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

101. Classifications on the basis of castes in the long run ..... has tendency of inherently becoming pernicious. Therefore, the test of reasonableness has to apply. When the object is elimination of castes and not perpetuation to achieve the goal of casteless society and a society free from discrimination of E castes judicial review within the permissible limits is not ruled out. But at the same time compelling State interest can be considered while assessing backwardness. The impact of poverty on backwardness cannot be lost sight of. Economic liberation and freedom are also important. In Nagaraj's case F .. ~ (supra) it was inter alia observed as follows: "44. The above three concepts' are independent variable concepts. The application of these concepts in public employment depends upon quantifiable data in each case. Equality in law is different from equality in fact. When we G construe Article 16(4), it is equality in fact which plays the .... dominant role. Backward Classes seek justice. General class in public employment seeks equity. The difficulty comes in when the third variable comes in, namely, efficiency in service. In the issue of reservation, we are H

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

A being asked to find a stable equilibrium between justice to the backwards, equity for the forwards and efficiency for the entire system. Equity and justice in the above context are hard concepts. However, if you add efficiency to equity and justice, the problem arises in the context of the B reservation. This problem has to be examined, therefore, on the facts of each case. Therefore, Article 16(4) has to be construed in the light of Article 335 of the Constitution. Inadequacy in representation and backwardness of the Scheduled Castes and Scheduled Tribes are c circumstances which enable the State Government to act under Article 16(4) of the Constitution. However, as held by this Court the limitations on the discretion of the Government in the matter of reservation under Article 16(4) as well as Article 16(4-A) come in the form of Article 335 of the Constitution. D xx xx xx

46. The point which we are emphasising is that ultimately the present controversy is regarding the exercise of the power by the State Government depending upon the fact situation in each case. Therefore, "vesting of the power" by an enabling provision may be constitutionally valid and yet "exercise of the power" by the State in a given case may be arbitrary, particularly, if the State fails to identify and measure backwardness and inadequacy keeping in mind the efficiency of service as required under Article 335. xx xx xx

48. It is the equality "in fact" which has to be decided looking at the ground reality. Balancing comes in where the question concerns the extent of reservation. If the extent of reservation goes beyond cut-off point then it results in reverse discrimination. Anti-discrimination legislation has a tendency of pushing towards de facto reservation. H Therefore, a numerical benchmark is the surest immunity

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS 289 [DR. ARIJIT PASAYAT, J]

against charges of discrimination. A

49. Reservation is necessary for transcending caste and not for perpetuating it. Reservation has to be used in a limited sense otherwise it will perpetuate casteism in the country. Reservation is underwritten by a special 8 justification. Equality in Article 16(1) is individual-specific whereas reservation in Article 16(4) and Article 16(4-A) is enabling. The discretion of the State is, however, subject v to the existence of "backwardness" and ''inadequacy of representation" in public employment. Backwardness has to be based on objective factors whereas inadequacy C has to factually exist This is where judicial review comes in. However, whether reservation in a given case is desirable or not, as a policy, is not for us to decide as long as the parameters mentioned in Articles 16(4) and 16(4- A) are maintained. As stated above, equity, justice and D

·- , merit (Article 335)/efficiency are variables which can oniy be identified and measured by the State. Therefore, in each case, a contextual case has to be made out depending upon different circumstances which may exist State-wise. L xx xx xx

102. In the matter of application of the principle of basic structure, tw~n tests have to be satisfied, namely, the "width test" and the test of "identity". As stated herefnabove, the concept of the "catch-up" rule and "consequential seniority" are not constitutional requirements. They are not implicit in clauses (1) and (4) of Article 16. They are not constitutional limitations. They are cor.cepts derived from service jurisprudence. They are not constitutional pnnciples. They are not axioms like, secularism. federalism, etc. Obliteration of these concepts or insert:on of these concepts does not change the equality code indicated by Articles 14, 15 and 16 of the Constitution Clause ( 1) of Article 16 cannot prevent the State from H

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

A taking cognizance of the compelling interests of Backward Classes in the society. Clauses (1) and (4) of Article 16 are restatements of the principle of equality under Article

14. Clause (4) of Article 16 refers to affirmative action by way of reservation. Clause (4) of Article 16, however, states B that the appropriate Government is free to provide for reservation in cases where if is satisfied on the basis of quantifiable data that Backward Class is inadequately represented in the services. Therefore, in every case where the State decides to provide for reservation there must c exist two circumstances, namely, "backwardness" and "inadequacy of representation". As stated above, equity, justice and efficiency are variable factors. These factors are context-specific. There is no fixed yardstick to identify / and measure these three factor's, it will depend on the facts and circumstances of each case. These are the limitations on the mode of the exercise of power by the State. None of these limitations have been removed by the impugned amendments. If the State concerned fails to identify and measure backwardness, inadequacy and overall administrative efficiency then in that event the provision for reservation would be invalid. These amendments do not alter the structure of Articles 14, 15 and 16 (equity code). The parameters mentioned in Article 16(4) are retained. Clause (4-A) is derived from clause (4) of Article 16. Clause (4-A) is confined to SCs and STs F alone. Therefore, the present case does not change the • identity of the Constitution. The word "amendment" connotes change. The question is-whether the impugned amendments discard the original Constitution. It was vehemently urged on behalf of the petitioners that the G Statement of Objects and Reasons indicates that the impugned amendments have been promulgated by Parliament to overrule the decisions of this Court. We do not find any merit in this argument. Under Article 141 of the Constitution the pronouncement of this Court is the law of the land. The judgments of this Court in Virpal Singh,

-- ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 291 [DR. ARIJIT PASAYAT, J.]

/ . Ajit Singh (/), Aji"t Singh (//) and Indra Sawhney were judgments delivered by this Court which enunciated the A

law of the land. It is that law which is sought to be changed by the impugned constitutional amendments The impugned constitutional amendments are enabling in nature. They leave it to the States to provide for reservation B It is well settled that Parliament while enacting a law does not provide content to the "right". The content is provided by the judgments of the Supreme Court. If the appropriate Government enacts a law providing for reservation without keeping 1n mind the parameters in Article 16(4) and Article c 335 then this Court will certainly set aside and strike down such legislation. Applying the "width test", we do not find obliteration of any of the constitutional limitations. Applying the test of "identity", we do not find any alteration in the existing structure of the equality code. As stated above. 0 none of the axioms Hke secularism, federalism, etc. wh~ch are overarching principles have been violated by the impugned constitutional amendments. Equality has two facets- "formal equality" and "proportional equality" Proportional equality is equality "in fact" whereas formal equality is equality "in law''. Formal equality exists in the E rule of law. In the case of proportional equality the State is expected to take affirmative steps in favou ~ of disadvantaged sections of the society within the framewor:( of liberal democracy. Egalitarian equality is proportional ~ualfy f

xx xx xx

107. It is important to bear in mind the nature of constitutional amendments. They are curative by nature Article 16(4) provides for reservation for Bacl<ward C Classes in cases of inadequate representation m public employment. Article 16(4) is enacted as a remedy for the past historical discriminations against a sodal ctass. The object in enacting the enabling provisions like Articles 16(4), 16(4-A) and 16(4-8) is that the State is empowered H

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

A to identify and recognise the compelling interests. If the .State has quantifiable data to show backwardness and inadequacy then the State can make reservations in .- promotions keeping in mind maintenance of efficiency which is held to be a constitutional limitation on the B discretion of the State in making reservation as indicated by Article 335. As stated above, the concepts of efficiency, backwardness, inadequacy of representation are required to be identified and measured. That exercise depends on availability of data. That exercise depends on numerous c factors. It is for this reason that enabling provisions are required to be made because each competing claim seeks to achieve certain goals. How best one should optimise these conflicting claims can only be done by the administration in the context of local prevailing conditions in public employment. This is amply demonstrated by the D various decisions of this Court discussed hereinabove. Therefore, there is a basic difference between "equality in law" and "equality in fact" (see Affirmative Action by William Darity). If Articles 16(4-A) and 16(4-B) flow from Article 16(4) and if Article 16(4) is an enabling provision then E • Articles 16(4-A) and 16(4-B) are also enabling provisions. As long as the boundaries mentioned in Article 16(4), namely, backwardness, inadequacy and efficiency of administration are retained in Articles 16(4-A) and 16(4- 8) as controlling factors, we cannot attribute constitutional F invalidity to these enabling provisions. However, when the State fails to identify and implement the controlling factors then excessiveness comes in, which is to be decided on the facts of each case. In a given case, where excessiveness results in reverse discrimination, this Court G has to examine individual cases and decide the matter in accordance with law. This is the theory of "guided power''. We may once again repeat that equality is not violated by 1' ... mere conferment of power but it is breached by arbitrary exercise of the power conferred". ·· • H

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 293 [DR. ARIJIT PASAYAT, J.]

102. In Minerva Mills Ltd. v. Union of India (1980) 3 SCC A p • 625) it was observed as follows: "57. This is not mere semantics. The edifice of our Constitution is built upon the concepts crystallised in the preamble. We resolved to constitute ourselves into a Socialist State which carried with it the obligation to secure B to. our people justice - social, economic and political. We, therefore, put Part IV into our Constitution containing ,..., directive principles of State policy which specify the socialistic goal to be achieved. We promised to our people a democratic polity which carries with it the obligation of c securing to the people liberty of thought, expression, belief, faith and worship; equality of status and of opportunity and the assurance that the dignity of the individual will at all costs be preserved. We, therefore, put Part Ill in our Constitution conferring those rights on the people. Those D rights are not an end in themselves but are the means to }- an end. The end is specified in Part IV. Therefore, the rights conferred by Part Ill are subject to reasonable restrictions and the Constitution provides that enforcement of some of them may, in stated uncommon circumstances, E be suspended. But just as the rights conferred by Part Ill would be without a radar and a compass if they were not geared to an ideal, in the same m~nner the attainment of the ideals set out in Part IV would become a pretence for tyranny if the price to be paid for achieving that ideal is F .. human freedoms. One of the faiths of our founding fathers was the purity of means. Indeed, under our law, even a dacoit who has committed a murder cannot be put to death in the exercise of right of self-defence after he has made good his escape. So great is the insistence of civilised G laws on the purity of means. The goals set out in Part IV have, therefore, to be achieved without the abrogation of ""> ., the means provided for by Part Ill. It is in this sense that Parts Ill and IV together constitute the core of our Constitution and, combine to form its conscience. Anything H

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

A, that destroys the balance between the two parts will ipso • facto destroy an essential element of the basic structure of our Constitution". '

103. The view was affirmed in TM.A. Pai Foundation and Ors. v. State of Karnataka and Ors. (2002 (8) SCC 481) B

104. It has been highlighted that Articles 15(4) and 15(5) are irreconcilable. It is pointed out that Article 30 is not intended to pamper any class of people, but is intended to assure .... minorities regarding the right to establish. In that sense, Article c 19(1 )(g) is applicable. The said right is an inalienable and sacrosanct right. According to Mr. Venugopal, Article 15(5) carved out an area from Article 15(4). Article 29(2) has to be read into Article 15(5) as Articles 15(4) and 15(5) operated side by side. As a result of Article 15(5) by special provision minorities unaided rights are excluded. Article 30 does not relate to any D special right for protection against majority and it cannot be termed to be any higher right and, therefore, Article 19(1 )(g) restriction is not there. The object is not to create inequality. "

105. It is pointed out that both Articles 15(4) and 15(5) E begin with non obstante provision .. Article 15(5) is a later introduction. It is stated that Article 15(1) has to prevail over Article 15(4) and the right given to certain class of people in Article 15(4) gets eliminated because of Article 15(5).

106. Provisions of the Constitution have to be read F harmoniously and no part can be treated to be redundant. In our ~

considered view both the provisions operate in different areas though there may be some amount of overlapping but that does not iii any way lead to the conclusion that Article 15(5) takes away what is provide9 in Article 15(4). G

107. A construction which reduces the statute to a futility has to be avoided. A statute or any enacting provision therein must be so construed as to make it effective and operative on the principle expressed in the maxim ut res magis valeat quam ~· pereat i.e. a liberal construction should be put upon written H

~ ~ ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 295 [DR. ARIJIT PASAYAT, J.]

instruments, so as to uphold them, if possible, and carry into effect the intention of the parties. (See Broom's Legal Maxims (10th Edn.), p. 361, Craies on Statutes (7th Edn.), p. 95and Maxwell on Statutes (11th Edn.).

108. A statute is designed to be workable and the interpretation thereof by a court should be to secure that object unless crucial omission or clear direction makes that end unattainable. (See Whitneyv. IRC (1926AC 37) at p. 52 referred 1 to in CIT v. S. Teja Singh (AIR 1959 SC 352) and Gursahai ""' Saigal v. CIT (AIR 1963 SC 1062). c

109. The courts will have to reject that construction which will defeat the plain intention of the legislature even though there may be some inexactitude in the language used. (See Salmon v. Duncombe (1886) 11AC 627 at p.634, Curtisv. Stovin (1889) 22 QBD 513) referred to in S. Teja Singh case.) D

110. If the choice is between two interpretations, the f narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility, and should rather accept the bolder construction, based on the view that Parliament would E legislate only for the purpose of bringing about an effective result. (See Nokes v. Doncaster Amalgamated Collieries (1940 (3) All ER 549) referred to in Pye v. Minister for Lands for NSW (1954) 3All ER 514. The principles indicated in the said cases were r~iterated by this Court in Mohan Kumar Singhania v. F ~ Union of India (1992 Supp (1) SCC 594).

111. The statute must be read as a whole and one provision of the Act should be construed with reference to other provisions in the same Act so as to make a consistent enactment of the whole statute. G

112. The court must ascertain the intention of the legislature .. ' by directing its attention not merely to the clauses to be construed but to the entire statute; it must compare the clause with other parts of the law and the setting in which the clause to H

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

A be interpreted occurs. (See R. S. Raghunath v. State of Kamataka (1992) 1sec335) Such a construction has the merit .- of avoiding any inconsistency or repugnancy either within a section or between two different sections or provisions of the same statute. It is the duty of the court to avoid a head-on clash between two sections of the same Act. (See Sultana Begum v. Prem Chand Jain 1997 (1) SCC 373.)

113. Whenever it is possible to do so, it must be done to construe the provisions which appear to conflict so that they harmonise. It should not be lightly assumed that Parliament had given with one hand what it took away with the other.

114. The provisions of one section of the statute cannot be used to defeat those of another unless it is impossible to effect reconciliation between them. Thus a construction that reduces one of the provisions to a "useless lumber" or "dead letter" is not a harmonized construction. To harmonise is not to destroy.

115. The Constitution of India is not intended to be static. It is by its very nature dynamic. It is a living and organic thing. It E is an instrument which has greatest value to be construed. "Ut Res Va/eat Potius Quam Pereat" (the construction should be preferred which makes the machinery workable). Our Constitution reflects the beliefs and political aspirations of those who had framed it. It is therefore desirable that while considering the question as to whether 27% fixed for the other backward classes to be maintained without definite data the rights of those Y

who belong to the unfortunate categories of other economic backward classes deserve to be concerned, else there shall be no definite determination of number of other backward classes. While fixing the measure for creamy layer it would not be difficult also to fix the norms for the socially and economically backward classes rather the latter exercise would be easier to undertake. ~ ..

116. In Indra Sawhney's No. 1 the desirability of excluding some posts from the zone of reservation was highlighted. It was

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 297 [DR ARIJIT PASAYAT, J.]

also emphasized that periodic review of policy of reservation was imperative. It was inter-alia observed as fo!lows: "838. While on Article 335, we are of the opinion that there are certain services and positions where either on account of the nature of duties attached to them or the level (in the hierarchy) at which they obtain, merit as explained hereinabove, alone counts. In such situations, it may not be advisable to provide for reservations. For example technical posts in research and development organizations/departments/institutions, in specialties and super-specialties in medicine, Engineering and other such courses in physical sciences and mathematics in defence services and in the establishment connected therewith. Similarly, in the case of posts at the higher echelons e.g. Professors (in Education), PHots in Indian Airlines and Air India, Scientists and Technicians in Nuclear and Space D

' . application, provision for reservation would not be advisable. xx xx xx

840. We may point out that the services/posts enumerated above. on account of their nature and duties attached, are such as call for highest level of intelligence, skill and excellence. Some of them are second level and third level posts in the ascending order. Hence, they form a category apart. Reservation therein may not be consistent with F ., "efficiency of administration" contemplated by Article 335 . "' xx xx xx

859. "We may summarise our answers to the various questions dea(t with and answered hereinabove; G (1) (a) a is not necessary that the 'provision' under Article 16(4) should necessarily be made by the Parliament/ ::::0. • Legislature. Such a provision can be made by the Executive also. Local bodies, statutory Corporations and other instrumentalities of the State falling under H

~ I 298 SUPREME COURT REPORTS [2008] 4 S.C.R. ,.

A Article 12 of the Constitution are themselves competent to make such a provision, if so advised. (b) An executive order making a provision under Article 16(4) is enforceable the moment it is made and issued. B (2) e (a) Clause (4) of Article 1 is not an exception to clause (1 ). It is an instance and an illustration of the classification inherent in clause (1 ). )-

' (b) Article 16(4) is exhaustive of the subject of c reservation in favour of backward class of citizens, as explained in this judgment. (c) Reservations can also be provided under clause (1) of Article 16. It is not confined to extending of preferences, concessions or exemptions alone. D These reservations, if any, made under clause (1) have to be so adjusted and implemented as not to exceed the level of representation prescribed for 'backward class of citizens' - as explained in this judgment. E (3) (a) A caste can be and quite often is a social class in India. If it is backward socially, it would be a backward class for the purposes of Article 16(4). Among non-Hindus, there are several occupational groups, sets and denominations, which for historical reasons are socially backward. They too represent ., backward, social collectivities for the purposes of Article 16(4). (b) Neither the Constitution nor the law prescribes G · the procedure or method of identification of backward classes. Nor is it possible or advisable for the court to lay down any such procedure or method. It must T ,0::: be left to the authority appointed to identify. It can adopt such method/procedure as it thinks convenient and so long as its survey covers the entire populace,

ASHOKA KliMAR THAKUR v. UNION OF INDIA & ORS. 299 [DR. ARIJIT PASAYAT, J.] no objection can be taken to it. Identification of the backward classes can certainly be done with reference to castes among, and alongwith, other occupational groups, classes and sections of people. One can start the process either with occupational groups or with castes or with some other groups. B Thus one can start the process with castes, wherever they are found, apply the criteria (evolved for determining backwardness) and find out whether it satisfy the criteria. If it does-what emerges is a "backward class of citizens" within the meaning of c and for the purposes of Article 16(4). Similar process can be adopted in the case of other occupational groups, communities and classes so as to cover the entire populace. The central idea and overall objective should be to consider all available groups, sections · 0 and classes in society Since caste represents an existing, identifiable social group/class encompassing an overwhelming minority of the country's population, one can well begin with it and then go to other groups, sections and classes. E (c) It is not correct to say that the backward class of citizens contemplated in Article 16(4) is the same as the socially and educationally backward classes referred to in Article 15(4). It is much wider. The accent in Article 16(4) is on social backwardness. F Of course, social, educational and economic backwardness are closely inter-twined in the Indian context. (d) 'Creamy layer' can be. and must be excluded. G (e) It is not necessary for a class to be designated as a backward class that it is situated similarly to the .. ' Scheduled Castes/Scheduled Tribes . (f) The adequacy of representation of a particular class in the services under the State is a matter within H

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

A the subjective satisfaction of the appropriate Government. The judicial scrutiny in that behalf is the same as in other matters within the subjective satisfaction of an authority. (4) (a) A backward class of citizens cannot be identified only and exclusively with reference to economic criteria. (b) It is, of course, permissible for the Government or > other authority to identify a backward class of citizens ~

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

on the basis of other relevant criteria. A

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

case and this is what this Court observed therein. A

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ij I

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

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

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

16. The expression "socially and educationally backward

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A 93.rd Amendment (Reservation Act)?

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

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

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

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

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

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

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

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

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

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

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