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

61. In the case of unaided private schools, maximum autonomy has to be with the management with regard to administration, including the right of appointment, disciplinary powers, admission of students and the fees 1 )>- to be charged."

158Copy pinpoint158. Unaided institutions may admit students of their choice, subject to an objective and rational procedure of selection. They might admit a small percentage of students belonging to the weaker sections of the society by granting those sections freeships or scholarships, if not granted by the Government. [See: Pai at para 53]. Given a transparent and reasonable selection process, it is up to the institution to define >. "merit" according to its own values. Pai stated: ... "65. The reputation of an educational institution is established by the quality of its faculty and students, and the educational and other facilities that the colleges has to offer. The private educational institutions have a personality of their own, and in order to maintain their atmosphere and traditions, it is but necessary that they ... must h< ve the right to choose and select the students ... who can be admitted to their courses of studies. If is for -:H

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this reason that in the St. Stephen's College case, this A t Court uphe1d the scheme whereby a cut-off percentage was fixed for admission, after which the students were interviewed and thereafter selected. While an educational institution cannot grant admission on its whims and fancies, and must follow some identifiable or reasonable B methodology of admitting the students, any scheme, rule or regulation that does not give the institution the right to - . reject candidates who might otherwise be qualified according to say their performance in an entrance test, would be an unreasonable restriction under Article 19(6), c though appropriate guidelines/modalities can be prescribed for holding the entrance test a fair manner. Even when students are required to be selected on the basis of ment, the ultimate decision to grant admission to the students who have otherwise qualified for the grant of admission must be left with the educational institution concerned. However, when the institution rejects such •~ students, such rejection must not be whimsical or for extraneous reasons."

159Copy pinpoint159. The Court distinguishes between reasonable and unreasonable regulations by asking which functions lie at the heart of an institution's autonomy. Regulations that strike at tr.e core of autonomy are unreasonable. For example, prescribing minimum qualifications for teachers is a reasonable regulation; actually selecting the teachers is not. F .. • "55. But the essence of a private educational institution is the autonomy that the institution must have in its management and administration. There, necessarily, has to be a difference in the administration of private unaided institutions and the Government-aided institut:ons. G Whereas in the latter case, the Government will have greater say in the administration. including admissions • ~ and fixing of fees. :n the case of private unaided institutions, maximum autonomy in the day-to-day administration has to be with the private unaided institutions. Bureaucratic or H .. ~

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A Governmental interference in the administration of such an institution will undermine its independence. While an educational institution is not a business, in order to examine the degree of independence that can be given to a recognized educational institution, like any private entity B that does not seek aid or assistance from the Government, and that exists by virtue of the funds generated by it, including its loans or borrowings, it is important to note that the essential ingredients of the management of the -t - private institution include the recruiting students and staff, c and the quantum of fee that is to be charged."

160Copy pinpoint160. The same argument was framed in similar terms in St. Stephen's College v. University of Delhi, 1992 (1) SCC

558. In that case, the Court distinguished regulations based on whether they directly or indirectly affected management. Those D that indirectly affected management were reasonable; those that directly affected the management of the institution were not. [Pai at para 125]. ;- ~

161Copy pinpoint161. In St. Stephen's, this Court referred to the earlier decisions, and with regard to Article 30(1) observed at page E 596, pa,ragraph 54, as follows: r " ... But the standards of education are not a part of the management as such. The standard concerns the body politic and is governed by considerations of the F advancement of the country and its people. Such J regulations do not bear directly upon management although they may indirectly affect it. The State, therefore has the right to regulate the standard of education and allied matters."

162Copy pinpoint162. Once a private institution (non-minority) takes aid, it is subject to (1) reservation and (2) regulation of administration and maintenance of the institution. Pai stated:

"71: "While giving aid to professional institutions, it would . .. be permissible for the authority giving aid to prescribe by H

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 407 [DALVEER BHANDARI, J.]

rules or regulations, the conditions on the basis of which admission will be granted to different aided colleges by virtue of merit, cougled with the reservation 12olicy of the state, ...

72: "Once aid is granted to a private professional educational institution, the Government or the state agency, as a condition of the grant of aid, can put fetters on the freedom in the matter of administration and ~ .... management of the institution. The state, which gives aid to an educational institution, can impose such conditions as are necessary for the proper maintenance of the high c standards of education as the financial burden is shared by the state .... "

163Copy pinpoint163. I now query if the Parliament may subject Article 19(1 )(g) to Article 15(5), when this Court has held that reservation in unaided institutions is an unreasonable restriction that cannot be saved by Article 19(6) . ... 164.1 answer this question in the affirmative. The structure of our Constitution permits fundamental rights, and even the Golden Triangle of Articles 14, 19 and 21, to be abridged in limited circumstances. To say that subjecting Articles 19(1 )(g) ··-, to 15(5) violates the basic structure per se is to ignore the examples in which the most fundamental of rights is limited. Article 16(4) expressly limits the right to formal equality in 16(1 ), a specific facet of Article 14. In this light, Article 16(4) impliedly F ~ • limits the general right to formal equality in Article 14. The right to equality is expressed in the negative in 15(1 ): the State shall not discriminate based on religion, race, caste, etc. In other words, the State shall treat citizens of different religions, races and castes equally. Like Article 16(4), Article 15(4) limits 15(1) G - another facet of Article 14 formal equality - such that egalitarian equality may be pursued. Generally speaking, • ~ Articles 15(3) and (4) and 16(4) allow the State to impose affirmative action programs on the public sector. Such provisions necessarily limit the right to formal equality. If the right to equality, H

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A considered by some as a basic postulate of the Constitution, has been limited, a fortiori Article 19(1 )(g) can be too.

165Copy pinpoint165. Along these lines, I could turn to Articles 31A, 318 and 31 C for further support. Those Articles exclude challenges under Articles 14 and 19. In agreement with Dr. Dhavan's 8 submission, I decline to rely on Articles 31A, 318 and 31C for support. As explained in Minerva Mills, the Court had previously upheld Article 31A out of concern for stare decisis. The Court never approved of the exclusion of Articles 14 and 19 on a "f - - principled basis. Nor did it make a ruling as to whether the c exclusion violated the basic structure. (See: para 71-72 of Minerva Mills. See also para 43 of Waman Rao, (1981) 2 sec 362).

166Copy pinpoint166. A basic structure challenge becomes an issue of institutional competence. Is it for the legislature to decide what D is a reasonable restriction under 19(1 )(g) read with 19(6)? Or is it for the judiciary? It is well established that the Parliament, expressing the will of the people, may enact amendments to ,. overrule a judgment of this Court. The First Parliament added Article 15(4) to the Constitution to overrule State of Madras v. E Champakam Dorairajan, AIR 1951 SC 226. Other examples include the 77th Amendment, which overruled Sawhney I by adding Article 16(4-A); the 81 st Amendment further overruled Sawhney I by adding Art 16 (4-8); the 82nd Amendment overruled S. Vinod Kumar & Another v. Union of India & F Another (1996) 6 SCC 580 by amending Article 335; and the )

35th Amendment overruled Virpal Singh Chauhann and Ajit • Singh I by amending Article 16(4-A), (1995) 6 sec 684 and (1996) 2 SCC 715, respectively. Nevertheless, the duty to interpret the content of our fundamental rights has been left to G the Courts. "The important point to be noted is that the content of a right is defined by the Courts. The final word on the content of the right is of this Court." (Nagaraj at para 21 ). (emphasis added). While the Parliament may amend the Constitution, it ~ .. r cannot alter the Constitution's basic structure. (See: H Kesavananda, Indira Nehru Gandhi (Election Case),

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 409 [DALVEER BHANDARI, J.]

Minerva Mills, Sambamurthy, L. Chandra Kumar and A Coelho). Step Two: Does Article 15(5) affect Article 19(1 )(g) to such an extent that Article 19(1 )(g)'s original identity has been altered? B

167Copy pinpoint167. In other words, does Art 15(5) in effect merely abridge or completely abrogate Article 19(1 )(g). If the former, 15(5) stands. If the latter, it falls. As noted above, Coelho directs me ?- to apply the !mpact/rights test to determine whether the basic structure has been violated. [See Coehlo at Conclusion (ii) at c page 111]. Thus, my query is whether to consider the impact on the entire constitutional framework, or to examine the effect on citizens engaged in unaided education as an occupation. I think it is the latter. I am not concerned here with those engaged in education in aided institutions. One is naturally subject to greater regulation when one relies on Goverr.ment funding. (See: Pail lnamdar). Individual liberty and freedom, as protected by the Jo ,, Golden Triangle, must carry greater weight for those who set off on their own and refuse Government money.

168Copy pinpoint168. This brings me to the question as to how large I should draw the circle when I ask who is affected by reservation in unaided :nstitutions. Justice Chandrachud provides that "[a] total -,; deprivation of fundamental rights, even in a limited area, can amount to abrogation of fundamental right just as a partial deprivation in every area can." (See: Minerva Mills, para 59). F

.. " 169. Freedom under Article 19 belongs to individual citizens. Article 19(1 )(g) provides that "all citizens shall have the right to practice any profession. or to carry on any occupation, trade or business." The reference to "all citizens" means that each and every individual citizen possesses Article 19 rights. G For the impugned legislation to fall, it need not touch every sphere of society. If even one individual's freedom has been ~ curtailed, this Court is duty bound to entertain his or her claim. It ). is he or she who possesses the Article 19(1 )(g) right to carry on an occupation. H

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170Copy pinpoint170. If 15(5) were implemented, the educator in unaided institutions would still have students to educate. I use "educator" ~ in the broadest sense of the term and include teachers, professors, lecturers, faculty, staff, administrators and those who finance institutions. Without one of the aforementioned, the B institution cannot function properly.

171Copy pinpoint171. Though affected by reservation, the educator still has a job. His occupation remains intact. Students will come. Classes will commence. Marks will be distributed. The greatest ~ impact on the educator is that neither he nor his institution will c choose whom to teach.

172Copy pinpoint172. Almost half of the time (49.5%), the State would decide for them. Selecting students or employees goes to the heart of an organization's autonomy. The essence of an unaided educational institution is the freedom to manage its affairs, according to Pai at paragraph 55. That is, " ... the essential ingredients of the management of the private institution include the recruiting [of] students and staff ...." The same argument ,.. .. was framed in similar terms (at para 54) in St. Stephen's College (regulations imposing standards of education upheld, because they " ... do not bear directly upon management although they may indirectly affect it ... "). This Court has stated in Pai as clarified by lnamdarthat subjecting unaided institutions is an unreasonable restriction. As noted, Article 19(6) provides no safe haven for reservations. F

173Copy pinpoint173. The Government-imposed selection of students in ... turn has wide-ranging consequences for unaided institutions and ~

their educators. I am required to examine the effect of the impugned Amendment. At least four problems will likely arise: G (1) academic standards suffer; (2) attracting and retaining good faculty becomes more difficult; ~ . (3) the incentive to establish a first rate unaided institution is diminished;

I ~ ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 411 [DALVEER BHANDARI, J.]

(4) and ultimately the global reputation of our unaided institutions is severely compromised.

174Copy pinpoint174. First, once the State tells them whom to teach, standards of excellence will suffer. This is because those institutions will no longer be able to admit the highest-scoring students. As good as some of our institutions are, they do not 8 teach blank slates. The best universities are the best, in part, because they attract the best students. The same can be said for almost any organization. In the case of higher education, the . " universities that admit the best will likely churn out the best. The c precise extent to which the university made the best so good cannot be qualified. The point is that universities alone cannot produce qualified job candidates. Forced to admit students with lower marks, the university's final product will not be as strong. Once the creamy is excluded, cut-off marks would likely drop considerably in order to fill the 27% quota for non creamy layer D OBCs. When the creamy layer is not removed, as in the case of .. 'r' Tamil Nadu, the difference in cut off marks for the general and backward categories may be insignificant. (See para 408 of Sawhney /). Of course, the extent to which standards of excellence would suffer would vary by institution. As I mention E below, I urge the Government to set OBC cut off marks no lower than 10 marks below that of the general category. This is only a recommendation, however. It may never be adopted.

175Copy pinpoint175. Second, reservations weaken the incentive to establish unaided institutions: if the State usurps the right to F .. .... select students, would one still spend the time and money to establish an unaided institution? The question is all the more relevant today. Counsel for petitioners posit that tomorrow's knowledge economy requires a well-educated populace. "Well- educated" does not imply a string of degrees from less than G taxing institutions. Rather, it means that one will possess the skills, knowledge and creativity to compete globally. Our ;. unaided institutions must remain places where these traits are ')._ refined. H

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176Copy pinpoint176. Third, those inclined to teach the brightest students have even less of a reason to leave private sector jobs for the i teaching profession or to join the profession in the first place. "Brightest" would come with an asterisk. They would be the brightest available under the Government's reservation scheme. B These potential teachers may ask themselves: how will I teach a class in which half the students are advanced relative to the other half? In many institutions, the shortage of top-rate faculty will only get worse. Fourth, reservations may have a negative impact on students seeking employment in the burgeoning -f

c knowledge economy. Recruiters have begun to trickle into campuses. They hail from domestic as well as international entities, ~md they too may take note of reservations in unaided institutions. The effect on educators, from the top down, would be felt. For them, little more than a semblance of occupation would remain. D

177Copy pinpoint177. Given the dramatic effect that reservations would have on educators, the unaided institutions in which they teach and, consequently, society as a whole, Article 19(1 )(g) has been more ..,. ... than abridged. When education is effectively nationalized, E freedom stands obliterated. The identity of the Constitution is altered when unreasonable restrictions make a fundamental right meaningless. The 93rd Amendment's imposition of reservation on unaided institutions has abrogated Article 19(1 )(g), a basic feature of the Constitution, in violation of our F Constitution's basic structure. Therefore, I sever the 93rd Amendment's reference to "unaided" "' ,. institutions as ultra vires of the Constitution.

178Copy pinpoint178. The case law on severability asks the following question: had the Parliament known its provision would be G severed would it still have passed the rest of the legislation? (See: R.M.D. Chamarbaugwalla (supra)).

179Copy pinpoint179. At page 943 of R.M.D. Chamarbaugwalla (supra), ... ~ the Court relied in part on The State of Bombay & Another v. H F.N. Balsara (1951) SCR 682, where the question at issue was

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. . 413 [DALVEER BHANDARI, J.]

whether the Bombay Prohibition Act was valid: A Sections 12 and 13 of the Act imposed restrictions on the possession, consumption and sale of liquor, which had been defined ins. 2(24) of the Act as including "(a) spirits of wine, methylated spirits, wine, beer, toddy and all liquids consisting of or containing alcohol, and (b) any other intoxicating substance which the Provincial Government . may, by notification in the Official Gazette, declare to be liquor for the purposes of this Act". Certain medicinal and toilet preparations had been declared liquor by notification issued by the Government under s. 2(24)(b). The Act was attacked in its entirety as viol.atiVe of the rights protected by Art. 19(1)(f). But this Court held that the impugned provisions were unreasonable and therefore void in so far as medicinal and toilet preparations were concerned, but valid as to the rest. Then, the contention was raised that D "as the law purports to authorise the. imposition of a restriction on a fundamental right in language wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affeCting such right, it is not possible to uphold it even so far as ii may be ·E applied within the constitutional limits, as it is not severable". In rejecting this contention. the Court observed: 'These items being thus treated separately by the legislature itself and being severable, and it is not being contended, in view of the directive principles of State policy regarding prohibition, that the restrictions imposed upon the right to possess or sell or buy or consume or use those categories of properties are unreasonable, the impugned sections must be held valid so far as these categories are concerned.' This decision is clear authority that the principle of severability is applicable even when Act's invalidity arises by reason of its contravention of constitutional H_,,.

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A limitations."

180Copy pinpoint180. At page 944, the court in R.M.D. Chamarbaugwalla sought guidance from American case law on severability: "In discussing the effect of a severability clause, Brandies, B J. observed in Dorchy v. State of Kansas (1924) 264 US 286 that it "provides a rule of construction, which may sometimes aid in determining that intent. But it is an aid merely; not an inexorable command". The weight to be attached to a classification of subjects made in the statute c itself cannot, in our opinion, be greater than that of a severability clause."

181Copy pinpoint181. The court in R.M.D Chambarbaugwalla went on to cite Patanjali Sastri, C.J., in The State of Bombay & Anotherv. The United Motors (India) Ltd. & Others (1953) D SCR 1069: "dealing with the contention that a law authorizing the imposition of a tax on sales must be declared to be wholly .., • void because it was bad in part as transgressing constitutional limits observed: E 'It is a sound rule to extend severability to include separability in enforcement in such cases, and we are of opinion that the principle should be applied in dealing with taxing statutes in this country."'

182Copy pinpoint182. Here, I believe the Parliament would have gone _. forward without unaided institutions. While some Members of • Parliament sought to overrule Pai and lnamdar, the Parliament's actions speak louder than its words. Once it had passed Article 15(5), it limited itself to imposing greater reservations on aided G institutions. Had unaided institutions been the Parliament's priority, it could have included them in the Reservation Act. It seems that the Parliament's intent is to pass as much reservation as possible. That would explain why it has gone forward with -4' . 27% reservation for OBCs without confirming that at least 27% H of the population is OBC. For these reasons, I conclude that

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 415 roALVEER BHANDARI, J.]

had the Parliament known that unaided institutions were going A to be severed, it would have nevertheless carried out its reservation scheme for aided institutions.

4. The Casteless and Classless Society versus Caste-based Reservation: B

183Copy pinpoint183. The caste system is peculiar to this country. Perhaps the entire society has been divided on the basis of caste. This social problem can be compared to some extent with that of American society. In the US., the problem of racial discrimination has existed for centuries. The cases of affirmative c action decided in the United States are relevant. They show us how that society has dealt with the problem of racial discrimination. At the outset, I would like. to make it clear that decisions of foreign countries are not binding on Indian courts. Indian Courts have not adopted American standards of review. D But the judgments delivered by U.S. courts on affirmative action have great persuasive value and they may provide broad • ..,. guidelines as to how we should tackle our prevailing cordition . A large number of English laws have been inherited by India and America. English and American cases are frequently cited by our courts. We need to keep our window open and permit the light of knowledge to enter from any source. In this ligi"t, I shall refer to some US decisions. • Affirmative Action cases and standards of review from the United States: F ... ~

184Copy pinpoint184. In 1978, Regents of the University of California v. Bakke put an end to reservation ("quotas") in education (reserving 16 out of 100 seats for minorities in IT'edical school deemed unconstitutional). (438 U.S. 265). Justice Powell's concurring judgment is considered the key opinion in the case. G

185Copy pinpoint185. Justice Powell concluded that diversity was a ,,. compelling State interest that could withstard strict scrutiny. ~ Relying on Bakke, the court later reaffirmed preferential treatment in college admissions as a means to ensure diversity H

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A 1n the classroom - racial diversity being just one among many i types of diversity ("overcoming personal adversity and family hardship" was another form of diversity), (See: Grutter v. Bollinger, 539 U. S. 306, 338 (2003)). The Grutter Case insisted that universities make an individualized evaluation of a B student seeking admission, rather than one that mechanically accepted or rejected students on the basis of race. (Grutter at 337). Such an evaluation would ensure that race was only considered as one type of diversity, rather than a pretext for achieving racial balance. Quotas could not be covertly installed c in the name of diversity. This reasoning led the court to strike down an admission scheme that automatically assigned more points to minority students than to residents of the State or to athletes, for example. (Gratz v. Bollinger, 539 U.S. 244, 270).

186Copy pinpoint186. Justice O'Conner for the majority in Grutter came to D a very significant conclusion. She suggested that there was time limit on preferential treatment for certain races as a means of promoting diversity. Justice O'Connor stated: "we expect that y • 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today."

187Copy pinpoint187. In Parents Involved in Community Schools v. Seattle School District No.1 et al, reported in 168 Lawyers Ed. 2d 508 & 517 (2007), school districts used a student's race to assign that student to a particular school within the district. In Seattle, this was done to achieve racial balance amongst the district's schools. One school should not be overwhelmingly ~

white, another all non-white. Unlike the system approved in Grutter, race was not just one among many types of diversity that was considered by the district in assigning students. Seattle at 525. Instead, it was, at times, the decisive factor. The court held the programmec:; unconstitutional. Chief Justice Roberts summed up the plurality's view on racial classifications· "the way to stop discrimination on the basis of race is to stop discriminating on the basis of race." -"'

188Copy pinpoint188. This was far from a complete victory for the plurality. H

- ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. [DALVEER BHANDARI, J.] 417

In his concurring opinion, Justice Kennedy found the A programmes unconstitutional. However, he would not go so far as to treat all racial balancing as per se unconstitutional. He considered the plurality opinion to represent • ... an all-too- unyielding insistence that race cannot be a factor in instances, when, in [his] view, it may be taken into account." (Seattle at s 565).

189Copy pinpoint189. Justice Kennedy found that schools have a compelling interest to prevent racial isolation or achieve a diverse student population. (Seattle at 572). Like Justice Powell's concurring opinion in Bakke, Justice Kennedy's concurring opinion leaves C the door open for further use of racial classification for so-called benign purposes in school admissions.

190Copy pinpoint190. More important than any one case are the standards by which the court scrutinized discriminatory legislation. Of 0 course, Indian courts have not accepted the .. principles of narrow tailoring and strict scrutiny. Nevertheless, we should seek guidance from any corner and permit the light from any quarter.

191Copy pinpoint191. Whenever legislation is challenged as E unconstitutional, courts must ask themselves how much deference they will give to the legislature. The answer is that it depends on the nature of the impugned legislation. The United States Supreme Court has evolved three standards of review for Government action that treats different people differently. The F first is the rational basis standard. When the classification is rationally related to any legitimate Government purpose, the court defers to the State and upholds the classification. This is the most deferential of the three standards. The second standard is intermediate scrutiny, which is less deferential to Government. G Here, the court asks whether the classification is substantially related to any important Government purpose. The third and highest level of review is known as strict scrutiny, whereby the ... court requires that the classification are narrowly tailored to a compelling state interest. Strict scrutiny test is the least H

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A deferential to Government. i

192Copy pinpoint192. Of the classifications on which there is case law, the one that most closely resembles caste is race. This is because both are immutable traits. They are used by the powerful, or those seeking power, to justify oppression. Racism and casteism B have long haunted both Nations. In the United States, race raises red flags. It is often, though not always, reviewed under strict scrutiny: "Government action dividing people by race is inherently suspect because such classifications promote 'notions of racial inferiority and lead to a politics of racial hostility,' c (Croson at 102 L. Ed. 2d 854) and "racial classifications are simply too pernicious to permit any but the most exact connection between the justification and the classification." (Gratz v. Bollinger, 539 U.S. 244, 270 (quoting J. Stevens' dissent in Fullilove v. Klutznick, 448 U.S. 448, 537)). D

193Copy pinpoint193. Legislation whose text does not classify based on race is considered facially neutral. When facially neutral legislation has a disproportionate impact on a particular race, .., • American courts ask whether it was passed with an intention to discriminate. If no intention is found, the rational basis test applies. [See: Hernandez v New York, 500 U.S. 352 (1991) (quoting from Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264-265 (1977)]: "A court adu1essing this issue must keep in mind the fundamental principle that "official action will not be held unconstitutional solely because it results in a racially ....

disproportionate impact. ... Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause." G See also Washington v. Davis, 426 U.S. 229, 239 (1976). The exception to this rule is Yick Wo v. Hopkins, 118 U.S. 356 (1886), where extreme disproportionate impact warranted greater scrutiny. Where there is disproportionate impact and .. discriminatory intention, then even facially neutral legislation " H triggers strict scrutiny. However, in this framework, affirmative

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 419 [DALVEER BHANDARI, J.]

action classifies on the face of legislation and automat\cally gets A strict scrutiny treatment.

194Copy pinpoint194. As I have observed, American courts carefully rev~ew racial classifications. Given that the 93rd Amendment on its face discriminates against general category students, we should give it careful scrutiny. The Article 14 right to formal equality deserves 8 as much. If 49.5% caste-based reservation was upheld in Sawhney I for Government employment, it follows that 49.5% caste-based reservation is permitted in aided educational institutions. While I compelled by Sawhney I to hold that the impugned legislation passes careful scrutiny with respect to c reservation in aided institutions, its implementation is contingert upon the directions given in this opinion. • The Framers' ultimate goal: the Classless and Casteless society: D

195Copy pinpoint195. Did the original Framers intend to provide caste- ~ based reservation in education to the lower classes? No, the v original Framers did not. Soon after the Constitution was adopted, the very same Framers acted quickly to permit reservation for SC/ST/SEBCs in education by adding Art 15(4), E vide the First Amendment, to the Constitution. In doing so, they deviated from their own goal- the caste less society would have to wait. In Sawhney I, the Court upheld this decision and bound us to a certain degree on this point. I have no cl"oice but to uphold the impugned legislation by which the Government l'T'ay F " still identify SEBCs, in part, by using caste. "

196Copy pinpoint196. Caste-based reservation was initially a temporary measure that was to only last for ten years. The original Framers considered caste-based reservation a necessary evil. Thus. they limited it in time. Extending this time limit has only exacerbated G casteism.

... 197. The Parliamentary Debates clearly reflect that the • ultimate aim of reservation was a casteless and classless society for India . To this end, reservation should only be given H

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A for a specific period of time. If these reservations or benefits have to continue perpetually, then the basic goal of achieving casteless and classless society would never be accomplished.

198Copy pinpoint198. The need for caste-based reservation has "worn out" over time. Evidence for the proposition that caste is no longer a 8 valid determinant of one's ability to move up in society is strong. More than the way society judges you based on caste, the relevant question is whether caste precludes you from rising. If caste doesn't, then what does? The answer is simple: money.

c 199. Income is a much better determinant of educational achievement than caste. The table below was derived from the Reproductive Child and Health Survey, 2002-2004 (600,000 households surveyed). Average years of schooling: D SC OBC Upper caste Hindu Poorest Rural Quintile 1.6 1.7 2.2 y • Richest Rural Quintile 5.1 5.5 6.1 E For the upper caste, caste barely helps. These numbers indicate that it is one's income, not caste, that makes a real difference in determining how much schooling one completes. Therefore, if income be the bar to education, economic criteria should be the means by which we identify beneficiaries of F special provisions under Article 15(5). • No original intent to provide caste-based quotas in education:

200Copy pinpoint200. As drafters, the original Framers were prolific. They G made our Constitution the world's longest- removing as many doubts as possible and in that way limiting the Court's role. The Constitution contains a number of Articles that reserve seats for various groups. The original Framers, however, imposed . various limitations on reservation. These limitations provide H insight into the original Framers' compromise between formal

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and substantial/egalitarian equality. A }

201Copy pinpoint201. Reservation is only provided for certain groups (SC, ST and backward classes) in certain areas of the public sector. (See: Article 16(4) (reservation of posts in Government service for backward classes), Article 330 (reservation of seats for SC and ST in the Lok Sabha) and Article 332 (reservation of seats 8 for SC and ST in Legislative Assemblies of the States)).

202Copy pinpoint202. Dr Ambedkar stated that "the report of the Minorities Committee provided that all minorities should have two benefits or privileges, namely representation in the legislatures and c representation in the services." (emphasis added) (See: CAD, 26 August 1949, vol. 9, p. 702). Given this limitation, we must take extra caution when reviewing the constitutionality of adding additional benefits.

203Copy pinpoint203. Article 334 fixed a 10-year time limit on the legislative D reservations provided in Articles 330 and 332. In the discussion • regarding draft Article 292, Sardar Hukam Singh said, "we are ~ accepting this reservation of seats [in legislative bodies] as an unavoidable evil for the present, thought it is only for the Scheduled Castes and scheduled tribes." (See: p. 645, E Constituent Assembly Debates, Vol. 9, 24 August 1949).

204Copy pinpoint204. Shri Singh's comment sums up the limitations on legislative reservation. OBC/SEBCs were excluded, and reservations were limited in time. Unlike the legislative .._ reservations, Article 16(4) contains no fixed time limit. It does, F ., however, preclude the State from making reservations in Government service if the backward classes are adequately represented. The idea is that, at some point in time, the backward classes would no longer need reservations. G

205Copy pinpoint205. In discussing draft Article 10 (Article 16(4) of the Constitution), Pandit Hirday Nath Kunzru stated: . ~ "We are all aware that when the Report of the Minorities Committee was considered by the House, the entire House was anxious that reservations of whatever kind H

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A should be done away with as quickly as possible. .. . ~ whatever protection might be considered necessary now, should be granted temporarily only, so that the population of the county might become fully integrated, and no community or class might be tempted to claim special B advantage for itself." (CAD Vol.7 dated 301h November 1948, p. 681)" (emphasis supplied) Instead of moving to remove reservations, the Parliament ~ ... c has gone the other way by extending time limits and adding beneficiaries. Article 15(5) is just the latest example.

206Copy pinpoint206. While the original Framers went out of their way to put SC/ST in the Parliament and State Assemblies and SC/ST/ backward classes in Government service, they did not reserve D a single classroom seat. Instead, Article 29(2) prohibited caste- based discrimination in admissions, and Article 15(2) prohibited caste-based discrimination in general. Education was to remain reservation-free. .. •

207Copy pinpoint207. When preferential treatment was given in regard to education, it was limited to educational grants. There was no question of doling out reservations for special groups. Article 337 provided educational grants to Anglo-Indian schools for the benefit of that community. In the spirit of conciliation, the original Framers allowed the grants that were already going to those schools to continue for 10 years. (See: p 936-941 of Constituent ..\ Assembly Debates, Vol. 8 1949). ~

208Copy pinpoint208. Rather than advocate for reservation, the original Framers preferred free/compulsory education and scholarships. In the debate on Draft Article 294, Shri Brajeshwar Prasad stated that reservation in legislative bodies would fail to uplift SC/ST. Instead, he sug~ested that: "it should be laid down clearly in express terms that ... ,; - free education shall be imparted to them .... [and] for the tribals and Harijans provision must be made in the

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 423 [DALVEER BHANDARI, J.]

constitution that free agricultural lands should be given to them. If we cannot give any one of these, I am quite clear in my own mind that by giving them a few seats here and there, their economic condition and their educational level will in no way be improved. (CAD, Vol. 9, 24 August 1948, pages 663-664)" B (emphasis supplied)

209Copy pinpoint209. Shri Prasad's comments are relevant because he recognizes the limited effect of reservation. Rather than reserve seats for a few, he advocated for free education for all. c

210Copy pinpoint210. In the debate regarding Article 15 of the Constitution, Syed Abdur Rouf summed up the essence of the provision: "The intention of this article is to prohibit discrimination against citizens." (See: p. 650 of CAD, Vol.7, 29 Nov 1948). This intention was only qualified for women and children. In fact, the original Framers rejected an amendment that would have C' watered down Article 15's prohibition against discrimination. ~ Prof. K. T. Shah sought special protection for SC/ST. He wanted to ensure that Article 15 would allow SC/ST to benefit from affirmative action. To this end, he introduced an amendment that would have altered 15(3) to read as follows: "Nothing in this article shall prevent the State from making any special provision for women and children or for the Scheduled Castes or backward tribes, for their advantage, safeguard or betterment." (Shah amendment in italics). Prof. Shah proposed the F , ~ amendment "... so that any special discrimination in favour of them may not be regarded as violating the basic principles of equality for all classes of citizens in the country. They need and must be given for some time to come at any G rate, special treatment in regard to education, in regard to opportunity for employment. and in many other cases • ~ where their present inequality, the present backwardness is only a hindrance to the rapid development of the cour,try. . .. equality is not to be equality of name only or on paper H

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A only, but equality of fact. [pages 655-656 CAD, Vol. 7, 29 November 1948]." 1.

(emphasis supplied)

211Copy pinpoint211. Relevant to the instant case, he explains that his B amendment would allow the State to provide SC/ST special treatment in regard to education. In other words, Prof. Shah effectively wanted the equivalent to 15(4) and 15(5) but did not get it. His amendment was negated. (p. 664 of Constituent -f ... Assembly Debates, Vol. 7, 29 November, 1948). c 212. Dr. Ambedkar disagreed with Prof. Shah on the limited ground that it would have given States the green light to segregate SC/ST from general category students: 'The object which all of us have in mind is that the Scheduled Castes and Scheduled tribes should not be D segregated from the general public. For instance, none of us, I think, would like that a separate school should be established for the Scheduled Castes ... If these words >' ' are added, it will probably give a handle for a State to say, 'Well, we are making special provision for the Scheduled E Castes.' To my mind they can safely say so by taking shelter under the article if it is amended in the manner the Professor wants it." [page 661, CAD, Vol. 7, 29 November 1948].

213Copy pinpoint213. Dr Ambedkar did not reject the Shah amendment because it would have allowed the States to implement , affirmative action for SC/ST in education. He was concerned "' that special provisions would lead to negative discriminatory action in the guise of affirmative action. Whether or not this would G have happened is unclear, but his concern seems well placed. A similar problem arises today, when the general category looks down upon or questions the qualifications of SC/ST/OBC professionals. Though the individual may have earned • admission on marks alone, othl'lr'3 may presume that reservation was a factor. Such a belief, regardless of veracity, cannot bode " H

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 425 [DALVEER BHANDARI, J.]

well for the career prospects of SC/ST/SEBCs. Irrespective of A the reason for which the Shah amendment was rejected, the original Framers contemplated special provisions for SC/ST that would have included education. At the end of the day, they decided that only women and children should benefit from discriminatory provisions. B

214Copy pinpoint214. Article 15(4) and the Shah amendment only differ in that Article 15(4) provides special provisions to SC/ST and . ~ SEBC, while Shah only gave the same to SC/ST. Of course, if the original Framers rejected special provisions for SC/ST, they would have done the same with respect to SEBC/SC/ST. In sum, c by limiting Article 15(3) to women and children and rejecting an amendment equivalent to Article 15(4), the original Framers' intent was clear: no special provisions for backward classes (SE BC/SC/ST) in education were to dilute Article 15(1 )'s prohibition against discrimination based on caste. D

215Copy pinpoint215. In the instant case, the Union of India argued that ~ Article 15(4), the First Amendment to the Constitution, reflects the intent of the original Framers because it was passed by the same members that drafted the original Constitution. In the Parliamentary debates in 1951, Prime Minister Nehru argued E in favour amending the Constitution. He and other Framers, as distinguished from the original Framers who had drafted the original Constitution, did not hide their disapproval of Champakam Dorairajan (supra) Article 15(4) was to overturn ).. that judgment. To justify Article 15(4), which represented a F dramatic departure from equality as envisaged in Articles 15(2), (3) and 29(2). Pandit Nehru said that Article 15(4) would give effect to "what .. was really intended or should be intended " Yet, the original Framers, as explained above. had no intention of providing special provisions for SC/ST in education (and a G fortiori if not for them, nor for SEBC). What "should be intended" is a far cry from what they specifically enacted and specifically • ~ rejected. It follows that Article 15(4) deviated from the original Framers' original intent. H

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

A • Limitations on Reservation must be seen in the light of providing a casteless society:

216Copy pinpoint216. Seeking to remove the blight created by caste, the original Framers were social reformers. "The social revolution meant 'to get (India) out of the medievalism based on birth, B religion, custom, and community and reconstruct her social structure on modern foundations of law, individual merit, and secular education'." (See: Granville Austin, Indian Constitution: Cornerstone of a Nation at page 26, 151 Ed, 1972, Oxford 1 . University press: (quoting from: K. Santhanam (an Assembly c member) in Magazine Section, The Hindustan Times New Delhi, 8 September 1946).

217Copy pinpoint217. India's first President Rajendra Prasad assured the Nation that the assembly and the Government's aim was to "end poverty and squalor ... to abolish distinction and exploitation and to ensure decent conditions of living". [Cornerstone at page 27, fn. 5 (quoting from Prasad in CAD V, I, 2)]. The original i Framers took steps to abolish caste-based distinction. For ~

example, they outlawed untouchability in Article 17, promised all equal treatment before the law in Article 14, prohibited discrimination based on caste in 15(1) and 29(2) and selected joint over separate electorates. The legislative reservations for SC/ST were an exception to overarching goal of creating a casteless society; that is why they were set to expire in 1960. With respect to electorates, Granville Austin explains: F "Desiring above all to promote national unity, members of ... the Constitutional Assembly rejected these devices by substituting direct elections for indirect in lower houses, by rejecting separate electorates in favour of joint electorates and by abolishing ... except for Scheduled G Castes and Tribes . . . reserved seats. The Assembly believed, in Jenning's words, that 'to recognize communal claims ... is to strengthen communalism'. [see: Austin, • ,j p. 323 of Cornerstone.]"

H (emphasis added)

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 427 [DALVEER BHANDARI, J.]

The same can be said today. Reservation based on caste A } strengthens communalism. Non-SEBCs naturally seek SEBC status so that they may capture SEBC benefits. Upper castes, denied a seat, harbor ill will against lower castes who gain admission (whether it was by merit or not).

218Copy pinpoint218. These feelings are the basis for discriminatory action. B On 16 September 2006, The Hindu reported: "While medical students at the All India ln.stitute of Medical Sciences (AllMS) .. } have complained of caste discrimination, now doctors from the reserved category at the Guru Teg Bahadur Hospital (GTBH) too have written about 'biased attitude towards reserved c category junior residents'."

219Copy pinpoint219. Discrimination is not the only problem exacerbated by reservation. Given that reserved category students gain admission with lower marks, it also stands to reason that they D would exhibit less confidence in their studies when pitted against the general category. In her work on the unintended ~ consequences of preferential treatment for minorities in college admissions in the United States, Marie Gryphon, a policy analyst for the Cato Institute (Washington, D.C.), writes: E " ... recent research shows that affirmative action impedes academic achievement by undermining minority students' confidence .... Preferences harm students' self-images, and this harm ~ has practical costs in terms of grades and graduation rates. Both studies build on earlier work by Stanford University sociologist Claude Steele, who coined the term "stereotype threat" to refer to the decline in performance suffered by members of groups who become afraid of confirming negative group stereotypes. Steele tested his theory by giving standardized exams to groups of white and African-American undergraduates at Stanford • ~ University. Testers told some groups that the exam evaluated H

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

A psychological factors related to testing, and that it was not a measure of ability. They told other groups that the exam measured their intellectual abilities, and in some instances had them indicate their race on the exam. The African- American students who had been implicitly "threatened" B with the stereotype of minority academic inferiority did markedly worse on the exam than black students in the other groups .... Even minority students who do not need preferences -1 •• respond to an environment characterized by the relative c academic weakness of minorities by worrying about confirming a negative stereotype. [Researchers] also determined that vulnerability to Claude Steel's stereotype threat is related to lower grades earned by minority students." (See: p. 9-10 (internal citations omitted), D Executive Summary, No. 540, April 6, 2005, "The Affirmative Action Myth.") ~

The point is that affirmative action produces consequences )

that may outweigh its supposed benefits.

220Copy pinpoint220. To rid ourselves of reservation and its unintended consequences like casteism, we must focus our efforts on strengthening education at the primary and secondary level. Only then will we achieve the casteless/classless society the original Framers envisaged. And only then will there be reason to scrap F reservation altogether. _.

221Copy pinpoint221. In his speeches to the Parliament regarding 15(4), Prime Minister Nehru could not have been clearer: "After all the whole purpose of the Constitution, as proclaimed in the Directive Principles is to move towards what I may say a G casteless and classless society" ... and in an attempt to achieve an egalitarian society, "... we want to put an end to all those infinite divisions that have arisen in our social life; I am referring to the caste system and other religious divisions, call them by • whatever name you like." (emphasis added). [Parliamentary " H Debates on 13 June, 1951and29 May, 1951 respectively].

\ I ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 429 [DALVEER BHANDARI, J.)

• If reservation is allowed, then how can a A casteless society still be realized? -!'

222Copy pinpoint222. This raises the issue of how beneficiaries of special provisions are to be classified. As mentioned above, Mr Salve and other learned counsel for petitioners pleaded that the Government cannot go forward with the Reservation Act when it B has yet to identify its beneficiaries. No one can say with certainty what percentage of the population is OBC, yet the Government is content with giving OBCs 27% of the seats in universities. We do not know what proportion of the population is OBC because the census does not count OBCs. It has been Central c Government policy practically since Independence to avoid the question. Eminent American Professor Mark Galanter writes that the absence of caste data was the deliberate policy of Sardar Patel, the Home Minister until 1950. Mr. Patel reiected caste tabulation as a device to confirm the British theory that D India was a caste-ridden country and as an expedient "to meet the needs of administrative measures dependent on caste " division" (See: Professor Marc Galanter, (1978)"Who are the -< OBCs?" An Introduction to a Constitutional Puzzle. 13 Economic and Political Weekly 1812 at page 1824 at footnote E 78 (quoting from Mr. Patel's 1950 address to the census conference). Taking an OBC census is horrifying because it encourages Government to enact policy on the basis of caste. Doing so only furthers the caste-divide, contrary to our constitutional aim. This has been recognized since 1950. If the F Central Governments have consistently rejected an OBC census • because it would promote casteism, how can this Central Government make reservation on the same ground? It is one thing to ask a citizen his caste, it is even worse to grant or reject his college application on that ground. The Government is G between a rock and a hard place. The only way out is to use exclusively economic criteria. This would negate the need for a caste-based census while ensuring that reservation go to the • ~ poor, the group for which the Reservation Act was purportedly passed. The Parliament eventually settled on enabling States H

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

A to provide provisions for "socially and educationally backward classes." Article 15(4). This Court has interpreted "backward classes" to include caste as one of the criteria of classification under Article 16(4). Sahwney I, para 859(3)(b). In other words, caste falls .under class according to Sawheny /, para B 859(3)(a). • Economic criteria allows for reservation on grounds other than caste:

223Copy pinpoint223. Despite the goal of a casteless society, the -t c Parliament allowed for caste-based reservation and, consequently, caste-based discrimination. Ultimately, they subjected Articles 29(2) and Article 15 to Article 15(4). Dr. Ambedkar saw no choice but to discriminate based on caste, stating that "if you make a reservation in favour of what are called backward classes which are nothing else but collection of certain D castes, those who are excluded are persons who belong to certain castes. Therefore, in the circumstances of this country, it is impossible to avoid reservation without excluding some • people who have got a caste." ' ~

224Copy pinpoint224. In draft article 10, Dr. Ambedkar tried to reconcile the view of those who were in favour of equality of opportunity with the demand of certain communities who remained neglected and who wanted to have a share in the administration. In doing so, he was clear that the concept of equality, which is the very basis of democracy, should not be violated. Part of his compromise meant that reservation had to remain reasonable. -I Explaining his views on the matter, he said: "Supposing, for instance, we were to concede in full the demand of those communities who have not been so far employed in the public services to the fullest extent, what would really happen is, we shall be completely destroying the first proposition upon which we are all agreed, namely, that there shall be an equality of opportunity. Let me give • ~ an illust; 1tion. Supposing, for instance, reservations were made for a community or a collection of communities, the

ASHOKA KUMAR THAKUR v. UNION OF !NOIA & ORS. 431 [OALVEER BHANDARI, J,]

total of which came to something like 70 per cent of the p. _,. total posts under the State and only 30 per cent are retained as the unreserved. Could anybody say that the reservation of 30 per cent as open to general competition would be satisfactory from the point of view of giving effect to the first principle, namely, that there shall be equality of a opportunity? It cannot be in my judgment. Therefore the seats to be reserved, if reservation is to be consistent with sub-clause (1) of Article 10, must be confined to a minority of seats. (see CAD, Vol. 7, 30th November, 1948 pp 701-02)." c

225Copy pinpoint225. On 17th November, 1949, the Constituent Assembly began the third reading of the Constitution Bill. While replying to the debate, Dr. Ambedkar stated: "This anxiety is deepened by the realization of the fact that in addition to our old enemies in the form of castes and creeds we are going to have many political parties with • ~ diverse and opposing political creeds. Will Indians place the country above their creed or will they place creed above country? I do not know. But this much is certain that if the parties place creed above country, our independence will be put in jeopardy a second time and probably be lost forever. This eventuality we must all resolutely guard against. We must be determined to defend our independence with the last drop of our blood. (See: CAD on 25th November, F 1949 pp 977-978)" ;. (emphasis supplied).

226Copy pinpoint226. Exhibiting tunnel vision, our First Parliament failed to look beyond caste. Another option was available, an option that G adhered to the original Framers' ideals . Contrary to Or Ambedkar's view, it was possible to provide reservation to backward classes without discriminating based on caste. Economic criteria target the poorest of the poor, irrespective of caste. As noted, these criteria also simultaneously remove the H

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A creamy layer. 1,

227Copy pinpoint227. One of the other prominent advocates of reservation later .realised that the policy did more harm than good. Prime Minister Nehru wrote the following letter to the Chief Ministers on June 27th, 1961: B "I have referred above to efficiency and to our getting out of our traditional ruts. This necessitates our getting out of the old habit of reservations and particular privileges being given to this caste or that group. The recent meeting ~

c we held here, at which the chief ministers were present, to consider national integration, laid down that help should be given on economic considerations and not on caste. It is true that we are tied up with certain rules and conventions about helping Scheduled Castes and Tribes. They deserve help but, even · so, I dislike any kind of D reservation, more particularly in service. I react strongly against anything which leads to inefficiency and second- ~ rate standards.~ want my country to be a first class country 'f

in everything. The moment we encourage the second-rate, we are lost. E The only real way to help a backward group is to give opportunities for good education. This includes technical education, which is becoming more and more important. Everything else is provision of some kind of crutches which do not add to the strength or heal~h of the body. We have made recently two <;Jecisions which are very important: one is, universal free elementary education, that is the base; and the se·cond is scholarships on a very wide scale at every grade of . . education to bright boys and girls, and this applies not merely to literary education, but, much more so, to technical, scientific and medical training. I lay stress on bright and able boys and girls. I have no doubt that there is a vast reservoir of potential talent in this country if only we can give it opportunity. H

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 433 [DALVEER BHANDARI, J.]

But if we go in for reservations on communal and caste basis, we swamp the bright and able people and remain second-rate or third-rate. I am grieved to learn of how far this business of reservation has gone based on communal consideration. It has amazed me to learn that even promotions are based sometimes on communal and caste considerations. This way lies not only folly, but disaster. Let's help the backward groups by all means, but never at the cost of efficiency. How are we going to build our public sector or indeed any sector with second-rate people?" c • Upon expiry of the time limit, the criteria for identifying OBCs should only be economic In nature because our ultimate aim Is to esmbUnh a casteless and classless society D

228Copy pinpoint228. I am not the first to propose economic criteria as the exclusive means of identifying SEBCs. In Vasanth f(umeJr's case, counsel sought an opinion from the Court regarding reservations in employment and education for SC/STs and OBCs. The opinion would guide the Kamataka Government in implementing reservation. [para 1]. It serves our purposes to E review their thorough analysis of the identification issue.

229Copy pinpoint229. The Court in Vasanth Kumar observed as under: "24 . ... No one is left in any doubt that the future Indian Society was to be casteless and classless. Pandit F Jawaharlal Nehru the first Prime Minister of India said that Mahatma Gandhi has shaken the foundations of caste and the masses have been powerfully affected. But an even greater power than Gandhi is at work, the conditions of modem life - and it seems at last this G· hoary and tenacious ralic of past times must die. (Discovery of India by Pandit Nehru, Ch VI, p 234) Mahatma Gandhi, the Father of the Nation said, W The caste system as we know is an anachronism. It must go if both Hinduism and India are to live and grow from day to day''. In its i--:-

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

A onward march towards realising the constitutional goal, every attempt has to be made to destroy caste stratificatiol"). Article 38(2) enjoins the State to strive to minimise the inequality in income and endeavour to eliminate inequalities in status, facilities and opportunities, not only B amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations. Article 46 enjoins duty to promote with special .Gare the educational and economic interests of the weaker sections of the people, and in particular, of the Scheduled c Castes and Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation. Continued retention of the division of the society into various castes simultaneously introduces inequality of status. And this inequality in status is largely responsible for retaining inequality in facilities and opportunities, ultimately resulting in bringing into existence an economically depressed class far transcending caste structure and caste barrier. The society therefore, was to be classless casteless society. In order to set up such a society, steps have to be taken to weaken and progressively eliminate caste structure. Unfortunately, the movement is in the reverse gear. Caste stratification has become more rigid to some extent, and where concessions and preferred treatment schemes are introduced for economically disadvantaged classes, identifiable by caste label, the caste structure unfortunately received a fresh lease of life. In fact there is a mad rush for being recognised . as belonging to· a caste which by its nomenclature would be included in the list of socially and educationally backward classes . ... Rane Commission took note of the fact that there was an ,... organised effort for being considered socially and educationally backward castes. Rane Commission recalled the observations in Balaji case [(1963) Supp (1) SCR 439) that "Social backwardness is on the ultimate analysis the result of poverty to a very large extent" . ... The -· - 1 Commission came to an irrefutable conclusion that

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 435 [DALVEER BHANDARI, J.]

,~ amongst certain castes and communities or class of people, only lower income groups amongst them are socially and educationally backward ...."

230Copy pinpoint230. In this judgment, this Court further observed that if State patronage for preferred treatment accepts caste as the only insignia for determining social and educational backwardness, the danger looms large that this approach alone would legitimize and perpetuate the caste system. Caste-based ~ reservation does not go well with our secular character as enshrined in the Preamble to the Constitution. c 231 . That said, the majority in Sawhney /later sided with Justice Chinnappa Reddy's view: caste can be a factor in identifying SEBCs. This view should not hold the day forever. Eventually, the words of Justice Desai should be revived.

232Copy pinpoint232. Justice Desai wanted to achieve two goals with one D ~ fell swoop of the pen. Had his opinion prevailed (1) the creamy layer would have been removed ensuring that the truly deserving get the benefit and (2) the casteless society would have been furthered. To these ends, he would have applied economic criteria to remove the creamy layer and simultaneously rid reservation of caste.

233Copy pinpoint233. He explained that poverty is the bane of Indian society. Given rampant poverty, it comes as no surprise that" ... the bank balance, the property holding and the money power ~ determine the social status of the individual and guarantee the opportunities to rise to the top echelon." [Vasanth Kumar at para 27}. As a result, the way ~ ... wealth is acquired has lost significance." And "upper caste does not enjoy the status or respect ... any more even in rural areas what to speak of highly westernised urban society." Finally, his Lordship recognized that creamy layer exclusion is inherently linked with identification based on. economic criteria, i.e., "occupation, income and land holdings": "30 .... If economic criterion for compensatory H

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

A discrimination or affirmative action is accepted, it would strike at the root cause of social and educational backwardness, and simultaneously take a vital step in the direction of destruction of caste structure which in turn would advance the secular character of the Nation. This B approach seeks to translate into reality the twin constitutional goals: one, to strike at the perpetuation of the caste stratification of the Indian Society so as to arrest progressive movement and to take a firm step towards establishing a casteless society; and two, to progressively c eliminate poverty by giving an opportunity to the disadvantaged. sections of the society to raise their position and be part of the mainstream of life which means eradication of poverty."

234Copy pinpoint234. Economic criteria must include occupation and land D holdings because income alone is insufficient. To decrease the likelihood that the undeserving evade identification, it is wise to employ more than one criterion.

235Copy pinpoint235. In Vasanth Kumar, Justice Chinnappa Reddy departs from Justice Desai's use of economic criteria as the r- E sole means of identification. Nevertheless, he recognizes that " ... attainment of economic equality is the final and only solution to the besetting problems." In Justice Chinnappa Reddy's opinion, it is easier to classify based on caste than economic criteria: F "80: Class poverty, not individual poverty, is therefore the primary test. Other ancillary tests are the way of life, the standard of living, the place in the social hierarchy, the habits and customs, etc. etc. Despite individual exceptions, it may be possible and easy to identify socially G backwardness with reference to caste, with reference to residence, with reference to occupation or some other dominant feature. Notwithstanding our antipathy to caste and sub-regionalism, these are facts of life which cannot be wished away. If they reflect poverty which is the primary H

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 437 [DALVEER BHANDARI, J.]

)· source of social and educational backwardness, they must be recognised for what they are along with other less primary sources." It all depends on how one defines "class." Once economic criteria remove the relatively wealthy families (from all castes and communities), a "class" will remain. This "class" is known as "the poor." The class would share the same characteristic, irrespective of caste. They would all lack money. ~~

236Copy pinpoint236. In a number of judgments, this Court has spelt out our constitutional philosophy regarding caste. On numerous c occasions, this Court has proclaimed that the cherished goal of the Nation is to realise a caste!ess society. In Shri \I. \I. Giri v. Dippa/a Suri Dora & Others (1960) 1 SCR 426 at 442, the Court observed as under:- "... ..... The history of social reform for the last century and more has shown how difficult it is to break or even to relax "' the rigour of the inflexible and exclusive character of the caste system. It is to be hoped that this position will change, and in course of time the cherished ideal of caste!ess society truly based on social equality will be attained under the powerful impact of the doctrine of social justice and equality proclaimed by the Constitution and sought to be implemented by the relevant statutes and as a result of the spread of secular education and the growth of a rational outlook and of proper sense of social values; but at present F ~ ~ it would be unrealistic and utopian to ignore the difficulties which a member of the depressed tribe or caste has to face in claiming a higher status amongst his co-religionists. It is in the light of this background that the alternative plea of the appellant must be considered." G

237Copy pinpoint237. In N l:li. Thomas (supra), a seven Judge Bench observed as under: 'This consummation is accomplished only when the utterly depressed groups.can claim a fair share in public life and H

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

A economic activity, including erriployment under the State, or when a classless and casteless society blossoms as a result of positive State action."

238Copy pinpoint238. In his dissenting opinion, in Sawhney I Justice Kuldip Singh observed as under: B "339. Secularism is the basic feature of the Indian Constitution. It envisages a cohesive, unified and casteless society.... The prohibition on the ground of caste is total, the mandate is that never again in this country caste shall c raise its head. Even access to shops on the ground of caste is prohibited. The progress of India has been from casteism and egalitarianism from feudalism to freedom.

340. The caste system which has been put in the grave by the framers of the Constitution is trying to raise its ugly D head in various forms. Caste poses a serious threat to the secularism and as a consequence to the integrity of the country. Those who do not learn from the events of history are doomed to suffer again."

239Copy pinpoint239. In Akhil Bhartiya Soshit Karamchari Sangh (Railway) (supra), it was observed as under:: "14. These forces nurtured the roots of our constitutional values among which must be found the fighting faith in a casteless society, not by obliterating the label but by F advancement of the backward ...

240Copy pinpoint240. Returning to Vasanth Kumar, one of Justice Reddy's arguments deals with the level of effort required to identify the poor compared to the effort expended on identifying caste. In the current context, a number of factors, · G including economic, are measured to determine SEBC status. (See: the National Commission of Backward Classes'. Guidelines for considerations of Requests for inclusion and complaints of under-inclusion in the Central List of Other Backward Classes). H

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 439 [DALVEER BHANDARI, J.]

241 . The National Commission for Backward Classes A aside, I have set out to eventually install a system that only takes cognizance of economic criteria. Using purely economic criteria would lighten the identification load, as ascertaining caste would no longer be required. Respondents and others level a common criticism against ttie exclusive use of economic criteria. Most B of the country is poor.

242Copy pinpoint242. Thus, too many people would be eligible for the benefit. This is only a problem if you hand out reservations based on the group's proportion of the total population. Such a reservation would be excessively unreasonable and would C likely violate the Balaji cap of 50% [see fii.R. Balaji & Ors. v. State of Mysore [(1963) Supp (1) SCR 439]. If economic reservation were limited to a reasonable number, it could be upheld. D

243Copy pinpoint243. In addition to the problem of extending the benefit to .. too many, Reddy, J. cannot contemplate the idea of bestowing \ reservation on an economically poor Brahmin. "The idea that poor Brahmins may also be eligible for the benefits of Articles 15(4) and 16(4) is too grotesque even to be considered ." He E says that they are not "socially backward", thus they should not receive the benefit. But can one call a Brahmin sweeper, poor by occupation, socially forward? To do so would be a stretch.

244 . The majority in Sawhney I reiterates Justice F Chinnappa Reddy's message in Vasanth Kumar. They rejected the sole use of economic criteria to exclude the creamy layer, deeming it to be just one measure of advancement. Justice Jeevan Reddy qualified that sentiment to an extent. If income were extremely high, it could be the sole factor. In such a case, G income alone would ensure that one were socially forward. Justice Jeevan Reddy was convinced that caste mattered more than money- especially in rural areas. He makes his point by \way of example at para 792: "' H

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A "A member of backward class, say a member of carpenter caste, goes to Middle East and works there as a carpenter. If you take his annual income in rupees, it would be fairly high from the Indian standard. Is he to be excluded from the Backward Class? Are his children in India to be deprived of the benefit of Article 16(4)?"

245Copy pinpoint245. Unless the carpenter became a factory owner, where his income would be a reflection of his status, Justice Reddy would answer his own question in the negative. This is where f ·-- we part ways. Today, the NRI carpenter's children will have likely attended the best schools, tuitions and coaching classes that money can buy. These children do not need special provisions. That is why I am removing the creamy layer, calling for a time- limit on caste-based reservation and urging the Government to use exclusively economic criteria to identify OBCs who may avail of special provisions.

246Copy pinpoint246. The United States Supreme Court has taken a similar position with regard to setting a time-limit on race-based ' affirmative action. As mentioned above, Justice Sandra Day E O'Connor opined that there may be a time-limit to promoting diversity via preferential treatment for certain races: "We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today." (See: Grutter at 343).

247Copy pinpoint247. In our context, one need-not look past the Parliament's affinity with extending time-limits on reservation to see that only the judiciary can put a stop to caste-based reservation. Article 334 originally said that reservation for SC/ST/Anglo-Indians in the Lok Sabha and State Legis.lative Assemblies would expire G on the Constitution's tenth birthday. The Parliament later substituted "ten" for "thirty years" vide the 45th Amendment. When that was to expire, the Parliament extended it for another ten years vide the 62nd Amendment. \JVhen that was to expire, it extended it for another ten years vide the 79th Amendment. H History has shown that it is not politically feasible for thef

ASHOKA KUr11tAR THAKUR v. UNION OF INDIA & ORS. 441 [DALVEER BHANDARI, J.]

Par1iament to say ;,'lo" to reservation - especially when caste is A involved. 248 . Nevertheless, I have noted that Sawhney I rejects purely economic criteria (occupation/income/property holdings/ or similar measures of economic power) with respect to classification under 16(4). [para 859, 4(a)]. Sawhney l's nine- 8 Judge holding precludes us from striking the impugned legislation to the extent that it has not yet ruled out the use of ~ ~ caste-based criteria for identifying SEBC status. It also precludes us from forcing the Government to wean itself off caste-based reservation by a certain date. In order to achieve C a casteless and classless society, after a lapse of ten years, special preference or reservation should be granted only on the basis of economic criteria as long as grave disparity and inequaHty persist. · D • Secularism is Part of the Basic Structure

249Copy pinpoint249. To be clear. there is no claim arising out of the goal to promote a caste!ess society. No right of action exists. The right of action is found in secularism. Though not explicitly found in the un-amended Constitution, the original Framers made it clear that India was to be a secular democracy. Discrimination based on religion is prohibited by Articles 14, 15(1) and 15(2), 16(1) ~nd 16(2), 29(2) and 325. The original Framers went out of their way to ensure that minorities would be able to maintain their identity. (See: Articles 28, 29 and 30). Article 27 precludes the state from adopting a state religion, whereas Article 25 grants citizens the right to profess, practice and propagate religion. With rights come responsibi!ities. One of them is found at Article 51A(3). which instructs citizens " ... to promote harmony and sptrit of brotherhood amongst all people .. . transcending religious ... diversities.''

250Copy pinpoint250. Relying on these provisions. Bommai (1994) 3 SCC 1 at para 304 declared secularism ".... a constitutional goal and a basic feature of the Constitution as affirmed :n Kesavananda H

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A Bharati and Indira N. Gandhi v. Raj Narain. Any step inconsistent with this constitutional policy is, in plain words, ~ ·unconstitutional." The Court reasoned that the original Framers adopted Articles 25, 26 and 27 so as to further secularism. (See: Bommai at para 28 (Ahmadi, J.)). Secularism was very much B embedded in their constitutional philosophy. [para 29]. During the Constituent Assembly Debates, Pandit Laxmikantha Mitra stated (as quoted at para 28 of Bomma1): "By secular State, as I understand it, it is meant that the State is not going to make any discrimination whatsoever c on the ground of religion or community against any person professing any particular form of religious faith . ... no citizen .. . will have any preferential treatment ... simply on the ground that he professed a particular form of religion ." D This is relevant today because quotas are state- sponsored discrimination against those who are not deemed SEBCs - caste being a by-product of religion. Though affirmative , action is allowed, there is a point at which it violates secularism. E Finally, I note that the 42nd Amendment, which formally inserted secularism into the Preamble, merely made what was already implicit explicit. (See Bommai at para 29). • Conclusion on the Casteless Society F 251 . In conclusion, the First Parliament, by enacting Article 15(5), deviated from the original Framers' intent. They passed an amendment that strengthens, rather than weakens casteism. 1 If caste-based quotas in education are to stay, they should adhere to a basic tenet of secularism: they should not take caste G into account. Instead, exclusively economic criteria should be used. For a period of ten years, other factors such as income, occupation and property holdings etc. including caste, may be taken into consideration and thereafter only economic criteria should prevail. Sawhney I has tied our hands. I nevertheles( H believe that caste matters and will continue to matter as long ?r

ASHOKA KUMAR THAKUR v LNION OF !NOIA & ORS 443 :DALVEFR BHANDARI, J.]

we divide society along caste"lines. Caste-based discrimination A remains. Violence between castes occurs. Caste politics rages on. Where casteism is present, the goal of achieving a casteless society must never be forgotten. Any legis:ation to the contrary should be discarded.

5. Are Articles 15(4) and 15(5) mutually 8 contradictory, such that 15(5) is unconstitutional?

252Copy pinpoint252. While contradictory, I am able to read them harmoniously. Learned senior counsel for petitioners, Mr. K.K. c Venugopal, argued that Articles 15(5) and 15(4) are inconsistent to the extent that 15(5) exempts minority institutions from reservation and 15(4) incorporates aided minority institutions ;n ttie reservation scheme. Because both provisions contain "non-obstante clauses", they render each other void. He further submitted that the Court is in the position of having to choose between them in regard to this inconsistency. He provided three'· tests of statutory interpretation that give us guidance in resolving such a conflict.

253Copy pinpoint253. First, if the Court cannot harmonize the two provisions, it must invalidate the one that completely destroys the other's purpose. Sarwan Singh & Another v. Kasturi Lal (1977) 1 sec 750, pages 760-761, at para 20). In the instant case, one of the express purposes of 15(5) was to exempt minority institutions and thus avoid conflict with Article 30(1 ). This is found in the text of Article 15(5) itself.

254Copy pinpoint254. With nothing in the text of 15(4) to guide us, we turn to its Statement of Objects and Reasons: "...... The Act also amplifies Article 15(3) so as to ensure that any special provisions that the State may make for the educational, economic or social advancement of any backward class citizens may not be challenged on the ground of being discriminatory. " H

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

255Copy pinpoint255. Thus, Article 15(4) was not passed with an express intention to include minority institutions; nor did it arise out of a case in which minority institutions were a party. Then again, it was open to the First Parliament to exclude minority institutions from the beginning. Articles 15(4) and 15(5)'s purposes do not B necessarily conflict. I find the first test inconclusive and thus turn to the other ones. The second test asks which provision came into effect at a later date (i.e., was "later in time?")? That which is later shall prevail. Here, 15(5) was enacted later in time. In J.K. Cotton Spinning and Weaving Mills Co. Ltd. v. State c of Uttar Pradesh & Others AIR 1961 SC 1170 at page 1174, para 9, I find the third test; it provides that the specific clause must trump the general. Article 15(5) is specific in that it refers to special provisions that relate to admission in educational institutions, whereas 15(4) makes no such 0 reference to the type of entity at which special provisions are to be enjoyed.

256Copy pinpoint256. Because 15(5) is later in time and specific to the question presented, it must neutralize 15(4) in regard to reservation in education. Mr K. Parasaran, learned senior E counsel for the respondents, correctly pointed out that constitutional articles are to be read harmoniously, not in isolation. (See: T.M.A. Pai (supra) at page 582, para 148). Our interpretation is harmonious because Article 15(4) still applies to other areas in which reservation may be passed. F

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

257Copy pinpoint257. Given the inherent tension between Articles 29(2) and G 30(1 ), I find that the overriding constitutional goal of realizing a casteless/classless society should serve as a tie-breaker. We will take a step in the wrong direction if we subject minority institutions (even those that are aided) to reservation. ..,

258Copy pinpoint258. Minority aided institutions were subject to a limited H

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 445 [DALVEER BHANDARI, J.)

form of reservation. In order to preserve the minority character of the institution. reservation could only be imposed to a .J. • reasonable ex!ent Minority aided institutions could select their own students, contingent upon admitting a reasonable number of non-minority students per the percentage provided by the State Government. This conclusion was derived from two conflicting constitutional articles. Of course, I am only concerned with minority aided institutions because I have already determined that the State shall not impose reservation on unaided institutions (minority or non-minority) . • ~ t

259Copy pinpoint259. Article 30(1) provides that "all minorities, whether c based on religion or language, shall have the right to establish and administer educational institutions of their choice." Article 29(2) states that "no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them."

260Copy pinpoint260. In other words, 30(1) by itself would allow minority ~ aided institutions to reject all non-minority candidates, and 29(2) by itself would preclude the same as discrimination based solely on religion. Yet neither provision exists by itself. Rather than disturb the Constitution, this Court struck a compromise and diluted each provision in order to uphold both. Reading Articles 30(1) and 29(2) harmoniously, Kera/a Education Bill provided that once minority institutions receive aid, a sprinkling of outsiders must be admitted. ~

261Copy pinpoint261. "Sprinkling" ensured that the minority character of the institution would not be lost. In regard to the "sprinkled" seats, minority institutions cannot discriminate based on religion in violation of Article 29(2). At the same time, if the State compelled aided minority institutions to take too many non-minority students, the institution would be "minority" in name only. But what does "too many" mean? Can "sprinkling" be quantified? ~ Clearing up the ambiguity, St. Stephen's held that minority ' institutions must make 50% of their seats available to outsiders H

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

A and that admission for the other 50% (its own community) must be done on merit. Pai later rejected the rigidity attached to this l .. fixed percentage. Along these lines, Pai returned to a more flexible standard, one akin to "sprinkling" in Kera/a Education Bill: the moment a minority institution takes aid, it has to admit B non-minority students to a reasonable extent, whereby the character of the institution was maintained and yet citizens' Article 29(2) rights were not subverted. {Also see: Pai at para 149). Thus, two admission pools were created ·for aided minority 1 ...

c institutions: minority and non-minority. In the minority pool, merit was to be observed. From the non-minority pool, reservations for the weaker sections may be made while the remaining seats, if any, would be distributed based on merit to non-minority students. D "... It would be open to the state authorities to insist on allocating a certain percentage of seats to those belonging to weaker sections of society, from amongst the non- minority seats." [Pai at para 152). .. "

262Copy pinpoint262. With regard to the percentage of reservation, the State Governments were to determine the percentage of non-minority seats according to the needs of that State. As a compliment to reservation, aided minority institutions were also subject to regulation of administration and management. Pai declared at para 72 as noted above that: "Once aid is granted to a private professional educational ... institution, the Government or the state agency, as a condition of the grant of aid, can put fetters on the freedom in the matter of administration and management of the institution. The state, which gives aid to an educational institution, can impose such conditions as are necessary for the proper maintenance of the high standards of education as the financial burden is shared by the state. • " ' H I ....

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 447 [DALVEER BHANDARI, J.]

263Copy pinpoint263. In addition to the general power to impose conditions that seek to maintain high standards or "excellence in "" I education," the State could implement the same under a related but different rationale. That is, said regulations could be upheld in the name of national interest. [Pai at para 107]. Yet the Government could not destroy the minority character of an institution. [para 107]. Nor could it obliterate the establishment or administration of a minority institution. [para 107]. A balance was to be struck between (a) maintaining , I academic quality and (b) preserving the minority right to establish/administer educational institutions. Regulations that c embraced these two objectives were considered reasonable. [Pai at para 122].

264Copy pinpoint264. A question of great import is whether Article 30 was designed to put minorities on equal or higher footing than non- .minorities. This questic;m played out in detail in a debate between D Khare, C.J. and Justice Sinha in Islamic Academy. Writing for the majority, Chief Justice Khare takes issue with Pai. The Chief Justice says that Pai has wrongly categorized minority rights as equal to those of the non-mino.rity. He has a point. Minorities can establish and administer institutions for their communities per Article 30; non-minorities cannot. His Lordship observed: (para 9 page 723) "... We do not read these paragraphs to mean that non- minority educational institutions would have the same rights as those conferred on minority educational institutions by Article 30 of the Constitution of India. Non-minority educational institutions do not have the protection of Article

30. Thus, in certain matters they cannot and do not stand on a similar footing as minority educational institutions. G Even though the principle behind Article 30 is to ensure that the minorities are protected and are given an equal treatment yet the special right given under Article 30 does give them certain advantages ... " > Relying on St. Xavier's case (1975) 1 SCR 17'3. Pai H

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A concluded that the object of Article 30 was to ensure minorities of equal treatment and nothing more.

265Copy pinpoint265. It was observed in St. Xaviers College case, at page ... 192, that "the whole object of conferring the right on minorities under Article 30 is to ensure that there will be equality between B the majority and the minority. If the minorities do not have such special protection, they will be denied equality." The minority institutions must be allowed to do what the non-minority

c institutions are permitted to do. [Pai at para 138].

266Copy pinpoint266. In contrast to the majority in Islamic, Justice Sinha .- concludes that Article 30(1) raises minorities to an equal platform and no higher. Relevant portion is reproduced hereinbelow: "The statement of law contained in paras 138 and 139 is absolutely clear and unambiguous and no exception can be taken thereto. The doubt, if any, that the minorities have a higher right in terms of Article 30(1) of the Constitution of India may be dispelled in clearest terms inasmuch as the right of the minorities and non-minorities ~

is equal. Only certain additional protection has been conferred under Article 30(1) of the 'Constitution of India to bring the minorities on the same platform as that of non-minorities as regards the right to establish and administer an educational institution for the purpose of imparting education to members of their own community whether based on religion or language. [see: Islamic Academy at para 105]." ...

267Copy pinpoint267. Justice Sinha considers it constitutionally immoral to ' ' discriminate against non-minorities in the guise of protecting the constitutional rights of minorities. [See: Islamic Academy G at para 118]. Even in the face of Articles that provide preferential treatment to minority or weaker sections, e.g., 30(1), 15(4) and 16(4), the right to equality must mean something.

268Copy pinpoint268. Justice Khare, as he then was, concludes that original ~ • H Framers conferred Article 30(1) on minorities in order to instill

ll ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 449 [DALVEER BHANDARI, J.] .;. . in them a sense of confidence and security. [Pai at page 615 at para 229]. Their right to establish and administer educational institutions could not be usurped by mere legislation. Khare, J. stated at para 229 p.615:- "Thus, while maintaining the rule of non-discrimination envisaged by Article 29(2), the minorities should have also right to give preference to the students of their own _,. ~ community in the matter of admission in their own institution. Otherwise, there would be no meaningful purpose of Article 30(1) in the Constitution. True, the receipt of State aid makes it obligatory on the minority educational c institution to keep the institution open to non-minority students without discrimination on the specified grounds. But, to hold that the receipt of State aid completely disentitles the management of minority educational institutions from admitting students of their community to D ... any extent will be to denude the essence of Article 30 of • the Constitution. It is, therefore, necessary that the minority be given preferential rights to admit students of their own community in their own institutions in a reasonable measure otherwise there would be no meaningful purpose of Article 30 in the Constitution."

269Copy pinpoint269. -Minorities possess one right or privilege that non- minorities do not: establishing and administering institutions for .> their community. The right to admit your own students in aided minority institutions was subject to admitting a reasonable number of outsiders. In the instant case, aided minority institutions stand to benefit from the Reservation Act: instead of having to admit a reasonable number of outsiders they would be exempted from reservation. However, their non-minority counterparts would not. Does this elevate their status? While it ~ does to a certain extent, however, we must also keep our ~ constitutional goal and philosophy in mind. Given the ultimate goal of furthering a classless/casteless society, there is no need to go out on a limb and rewrite them into the Amendment. Such H

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I ._ A a ruling would subject even more institutions to caste-based reservation. r This would be a step back for the Nation, furthering the caste divide. I refuse to go in that direction.

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

270Copy pinpoint270. As noted above, U.S. law is, of course, not binding but does have great persuasive value. This is because their c problem of race is akin to our problem of caste. Where others have reviewed similar issues in great detail, it behooves us to learn from their mistakes as well as accomplishments. Mr. R. Venkataraman, former President of India in a foreword to a book of eminent constitutional expert Dr. L.M. D Singhvi "Democracy And Rule of Law: Foundation And Frontiers", has aptly observed which reads as under: ~

"Society progresses only by exchange of thoughts and ideas. Imagine what a sorry state the world would have E been in had not thoughts and ideas spread to all corners of the globe. Throughout history, philosophers, reformers, thinkers, and scholar~ have recorded their thoughts, regardless of whether they were accepted or not in their times, and thus contributed towards progress of humankind. India was the first to encapsulate this seminal -\. F global thought. The Rig Veda says: Ano bhadrah Krlavo yantu Viswatah Let noble thought come to us from every side."

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

271Copy pinpoint271. It is not an excessive delegation. I agree with the Chief Justice's reasoning at para 185 of his judgment. H

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 451 [DALVEER BHANDARI, J.]

9. Is the impugned legislation invalid as it fails to A set a time-limit for caste-based reservation?

272Copy pinpoint272. It is not invalid because it fails to set a time-limit. Given the Parliament's history of extending time-limits on other reservation schemes, there is much force to the argument that the Parliament will forever continue to extend reservations. As B noted above, it is consistent with our constitutional goal of achieving a classless/casteless society that a time-limit be set. But I am bound by Sawhney I and believe that only a larger bench could make such a ruling. A larger bench could certainly hold that only economic criteria could be used to identify SEBCs C and that it should be done by a certain date.

10. At what point is a student no longer Educationally Backward and thus no longer eligible for special provisions un~er 15(5)? o

273Copy pinpoint273. Once a candidate graduates from a university, he must be considered educationally forward. Sen!or counsel for petitioners, Mr. P.P. Rao, contended that those who have completed Plus 2 should be considered educationally forward. In other words, they would no longer be eligible for reservation E . in university or post-graduate studies. There is some force in this argument where only 18% in the relevant age-group have completed Plus 2. From this vantage point, this means that they are educationally elite. But the answer to most questions in law is not so simple. The answer often depends on the F circumstances surrounding the issue. In the marketplace, a candidate who has completed higher secondary education cannot be considered "forward". The real value of the higher secondary degree is that it is a prerequisite for college admissions. The general quality of education imparted upto Plus G 2 is of extremely indifferent quality and apart from that. today some entry-level Government positions only accept college graduates. One is educationally backward until the candidate has graduated from a university. Once he has, he shall no longer enjoy the benefits of reservation. He is then deemed H

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

I ~ A educationally forward. For admission into Master's programmes, such as, Master of Engineering, Master of Laws, Master of Arts etc., none will be a fortiori eligible for special benefits for admission into post graduation or any further studies thereafter. 8 11. Would it be reasonable to balance OBC reservation with societal interests by instituting OBC cut-off marks that are slightly lower than ~ - that of the general. category?

c 274. Balaji (supra) concluded that reservation must be reasonable. The Oversight Committee has made a recommendation that will ensure the same. At page 34 of Volume I of its Report, the Oversight Committee recommended that institutions of excellence set their own cut off marks such D that quality is not completely compromised. Cut offs or admission thresholds as suggested by the Oversight Committee ..... are reproduced: ~

"4.4.2 The Committee n~cognizes that those institutions of higher learning· which have established a E global reputation (e.g. llTs, II Ms, II Sc, AllMS and other such exceptional quality institutions), can only maintain that if the highest quality in both faculty and students is ensured. Therefore, the committee recommends that the threshold for admission should be determined by the respective institutions alone, as is done today, so that the level of its .. excellence is not compromised at all. 4.4.3 As regards 'cut-offs' in institutions other than those menti-Oned in para 7, these may be placed somewhere midway between those for SC/ST and the unreserved category, carefully, calibrated so that the principles of both equity and excellence can be maintained. ' 4.4.4 The Committee strongly feels that the students who currently tend to get excluded must be given every

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 453

, . [DALVEER BHANDARI, J.]

single opportunity to raise their own levels of attainment, so that they can reach their true potential. The Government should invest heavily in creating powerful, well designed and executed remedial preparatory measures to achieve this objective fully." B

275Copy pinpoint275. Standards of excellence however should not be limited to the best aided institutions. The Nation requires that its citizens ~· have access to quality education. Society as a whole stands to benefit from a rational reservation scheme.

276Copy pinpoint276. Finding 68% reservation in educational institutions c excessive, Balaji at pages 470-4 71 (supra) admonished States that reservation must be reasonable and balanced against other societal interests. States have "... to take reasonable and even generous steps to help the advancement of weaker elements; the extent of the problem must be weighted, the requirements D 4 of the community at large must be borne in mind and a formula ' must be evolved which would strike a reasonable balance between the several relevant considerations." To strike such a balance, Ba/aji slashed the impugned reservation from 68 to less than 50%. E