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K.G. BALAKRISHNAN, C.J. – (Majority) 6. Reservation is one of the many tools
that are used to preserve and promote the essence of equality, so that disadvantaged
groups can be brought to the forefront of civil life. It is also the duty of the State to
promote positive measures to remove barriers of inequality and enable diverse
communities to enjoy the freedoms and share the benefits guaranteed by the Constitution.
In the context of education, any measure that promotes the sharing of knowledge,
information and ideas, and encourages and improves learning, among India’s vastly
diverse classes deserves encouragement. To cope with the modern world and its
complexities and turbulent problems, education is a must and it cannot remain cloistered
for the benefit of a privileged few. Reservations provide that extra advantage to those
persons who, without such support, can forever only dream of university, education,
without ever being able to realize it. This advantage is necessary.
- Dr. Rajendra Prasad, at the concluding address of the Constituent Assembly, stated in
the following words:
To all we give the assurance that it will be our endeavour to end poverty and
squalor and its companions, hunger and disease; to abolish distinction and
exploitation and to ensure decent conditions of living. We are embarking on a great
task. We hope that in this we shall have the unstinted service and co-operation of all
our people and the sympathy and support of all the communities…. - It must also be borne in mind that many other democracies face similar problems and
grapple with issues of discrimination, in their own societal context. Though their social
structure may be markedly different from ours, the problem of inequality in the larger context
and the tools used to combat it may be common. - We are conscious of the fact that any reservation or preference shall not lead to reverse
discrimination. The Constitution (Ninety- Third) Amendment Act, 2005 and the enactment of
Act 5 of 2007 giving reservation to Other Backward Classes (OBCs), Scheduled Castes (SCs)
and Scheduled Tribes (STs) created mixed reactions in the society. Though the reservation in
favour of SC and ST is not opposed by the petitioners, the reservation of 27% in favour of
Other Backward Classes/Socially and educationally backward classes is strongly opposed by
various petitioners in these cases. Eminent Counsel appeared both for the petitioners and
respondents. The learned Solicitor General and Additional Solicitor General appeared and
expressed their views. We have tried to address, with utmost care and attention, the various
arguments advanced by the learned Counsel and we are greatly beholden to all of them for the
manner in which they have analysed and presented the case before us which is of great
importance, affecting large sections of the community.
139 - By the Constitution (Ninety-Third Amendment) Act, 2005, Clause (5) was inserted in
Article 15 of the Constitution which reads as under:
Nothing in this article or in Sub-clause (g) of Clause (1) of Article 19 shall
prevent the State from making any special provision, by law, for the advancement of
any socially and educationally backward classes of citizens or for the Scheduled
Castes or the Scheduled Tribes in so far as such special provisions relate to their
admission to the educational institutions including private educational institutions,
whether aided or unaided by the State, other than the minority educational
institutions referred to in Clause (1) of Article 30. - In Unni Krishnan, J.P. v. State of Andhra Pradesh [1993 (1) SCC 645], it was held
that right to establish educational institutions can neither be a trade or business nor can it be a
profession within the meaning of Article 19(1)(g). This was overruled in T.M.A. Pai
Foundation v. State of Karnataka [(2002) 8 SCC 481], wherein it was held that all citizens
have the fundamental right to establish and administer educational institutions under Article
19(1)(g) and the term “occupation” in Article 19(1)(g) comprehends the establishment and
running of educational institutions and State regulation of admissions in such institutions
would not be regarded as an unreasonable restriction on that fundamental right to carry on
business under Article 19(6) of the Constitution. Education is primarily the responsibility of
the State Governments. The Union Government also has certain responsibility specified in the
Constitution on matters relating to institutions of national importance and certain other
specified institutions of higher education and promotion of educational opportunities for the
weaker sections of society. The Parliament introduced Article 15(5) by The Constitution
(Ninety-Third Amendment) Act, 2005 to enable the State to make such provision for the
advancement of SC, ST and Socially and Educationally Backward Classes (SEBC) of citizens
in relation to a specific subject, namely, admission to educational institutions including
private educational institutions whether aided or unaided by the State notwithstanding the
provisions of Article 19(1)(g). In the Statement of Objects and Reasons of the Constitution
(Ninety-Third Amendment) Act, 2005 it has been stated that:
At present, the number of seats available in aided or State maintained
institutions, particularly in respect of professional education, is limited in comparison
to those in private unaided institutions.
To promote the educational advancement of the socially and educationally
backward classes of citizens, i.e., the OBCs or the Scheduled Castes ad Scheduled
Tribes in matters of admission of students belonging to these categories in unaided
educational institutions other than the minority educational institutions referred to
Clause (1) of Article 30 of the Constitution, it is proposed to amplify Article 15. The
new Clause (5) shall enable the Parliament as well as the State Legislatures to make
appropriate laws for the purposes mentioned above. - After the above Constitution (Ninety-Third Amendment) Act, 2005, the Parliament
passed The Central Educational Institutions (Reservation in Admission) Act, 2006 (Act 5 of
2007). - Section 3 of Act 5 of 2007 provides for reservation of 15% seats for Scheduled
Castes, 7% seats for Scheduled Tribes and 27% for Other Backward Classes in Central
Educational Institutions. The said section is extracted below:
140 - The reservation of seats in admission and its extent in a Central Educational
Institution shall be provided in the following manner, namely:
(i) out of the annual permitted strength in each branch of study or faculty,
fifteen per cent seats shall be reserved for the Scheduled Castes;
(ii) out of the annual permitted strength in each branch of study or faculty,
seven and one-half per cent seats shall be reserved for the Scheduled Tribes;
(iii) out of the annual permitted strength in each branch of study or faculty,
twenty-seven per cent seats shall be reserved for the Other Backward Classes. - “Central Educational Institution” has been defined under Section 2(d) of the Act as
follows:
2(d) “Central Educational Institution” means –
(i) a university established or incorporated by or under a Central Act;
(ii) an institution of national importance set up by an Act of Parliament;
(iii) an institution, declared as a deemed University under section 3 of the
University Grants Commission Act, 1956, and maintained by or receiving aid from
the Central Government;
(iv) an institution maintained by or receiving aid from the Central
Government, whether directly or indirectly, and affiliated to an institution referred to
in Clause (i) or Clause (ii), or a constituent unit of an institution, referred to in Clause
(iii);
(v) an educational institution set up by the Central Government under the
Societies Registration Act, 1860. - The percentage of reservation to various groups such as Scheduled Castes, Scheduled
Tribes and Other Backward Classes are with reference to the annual permitted strength of the
Central Educational Institutions and the “annual permitted strength” is defined under Section
2(b) of the Act as follows:
2(b) “annual permitted strength” means the number of seats, in a course or
programme for teaching or instruction in each branch of study or faculty authorized
by an appropriate authority for admission of students to a Central Educational
Institution. - Section 4 of the Act specifically says that the provisions of Section 3 shall apply to
certain institutions. Section 4 reads as under: - The provisions of Section 3 of this Act shall not apply to –
(a) a Central Educational Institution established in the tribal areas referred to
in the Sixth Schedule to the Constitution;
(b) the institutions of excellence, research institutions, institutions of
national and strategic importance specified in the Schedule to this Act;
Provided that the Central Government may, as and when considered necessary,
by notification in the Official Gazette, amend the Schedule;
(c) a Minority Educational Institution as defined in this Act;
(d) a course or programme at high levels of specialization, including at the
post-doctoral level, within any branch or study or faculty, which the Central
Government may, in consultation with the appropriate authority, specify.
141 - “Minority Educational Institution” is defined in Section 2(f) of the Act as follows:
“Minority Educational Institution” means an institution established and
administered by the minorities under Clause (1) of article 30 of the Constitution and
so declared by an Act of Parliament or by the Central Government or declared as a
Minority Educational Institution under the National Commission for Minority
Educational Institutions Act, 2004. - Section 2(g) defines “Other Backward Classes” as under:
“Other Backward Classes” means the class or classes of citizens who are socially
and educationally backward, and are so determined by the Central Government. - Clause 2(h) defines “Scheduled Castes” and Clause 2(i) defines “Scheduled Tribes” as
under:
“Scheduled Castes” means the Scheduled Castes notified under Article 341 of the
Constitution;
“Scheduled Tribes” means the Scheduled Tribes notified under Article 342 of the
Constitution. - Section 5 of the Act mandates the increase of seats in the Central Educational
Institutions by providing reservation to Scheduled Castes, Scheduled Tribes and Other
Backward Classes. Section 5 reads as follows:
5 (1) Notwithstanding anything contained in Clause (iii) of section 3 and in any
other law for the time being in force, every Central Educational Institution shall, with
the prior approval of the appropriate authority, increase the number of seats in a
branch of study or faculty over and above its annual permitted strength so that the
number of seats, excluding those reserved for the persons belonging to the Scheduled
Castes, the Scheduled Tribes and the Other Backward Classes, is not less than the
number of such seats available for the academic session immediately preceding the
date of the coming into force of this Act.
(2) Where, on a representation by any Central Educational Institution, the Central
Government, in consultation with the appropriate authority, is satisfied that for
reasons of financial, physical or academic limitations or in order to maintain the
standards of education, the annual permitted strength in any branch of study or
faculty of such institution cannot be increased for the academic session following the
commencement of this Act, it may permit by notification in the Official Gazette, such
institution to increase the annual permitted strength over a maximum period of three
years beginning with the academic session following the commencement of this Act;
and then, the extent of reservation for the Other Backward Classes as provided in
Clause (iii) of section 3 shall be limited for that academic session in such manner that
the number of seats available to the Other Backward Classes for each academic
session are commensurate with the increase in the permitted strength for each year. - By virtue of definition of the “Central Educational Institutions” under Clause (d)(iv)
of Section 2 of the Act, all institutions maintained by or receiving aid from the Central
Government whether directly or indirectly, and affiliated to any university or deemed
university or institution of national importance, in addition to universities which are
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established or incorporated under a Central Act, institutions of national importance set up by
Acts of Parliament, deemed universities maintained or receiving aid from Central
Government and institutions set up by the Central Government with the Societies Registration
Act, 1960, are brought under the purview of reservation under Section 3 of the Act. The
object of the Act is to introduce in reservation in only such institutions which are defined as
“Central Educational Institutions” and not any other private unaided institutions. - The Statement of Objects and Reasons for the Act gives the object of the Act thus:
Greater access to higher education including professional education, to a large
number of students belonging to the socially and educationally backward classes of
citizens or for the Scheduled Castes and Scheduled Tribes, has been a matter of
major concern. The reservation of seats for the Scheduled Castes, the Scheduled
Tribes and the Other Backward Classes of citizens (OBCs) in admission to
educational institutions is derived from the provisions of Clause (4) of Article 15. At
present, the number of seats available in aided or State maintained institutions,
particularly in respect of professional education, is limited in comparison to those in
private unaided institutions. - It is laid down in Article 46, as a directive principle of State policy, that the
State shall promote with special care the educational and economic interests of the
weaker sections of the people and protect them from social injustice. Access to
education is important in order to ensure advancement of persons belonging to the
Scheduled Castes, the Scheduled Tribes and the socially and educationally backward
classes also referred to as the OBCs. - Clause (1) of Article 30 provides the right to all minorities to establish and
administer educational institutions of their choice. It is essential that the rights
available to minorities are protected in regard to institutions established and
administered by them. Accordingly, institutions declared by the State to be minority
institutions under Clause (1) of Article 30 are omitted from the operation of the
proposal. - To promote the educational advancement of the socially and educationally
backward classes of citizens i.e., the OBCs or of the Scheduled Castes and Scheduled
Tribes in matters of admission of students belonging to these categories in unaided
educational institutions, other than the minority educational institutions referred to in
Clause (1) of Article 30 of the Constitution, it is proposed to amplify Article 15. The
new Clause (5) shall enable the Parliament as well as the State Legislatures to make
appropriate laws for the purposes mentioned above. - The Constitution (Ninety-Third Amendment) Act, 2005, by which Article 15(5) was
inserted in the Constitution, is challenged in these petitions, on various grounds. In some of
the writ petitions which have been filed after the passing of Act 5 of 2007, the challenge is
directed against the various provisions of the Act 5 of 2007. Initially, these writ petitions were
heard by a Bench of two Judges. Considering the constitutional importance of these
questions, all these writ petitions were referred to a Constitution Bench. - The validity of Constitution (Ninety-Third Amendment) Act, 2005 was seriously
challenged by arguing that the amendment is destructive of basic structure of the Constitution.
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The learned Counsel was of the view that both the Act as well as the Constitution (NinetyThird Amendment) Act, 2005 have to be declared ultra vires the Constitution. - Fundamental Rights and Directive Principles are both complementary and
supplementary to each other. Preamble is a part of the Constitution and the edifice of our
Constitution is built upon the concepts crystallized in the Preamble. Reference was made to
the observations made by Chief Justice Sikri in Kesavananda Bharati v. State of Kerala
[(1973) 4 SCC 225], wherein it was argued that the Constitution should be read and
interpreted in the light of the grand and noble vision expressed in the Preamble. The Preamble
secures and assures to all citizens justice, social, economic and political and it assures the
equality of status and of opportunity. Education and the economic well-being of an individual
give a status in society. When a large number of OBCs, SCs and STs get better educated and
get into Parliament, legislative assemblies, public employment, professions and into other
walks of public life, the attitude that they are inferior will disappear. This will promote
fraternity assuring the dignity of the individual and the unity and integrity of the nation. The
single most powerful tool for the upliftment and progress of such diverse communities is
education. - The Fundamental Rights in Part III are not to be read in isolation. All rights conferred
in Part III of the Constitution are subject to at least other provisions of the said Part III. The
Directive Principles of State Policy in Part IV of the Constitution are equally as important as
Fundamental Rights. Part IV is made not enforceable by Court for the reason inter alia as to
financial implications and priorities. Principles of Part IV have to be gradually transformed
into fundamental rights depending upon the economic capacity of the State. Article 45 is
being transformed into a fundamental right by 86th Amendment of the Constitution by
inserting Article 21A. Clause 2 of Article 38 says that, “the State shall, in particular, strive to
minimize the inequalities in income and endeavour to eliminate inequalities in status,
facilities and opportunities, not only amongst individuals but also amongst groups of people
residing in different areas or engaged in different vocations”. Under Article 46, “the State
shall promote with special care the educational and economic interests of the weaker sections
of the people and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall
protect them from social injustice and all forms of exploitation”. It is submitted that the
Ninety-Third Constitutional Amendment was brought into force to bring about economic and
social regeneration of the teeming millions who are steeped in poverty, ignorance and social
backwardness. Shri K. Parasaran, learned Senior Counsel, contended that the concept of basic
structure is not a vague concept and it was illustrated in the judgment in Kesavananda
Bharati case. It was pointed out that the supremacy of the Constitution, republican and
democratic form of Government and sovereignty of the country, secular and federal character
of the Constitution, demarcation of power between the legislature, the executive and the
judiciary, the dignity of the individual (secured by the various freedoms and basic rights in
Part III and the mandate to build a welfare State contained in Part IV), the unity and the
integrity of the nation are some of the principles of basic structure of the Constitution. It was
contended that when the constitutional validity of a statute is considered, the cardinal rule to
be followed is to look at the Preamble to the Constitution as the guiding light and the
Directive Principles of State Policy as a book of interpretation. On a harmonious reading of
the Preamble, Part III and Part IV, it is manifest that there is a Constitutional promise to the
weaker sections / SEBCs and this solemn duty has to be fulfilled.
144 - It was pointed out that the observations in Champakam Dorairajan that the Directive
Principles are subordinate to the Fundamental Rights is no longer good law after the decision
of the Kesavanda Bharati case and other decisions of this Court. It was pointed out that the
de facto inequalities which exist in the society are to be taken into account and affirmative
action by way of giving preference to the socially and economically disadvantaged persons or
inflicting handicaps on those more advantageously placed is to be made in order to bring
about real equality. It is submitted that special provision for advancement of any socially and
educationally backward citizens may be made by determining the socially and educationally
backward classes on the basis of caste. Article 15(4) neutralized the decision in Champakam
Dorairajan case. It was enacted by the Provisional Parliament which consisted of the very
same Members who constituted the Constituent Assembly. Our Constitution is not caste blind
and the Constitution prohibits discrimination based ‘only on caste’ and not ‘caste and
something else’. - In Unni Krishnan case it was held that Article 19(1)(g) is not attracted for
establishing and running educational institutions. But this decision was overruled in T.M.A.
Pai Foundation and it was held that establishing and running an educational institution is an
“occupation” within the meaning of Article 19(1)(g). In P.A. Inamdar case, it was held that
the private educational institutions, including minority institutions, are free to admit students
of their own choice and the State by regulatory measures cannot control the admission. It was
held that the State cannot impose reservation policy to unaided institutions. The above ruling
disabled the State to resort to its enabling power under Article 15(4) of the Constitution. It
was argued by Shri Parasaran that the above rulings necessitated the enactment of The
Constitution (Ninety-Third Amendment) Act, 2005 by inserting Article 15(5) through which
enabling power was conferred on the Parliament and the State Legislatures, so that they
would have the legislative competence to pass a law providing for reservation in educational
institutions which will not be hit by Article 19(1)(g). But rights of minorities under Article 30
are not touched by Article 15(5). - In Kesavananda Bharati it was held that the fundamental rights may not be abrogated
but they can be abridged. The validity of the 24th Amendment of the Constitution abridging
the fundamental rights was upheld by the Court. The right under Article 19(1)(f) has been
completely abrogated by the 44th Amendment of the Constitution which is permissible for the
constituent power to abridge the Fundamental Rights especially for reaching the goal of the
Preamble of the Constitution. It is an instance of transforming the principles of Part IV into
Part III whereby it becomes enforceable. All rights conferred in Part III of the Constitution
are subject to other provisions in the same Part. Article 15(4) introduced by the 1st
Amendment to the Constitution is a similar instance of abridging of Fundamental Rights of
the general category of citizens to ensure the Fundamental Rights of OBCs, SCs and STs.
Article 15(5) is a similar provision and is well within the Constituent power of amendment.
Article 15(5) is an enabling provision and vests power in the Parliament and the State
legislatures. - There is vital distinction between the vesting of a power and the exercise of power
and the manner of its exercise. It would only enable the Parliament and the State legislatures
to make special provisions by law for enforcement of any socially and educationally
145
backward class of citizens or for Scheduled Castes and Scheduled Tribes relating to their
admission to educational institutions including private educational institutions. - As regards exemption of minority educational institutions in Article 15(5), it was
contended that this was done to conform with the Constitutional mandate of additional
protection for minorities under Article 30. It was argued that Article 15(5) does not override
Article 15(4). They have to be read together as supplementary to each other and Article 15(5)
being an additional provision, there is no conflict between Article 15(4) and Article 15(5).
Article 15(4), 15(5), 29(2), 30(1), and 30(2) all together constitute a Code in relation to
admission to educational institutions. They have to be harmoniously construed in the light of
the Preamble and Part IV of the Constitution. It was also contended that the Article 15(5)
does not interfere with the executive power of the State and there is no violation of the
proviso to Article 368. - The Ninety-Third Constitutional Amendment does not specifically or impliedly make
any change in Article 162. Article 15(5) does not seek to make any change in Article 162
either directly or indirectly. The field of legislation as to “education” was in Entry 11 of List
II. By virtue of the 42nd Amendment of the Constitution, “education”, which was in Entry 11
in List II, was deleted and inserted as Entry 25 in List III. The executive power of the State is
not touched by the present Constitutional Amendment. - Article 15(5) does not abrogate the fundamental right enshrined under Article
19(1)(g). If at all there is an abridgement of Fundamental Right, it is in a limited area of
admission to educational institutions and such abridgement does not violate the basic
structure of the Constitution. In any way, Constitutional Amendments giving effect to
Directive Principles of the State Policy would not offend the basic structure of the
Constitution. - The Right to Equality enshrined in our Constitution is not merely a formal right or a
vacuous declaration. Affirmative action though apparently discriminatory is calculated to
produce equality on a broader basis. By eliminating de facto inequalities and placing the
weaker sections of the community on a footing of equality with the stronger and more
powerful sections so that each member of the community whatever is his birth, occupation or
social position may be, enjoys equal opportunity of using to the full, his natural endowments
of physique, of character and of intelligence. - It was held in E.V. Chinnaiah v. State of Andhra Pradesh [(2005) 1 SCC 394] that
the SCs and STs form a single class. The observations in Nagaraj case cannot be construed as
requiring exclusion of creamy layer in SCs and STs. Creamy layer principle was applied for
the identification of backward classes of citizens. And it was specifically held in Indra
Sawhney case, that the above discussion was confined to Other Backward Classes and has no
relevance in the case of Scheduled Tribes and Scheduled Castes. The observations of the
Supreme Court in Nagaraj case should not be read as conflicting with the decision in Indra
Sawhney case. The observations in Nagaraj case as regards SCs and STs are obiter. In regard
to SCs and STs, there can be no concept of creamy layer. - Once the President of India has determined the list of Scheduled Castes and
Scheduled Tribes, it is only by a law made by the Parliament that there can be exclusion from
the list of Scheduled Castes or Scheduled Tribes. As far as OBCs are concerned, the principle
146
of exclusion of creamy lawyer is applicable only for Article 16(4). It has no application to
Article 15(4) or 15(5) as education stands on a different footing. - Equality of opportunity of education is a must for every citizen and the doctrine of
“creamy layer” is inapplicable and inappropriate in the context of giving opportunity for
education. In the matter of education there cannot be any exclusion on the ground of creamy
layer. Such exclusion would only be counter productive and would retard the development
and progress of the groups and communities and their eventual integration with the rest of the
society. - It was further argued that Article 15(4) and 15(5) are provisions of power coupled
with duty. It is the constitutional duty to apply these principles in the governance of the
country and in making law for the reason that it is a constitutional promise of social justice
which has to be redeemed.
Un-touchability is abolished and its practice thereof is punishable by the law of the Union. - The Constitution never prohibits the practice of caste and casteism. Every activity in
Hindu society, from cradle to grave is carried on solely on the basis of one’s caste. Even after
death, a Hindu is not allowed to be cremated in the crematorium which is maintained for the
exclusive use of the other caste or community. Dalits are not permitted to be buried in graves
or cremated in crematoriums where upper caste people bury or cremate their dead. Christians
have their own graveyards. Muslims are not allowed to be buried in the Hindu crematoriums
and vice-versa. Thus, caste rules the roost in the life of a Hindu and even after his death. In
such circumstances, it is entirely fallacious to advance this argument on the ground that the
Constitution has prohibited the use of caste. It was argued what the Constitution aims at is
achievement of equality between the castes and not elimination of castes. - The learned Senior Counsel points out that it would be utopian to expect that by
ignoring caste, the castes will perish. And the Counsel contended the Constitution has not
abolished the caste system much less has it prohibited its use. The Counsel pointed out that
the Constitutional Amendment under the impugned Act in favour of backward classes is an
unprecedented leap taking the higher education in the country forward, without depriving a
single seat to the forward castes. And the advanced castes, with a population of less than 20%
would still be able to get 50% of the seats in the name of merit disproportionate to their
known proportion of their population. It is contended that without the advancement of SCs,
STs and OBCs constituting over 80% population and mainly living in rural areas, it will not
be possible to take the nation forward. And the students who are admitted under the reserved
quota have performed much better than the students admitted on the basis of merit. The
learned Counsel also placed reliance on the Moily Report – Case studies from four States. - The main challenge in these writ petitions is the constitutional validity of the Act 5 of
- This legislation was passed by Parliament consequent upon The Constitution (NinetyThird Amendment) Act, 2005, by which Sub-article (5) was inserted in Article 15 of the
Constitution. The constitutionality of this amendment has also been challenged in the various
writ petitions filed by the petitioners. As the Act itself is based on the Constitution (NinetyThird Amendment) Act, 2005, the validity of the Act depends on the fact whether the
Constitution (Ninety-Third Amendment) Act, 2005 itself is valid or not.
147 - T.M.A. Pai Foundation held that a private unaided educational institution has the
fundamental right under Article 19(1)(g) of the Constitution as the running of an educational
institution was treated as an “occupation” and further that the State’s regulation in such
institutions would not be regarded as a reasonable restriction on that fundamental right to
carry on business under Article 19(6). This decision necessitated the Ninety-Third
Amendment to the Constitution since as a result of T.M.A. Pai Foundation the State would
not be in a position to control or regulate the admission in private educational institutions. At
the outset, it may have to be stated that no educational institution has come up to challenge
the Constitution (Ninety-Third Amendment) Act, 2005. The challenge about the
constitutionality of the Constitution (Ninety-Third Amendment) Act, 2005 has been advanced
by the petitioners, who based their contentions on the equality principles enunciated in
Articles 14, 15 and 16 of the Constitution. - The Constitution (Ninety-Third Amendment) Act, 2005 is challenged on many
grounds. The first ground of attack is that if the Constitution (Ninety-Third Amendment) Act,
2005 is allowed to stand it would be against the “basic structure” of the Constitution itself and
this Amendment seriously abridges the equality principles guaranteed under Article 15 and
other provisions of the Constitution. Another contention raised by the petitioners’ Counsel is
that the Golden Triangle of Articles 14, 19 and 21 is not to be altered and the balance and
structure of these constitutional provisions has been ousted by the Constitution (Ninety-Third
Amendment) Act, 2005. Yet another contention urged by Shri K.K. Venugopal, learned
Senior Counsel, is that Article 15(4) and 15(5) are mutually exclusive and under Article 15(5)
the minority educational institutions are excluded. According to him, this is a clear
contravention of the secular and equality principles. The learned Senior Counsel also pointed
out that minority institutions are not severable from the purview of Article 15(5) and
therefore, the whole Constitution (Ninety-Third Amendment) Act, 2005 is to be declared
illegal. Another argument advanced by the learned Senior Counsel is that there is
inconsistency between Article 15(4) and Article 15(5) and by virtue of the Constitution
(Ninety-Third Amendment) Act, 2005, the States are devoid of their wide power under
Article 15(5) to make reservation in minority educational institutions which are getting aid
from the States and thus it is violative of the very essence of equality. He further argued that
the Constitution (Ninety-Third Amendment) Act, 2005 could control the legislative and
executive power of the State and, therefore, it is not constitutionally valid. The learned
Counsel had further challenged the validity of Act 5 of 2007, with which we will deal
separately. - Whether Ninety-Third Amendment of the Constitution is against the “basic structure” of
the Constitution? - The Constitution (Ninety-Third Amendment) Act, 2005, by which Clause (5) was
added to Article 15 of the Constitution, is an enabling provision which states that nothing in
Article 15 or in Sub-clause (g) of Clause (1) of Article 19 shall prevent the State from making
any special provision, by law, for the advancement of any socially and educationally
backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as
such special provisions relate to their admission to the educational institutions including
148
private educational institutions, whether aided or unaided by the State. Of course, minority
educational institutions referred to in Clause (1) of Article 30 are excluded. Thus, the newly
added Clause (5) of Article 15 is sought to be applied to educational institutions whether
aided or unaided. In other words, this newly added constitutional provision would enable the
State to make any special provision by law for admission in private educational institutions
whether aided or unaided. In all the petitions which have been filed before us the main
challenge is against Act 5 of 2007. Act 5 of 2007 has been enacted to provide reservation of
seats for Scheduled Castes, Scheduled Tribes and SEBCs of citizens in Central Educational
Institutions. The “Central Educational Institution” has been defined under Section 2(d) of the
Act. They are institutions established or incorporated by or under the Central Act or set up by
an Act of Parliament or deemed Universities maintained by or receiving aid from the Central
Government or institutions maintained by or receiving aid from the Central Government or
educational institutions set up by the Central Government under the Societies Registration
Act, 1860. Act 5 of 2007 is not intended to provide reservation in “private unaided”
educational institutions. None of the private unaided educational institutions have filed
petitions before us challenging the Ninety-Third Constitutional Amendment. Though the
learned Counsel appearing for the petitioners have challenged the Ninety-Third Constitutional
Amendment on various grounds, they were vis-a-vis the challenge to Act 5 of 2007. The
counter to the challenge by the learned Solicitor General as well as by Shri K. Parasaran,
learned Senior Counsel was also in that context. We do not want to enter a finding as to
whether the Ninety-Third Constitutional Amendment is violative of the “basic structure” of
the Constitution so far as it relates to “private unaided” educational institutions. In the
absence of challenge by private unaided educational institutions, it would not be proper to
pronounce upon the constitutional validity of that part of the Constitutional Amendment. As
the main challenge in these various petitions was only regarding the provisions of Act 5 of
2007, which related to state maintained institutions, the challenge to the Ninety-Third
Constitutional Amendment so far as it relates to private unaided educational institutions, does
not strictly arise in these proceedings. In the absence of challenge by private unaided
institutions, it may not be proper for this Court to decide whether the Ninety-Third
Constitutional Amendment is violative of the “basic structure” of the Constitution so far as it
relates to private unaided educational institutions merely because we are considering its
validity in the context of Act 5 of 2007. We feel that such questions could be decided as the
main questions that are involved in these petitions are specific regarding Act 5 of 2007, we
leave open the question as to whether the Ninety-Third Amendment to the Constitution by
which Sub-clause (5) was inserted is violative of the basic structure doctrine or not so far as it
relates to “private unaided” educational institutions to be decided in other appropriate cases.
We deal only with the question of whether the Ninety-Third Constitutional Amendment is
constitutionally valid so far as it relates to the state maintained institutions and aided
educational institutions. - Several contentions have been advanced by the petitioners’ Counsel challenging the
constitutional validity of the Constitution (Ninety-Third Amendment) Act, 2005. The main
argument was on the ground that this amendment is against the “basic structure” of the
Constitution. In order to appreciate the contention of the petitioners’ Counsel, it is necessary
to understand the “basic structure” theory that has been propounded in the celebrated case of
Kesavananda Bharati. This case was a decision of 13 Judge Bench of this Court. Though the
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Judges were not unanimous about what the “basic structure” of the Constitution be, however,
Shelat J. (at page 280) in his judgment had indicated the following basic features of the
Constitution:
The basic structure of the Constitution is not a vague concept and the
apprehensions expressed on behalf of the respondents that neither the citizen nor the
Parliament would be able to understand it are unfounded. If the historical
background, the Preamble, the entire scheme of the Constitution, the relevant
provisions thereof including Article 368 are kept in mind there can be no difficulty in
discerning that the following can be regarded as the basic elements of the
constitutional structure. (These cannot be catalogued but can only be illustrated): - The supremacy of the Constitution.
- Republican and Democratic form of Government and sovereignty of the
country. - Secular and federal character of the Constitution.
- Demarcation of power between the legislature, the executive and the judiciary.
- The dignity of the individual secured by the various freedoms and basic rights
in Part III and the mandate to build a welfare State contained in Part IV. - The unity and the integrity of the nation.
- Sikri, CJ (at page 165-166) held that:
The true position is that every provision of the Constitution can be amended
provided in the result the basic foundation and structure of the constitution remains
the same. The basic structure may be said to consist of the following features:
(1) Supremacy of the Constitution.
(2) Republication and Democratic form of Government.
(3) Secular character of the Constitution.
(4) Separation of powers between the Legislature, the executive and the
judiciary.
(5) Federal character of the Constitution. - The power of Parliament to amend the Constitution also was dealt with in detail and
majority of the Judges held that the fundamental rights can be amended, altered or abridged.
The majority decision in Kesavananda Bharati case overruled the decision in Golak Nath v.
State of Punjab. Kesavananda Bharati indicates the extent to which amendment of the
Constitution could be carried out and lays down that the legality of an amendment is no more
open to attack than the Constitution itself. It was held that the validity of an ordinary law can
be questioned and when it is questioned it must be justified by reference to a higher law. In
the case of the Constitution the validity is inherent and lies within itself. The Constitution
generates its own validity. The validity of the Constitution lies in the social fact of its
acceptance by the community. There is a clear demarcation between an ordinary law made in
exercise of the legislative power and the constituent law made in exercise of constitutional
power. Therefore, the power to amend the Constitution is different from the power to amend
ordinary law. The distinction between the legislative power and the constitutional power is
vital in a rigid or controlled Constitution because it is that distinction which brings in the
doctrine that a law ultra vires the Constitution is void. When the Parliament is engaged in the
amending process it is not legislating, it is exercising a particular power bestowed upon it sui-
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generis by the amending clause in the Constitution. Sikri, CJ, held that the expression
“amendment of this Constitution” does not enable Parliament to abrogate or take away
fundamental rights or to completely change the fundamental features of the Constitution so as
to destroy its identity. Within these limits Parliament can amend every article. Shelat &
Grover JJ. (at p 291) concluded that:
Though the power to amend cannot be narrowly construed and extends to all the
Articles it is not unlimited so as to include the power to abrogate or change the
identity of the Constitution or its basic features. - Hegde & Mukherjee, JJ., finally concluded (at p 355) that:
The power to amend the Constitution under Article 368 as it stood before its
amendment empowered the Parliament by following the form and manner laid down
in that Article, to amend each and every Article and each and every Part of the
Constitution…. Though the power to amend the Constitution under Article 368 is a
very wide power, it does not yet include the power to destroy or emasculate the basic
elements or the fundamental features of the Constitution. - Ray J. (as he then was) (at p 461) held that:
The Constitution is the supreme law. Third, an amendment of the Constitution is
an exercise of the constituent power. The majority view in Golak Nath case is with
respect wrong. Fourth, there are no express limitations to the power of amendment.
Fifth, there are no implied and inherent limitations on the power of amendment.
Neither the Preamble nor Article 13(2) is at all a limitation on the power of
amendment. Sixth, the power to amend is wide and unlimited. The power to amend
means the power to add, alter or repeal any provision of the Constitution. There can
be or is no distinction between essential and in-essential features of the Constitution
to raise any impediment to amendment of alleged essential features. - Palekar, J. (at p. 632) concluded that:
The power and the procedure for the amendment of the Constitution were
contained in the unamended Article 368. An Amendment of the Constitution in
accordance with the procedure prescribed in that Article is not a ‘law’ within the
meaning of Article 13. An amendment of the Constitution abridging or taking away a
fundamental right conferred by Part III of the Constitution is not void as
contravening the provisions of Article 13(2). There were no implied or inherent
limitations on the amending power under the unamended Article 368 in its operation
over the fundamental rights. There can be none after its amendment. - Khanna, J. (at p. 758, 759) concluded that:
The power to amendment under Article 368 does not include power to abrogate
the Constitution nor does it include the power to alter the basic structure or
framework of the Constitution. Subject to the retention of the basic structure or
framework of the Constitution, the power of amendment is plenary and includes
within itself the power to amend the various articles of the Constitution, including
those relating to fundamental rights as well as those which may be said to relate to
essential features. No part of a fundamental right can claim immunity from
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amendatory process by being described as the essence or core of that right. The
power of amendment would also include within itself the power to add, alter or
repeal the various articles. - Mathew, J. (at p. 857) held that:
The only limitation is that the Constitution cannot be repealed or abrogated in the
exercise of the power of amendment without substituting a mechanism by which the
State is constituted and organized. That limitation flows from the language of the
article itself. - Beg, J. (at p. 886) held that:
The majority view in Golak Nath case, holding that Article 13 operated as a
limitation upon the powers of Constitutional amendment found in Article 368, was
erroneous.
He upheld the 24th Amendment and the 25th Amendment Act including addition of Article
31C. - Dwivedi, J finally concluded that:
The word “amendment” in Article 368 is broad enough to authorize the varying
or abridging each and every provision of the Constitution, including Part III. There
are no inherent and implied limitations of the amendment power in Article 368. - Finally, Chandrachud, J. (at p. 1000) held that:
The power of amendment of the Constitution conferred by the then Article 368
was wide and unfettered. It reached every part and provision of the Constitution. - A survey of the conclusions reached by the learned Judges in Kesavananda Bharati
case clearly shows that the power of amendment was very wide and even the fundamental
rights could be amended or altered. It is also important to note that the decision in RE : The
Berubari Union and Exchange of Enclaves, Reference under Article 143(1) of the
Constitution of India [AIR 1960 SC 845], to the effect that preamble to the Constitution was
not part of the Constitution was disapproved in Kesavananda Bharati case and it was held
that it is a part of the Constitution and the Preamble to the Constitution is of extreme
importance and the Constitution should be read and interpreted in the light of the grand and
noble visions envisaged in the Preamble. A close analysis of the decisions in Kesavananda
Bharati case shows that all the provisions of the Constitution, including the fundamental
rights, could be amended or altered and the only limitation placed is that the basic structure of
the Constitution shall not be altered. The judgment in Kesavananda Bharati case clearly
indicates what is the basic structure of the Constitution. It is not any single idea or principle
like equality or any other constitutional principles that are subject to variation, but the
principles of equality cannot be completely taken away so as to leave the citizens in this
country in a state of lawlessness. But the facets of the principle of equality could always be
altered especially to carry out the Directive Principles of the State Policy envisaged in Part IV
of the Constitution. The Constitution (Ninety-Third Amendment) Act, 2005 is to be examined
in the light of the above position. - The basic structure of the Constitution is to be taken as a larger principle on which the
Constitution itself is framed and some of the illustrations given as to what constitutes the
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basic structure of the Constitution would show that they are not confined to the alteration or
modification of any of the Fundamental Rights alone or any of the provisions of the
Constitution. Of course, if any of the basic rights enshrined in the Constitution are completely
taken out, it may be argued that it amounts to alteration of the Basic Structure of the
Constitution. For example, the federal character of the Constitution is considered to be the
basic structure of the Constitution. There are large number of provisions in the Constitution
dealing with the federal character of the Constitution. If any one of the provisions is altered or
modified, that does not amount to the alteration of the basic structure of the Constitution.
Various fundamental rights are given in the Constitution dealing with various aspects of
human life. The Constitution itself sets out principles for an expanding future and is obligated
to endure for future ages to come and consequently it has to be adapted to the various changes
that may take place in human affairs. - For determining whether a particular feature of the Constitution is part of the basic
structure or not, it has to be examined in each individual case keeping in mind the scheme of
the Constitution, its objects and purpose and the integrity of the Constitution as a fundamental
instrument for the country’s governance. It may be noticed that it is not open to challenge the
ordinary legislations on the basis of the basic structure principle. State legislation can be
challenged on the question whether it is violative of the provisions of the Constitution. But as
regards constitutional amendments, if any challenge is made on the basis of basic structure, it
has to be examined based on the basic features of the Constitution. It may be noticed that the
majority in Kesavananda Bharati case did not hold that all facets of Article 14 or any of the
fundamental rights would form part of the basic structure of the Constitution. The majority
upheld the validity of the first part of Article 30(1)(c) which would show that the
constitutional amendment which takes away or abridges the right to challenge the validity of
an arbitrary law or violating a fundamental right under that Article would not destroy or
damage the basic structure. Equality is a multi-coloured concept incapable of a single
definition as is also the fundamental right under Article 19(1)(g). The principle of equality is
a delicate, vulnerable and supremely precious concept for our society. It is true that it has
embraced a critical and essential component of constitutional identity. The larger principles of
equality as stated in Article 14, 15 and 16 may be understood as an element of the “basic
structure” of the Constitution and may not be subject to amendment, although, these
provisions, intended to configure these rights in a particular way, may be changed within the
constraints of the broader principle. The variability of changing conditions may necessitate
the modifications in the structure and design of these rights, but the transient characters of
formal arrangements must reflect the larger purpose and principles that are the continuous and
unalterable thread of constitutional identity. It is not the introduction of significant and farreaching change that is objectionable, rather it is the content of this change in so far as it
implicates the question of constitutional identity. - If any Constitutional amendment is made which moderately abridges or alters the
equality principle or the principles under Article 19(1)(g), it cannot be said that it violates the
basic structure of the Constitution. If such a principle is accepted, our Constitution would not
be able to adapt itself to the changing conditions of a dynamic human society. Therefore, the
plea raised by the Petitioners’ that the present Constitutional Ninety-Third Amendment Act,
2005 alters the basic structure of the constitution is of no force. Moreover, the interpretation
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of the Constitution shall not be in a narrow pedantic way. The observations made by the
Constitution Bench in Nagaraj case at page 240 are relevant:
Constitution is not an ephermal legal document embodying a set of legal rules for
the passing hour. It sets out principles for an expanding future and is intended to
endure for ages to come and consequently to be adapted to the various crisis of
human affairs. Therefore, a purposive rather than a strict literal approach to the
interpretation should be adopted. A Constitutional provision must be construed not in
a narrow and constricted sense but in a wide and liberal manner so as to anticipate
and take account of changing conditions and purposes so that constitutional provision
does not get fossilized but remains flexible enough to meet the newly emerging
problems and challenges. - It has been held in many decisions that when a constitutional provision is interpreted,
the cardinal rule is to look to the Preamble to the Constitution as the guiding star and the
Directive Principles of State Policy as the ‘Book of Interpretation’. The Preamble embodies
the hopes and aspirations of the people and Directive Principles set out the proximate grounds
in the governance of this country. - Therefore, we hold that the Ninety-Third Amendment to the Constitution does not
violate the “basic structure” of the Constitution so far as it relates to aided educational
institutions. Question whether reservation could be made for SCs, STs or SEBCs in private
unaided educational institutions on the basis of the Ninety-Third Constitutional Amendment;
or whether reservation could be given in such institutions; or whether any such legislation
would be violative of Article 19(1)(g) or Article 14 of the Constitution; or whether the
Ninety-Third Constitutional Amendment which enables the State Legislatures or Parliament
to make such legislation – are all questions to be decided in a properly constituted lis between
the affected parties and others who support such legislation. - Whether Articles 15(4) and 15(5) are mutually contradictory, hence Article 15(5) is to be
held ultra vires? - The next contention raised by the petitioner’s Counsel is that Article 15(4) and 15(5)
are mutually exclusive and contradictory. The Counsel for the petitioner, particularly the
petitioner in Writ Petition (C) No. 598 of 2006, submitted that Article 15(4) was a provision
and a source of legislative power for the purpose of making reservation for Scheduled Castes
(SCs) and Scheduled Tribes (STs) as well as for Socially and Educationally Backward
Classes (SEBCs) of citizens in aided minority educational institutions. And Article 15(4) was
inserted after the decision of this Court in Champakam Dorairajan and Article 15(5)
provides for reservation of seats for SCs, STs and SEBCs in aided or unaided educational
institutions but expressly excludes all such reservation being made in minority educational
institutions covered by Article 30(1) of the Constitution. This, according to the Petitioner’s
learned Counsel, will lead to a situation where the State would not be in a position to give
reservation to SCs, STs and SEBCs even in aided minority institutions which have got
protection under Article 30(1) of the Constitution. It is argued that in view of the express
provision contained in Article 15(5), the State would no more be able to give the reservation
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and this according to the petitioner’s Counsel would result in annulling the endeavour of the
founding fathers and the various provisions for neutralizing the exclusion of SCs & STs from
the mainstream of society and development for centuries. - It is argued by petitioners’ learned Counsel that Article 15(4) and 15(5) both
commence with an exclusionary clause excluding the operation of the rest of the Article 15,
and hence would result in a conflict to the extent of inconsistency. According to the
petitioners’, Article 15(5) is a special provision relating to educational institutions and being a
later amendment, it would prevail over Article 15(4), thus in substance and effect resulting in
an amendment of Article 15(4) of the Constitution. According to the petitioner’s Counsel,
“nothing in this Article” in Article 15(5) would include Article 15(4) also and in view of this
inconsistent provision, Article 15(5) has to be held to be inconsistent with 15(4) and thus nonoperative. - Both Article 15(4) and 15(5) are enabling provisions. Article 15(4) was introduced
when the “Communal G.O.” in the State of Madras was struck down by this Court in
Champakam Dorairajan case. In Unni Krishnan, this Court held that Article 19(1)(g) is not
attracted for establishing and running educational institutions. However, in T.M.A. Pai
Foundation case, it was held that the right to establish and running educational institutions is
an occupation within the meaning of Article 19(1)(g). The scope of the decision in T.M.A.
Pai Foundation case was later explained in P.A. Inamdar case. It was held that as regards
unaided institutions, the State has no control and such institutions are free to admit students of
their own choice. The said decision necessitated the enactment of the Constitution NinetyThird Amendment Act, 2005. Thus, both Article 15(4) and 15(5) operate in different areas.
The “nothing in this Article” [mentioned at the beginning of Article 15(5)] would only mean
that the nothing in this Article which prohibit the State on grounds which are mentioned in
Article 15(1) alone be given importance. Article 15(5) does not exclude 15(4) of the
Constitution. It is a well settled principle of constitutional interpretation that while
interpreting the provisions of Constitution, effect shall be given to all the provisions of the
Constitution and no provision shall be interpreted in a manner as to make any other provision
in the Constitution inoperative or otiose. If the intention of the Parliament was to exclude
Article 15(4), they could have very well deleted Article 15(4) of the Constitution. Minority
institutions are also entitled to the exercise of fundamental rights under Article 19(1)(g) of the
Constitution, whether they be aided or unaided. But in the case of Article 15(5), the minority
educational institutions, whether aided or unaided, are excluded from the purview of Article
15(5) of the Constitution. Both, being enabling provisions, would operate in their own field
and the validity of any legislation made on the basis of Article 15(4) and 15(5) have to be
examined on the basis of provisions contained in such legislation or the special provision that
may be made under Article 15(4) and 15(5). It may also be noticed that no educational
institutions or any aggrieved party have come before us challenging the constitutional
amendment on these grounds. The challenge is made by petitioners objecting to the
reservations made under Act 5 of 2007. Therefore, the plea that Article 15(4) and 15(5) are
mutually contradictory and, therefore, Article 15(5) is not constitutionally valid cannot be
accepted. As has been held in N.M. Thomas case and Indra Sawhney case, Article 15(4) and
16(4) are not exceptions to Article 15(1) and Article 16(1) but independent enabling
provision. Article 15(5) also to be taken as an enabling provision to carry out certain
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constitutional mandate and thus it is constitutionally valid and the contentions raised on these
grounds are rejected. - Whether exclusion of minority educational institutions from Article 15(5) is violative of
Article 14 of Constitution? - Another contention raised by the petitioner’s Counsel is that the exclusion of
minority institutions under Article 15(5) itself is violative of Article 14 of the Constitution. It
was contended that the exclusion by itself is not severable from the rest of the provision. This
plea also is not tenable because the minority institutions have been given a separate treatment
in view of Article 30 of Constitution. Such classification has been held to be in accordance
with the provisions of the Constitution. The exemption of minority educational institutions
has been allowed to conform Article 15(5) with the mandate of Article 30 of the Constitution.
Moreover, both Article 15(4) and 15(5) are operative and the plea of non-severability is not
applicable. - Learned Senior Counsel Dr. Rajeev Dhavan and learned Counsel Shri Sushil Kumar
Jain appearing for the petitioners contended that the Ninety-Third Constitutional Amendment
would violate the equality principles enshrined in Articles 14, 19 and 21 and thereby the
“Golden Triangle” of these three Articles could be seriously violated. The learned Counsel
also contended that exclusion of minorities from the operation of Article 15(5) is also
violative of Article 14 of the Constitution. We do not find much force in this contention. It
has been held that Article 15(4) and Article 16(4) are not exceptions to Article 15(1) and
Article 16(1) respectively. It may also be noted that if at all there is any violation of Article
14 or any other equality principle, the affected educational institution should have approached
this Court to vindicate their rights. No such petition has been filed before this Court.
Therefore, we hold that the exclusion of minority educational institutions from Article 15(5)
is not violative of Article 14 of the Constitution as the minority educational institutions, by
themselves, are a separate class and their rights are protected by other constitutional
provisions. - Whether the Constitutional Amendment followed the procedure prescribed under Article
368 of the Constitution? - Another contention raised by the petitioner’s Counsel is that the Ninety-Third
Constitutional Amendment is invalid as it violates the proviso to Article 368 of the
Constitution. According to the petitioner’s Counsel, the procedure prescribed under the
proviso to Article 368 was not followed in the case of the Ninety-Third Amendment.
According to the petitioner’s Counsel, Article 15(5) of the Constitution interferes with the
executive power of the States as it impliedly takes away the power of the State Government
under Article 162 of the Constitution. - This contention of the petitioner’s Counsel has no force. The powers of the
Parliament and the State legislatures to legislate are provided for under Article 245-255 of the
Constitution. Under the proviso to Article 162, any matter with respect to which the
legislature of the State and the Parliament have power to make laws, the executive power of
the State shall be subject to and limited by the executive power expressly conferred by the
Constitution or by any law made by Parliament upon the Union authorities thereof. The
Ninety-Third Constitutional Amendment does not expressly or impliedly take away any such
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power conferred by Article 162. It may also be noticed that by virtue of the 42nd Amendment
to the Constitution, “education” which was previously in Entry No. 11 in List II was deleted
and inserted in List III as Entry No. 25 as the field of legislation in List III. Article 245 will
operate and by reasons of proviso to Article 162, the executive power of the State be subject
to, limited by, the executive power expressly conferred by the Constitution or by any law
made by Parliament upon the Union authorities thereof. Subject to restrictions imposed under
the Constitution, it has been in existence. Such power of the State is not limited or curtailed
by the Ninety-Third Constitutional Amendment as it does not interfere with the power of the
State under Article 162. The Ninety-Third Constitutional Amendment does not fall within the
scope of proviso to Article 368. Therefore, the plea raised by the petitioner’s Counsel that the
Ninety-Third Constitutional Amendment did not follow the prescribed procedure of Article
368 is not correct and the plea is only to be rejected. - Whether the Act 5 of 2007 is constitutionally invalid in view of definition of “Backward
Class” and whether the identification of such “Backward Class” based on “caste” is
constitutionally valid? - The next important plea raised by the petitioner’s Counsel is regarding the validity of
the Act 5 of 2007. The several contentions have been raised regarding the validity of the Act
5 of 2007. The first contention which was raised by the petitioner’s Counsel that this Act is
ex-facie unconstitutional and is a suspect legislation and violative of the Article 14, 15 and
19(1)(g) of the Constitution. The main attack against the Act was that the socially and
educationally backward classes of citizens were not properly identified and the delegation of
power to identify the socially and educationally backward classes of citizens to the Central
Government itself is illegal and the delegation of such powers by itself without laying down
any guidelines is arbitrarily illegal. Elaborate arguments were made by the petitioner’s
Counsel and the first and foremost contention was that “caste” is the sole basis on which the
socially and educationally backward classes of citizens were determined. And this, according
to the petitioner’s Counsel, is illegal. Reference was made to a series of decisions of this Court
on this issue. - There is a long jurisprudential history as to whether caste can play any role in
determining the socially and educationally backward classes of citizens. In Indra Sawhney
case, which is a Nine Judge Bench decision, it was held that the “caste” could be a beginning
point and a determinative factor in identifying the socially and educationally backward
classes of citizens. But nevertheless, a brief survey of various decisions on this question
would give a history of the jurisprudential development on this subject. - Reference to the earlier decisions is necessary because serious doubt has been raised
as to whether “caste” could be the basis for recognizing backwardness. Some of the earlier
decisions have stated that caste should not be a basis for recognizing backwardness and
gradually there was a shift in the views and finally, in Indra Sawhney case, it was held that
caste could be the starting point for determining the socially and educationally backward
classes of citizen. - In Champakam Dorairajan, this Court struck down the classification made in the
Communal G.O. of the then State of Madras. The G.O. was founded on the basis of religion
and castes and was struck down on the ground that it is opposed to the Constitution and is in
violation of the fundamental rights guaranteed to the citizens. The court held that Article 46
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cannot override the provisions of Article 29(2) because of the Directive Principles of State
Policy which were then taken subsidiary to fundamental rights. This decision led to the first
constitutional amendment by which Article 15(4) was added to the Constitution. - The next important case is M.R. Balaji v. State of Mysore. In this case, the State of
Mysore issued an order that all the communities except the Brahmin community would fall
within the definition of socially and educationally backward class and Scheduled Castes and
Scheduled Tribes and 75% of the seats in educational institutions were reserved for them. It
was observed that though caste in relation to Hindus may be a relevant factor to consider
while determining social backwardness of groups or classes of citizens, it cannot be made the
sole or dominant test. It was held that the classes of citizens who are deplorably poor
automatically become socially backward. Moreover, the occupation of citizens and the place
of their habitation also result in social backwardness. The problem of determining who are
socially backward classes is undoubtedly very complex, but the classification of socially
backward citizens on the basis of their caste alone is not permissible under Article 15(4).
Learned Senior Counsel Shri Harish Salve drew our attention to the various passages in the
judgment. Gajendragadkar, J. speaking for the majority of the Judges, said:
The Problem of determining who are socially backward classes is undoubtedly
very complex. Sociological, social and economic considerations come into play in
solving the problem and evolving proper criteria for determining which classes are
socially backward is obviously a very difficult task; it will need an elaborate
investigation and collection of data and examining the said data in a rational and
scientific way. That is the function of the State which purports to act under Article
15(4). - The court drew a clear distinction between ‘caste’ and ‘class’ and tried to
make an attempt to find a new basis for ascertaining social and educational
backwardness in place of caste and in this decision a majority of Judges held that in a
broad way, a special provision of reservation should be less than 50%; how much
less than 50% would depend upon the relevant and prevailing circumstances in each
case. - In R. Chitralekha case, the Government of Mysore, by an order defining backward
classes directed that 30% of the seats in professional and technical colleges and institutions
shall be reserved for them and 18% to the SCs and STs. It was laid down that classification of
socially and educationally backward classes should be made on the basis of economic
condition and occupation. Suba Rao, J. (as he then was), speaking for the majority, held that a
classification of backward classes based on economic conditions and occupations is not bad
in law and does not offend Article 15(4). The caste of a group of citizens may be a relevant
circumstance in ascertaining their social backwardness and though it is a relevant factor to
determine social backwardness of a class, it cannot be the sole or dominant test in that behalf.
If, in a given situation, caste is excluded in ascertaining a class within the meaning of Article
15(4), it does not vitiate the classification if it satisfies other tests. The Court observed that
various provisions of the Constitution which recognized the factual existence of
backwardness in the country and which make a sincere attempt to promote the welfare of the
weaker sections thereof should be construed to effectuate that policy and not to give
weightage to progressive sections of the society under the false colour of caste to which they
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happen to belong. The Court held that under no circumstance a ‘class’ can be equated to a
‘caste’ though the caste of an individual or group of individuals may be a relevant factor in
putting him in a particular class. - P. Rajendran v. State of Madras [(1971) 1 SCC 38] is another Constitution Bench
decision wherein the order of the State Government providing reservation of seats for various
categories of candidates namely Scheduled Tribes, Scheduled Castes and SEBCs was
challenged on various grounds. The main challenge was that the reservation was based
entirely on consideration of caste and therefore it violates Article 15. Justice Wanchoo, held
that:
Now if the reservation in question had been based only on caste and had not
taken into account the social and educational backwardness of the castes in question,
it would be violative of Article 15(1). But it must not be forgotten that a caste is also
a class of citizens and if the caste as a whole is socially and educationally backward
reservation can be made in favour of such a caste on the ground that it is a socially
and educationally backward class of citizens within the meaning of Article 15(4).
Reference in this connection may be made to the observations of this Court in M.R.
Balaji v. State of Mysore to the effect that it was not irrelevant to consider the caste
of a class of citizens in determining their social and educational backwardness. It was
further observed that though the caste of a class of citizens may be relevant its
importance should not be exaggerated; and if classification of backward classes of
citizens was based solely on the caste of the citizen, it might be open to objection. - It may be noticed that the list prepared by the State showed certain castes, and
members of those castes according to the State were really classes of socially and
educationally backward citizens. It was observed in that case that the petitioners therein did
not make any attempt to show that any caste mentioned in the list of educationally and
socially backward classes of citizens was not educationally and socially backward and the list
based on caste was upheld by the Constitution Bench and held to be not violative of Article
15(1). - In Triloki Nath Tiku v. State of J & K (I) [AIR 1969 SC 1], 50% of the gazetted
posts were to be filled up by promotion in favour of the Muslims of Jammu & Kashmir. The
Court held that inadequate representation in State services would not be decisive for
determining the backwardness of a section. The Court accordingly gave directions for
collecting further material relevant to the subject. And in a subsequent decision, Triloki
Nath(II), the court observed that the expression “backward class” is not used as synonymous
with “backward caste”. - In A. Peerikaruppan v. State of Tamil Nadu this Court made reference to the earlier
decisions especially in M.R. Balaji case and R. Chitralekha case Hegde, J., at paragraph 29,
observed:
There is no gainsaying the fact that there are numerous castes in this country
which are socially and educationally backward. To ignore their existence is to ignore
the facts of life. Hence we are unable to uphold the contention that the impugned
reservation is not in accordance with Article 15(4). But all the same the Government
should not proceed on the basis that once a class is considered as a backward class it
should continue to be backward class for all times. Such an approach would defeat
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the very purpose of the reservation because once a class reaches a stage of progress
which some modern writers call as take off stage then competition is necessary for
their future progress. The Government should always keep under review the question
of reservation of seats and only the classes which are really socially and
educationally backward should be allowed to have the benefit of reservation. - The learned Counsel for the petitioners also made reference to State of Uttar
Pradesh v. Pradip Tandon [(1975) 1 SCC 267] wherein Chief Justice Ray observed at
paragraph 14:
Socially and educationally backward classes of citizens in Article 15(4) could not
be equated with castes. In M.R. Balaji v. State of Mysore and State of A.P. v. Sagar
this Court held that classification of backwardness on the basis of castes would
violate both Articles 15(1) and 15(4). - Another important decision is that of State of Kerala v. N.M. Thomas, wherein the
constitutional validity of Rule 13-AA of the Kerala State & Subordinate Services Rules was
under challenge. The Rule gave exemption of 2 years to members belonging to Scheduled
Castes and Scheduled Tribes in services, from passing the departmental test. The High Court
of Kerala struck down the Rule and in an appeal by the State the question of reservation was
elaborately considered. Mathew, J. in his concurring judgment, held that in order to give
equality of opportunity for employment to the members of Scheduled Castes and Scheduled
Tribes, it is necessary to take note of their social, educational and economic backwardness.
Not only is the Directive Principle embodied in Article 46 binding on the law-makers as
ordinarily understood, but it should equally inform and illuminate the approach of the court
when it makes a decision, as the court is also a “State” within the meaning of Article 12 and
makes law even though interstitially. Existence of equality depends not merely on the absence
of disabilities but on the presence of disabilities. To achieve it, differential treatment of
persons who are unequal is permissible. This is what is styled as compensatory discrimination
or affirmative action. - In K.C. Vasanth Kumar v. State of Karnataka the question of identifying socially
and educationally backward class came up for consideration. Desai, J., elaborately considered
this question in paragraph 20 and observed:
By its existence over thousands of years, more or less it was assumed that caste
should be the criterion for determining social and educational backwardness. In other
words, it was said, look at the caste, its traditional functions, its position in relation to
upper castes by the standard of purity and pollution, pure and not so pure occupation,
once these questions are satisfactorily answered without anything more, those who
belong to that caste must be labeled socially and educationally backward. This oversimplified approach ignored a very realistic situation existing in each caste that in
every such caste whose members claim to be socially and educationally backward,
had an economically well-placed segments. - Chinnappa Reddy, J., also dealt with the question elaborately and observed:
However we look at the question of ‘backwardness’, whether from the angle of
class, status or power, we find the economic factor at the bottom of it all and we find
poverty, the culprit-cause and the dominant characteristic. Poverty, the economic
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factor brands all backwardness just as the erect posture brands the homosapiens and
distinguishes him from all other animals, in the eyes of the beholder from Mars. But,
whether his racial stock is Caucasian, Mongoloid, Negroid, etc., further investigation
will have to be made. So too the further question of social and educational
backwardness requires further scrutiny. In India, the matter is further aggravated,
complicated and pitilessly tyrannized by the ubiquitous caste system, a unique and
devastating system of gradation and degradation which has divided the entire Indian
and particularly Hindu society horizontally into such distinct layers as to be
destructive of mobility, a system which has penetrated and corrupted the mind and
soul of every Indian citizen. It is a notorious fact that there is an upper crust of rural
society consisting of the superior castes, generally the priestly, the landlord and the
merchant castes, there is a bottom strata consisting of the ‘out-castes’ of Indian Rural
Society, namely the Scheduled Castes, and, in between the highest and the lowest,
there are large segments of population who because of the low gradation of the caste
to which they belong in the rural society hierarchy, because of the humble occupation
which they pursue, because of their poverty and ignorance are also condemned to
backwardness, social and educational, backwardness which prevents them from
competing on equal terms to catch up with the upper crust. - Reference was also made to other decisions, namely, State of Andhra Pradesh v. P.
Sagar [AIR 1968 SC 1379] and T. Devadasan v. The Union of India [AIR 1964 SC 179].
The earlier decisions took the view that caste shall not be a basis for determining the socially
and educationally backward class of citizens. But from the later decisions, we find a slight
shift in the approach of the court. If the classification of SEBCs is done exclusively on the
basis of caste, it would fly in the face of Article 15(1) of the Constitution as it expressly
prohibits any discrimination on the grounds of religion, race, caste, sex, place of birth or any
of them. After a careful examination of the various previous decisions of this Court, in Indra
Sawhney, while examining the validity of the ‘Backward Class List’ prepared by the Mandal
Commisson, Jeevan Reddy. J., speaking for the majority, held as under: - During the years 1968 to 1971, this Court had to consider the validity of
identification of backward classes made by Madras and Andhra Pradesh Governments. P.
Rajendran v. State of Madras 3 13 related to specification of socially and educationally
backward classes with reference to castes. The question was whether such an identification
infringes Article 15. Wanchoo, CJ, speaking for the Constitution Bench dealt with the
contention in the following words:
The contention is that the list of socially and educationally backward classes for
whom reservation is made under Rule 5 is nothing but a list of certain castes.
Therefore, reservation in favour of certain castes based only on caste considerations
violates Article 15(1), which prohibits discrimination on the ground of caste only.
Now if the reservation in question had been based only on caste and had not taken
into account the social and educational backwardness of the caste in question, it
would be violative of Article 15(1). But it must not be forgotten that a caste is also a
class of citizens and if the caste as a whole is socially and educationally backward
reservation can be made in favour of such a caste on the ground that is a socially and
educationally backward class of citizens within the meaning of Article 15(4)…. It is
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true that in the present cases the list of socially and educationally backward classes
has been specified by caste. But that does not necessarily mean that caste was the
sole consideration and that persons belonging to these castes are also not a class of
socially and educationally backward citizens….As it was found that members of these
castes as a whole were educationally and socially backward, the list which had been
coming on from as far back as 1906 was finally adopted for purposes of Article
15(4)….
In view however of the explanation given by the State of Madras, which has not
been controverted by any rejoinder, it must be accepted that though the list shows
certain castes, the members of those castes are really classes of educationally and
socially backward citizens. No attempt was made on behalf of the
petitioners/appellant to show that any caste mentioned in this list was not
educationally and socially backward. In this state of the pleadings, we must come to
the conclusion that though the list is prepared caste-wise, the castes included therein
are as a whole educationally and socially backward and therefore the list is not
violative of Article 15. The challenge to Rule 5 must therefore fail. - In that decision it was further held that “Backward Class” in Article 16(4) cannot be
read as “Backward Caste”. And under Article 340 of the Constitution, the President may by
order appoint a Commission consisting of such persons as he thinks fit to investigate the
conditions of socially and educationally backward classes of citizens within the territory of
India and the difficulties under which they labour and to make recommendations as to the
steps that should be taken by the Union or any State to remove the difficulties and to improve
their condition. The object of this provision is to empower the President to appoint a
Commission to ascertain the difficulties and problems of socially and educationally backward
classes of citizens. And in Indra Sawhney case, the majority held that the ideal and wise
method would be to mark out various occupations which on the lower level in many cases
amongst Hindus would be their caste itself and find out their social acceptability and
educational standard, weigh them in the balance of economic conditions and, the result would
be backward class of citizens needing a genuine protective umbrella. And after having
adopted occupation as the starting point, the next point should be to ascertain their social
acceptability. A person carrying on scavenging becomes an untouchable whereas others who
were as law in the social strata as untouchables became depressed. The Court has cautioned
that the backwardness should be traditional. Mere educational or social backwardness would
not have been sufficient as it would enlarge the field thus frustrating the very purpose of the
constitutional goal. It was pointed out that after applying these tests, the economic criteria or
the means-test should be applied since poverty is the prime cause of all backwardness as it
generates social and educational backwardness. - The learned Counsel for the petitioner contended that caste cannot be used even as
one of the criteria for identifying the SEBCs as many persons have shifted their traditional
occupations and have become doctors, engineers and lawyers. But these are only a few cases
and even such persons continue to suffer social segregation based on caste. In Pradip Tandon
case it was held at para 17 that:
The expression ‘classes of citizens’ indicates a homogenous section of the people
who are grouped together because of certain likenesses and common traits and who
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are identifiable by some common attributes. The homogeneity of the class of citizens
is social and educational backwardness. Neither caste nor religion nor place of birth
will be the uniform element of common attributes to make them a class of citizens. - The above statement is not fully correct. Caste plays an important role in
determining the backwardness of the individual. In society, social status and standing depend
upon the nature of the occupation followed. In paragraph 779 of Indra Sawhney’s case, it is
stated:
Lowlier the occupation, lowlier the social standing of the class in the graded
hierarchy. In rural India, occupation-caste nexus is true even today. A few members
may have gone to cities or even abroad but when they return – they do, barring a few
exceptions – they go into the same fold again. It does not matter if he has earned
money. He may not follow that particular occupation. Still, the label remains. His
identity is not changed for the purpose of marriage, death and all other social
functions, it is his social class – the caste – that is relevant. - “Caste” is often used interchangeably with “class” and can be called as the basic unit
in social stratification. The most characteristic thing about a caste group is its autonomy in
caste related matters. One of the universal codes enforced by all castes is the requirement of
endogamy. Other rules have to do with the regulations pertaining to religious purity or
cleanliness. Sometimes it restricts occupational choices as well. It is not necessary that these
rules be enforced in particular classes as well, and as such a “class” may be distinguished
from the broader realm of “caste” on these grounds. Castes were often rated, on a purity scale,
and not on a social scale. - The observations made by Venkataramaiah J. in K.C. Vasanth Kumar case are
relevant in this regard:
We are aware of the meanings of the words caste, race, or tribe or religious
minorities in India. A caste is an association of families which practise the custom of
endogamy i.e., which permits marriages amongst the members belonging to such
families only. Caste rules prohibit its members from marrying outside their caste.
There are sub-groups amongst the castes which sometimes inter-marry and
sometimes do not. A caste is based on various factors, sometimes it may be a class, a
race or a racial unit. A caste has nothing to do with wealth. The caste of a person is
governed by his birth in a family. Certain ideas of ceremonial purity are peculiar to
each caste. Sometimes caste practices even led to segregation of same castes in the
villages. Even the choice of occupation of members of castes was predetermined in
many cases, and the members of a particular caste were prohibited from engaging
themselves in other types of callings, professions or occupations. Certain occupations
were considered to be degrading or impure. A certain amount of rigidity developed in
several matters and many who belonged to castes which were lower in social order
were made to suffer many restrictions, privations and humiliations. Untouchability
was practised against members belonging to certain castes. Inter-dining was
prohibited in some cases. None of these rules governing a caste had anything to do
with either the individual merit of a person or his capacity. The wealth owned by him
would not save him from many social discriminations practised by members
belonging to higher castes. Children who grew in this caste ridden atmosphere
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naturally suffered from many social disadvantages apart from the denial of
opportunity to live in the same kind of environment in which persons of higher castes
lived. Many social reformers have tried in the last two centuries to remove the stigma
of caste from which people born in lower castes were suffering. Many laws were also
passed prohibiting some of the inhuman caste practices. (p. 110) - On the other hand, it is possible that within a caste group there is a marked
inequality of status, opportunity, or social standing – which then defines the “class” within
that particular “caste” system. For example, all the Brahmins are not engaged in highly
respectable employment, nor are all very wealthy. It may even be that some Brahmins may be
servants of members of a lower caste, or it may also be so that the personal servant of a rich
Brahmin may be a poor Brahmin. - Hence, there is every reason to believe that within a single caste group there are
some classes or groups of people to whom good fortune or perseverance has brought more
dignity, social influence and social esteem than it has to others. - In India, caste, in a socio-organizational manner would mean that it is not
characterized merely by the physical or occupational characteristics of the individuals who
make it up; rather, it is characterized by its codes and its close-knit social controls. In the case
of classes, however, there may not exist such close-knit unit social controls, and there may
exist great disparity in occupational characteristics. - A social class is therefore a homogeneous unit, from the point of view of status and
mutual recognition; whereas a caste is a homogeneous unit from the point of view of common
ancestry, religious rites and strict organizational control. Thus the manner in which the caste
is closed both in the organizational and biological sense causes it to differ from social class.
Moreover, its emphasis upon ritual and regulations pertaining to cleanliness and purity differs
radically from the secular nature and informality of social class rules. In a social class, the
exclusiveness would be based primarily on status. Social classes divide homogeneous
populations into layers of prestige and esteem, and the members of each layer are able to
circulate freely with it. - In a caste, however, the social distance between members is due to the fact that they
belong to entirely different organizations. It may be said, therefore, that a caste is a horizontal
division and a class, a vertical division. - The Solicitor General, Mr. G.E. Vahanvati, pointed out that for the purpose of
reservation under Article 16(4) of the Constitution, the Central List has been in operation for
the past 14 years and not a single person has challenged any inclusion in the Central List as
void or illegal. - It was pointed out that the National Commission for the Backward Classes and the
State Commission for Backward Classes have prepared a list based on elaborate guidelines
and these guidelines have been framed after studying the criteria/indicators framed by the
Mandal Commission and the Commissions set up in the past by different State Governments.
Various Commissions held public hearings at various places and the National Commission
held 236 public hearings before it finalized the list. It is also pointed out that during the period
of its functioning, the National Commission had recommended 297 requests for inclusion and
at the same time rejected 288 requests for inclusion of the main castes. It is further pointed
164
out that the Commission took into consideration detailed data with regard to social,
educational and economic criteria. The Commission has also looked into whether there has
been any improvement or deterioration in the condition of the caste or community being
considered for inclusion during the past twenty years. - It is pointed out that an elaborate questionnaire was prepared by the Commission and
the answers in this questionnaire were considered in detail for inclusion/rejection in the list. It
is clear that the lists of socially and educationally backward classes of citizens are being
prepared not solely on the basis of the caste and if caste and other considerations are taken
into account for determining backwardness, it cannot be said that it would be violative of
Article 15(1) of the Constitution. - We hold that the determination of SEBCs is done not solely based on caste and
hence, the identification of SEBCs is not violative of Article 15(1) of the Constitution. - Whether Creamy Layer is to be excluded from SEBCs?
- The SEBCs have been identified by applying various criteria. Though for the
purpose of convenience, the list is based on caste, it cannot be said that ‘Backward Class’ has
been identified solely on the basis of caste. All the castes which suffered the social and
educational backwardness have been included in the list. Therefore, it is not violative of
Article 15(1). The only possible objection that could be agitated is that in many of the castes
included in this list, there may be an affluent section (Creamy Layer) which cannot be
included in the list of SEBCs. - When socially and educationally backward classes are determined by giving
importance to caste, it shall not be forgotten that a segment of that caste is economically
advanced and they do not require the protection of reservation. It was argued on behalf of the
petitioners that the principle of ‘Creamy Layer’ should be strictly applied to SEBCs while
giving affirmative action and the principles of exclusion of ‘Creamy Layer’ applied in Indra
Sawhney case should be equally applied to any of the legislations that may be passed as per
Article 15(5) of the Constitution. The Counsel for the petitioners submitted that SEBCs have
been defined under section 2 (g) of the Act and the Central Government has been delegated
with the power to determine Other Backward Classes. The Counsel for the petitioners have
pointed out that the definition given in section 2(g) of the Act should be judicially interpreted.
That the backward class so stated therein should mean to exclude the ‘Creamy Layer’. The
learned Senior Counsel appearing for Pattali Makkal Katchi (PMK) stated that exclusion of
‘Creamy Layer’ shall not apply for reservation in educational institutions. He pointed out that
in case the ‘creamy layer’ is excluded, the other members of the backward class community
would not be in a position to avail the benefit of reservation and the fee structure in many of
these centrally administered institutions is exorbitantly high and the ordinary citizen would
not be in a position to afford the payment of fees and thus the very purpose of the reservation
would be frustrated. - According to the learned Counsel for the respondents, the creamy layer elimination
will only perpetuate caste inequalities. It would enable the advanced castes to eliminate any
challenge or competition to their leadership in the professions and services and that they will
gain by eliminating all possible beneficiaries of reservation in the name of creamy layer
especially in the institutions of higher learning. It was argued that the analogy of Creamy
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Layer applied in reservations to jobs cannot be applied in reservations to educational
institutions of higher learning. The position of a student getting admission to an institution of
higher learning is totally different and can never be compared to that of backward class
person to get a job by virtue of reservation. The study in any educational institution of higher
learning is very expensive and the non-creamy layer backward class parent cannot afford his
son or his daughter incurring such a huge expenditure. Eliminating them from the Creamy
Layer will frustrate the very object of providing reservation. Therefore, it is wholly
impracticable and highly counter productive to import the policy of Creamy Layer for
reservation in these institutions. And according to the learned Counsel there is a difference
between services and education and that under the purview of Act 5 of 2007, around 3 lakh
seats would be filled up every year. Whereas the jobs are limited and they will not become
vacant every year. - The learned Counsel pointed out that grouping of all castes together may enable a
less backward caste among the backward classes to corner more seats than it deserves. It is
also possible that more backward classes cannot afford to compete with the less backward
classes. The only way to solve the said problem is by categorization of Backward Classes and
sub classifying them so as to ensure that under each category only similarly circumstanced
castes are grouped together. The categorization of backward class has successfully worked in
State of Tamil Nadu where most backward class is provided 20% reservation and the most
backward castes and denotified tribes are grouped together and the backward classes are
provided 30% reservation. In the State of Karnataka, backward classes are divided into 5
categories and separate reservations have been provided. And in the State of Andhra Pradesh,
Backward Classes have been divided into 4 divisions and separate percentage of reservation
has been provided. - As noticed earlier, determination of backward class cannot be exclusively based on
caste. Poverty, social backwardness, economic backwardness, all are criteria for
determination of backwardness. It has been noticed in Indra Sawhney case that among the
backward class, a section of the backward class is a member of the affluent section of society.
They do not deserve any sort of reservation for further progress in life. They are socially and
educationally advanced enough to compete for the general seats along with other candidates. - In Indra Sawhney case, Jeevan Reddy, J., has observed:
In our opinion, it is not a question of permissibility or desirability of such test but
one of proper and more appropriate identification of a class – a backward class. The
very concept of a class denotes a number of persons having certain common traits
which distinguish them from the others. In a backward class under Clause (4) of
Article 16, if the connecting link is the social backwardness, it should broadly be the
same in a given class. If some of the members are far too advanced socially (which in
the context, necessarily means economically and, may also mean educationally) the
connecting thread between them and the remaining class snaps. They would be
misfits in the class. After excluding them alone, would the class be a compact class.
In fact, such exclusion benefits the truly backward. - It is to be understood that “creamy layer” principle is introduced merely to exclude a
section of a particular caste on the ground that they are economically advanced or
educationally forward. They are excluded because unless this segment of caste is excluded
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from that caste group, there cannot be proper identification of the backward class. If the
“Creamy Layer” principle is not applied, it could easily be said that all the castes that have
been included among the socially and educationally backward classes have been included
exclusively on the basis of caste. Identification of SEBC for the purpose of either Article
15(4), 15(5) or 16(4) solely on the basis of caste is expressly prohibited by various decisions
of this Court and it is also against Article 15(1) and Article 16(1) of the Constitution. To fulfil
the conditions and to find out truly what is socially and educationally backward class, the
exclusion of “creamy layer” is essential. - It may be noted that the “creamy layer” principle is applied not as a general principle
of reservation. It is applied for the purpose of identifying the socially and educationally
backward class. One of the main criteria for determining the SEBC is poverty. If that be so,
the principle of exclusion of “creamy layer” is necessary. Moreover, the majority in Indra
Sawhney case upheld the exclusion of “creamy layer” for the purpose of reservation in
Article 16(4). Therefore, we are bound by the larger Bench decision of this Court in Indra
Sawhney case, and it cannot be said that the “creamy layer” principle cannot be applied for
identifying SEBCs. Moreover, Articles 15(4) and 15(5) are designed to provide opportunities
in education thereby raising educational, social and economical levels of those who are
lagging behind and once this progress is achieved by this section, any legislation passed
thereunder should be deemed to have served its purpose. By excluding those who have
already attained economic well being or educational advancement, the special benefits
provided under these clauses cannot be further extended to them and, if done so, it would be
unreasonable, discriminatory or arbitrary, resulting in reverse discrimination. - Sawant, J. also made observation in Indra Sawhney case to ensure removal of
‘creamy layer’. He observed:
(A)t least some individuals and families in the backward classes – gaining sufficient
means to develop their capacities to compete with others in every field…. Legally,
therefore, they are not entitled to be any longer called as part of the backward classes
whatever their original birth mark – to continue to confer upon such advanced
sections from the backward classes the special benefits, would amount to treating
equals unequally violating the equality provisions of the Constitution. Secondly, to
rank them with the rest of the backward classes would equally violate the right to
equality of the rest in those classes, since it would amount to treating the unequals
equally….It will lead to perverting the objectives of the special constitutional
provisions since the forwards among the backward classes will thereby be enabled to
tap up all the special benefits to the exclusion and to the cost of the rest in those
classes, thus keeping the rest in perpetual backwardness. - All these reasonings are equally applicable to the reservation or any special action
contemplated under Article 15(5). Therefore, we are unable to agree with the contention
raised by the respondent’s learned Counsel that if ‘creamy layer’ is excluded, there may be
practically no representation for a particular backward class in educational institutions
because the remaining members, namely, the non-creamy layer, may not have risen to the
level or standard necessary to qualify to get admission even within the reserved quota. If the
creamy layer is not excluded, the identification of SEBC will not be complete and any SEBC
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without the exclusion of ‘creamy layer’ may not be in accordance with Article 15(1) of the
Constitution. - What should be the para-meters for determining the “creamy layer” group?
- After the decision in Indra Sawhney case, the Government of India, Ministry of
Personnel, Public Grievances and Pensions (Department of Personnel and Training) issued an
Office Memorandum dated 08.09.1993 providing for 27% reservation for Other Backward
Classes. The Memorandum reads as follows:
OFFICE MEMORANDUM
Subject : Reservation for Other Backward Classes in Civil Posts and Services
Under the Government of India – regarding.
The undersigned is directed to refer to this Department’s OM No. 36012/31/90-
Estt. (SCT), dated the 13th August, 1990 and 25th September, 1991 regarding
reservation for Socially and Educationally Backward Classes in Civil Posts and
Services under the Government of India and to say that following the Supreme Court
judgment in the Indra Sawhney v. Union of India [1992 Supp (3) SCC 217] the
Government of India appointed an Expert Committee to recommend the criteria for
exclusion of the socially advanced persons/sections from the benefits of reservations
for Other Backward Classes in Civil Posts and Services under the Government of
India. - Consequent to the consideration of the Expert Committee’s recommendations
this Department’s Office Memorandum No. 36012/31/90-Estt. (SCT), dated
13.8.1990 referred to in para (1) above is hereby modified to provide as follows:
(a) 27% (twenty-seven per cent) of the vacancies in Civil Posts and Services
under the Government of India, to be filled through direct recruitment, shall be
reserved for the Other Backward Classes. Detailed instructions relating to the
procedure to be followed for enforcing reservation will be issued separately.
(c) (i) The aforesaid reservation shall not apply to persons/sections mentioned in
Column 3 of the Schedule to this office memorandum.
(ii) The rule of exclusion will not apply to persons working as artisans or
engaged in hereditary occupations, callings. A list of such occupations, callings will
be issued separately by the Ministry of Welfare.
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SCHEDULE
Description of category To whom rule of exclusion will apply
I. Constiztutional Posts Son(s) and daughter(s) of
(a) President of India;
(b) Vice-President of India;
(c) Judges of the Supreme Court and of the High
Courts;s
(d) Chairman and Members of UPSC and of the State
Public Service Commission; Chief Election
Commissioner; Comptroller and Auditor General of
India;
(e) persons holding constitutional positions of
like nature
II. Service Category
A. Group A/Class I
Officers of the All India
Central and State Services
(Direct Recruits)
Son(s) and daughter(s) of
(a) parents, both of whom are Class I Officers
(b) parents, either of whom is a Class I officer;
(c) parents, both of whom are Class I Officers, but one
of them dies or suffers permanent incapacitation;
(d) parents, either of whom is a Class I officer and such
parent dies or suffers permanent incapacitation and
before such death or such incapacitation has had the
benefit of employment in any International Page
1479 Organisation like UN, IMF, World Bank, etc.
for a period of not less than five years;
(e) parents, both of whom are Class I officers die or
suffer permanent incapacitation and before such
death or such incapacitation of the both, either of
them has had the benefit of employment in any
International Organisation like UN, IMF, World
Bank, etc. for a period of not less than 5 years.
Provided that the rule of exclusion shall not
apply in the following cases:
(a) Son(s) and daughter(s) of parents either of
whom or both of whom are class I officers and such
parent(s) dies/die or suffer permanent incapacitation;
(b) A lady belonging to OBC category has got
married to a Class I officer, and may herself like to
apply for a job.
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B. Group B/Class II
officers of the Central
and State Services
(Direct Recruitment)
C. Employees in Public
Sector Undertakings etc.
Son(s) and daughter(s) of
(a) Parents both of whom are Class II officers;
(b) parents of whom only the husband is a Class II
officer and he get into Class I at the age of 40 or
earlier;
(c) parents, both of whom are Class II officers and one
of them dies or suffers permanent incapacitation and
either one of them has had the benefit of
employment in any International Organisation like
UN, IMF, World Bank etc. for a period of not less
than five years before such death or permanent
incapacitation;
(d) parents of whom the husband is a Class I officer
(direct recruit or pre-forty promoted) and the wife is
a Class II officer and the wife dies; or suffers
permanent incapacitation; and
(e) parents, of whom the wife is a Class I officer (direct
recruit or preforty promoted) and the husband is a
Class II officer and the husband dies or suffers
permanent incapacitation:
Provided that the rule of exclusion shall not
apply in the following cases:
Son(s) and daughter(s) of:
(a) parents both of whom are Class II officers and
one of them dies or suffers permanent incapacitation;
(b) parents, both of whom are Class II officers and
both of them die or suffer permanent incapacitation,
even though either of them has had the benefit of
employment in any International Organisation like
UN, IMF, World Bank etc. for a period of not less
than five years before their death or permanent
incapacitation.
The criteria enumerated in A and B above in this
category will apply mutatis mutandis to officers
holding equivalent or comparable posts in PSUs,
Banks, Insurance Organisations, Universities, etc.
and also to equivalent or comparable posts and
positions under private employment, pending the
evaluation of the posts on equivalent or comparable
basis in these institutions, the criteria specified in
Category VI below will apply to the officers in these
institutions.
170
III. Armed Forces
Including Paramilitary
Forces (Persons holding
civil posts are not
included)
Son(s) and daughter(s) of
Parents either or both of whom is or are in the rank
of Colonel and above in the Army and to equivalent
posts in the Navy and the Air Force and the
Paramilitary Forces:
Provided that:
(i) If the wife of an Armed Forces officer is
herself in the Armed Forces (i.e., the category under
consideration) the rule of exclusion will apply only
when she herself has reached the rank of Colonel;
(ii) The service ranks below Colonel of husband
and wife shall not be clubbed together;
(iii) If the wife of an officer in the Armed Forces
is in civil employment, this will not be taken into
account for applying the rule of exclusion unless she
falls in the service category under Item No. II in
which case the criteria and conditions enumerated
therein will apply to her independently.
171
IV. Professional Class
and Those Engaged in
Trade and Industry
(i) Persons engaged in
profession as a Doctor,
Lawyer, Chartered
Accountant, Income Tax
consultant, financial or
Hmanagement consultant,
dental surgeon, engineer,
architect, computer
specialist, film artists and
other film professional,
author, playwright, sports
persons, sports
professional, media
professional or any other
vocations of like status.
(ii) Persons engaged in
trade, business and
industry.
Criteria specified against Category VI will applyCriteria specified against Category VI will apply-
Explanation:
(i) Where the husband is in same profession and
the wife is in a Class II or lower grade employment,
the income/wealth test will apply only on the basis
of the husband’s income;
(ii) If the wife is in any profession and the
husband is in employment in a Class II or lower rank
post, then the income/wealth criterion will apply
only on the basis of the wife’s income and the
husband’s income will not be clubbed with it.
172
V. Property Owners
A. Agricultural holdings
B. Plantations
(i) Coffee, tea, rubber
etc.
(ii) Mango, citrus, apple
plantations, etc.
C. Vacant land and/or
buildings, in urban
areas or urban
agglomerations
Son(s) and daughter(s) of
persons belonging to a family (father, mother and
minor children) which owns
(a) only irrigated land which is equal to or more
than 85 per cent of the statutory Area; or
(b) both irrigated and unirrigated land, as
follows:-
(i) The rule of exclusion will apply where the
precondition exists that the irrigated area (having
been brought to a single type under a common
denominator) 40 per cent or more of the statutory
ceiling limit for irrigated land (this being calculated
by excluding the unirrigated portion). If this
precondition of not less than 40 per cent exists, then
only the area of unirrigated land will be taken into
account. This will be done by converting the
unirrigated land on the basis of the conversion
formula existing, into the irrigated type. The
irrigated area so computed from unirrigated land
shall be added to the actual area of irrigated land and
if after such clubbing together the total area in terms
of irrigated land is 80 per cent or more of the
statutory ceiling limit for irrigated land, then the rule
of exclusion will apply and disentitlement will
occur;
(ii) The rule of exclusion will not apply if the
land holding of a family is exclusively unirrigated.
Criteria of income/wealth specified in Category
VI below will apply.
Deemed as agricultural holding and hence, criteria at
A above under this category will apply. Criteria
specified in Category VI below will apply.
Criteria specified in Category VI below will apply.
Explanation: Building may be used for
residential, industrial or commercial purpose and the
like two or more such purposes.
173
VI. Income/Wealth Test Son(s) and daughter(s) of-
(a) persons having gross annual income of Rs. 1 lakh or
above or possessing wealth above the exemption
limit as prescribed in the Wealth Tax Act for a
period of three consecutive years;
(b) persons in Categories I, II, III and V-A who are not
disentitled to the benefit of reservation but have
income from other sources of wealth which will
bring them within the income/wealth criteria
mentioned in (a) above.
Explanation.-
(i) Income from salaries or agricultural land
shall not be clubbed;
(ii) The income criteria in terms of rupee will
be modified taking into account the change in its
value every three years; If the situation, however, so
demands, the interregnum may be less.
Explanation: Wherever the expression ‘permanent incapacitation’ occurs in this
Schedule, it shall mean incapacitation which results in putting an officer out of service.
[In Ashoka Kumar Thakur v. State of Bihar (1995) 5 SCC 403, 417, para 10, it was held
that the above Office Memorandum conforms to the law laid down in Indra Sawhney
case.]
- We make it clear that same principle of determining the creamy layer for providing
27% reservation for backward classes for appointment need not be strictly followed in case of
reservation envisaged under Article 15(5) of the Constitution. As pointed by Shri Ravivarma
Kumar, learned Senior Counsel, if a strict income restriction is made for identifying the
“creamy layer”, those who are left in the particular caste may not be able to have a sufficient
number of candidates for getting admission in the central institutions as per Act 5 of 2007.
Government can make a relaxation to some extent so that sufficient number of candidates
may be available for the purpose of filling up the 27% reservation. It is for the Union
Government and the State Governments to issue appropriate guidelines to identify the
“creamy layer” so that SEBC are properly determined in accordance with the guidelines given
by this Court. If, even by applying this principle, still the candidates are not available, the
State can issue appropriate guidelines to effectuate the implementation of the reservation
purposefully. - As noticed earlier, “backward class” defined in Section 2(g) does not exclude
“creamy layer”. Therefore, we make it clear that backward class as defined in Section 2(g) of
Act 5 of 2007 must be deemed to have been such backward class by applying the principle of
exclusion of “creamy layer”.
174 - Whether the “creamy layer” principle is applicable to Scheduled Tribes and Scheduled
Castes? - N.M. Thomas case does not state that “creamy layer” principle should apply to SCs
and STs. In K.C. Vasanth Kumar case the “creamy layer” was used in the case of backward
caste or class. - In Nagaraj case in paragraph 80, it is stated that while “applying the ‘creamy layer’
test, this Court held that if roster-point promotees are given consequential seniority, it will
violate the equality principle which is part of the basic structure of the Constitution and in
which even Article 16(4-A) cannot be of any help to the reserved category candidates.” This
was with reference to the observations made in Indra Sawhney case and earlier in M.G.
Badappanavar v. State of Karnataka [(2001) 2 SCC 666]; Ajit Singh (II) v. State of Punjab
[(1999) 7 SCC 209] and Union of India v. Virpal Singh Chauhan [(1995) 6 SCC 684].
Virpal Singh Chauhan case dealt with reservation of railway employees wherein it is held
that once the number of posts reserved for being filled by reserved category candidates in a
cadre, category or grade (unit for application of rule of reservation) are filled by the operation
of roster, the object of the rule of reservation should be deemed to have been achieved. Ajit
Singh II case dealt with consequential seniority on promotion and held that roster points
fixed at Level 1 are not intended to determine any seniority at Level 1 between general
candidates and the reserved candidates and the roster point merely becomes operative
whenever a vacancy reserved at Level 2 becomes available. Thereby holding that if
promotion is obtained by way of reservation, the consequential seniority will not be counted.
M.G. Badappanavar case followed the cases of Ajit Singh II and Virpal Singh. - In none of these decisions it is stated that the “creamy layer” principle would apply
to SCs and STs. In Indra Sawhney case, it is specifically stated that the “creamy layer”
principle will not apply to STs and SCs. In Nagaraj case, in paragraphs 110 and 120 and
finally in paragraphs 121, 122 and 123, it is only stated that when considering questions of
affirmative action, the larger principle of equality such as 50% ceiling (quantitative
limitation) and “creamy layer” (quantitative exclusion) may be kept in mind. In Nagaraj case
it has not been discussed or decided that the creamy layer principle would be applicable to
SCs/STs. Therefore, it cannot be said that the observations made in Nagaraj case are contrary
to the decision in Indra Sawhney’s case. - Moreover, the “creamy layer” principle is not yet applied as a principle of equality
or as a general principle to apply for all affirmative actions. The observations made by
Chinnappa Reddy, J. in K.C. Vasanth Kumar case are relevant in this regard. - So far, this Court has not applied the “creamy layer” principle to the general
principle of equality for the purpose of reservation. The “creamy layer” so far has been
applied only to identify the backward class, as it required certain parameters to determine the
backward classes. “Creamy layer” principle is one of the parameters to identify backward
classes. Therefore, principally, the “creamy layer” principle cannot be applied to STs and
SCs, as SCs and STs are separate classes by themselves. Ray, CJ., in an earlier decisions,
stated that “Scheduled Castes and Scheduled Tribes are not a caste within the ordinary
meaning of caste”. And they are so identified by virtue of the Notification issued by the
President of India under Articles 341 and 342 of the Constitution. The President may, after
consultation with the Governor, by public notification, specify the castes, races or tribes or
175
parts of or groups within castes, races or tribes which for the purpose of the Constitution shall
be deemed to be Scheduled Castes or Scheduled Tribes. Once the Notification is issued, they
are deemed to be the members of Scheduled Castes or Scheduled Tribes, whichever is
applicable. In E.V. Chinnaiah, concurring with the majority judgment, S.B. Sinha, J. said:
The Scheduled Castes and Scheduled Tribes occupy a special place in our
Constitution. The President of India is the sole repository of the power to specify the
castes, races or tribes or parts of or groups within castes, races or tribes which shall
for the purposes of the Constitution be deemed to be Scheduled Castes. The
Constitution (Scheduled Castes) Order, 1950 made in terms of Article 341(1) is
exhaustive. The object of Articles 341 and 342 is to provide for grant of protection to
the backward class of citizens who are specified in the Scheduled Castes Order and
Scheduled Tribes Order having regard to the economic and education backwardness
wherefrom they suffer. Any legislation which would bring them out of the purview
thereof or tinker with the order issued by the President of India would be
unconstitutional. (Paras 52, 111 and 84). (emphasis supplied) - A plea was raised by the respondent-State that categorization of Scheduled Castes
could be justified by applying the “creamy layer” test as used in Indra Sawhney case which
was specifically rejected in paragraph 96 of the E.V. Chinnaiah case. It is observed:
But we must state that whenever such a situation arises in respect of Scheduled
Caste, it will be Parliament alone to take the necessary legislative steps in terms of
Clause (2) of Article 341 of the Constitution. The States concededly do not have the
legislative competence therefor. - Moreover, right from the beginning, the Scheduled Castes and Scheduled Tribes
were treated as a separate category and nobody ever disputed identification of such classes.
So long as “creamy layer” is not applied as one of the principles of equality, it cannot be
applied to Scheduled Castes and Scheduled Tribes. So far, it is applied only to identify the
socially and educationally backward classes. We make it clear that for the purpose of
reservation, the principles of “creamy layer” are not applicable for Scheduled Castes and
Scheduled Tribes. - Whether the principles laid down by the United States Supreme Court for affirmative
action such as “suspect legislation”, “strict scrutiny” and “compelling State necessity” are
applicable to principles of reservation or other affirmative action contemplated under
Article 15(5) of the Constitution of India? - Based on the Ninety-Third Constitutional Amendment Act, Act 5 of 2007 has been
enacted. According to the petitioner’s Counsel, this is a “suspect legislation” and therefore, it
is to be subjected to “strict scrutiny” as laid by the United States Supreme Court and only by
passing this test of “strict scrutiny”, such legislation could be put into practice. - At the outset, it must be stated that the decisions of the United States Supreme Court
were not applied in the Indian context as it was felt that the structure of the provisions under
the two Constitutions and the social conditions as well as other factors are widely different in
both the countries. Reference may be made to Bhikaji Narain Dhakras v. The State of
Madhya Pradesh [(1955) 2 SCC 589] and A.S. Krishna v. State of Madras [(1957) SCR
176
399] wherein this Court specifically held that the due process clause in the Constitution of the
United States of America is not applicable to India. - In Kesavananda Bharati [(1973) 4 SCC 225] case also, while considering the extent
and scope of the power of amendment under Article 368 of the Constitution of India, the
Constitution of the United States of America was extensively referred to and Ray, J., held:
The American decisions which have been copiously cited before us, were
rendered in the context of the history of the struggle against colonialism of the
American people, sovereignty of several States which came together to form a
Confederation, the strains and pressures which induced them to frame a Constitution
for a Federal Government and the underlying concepts of law and judicial approach
over a period of nearly 200 years, cannot be used to persuade this Court to apply their
approach in determining the cases arising under our Constitution. - It may also be noticed that there are structural differences in the Constitution of
India and the Constitution of the United States of America. Reference may be made to the
14th Amendment to the U.S. Constitution. Some of the relevant portions thereof are as
follows:
All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the State wherein they
reside. No State shall make or enforce any law which shall abridge the privileges and
immunities of citizens of the United States; nor shall any State deprive any person of
life, liberty or property without due process of law nor deny to any person within its
jurisdiction the equal protection of the laws. - Whereas in India, Articles 14 and 18 are differently structured and contain express
provisions for special provision for the advancement of SEBCs, STs and SCs. Moreover, in
our Constitution there is a specific provision under the Directive Principles of State Policy in
Part IV of the Constitution requiring the State to strive for justice ‘social, economic and
political’ and to minimize the inequalities of income and endeavour to eliminate inequalities
in status, facilities and opportunities (Article 38). Earlier, there was a view that Articles 16(4)
and 15(5) are exceptions to Article 16(1) and 15(1) respectively. - In T. Devadasan at 700, Subba Rao J., gave a dissenting opinion wherein he held
that Article 16(4) was not an exception to Article 16(1). He observed:
The expression ‘nothing in this article’ is a legislative device to express its
intention in a most emphatic way that the power conferred thereunder is not limited
in any way by the main provision but falls outside it. It has not really carved out an
exception, but has preserved a power untrammeled by the other provisions of the
Article. - In two other subsequent decisions, i.e., in Triloki Nath (I) at 104 and T. Devadasan
case, it was held that article 15(4) and 16(4) are exceptions to Article 15(1) and 16(1)
respectively. But a 7-Judge Bench in State of Kerala v. N.M. Thomas held that Article 15(4)
and 16(4) are not exceptions to Article 15(1) and 16(1) respectively. Fazal Ali J., said:
This form of classification which is referred to as reservation, is in my opinion,
clearly covered by Article 16(4) of the Constitution which is completely exhaustive
177
on this point. That is to say Clause (4) of Article 16 is not an exception to Article 14
in the sense that whatever classification can be made, can be done only through
Clause (4) of Article 16. Clause (4) of Article 16, however, is an explanation
containing an exhaustive and exclusive provision regarding reservation which is one
of the forms of classification. - This brought out a drastic change in the view of this Court. In K.C. Vasanth Kumar
v. State of Karnataka, Venkatramaiah J. observed:
Article 14 of the Constitution consists of two parts. It asks the State not to deny
to any person equality before law. It also asks the State not to deny the equal
protection of the laws. Equality before law connotes absence of any discrimination in
law. The concept of equal protection required the State to mete out differential
treatment to persons in different situations in order to establish an equilibrium
amongst all. This is the basis of the rule that equals should be treated equally and
unequals must be treated unequally if the doctrine of equality which is one of the
corner-stone of our Constitution is to be duly implemented. In order to do justice
amongst unequals, the State has to resort to compensatory or protective
discrimination. Article 15(4) and Article 16(4) of the Constitution were enacted as
measures of compensatory or protective discrimination to grant relief to persons
belonging to socially oppressed castes and minorities. - The amendment to Article 15 by inserting Article 15(5) and the new Act (Act 5 of
2007) are to be viewed in the background of these constitutional provisions. It may also be
recalled that the Preamble to the Constitution and the Directive Principles of State Policy give
a positive mandate to the State and the State is obliged to remove inequalities and
backwardness from society. While considering the constitutionality of a social justice
legislation, it is worthwhile to note the objectives which have been incorporated by the
Constitution makers in the Preamble of the Constitution and how they are sought to be
secured by enacting fundamental rights in Part III and Directives Principles of State Policy in
Part IV of the Constitution. The Fundamental Rights represent the civil and political rights
and the Directive Principles embody social and economic rights. Together they are intended
to carry out the objectives set out in the Preamble of the Constitution. Granville Austin, in his
book15, states:
Both types of rights have developed as a common demand, products of the
national and social revolutions, of their almost inseparable intertwining, and of the
character of Indian politics itself. - From the constitutional history of India, it can be seen that from the point of view of
importance and significance, no distinction can be made between the two sets of rights,
namely, Fundamental Rights which are made justiciable and the Directives Principles which
are made non-justiciable. The Directive Principles of State Policy are made non-justiciable
for the reason that the implementation of many of these rights would depend on the financial
capability of the State. Non-justiciable clause was provided for the reason that an infant State
shall not be made accountable immediately for not fulfilling these obligations. Merely
because the Directive Principles are non-justiciable by the judicial process does not mean that
they are of subordinate importance. In Champakam Dorairajan case, it was observed that
“the Directive Principles have to conform to and run subsidiary to the Chapter of
178
Fundamental Rights.” But this view did not hold for a long time and was later changed in a
series of subsequent decisions. - In Minerva Mills [(1980) 3 SCC 625], Bhagwati, J observed:
The Fundamental Rights are no doubt important and valuable in a democracy,
but there can be no real democracy without social and economic justice to the
common man and to create socio-economic conditions in which there can be social
and economic justice to every one, is the theme of the Directive Principles. It is the
Directive Principles which nourish the roots of our democracy, provide strength and
vigour to it and attempt to make it a real participatory democracy which does not
remain merely a political democracy with Fundamental Rights available to all
irrespective of their power, position or wealth. The dynamic provisions of the
Directive Principles fertilise the static provisions of the Fundamental Rights. The
object of the Fundamental Rights is to protect individual liberty, but can individual
liberty be considered in isolation from the socio-economic structure in which it is to
operate. There is a real connection between individual liberty and the shape and form
of the social and economic structure of the society. Can there be any individual
liberty at all for the large masses of people who are suffering from want and privation
and who are cheated out of their individual rights by the exploitative economic
system? Would their individual liberty not come in conflict with the liberty of the
socially and economically more powerful class and in the process, get mutilated or
destroyed? It is exiomatic that the real controversies in the present day society are not
between power and freedom but between one form of liberty and another. Under the
present socio- economic system, it is the liberty of the few which is in conflict with
the liberty of the many. The Directive Principles therefore, impose an obligation on
the State to take positive action for creating socio- economic conditions in which
there will be an egalitarian social order with social and economic justice to all, so that
individual liberty will become a cherished value and the dignity of the individual a
living reality, not only for a few privileged persons but for the entire people of the
country. It will thus be seen that the Directive Principles enjoy a very high place in
the constitutional scheme and it is only in the framework of the socio-economic
structure envisaged in the Directive Principles that the Fundamental Rights are
intended to operate, for it is only then they can become meaningful and significant
for the millions of our poor and deprived people who do not have been the bare
necessities of life and who are living below the poverty level. - Article 46 enjoins upon the State to promote with special care the educational and
economic interests of the weaker sections of the people and to protect them from social
injustice and all forms of exploitation whereas under the Constitution of the United States of
America, we get an entirely different picture. Though equality was one of the solemn
affirmations of the American Declaration of Independence, slavery continued unabatedly and
it was, to some extent, legally recognized. In Dred Scott v. Saunders [60 US 393 (1856)]
wherein Chief Justice Taney held that [African-Americans] were not entitled to get
citizenship. He was of the view that ‘once a slave always a slave’, and one slave never would
become the citizen of America. This view held by the Chief Justice Taney continued for a
long time and after the Civil War, the 14th amendment was enacted in 1868 and this
179
amendment gave (equal protection of laws to all persons). In Plassy v. Ferguson [163 US
537 (1896)] which involved a challenge to a Louisiana statute that provided for equal but
separate accommodations for black and white passengers in trains, the United States Supreme
Court was of the view that racial segregation was a reasonable exercise of State police power
for the promotion of the public good and upheld the law. Several affirmative actions were
challenged and the landmark decision of Brown v. Board of Education [347 US 483] was
delivered in 1954. In many cases, the strict scrutiny doctrine was being applied to all laws of
racial classifications. The learned Counsel for the petitioner made reference to Gratz v.
Bollinger and some of the earlier decisions of the United States Supreme Court. During the
past two decades, the Court has become sceptical of race-based affirmative action practiced or
ordered by the State. The Supreme Court of the US is of the view that affirmative action plans
must rest upon a sufficient showing or predicate of past discrimination which must go beyond
the effects of societal discrimination. - The 14th Amendment to the Constitution of the United States of America and Title
VI of the 1964 Civil Rights Act, prohibit universities to discriminate on the basis of
classifications such as race, colour, national origin and the like in all their operations. In a
number of decisions of the United States Supreme Court spanning decades of jurisprudence, a
heavy burden has been placed on institutions whose affirmative action programmes are
challenged before the United States Supreme Court on grounds that have been recognized as
suspect or unconstitutional. According to the United States Supreme Court, all such
programmes are inherently suspect since they rely on suspect forms of classification (such as
race). Therefore, because such forms of classification are inherently suspect, the courts have
subjected all affirmative action programmes relying on them to a very high standard of
scrutiny, wherein those practicing these affirmative action programmes have to adhere to a
very high standard of proof, which we know as the “strict scrutiny” test. - The case of Regents of the University of California v. Bakke [438 US 265 (1978)]
provided a starting point and from this case onwards, affirmative action programmes can be
justified only on two distinct grounds, and only these grounds have been recognized as
compelling enough so as to satisfy the “strict scrutiny” test, as developed by the United States
Supreme Court. The two grounds are as follows: - Remedial Justification – All efforts aimed at remedying past injustices against
certain identified groups of people, who were unlawfully discriminated against in the
past, serve as adequate justifications and all affirmative action programmes that are
implemented with this aim serve the compelling institutional interest in removing all
vestiges of discrimination that occurred in the past. In the case of City of Richmond
v. J A Croson Co. [488 U.S. 469 (1989)], the United States Supreme Court held that
if a university is able to show “some showing of prior discrimination” in its existing
affirmative action program furthering racial exclusion then the university may take
“affirmative steps to dismantle such a system”. However, it is to be noted that the US
Supreme Court also attached a warning with the above observation. While
scrutinizing such programmes, it was held that the Court would make “searching
judicial inquiry into the justification for such race-based measures… [and to] identify
that discrimination…with some specificity before they may use race – conscious
relief”. (Croson’s case p. 492-93)
180 - Diversity – All affirmative action programmes aimed at bringing about racial
diversity among the scholarship of the institution(s) may be said to in furtherance of
compelling institutional interest. The starting point for this ground is Justice Powell’s
detailed opinion regarding the issue of diversity in the case of Regents of the
University of California v. Bakke. In this case, according to Justice Powell, “[T]he
attainment of a diverse student body is clearly a constitutionally permissible goal for
an institution of higher education”. He quoted from two of the Supreme Court’s
decisions regarding academic freedom [Sweezy v. New Hampshire [(1957) 354 US
234, 263] and Keyishian v. Board of Regents [(1967) 385 US 589, 603] and
observed:
[I]t is the business of a university to provide that atmosphere which is most
conducive to speculation, experiment and creation…. The atmosphere of speculation,
experiment and creation – so essential to the quality of higher education – is widely
believed to be promoted by a diverse student body…. [I]t is not too much to say that
the nation’s future depends upon leaders trained through wide exposure to the ideas
and mores of students as diverse as this Nation of many peoples. - The other part of the “strict scrutiny” test is the “narrow tailoring” test. The
University, whose affirmative action programme is in question before the United States
Supreme Court, is required to prove that its affirmative action programme has been designed
in the narrowest possible manner, in order to benefit only those specific people who are to be
benefited, thus serving the “compelling purposes” of the affirmative action programme. The
program cannot be made in a broad manner to encompass a large group of people, and it has
to serve the minimum possible requirement, in order to achieve its goal. Otherwise, it may be
possible that the rights of other people may be infringed upon, which would make the
affirmative action programme unconstitutional. - Thus, the first limb of the strict scrutiny test that elucidates the “compelling
institutional interest” is focused on the objectives that affirmative action programmes are
designed to achieve. The second limb, that of “narrow tailoring”, focuses on the details of
specific affirmative action programmes and on the specific people it aims to benefit. - The United States Supreme Court has held that race may be one of the many factors
that can be taken into account while structuring an affirmative action programme. At this
stage, an analogy may be drawn with the Indian situation wherein the Supreme Court of
India, in various cases, has held that caste may be one of the factors that can be taken into
account, while providing for reservations for the socially and educationally backward classes.
However, caste cannot be the “only” factor, just as race alone cannot be the only factor in the
United States, while structuring reservation or affirmative action programmes. - Furthermore, the courts, both in India as well as in the United States of America,
have looked with extreme caution and care at any legislation that aims to discriminate on the
basis of race in the US and caste in India. As the US Supreme Court elucidated in the case of
Grutter v. Bollinger, “Because the Fourteenth Amendment “protect[s] persons, not group”
all governmental action based on race ought to be subjected to a very detailed and careful
judicial inquiry and scrutiny so as to ensure that the personal right to equal protection of the
laws has not been infringed.
181 - It therefore follows that the government may treat people differently because of their
race but only for those reasons that serve what is known as “compelling government interest”. - Furthermore, for any affirmative action programme to survive the strict standard of
judicial scrutiny, the Courts want “compelling evidence”, that proves without any doubt that
the affirmative action program is narrowly tailored and serves only the most compelling of
interests. Thus, the bar for the State or institution that practices affirmative action
programmes based of suspect classifications has been effectively raised. Therefore, in cases
where a compelling interest is found, race-based methods may be used only after all other
methods have been considered and found deficient, and that too only to that limited extent
which is required to remedy a discrimination that has been identified, and only when it has
been shown that the identified beneficiaries have suffered previously in the past, and lastly,
only if all undue burdens that may impinge upon the rights of other non-beneficiaries are
avoided. - The aforesaid principles applied by the Supreme Court of the United States of
America cannot be applied directly to India as the gamut of affirmative action in India is fully
supported by constitutional provisions and we have not applied the principles of “suspect
legislation” and we have been following the doctrine that every legislation passed by the
Parliament is presumed to be constitutionally valid unless otherwise proved. We have
repeatedly held that the American decisions are not strictly applicable to us and the very same
principles of strict scrutiny and suspect legislation were sought to be applied and this Court
rejected the same in Saurabh Chaudhari v. Union of India [(2003) 11 SCC 146]. Speaking
for the bench, V.N. Khare, CJI, said:
The strict scrutiny test or the intermediate scrutiny test applicable in the United
States of America as argued by Shri Salve cannot be applied in this case. Such a test
is not applied in Indian Courts. In any event, such a test may be applied in a case
where a legislation ex facie is found to be unreasonable. Such a test may also be
applied in a case where by reason of a statute the life and liberty of a citizen is put in
jeopardy. This Court since its inception apart from a few cases where the legislation
was found to be ex facie wholly unreasonable proceeded on the doctrine that
constitutionality of a statute is to be presumed and the burden to prove contra is on
him who asserts the same. - Learned Counsel Shri Sushil Kumar Jain contended that the classification of OBCs
was not properly done and it is not clear as to whose benefit the legislation itself is made
therefore, it is a suspect legislation. This contention cannot be accepted. We are of the view
that the challenge of Act 5 of 2007 on the ground that it does not stand the “strict scrutiny”
test and there was no “compellable State necessity” to enact this legislation cannot be
accepted. - Whether delegation of power to the Union Government to determine as to who shall be
the backward class is constitutionally valid? - The learned Counsel for the petitioners contended that though “Backward Class” is
defined under Section 2(g) of Act 5 of 2007, it is not stated in the Act how the “Backward
Class” would be identified and the delegation of such power to the Union of India to
determine as to who shall be the “backward class” without their being proper guidelines is
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illegal as it amounts to excessive delegation. According to the learned Counsel for the
petitioners, the Parliament itself should have laid down the guidelines and decided that who
shall be included in the backward class as defined under Section 2(g) of the Act 5 of 2007.
“Backward class” is not a new word. Going by the Constitution, there are sufficient
constitutional provisions to have an idea as to what “backward class” is. Article 340 of the
Constitution specifically empowers the President of India to appoint a Commission to
investigate the conditions of the socially and educationally backward classes within the
territory of India. Socially and educationally backward classes of citizens are mentioned in
Article 15(4) of the Constitution, which formed the First Amendment to the Constitution.
Backward class citizens are also mentioned in Article 16(4) of the Constitution. It is only for
the purpose of Act 5 of 2007 that the Union of India has been entrusted with the task of
determining the backward class. There is already a National Commission and also various
State Commissions dealing with the affairs of the backward class of citizens in this country.
For the purpose of enforcement of the legislation passed under Article 16(4), the backward
class of citizens have already been identified and has been in practice since the past 14 years.
It is in this background that the Union of India has been given the task of determining the
backward classes. The determination of backward classes itself is a laborious task and the
Parliament cannot do it by itself. It is incorrect to say that there are no sufficient guidelines to
determine the backward classes. Various parameters have been used and it may also be
noticed that if any undeserving caste or group of persons are included in the backward class,
it is open to any person to challenge the same through judicial review. Therefore, it is
incorrect to say that the Union of India has been given wide powers to determine the
backward classes. The challenge of Act 5 of 2007 on that ground fails. - Whether the Act is invalid as there is no time limit prescribed for its operation and no
periodical review is contemplated? - The learned Counsel for the petitioners contended that the reservation of 27%
provided for the backward classes in the educational institutions contemplated under the Act
does not prescribe any time limit and this is opposed to the principle of equality. According to
learned Counsel for the petitioners, this affirmative action that is to bring about equality is
calculated to produce equality on a broader basis by eliminating de facto inequalities and
placing the weaker sections of the community on a footing of equality with the stronger and
more power section so that each member of the community, whatever is his birth, occupation
or social position may enjoy equal opportunity of using to the full, his natural endowments of
physique, of character and of intelligence. This compensatory state action can be continued
only for a period till that inequality is wiped off. Therefore, the petitioners have contended
that unless the period is prescribed, this affirmative action will continue for an indefinite
period and would ultimately result in reverse discrimination. It is true that there is some force
in the contention advanced by the learned Counsel for the petitioners but that may happen in
future if the reservation policy as contemplated under the Act is successfully implemented.
But at the outset, it may not be possible to fix a time limit or a period of time. Depending
upon the result of the measures and improvements that have taken place in the status and
educational advancement of the socially and educationally backward classes of citizens, the
matter could be examined by the Parliament at a future time but that cannot be a ground for
striking down a legislation. After some period, if it so happens that any section of the
community gets an undue advantage of the affirmative action, then such community can very
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well be excluded from such affirmative action programme. The Parliament can certainly
review the situation and even though a specific class of citizens is in the legislation, it is the
constitutional duty of the Parliament to review such affirmative action as and when the social
conditions are required. There is also the safeguard of judicial review and the court can
exercise its powers of judicial review and say that the affirmative action has carried out its
mission and is thus no longer required. In the case of reservation of 27% for backward
classes, there could be a periodic review after a period of 10 years and the Parliament could
examine whether the reservation has worked for the good of the country. Therefore, the
legislation cannot be held to be invalid on that ground but a review can be made after a period
of 10 years. - What shall be the educational standard to be prescribed to find out whether any class is
educationally backward? - Learned Senior Counsel Shri P.P. Rao contended that under Article 15(5) of the
Constitution, the reservation or any other affirmative action could be made for the
advancement of only socially and educationally backward classes of citizens or Scheduled
Castes or Scheduled Tribes and the educational standard to be assessed shall be matriculation
or 10+2 and not more than that. It was argued that many castes included in the backward class
list have got a fairly good number of members who have passed 10+2 and thus such castes are
to be treated as educationally forward and the present legislation, namely, Act 5 of 2007, is
intended to give reservation to students in higher institutions of learning and the same is not
permissible under Article 15(5) of the Constitution. He contended that the Parliament should
not have made this legislation for reservation in the higher institutions of learning as it is not
part of the duty of the State under Article 46 of the Constitution. According to the learned
Counsel, education contemplated under Article 46 is only giving education upto the standard
of 10+2. The learned Counsel argued that this was the desire of the Founding Fathers of the
Constitution. The learned Counsel contended further that the State is not taking adequate
steps to improve primary education. - In reply to Shri P.P. Rao’s arguments, learned Solicitor General Shri G. E. Vahanvati
drew our attention to various steps taken by the Union Government to improve the primary
school education and also the upper primary school education. It is incorrect to suggest that
there have been no efforts on the part of successive Governments to concentrate on level of
education towards universal elementary education. “Sarva Shiksha Abhiyanm” (SSA) had
been launched by the Government in 2001-2002. The major components of SSA include
opening of new schools, distribution of teaching equipments, school grant for teachers and
maintenance for schools, community participation & training, carrying out civil works in
school buildings, additional class rooms, distribution of free text books for ST students and
girls. It was pointed out that in the year 2006-2007, nearly Rs. 15,000 crores had been spent
for such education. The Integrated Child Development Services (ICDS) scheme was started in - Latest figures show that progress has been made in the field of education. It is pointed
out that the primary school coverage has increased from 86.96% (2002) to 96% and that of
Upper Primary School has increased from 78.11% to 85.3% with the opening of 1.34 Lakh
Primary Schools and 1.01 lakh Upper Primary Schools. The gross enrolment has also
increased at the primary as well as upper primary stage. Drop out rate has fallen by 11.3%. It
is also pointed out that girls enrolment has increased from 43.7% (2001) to 46.7% (2004) at
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primary and from 40.9% to 44% at upper primary stage. The Union of India has granted funds
to various states for the purpose of meeting the education requirements. The entire details
were furnished to the Court and we do not think it necessary to go into these details. Though
at the time of attaining Independence, the basic idea was to improve primary and secondary
level education, but now, after a period of more than 50 years, it is idle to contend that the
backward classes shall be determined on the basis of their attaining education only to the
level of 10+2 stage. In India there are a large number of arts, science and professional
colleges and in the field of education, it is anachronistic to contend that primary education or
secondary education shall be the index for fixing backward class of citizens. We find no force
in the contention advanced by the learned Counsel for the petitioners and it is only to be
rejected. - Whether the quantum of reservation provided for in the Act is valid and whether 27%
of seats for SEBC was required to be reserved? - The main contention of the petitioner’s Counsel especially that of Shri Sushil Kumar
Jain is that the entire Act is liable to be set aside as there was no necessity to provide any
reservation to socially and educationally backward classes and according to him most of the
castes included in the list which is prepared in accordance with the Mandal Commission are
educationally very much advanced and the population of such group is not scientifically
collected and the population ratio of backward classes is projected only on the basis of the
1931 census and the entire legislation is an attempt to please a section of the society as part of
a vote catching mechanism. - A legislation passed by the Parliament can be challenged only on constitutionally
recognized grounds. Ordinarily, grounds of attack of a legislation is whether the legislature
has legislative competence or whether the legislation is ultra vires of the provisions of the
Constitution. If any of the provisions of the legislation violates fundamental rights or any
other provisions of the Constitution, it could certainly be a valid ground to set aside the
legislation by invoking the power of judicial review. A legislation could also be challenged as
unreasonable if it violates the principles of equality adumbrated in our Constitution or it
unreasonably restricts the fundamental rights under Article 19 of the Constitution. A
legislation cannot be challenged simply on the ground of unreasonableness because that by
itself does not constitute a ground. The validity of a constitutional amendment and the
validity of plenary legislation have to be decided purely as questions of constitutional law.
This Court in State of Rajasthan v. Union of India [(1977) SCC 592, 660] said:
(I)f a question brought before the Court is purely a politically question not
involving determination of any legal or constitutional right or obligation, the court
would not entertain it, since the Court is concerned only with adjudication of legal
rights and liabilities. - Therefore, the plea of the Petitioner that the legislation itself was intended to please
a section of the community as part of the vote catching mechanism is not a legally acceptable
plea and it is only to be rejected. - The quantum of reservation provided under the Act 5 of 2007 is based on the
detailed facts available with the Parliament. Various commissions have been in operation
determining as to who shall form the SEBCs. Though a caste-wise census is not available,
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several other data and statistics are available. In the case of Indra Sawhney, the Mandal
Commission was accepted in principle though the details and findings of the commissions
were not fully accepted by this Court. 27% of reservation in the matter of employment was
accepted by this Court. Petitioners have not produced any documents to show that the
backward class citizens are less than 27%, vis-a-vis, the total population of this country or
that there was no requirement of 27% reservation for them. The Parliament is invested with
the power of legislation and must be deemed to have taken into consideration all relevant
circumstances when passing a legislation of this nature. It is futile to contend whether
Parliament was not aware of the statistical details of the population of this country and,
therefore, we do not think that 27% reservation provided in the Act is illegal or on that
account, the Act itself is liable to be struck down.
Questions: - Whether the Ninety-Third Amendment of the Constitution is against the
“basic structure” of the Constitution?
The Constitution (Ninety-Third Amendment) Act, 2005 does not violate the
“basic structure” of the Constitution so far as it relates to the State-maintained
institutions and aided educational institutions. Question whether the Constitution
(Ninety-Third Amendment) Act, 2005 would be constitutionally valid or not so far
as “private unaided” educational institutions are concerned, is left open to be
decided in an appropriate case. - Whether Articles 15(4) and 15(5) are mutually contradictory, hence
Article 15(5) is to be held ultra vires?
Article 15(5) is constitutionally valid and Articles 15(4) and 15(5) are not
mutually contradictory. - Whether exclusion of minority educational institutions from Article
15(5) is violative of Article 14 of Constitution?
Exclusion of minority educational institutions from Article 15(5) is not violative
of Article 14 of the Constitution as the minority educational institutions, by
themselves, are a separate class and their rights are protected by other constitutional
provisions. - Whether the Constitutional Amendment followed the procedure
prescribed under Article 368 of the Constitution?
The Ninety-Third Amendment of the Constitution does not affect the executive
power of the State under Article 162 of the Constitution and hence, procedure
prescribed under Proviso to Article 368(2) is not required to be followed. - Whether the Act 5 of 2007 is constitutionally invalid in view of definition
of “Backward Class” and whether the identification of such “Backward Class”
based on “caste” is constitutionally valid?
Identification of “backward class” is not done solely based on caste. Other
parameters are followed in identifying the backward class. Therefore, Act 5 of 2007
is not invalid for this reason.
186 - Whether “Creamy Layer” is to be excluded from SEBCs?
“Creamy Layer” is to be excluded from SEBCs. The identification of SEBCs
will not be complete and without the exclusion of “creamy layer” such
identification may not be valid under Article 15(1) of the Constitution. - What should be the para-meters for determining the “creamy layer”
group?
The parameters contained in the Office Memorandum issued by the
Government of India, Ministry of Personnel, Public Grievances and Pensions
(Department of Personnel and Training) on 08.09.1993 may be applied. And the
definition of “Other Backward Classes” under Section 2(g) of the Act 5 of 2007
should be deemed to mean class or classes of citizens who are socially and
educationally backward, and so determined by the Central Government; and if the
determination is with reference to caste, then the backward class shall be after
excluding the creamy layer. - Whether the “creamy layer” principle is applicable to Scheduled Tribes
and Scheduled Castes?
“Creamy Layer” principle is not applicable to Scheduled Castes and Scheduled
Tribes. - Whether the principles laid down by the United States Supreme Court
for affirmative action such as “suspect legislation”, “strict scrutiny” and
“compelling State necessity” are applicable to principles of reservation or
other affirmative action contemplated under Article 15(5) of the Constitution?
The principles laid down by the United States Supreme Court such as “suspect
legislation”, “strict scrutiny” and “compelling State necessity” are not applicable for
challenging the validity of Act 5 of 2007 or reservations or other affirmative action
contemplated under Article 15(5) of the Constitution. - Whether delegation of power to the Union Government to determine as
to who shall be the backward class is constitutionally valid?
The delegation of power to the Union Government to determine as to who shall
be the “other backward classes” is not excessive delegation. Such delegation is
constitutionally valid. - Whether the Act is invalid as there is no time limit prescribed for its
operation and no periodical review is contemplated?
The Act 5 of 2007 is not invalid for the reason that there is no time limit
prescribed for its operation, but a review can be made after a period of 10 years. - What shall be the educational standard to be prescribed to find out
whether any class is educationally backward?
The contention that educational standard of matriculation or (10+2) should be
the benchmark to find out whether any class is educationally backward is rejected. - Whether the quantum of reservation provided for in the Act is valid
and whether 27% of seats for SEBC was required to be reserved?
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27% of seats for other backward classes is not illegal and the Parliament must be deemed
to have taken into consideration all relevant circumstances when fixing the 27% reservation.
These Writ Petitions are disposed off in light of the above findings, and the “Other
Backward Classes” defined in Section 2(g) of Act 5 of 2007 is to be read as “Socially and
Educationally Backward Classes” other than Scheduled Castes and Scheduled Tribes,
determined as ‘Other Backward Classes’ by the Central Government and if such
determination is with reference to caste, it shall exclude “Creamy Layer” from among such
caste.
