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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A Democratic Constitution")

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

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

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

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

& Others v. State of Maharashtra & Others, (2005) 6 SCC A 537; T.f:ll.A. Pai Foundation & Others v. State of Karnatalca & Others (2002) 8 SCC 481. In lnamdar (supra), paras 26- 27 (seven-Judge Bench), unaided (minority and non-minority) professional Institutions filed petitions to determine, inter alia, whether the State could impose quotas on unaided (minority B and non-minority) institutions. A seven-Judge Benc_h was constituted such that Islamic Academy's clarification of Pai could be reviewed. Islamic Academywas a five-Judge Bench. Given that Pai was an eleven-Judge Bench, lnamdar could clarify but not overrule Pai. c

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

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

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

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

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

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

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

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

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

[emphasis added]

155. Stripping private unaided institutions of their right to ~

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

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

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

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

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

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

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

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

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

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

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 405 [DALVEER BHANDARI, J.]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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A limitations."

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A deferential to Government. i

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

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

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

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

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

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

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

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

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

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

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

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

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

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

\ ~ ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 421 [DALVEER BHANDARI, J.]

and substantial/egalitarian equality. A }

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(emphasis supplied)

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

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

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

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

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

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

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

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

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

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

H (emphasis added)

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

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

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

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

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

The point is that affirmative action produces consequences )

that may outweigh its supposed benefits.

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

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

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

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

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

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

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

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

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

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

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

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

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A creamy layer. 1,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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