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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

258. Minority aided institutions were subject to a limited H

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

, . [DALVEER BHANDARI, J.]

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

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

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

277. Ba/ajithus serves as an example in which this Court sought to ensure that reservation would remain reasonable. We heed this example. There should be no case in which the gap of cut off marks between OBC and general category students is ~ ,. too large. To preclude such a situation, cut off marks for OBCs F should be set no lower than 10 marks below the general category.

278. To this end, the Government shall set up a committee to look into the question of setting the OBC cut off at not more G than 10 marks below that of the general category. Under such a ,. scheme, whenever the non-creamy layer OBCs fail to fill the - -.: ~ 27% reservation, the remaining seats would revert to general category students. H

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A SUMMARY OF FINDINGS 1A. Whether the creamy layer be excluded from the 93rd Amendment (Reservation Act)? Yes, it must. The 93rd amendment would be ultra vires and 8 invalid if the creamy layer is not excluded.

See paras 22, 25, 27, 30, 34, 35, 43, 44. .j "'p

18. What are the parameters for creamy layer exclusion? c For a valid method of creamy layer exclusion, the Government may use its post-Sawhney I criteria as a template. (See: Office Memorandum dated 8-9-1993, para 2(c)/Column 3). I urge the Government to periodically revise the O.M. so that changing circumstances can be taken into consideration while keeping our constitutional goal in view.

I further urge the Government to exclude the children of ~ .. former and present Members of the Parliament and Members of Legislative Assemblies and the said O.M. be amended accordingly. See paras 55-57. 1C. Is creamy layer exclusion applicable to SC/ST? In Indra Sawhney-1, creamy layer exclusion was only in ~ F regard to OBC. Justice Reddy speaking for the majority at para 792 stated that "this discussion is confined to Other Backward Classes only and has no relevance in the case of Scheduled Tribes and Scheduled Castes". Similarly, in the instant case, the entire discussion was confined only to Other Backward G Classes. Therefore, I express no opinion with regard to the applicability of exclusion of creamy layer to the Scheduled Castes and Scheduled Tribes. -( "' ....... See para 34. ' ,,....

H 2. Can the Fundamental Right under Article 21A

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 455 [DALVEER BHANDARI, J.] , t be accomplished without great emphasis on A primary education? No, it cannot. An inversion in priorities between higher and primary/ secondary education would make compliance with Article 21A B extremely difficult. It is not suggested that higher education needs no encouragement or that higher education should not ... - t receive more funds, but there has to be much greater emphasis on primary education. Our priorities have to be changed. Nothing is really more important than to ensure total c compliance of Article 21A. Total compliance means good quality education is imparted and all children aged six to fourteen regularly attend schools. I urge the Government to implement the following: The current patchwork of laws on compulsory education is D ... insufficient. Monetary fines do not go far enough to ensure that Article 21A is implemented. The Central Government should enact legislation that: (a) provides low-income parents/guardians with financial E incentives such that they may afford to send their children to schools; (b) criminally penalizes those who receive financial incentives and despite such payment send their children to work; F (c) penalizes employers who preclude children from attending schools; (d) the penalty should include imprisonment; the aforementioned Bill would serve as an example. The G State is obligated under Article 21A to implement ,. ,. free and compulsory education in toto. (e) until we have accomplished for children from six to fourteen years the object of free and compulsory H

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A education, the Government should continue to I '

increase the education budget and make earnest efforts to ensure that children go to schools and receive quality education; (f) The Parliament should fix a deadline by which time B free and compulsory education will have reached every child. This must be done within six months, as the right to free and compulsory education is perhaps j - ...

the most important of all the fundamental rights. For without education, it becomes extremely difficult to c exercise other fundamental rights. See paras 126-131.

3. Does the 93rd Amendment violate the Basic Structure of the Constitution by imposing reservation on unaided institutions? Yes, it does. Imposing reservation on unaided iµ,stitutions .. ~

violates the Basic Structure by stripping citizens of their fundamental right under Article 19(1 )(g) to carry on an occupation. T.M.A. Pai and lnamdar affirmed that the establishment and running of an educational institution falls under the right to an occupation. The right to select students on the basis of merit is an essential feature of the right to establish and run an unaided institution. Reservation is an unreasonable restriction that infringes this right by destroying the autonomy and essence of an unaided institution. The effect of the 93rd Amendment is such that Article 19 is abrogated, leaving the Basic Structure altered. To restore the Basic Structure, I sever the 93rd Amendment's reference to "unaided" institutions. G See paras 132-182.

4. Whether the use of caste to identify SEBCs runs afoul of the casteless/classless society, in -1 "' violation of Secularism. H Sawhney I compels me to conclude that use of caste is

I I ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 457 [DALVEER BHANDARI, J.]

valid. It is said that if reservation in education is to stay, it should adhere to ;J basic tenet of Secularism: it should not take caste ' I into account. As long as caste is a criterion, we will never achieve a casteless society. Exclusively economic criteria should be used. I urge the Government that for a period of ten years caste and other factors such as occupation/income/property holdings or similar measures of economic power may be taken into consideration and thereafter only economic criteria should prevail; otherwise we would not be able to achieve our constitutional goal of casteless and classless India.

See paras 194, 195, 231, 248, 251. c

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

I am able to read them harmoniously. D

See paras 252-256.

6. Does Article 15{5)'s exemption of minority institutions from the purview of reservation violate Article 14 of the Constitution? E Given the inherent tension between Articles 29(2) and 30(1 ), I find that the overriding constitutional goal of realizing a casteless/classless society should serve as a tie-breaker. We will take a step in the wrong direction if minority institutions (even those that are aided) are subject to reservation. See paras 268-269.

7. Are the standards of review laid down by the U.S. Supreme Court applicable to our review of affirmative action under Art 15(5) and similar provisions? The principles enunciated oy the American Supreme Court, such as. "Suspect Legislation" "Narrow Tailoring" "Strict Scrutiny" and "Compelling State necessity" are not strictly applicable for H

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A challenging the impugned legislation. Cases decided by other countries are not binding but do 1 • have great persuasive value. Let the path to our constitutional goals be enlightened by experience, learning, knowledge and wisdom from any quarter. In the words of Rigveda, let noble 8 thoughts come to us from every side.

See para 183.

8. With respect to OBC identification, was the Reservation Act's delegation of power to the c Union Government excessive? It is not an excessive delegation. With respect to this issue, I agree with the reasoning of the Chief Justice in his judgment.

9. Is the impugned legislation invalid as it fails to D set a time-limit for caste-based reservation? It is not invalid because it fails to set a time-limit. See para 272.

E 10. At what point is a student no -longer Educationally Backward and thus no longer eligible for special provisions under 15(5)? Once a candidate graduates from a university, the said candidate is educationally forward and is ineligible for special F benefits under Article 15(5) of the Constitution for post graduate and any further studies thereafter. See para 273.

11. Would it be reasonable to balance OBC G reservation with societal interests by instituting OBC cut-off marks that are slightly lower than that of the general category? It is reasonable to balance reservation with other societal interests. To maintain standards of excellence, cut off marks for H

\ I ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 459 [R.V. RAVEENDRAN J.]

OBCs should be set not more than 10 marks out of 100 below that of the general category. ' ! See paras 274-278. These Writ Petitions and Contempt Petition are accordingly disposed of. In the facts and circumstances, the parties are to bear their own costs. R.V. RAVEENDRAN J. It has been my privilege to read the drafts of the Judgments proposed by the learned Chief -..r- .• Justice, learned brothers Pasayat J. and Bhandari J. I respectfully agree with them as indicated below : c A. Validity of 93rd Amendment to the Constitution of India. I agree with the learned Chief Justice and Pasayat, J. that clause (5) of Article 15 is valid with reference to state maintained D educational institutions and aided educational institutions; and

.. that the question whether Article 15(5) would be unconstitutional on the ground that it violates the basic structure of the Constitution by imposing reservation in respect of private unaided educational institutions is left open. E

I have indicated an additional reason for rejecting the challenge to Article 15(5) on the ground that it renders Article 15(4) inoperative/ineffective .

8. Validity of Central Educational Institutions F , (Reservation in Admissions) Act, 2006 - Act No.5 ,. of 2007: I agree with the learned Chief Justice and Pasayat J. that (i) identification of other backward classes solely on the basis G of caste will be unconstitutional; (ii) failure to exclude the 'creamy layer' from the benefits of reservation would render the reservation for other backward classes under Act 5 of 2007 . )'- unconstitutional; and (iii) Act 5 of 2007 providing for reservation for other backward classes will however be valid if the definition H

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.r= A of 'other backward classes' is clarified to the effect that if the identification of other backward classes is with reference to any caste considered as socially and economically backward, ~ ' 'creamy layer' of such caste should be excluded. I have indicated briefly my reasons for the same. B I agree with the decision of learned Chief Justice that the. · Act is not invalid merely because no time limit is prescribed for caste based reservation, but preferably there should be a review after ten years to take note of the change of circumstances. A genuine measure of reservation may not be open to challenge .. .., c when made. But during a period of time, if the reservation is continued in spite of achieving the object of reservation, the law which was valid when made, may become invalid. C. What should be parameters for determining the D creamy layer in respect of OBCs? I agree with the learned Chief Justice that OM dated 8.9.1993 of the Government of India can be applied for such determination. .. D. Whether reservation to an extent of 27% in regard " E to other backward class under Act 5 of 2007 is valid? I agree with the decision of learned Chief Justice that reservation of 27% for other backward classes is not illegal. I would however leave open the question whether members belonging to other backward classes who get selected in the open competition field on the basis of their ~ ~ own merit should be counted against the 27% quota reserved for other backward classes under an enactment enabled by Article 15(5) of the Constitution, for consideration in an appropriate case.

2. Let me now briefly add a few words on two of the questions. .... Whether Article 15(5) renders Article 15(4) ineffective? -1 H

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 461 . [R.V. RAVEENDRAN J.]

• i 3. This Court has held that clause (4) of Article 15 is neither A an exception nor a proviso to clause (1) of Article 15. Clause (4) has been considered to be an instance of classification inherent in clause (1) and an emphatic restatement of the principle implicit in clause (1) of Article 15 (see: State of Kera/a v. N.M. Thomas - 1976 (2) SCC 310, K.C. Vasanth Kumar v. B State ofKarnataka -1985 Supp. SCC 714 apd Indra Sawhney v. Union of India - 1992 Supp. (3) SCC 217). Clauses (1) and ~ ~ (2) of Article 15 bar discrimination. Clause (1) contains a prohibition that State shall not discriminate against any citizen on grounds only on religion, caste, creed, sex or birth. Clausa c (2) declares that no citizen shall, on grounds only of religion, race, caste, sex, p!ace of birth or any of them be subject to any disability, liability, restriction or condition with regard to access to shops, public restaurants, hotels and places of public entertainment, or the use of wens, tanks, bathing ghats, roads D and places of public resort maintained wholly or partly out of 4 State funds or dedicated to the use of the general public. Clauses • (3) to (5) enable the State to make special provisions in specified areas. While clause (3) is a part of the Article as originally framed, Clause (4) was added by Constitution (First E Amendment) Act, 1951. Clause (5) was added by Constitution (Ninety-third Amendment) Act, 2005. Each of these three enabling provisions operate independent of each other. The opening words 'Nothing in this article' occurring in each of these clauses (3), (4) and (5) obviously refer to clauses (1) and (2) of ,. .. Art. 15 and not to the other enabling clauses. Clauses (3), (4) F and (5) of Article 15 are not to be read as being in conflict with each other, or prevailing over each other, but are to be read harmoniously. The need for exclusion of creamy layer. G

4. Section 3 of Act 5 of2007 mandates reservation of seats ..... in central educational institutions for other backward classes to I- an extent of 27%. The term 'other backward classes' is defined as meaning the class or classes of citizens who are socially H

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

A and economically backward, and are so determined by the r ' central Government. The Act does not define the term 'socially and educationally backward classes', nor does it contain any norms or guidelines as to how the central Government should determine any class or classes as socially and educationally 8 backward, so as to entitle them to the benefit of reservation under the Act. The petitioners contend that the Act vests unguided power in the executive to pick and choose arbitrarily certain classes for the benefit of reservation. The Central Government has however indicated that it intends to proceed on the basis "' c that castes which have already been identified for the benefit of reservations under Article 16(4) by the Mandal Commission with the additions thereto made by the National Commission for Backward Classes, from time to time, will be considered, for the present, to constitute the socially and educationally backward classes for the purpose of availing the benefit of 27% reservation under the Act. This again is challenged by the petitioners on the ground that identification of any class of citizens as 'backward', + ~

for the purpose of Article 16(4), cannot be considered as identification of 'socially and educationally backward classes of citizens' under Article 15(5). It is contended that the term 'backward classes' in Article 16(4) is much wider than 'socially and educationally backward classes of citizens' occurring in clauses (4) and (5) of Article 15.

5. Article 15(4) provides that nothing in that Article or in clause (2) of Article 29 shall prevent the State from making any ~ ~

special provision for the advancement of any socially and educationally backward class of citizens or for Scheduled Castes and Scheduled Tribes. Article 29(2) provides that no citizen shall be denied admission into any educational institution managed by the State or receiving aid out of State funds, on grounds only of religion, race, caste, language or any of them. On the other hand, clause (5) of Article 15 provides that ~ ~ notwithstanding anything contained in that Article or in Article 19(1 )(g), State may make a special .provision for advancement of socially and educationally backward class of citizens or for

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 463 [RV RAVEENDRAN J.]

Scheduled Castes and Scheduled Tribes by providing for A . ~ reservation relating to admission in any educational institution either aided or unaided by the State, other than the minority educational institutions referred to in Article 30(1 ). It is submitted that as clause (5) of Article 15 does not override or exclude Article 29(2), any !aw made in exercise of power under Article B 15(5) will be subject to Article 29(2), and consequently there cannot be any affirmative action by way of reservation on the ground of caste alone . . - ~

6. It is submitted on behalf of the petitioners that the object of the Constitution is to achieve an egalitarian society and any c attempt to divide the citizens or the society on the ground of race, religion or caste should be straightaway rejected. It is further submitted that the Constitution nowhere recognizes or refers to 'caste' (except Scheduled Castes and Tribes) as a criterion for conferment of any right or benefit; that both clauses D (4) and (5) of Article 15 refer to 'socially and educationally

. • backward classes' and not 'socially and educationally backward castes'; that Constitution has always referred to caste in a negative sense, that is to prohibit any discrimination or affirmative action on the basis of 'caste' - [Vide Article 15(1) E and (2), 16(2) and 29(2)]; and that when Constitution bars discrimination in admissions to educational institutions on ground only of caste, it is surprising that caste is sought to be made the criterion by the State for purposes of making a special provision for socially and educationally backward classes in F regard to such admissions. It is submitted that there cannot be ~ • any special provision for any group of citizens merely on the ground that they belong to a particular caste or community (except Scheduled Castes and Tribes who are separately mentioned in Articles 15(4), 15(5), 16(4), 335, 341 and 342 etc.). G

7. This Court in a series of decisions commencing from M.R. Balaji v. State of Mysore (1963 Supp. (1) SCR 439], ---< ~~ R. Chitralekha v. State of Mysore (1964 (6) SCR 368], State ~ of Andhra Pradesh v. PSagar (1968 (3) SCR 595], Janki H

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

A Prasad Parimoo v. State of Jaminu & Kashmir [1973 (1) SCC 420], State of Kera/a v. N. M. Thomas [1976 (2) SCC 31 OJ and K. C. Vasanth Kumar v. State of Karnataka [1985 Supp. sec 714] has explained what is social and educational backwardness. All these decisions have laid down the principle B that caste cannot be made the sole or dominant test to determine backwardness, and any classification determining backwardness only with reference to caste will be invalid. These decisions recognized the fact that caste is not equated to class and all backwardness, either social or educational, c is ultimately and primarily due to poverty or economic conditions.

8. However, in Minor PRajendran v. State of Madras [1968 (2) SCR 786], it was held that if a caste, as a whole, is socially and educationally backward then reservation can be made in favour of such a caste on the ground that it is a socially and educationally backward class within the meaning of Article 15(4). The decision followed Balaji and therefore proceeded on the basis that where the extent of social and educational . backwardness of the caste in question is virtually the same as the social and educational backwardness of Scheduled Castes and Scheduled Tribes, reservation can be made on the basis of caste itself. In that case, it was found as a question of fact that members of certain castes as a whole, were socially and educationally backward, and therefore it was held that the reservation the basis of caste was permissible in respect of those castes. In A.Periakaruppan v. Sobha Joseph [1971 (1) SCC 38], this Court referred to the cases starting from Balaji to Rajendran. It reiterated the principle stated in Rajendran that if a caste as a whole is socially and educationally backward, reservation can be made in favour of such a caste on the ground that it is a socially and educationally backward class of citizens within the meaning of Article 15(4). It also cautioned that the Government should not proceed on the basis that once a class is considered as a backward class, it will continue to be backward class for all times. Vasanth Kumar (supra) held that

' I ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 465 [R.V. RAVEENDRAN J.]

only a caste comparable to the Scheduled Castes and A ~ ~ Scheduled Tribes in the matter of backwardness, could be considered to be a socially and educationally backward class in favour of which reservation could be made on the basis of caste. Vasanth Kumar therefore, reiterated Balaji. B

9. What requires to be noticed is neither Rajendran nor Periakaruppam nor Vasanth Kumar really departed from or diluted the principle laid down in Balaji. On the other hand, the principle laid down in Balaji was reiterated. Rajendran and _:,-1" ~ Periakaruppam only show that in extreme cases where it is found that the caste under consideration was, as a whole, c socially and educationally backward, and therefore akin to a Scheduled Caste, reservation can be made on the basis of caste alone.

10. Then came to the decision of nine Judges in Indra D Sawhney v. Union of India [1992 Supp. (3) SCC 217]. This Court held that the use of the word 'class' in Article 16(4) refers .. to social class, and that reservation under Article 16(4) is in favour of a backward class and not a caste. It held that ' backward class of citizens' contemplated in Article 16(4) is not the same

- E as 'socially and educationally backward classes' referred to in Article 15(4), but much wider. It held that there was no reason to qualify or restrict the meaning of the expression 'backward class of citizens' by saying that it means only those other backward classes who are situated similarly to Scheduled Castes and/or F Scheduled Tribes (para 795). This Court held : ,. "If any group of class is situated similarly to the Scheduled Castes, they may have a case for inclusion in that class but there seems to be no basis either in fact or in pr:nciple for holding that other classes/groups must be situated G similarly to them for qualifying as backward classes. There is no warrant to import any such a priori notions into the concept of Other Backward Classes. At the same time, we think it appropriate to clarify that backwardness, being a relative term, must in the context be judged by the general H

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

A level of advancement of the entire population of the. country or the State, as the case may be. More than this, it is difficult to say." ~ .. In the context of Article 16(4) this Court also observed that a caste can be and quite often is a social class in India and if it B is backward socially, it would be a 'backward class' for the purposes of Article 16(4). It held that the accent in Article 16(4) is on social backwardness, whereas the accent in Article 15(4) is on 'social and educational backwardness'. Ultimately, this 1 "\,.. Court held: c " Neither the Constitution nor the law prescribes the procedure or method of identification of backward classes. Nor is it possible or advisable for the court to lay down any such procedure or method. It must be left D to the authority appointed to identify. It can adopt such method/procedure as it thinks convenient and so long as its survey covers the entire populace, no objection can be taken to it. Identification of the backward classes can ~ ~ certainly be done with reference to castes among, and along with, other occupational groups, classes and

- E sections of people. The Court however made it clear that a caste can be the starting point for determining a 'backward class of citizens' as it represents an existing, identifiable social group/class; and that if a caste should be designated as 'a backward class' then the creamy layer from such caste should be excluded. This Court observed: • "In a backward class under clause (4) of Article 16, if the connecting link is the social backwardness, it should broadly be the same in a given class. If some of the members are far too advanced socially (which in the context, necessarily means economically and, may also mean educationally) the connecting thread between them and the remaining class snaps. They would be misfits in • H

ASHOKA KUMAR THAKLR v. LNION OF INDIA & ORS. 467 :RV. RAVEENDRAN J.]

.. ~ the class. After excluding them alone, would the class be A a compact class .. While we agree that clause (4) aims at group backwardness, we feel that exclusion of such socially advanced members will make the 'class' a truly backward class and would more appropriately serve the purpose and object of clause (4)" B

12. It is thus seen that Indra Sawhney certainly went a step further than Balaji and other cases in holding that a caste can -· ~ be the starting point for determination of backwardness. But it is clear from the decision that caste itself is not the final destination, that is, a caste by itself, cannot be determinative ofc social and educational backwardness. A caste can be identified to be socially and economically backward, only when the creamy layer is removed from the caste and a compact class emerges which can be identified as a socially and educationally backward class. Thus the determination is not by first identifying a caste D -... as a socially and educationally backward class and, thereafter, remove or exclude the creamy layer for the purpose of bestowing the benefits flowing to such class. On the other hand, until and unless, the creamy layer is removed from a caste, there is no compact class which can be termed as socially and educationally backward class at all. Thus, while the process of identifying socially and educationally bacKward ciass can conveniently start with a socially and educationally backward caste, remove the creamy layer therefrom results in the emergence of compact class which can be termed as a socially and educationally backward class. In this sense, it can be said that Indra Sawhney is only a development of the principles laid down in Balaji, R. Chitralekha and Vasanth Kumar, which pointed out that the advanced section of a backward caste constituting the creamy layer is virtually the same as forward class. If the creamy layer is not excluded the benefit of reservation will be appropriated by ,, such advanced sections. Referring to this aspect, Indra Sawhney (supra) stated : "To continue to confer upon such advanced sections, H

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

A special benefits, would amount to treating equals .unequally. Secondly, to rank them with the rest of the ,. . backward classes would amount to treating the unequals equally." The need for exclusion of creamy layer is reiterated in the B subsequent decisions of this Court in Ashoka Kumar Thakur v. State of Bihar- 1995 (5) SCC 403, Indra Sawhney v. Union of India (II) - 1996 (6) SCC 506, M.Nagaraj v. Union of India - ~ .- 2006 (8) SCC 212. When Indra Sawhney has held that creamy layer should be excluded for purposes of Article 16(4), dealing c with 'backward class' which is much wider than 'socially and educationally backward class' occurring in Article 15(4) and (5), it goes without saying that without the removal of creamy layer there cannot be a socially and educationally backward class. Therefore when a caste is identified as a socially and educationally backward caste, it becomes a 'socially and educationally backward class' only when it sheds its creamy layer. 1

13. Caste has divided this country for ages. It has hampered its growth. To have a casteless society will be realization of a noble dream. To start with, the effect of reservation may appear to perpetuate caste. The immediate effect of caste based reservation has been rather unfortunate. In the pre- reservation era people wanted to get rid of the backward tag - either social or economical. But post reservation, there is a F tendency even among those who are considered as 'forward', to seek 'backward' tag, in the hope of enjoying the benefits of reservations. When more and more people aspire for 'backwardness' instead of 'forwardness' the country itself stagnates. Be that as it may. Reservation as an affirmative action G is required only for a limited period to bring forward the socially and educationally backward classes by giving them a gentle .___ supportive push. But if there is no review after a reasonable period and if reservation is continued, the country will become a caste divided society permanently. Instead of developing an H

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 469 [R.V. RAVEENDRAN J.]

~ united society with diversity, we will end up as a fractured society A --<~ for ever suspicious of each other. While affirmative discrimination is a road to equality, care should be taken that the road does not become a rut in which the vehicle of progress gets entrenched and stuck. Any provision for reservation is a temporary crutch. Such crutch by unnecessary prolonged use, should not become a permanent liability. It is significant that Constitution does not specifically prescribe a casteless society f nor tries to abolish caste. But by barring discrimination in the "'Y name of caste and by providing for affirmative action Constitution seeks to remove the difference in status on the basis of caste. c When the differences in status among castes are removed, all castes will become equal. That will be a beginning for a casteless egalitarian society.

14. I agree that the petitions shall stand disposed of in the manner stated by the learned Chief Justice. D

. JUDGilliErfP BY COURT 1. The Constitution 93rd Amendment Act, 2005, is valid and does not violate the "basic ' structure" of the Constitution so far as it relates to the State maintained institutions and aided educational institutions. E Question whether the Constitution (Ninety Third Amendment) Act, 2005 would be constitutionally valid or not so far as "private unaided" educational institutions is concerned, is not considered and left open to be decided in an appropriate case. F Justice Bhandari, in his opinion, has, however, considered " the issue and has held· that the Constitution (Ninety Third Amendment) Act, 2005 is not constitutionally valid sofar as private un-aided educational institutions are concerned. G

2. Act 5 of 2007 is constitutionally valid subject to the definition of 'Other Backward Classes' in Section 2(g) of ~he _, Act 5 of 2007 being clarified as follows : If the determination of 'Other Backward Classes' by the Central Government is with reference to a caste, it shall exclude the 'creamy layer' among H

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

A such caste. Quantum of reservation of27% of seats to Other_ Backward Classes in the educational institutions provided in the Act is not illegal. B Act 5 of 2007 is not invalid for the reason that there is no time limit prescribed for its operation but majority of the Judges are of the view that the Review should be made as to the need for continuance of reservation at the end of 5 years. The writ petitions are disposed of in the light of majority judgment. However, in the Contempt Petition No.112/2007 in W.P.(C)No.265/2006, no orders are required. GN. Petitions disposed of.