER 2007 - Rural Annual Status of Education Report for 2007, published on January 16, 2008). The survey covered 16,000 villages. As c Pratham indicates, there are an estimated 140 million children in the age group 6 to 14 years in primary schools. Of these 30 million cannot read, 40 million can recognize a few alphabets, 40 million can read some words, and 30 million can read paragraphs. Over 55 million of these children will not complete four years of school, eventually adding to the illiterate "' population of India. The national literacy rate is 65%.

63Copy pinpoint63. 24 districts with more than 50,000 out of school chHdren means we have failed 24 times over. 71 districts in which there are 60 students per teacher is just as bad, if not worse. According to Pratham (and in line with the Ministry of HRD's six-month review), the number of out of school children has hovered around 7,50,000. [page 6]. Moreover, it goes without saying that children need proper facilities. Today, just 59% of schools can F ,,• boast of a !JSeable toilet. [page 49].

64Copy pinpoint64. The quality of education is equally troubling. For standards I and II, only 78.3% of students surveyed could recognize letters and read words or more in their own language. [page47]. In 2006, it was even worse-only 73.1% could do so. G It is disheartening to peruse the statistics for standards Ill to V, where only 66.4% could read Standard I text or more in their ' ... own language in 2007. [page 47]. As Pratham stated at page 7: H

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A "What should be more worrying though, is the fact that in class 2, only 9 percent children can read the text / appropriate to them, and 60 percent cannot even recognise numbers between 10 and 99."

65Copy pinpoint65. In the third to fifth standards, 40% of students surveyed 8 could not subtract. The latest figures indicate that 58.3% children in the fifth standard read at the level appropriate for second Standard students. [page 32]. In both 2005 and 2007, only 74.1% of enrolled children were in attendance. [page 49].

66Copy pinpoint66. The learned Solicitor General, MrVahanvati, submitted that the Government has now placed sufficient emphasis on primary education. In 2001-2002, the Government launched Sarva Shiksha Abhiyan (SSA). This national programme's goal is to universalize elementary education. It supplements D Governmental spending on education. As the Solicitor General explained, it was founded on the idea that education for those between the ages of six to fourteen is a fundamental right. In • f this way, SSA seeks to fulfill the Government's obligation under Article 21A to provide free and compulsory education to this age group. Some of the SSA's accomplishments merit mention.

67Copy pinpoint67. By March 2007, 2;03,577 toilets had been constructed or were under construction, covering 87% of the goal; more than six crore free textbooks had been supplied - 96% of the goal; 1,93,220 new schools had been completed or were under construction, i.e., 80% of the desired mark. The learned Solicitor General further provided that enrolment for all districts in 2004- 05 for classes 1-V was 11,82,96,540. In 2005-06, the number increased to 12,46, 15,546. A similar increase was seen in Classes Vl-VllNlll: from 3,77, 17,490 to 4,36,67,786. The total number of teachers increased from 36,67,637 in 2003-04 to 46,90, 176 in 2005-06.

68Copy pinpoint68. It is the learned Solicitor General's contention that SSA was responsible for many of the gains cited above. This includes the improved statistics on the student-teacher ratio, out of school

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 369 [DALVEER BHANDARI, J.]

children and enrollment rate for girls. A \

69Copy pinpoint69. While the Government is on the right track with regard to improving the infrastructure of our system, books and buildings only go so far. They are necessary but not sufficient for achieving the ultimate goals of (1) keeping children in school, 8 (2) ensuring that they learn how to think critically and (3) ensuring that they learn skills that will help them secure gainful employment. The quality of education provided in the majority of primary schools is woeful. That is why I find it necessary to review Government spending on education - especially at the C primary/secondary level.

70Copy pinpoint70. Undoubtedly, the Government has allocated more funds of late for education, but we need to have far more allocation of funds and much greater emphasis on free and compulsory education. Anything less would flout Article 21A's mandate. D According to H.R.D. Annual Reports read with the Union of India Budget 2008-09, we spend roughly seven times as much on ..' the individual college student than the individual primary or secondary student. Spending per Student: Comparing that i:Jhich is E spent on each primary/secondary student versus each higher education student Year & Estimated# Total Rs. Expenditure Level of of Enrolled Allocated** per student F Schooling Students* In Rs.

2006-2007 School Education/ 219083879 168970000000 771 Literacy 2006-2007 G Tertiary Education 11777296 69120900000 5868 2007-2008 School Education/ Literacy 219083879 231913500000 1059 IH

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A 2007-2008 Tertiary Education 11777296 63973600000 5432 • / I 2008-2009 School Education/ Literacy 219083879 278500000000. 1271 B 2008-2009 Tertiary Education 11777296 108528700000 9215

• = Estimated number of students for primary/secondary level is taken from 2004-2005 Annual Report, p. 250 at http://www.education.nic.in/AR/ c AR0607-en.pdf. In the same Annual Report, 11777296 students were enrolled in higher education in 2004-2005. For consistency's sake, I have used the 2004-2005 estimates. I have found no information that suggests that enrolment for one has significantly outpaced the other. ••=Government of India, Expenditure Budget Vol. 1, 2008-2009, p. 6, Total Expenditure of Ministries/Departments (school education/literacy and higher education have been added).

71Copy pinpoint71. In a country where only 18% of those in the relevant age group make it to higher education, this is incredible. See ,.• NSSO 1999-2000. It is not suggested that higher education needs to be neglected or that higher education should not receive more funds, but there has to be much greater emphasis on the primary education. Our priorities have to be changed. Nothing is really more important than to ensure total compliance with Article 21A. How can a sizeable portion of the population be precluded from realizing the benefits of development when almost everyone acknowledges that the children are ..\ .i;:: our future? ...

72Copy pinpoint72. Education for children up to the age of fourteen years should be free. This has also been suggested in the recommendations of the Kothari Commission on Education in

1966. Taking the country's rampant poverty into account, free education up to the age 14 years is absolutely imperative. There is no other way for the poor to climb their way out of this -4' , predicament. H

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 371 [DALVEER BHANDARI, J.]

73Copy pinpoint73. Mr. P. P. Rao, learned Senior Advocate, rightly A ""' \ , submitted that when you lack a school building, teachers, books and proper facilities, your schooling might be "free" but it is not an "education" in any proper sense. Adequate number of schools must be established with proper infrastructure without further delay. In order to achieve the constitutional goal of free and B compulsory education, we have to appreciate the reality on the ground. A sizeable section of the country is still so poor that ~ many parents are compelled to send their children to work. The State must carve out innovative policies to ensure that parents send their children to school. The Mid-Day Meal Scheme will c go a long way in achieving this goal. But, apart from Mid-Day Meals, the Government shouid provide financial help to extremely poor parents.

74Copy pinpoint74. In addition to free education and/or other financial assistance, they should also be given books, uniforms and any D other necessary benefits so that the object of Article 21A is •... achieved. Time and again, this Court, in a number of judgments, has observed that the State cannot avoid its constitutional obligation on the ground of financial inabilities. (See." Hussainara Khatoon & Others (Ill) v. Home Secretary, State E of Bihar, Patna (1980) 1 SCC 98, 107 at para 10).

75Copy pinpoint75. In Vasanth Kumar (supra) at para 150, Justice Venkataramiah suggested that the State provide preferential treatment such as tuition, scholarships, free boarding and lodging, etc. According to UNESCO's Education for All, Global F ,,... Monitoring Report (2008) at page 115, at least fourteen countries have cash-transfer programmes that target poor households with school-age children. The largest programme is in Brazil, where 46 million people receive an education transfer of up to $44 USO monthly per household in extreme poverty G with children below age 16. According to the Report, the programme has reduced drop-out rates by up to 75% among beneficiaries in its more recent stage . •

76Copy pinpoint76. Such a programme is not foreign to India. According H

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A to UNICEF, the State of Gujarat put the idea of financial incentives for youth into action: l /II>- ~

"Figures indicate that the school enrolment drive of the state Government supported by incentives like Vidyalaxmi bond of Rs.1,000 given to each girl who completes primary B education and 60 kg of wheat for tribal girls attending school, has met with significant success. In addition to the various incentives by the Government, many a corporate houses and community have also come forward to motivate -l ,-

parents and children by donating school bags, uniforms, c stationery, etc. As a result, the drop-out rate has come down from 35.31 % in 1997-1998 to 3.24% in 2006-2007 in class 1-5. In girls, this rate has dropped from 38.95% to 5.97 in the same time period."

77Copy pinpoint77. In January 2008, Haryana Chief Minister Mr. Bhupinder D Singh Hooda unfurled an incentive scheme for SC students in which students would receive a one-time payment in addition to a monthly stipend for attending school. (See: "Incentives . 'r

announced to curb dropout rate", The Tribune, 5 Jan. 2008). The relevant portion is mentioned hereinbelow: E "Secretary, education, Rajan Gupta said a one-time allowance of Rs. 740 to Rs.1,450 would be given to SC students from class I to XII. ... Under the monthly incentive -- scheme, boys and girls studying in class I to V would be given Rs100 and Rs.150, respectively, per month and boys and girls of class VI to VIII Rs.150 and Rs.200. Similarly, ~

boys and girls of class IX to XI I would be given Rs.200 and ' Rs.300, respectively, and boys and girls studying science subjects in class XI and XII Rs.300 and Rs.400, respectively.... This monthly incentive to the students would be deposited in their bank accounts to maintain transparency in the scheme, he added."

78Copy pinpoint78. In the name of transparency, students' attendance ~ /

records could be made available to administrators and parents. H Students would be paid to attend school. They would receive a

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 373 [DALVEER BHANDARI, J.]

sum for each day of school that they attended. If you only attend A '\ 7 cut of 1O school days, you would only receive 70% of the stipend.

79Copy pinpoint79. Ultimately, this is the most important aspect of implementing Article 21A, incentives should be provided to parents so that they are persuaded to send their children to 8 school. More than punishment, creative incentive programmes

- will go a long way in the implementation of the fundamental right > enshrined under Article 21A.

Historical Perspective on Compulsory Education: c

80Copy pinpoint80. Almost two centuries ago, Clause 43 of The Charter Act of 1813 made education a State responsibility. [See: "Free and Compulsory Education: Genesis and Execution of Constitutional Philosophy", Dr. P.L. Mehta and Rakhi Poonga, Deep and Deep Publications, New Delhi (1997)]. [pages 42- D 47]. The Hunter Commission (1882-83) was the first to •, recommend universal education in India. Thereafter, the Patel Bill, 1917 was the first compulsory education legislation. It proposed to make education compulsory from ages 6 to 11.

81Copy pinpoint81. The Government of India Act, 1935 provided that E "education should be made free and compulsory for both boys and girls." Free and compulsory education got a further boost when the Zakir Hussain Commission recommended that the State should provide it. The 1944 Sargent Report strongly recommended free and compulsory education for children aged F ...• six to fourteen. By 1947, primary education had been made compulsory in 152 urban areas and 4995 rural areas.

82Copy pinpoint82. The State has been making some endeavour to provide free and compulsory education since 1813 in one form G or the other. When the original Framers gathered at the Constituent Assembly, their desire to provide free and compulsory education was well established. The real question ' ~ in the Debate was whether the original Framers would make free and compulsory education justiciable or not. They oscillated H

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

A between the options, first placing it in the fundamental rights and later moving it to the directive principles of State policies ,-1

under Article 45 of the Constitution.

83Copy pinpoint83. Over 50 years later, the Parliament revisited the subject The Parliamentary debate on Article 21A offers a glimpse intc B the history of compulsory education in other countries. The then Minister of Human Resource Development, Dr. M.M. Joshi,

- referred to the speech of Shri Gopal Krishna Gokhale on compulsory education. While debating a bill in the imperial ~ legislative council in 1911, Shri Gokhale said that in most c countries: "... elementary education is both compulsory and free, and in a few, though the principle of compulsion is not strictly enforced or has not been introduced it is either wholly or for the most part gratitutious, in India alone it is neither D compulsory nor free. Thus in Great Britain and Ireland, France, Germany, Switzerland, Austria, Hungary, Italy, Belguim, Norway, Sweden, the United States of America, ,,.• Canada, Australia and Japan it is compulsory and free . ... . In Spain, Portugal, Greece, Bulgaria, Servia and E Rumania, it is free, and in theory, compulsory, though compulsion is not strictly enforced." [Lok Sabha Debates, 28 November, 2001, VoL20, page 476].

84Copy pinpoint84. In 1948, the United Nations made its own F pronouncement on compulsory education. Article 26(1) of the Universal Declaration of Human Rights made free and ... - compulsory education a lofty if not enforceable goal. While many ' states consider it an authoritative interpretation of the United Nations Charter, the Declaration is not a treaty and is not intended to be legally binding. Article 26(1) states: G "Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and ~- professional education shall be made generally available H and higher education shall be equally accessible to all on

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS 375 [DALVEER BHANDARI. J.]

the basis of merit." A

85Copy pinpoint85. Our original Framers put a similar emphasis on the matter, placing free and compulsory education in the Directive Princ~ples. The un-amended Article 45 provided that:

"The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years."

86Copy pinpoint86. At this juncture, I deem it appropriate to refer to the Parliamentary Debate on the aspect of free and compulsory education. In the Lok Sabha debate of 28 November 2001 at Vol. 20, Shri M.V.VS. Murthi, at page 499, stated:

"Unless the Government makes primary education compulsory, no village can develop. If I say what they are doing in Andhra Pradesh, some Members may again cry foul. In Andhra Pradesh, we are having Education Committees. If there are any dropouts, the Committee will go to the village and find out the reason as to why they have dropped out. It is very important." E

87Copy pinpoint87. The Report of the Kothari Commission, 1964-1966, headed by Prof. D. S. Kothari, provided important recommendations on compulsory education. Nevertheless, the circumstances of the day compelled it to soften its suggestions. The Nation was relatively poor and could not afford drastic increases in education spending. Some excerpts of this report are reproduced as under: "5.01 .... But in any given society and at a given time, the decisions regarding the type, quantity and quality of educational facilities depend partly upon the ·resources available and partly upon the social and political philosophy of the people. Poor and traditional societies are unable to develop even a programme of universal primary education. But rich and industrialized societies provide universal secondary education and expanding and broad- H

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A based programmes of higher and adult education. Feudal < t and aristocratic societies emphasize education for a few. But democratic and socialistic societies emphasize mass education and equalization of educational opportunities. The principal problem to be faced in the development of B human resources, therefore, is precisely this: How can available resources be best deployed to secure the most beneficial form of educational development? How much education, of what type or level of quality, should society .. or- strive to provide and for whom? c 5.03 Increasing the Educational Level of Citizens. In the next two decades the highest priority must be given to programmes aimed at raising the educational level of the average citizen. Such programmes are essential on grounds of social justice, for making democracy viable and for improving the productivity of the average worker in agriculture and industry. The most crucial of these programmes is to provide, as directed by Article 45 of the ' y

Constitution, free and compulsory education of good quality to all children up to the age of 14 years. In view of the immense human and physical resources needed, however, the implementation of this programme will have to be phased over a period of time." ,,,,,.

88Copy pinpoint88. When Article 21A was introduced, some Members of Parliament argued that financially poor parents who fail to send their children to school should not be punished and that the word "compulsion" in this Article should be understood to apply ~- .. exclusively to the State.

89Copy pinpoint89. Let me examine this argument. The 861h Amendment made three changes to the Constitution. It added Articles 21A G and 51A(k) and amended Article 45. I turn my focus to Article 51A(k). In addition to rejecting an amendment that would have neutered compulsory education, the Parliament made a positive ~-~

gesture. Though it never passed legislation seeking to implement compulsory education, it had not completely ignored the subject. H

ASHOKA KUMAR THAKLIR v. UNION OF INDIA & ORS. 377 [!JALVEER BHANDARI, J.]

From Article 51A(k}. it becomes clear that parents would be. A '\ responsible for sending their children to school. Article 51A read with 51A(k) is reproduced as under: ... "It shall be the duty of every citizen of India - who is a parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age B of six and fourteen years."

90Copy pinpoint90. Just as Article 51A(a) does not penalize disrespect of the National Flag, Article 51A(k} does not penalize parents/ guardian for failing to send children to school. There is, of c course, legislation that gives teeth to Article 51A(a). (See: The Prevention of Insults to National Honour Act, 1971, Section 3A).

91Copy pinpoint91. Article 51A(k) indicates that it is parents, not the State. who are responsible for making sure children wake up on time D and reach school. Thus, Art!de 21A read with Article 51A(k) > distributes an obligation amongst the State and parents: the • State is concerned with free education, parents with compulsory. Notwithstanding parental duty, the State also has a role to play in ensuring that compulsory education is feasible - a topic I will E • cover below.

92Copy pinpoint92. The Central Government has made some effort to fulfill its obligation under Article 21A with regard to ;'free education." Sarva Shiksha Abhiyan is one such example. When it comes to "compulsory education," the Central Government has made no F I • such effort. The Parliament has not passed any legislation. The executive has not issued any ordeL What we have is a patchwork of different State and Union Territory laws. These States/UTs (and NCR) include: G Assam, Andhra Pradesh. Bihar, Chhatisgarh, Goa, Gujarat, Haryana, Himachal Pradesh, Jammu & Kashmir, Karnataka, Kerala, Madhya Pradesh, Maharashtra, • Orissa, Punjab, Rajasthan, Sikkim, Tamil Nadu, Uttar Pradesh, West Bengal, Delhi, Andaman & Nicobar H

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

A Islands. t

93Copy pinpoint93. The majority of the States and Union Territories levy very small fines on parents. I note that these laws do not go into effect with one unexcused absence. Notice is given to the parents, giving them time to remedy the problem. Of course, B enforcement is almost always a different story.

94Copy pinpoint94. In contrast to the relatively light aforementioned sentences, the Compulsory Education Bill, 2006 introduced in ~ ~

the Rajya Sabha would provide six months imprisonment as a c penalty for those who preclude children from going to school. If this Bill becomes law, Section 7 would dictate the following: "If any person including parents of children prevents any boy or girl child from going to school or causes hindrance or obstruction in any way, he shall be punishable with imprisonment, which may extend to six months."

95Copy pinpoint95. It seems that the Bill simultaneously targets , employers and parents. Employers would be punished when ~

they hire a child to work too much or during school hours. Similarly, parents would also be punished for allowing this to happen. The Bill would also provide for scholarships, free hostel facilities and other incentives, "whenever necessary" and "as may be prescribed".

96Copy pinpoint96. In Bandhua Mukti Morcha v. Union of India & F Others, (1997) 10 SCC 549 at page 557 at para 11, the Court explained why education should be compulsory. In essence, a •.. citizen is only free when he can make a meaningful challenge to his fellow citizens or Government's attempt to curtail his natural freedom. For this to happen, he needs a certain degree of education. This is why Article 21A may be the most important fundamental right. Without it, a citizen may never come to know of his other rights; nor would he have the resources to adequately enforce them. The relevant passage at para 11 reads as under:- 1 "A free educated citizen could meaningfully exercise his political rights, discharge social responsibilities

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 379 [DALVEER BHANDARI, J.) ··· -----. satisfactorily and develop a spirit of tolerance and reform. A Therefore, education is compulsory. Primary education to the children, in particular, to the child from poor, weaker sections, Dalits and Tribes and minorities is mandatory. The basic education and employment-oriented vocational education should be imparted so as to empower the B children within these segments of the society to retrieve them from poverty and, thus, develop basjc abilities .:. to live a meaningful life ... Compulsory education, therefore, to these children is one of the principal means and primary duty of the State for stability of the democracy, social c integration and to eliminate social tensions."

97Copy pinpoint97. In contrast to Article 51A(k), State and Union Territory laws and Parliamentary intent with regard to Article 21A, the Court in Mukti Morcha was inclined to suggest, not hold, that the State was exclusively responsible for compulsory education. D It went on to reaffirm M.C. Mehta v. State of Tamil Nadu & Others {child labour matter) (1996) 6 SCC 756. In that case, the Court took up the issue of child labour in hazardou·s fields when it learnt of an accident in a cracker factory in Sivakasi.

98Copy pinpoint98. The said case at para 28 identified poverty as the root E cause of child labour: "Of the aforesaid causes, it seems to us that ... poverty is basic reason which compels parents of a child, despite their unwillingness, to get it employed. The Survey Report F of the Ministry of Labour (supra) had also stated so. Otherwise, no parents, specially no mother, would like that a tender-aged child should toil in a factory in a difficult condition, instead of its enjoying its childhood at home under the paternal gaze." ~-- -~ G

99Copy pinpoint99. In other words, parents send children to work because parents have no other choice. Food comes first. If the State does not provide extra income so as to remove the incentive to send children to work, it is wasting its time on mere gesture. The Court in para 29 co-ricluded that action must be taken: H

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

A "It may be that [child labour] would be taken care of to some extent by insisting on compulsory education. Indeed, t Neera [Burns] thinks that if there is at all a blueprint for tackling the problem of child labour, it is education. Even if it were to be so, the child of a poor parent would not B receive education, if per force it has to earn to make the family meet both the ends. Therefore, unless the family is assured of income aliunde, problem of child labour would hardly get solved; and it is this vital question which has remained almost unattended. We are. however, of the view c that till an alternative income is assured to the family, the question of abolition of child labour would really remain will-o'-the-wisp." (emphasis added).

100Copy pinpoint100. It is interesting to note that compulsory education has been introduced in one form or the other in various countries. D From the historical experience of these nations, we learn that the legislation pertaining to compulsory education has played an important role in improving educational outcomes. Compulsory education's roots in the United States E

101Copy pinpoint101. Compulsory education has had a long history outside of India. In 1852, the State of Massachusetts enacted the first compulsory attendance law in the United States; though compulsory education laws existed much earlier in many states, the first dating back to 1642 in Massachusetts. "Were Compulsory Attendance and Child Labor Laws Effective? (See: An analysis from 1915 to 1939." (2001) at p. 2. Prof. Adriana Lleras-Muney of Princeton University.) Reasons from abroad for implementing compulsory education:

102Copy pinpoint102. Prof. Lleras-Muney explains that those who advocated for compulsory education believed that universal ~~ education was necessary to promote democracy and guarantee a common American culture. (Page 11). Given the influx of H

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 381 [DALVEER BHANDARI, J.]

immigrants, some of whom came from undemocratic countries A many supporters of legislation viewed compulsory education ~ as an instrument for assimilation.

103Copy pinpoint103. Other reasons cited by compulsory education proponents in the United States included the reduction of cr\me. racism and inequality. Prof. Oreopoulos of the University of B Toronto cites to sources that make it appear as though the reasons for adopting compulsory education in Canada mirrored those cited in the United States: the emphasis was on good citizenship and economic development: c "Archibald Macallum, an Ontario teacher, summarized the latter argument vigorously in an 1875 report favouring the introduction of compulsory schooling in Canada: 'Society has suffered so cruelly from ignorance, that its riddance is a matter of necessity, and by the universal diffusion of knowledge alone can ignorance and crime be banished from our midst; in no other way can the best interests of society be conserved and improved than by "• this one remedy - the compulsory enforcement of this great boon - the right of every Canadian child to receive that education that will make him a good, loyal subject, prepared to serve his country in the various social functions which he may be called on to fill dur!ng his life; and prepare him, through grace, forthe life to come' (Annual Report of the Ontario Teachers' Association, 1875. as cited in Prentice and Houston 1975. 175-6). (See: The Canadian F ~ Journal of Economics, Vol. 39, No.1, February (2006) "The " compelling effects of compulsory schooling: the evidence from Canada," Prof. Oreopoulos, at page 23)." • Empirical data indicating that compulsory G education has a positive effect:

104Copy pinpoint104. Prof. Oreopoulos provides data that show the fruits of imposing education on citizens. Crime may be lowered, health • improved and civic activity increased. Compulsory education may also lead to a substantial increase in income for :ndividuals. H

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A Moreover, compulsory education, if it does not cause, may at least contribute to an increase in bilingualism and employment l and a reduction in poverty. The relevant portion is reproduced hereunder:

"(Page 24). Other papers find evidence of social returns, B but for non-pecuniary outcomes. Lochner and Moretti (2002), for example, find that compulsory schooling lowers crime, while Lleras-Muney (2002) finds a correlation with improved health. In studies of the United States and United Kingdom, Dee (2003) and Milligan, Moretti, and c Oreopoulos (2003) estimate that tighter restrictions on leaving school early correspond to increased levels of civic activity (like voting and discussing politics) .... My analysis suggests that students compelled to complete an extra grade of school have historically experienced an average increase of 9-15% in annual income.

(Page 48). I find that the introduction of tighter provincial restrictions on leaving school between 1920 and 1990 raised average grade attainment and incomes. Students compelled to attend an extra year of school experienced an average increase in annual income of about 12%. I also find that compulsory schooling is associated with significant benefits in terms of other socio-economic outcome measures ranging from bilingualism, employment, and poverty status. These results hold up against many specifications checks and are entirely consistent with previous studies." ..

105Copy pinpoint105. In addition to increased income, Prof. Lleras-Muney found that legally requiring a child to attend school for one more year increased educational attainment by roughly five percentage points. (Page 8). Educational attainment refers to time spent in school.

• Example of compulsory education statutes

106Copy pinpoint106. The causes of low enrolment, high drop-out rates and H

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 383 :DALVEER BHANDARI, J]

frequent truancy :n the U.S. and India differ, but the consequences thereof do not. In either case, citizens who lack education are at an extreme disadvantage. In India, poverty has been ident:fied as the ultimate cause of lackluster enrolment and attendance rates. Children are compelled to work. In developed countries like the United States or Canada, children rarely fail to attend school because of economic constraints. Instead, a number of different factors may contribute to truancy. High school students may drop out" ... because they detest school, lack motivation, or anticipate little reward from graduation." (See: The Canadian Journal of Economics, "The compelling effects of compulsory c schooling: the evidence from Canada," Prof. Oreopoulos, p. 23, (quoting from Eckstein, Zvi, and Kenneth I. Wolpin (1999) "Why youths drop out of high school: the impact of preferences, opportunities, and abilities," Econometrica 67, 1295-339).

107Copy pinpoint107. As I detail below, students and parents in the United D States often face the same fines when students fail to attend school. Fines for students make more sense when low self- ~ • control is the reason for which they fail to attend school. At the same time, punishing Indian students who have no choice but to work would make no sense. Such a punishment should not E be borrowed from the United States.

108Copy pinpoint108. In many jurisdictions in the United States, the attendance officer is responsible for enforcing compuisory attendance laws for his area or school. Given the overwhelming problem of sub-par enrolment and attendance in India, we doubt F ,, ( that one school official could sufficiently do the work of inspecting places of employment for children who have violated attendance laws.

109Copy pinpoint109. Indeed, existing legislation in India already envisages G the employment of attendance officers. The Delhi Primary Education Act, 1960, Sec. 7. Yet, there is nothing to suggest that these employees have adequately dealt with truancy. As • mentioned, this is. in part, due to the economic conditions in which many parents find themselves. Financial assistance or H

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

A incentives must be given. Only then, may the Government actively enforce compulsory attendance legislation. 1'

110Copy pinpoint110. We must also remember that it is not only the child who fails to attend but also the child who fails to enroll that has violated an attendance law. B

111Copy pinpoint111. Before taking issue with State/Union Territory compulsory education statutes, I note that education has traditionally been reserved for the States. Only in 1976, vide the 42nd Amendment of the Constitution, did education become a c part of Concurrent List of Schedule 7. In its 1651h Report, the Law Commission of India has also recommended enactment of Central Legislation in this respect. Putting education in the Concurrent List turns out to be a positive development, given the States' failure to provide effective legislation.

112Copy pinpoint112. The States' laws fail on two accounts. First, they are too lenient to have a deterrent effect. Second, the legislation is not adequately enforced. in part, because it does not require police officers to do the job. If we analyze the legislation passed ~

by different States, another conclusion becomes obvious: no • E State has provided for an adequate punishment whose effect would be to deter citizens from committing a violation.

113Copy pinpoint113. It is necessary to reproduce some of the various compulsory education laws of the States.

114Copy pinpoint114. Under Section 7 of The Tamil Nadu Compulsory Elementary Education Act, 1994: > "Every parent or guardian of a child of school age who "' fails to discharge his duty under section 4 [duty of parent to cause child to attend elementary school] shall be G punishable with fine which may extend to one hundred rupees."

115Copy pinpoint115. Section 18(1) of The Delhi Primary Education Act, 1960 states: ..\~

H "If any parent fails to comply with an attendance order

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 385 [DALVEER BHANDARI, J)

passed under Section 13, he shall be punishable with fine A not exceeding two rupees. and. in the case of continuing contravention, with an additional fine not exceeding fifty naye paise for every day during which such contravention continues after conviction for the first of such contraventions. Provided that the amount of fine payable by any one person 8 in respect of any child in any one year shall not exceed fifty rupees."

116Copy pinpoint116. Analysis of these State laws reveals that they are wea« in character and perhaps have never been implemented If we compare these laws with their sister statutes in United States, c we realize that the U.S. laws are far stronger.

117Copy pinpoint117. In Wisconsin, parents who fail to send their children to school may have to pay a fine of not more than $500 or face imprisonment for not more than 30 days or both. [Wiscor.sm D Statute Sections 118.15(1 )(a) and 118.15(5)(a)1.a]. For a p; second or subsequent offense, they may face a fine of not more than $1,000 or imprisonment for not more than 90 days or both. [Wisconsin Statute Sections 118.15(1 }(a) and 118 15(5}(a)1.b; Alternatively. they may be sentenced to perform comrrur.rty service. [Wisconsin Statute Sections 118.15(1)(a) ard E 118.15(5)(a)2] .

Unlike Wisconsin, Tamil Nadu and Delhi's laws have no teeth . ...• 118. The other main problem is implementation of t·ese r laws. Neither the State Governments nor their police agencies are at all ser:ous about :mplementing these compulsory laws. There are hardly any cases where even fines have been :mposed. Some form of compulsory education has been on ~r·e statute books since 1917. We rave seen Western countries G enforce these laws. Most Western countries enioy a'rrost ~ universal literacy while 35% of our population is !!literate. W"1le a robust financial incentive programme may not have been possible in 1917. it is today. If we wish to develop further we must educate each and every citizen aged six to fourteen 1-1

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

119Copy pinpoint119. In order to give effect to the constitutional right under Article 21A, it is imperative that the Central Government pass 1' suitable legislation. The fine should be suitably increased. Imprisonment should be a sentencing option as well. The current patchwork of State/UT legislation on compulsory education is B insufficient. Small monetary fines do not go far enough to ensure the implementation of Article 21A.

120Copy pinpoint120. A disclaimer is attached to these recommendations. The recommendations for the enforcement of compulsory education are contingent upon the implementation of a financial c incentive program that would make education viable for the poor. The carrot must come before the stick. If there is no financial incentive program in place, the Government cannot expect the poorest of the poor to send their children to school.

121Copy pinpoint121. The Parliament should criminally penalize those 0 parents who receive financial benefits and, despite such payments, send their children to work and penalize those ~ employers who preclude children from attending school or > completing homework. It has become necessary that the Government set a realistic target within which it must fully implement Article 21A regarding free and compulsory education for the entire country. The Government should suitably revise budget allocations for education. The priorities have to be set correctly. The most important fundamental right may be Article 21A, which, in the larger interest of the nation, must be fully implemented. Without Article 21 A, the other fundamental rights )

are effectively rendered meaningless. Education stands above ... other rights, as one's ability to enforce one's fundamental rights flows from one's education. This is ultimately why the judiciary must oversee Government spending on free and compulsory education.

122Copy pinpoint122. At the same time, spending is an area in which the judiciary must not overstep its constitutional mandate. The power of the purse is found in Part V, Chapter II of the Constitution, ... '~

which is dedicated to the Parliament. (See: Articles 109 and H

ASHOKA KUMAR THAKUR v. UNION OF 1NDIA & ORS. 387 [DALVEER BHANDARI, J.]

117 for "Morey Bills.") Nevertheiess, it remains within the judiciary's scope to ensure that the furdamental right under Article 21Aof Part Ill is upheld. In M.C. Mehta v. Union of India (vehicular pollution) (1998) 6 SCC 63. this Court did not ignore the Article 21 right to life when deadly levels of pollution put the right at stake Nor will this Col' rt ignore the Article 21A right to education, when a dearth of quality schooling put it in jeopardy. The Government's educatior programmes and expenditures, wanting in many respects, are an improvement over past performance. They nearly fall short of the constitutional mark. Lack:uster performance in pr:mary/secondary schools is caused c in part because Government places college students on a higher pedestal. Money will rot solve all our education woes, but a correction of priorities in step with the Constitution's mandate will go a long way • Opposition to Compulsory Education D

123Copy pinpoint123. "Compulsory" connotes enforcement. The Parliament ) . rejected an amendment that would have saved parents from penal penalties. If education were r.ot compulsory, who checks in with parents who have sent their children to work? If no author:ties inquire. the message is clear: We. the State, do not E care if your child goes to school. Taking the opposing view, Shri G.M. Banatwalla wanted to make sure parents were not punished:

" ... this word 'compulsion' needs to be properly defined. F The word, 'compulsion' is not to be related to the studert or the parents. Parents cannot be penalized for being too poor to send their children to school. The word, 'compulsion' has to be urderstood ;n relation to the State and the obligation of the State to provide for free education. G p. 523." (See: The Parliamentary Debates on Article 2.1A, p. 523, 28 November 2001 at Vol. 20, No. 6-10)

124Copy pinpoint124. The Parliament had the opportunity to accept such a definition of "compulsory." But they chose otherwise. Amendment number four, rroved by Shri G.M. Banatwalla at p. 548, stated H

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

j -~ A that: "Provided that in making any law to provide for free and compulsory education under this article, the State shall not ... (b) enforce any penal sanctions on a parent or guardian." B

125Copy pinpoint125. Of paramount importance, this Amendment was "negatived." [Seep. 548]. Those who wanted a safe-haven from penal sanction for parents lost. From this vote, we know that the Parliament intended to allow for future legislation that would c impose penal sanctions for violations of legislation under Article 21A. • Conclusion on Free and Compulsory Education

126Copy pinpoint126. Given that so many children drop out of, or are absent from, school before they turn fourteen, "free education" alone cannot solve the problem. The current patchwork of laws on ~ compulsory education is insufficient. Monetary fines do not go > far enough to ensure that Article 21 A is upheld.

127Copy pinpoint127. A carrot-and-stick approach appears to be the best way to implement Article 21A. Financial incentive programmes have worked well in other countries. We should follow their lead. Once that is done, the Government should strictly enforce effective compulsory education laws. Such a policy is bound to pay off. F In sum, the Central Government should enact legislation ). .. that: (a) provides low-income parents/guardians with financial incentives such that they may afford to send their G children to school; (b) criminally penalizes those who receive financial incentives and despite such payment send their ~ children to work; (c) penalizes employers who preclude children from H

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 389 [DALVEER BHANDARI, J.] ~ attending school or completing homework; A (d) the penalty should include imprisonment; the aforementioned Bm would serve as an example. The State is obligated under Article 21A to implement free and compulsory education in toto; B (e) Until we have achieved the object of free and compulsory education, the Government should continue to increase the education budget; (f) the Parliament should set a deadline by which time free and compulsory education will have reached c every child. This must be done within six months.

128Copy pinpoint128. With regard to (a), the state cannot cite budgetary constraints or lack of resources as an excuse for failing to provide financial assistance/incentives to poor parents. See D Hussainara Khatoon (supra}, at page 107, para 10. •.. 129. Article 21A's reference to "education" must mean something. This conclusion is bolstered by the Parliament's Statement of Objects and Reasons for Article 21A: "The Constitution of India in a Directive Principle contatned in article 45, has made a provision for free and compulsory education for all children up to the age of fourteen years within ten years of promulgation of the Constitution. We could not achieve this goal even after 50 years of adoption of this provision. The task of providing education to all children in this age group gained momentum after the National Policy of Education (NPE) was announced in

1986. The Government of India. in partnership with the State Governments, has made strenuous efforts to fulfill this mandate and, though significant improvements were seen in various educational indicators. the ultimate goal .. of providing universal and quality education still remains unfulfilled. In order to fulfill this goal, it is felt that an explicit provision should be made in the Part relating to Fundamental Rights of the Constitution. H

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

A 1. With a view to making right to free and compulsory -) · education a fundamental right, the Constitution (Eighty- third Amendment) Bill, 1997 was introduced in the Parliament to insert a new article, namely, article 21A conferring on all children in the age group of 6 to 14 years B the right to free and compulsory education. The said Bill was scrutinized by the Parliament Standing Committee on Human Resource Development and the subject was also dealt with in its 155th Report by the Law Commission ~ of India.

C 2. After taking into consideration the report of the Law Commission of India and the recommendations of the Standing Committee of the Parliament, the proposed amendments in Part Ill, Part IV and Part IVA of the Constitution are being made which are as follows ... D

3. The Bill seeks to achieve the above objects"

130Copy pinpoint130. The Article seeks to usher in "the ultimate goal of providing universal and quality education." (emphasis supplied). Implied within "education" is the idea that it will be quality in nature. Current performance indicates that much improvement needs to be made before we qualify "education" with "quality." Of course, for children who are out school, even the best education would be irrelevant. It goes without saying that all children aged six to fourteen must attend school and education must be quality in nature. Only upon accomplishing both of these .I goals, can we say that we have achieved total compliance with Article 21 A.

131Copy pinpoint131. Though progress has been made, the Parliament's observation upon passing Art 21A still applies: the goal of providing universal and quality education " ... still remains unfulfilled."

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

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 391 [DALVEER BHANDARI, J.]

.. 132. Imposing reservation on unaided institutions violates A ' the basic structure by obliterating citizens' 19(1 )(g) right to carry on an occupation. Unaided entities, whether they are educational institutions or private corporations, cannot be regulated out of existence when they are providing a public service like education. That is what reservation would do. That is an 8 unreasonable restriction. When you do not take a single paisa of public money, you cannot be subjected to such restriction. ~ The 93rd Amendment's reference to unaided institutions must ' be severed.

133Copy pinpoint133. No unaided institution f:led a writ petition in this case. c Had either this Court or respondents had an objection, they could have raised it at any time during the proceedings. We listened to the parties for months. We received voluminous written submissions from the parties, yet no objection was made with regard to the fact that no unaided institution had filed a writ petition. While we would usually implead a party if we felt their 0-"( presence was necessary to the resolution of the dispute, the facts of this case are peculiar. The best lawyers in the country argued the case for both sides, and a brief from an unaided institution would not have added much if anything to the substance of the arguments. The Government will likely target unaided institutions in the future. At that time, this Court will have to go through this entire exercise de nova to determine if unaided institutions should be subject to reservation. Such an exercise would unnecessar!ly cause further delay. The fate of lakhs of F A. ; students and thousands of institutions would remain up in the air. (See: Minerva Mills Ltd. & Others v. Union of India & Others (1980) 3 SCC 625). Therefore, looking to the extraordinary facts, I have decided to proceed with this aspect of the matter in the larger public interest. G

134Copy pinpoint134. Amendments by their very nature are often enabling provisions. :f they clear the way for future legislation that wouid .. ). in fact violate the basic structure, the Court need not wait for a potential violation to become an actual one. it can strike the entire amendment ab initio. The question of potential width was H

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

,... A resolved in Minerva Mills (supra), paras 38-39. The Court acknowledged that it generally does not anticipate constitutional issues before they arise, but it held that circumstances required it to act before unconstitutional provisions could be passed under the authority of an unconstitutional amendment. B "38. But, we find it difficult to uphold the preliminary objection because, the question raised by the petitioners as regards constitutionality of Sections 4 and 55 of the 42nd Amendment is not an academic or a hypothetical ~ . question. The 42nd Amendment is there for anyone to c see and by its Sections 4 and 55 amendments have been made to Articles 31-C and 368 of the Constitution. An order has been passed against the petitioners under Section 18-A of the Industries (Development and Regulation) Act, 1951, by which the petitioners are aggrieved." "39. Besides there are two other relevant considerations :- which must be taken into account while dealing with the preliminary objection. There is no constitutional or statutory inhibition against the decision of questions before they actually arise for consideration. In view of the importance of the question raised and in view of the fact that the question has been raised in many a petition, it is expedient in the interest of justice to settle the true position. Secondly, what we are dealing with is not an ordinary law which may or may not be passed so that it J .. could be said that our jurisdiction is being invoked on the hypothetical consideration that a law may be passed in future which will injure the rights of the petitioners. We are dealing with a constitutional amendment which has been brought into operation which, of its own force, permits the violation of certain freedoms through laws passed for certain purposes. We, therefore, overrule the preliminary ... -4 objection and proceed to determine the point raised by the petitioners." H [emphasis added]

ASHOKA KL.;MAR THAKUR v. UNION OF INDIA & ORS. 393 [DALVEER BHANDARI, J.]

There is not one precise definition of the width test, A • however. The test asks if an amendment is so wide that in effect " (actual or potential}, it goes beyond the Parliament's amending power. Kesavananda, paras 531-532: "But that the real consequences can be taken into account while judging the width of the power is settled. The Court cannot ignore the B consequences to which a particular construction can lead ... " To make such a determination, it follows that the Court should ask whether an amendment infringes constitutional limitations as opposed to those evolved from mere common law. (See: Nagaraj, para 103). c

135Copy pinpoint135. As a pre!iminary matter, I turn to the cases by which the basic structure doctrine has been established. It has been stated that, "Kesavananda had propounded the doctrine, the Indira Gandhi Election case had upheld it, and Minerva engraved it on stone." (See: Granville Austin, "Working a D Democratic Constitution". at page 506].

136Copy pinpoint136. Kesavanandc and its progeny provide that an amendment to the Constitution must not alter the Constitution's basic structure. To reach a conclusion regard~ng a basic structure challenge, I employ the following general standard: an amendment alters the basic structure if its actual or potential effect would be to damage a facet of the basic structure to such an extent that the facet's original identity is compromised.

137Copy pinpoint137. To determine if legislation infringes constitutional limitations and is thus invalid, we use the two-step effect test (also known as the impact or rights test). Step One requires us to first ask if legislation affects a facet of the basic structure. If it does, then at Step Two we ask if the effect on the facet of the structure is to such an extent that the facet's original identity has been altered. Applying the effect test is another way of saying that the form of an amendment is irrelevant; it is the consequence thereof that matters. (See: Kesavanda at para 532 and l.R. Coelho v. State of Tamilnadu (2007) 2 SCC 1 at Conclusion (ii) at page 111). H

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

138Copy pinpoint138. The terms "abridge" and "abrogate" have been employed by this Court to distinguish between acceptable and unacceptable legislation. Whether legislation abridges or abrogates is a question of degree. Using these terms is another way of asking whether the legislation had such an effect that it B changed the basic structure of the Constitution. If legislation merely abridges the basic structure, the structure's identity remains. The legislation i~ upheld. In this sense, the Parliament may take away or destroy fundamental rights by amending the Constitution, provided that the basic structure is not altered.

139Copy pinpoint139. If it abrogates the basic structure, the structure and thus the Constitution lose their identities. The legislation must be struck down. This is determined on a case-by-case basis by applying the effect test (impacUrights tests). (See: Coehlo). I further note that a total deprivation of fundamental rights, even D in one limited area, may amount to an abrogation of the basic structure. (See: Minerva Mills, para 59). • Step One: Does Article 15(5) affect a facet of the basic structure?

140Copy pinpoint140. In the instant case, Article 15(5) expressly precludes the application of Article 19(1 )(g). Whenever reservations are implemented under Article 15(5), citizens are stripped of their fundamental rights under Article 19(1 )(g). By excluding Article 19(1 )(g), Article 15(5) obviously affects Article 19(1 )(g), a facet of the basic structure of the Constitution. Step One is therefore cleared. What is more, Article 19(1 )(g) belongs to the Golden Triangle-Articles 14, 19 and 21 are the three fundamental rights that stand above the rest. Writing for the majority in Minerva Mills, Justice Chandrachud provides an eloquent justification for shielding the Golden Triangle from attack. To achieve a more egalitarian society, individual liberty must be protected: "Para 74 of Minerva Mills: Three Articles of our Constitution, and only three, stand between the heaven of ... freedom into which Tagore wanted his country to awake and the abyss of unrestrained power. They are Articles

ASHOKA KUMAR THAKUR v. LNION OF INDIA & ORS. 395 [DALVEER BHANDAR:, J)

14, 19 and 21. Article 31 C has removed two sides of that golden triangle which affords to the people of this country an assurance that the promise held forth by the Preamble will be performed by ushering ar ega:itarian era through the discipline of fundamenta1 rights, that is, without emasculation of the rights to liberty and equality which a~one can help preserve the dignity of the individual."

~ 141. The Golden Triangle's significance becomes clear when we consider that Governmert may suspend Article 14 and 19 rights in order to implement an emergency. (See: Articles c 358 and 359) (prior to the 44th Amendment, all Part :11 rights could be curtailed during emergency; this Amendment precludes the State from denying Articles 20 and 21 to cit:zer.s during emergency). In a sense, democracy is only restored when the Triangle is returned to the citizens. Without the Triangle, D democracy is impossible:

t, "para 63 ... Every State is goal-oriented and claims to strive for securing the welfare of its people. The distinction between the different forms of Government consists in that a real democracy will endeavour to achieve its E objectives through the discipline offundalT'ental freedoms like those conferred by Articles 14 and 19. Those are the most elementary freedoms without which a free democracy is impossible and which must therefore be preserved at all costs. Besides, as observed by F ,.," Brandies, J., the need to protect liberty is the greatest when Government's purposes are beneficent. If the discipline of Article 14 is withdrawn and if immunity from the operation of that article is conferred, not only on laws passed by the Parliament but on laws passed by G the State Legislatures also. the political pressures exercised by numerically large groups car tear the country ._ asunder by leaving it to the legislature to pick and choose ). favoured areas and favourite classes for preferential treatment." H

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

142Copy pinpoint142. United States Supreme Court Justice Brandeis' word of caution is relevant to today's dispute wherein the Government trumpets reservation in higher education as an answer to our age-old problems of poverty and caste. At first blush, it sounds as if reservation in higher education would help the backward B help themselves. The road out of poverty is paved with education. However, the "devil is the details." With elementary freedom on the line, I must carefully scrutinize those details.

143Copy pinpoint143. The right to freedom under Article 19 has been long recognized as a natural and inalienable right that belongs to all ~ . c citizens. Indeed, what would Independence mean without it? Chief Justice Sikri cites the following passage in Kesavananda at para 300: ''That article (Article 19) enumerates certain freedoms under the caption "right to freedom" and deals with those D great and basic rights which are recognised and guaranteed as the natural rights inherent in the status of a citizen of a free country." (Per Patanjali Sastri, C.J., in State of West Bengal v. Subodh Gopal Bose [1954] S.C.R. .: 587, 596)." E

144Copy pinpoint144. With fundamental rights in jeopardy, I shall review the cases in which the basic structure doctrine has been implemented to invalidate constitutional amendments. By looking at these cases synoptically, we get a sense as to how much damage the basic structure can withstand before crumbling. In Kesavananda, the second part of Article 31C ,\ precluded courts from reviewing whether a law under Article ... 39(b) or (c) promoted the policy for which it was enacted. This violated the basic structure. Article 31C was introduced by the 25th Amendment. G

145Copy pinpoint145. In Indira Nehru Gandhi v. Raj Narain & Another (1975) Supp SCC 1, the Court struck Article 329A(4) as violative of the basic structure. This provision appropriated the Court's power to adjudicate election laws, encroaching on the judiciary . ... H in violation of separation of powers. See Justice Matthew's

ASHOKA KUMAR THAKUR v. UNION OF INDtA & ORS 397 [DALVEER BHANDARI, J.]

opinion at para 325. It was introduced by the 39th Amendment. A In Minerva frl1ills, the Court held sections 4 and 55 of tre 42rn Amendment in violation of the basic structure. Section 4 sought to expand 31 C such that all laws giving effect to Directive Principles, not just those intended to promote Article 39(b) or (c), would be immune to an Article 14 or 19 challenge. Section B 55 would have barred judicial review of constitutional . amendments.

146Copy pinpoint146. In P. Sambamurthy v. State of A.P. (1987) 1 SCC 362, the Court invalidated Article 371-0(5), finding that the Parliament had violated the rule of law and consequently the c basic structure, by removing judicial review from the High Court and placing it in the hands of one of the parties - the State Government. In L. Chandra Kumar v. Union of India (1997) 3 SCC 261, the Court held that Articles 323A-2D and 3238-30 violated the basic structure in that they removed judicial review 0 of the High Courts and Supreme Court under Articles 226/227 and 32, respectively. These articles were introduced by the 42nd ..... Amendment to empower the Parliament or the State Legislatures to establish Tribunals for various substantive areas of law: tax, labour, criminal, etc. E

147Copy pinpoint147. Two broad themes surface from these cases. When judicial review is barred, democracy evaporates. And whe" Fundamental Rights are at stake, they must be harmonized with. not made subject to, the Directive Principles. Sections 4 and 55 of the 42rd Amendment were especially egregious violations F

" • of the basic structure. Had Section 4 been upheld, citizens' fundamental rights would have been at the mercy of one organ of Government. "If Governments always could be trusted. there would have been no need for Fundamental rights." Mr Palkhivala in oral arguments in Kesavananda, quoting from the learned Mr H.M. Seervai, who was opposing counsel ir. that case. Mr Palkhivala was reading from Seervai. H.M .. .. ~ "Fundamental Rights: A Basic Issue," published in three Installments in the Times of India, 14, 15, 16 February 1955 (See: Granville Austin at pages 263-264 in "Working a H

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

A Democratic Constitution")

148Copy pinpoint148. Government cannot be trusted; that is precisely why we divide its powers into separate organs. If it could be trusted, there would be no need for co-equal branches in which power is shared. Separation of powers is an axiom of democracy. 8

149Copy pinpoint149. Had Section 55 of the 42nd Amendment been upheld, the basic structure of the Constitution could have been destroyed by a single slash. Future constitutional amendments would not have been reviewed. The impugned Amendment looks rather c mild in comparison to the damage that would have been wrought by the 42nd Amendment. The impugned legislation limits one fundamental right in one limited circumstance. Yet an amendment need not be as invidious as the 42nd Amendment for us to invalidate it. If the standard were that high, amendments could destroy the basic structure or the essence of the 0 Constitution by a thousand slashes.

150Copy pinpoint150. Since Kesavananda's time, many amendments have been passed and many challenges under the basic structure have been made. This Court has used caution and E has refrained from using the doctrine, even when it may have been justified. For example, there were grounds for striking the entire 101h Schedule as violative of the basic s.tructure in Kihoto Hollohan v Zachil/hu & Others 1992 Supp (2) SCC 651. Rather than resort to the basic structure, this Court made a F narrow ruling on procedural grounds. (See: S.P. Sathe, Judicial Activism in India: Transgressing Borders and Enforcing Limits, 2nd Edn., 2002 (Oxford University Press) pages 92-93). The Court upheld the 1oth Schedule, only severing a paragraph from the same. I agree that an abundance of caution ought to be taken before employing the basic structure doctrine. The violation must truly abrogate the basic structure. Anything short of this standard must be upheld - the will of the people, through their elected representatives, heard. · 151. Before making such a determination, it is prudent to briefly revisit the rulings of two landmark cases: P.A. /namdar

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 399 [DALVEER BHANDARI, J.]

152Copy pinpoint152. At para 124, lnamdar held that the State cannot impose quotas on unaided (minority and non-minority) institutions. To do so would nationalize seats, contrary to Pai. (See: lnamdar at para 125). In dictum, Pai suggested that the State could compel unaided institutions to admit a reasonable percentage of students via reservation. (Pai, para 68). lnamdar clarified this point, stating that Pai should be read to mean that ().. the State and unaided institutions may enter into consensual agreement regarding reservation. (See: lnamdarat para 126). Unaided institutions (minority and non-minority) can admit as they choose, provided their process is fair, transparent, non- exploitative and merit-based. lnamdar stated: "124: So far as appropriation of quota by the State and enforcement of its reservation policy is concerned, we do not see much of difference between non-minority and F .,. • minority unaided educational institutions. We find great force in the submission made on behalf of the petitioners that the States have no power to insist on seat sharing in the unaided private professional educational institutions by fixing a quota of seats between the management and G the State. The State cannot insist on private educational institutions which receive no aid from the State to implement State's policy on reservation •. for granting admission on lesser percentage of marks, i.e. on any criterion except merit. H

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

A 125. As per our understanding, neither in the judgment of Pai Foundation nor in the Constitution Bench decision in Kera/a Education Bill, which was approved by Pai Foundation, there is anything which would allow the State to regulate or control admissions in the unaided B professional educational institutions so as to compel them to give up a share of the available seats to the candidates chosen by the State, as if it was filling the seats available to be filled up at its discretion in such private institutions. This would amount to nationalization of seats which c has been specifically disapproved in Pai Foundation. Such imposition of quota of State seats or enforcing reservation policy of the State on available seats in unaided professional institutions are acts constituting serious encroachment on the right and autonomy of private professional educational institutions. Such appropriation of seats can also not be held to be a regulatory measure in the interest of minority within the meaning of Article 30(1) or a reasonable restriction within the meaning of Article 19(6) of the Constitution. Merely because the resources of the State in providing professional education are limited, private educational institutions, which intend to provide better professional education, cannot be forced by the State to make admissions available on the basis of reservation policy to less meritorious candidate. Unaided institutions, as they are not deriving any aid from ... State funds, can have their own admissions if fair, transparent, non-exploitative and based on merit." G To the extent that Islamic Academy had approved of quotas in unaided institutions. a scheme in which the States could fix quota for seat sharing between management and the State, Islamic was overruled. [lnamdar at para 130]

153Copy pinpoint153. In T.M.A. Pai Foundation (supra) para 2 (eleven- H

ASHOKA KUMAR THAKUR v UNION OF INDIA & ORS. 40 1 [DALVEER BHANDARI, J.]

Judge Bench), private educational institutions, aided and A t unaided. filed writ petitions to challenge regulations that impeded their rights. They warted to establish and admirister educational institutions, unfettered by Government interference. [para 2]. Reading Article 29(2) and 30(1) harmoniously, the six- Justice majority held that (1) unaided institutions could admit B students free of Government interference, as long as their admission process was transparent and merit-based; (2) minority aided institutions may still admit their own students, contingent upon admitting a reasonable number of non-minority students per the percentage provided by the State Government. c

154Copy pinpoint154. For our purposes, it is important to note that education falls within the meaning of "occupation" under 19(1 )(g). This is so because a large number of persons are employed as teachers and administrative staff. For them, education is an occupation. Pai stated: D "20: "Article 19(1)(g) employs four expressions, viz., \~ profession, occupation, trade and business. Their fields may overlap, but each of them does have a content of its own. Education is per se regarded as an activity that is charitable in nature [See The State of Bombay v R.M.D. E Chamarbaugwala, . . . Education has so far not been regarded as a trade or business where profit is the motive. Even if there is any doubt about whether education is a profession or not. it does appear that education will fall ,.... within the meaning of the expression ;·occupation". Article F 19(1 )(g) uses the four expressions so as to cover all activities of a citizen in respect of which income or profit is generated, and which can consequently be regulated under Article 19(6). G 25 The establishment and running of an educational institution where a large number of persons are employed • ~ as teachers or administrative staff. and an activity is carried on that results in the imparting of knowledge to the students, must necessarily be regarded as an H

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

A occupation, even if there is no element of profit generation. It is difficult to comprehended that education, per se, will not fall under any of the four expressions in Article 19(1)(g). "Occupation" would be an activity of a person undertaken as a means of livelihood or a mission B in life .... "

[emphasis added]

155Copy pinpoint155. Stripping private unaided institutions of their right to ~

select students would be unreasonable: c "para 40: Any system of student selection would be unreasonable if it deprives the private unaided institution of the right of rational selection, which it devised for itself, subject to the minimum qualification that may be prescribed and to some system of computing the D equivalence between different kinds of qualifications, like a common entrance test. Such a system of selection can involve both written and oral tests for selection, based on / principle of fairness."

156Copy pinpoint156. Like Article 15(5) in the instant case, Unni Krishnan E effectively nationalized education. Pai overturned Unni Krishnan. (See: para 45). "38: The scheme in Unni Krishnan's case has the effect of nationalizing education in respect of important features, viz., the right of a private unaided institution to ). give admission and to fix the fee. By framing this scheme, ... which has led to the State Governments legislating in conformity with the scheme the private institutions are undistinguishable from the Government institutions; curtailing all the essential features of the right of administration of a private unaided educational institution can neither be called fair or reasonable."

157Copy pinpoint157. Pai traces the autonomy of institutions back to ~ • Chitralekha and Rajendran. The proposition is simple: he who funds or runs the institution holds the power to select students.

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 403 [DALVEER BHANDARI, J.]

The State cannot ask these institutions to abridge this right in exchange for affiliation/recognition. The relevant paragraphs are reproduced hereunder: "36: The private unaided educational institutions impart· education, and that cannot be the reason to take away their choice in matters, inter a/ia, of selection of students and fixation of fees. Affiliation and recognition has to be available to every institution that fulfills the conditions for ~ grant of such affiliation and recognition. The private institutions are right in submitting that it is not open to the Coutt to insist that statutory authorities should impose c the terms of the scheme as a condition for grant of affiliation or recognition; this completely destroys the institutional autonomy and the very objective of establishment of the institution. D

42. In R. Chitralekha and Anr. v. State of Mysore and Ors.[citation omitted], while considering the validity of a '~ viva-voce test for admission to a Government medical college, it was observed at page 380 that colleges run by the Government, having regard to financial commitments and other relevant considerations, would only admit a E specific number of students. It had devised a method for screening the applicants for admission. While upholding the order so issued, it was observed that "once it is conceded, and it is not disputed before us, that the State ... Government can run medical and engineering colleges, F I( it cannot be denied the power to admit such qualified students as pass the reasonable tests laid down by it. This is a g_ower which everv g_rivate owner of a College will have, and the Government which runs its own Colleges cannot be denied that g_ower." (italics added by Pai; G underscore is mine). ;. ,. 43. Again, in Minor P Rajendran v. State of Madras and Ors ... , it was observed at page 795 that "so far as admission is concerned, it has to be made by those who H

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

A are in control of the Colleges, and in this case the j Government, because the medical colleges are Government colleges affiliated to the University In these circumstances, the Government was entitled to frame rules for admission to medical colleges controlled by it B subject to the rules of the university as to eligibility and qualifications." The aforesaid observations clearly underscore the right of the colleges to frame rules for admission and to admit students. The only requirement or control is that the rules for admission must be subject to ., c the rules of the university as· to eligibility and qualifications. The Court did not say that the university could provide the manner in which the students were to be selected.