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

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

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

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

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

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

A a few of the seats and posts reserved for backward classes ).._

are snatched away by the more fortunate among them is · not to say that reservation is not necessary. This is bound to happen in a competitive society such as ours. Are not the unreserved seats and posts snatched away, in the B same way, by the top creamy layer of society itself? Seats reserved for the backward classes are taken away by the top layers amongst them on the same principle of merit on which the unreserved seats are taken away by >. the top layers of society. How can it.be bad if reserved c seats and posts are snatched away by the creamy layer of backward classes, if such snatching away of unreserved posts by the top creamy layer of society itself is not bad?"

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

., ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 251 [DR. ARIJIT PASAYAT, J.] dare dream of an alternative life. But that alone cannot create structural conditions that address the root causes of poverty. If quality education and the imparting of socially valuable skills are provided across the board through reservations, then that would take care of the complaint that affirmative action is largely about the equality of results. 1' 1 Rawls' principle of justice as fairness only says that offices should be open to all. But what if people do not qualify for these offices because their potentialities have remained unrealized on account of inadequate qualifications arising c from a history of discrimination compounded by poverty, or, indeed, because of sub-standard education? Does it mean that, through positive discrimination and reservations, they should be given these jobs anyway regardless of the welfare of institutions? In this connection, D Andre Beteille's warning that affirmative action should be sensitive to institutional well-being as well needs to be recalled. Beteille sifted between the various imperatives that different organizations are subsumed under and accordingly advised a careful calibration of reservations E such that these provisions of performance do not undermine efficiency of performance. The resemblances that are being advocated in the context of affirmative action should not be interpreted in terms of homogeneous ~. 'sameness'. Sameness is what medieval religious F " fundamentalists aim for. On the other hand, the set of resemblances in a constitutional democracy enhances equality and not sameness by providing identical opportunities to all for self-expression and development. Citizenship is not about the sameness of lifestyles or of G income. Marshall's notion of citizenship as a status that tends towards equality should be interpreted in this light. -~ According to Marshall, the equality that citizenship guarantees should be the foundation on which other kinds of differences can develop. H

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

A It will no doubt be the case that differences will exist even after a minimum set of resemblances is established. But these will no longer be outcomes of the accidents of birth. When diversity exists outside of choice then that is not a state of affairs that a democratic society can rejoice B in. Affirmative action is instrumental in enlarging the scope of difference and diversity, but it succeeds in doing so by first ensuring that citizens resemble one another at a very critical level namely in their ability to acquire socially • l valuable skills. c Affirmative action gets somewhat complicated in India on account of caste politics. Undeniably, India is the most stratified society in the world. Over and above caste differentiations there are huge income disparities, religious and community D differences that are deeply engrave'd into everyday social relations. No doubt, the nature of caste and community interactions has changed over time, but con!liderations along ascriptive lines still remain important markers, both at the public and private domains. E Not only are we now confronted by identity assertions of earthy peasant castes, that were earlier ranked as lowly shudras (or menials), but also, of those who, till recently, were called 'untouchables'. Now we also know that none of these castes had ever ideologically accepted their degraded status. Yet they lived out their humble lives quietly "' for generations for fear of offending the privileged strata. We now know more of their origin tales that boast of the elevated positions they once held before an unsuspected chicanery, a lost war, or a mercurial god, demoted them to lowly rungs in popular perceptions. Today these tales are an important source of symbolic energy 1/ for caste mobilizations and identity assertions. Now that the Mandal recommendations are in place, reservations are not just for the Scheduled Castes and Tribes, but for

- ,. , ASHOKA KUMAR THAKUR v. UNION QF INDIA & ORS. 253 [DR. ARIJIT PASAYAT, J.]

the so-called other Backward Castes as well. While there are a large number of castes listed as Backward, the demand for reservations for this category has been spearheaded by the class of owner-cultivators, or peasant proprietors. Before we assess Manda! reforms it would be useful to know how these peasant castes emerged. B After the zamindari abolition came into effect, adult franchise and land-to-the-tiller programme together forced . 1 the earlier landed castes slowly to cede ground in the villages. Soon, however, traditional peasant castes such as the Ahirs, Kurmis, Koeris, Lodhs, Rajputs and Jats C began to dominate the political scape of northern India. In the southern State of Tamil Nadu, the Vanniyars and Thevars have become assertive, and in Karnataka control was wrested in the mid-1950s from the traditional rural elite within the Congress Party by the Vokkaligas and D Linagayats. xx xx )()(

In pursuance of Article 340 of the Constitution, the Kalelkar Commission was set up in 1955 but it could not E come to any satisfactory conclusion about who should be legitimately considered as OBCs. The· Manda I Commission came into existence in 1980 and it promptly came up with a long list of 3,743 backward castes on the basis of social, economic and educational backwardness. F The Manda! Commission's recommendations were implemented in 1990 by the then Prime Minister VP Singh. This meant that a further 29 per cent of seats in educational institutions and government jobs would now be reserved for OBCs. G The implementation of reservations for OBCs set off a furore of protests, including a few suicides, all over the country by those who are considered to be members of forward castes. Many felt th at reservations for OBCs were not warranted for two reasons. First, this would make India H

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

A a caste society by law; and, second, because many of those who are considered as OBCs are really quite powerful and dominant in rural India. The obvious reference was to Jats and Yadavs. A majority of social anthropologists wrote against reservations for OBCs primarily on these B grounds. Andre Beteille's criticism of the Mandal Commission recommendations was widely commented upon. He distinguishes between reservations for OBCs following Mandal recommendations and the reservations r "' that were already granted in the Constitution for Scheduled c Castes and Tribes. While provisions for Scheduled Castes and Tribes were with the intention of reaching towards greater equality, reservations for OBCs were really to bring about a balance of power on the calculus of caste. The kind of deprivations that ex-untouchables (Scheduled Castes) and Adivasis (Scheduled Tribes) encountered for centuries can in no way be compared to the traditional condition of the OBCs. Besides, many OBCs are quite powerful in rural India, both economically and politically. In fact, the Mandal Commission recommendations were actually giving in to a powerful rural lobby that did not really care for equality of opportunities as much as it did for equality of results. xx xx xx There are two considerations that escape many uncritical applications of affirmative action. First, affirmative ;.. action must resist any tendency whereby its beneficiaries become vested interests. And secondly, it must eventually seek its own dissolution. While the second may be far away, it is by paying attention to the first issue that it is possible for affirmative action to eventually annihilate itself. Paradoxical as it may appear, but when this happens it is then that positive discrimination has finally triumphed. ., ~

Affirmative action fails to reach this final destination when it is inconsistently applied, or when its beneficiaries H

'Ill ,

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 255 [DR. ARIJIT PASAYAT, J.]

form vested interest bloc within a democratic electoral A --- system on the basis of ascriptive identity alone. The latter poses a stronger practical and intellectual challenge to the policy of affirmative action. As long as historical disprivileges and economic backwardness go together and the relationship between them is statistically very B strong, colour or caste membership can act as ready reckoners for targeting beneficiaries of affirmative action. ~ This, however, does not mean that membership in these "' communities should advantage individuals in perpetuity once they are able to develop the minimum set of c resemblances. Therefore, as and when those who belong to targeted categories for affirmative action acquire socially useful talents and attributes, they should contribute them to the society as a whole, and not employ them only for sectional advantages. D Consequently, those who benefit from this policy owe ~,;. it to society to put their newly acquired social talents back into the collective social pool. This would mean that they would automatically fall outside the scope of affirmative action programme in the future. The net would no longer E cover them as they already have socially useful assets. Indeed the society will be richer and better endowed on account of it as the beneficiaries of affirmative action will now begin to contribute to the social pool of talents. This would both release and add to social and material F ~ .. resources required for continuing with the policy aimed at the enhancement of resemblances. As- a result, society will progressively acquire a higher strike rate with the policy of affirmative action by reaching out to those who have thus far fallen outside its ambit. By increasing the number G of those who possess the minimum set of resemblances, the society has now a larger wealth of talents in a variety 't- of fields and specialities than it had before. This is how affirmative action, which is aimed at the historically most disadvantaged sections, ultimately improves the lot of H ~

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

A everybody in society. If, on the other hand, either colour or )...- race, which are only ready reckoners, become permanent considerations, without taking into account biographical profiles of actual and potential beneficiaries, then that would inhibit fraternity and sow seeds of permanent B divisions in society. Affirmative action begins by placing the assets of the better off in a collective pool, not for redistribution, but to create the infrastructure that is needed to enhance the ~ .. minimum set of resemblances necessary for substantive c citizenship. With the help of this capital, socially valuable assets are now created in sites where there were none. This measure has a strong practical dimension for out of . this collective pooling new assets are being created. The "creation of such new assets is possible because the initial pooling of assets of the privileged section allows the society to underwrite the expenses incurred for the establishment of certain baseline similarities in society as a whole. As the most important feature in this case is not one's ascriptive badge, but the creation of socially valuable assets, it is expected that those who have been . the beneficiaries of the scheme will gradually slip out of the net. They will cease to receive from the collective pool and instead will begin to contribute to it. As far as public policy is concerned they are no long members of certain designated castes or communities. They are now simply citizens. " In passing it is worth putting in perspective that the difference between reservations in India and affirmative action in America is that the former talks about extirpating caste whereas the latter is interested primarily in representing races. If the accent is on representation then the ascriptive factor becomes a permanent badge that r' can never be overcome. Again, Americans believe in race representation, not in quotas, and in not sacrificing standards for social justice. But the great similarity between

~ ~ ASHOKA KUMAR THAKUR v. UNION OF ltilDIA & ORS. 257 [DR. ARIJIT PASAYAT, J.]

~ . the two forms of preferential policy is that in both cases it is the public sector where positive discrimination is effectively realized. In America, the State encourages private sector units to employ people of diverse backgrounds without specifying quotas for different races. If these enterprises can show a fair racial mix then they can get preferential contracts from the government. The State cannot force any private sector unit to implement ., 1 affirmative action. It is a combination of goodwill and rewards that takes affirmative action forward in the private sector of America. For example, Bob Jones University c does not receive any public money and, therefore, it refuses to accept affirmative action, even of the most muted kind. It is only when organizations depend on state funding, or when they want to be rewarded by the State, that policy of affirmative action comes to life." D

61. It has been rightly observed in Indra Sawhney No. 2 ~ ~~ (supra) whether creamy layer is not excluded or whether forward classes can be excluded in the list of backward classes, the position would be the same and there will be breach not only of Article 14 but of the basic structure of the Constitution. As was E rightly observed in the said case, non exclusion of the creamy layer or inclusion of forward castes in the lists of backward classes will be totally illegal. The illegality offends the roots and foundation of the Constitution and cannot be allowed to be perpetuated. F ~ ... 62. In Nair Service Society's case (supra) this Court observed as follows: "54. This Court, thus, has categorically laid down the law that determination of creamy layer is a part of the G constitutional scheme."

63. In our view, even non exclusion of the creamy layer for -.. the purpose of admission to the educational institutions cannot be countenanced. It is inconceivable that a person who belongs to the creamy layer is socially and educationally backward. The H

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

A backward status vanishes when somebody becomes part of the creamy layer. " ..

64. In Vasant Kumar's case (supra) it was aptly described that the benefits of reservation are snatched away by the top creamy layer of the backward classes and this has to be avoided B at any cost. By inclusion of the creamy layer or in other words non inclusion thereof a fresh lease of life to those who should have been left out is given. Their continuance would mean keeping weakest amongst the weak always weak and leaving t .. the fortunate ones to enjoy the benefits. If the ultimate aim is a c casteless and classless society in line with the dream of the Constitution framers that has to be chewed out. As Father of the Nation had once said if the caste system as we know is an anchronism, then it must go. There is a feeling and it cannot be said without reason that reservation hits at the root of this belief and instead of its obliteration there is perceivable perpetuation. It is true that obliteration cannot be done immediately or within ..,... ~ a short span of time but that is no answer to the lack of seriousness in seeking obliteration.

65. In Indra Sawhney No.1 (supra) the following observations on the question of giving priority over reservation are of significance. It was held: "293. Preference without reservation may be ado12ted in favour of the chosen classes of citizens by 12rescribing for them a longer geriod for gassing a test or by awarding additional marks or granting other advantages like ...' relaxation of age or other minimum reguirements. (See the preferential treatment in State of Kerala and Anr. v. N.M. Thomas and Ors. (1976) 1 SCR 906). Furthermore, it would be within the discretion of the State to provide financial assistance to such persons by way of grant, scholarships, fee concessions etc. Such preferences or advantages are like temporary crutches for additional ,~

support to enable the members of the backward and other disadvantaged classes to march forward and compete H

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 259 [DR ARIJIT PASAYAT, J.]

with the rest of the people. These preferences are extended to them because of their inability otherwise to compete effective!y in open selections on the basis of merits for appointment to posts in public services and the like or for selection to academic courses. Such preferences can be extended to all disadvantaged classes of citizens, whether or not they are victims of prior discrimination. What qualifies persons for preference is backwardness or disadvantage of any kind which the State has a responsibility to ameliorate. The blind and the deaf, the dumb and the maimed, and other handicapped persons qualify for c preference. So do all other c!asses of citizens who are at a comparative disadvantage for whatever reason, and whether or not they are victims of prior discrimination. All these persons may be beneficiaries of preferences short of reservation. Any such preference, although 0 discriminatory on its face, may be justified as a benign classification for affirmative action warranted by a compelling state interest

294. In addition to such preferences, quotas may be provided exclusively reserving posts in public services or seats in academic institutions for backward people entitled to such protection. Reservation is intended to redress backwardness of a higher degree. Reservation prima facie is the very antithesis of a free and open selection. It is a discriminatory exclusion of the disfavoured classes of meritorious candidates. M.R Balaji (supra). It 1s not a case of merely providing an advantage or a concession or preference in favour of the backward classes and other disadvantaged groups. It is not even a handicap to disadvantage the forward classes so as to attain a G measure of qualitative or relative equality between the two groups. Reservation which excludes from consideration all those persons failing outside the specia!!y favoured groups, irrespective of merits and qualifications, is much more positive and drastic a discrimination - albeit H

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

A to achieve the same end of qualitative equality - but unless strictly and narrowly tailored to a compelling constitutional mandate, it is unlikely to qualify as a benign discrimination. Unlike in the case of other affirmative action programmes. backwardness by itself is not sufficient to warrant B reservation. What qualifies for reservation is backwardness which is the result of identified past discrimination and which is comparable to that of the Scheduled Castes and the Scheduled Tribes. Reservation is a remedial action specially addressed to the ill effects c stemming from historical discrimination. To ignore this vital distinction between affirmative action short of reservation and reservation by a predetermined quota as a remedy for past inequities is to ignore the special characteristic of the constitutional grant of power specially addressed to the constitutionally recognised backwardness. D xx )()( )()(

319. Reservation should be avoided except in extreme cases of acute backwardness resulting from prior discrimination as in the case of the Scheduled Castes E and the Scheduled Tribes and other classes of persons in comparable positions. In all other cases. preferential treatment short of reservation can be adopted. Any such action, though in some respects discriminatory, is permissible on the basis of a legitimate classification rationally related. to the attainment of equality in all its aspects. Xx )()( )()(

323 (16). In the final analysis, poverty which is the ultimate result of inequities and which is the immediate cause and effect of backwardness has to be eradicated not merely by reservation as aforesaid. but by free medical aid, free elementary education, scholarships for higher education and other financial support, free housing. self- employment and settlement schemes. effective implementation of land

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 261 [DR. ARIJIT PASAYAT, J.)

reforms, strict and im12artial 012eration of the law-enforcing A ~ .. machine!Y, industrialization, construction of roads, bridges, culverts, canals, markets, introduction of trans12ort, free SUQQly of water, electricitv and other ameliorative measures 12articularly in areas densely 12012ulated by backward classes of citizens. B (underlined for emphasis)

66. Following observations in M.R. Balaji v. State of ..A. Mysore (AIR 1963 SC 649) are also relevant: "In this connection, it is necessary to remember that the c reservation made by the impugned order is in regard to admission in the seats of higher education in the State. It is well-known that as a result of the awakening caused by political freedom, all classes of citizens are showing a growing desire to give their children higher university education and so, the Universities are called upon to face the challenge of this growing demand. While it is necessa!Y that the demand for higher education which is thus increasing from year to year must be adeguately met and 12ro12erly channelised, we cannot overlook the fact that in meeting that demand standards of higher education in Universities must not be lowered. The large demand for education may be met by starting larger number of educational institutions vocational schools and polytechnics. But it would be against the national interest to exclude from the 12ortals of our Universities gualified '" and com12etent students on the ground that all the seats in the Universities are reserved for weaker elements in society. As has been observed by the University Education Commission, "he indeed must be blind who does not see that mighty as are the political changes, far deeper are the fundamental questions which will be decided by what· happens in the universities" (p. 32). Therefore, in 't considering the question about the propriety of the reservation made by the impugned order, we cannot lose sight of the fact that the reservation is made in respect of H

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

A higher university education. The demand for technicians, scientists, doctors, economists, engineers and experts > ... for the further economic advancement of the country is so great that it would cause grave prejudice to national interests if considerations of merit are completely excluded B by whole-sale reservation of seats in all Technical, Medical or Engineering colleges or institutions of that kind. Therefore, considerations of national interest and the interests of the community or society as a whole cannot be ignored in determining the question as to whether the r ....

c special provision contemplated by Art. 15(4) can be special provision which excludes the rest of the society altogether. In this connection, it would be relevant to mention that the University Educ.ation Commission which considered the problem of the assistance to backward communities, had observed that the percentage of reservation shall not exceed a third of the total number of seats, and it has added that the principle of reservation may be adopted for a period of ten years. (p. 53).

We have already noticed that the Central Government in its communication to the State has suggested that reservation for backward classes, Scheduled Castes and Scheduled Tribes may be up to 25% with marginal adjustments not exceeding 10% in exceptional cases.

The learned Advocate-General has suggested that reservation of a large number of seats for the weaker sections of the society would not affect either the depth or ,. efficiency of scholarship at all, and in support of this " argument, he has relied on the observations made by the Backward Classes Commission that it found no complaint in the States of Madras, Andhra, Travancore-Cochin and Mysore where the system of recruiting candidates from other Backward Classes to the reserve quota has been in vogue for several decades. The Committee further i" observed that the representatives of the upper classes did not complain about any lack of efficiency in the offices

ASHOKA KUMAR THAKt;R v ~l\ilON OF INDIA & ORS. 263 [DR. ARIJIT PASAYAT, J.;

recruited by reservation (p. 135) This opinion, however, A •• is plainly inconsistent with what is bound to be the inevitab!e consequence of reservation in higher university education. If admiss,;on to professional and technical colleges is unduly liberalised it would be idle to contend that the quality of our graduates will not suffer. That is not to say that B reservation should not be adopted; reservation should and must be adopted to advance the prospects of the weaker ...., I sections of society. but in prov•:ding for special measures in that behalf care shou:d be taken not to exclude admission to higher educational centres to deserving and c qualified candidates of other communities A special provision contemplated by Art 15(4) like reservation of posts and appointments contemplated by Art. 16(4) must be within reasonable :imits The interests of weaker sections of society which are a first charge on the states D and the Centres have to be adjusted with the interests of the community as a whole The adjustment of these competing c!aims is undoubtedly a difficult matter, but if under the guise of making a special provision, a State reserves practically all the seats available in ail the colleges, that dearly would be subverting the object of Art. 15(4). In E this matter again, we are reluctant to say definitely what would be a proper provision to make. Speaking generally and m a broad way a special provision should be less than 50%, how much less than 50% would depend upon the relevant prevailing circumstances in each case. In F ... .... this particular case it :s remarkable that when the State issued its order on .:uly 10, 1961. it emphaticaHy expressed its opinion that the reservation of 68% recommended by the Nagan Gowda Committee would not be \n the larger interests of the State. What happened between July 10, G 1961 . and July 31. 1962, does not appear on the record. But the State changed its mind and adopted the -i- recommendation of the Committee ignoring its earlier decision that the said recommendation was contrary to the larger inte•ests of the State. In our opinion, when the H

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

A State makes a special provision for the advancement of the weaker sections of society specified in Art. 15(4) it " .. has to approach its task objectively and in a rational manner. Undoubtedly, it has to take reasonable and even generous steps to help the advancement of weaker B elements; the extent of the problem must be weighted, the requirements 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. Therefore, we are satisfied that the c reservation of 68% directed by the impugned order is plainly inconsistent with Art. 15(4). The petitioners contend that having regard to the infirmities in the impugned order, action of the State in issuing the said order amounts to a fraud on the Constitutional power conferred on the State by Art. 15(4). This argument is well- founded, and must be upheld. When it is said about an executive action that it is a fraud on the Constitution, it does not necessarily mean that the action is actuated by mala fides. An executive action which is patently and plainly outside the limits of the constitutional authority conferred on the State in that behalf ·is struck down as being ultra vires the State's authority. If, on the other hand, the executive action does not patently or overtly transgress the authority conferred on it by the Constitution, but the transgression is covert or latent, the said action is struck down as being a fraud on the relevant constitutional power. ,.• It is in this connection that courts often consider the substance of the matter and not its form and in ascertaining the substance of the matter, the appearance or the cloak, or the veil of the executive action is carefully scrutinized and if it appears that notwithstanding the appearance, the cloak or the veil of the executive action, in substance and in truth the constitutional power has been transgressed, the impugned action is struck down as a fraud on the r-' Constitution. We have already noticed that the impugned H

c ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 265 [DR. ARIJIT PASAYAT, J.]

... order in the present case has categorised the Backward Classes on the sole basis of caste which, in our opinion, A

is not permitted by Art. 15(4); and we have also held that the reservation of 68% made by the impugned order is plainly inconsistent with the concept of the special provision authorised by Art. 15(4). Therefore, it follows B that the impugned order is a fraud on the Constitutional power conferred on the State by Art. 15(4). The learned .,., j Advocate-General has made an earnest and strong plea before us that we should not strike down the order, but should strike down only such portions of the order which c appear to us to be unconstitutional on the doctrine of severability. He has urged that since 1958, the State has had to make five orders to deal with the problem of advancing the lot of the Backward Classes and the State is anxious that the implementation of the impugned order should not be completely prohibited or stopped. We do • J- not see how it would be possible to sever the invalid provisions of the impugned order. If the categorisation of the Backward Classes is invalid, this Court cannot and would not attempt the task of enumerating the said categories; and if the percentage of reservation is improper and outside Art. 15(4), this Court would not attempt to lay down definitely and in an inflexible manner as to what would be the proper percentage to reserve. In this connection, it may be relevant to refer to one fact on which "\ the petitioners have strongly relied. It is urged for them F ... that the method adopted by the Government of Maharashtra in exercising its power under Art. 15(4) is a proper method to adopt. It appears that the Maharashtra Government has decided to afford financial assistance, and make monetary grants to students seeking higher education where it is G shown that the annual income of their families is below a prescribed minimum. The said scheme is not before us -t and we are not called upon to express any opinion on it.. However, we may observe that if any State adopts such a measure, it may afford relief to and assist the advancement H

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

A of the Backward Classes in the State, because ..... backwardness, social and educational, is ultimately and primarily due to poverty. An attempt can also be made to start newer and more educational institutions, polytechnics, vocational institutions and even rural Universities and B thereby create more opportunities for higher education. This dual attack on the problem posed by the weakness of backward communities can claim to proceed on a rational, broad and scientific approach which is consistent ~ '-< with, and true to, the noble ideal of a secular welfare c democratic State set up by the Constitution of this country. Such an approach can be supplemented, if necessary by providing special provision by way of reservation to aid the Backward classes and Scheduled castes and Tribes. It may well be that there may be other ways and means of achieving the same result. In our country where social and economic conditions differ from State to State, it would be idle to expect absolute uniformity of approach; but in taking executive action to implement the policy of Art. 15(4), it is necessary for the States to remember that the policy which is intended to be implemented is the policy which has been declared by Art. 46 and the preamble of the Constitution. It is for the attainment of social and economic justice Art. 1-5(4) authorises the making of special provisions for the advancement of the communities there contemplated even if such provisions may be inconsistent with the fundamental rights guaranteed under Art. 15 or 29(2). The context, therefore, requires that the executive .. )'

action taken by the State must be based on an objective approach, free from all extraneous pressures. The said action is intended to do social and economic justice and must be taken in a manner that justice is and should be done. Whilst we are dealing with this question, it would be relevant ~- to add to that the provisions of Art. 15(4) are similar to those of Art. 16(4) which fell to be considered in the case H

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 267 :oR. AR!JIT PASAYAT, J.] of The General Manager, Southern Railway v. A Rangachan (1962 (2) SCR 586) In that case, the majority decision of this Court held that the power of reservation which is conferred on the State under Art. 16(4) can be exercised by the State In a proper case not only by providing for reservation of appofntrnents, but also by B providing for reservation of selection posts. This conclusion was reached on the basis that it served to give effect to the intent!on of the Constitution makers to make adequate safeguards for the advancement of Backward Classes and to secure their adequate representation in the Services. c The judgment shows that the oniy point which was raised for the decision of this Court :n that case was whether the reservation made was outside Art. 16(4) and that posed the bare question about the construction of Art. 16(4). The propriety. the reasonableness or the wisdom of the 0 impugned order was not questioned because it was not . -~ the respondent's c<':.e that if the order was justified under Art. 16(4) it was 'l fraud on the Constitution. Even so, it was pointed out in the judgment that the efficiency of administration 1s of such a paramount importance that it would be u'1wise and impermissible to make any reservation at the cost of efficiency of administration; that, it was stated, was undoubtedly the effect of Art. 335. Therefore, wliat 1s true in regard to Art. 15(4) is equally true in regard to Art. 16(4) There can be no doubt that the Constitution-makers assuried as they were entitled to, that while IT'aking adequate reservation under Art. 16(4), care would be taken not to provide for unreasonable, excessive or extravagant reservation, for that would, by eliminating general competition in a large field and by creating wide·spread dissatisfaction amongst the employees. materially affect efficiency. Therefore, like the special provision improperly made under Art 15(4), reservation made under Art. 16(4) beyond the permissible and legitimate limits would be Hable to be challenged as a fraud on the Constitution. In this connection it is necessary H

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

A to emphasize that Art. 15(4) is an enabling provision; it ... 1 does not impose an obligation, but merely leaves it to the discretion of the appropriate government to take suitable action, if necessary."

67. To similar effect is the view expressed in K. C. Vasanth B Kumar's case (supra) at para 150:

"At this stage it should be made clear that if on a fresh determination some castes or communities have to go r ~ out of the list of backward classes prepared for Article c 15(4) and Article 16(4) the Government may still pursue the policy of amelioration of weaker sections of the population amongst them in accordance with the directive principle contained in article 46 of the Constitution. There are in all castes and communities poor people who if they are given adequate opportunity and training may be able D to compete successfully with persons belonging to richer classes. The Government may provide for them liberal ... ~

grants of scholarships, free studentship, free boarding and lodging facilities, free uniforms, free mid day meals etc. to make the life of poor students comfortable. The E Government may also provide extra tutorial facilities, stationery and books free of costs and library facilities. These and other steps should be taken in the lower classes so that by the time a student appears for the qualifying examination he may be able to attain a high degree of F proficiency in his studies." ..,,- It has also been noted as follows: "I wish to add that the doctrine of protective discrimination embodied in Article 15(4) and 16(4) and the mandate of G Article 29(2) cannot be stretched beyond a particular limit. The State exists to serve its people. There are some services where expertise and skill are of the essence. For example, a hospital run by the State serves the ailing -·_.I members of the public who need medical aid. Medical H services directly affect and deal with the health and life of

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 269 [DR. ARIJIT PASAYAT, J.] • the populace. Profession exQertise, born of knowledge A ~ ' and exQerience, of a high degree of technical knowledge and OQeration skill is reguired of Qilots and aviation engineers The lives of citizens deQend on such Qersons. There are other similar fields of governmental activitv where [1rofessional, technological, scientific or other sgecial §kill B is called for. In such services or Qosts under the Union or State, we think where can be no room for reservation of ,,, 1 QOsts; merit alone must be the sole and decisive CQnsideration for aggointments." (underlined for emphasis) c

68. Lengthy arguments have been advanced as to the seriousness in identifying the backward classes. On the basis of Indra Sawhney No.1's judgment, the Government of India issued orders in respect of reservations of appointments or on posts under the Government of India in favour of backward classes of citizens. It was the subject matter of challenge in - J. lndra_Sawhney No.1. In its judgment dated 16.11.1992 this Court directed the Government to constitute a permanent body by 15.3.1993 for entertaining and examining and recommending upon requests made for inclusion or complaints of over inclusion and under inclusion in the lists of backward classes of cttizens.

69. Constituent Assembly Debates 1951 have also relevance for adjudicating the controversy. The following portion needs to be extracted: F .... ~

70. Parliamentary Standing Committee Report at paras 36, 37 and 46 read as follows: "36. The committee notes that there is a major limitation on data about the social economic and educational profile G of our population in general and about OBCs in particular. The last caste-based census in India was done in 1931. ..... Accordingly there are no periodic data available on the demographic spread of OBCs and their access to amenities. Even the Mandal Commission had used the H

270 SUPREME COURT REPORTS (2008] 4 S,C.R.

A 1931 Census data. Whatever limited data are available, • t pertain to surveys conducted by NSSO from 1998-99 onwards, which are only 's.ample surveys'.

37. The Committee found that there exists no accepted mechanism/criteria to group the people into different B categories. As a result, existing list of backward castes/ communities are termed in some cases, as inaccurate. Besides, any regular process of review is also not in place. Such a review implies both 'inclusion' and ·exclusion'. The Committee, therefore, emphasizes the need for taking c urgent measures/steps for identifying and removing all such lacunae and removing all such lacunae and problems by putting in place scientific and objective mechanism/ benchmarks for this purpose. xx xx xx D

46. There have been suggestions/counter-suggestions on· the issue of exclusion of the 'creamy layer amongst OB Cs in the proposed legislation. On the one hand, it was argued that the concept of creamy layer did not apply in the case of reservation in admission. It was pointed out that the debate on the exclusion of the creamy layer was misplaced as the Supreme Court's observation regarding the exclusion of the creamy layer within the SCs and STs from the purview of reservation was only for public employment and promotion. The other view in this regard was that the inclusion of the creamy layer in reservation \'iOuld defeat the very purpose of providing reservation to the backward classes. It was also stated that the exclusion of the creamy layer would ensure that the intended benefits of the reservation reach to the really deserving among the backward classes. It was further stated that this in itself would not suffice and should be supplemented by categorization of the backward classes in various groups depending upon their degree of backwardness and apportioning of appropriate percentage of reservation to H

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS 271 [DR. ARIJIT PASAYAT, J.]

~ . each group. It was also brought to the committee that similar experiments in States of Andhra Pradesh, Kerala, Karnataka, Tamil Nadu, Maharashtra etc. have, in fact, stood the test of time and yielded the desired results."

71. One of the petitioners "Youth for Equality" had filed a representation before the Parliamentary Committee giving certain :mportant data. Relevant portions read as follows: .... ' "TOP WITHOUT BASE The condition of infrastructure and staff at the primary and secondary level is of some concern and the government- c especially the Ministry for Human Resource and Development which has proposed increased reservations, should work towards improvement in this area for "Real" affirmative action. According to the National Institute of Educational Planning and Administration (in 2003) the state of affairs at the primary level was as under:- - ,. {i) In 62 996 schools in country do not have school building and are operating in tents or under the trees. {ii) In 70,739 Primary Schools - No class room. E {iii) In 95,003 primary Schools - Single Class room. {iv) In 8,269 Primary Schools - No teacher {v) In 1.15,267 Primary schools -Single teacher .., F • {vi) In more than 60.000 schools the pupil: Teacher ratio is greater than 100 :1 while the acceptable ratio is less than 40:1. {vii) In 84,848 schools - No black board G {viii) In More than 1 00 000 Schools - No electricity. \1 ... t Apart from the above, according to the NCERT {In 1998), Only 34.6% of Govt. Schools had safe Drinking water, 13.2% had urinal and 4.9% had urinals for girls and only 6.0% had a lavatory. While the government promises a H

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

A spending of about 6% of GDP for the development of education, the reality has been to the contrary. The . ~

Government spending in the years was as under: 2000-2001 4.1% B 2001-2002 . 4.3% 2002-2004 3.8% ~

2004-2005 3.5% r ...

72. The National Commission for Backward Classes Act, c 1993 (in short 'Backward Classes Act') was accordingly enacted. Few provisions of this Act need to be noted.

73. Section 2 (c) defines lists as follows: "Lists means lists prepared by the Government of India D from time to time for purposes of making provisions for the reservation of appointments or posts in favour of .....__ backward classes of citizens which, in the opinion of that Government, are not adequately represented in the services under the Government of India and any local or other authority within the territory of India or under the control of the Government of India".

74. Important provisions are Sections 9 and 10 which read as follows:

F "9. Functions of the Commission (1) The Commission ,. shall examine requests for inclusion of any class of citizens "' as a backward class in such lists and hear complaints of over-inclusion or under inclusion of any backward class in such lists and tender such advice to the Central Government G as it deems appropriate. (2) The advice of the Commission shall ordinarily bE! binding upon the Central Government. p ~--

10. Powers of the Commission- The Commission shall, while performing its functions under sub-section (1) of H

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS 273 [DR. ARIJIT PASAYAT; J.]

Section 9, have all the powers of a civil court trying a suit A and in particular, in respect of the following' matters, namely:- (a) summoning and enforcing the attendance of any person from any part of India and examining him on oath; B (b) requiring the discovery and production of any document; (c) receiving evidence on affidavits;

(d) requisitioning any public record or copy thereof from c any court of office; (e) issuing commissions for the examination of witnesses and documents; and (f) any other matter which may be prescribed." D

75. A periodic revision of the lists by the Central Government is a statutory mandate. Petitioners have highlighted that there is no exclusion and on the other hand there has been inclusion. On the question of castes enumeration it is emphasized that 1931 Census was not the basis for identification of other backward classes. In fact the central OBC List is not drawn up on the basis of 1931 Census. Each State has different modalities for identification. Only for the purpose of quantum the population provides a foundation.

76. It needs no emphasis that if ultimately and indisputably the constitutional goal is the casteless and classless society, there has to be more effective implementation of the Backward Classes Act. The exercise required to be undertaken under Section 11 of the said Act is not intended to be a routine exercise and also not an exercise in futility. It has to be not only effective but also result oriented . The petitioners have highlighted the lack of seriousness of the Government in carrying out the exercise. Voluminous datas have been brought on record in this regard. With reference to the reports of the Commission, learned counsel for the respondents on the other hand have stressed H

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

A on the fact that the Commission has been working with all >- 1 sincerity and with the object of effectively implementing the Backward Classes Act. One thing needs to be noted here. Concrete data about the number of backward classes in the country does not appear to be available. The survey conducted B by the National Sample Survey reveals that the percentage is not 52% as is highlighted by the respondents.

77. Section 2(g) of the Act is relevant in this regard. It reads as follows: .. c "Other Backward Classes" means the class or classes of citizens who are socially and educationally backward, and are so determined by the Central Government."

78. At this juncture, it is to be noted that the Backward Classes Act in order to be wholly functional mandates determination by the Central Government of the backward classes. for whom the Statute is intended. Undisputedly, such determ'ination has not been done. The plea is that for more than half a century enough attention has not been given for the benefit of the other backward classes in the matter of admissions to higher educational institutions. That cannot be a ground to act with hurry and with un-determined datas. It may be as rightly contended by learned counsel for the respondents that the percentage can certainly be not less than 27%. But that is no answer to the important question as to the identity test. In the background loom the socially and economically backward class of citizens. Poverty knows no caste. Poor has no caste. It is an ,.,.. unfortunate class. It is a matter of common knowledge that the institution of caste is a peculiarity of Indian institution when there is considerable controversy amongst the scholars as to how the caste system originated in this country. Originally, there were four main castes known as Vamas . But gradually castes and sub-castes multiplied as the social fabric expanded with the absorption of different groups of people who belong to various ~ cults and professing different religious faiths. The caste system in its earlier stage was quite elastic but in course of time it H

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS 275 [DR ARIJIT PASAYAT, J.]

t , gradually hardened into a rigid framework based upon heredity. A The inevitable resuit was social inequality. At some point of time occupation was the background for determination of castes. May be, at some point of time it depended on the income of the mdividual. But it appears to have taken disastrous turn with difference of status of various castes. But passage of time shows B that the occupational label has lost much of its significance. But at the same time, the poor and down trodden who belong to the . .. caste of their own were the founders of poor, In Indra Sawhr.ey No.1 this factor was noticed.

79. It is said that one must take life in ones stride, let today c embrace the past wtth remembrance and the future with long mg.

80. Don't look for the path far away, the path exists under your feet.

81. What is past and what cannot be prevented should not D ~.i. be grieved for.

82. With reference to the Office Memorandum which provides for preference in favour of "poorer sections· over other members of the backward c!asses, the expression was held to be relatable to those who are socially and economically more E backward. The use of the word 'poorer' in the context was held to be a measure of the social backwardness. It is therefore unmistakenly recognized that economic backwardness is a factor which can never be lost sight of. There are or.ly two ""! . families in the world; the haves and the have nots said lvHquel F De Cervantes Don Qutxote de ta Mancha. Tolstoy has emphatically said "We will do anything for the poor man anything but get of his back" (quoted in Huntington Philanthrophy and Morality). G

83. William Cobbett had said 'to be poor and independent is very nearly an 1mpossibi!ity. (See His book 'Advise to Young ... ~ Men} We cannot turn Nelson's eye to the poor, those covered by all encompassing expression "economically backward classes". H

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A 84. Should this class of people be kept out of the '" f mainstream of governmental priorities and policies because they belong to a particular caste? As noted above, the poor have no caste. A person belonging to a higher caste should not be made to suffer for what his forefathers had done several B generations back.

85. Franklin D Roosevelt in a speech in 1940 had said "It is an unfortunate human failing that a full pocket book often .. ... groans more loudly than an empty stomach". The haves and the have nots have to co-exist. If the creamy layer has to be excluded c the economically backward classes have to be included. That would be social ~a lancing and that would be giving true meaning of the objectives of the Constitution. Social empowerment cannot be and is certainly not a measure for only socially and educationally backward classes. It also has to be for the socially and economically backward classes. Unless this balance, which is very delicate, is maintained the system inevitably will develop _..._ a crack and this crack may after a certain point of time be difficult to be joined. Instead of lightening the society from castes or classes it will be over burdened and a point of time may come when we shall not be able to bear the burden any further. Timely steps in this regard will save the Indian society and democracy from a catastrophe of collapse because of something which the Constitution wants to obliterate.

86. On the question of time period for the reservation, it is submitted that length of the leap to be provided depends upon ,. the gap to be filled. It is fairly accepted by learned counsel for "' the respondents that as and when castes reach a higher level it is to be excluded from the zone of consideration. It is further submitted that traditional occupation is being pursued by persons belonging to some castes and the system still subsists and has not broken down. In the absence of alternative occupation which may not be lucrative, the persons who used 1"' to previously carry on the traditional occupation find it difficult to take up any other occupation. H

~ ~ ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 277 [DR. ARIJIT PASAYAT, J.]

87. It has been averred that consequent to several efforts, A India has made enormous progress in terms of increase in institutions, teachers and students in elementary education. But despite atl the efforts large population of the children in the country still remain out of school.

88. One of the contentions is that by passage of time B prolonged reservation becomes Hlicit. In Motor General Traders and Anr v State of Andhra Pradesh and Ors. (1984 (1) SCC -<:) • 222) following observations were made: "16. What may be unobjectionable as a transitional or c temporary measure at an initial stage can still become discriminatory and hence violative of Article 14 of the Constitution if it is persisted in over a long period without any Justification. The trend of decisions of this Court on the above question may be traced thus. In Bhaiyalal Shukla D v. State of Madhya Pradesh [1962] Supp. 2 S.C.R. 257 . ). one of the contentions urged was that the levy of sales tax in the area which was formerly known as Vindhya Pradesh (a Part 'C' State) on building materials used in a works contract was discriminatory after the merger of that area in the new State of Madhya Pradesh which was formed on E November 1, 1956 under the States Reorganisation Act, 1956 as the sale of building materials in a works contract was not subject to any levy of sales tax in another part of the same new State namely the area which was formerly part of the area known as State of Madhya Pradesh (the F "( . Central Provinces and Berar area). That contention was rejected by this Court with the following observations at pages 274-275 : The laws in different portions of the new State of G Madhya Pradesh were enacted by different Legislatures, and under Section 119 of the States ~ Reorganisation Act all laws inforce are to continue ' ._..,. until repealed or altered by the appropriate Legislature. We have already held that the sales tax H

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

A law in Vindhya Pradesh was validly enacted, and it ... 1

brought its validity with it under Section 119 of the States Reorganisation Act, when it became a part of the State of Madhya Pradesh. Thereafter, the different laws in different parts of Madhya Pradesh can be B sustained on the ground that the differentiation arises from historical reasons, and a geographical classification based on historical reasons has been ~ upheld by this Court in M.K. Prithi Rajji v. The State ~

of Rajasthan (Civil Appeal No. 327of1956 decided c on November 2, 1960) and again in The State of Madhya Pradesh v. The Gwalior Sugar Co. Ltd. (Civil Appeals Nos. 98 and 99 of 1957 decided on November 30, 1960). The latter case is important, because the sugarcane cess levied in the former Gwalior State but not in the rest of Madhya Bharat of which it formed a part, was challenged on the same ground as here, but was upheld as not affected by ....__ Article14. We, therefore, reject this argument.

89. In N.M. Thomas's case (supra) the parameters of various clauses of Article 16 were highlighted as follows: ~

"37. The rule of equality within Articles 14 and 16(1) will not be violated by a rule which will ensure equality of representation in the services for unrepresented classes after satisfying the basic needs of efficiency of administration. Article 16(2) rules out some basis of ..,. classification including race, caste, descent, place of birth etc. Article 16(4) clarifies and explains that classification on the basis of backwardness does not fall within Article 16(2) and is legitimate for the purposes of Article 16(1). G If preference shall be given to a particular under- represented community other than a backward class or under-represented State in an All India Service such a rule ~ .... F will contravene Article 16(2). A similar rule giving • preference to an under-represented backward community H is valid and will not contravene Articles 14, 16(1) and 16(2).

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 279 [DR. ARIJIT PASAYAT, J.)

Article 16(4) removes any doubt in this respect. A xx xx xx

44. Our Constitution aims at equality of status and opportunity for all citizens including those who are socially, economically and educationally backward. The claims of B members of backward classes require adequate representation in legislative and executive bodies. If members of Scheduled Castes and Tribes, who are said by this Court to be backward classes, can maintain minimum necessary requirement of administrative c efficiency, not only representation but also preference may be given to them to enforce equality and to eliminate inequality. Articles 15(4) and 16(4) bring out the position of backward classes to merit equality. Special provisions are made for the advancement of backward classes and 0 reservations of appointments and posts for them to secure adequate representation. These provisions will bring out the content of equality guaranteed by Articles 14, 15(1) and 16( 1). The basic concept of equality is equality of opportunity for appointment. Preferential treatment for members of backward classes with due regard to administrative efficiency alone can mean equality of opportunity for all citizens. Equality under Article 16 could not have a different content from equality under Article 14. Equality of opportunity for unequals can only mean aggravation of inequality. Equality of opportunity admits discrimination with reason and prohibits discrimination without reason. Discrimination with reasons means rational classification for differential treatment having nexus to the Constitutionally permissible objf;!ct. Preferential representation for the backward classes in services with due regard to administrative efficiency is permissible object and backward classes are a rational classification recognised by our Constitution.· Therefore, differential ·treatment in standards of selection is within the concept of ~uality H

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

A )()( )()( xx • 1

56. If we are all to be treated in the same manner, this must carry with it the important requirement that none of us should be better or worse in upbringing, education, than any one else which is an unattainable ideal for human B · beings of anything like the sort we now see. Some people maintain that the concept of equality of opportunity is an unsatisfactory concept For, a complete formulation of it renders it incompatible with any form of human society. Take for instance, the case of equality of opportunity for c education. This equality cannot start in schools and hence requires uniform treatment in families which is an evident impossibility. To remedy this, all children might be brought up in state nurseries, but, to achieve the purpose, the nurseries would have to be run on vigorously uniform lines. D Could we guarantee equality of opportunity to the young even in those circumstances? The idea is well expressed by Laski: 'Equality m·eans, in the second place, that adequate opportunities are laid open to all. By adequate opportunities we cannot imply equal opportl!nities in a sense that implies identity of original chance. The native endowments of men are by no means equal. Children who are brought up in an atmosphere where things of the mind are accounted highly are bound to start the race of life with advantages no legislation .. can secure. Parental character will inevitably affect profoundly the equality of the children whom it touches. So long, therefore, as the family endures - and there seems little reason to anticipate or to desire its disappearance - the varying environments it will create make the notion of equal opportunities a fantastic one'. )()( xx )()(

f-: 60. Bernard A.O. Williams, in his article 'The Idea of

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 281 [DR. ARIJIT PASAYAT, J.] Equality" (supra) gives an illustration of the working of the A • • principle of equality of opportunity: 'Suppose that in a certain society great prestige is attached to membership of a warrior class, the duties of which require great physical strength. This class has in the past been recruited from certain wealthy 8 families only, but egalitarian reformers achieve a change in the rules, by which warriors are recruited from all sections of the society, on the result of a suitable competition. The effect of this, however, is that the wealthy families still provide virtually all the warriors, because the rest of the populace is so undernourished by reason of poverty that their physical strength is inferior to that of the wealthy and well nourished. The reformers protest that equality of opportunity has not really been achieved; the wealthy reply that in fact it has, and that the poor now have the opportunity of becoming warriors - it is just bad luck that their characteristics are such that they do not pass the test- "We are not", they might say, "excluding anyone for being poor; we exclude people for being weak, and it is unfortunate that those who are poor are also weak'. xx xx xx

67. Today, the political theory which acknowledges the obligation of government under Part IV of the Constitution to provide jobs, medical care, old age pension, etc., extends to human rights and imposes an affirmative obligation to promote equality and liberty. The force of the idea of a state with obligation to help the weaker sections of its members seems to have increasing influence in Constitutional law. The idea finds expression in a number of cases in America involving social discrimination and also in the decisions requiring the state to offset the effects of poverty by providing counsel, transcript of appeal, expert H

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

A witnesses, etc. Today, the sense that government has affirmative responsibility for elimination of inequalities, .. ~ .

social, economic or otherwise, is one of the dominant forces in Constitutional law. While special concessions for the under-privileged have been easily permitted, they B have not traditionally been required. Decisions in-the areas of criminal procedure, voting rights and education in America suggest that the traditional approach may not be completely adequate. In these areas, the inquiry whether equality has been achieved no longer ends with numerical c equality; rather the equality clause has been held to require resort to a standard of proportional equality which requires the state, in framing legislation, to take into account the private inequalities of wealth, of education and other circumstances. D xx xx xx

89. The ultimate reason for the demand of equality for the members of backward classes is a moral perspective which affirms the intrinsic value of all human beings and calls for a society which provides these conditions of life which men need for development of their varying capacities. It is an assertion of human equality in the sense that it manifests an equal concern for the well being of all men. On the one hand it involves a demand for the removal of those obstacles and impediments which stand in the way of the development of human capacities, that is, it is a call for the abolition of unjustifiable inequalities. On the other hand, the demand itself gets its sense and moral driving force from the recognition that "the poorest he that is in England hath a life to live, as the greatest he". G

90. 'Equality' and 'excellence' are two conflicting claims difficult to be reconciled. The Constitution, in order to ensure true equality provides for special treatment to socially and educationally backward classes of citizens which is obviously desirable for providing social justice, though at the cost of merit. H

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 283 [DR. ARIJIT PASAYAT, J.]

However, the Constitution does not provide at all for 'institutional A ~ • reservation.' Therefore, it's constitutionality is to be judged on the touchstone of Article 14. A large number of cases cropped up in this area concerning the institutional prefere~ce for admission into postgraduate medical education and super specialties. The judiciary came forward and laid down detailed 8 principles covering the need of such preference and to Hmit the extent of such reservation in view of the importance of merit in 1 the context of national interest and international importance of ""(> universal exce!lence in super specialties.

91. lt is to be noted that the foundation for fixing 27% c appears to be the view that 52% of the population belong to OBC. There is no supportable data for this proposition. In fact, different Commissions at different points of time have different figures. It is the stand of the respondents that no Commission has fixed the percentage below 52% and, therefore, there is D nothing wrong in fixing the percentage at 27%. This is not the ·- . correct approach. It may be that in no case the percentage of persons belonging to OBC is less than 27% but supposing in a given case considering the fact that the actual percentage is 40% a figure less than 27% should have been fixed. The E Commission set out pursuant to the directions of this Court seems to have somewhat acted on the petitions filed by the people claiming exclusion or inclusion. That was not the real purpose of this Court's decision to direct appointment of Commission. The very purpose was to identify the classes. This F ..,.. was the exercise which was to be undertaken apart from considering the applications for inclusion or exclusion as the case may be. As has been conceded at the beginning of the case affirmative action is not under challenge. Affirmative action is nothing but a crucial component of social justice in the G constitutional dispensation but at the same time it has to be kept in view that the same does not infringe the principles of ....,,. equality of which it is a part and/or unreasonably restraint or restrict other fundamental freedoms and that it does not violate the basic structure of the Constitution. H

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

A 92. It needs no emphasis that Articles 15(4), 15(5) and 16(4) have to comply with the requirements of Article 14 and • • the discipline imposed in several other provisions like Articles 15(4)(a) and 15(4)(b), though, they form a part of the equality concept, each of which is so found in our Constitution.

B 93. It is a well settled principle in law that the Court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the Legislature. The language employed in a statute is the determinative factor of legislative intent. c

94. Words and phrases are symbols that stimulate mental references to referents. The object of interpreting a statute is to ascertain the intention of the Legislature enacting it. (See Institute of Chartered Accountants of India v. Mis Price Waterhouse and Anr. (AIR 1998 SC 74). The intention of the 0 Legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. As a consequence, a construction which requires for its support, addition or substitution of words or which results ·in rejection of words as E meaningless has to be avoided. As observed in Crawford v. Spooner (1846 (6) Moore PC 1), Courts, cannot aid the Legislatures' defective phrasing of an Act, we cannot add or mend, and by construction make up deficiencies which are left there. (See The State of Gujarat and Ors. v. Dilipbhai F Nathjibhai Patel and Anr. (JT 1998 (2) SC 253). It is contrary to all rules of construction to read words into an Act unless it is absolutely necessary to do so. (See Stock v. Frank Jones (Tiptan) Ltd. (1978 1 All ER 948 (HL). Rules of interpretation do not permit Courts to do so, unless the provision as it stands is G meaningless or of doubtful meaning. Courts are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself. (Per Lord Loreburn L.C. in Vickers Sons and Maxim Ltd. v. Evans (1910) AC 445 (HL), quoted in Jamma Masjid, Mercara v. H Kodimaniandra Deviah and Ors.(AIR 1962 SC 847).

~ l ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 285 [DR. ARIJIT PASAYAT, J.]

95. The question is not what may be supposed and has A b • been intended but what has been said. "Statutes should be construed not as theorems of Euclid". Judge Learned Hand said, "but words must be construed with some imagination of the purposes which lie behind them". (See Lemgh Valley Coal Co. v. Yensavage 218 FR 547). The view was re-iterated in Union B of India and Ors. v. Filip Tiago De Gama of Vedem Vasco De Gama {AIR 1990 SC 981). , .. 96. In D.R. Venkatchalam and Ors. etc. v Dy. Transport .Commissioner and Ors. etc. (AIR 1977 SC 842), it was observed that Courts must avoid the danger of a priori c determination of the meaning of a provision based on their own pre-conceived notions of ideological structure or scheme into which the provision to be interpreted is somewhat fitted. They are not entitled to usurp legislative function under the disguise of interpretation. D

97. While interpreting a provision the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, 1t is for the legislature to amend, modify or repeal it, if deemed necessary. (See Commissioner of Sa/es Tax, MP v Popular Trading E Company, Ujjain (2000 (5) SCC 511). The legislative casus omissus cannot be supplied by judicial interpretative process.

98. Two principles of construction - one relating to casus omissus and the other in regard to reading the statute as a whole F 4 ,, - appear to be well settled. Under the first principle a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a c~sus omlssus should not be readily inferred and for that purpose all the parts of a G statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a .... " particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular H

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

A clause leads to manifestly absurd or anomalous results which could not have been intended by the Legislature. "An intention • to produce an unreasonable result", said Danackwerts, L.J. in ' Artemiou v. Procopiou (1966 1 QB 878), "is not to be imputed to a statute ifthere is some other construction available". Where B to apply words literally would "defeat the obvious intention of the legislature and produce a wholly unreasonable result" we must "do some violence to the words" and so achieve that obvious intention and produce a rational construction. (Per Lord .. Reid in Luke v. /RC (1963 AC 557) where at p. 577 he also .. c observed: "this is not a new problem, though our standard of drafting is such that it rarely emerges".

99. It is then true that, "when the words of a law extend not to an inconvenience rarely happening, but due to those which often happen, it is good reason not to strain the words further than they reach, by saying it is casus omissus, and that the law intended quae frequentius accidunt." "But," on the other hand, "it is no reason, when the words of a law do enough extend to J., ., an inconvenience seldom happening, that they should not extend to it as well as if it happened more frequently, because it happens but seldom" (See Fenton v. Hampton (1858) XI Moore, P.C. 347). A casus omissus ought not to be created by interpretation, save in some case of strong necessity. Where, however, a casus omissus does really occur, either through the inadvertence of the legislature, or on the principle quod semel aut bis existit praeterunt /eg1slatores (legislators says pass over that which happens only once or twice), the rule is that the particular case. thus left unprovided for, must be disposed of according to the . ~

law as it existed before such statute - Casus omissus et oblivioni datus dispositioni communis juris relinquitur; "a casus omissus," observed Buller, J. in Jones v. Smart (1 T.R. 52), "can in no case be supplied by a court of law, for that would be to make laws"

100. The golden rule for construing wills, statutes, and, in ...... fact, all written instruments has been thus stated: 'The H grammatical and ordinary sense of the words is to be adhered

~ ' ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 287 [DR. ARIJIT PASAYAT, J.]

to unless that would lead to some absurdity or some repugnance A f> ' or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no further" (See Grey v. Pearson (1857 (6) H.L. Cas. 61). The latter part of this "golden rule" must, however, be applied with 8 much caution. "if," remarked Jervis, C.J., "the precise words used are plain and unambiguous in our judgment, we are bound •p to construe them in their ordinary sense, even though it lead, in our view of the case, to an absurdity or manifest injustice. Words may be modified or varied where their import is doubtful or c obscure. But we assume the functions of legislators when we depart from the ordinary meaning of the precise words used, merely because we see, or fancy we see, an absurdity or manifest injustice from an adherence to their literal meaning" (See Abley v. Dale 11, C.B. 378). D