Holding

The Constitution (Ninety-Third Amendment) Act, 2005 is valid and does not violate the basic structure of the Constitution so far as it relates to State maintained institutions and aided educational institutions, and Act 5 of 2007 is constitutionally valid subject to the exclusion of the 'creamy layer' from the definition of 'Other Backward Classes' when determination is with reference to caste.

Summary

The case challenged the constitutional validity of the Constitution (Ninety-Third Amendment) Act, 2005, which inserted Article 15(5) into the Constitution, and the Central Educational Institutions (Reservation in Admission) Act, 2005 (Act 5 of 2007), which provided 15% reservation for Scheduled Castes, 7.5% for Scheduled Tribes, and 27% for Other Backward Classes in Central Educational Institutions. The petitioners argued that the amendment violated the basic structure of the Constitution, that Articles 15(4) and 15(5) were mutually contradictory, that the exclusion of minority institutions violated Article 14, that the identification of backward classes based on caste was unconstitutional, and that the creamy layer should be excluded. The Constitution Bench held that the 93rd Amendment was valid and did not violate the basic structure so far as it related to State maintained and aided educational institutions, leaving open the question regarding private unaided institutions. The Court held that Act 5 of 2007 was constitutionally valid subject to the clarification that the definition of 'Other Backward Classes' in Section 2(g) must exclude the 'creamy layer' when determination is with reference to caste. The Court also held that the 27% reservation for OBCs was not illegal, that the creamy layer principle was not applicable to SCs/STs, that US Supreme Court doctrines of strict scrutiny and suspect legislation were not applicable in India, and that the delegation of power to the Union Government to determine backward classes was constitutionally valid. The Court recommended periodic review of reservation after 5-10 years.

Issues considered

Whether the Ninety-Third Amendment of the Constitution is against the 'basic structure' of the Constitution?
Whether Articles 15(4) and 15(5) are mutually contradictory, hence Article 15(5) is to be held ultra vires?
Whether exclusion of minority educational institutions from Article 15(5) is violative of Article 14 of Constitution?
Whether the Constitutional Amendment followed the procedure prescribed under Article 368 of the Constitution?
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?
Whether 'Creamy Layer' is to be excluded from SEBCs?
What should be the parameters for determining the 'creamy layer' group?
Whether the 'creamy layer' principle is applicable to Scheduled Tribes and Scheduled Castes?
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?
Whether delegation of power to the Union Government to determine as to who shall be the backward class is constitutionally valid?
Whether the Act is invalid as there is no time limit prescribed for its operation and no periodical review is contemplated?
What shall be the educational standard to be prescribed to find out whether any class is educationally backward?
Whether the quantum of reservation provided for in the Act is valid and whether 27% of seats for SEBC was required to be reserved?

Legislation cited

Central Educational Institutions (Reservation in Admission) Act, 2005 (Act 5 of 2007)s. 2, s. 3, s. 4, s. 5
Constitution (Eighty‑sixth Amendment) Act, 2002
Constitution (First Amendment) Act, 1951
Constitution (Forty‑second Amendment) Act, 1976
Constitution (Ninety‑third Amendment) Act, 2005
Constitution of Indias. 14, s. 15, s. 16, s. 162, s. 19, s. 21, s. 21A, s. 245, s. 246, s. 247, s. 248, s. 249, s. 250, s. 251, s. 252, s. 253, s. 254, s. 255, s. 29, s. 30, s. 335, s. 340, s. 341, s. 342, s. 368, s. 38, s. 46
National Commission for Backward Classes Act, 1993s. 10, s. 11, s. 2, s. 9

Subjects

Basic structure doctrineReservationAffirmative actionOther Backward Classes (OBC)Creamy layerArticle 15(5)Constitution (Ninety-Third Amendment) Act, 2005Caste-based classificationEducational institutionsEqualityStrict scrutinySuspect legislationCompelling state necessityDelegation of powerJudicial review

Judgment

..
(2008] 4 S.C.R. 1

, ASHOKA KUMAR THAKUR A
v.
UNION OF INDIA & ORS ..
(Writ Petition (Civil) No. 265 of 2006)
. APRIL 10, 2008 ·
.B
(K.G. BALAKRISHNAN, C.J. AND DR..ARIJIT PASAYAT;
C.K. THAKKER, R.V. RAVEENDRAN & DALVEER
BHANDARI, JJ,)

.Constitution (Ninety Third Amendment) Act, 20051 c
Central Educational Institutions (Reservation in ·Admission) . .
Act, 2005 (Act 5 of 2007):
Whether violative ol the "basic· structure" of the
Constitution in. so far as it relates fo the state maintained
,· institutions and aided educational institutions - Held not D
violative - However, in so far as "private unaided" educational
institutions are concerned, the question left open to .be decided
..in appropriate case.
Constitutional validity in view of definition of "backwaid E
·class" - Whether identification of such "backward class" based
on "caste" is constitutionally valid - ·Held; Valid.
Constitutional validity of since the Amending Act does
not prescribe any time limit for its operation and no periodical
review is contemplated - Held, valid, but a periodical review F
can qe made at the end of every ~ years. .
· . · Whether the quantum of reservation provided in the Act .
is valid and whether 27% of seats for SEBC was· required to
be made - Held valid - Parliament must be deemed to have
. taken into consideration all relevant circumstances while fixing G
the 27% reservation.
Articles 15(4) and 15(5) - Held not mutually contradictory.
..
Articles 14 and 15(5) - Exclusion ofminority educational
1 H
2 SUPREME COURT REPORTS [2008] 4 S.C.R.

A institutions from Article 15(5) - Not violative of Article 14.
Article 15 and s.2(g) of the Act 5 of 2007 - Creamy layer
- Creamy fayer is to be excluded from SEBS - Parameters
for determining the "creamy layer' group - Applicability of the
0. M. dated 8.9. 1993 - Applicability of "creamy layer principle"
B to SC/ST - Held not applicable.
Article 15(5) - Principles of reservation or other
affirmative action -Applicability of principles laid down by U.S.
Supreme Court - Held not applicable.

C Other Backward Classes- Determination of- Delegation
of power to Union Government - Held, constitutionally valid.
Educationally backward class - Prescribing benchmark
of matriculation or 10+2 rejected.
D Articles 162 and 368 - Constitution 93rd Amendment
dof)s not affect the executive power of the State - Hence
procedure prescribed under proviso to Article 368(2) not
required to be followed.

Words & Phrases:
E
"Basic structure of the constitution", "backward class",
"caste", "creamy layer", "su~pect legislation", "strict scrutiny",
"compelling state necessity" - Meaning of.
The validity of the Constitution (Ninety Third)
F Amendment Act, 2005 was challenged in the Writ Petitions
before the Constitution Bench on being referred to it by a
Division Bench, on various grounds.
On the basis of the diverse contentions raised, the
G following questions were formulated:
1. Whether the Ninety~Third Amendment of the
Constitution is against the " basic structure" of the
Constitution?
2. Whether Articles 15(4) and 15(5) are mutually
H
' I

ASHOKA KUMAR THAKUR v. UNION OF !NOIA & ORS. 3

contradictory, hence Article 15(5) is to be held ultra vires? A
3. Whether exclusion of minority educational
institutions from Article 15(5) is violative of Article 14 of
Constitution?
4. Whether the Constitutional Amendment followed B
the procedure prescribed under Article 368 of the
Constitution?
5. 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 c
"caste" is constitutionally valid?
6. Whether "Creamy Layer" is to be excluded from
SEBCs?
7. What should be the para-meters for determining D
the "creamy _layer" group?
8. Whether the "creamy layer" principle is applicable
to Scheduled Tribes and Scheduled Castes?
9. Whether the principles laid down by the United E
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? F
r 10. Whether delegation of power to the Union
Government to determine as to who shall be the backward
class is constitutionally valid?
11. Whether the Act is invalid as there is no time limit G
prescribed for its operation and. no periodical review is
contemplated?
12. What shall be the educational standard to be
prescribed to find out whether any class is educationally
backward? H
4 SUPREME COURT REPORTS [2008} 4 S.C.R.

A 13. Whether the quantum of reser'Vation provided for
in the Act is valid and whether 27% of seats for SEBC
was required to be reserved?
Disposing of the petitions, the Court
B HELD: By the Court: 1.1 The Constitution 93rd
Amendment Act, 20051 is valid and does not violate the
"basic structure 11 of the Constitution so far as it relates to
the· State maintained institutions and aided educational
institutions. Question whether the Constitution (Ninety
C Third Amendment) Act, 2005 would be constitutionally
valid or not so far as "private unaided" educational
institutions is concerned, is not considered and left open
to be decided in an appropriate case. [Para 1] [469-D-E]
1.2 Bhandari, J. in his opinion! has, however,
o considered the issue and has held that the Constitution
(Ninety Third Amendment) Act, 2005 is not constitutionally
v~lid sofar as private un-aided educational institutions are
concerned. [Para 1] [469-E-F]
2.1 Act 5 of 2007 is constitutionally valid subject to
E the definition of 'Other Backward Classes' in Section 2(g)
of the Act 5 of 2007 being clarified as follows : If the
determination of 'Other Backward Classes' by the Central
Government is with reference to a .caste, it shall exclude
the 'creamy layer' among such caste. [Para 2] [469-F-H;
F 41'0-A]
2.2 Quantum of reservation of 27% of seats to Other
Backward Classes in the educational institutions provided
In the Act is not illegal. [Para 2] [470-A]
G 2.3 Act 5 of 2007 is not invalid for the reason that
there is no time limit prescribed for its operation but
majority of the Judges are of the view that the Review
should be made as to the need for continuance of
reservation at the end of 5 ye~rs. [Para 2] (470-B]
H Per K.G. Balakrishnan, CJ:
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 5

1.1 For determining whether a particular feature of A
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 B
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 cha·11enge is c
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's
case did not hold that all facets of Article 14 or any of the
fundamental rights would form part of the basic structure
0
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- E
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 a-nd supremely
. precious concept for our society. It is t~ue that it has
embraced a critical and essential · component of F
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 G
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 H
6 SUPREME COURT REPORTS [2008] 4 S.C.R.

A purpose and principles that are the continuous and
unalterable thread of constitutional identity. It is not the
introduction of significant and far-reaching change that
is objectionable, rather it is the content of this change in
so far as it implicates the question of constitutional
B identity. [Para 93] [120-E-H; 121-A-E]
1.2 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
C 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 that the present
Constitutional Ninety-Third Amendment Act, 2005 alters
the basic structure of the constitution is of no force.
D Moreover, the interpretation of the Constitution shall not
be in a narrow pedantic way. [Para 95] [122-D, E, F]
1.3 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
E 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. [Para 96] [123-8, C]
F
1.4 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
G 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
H
' ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 7

which enables the State Legislatures or Parliament to A
). . make sach legislation - are all questions to be decided in
a properly constituted /is between the affected parties and
others who support such legislation. [Para 97] [123-C-F]
His Holiness Kesavananda Bharati Sripadagalvaru Vs.
=
State of Kera/a (1973) Supp. SCR 1 (1973) 4 SCC 225 RE : B
The Berubari Union and Exchange of Enclaves, Reference
under Article 143(1) of the Constitution of India (1960) 3 SCR
-1 250 and Smt. Indra Gandhi Vs. Raj Narain (1976) 2 SCR 347:
AIR 1975 SC 2299 - relied on.
c
I.C. Golak Nath & Ors. Vs. State of Punjab & Anrs (1967)
2 SCR 762 - referred to.
2.1 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 D
by this Court in Champakam Dorairajan's case. In Unni
Krishnan , this Court held that Article 19(1 )(g) is not
attracted for establishing and running educational
institutions. However, in TM.A. Pai Foundation case, it was
held that the right to establish and running educational E
institutions is an occupation within the meaning of Article
19(1 )(g). The scope of the decision in T. M.A. Pai
Foundation's case was later explained in PA. lnamdar's
case. It was held that as regards unaided institutions,
the State has no control and such institutions are free F
,. to admit students of their own choice. The said decision
necessitated the enactment of the Constitution Ninety-
Third Amendment Act, 2005. [Para 100] [124-G, H;
125-A, B]
2.2 Both Article 15(4) and 15(5) operate in different G
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 H
8 SUPREME COURT REPORTS [2008] 4 S.C.R.

A Constitution. It is a well settled principle of constitutional
interpretation that whi le 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
B 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
C they be aided or unaided. But in the case of Article 15(5),
the minority educational institutions, whether aided or
unaided, are excluded flrom 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) or 15(5) have to be
D examined on the basis of provisions contained in such
legislation or the special provision that may be made under
Article 15(4) or 15(5). It may also be noticed that no
educational institutions or any aggrieved party have
come before this Court challenging the constitutional
E 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 mutual~y contradictory and, therefore, Article 15(5) is
not constitutionally valid cannot be accepted. As has been
F held in N. M. Thomas case and Indra Sawhney's 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 constitutional mandate and thus it is
G' constitutionally valid and the contentions raised on
these grounds are rejected. [Para 100] (124-G; 125-A-H;
126-A-B]
Indra Sawhney Vs. Union of India & Ors. 1992 Supp. (3)
SCC 215 and State of Kera/a & Anr. Vs N.M. Thomas & Ors.
H 1976 (2) SCC 310 - relied on.
• ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 9

Unni Krishnan, J.P & Ors. Vs. State of Andhra Pradesh A
.~ . & Ors. 1993 (1) SCC 645; T. M.A. Pai Foundation & Ors. Vs .
State of Karnataka & Ors. 2002 (8) SCC 481; The State of
Madras Vs. Srimathi Champakam Dorairajan 1951 SCR 525
and PA. lnamdar & Ors. Vs. State of Maharashtra & Ors.
(2005) 6 sec 537 - referred to. B
3. 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 c
this Court to vindicate their rights. No such petition has
been filed before this Court. Therefore, it is held that the
exclusion of minority educational institutions from Article
15(5f is not violative of Article 14 of the Constitution as
the minority educational institutions, by themselves, are D
a separate class and their rights are protected by other
-\
constitutional provisions. [Para 102] [126-G; 127-A-B]
4. The powers of the Parliament and the State
legislatures to legislate are provided for under Article 245- E
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 subjectto and limited
by the executive power expressly conferred by the F
Constitution or by any law made by Parliament upon the
r
· Union authorities thereof. The Ninety-Third Constitutional
Amendment does not expressly or impliedly take away
any such power conferred by Article 162. It may also be
noticed that by virtue of the 42"d Amendment to the G
Constitution, "education" which was previously in Entry
No. 11 in List II was deleted and inserted in List Ill as Entry
No. 25 as the field of legislation in List Ill. Article 245 will
_j
operate and by reasons of proviso to Article 162, the
executive power of the State be subjectto, limited by, the
H
10 SUPREME COURT REPORTS [2008] 4 S.C.R.

A executive power expresslly 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 bE!en in existence. Such power of
the State is not limited cir curtailed by the Ninety-Third
B 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 that the
Ninety-Third Constitutionail Amendment did not follow the t

c prescribed procedure of Article 368 is not correct and the
plea is only to be rejected. [Para 104] (127-E-G; 128-A-C]
5.1 "Caste" is often used interchangeably with
"class" and can be callE!d as the basic unit in social
stratification. The most characteristic thing about a caste
D 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 puriity or cleanliness. Sometimes it
restricts occupational choices as well. It is not necessary
E that these rules be enforced in particular classes as well,
and as such a "class" may be distinguished from the
broader realm of "caste" c>n these grounds. Castes were
often rated, on a purity scale, and not on a social scale.
[Para 124] [139-E-F]
F 5.2 A class always enjoys certain privileges or at least
certain advantages over others in society. When it is more -1

or less rigorously closed, 1:>r enjoys hereditary privileges,
it is called a "caste". [Para 130] [142-B]
5.3 There is every reason to believe that within a
G
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. [Para 135] (143-D-E]
H 5.4 In India, caste, in a socio-organizational manner
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 11

would mean that it is not characterized merely by the A
..- 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 B
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 C
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 D
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 E
organizations. It may be said, therefore, that a caste is
a horizontal division and a class, a vertical division.
[Paras 136, 137, 138] [143-E-H; 144-A-B]
5.5 It was pointed out that the National Commission
for the Backward Classes and the State Commission for F
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 G
Commissions held public hearings at various places and
the National Commission held 236 public hearings before
.J. 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 H
12 SUPREME COURT REPORTS (2008] 4 S.C.R.

A time rejected 288 requests for inclusion of the main castes.
It is further pointed 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
B 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/ r •
c 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 backwardnuss, it cannot be said that it would
be violative of Article 15(1) of the Constitution. Thus, the
0
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. [Para 140, 141, 142] >
[144-D-H; 145-A, B]
E Indra Sawhney Vs. Union of India & Ors. 1992 Supp. (3)
sec 21.5 - relied on.
The State of Madras Vs. Srimathi Champakam
Dorairajan 1951 SCR 52!5; R. Chitralekha & Anr. Vs. State of
Mysore & Ors. (1964) 6 SCR 368; M.R. Balaji & Others Vs.
F State of Mysore (1963) Supp. 1SCR439 =AIR 1963 SC 649;
State of .Kera/a & Anr. Vs N. M. Thomas & Ors. 1976 (2) SCC
31 O; K. C. Vasanth Kumar & Anr. Vs. State of Karnataka (1985)
Supp SCC 714; Minor A Peeriakaruppan & Anr. Vs. State of
Tamil Nadu & Ors. (1971) 1 SCC 38; Minor P Rajendran Vs.
G State of Madras & Ors.(1968) 2 SCR 786; Triloki Nath Tiku
Vs. State of J & K (I) (1967) 2 SCR 265; State ofUttar Pradesh
& Ors. Vs. Pradip Tandon & Ors. (1975) 1 SCC 267; State of
Andhra Pradesh & Anr. Vs. P Sagar (1968) 3 SCR 595 and T.
Devadasan Vs. The Union of India & Anr. (1964) 4 SCR 680 -
H referred to.
I
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 13

Mysore Census of 1901 G.S. Ghurye, Caste and Race A
in India (Bombay, 1979) p. 6, Quoting from Mysore Census,
1901, p. 400 - referred to.
WH.R. Rivers, Social Organization (New York, 1924)
p.143; Lowie Robert H. Lowie, The Origin of the State (New
York, 1927) p. 21; Lowie, An Introduction to Cultural B
Anthropology (New York, 1940) p. 268; Kimball Young, An
Introductory Sociology (New York, 1924); Cecil Clare North
1 Cecil Clare North, Social Differentiation (Chapel Hill, 1926)
p. 254; Maciver R.N. Maciver, Society: A textbook of
Sociology (New York 1937) p. 171. 9 and Charles Horton C
Cooley Charles Horton Cooley, Social Organization (New
York, 1909) p. 215 - referred to.
6.1 Determination of backward class cannot be
exclusively based on caste. Poverty, social
backwardness, economic backwardness, all are criteria D
for determination of backwardness. It has been noticed
' in Indra Sawhney's 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 E
and educationally advanced enough to compete for the
general seats along with other candidates. [Para 147]
[147-D, E, F]
6.2 It is to be understood that "creamy layer" principle
~ is introduced merely to exclude a section of a particular F
caste on the ground that they are economically advanced
or educationally forward. They are excluded because
unless this segment of caste is excluded from that caste
group, there cannot be proper identification of the
backward class. If the "Creamy Layer" principle is not G
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 H
14 SUPREME COURT REPORTS [2008) 4 S.C.R.

A 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. [Para 149]
B [148·B·E]
6.3 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
c the SEBC is poverty. If that be so, the principle of exclusion
of "creamy layer" is necessary. Moreover, the majority in
Indra Sawhney's case upheld the exclusion of "creamy
layer" for the purpose of reservation in Article 16(4).
Therefore, it cannot be said that the "creamy layer"
D 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,
E 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
F so, it would be unreasonablle, discriminatory or arbitrary,
resulting in reverse discrimination. [Para 150] [148-E, F, G,
H; 151-A, B]
6.4 It cannot be said that if 'creamy layer' is excluded,
there may be practically no representation for a particular
G backward class in educational institutions because the
remaining members, namely, the non-craamy 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
H wi.11 not be complete and any SEBC without the exclusion
\ I

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS .. 15

of 'creamy layer' may not be in accordance with Article A
~ 15(1) of the Constitution. [Para 152] [149-G; 150-A]
Indra Sawhney Vs. Union of India & Ors. 1992 Supp. (3)
. sec 215 - relied on.
7.1 It is made clear that same principle of determining B
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. If a strict income restriction is
made for identifying the "creamy layer", those who are c
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
D
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 E
State can issue appropriate guidelines to effectuate
the implementation of the reservation purposefully.
[Para 154) (160-D-G; 161-A]
7.2 "Backward class" defined in Section 2(g) does F
t not exclude "creamy layer". Therefore, it is made 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".
[Para 155) [161-A-B]
G
Indra Sawhney Vs. Union of India & Ors. 1992 Supp. (3)
sec 215 - referred to .
•..4
8.1 In Indra Sawhney's case, it is specifically stated that
the "creamy layer" principle will not apply to STs and SCs.
H
16 SUPREME COURT REPORTS (2008] 4 S.C.R.

A In Nagaraj's 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
B be kept in mind. In Nagaraj's 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's case
are contrary to the decision in Indra Sawhney's case. [Para
c 159] [162-E-G; 163-A]
8.2 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. [Para 160] [163-B]
8.3 So far, this Court has not applied the "creamy
D
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 f
required certain paramet1~rs to determine the backward
'classes. "Creamy layer" principle is one of the parameters
E to identify backward classes. Therefore, principally, the
''creamy layer" principle cannot be applied to STs and
$Cs, as SCs and STs are s;eparate classes b5' themselves.
"Scheduled Castes and Scheduled Tribes are not a caste
within the ordinary meaning of caste". And they are so
F 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 parts of or groups within castes, races
G or tribes which for the purpose of the Constitution shall
be deemed to be Scheduled Castes of Scheduled Tribes.
Once the Notification is Jssued, they are deemed to be
the members of Scheduled Castes or Scheduled Trtbes,
whichever is applicable. [Para 161] [163-G; 164-A-C]
H
I I

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 17

8.4 Right from the beginning, the Scheduled Castes A
+- 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 B
identify the socially and educationally backward classes.
It is clarified that for the purpose of reservation, the
principles of "creamy layer" are not applicable for
Scheduled Castes and Scheduled Tribes. [Para 163]
[165-C-D]
c
Indra Sawhney Vs. Union of India & Ors. 1992 Supp. (3)
SCC 215; /.R. Coelho (Dead) by LRs. Vs. State of TN. (2007)
2 SCC 1; E. V Chinnaiah Vs. State of Andhra Pradesh & Ors.
(2005) 1 SCC 394; State of Kera/a & Anr. Vs N. M. Thomas &
Ors. 1976 (2) SCC 31 O; K. C. Vasa nth Kumar & Anr. Vs. State D
of Kamataka (1985) Supp SCC 714; M.G Badappanavar &
Anr. Vs. State of Karnataka & Ors. (2001) 2 SCC 666; Ajit
Singh & Ors. (//) vs. State of Punjab & Ors. (1999) 7 SCC 209
and Union of India & Ors. Vs. Virpal Singh Chauhan & Ors.
(1995) 6 sec 684 - referred to.
E
9.1 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 o~her factors are
widely different in both the countries. [Para 165] [165-H; F
166-A]
9.2 There are structural differences in the Constitution
of India and the Constitution of the United States of
America. Whereas in India, Articles 14 and 18 are differently
structured and contain express provisions for special G
provision for the advancement of SEBCs, STs and SCs.
Moreover, in our Constitution there is a specific provision
.J
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 H
\ I

f
18 SUPREME COURT REPORTS [2008] 4 S.C.R.

A 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.
[Paras 167, 168] [167-B, E, F]
B 9.3 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
C 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
WCJS provided for the reason that an infant State shall not
D 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. [Para 173] [170-A-C]
9.4 The 14th Amendment to the Constitution of the
E 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
F decades of jurisprudence, a heavy burden has been
placed on institutions whose affirmative action
programmes are challenged before the United States
St,1preme Court on grounds that have been recognized
as suspect or unconstitutional. According to the United
G 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
H on them to a very high standard of scrutiny, wherein
I I

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 19

those practicing these affirmative action programmes A
-+ have to adhere to a very high standard of proof, which
we know as the "strict scrutiny" test. [Para 176] [172-G;
173-A-D]
· 9.5 All efforts aimed at remedying past injustices
against certain identified groups of people, who were B
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. C
[Para 177] [173-F-G]
9.6 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
0
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 E
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. F
[Para 178] [175-A-C]
9.7 The first limb of the strict scrutiny test that
elucidates the "compelling institutional interest" is
focused on the objectives that affirmative action G
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. [Para 179) [175-D-E]
9.8 Furthermore, the courts, both in India as well as H
20 SUPREME COURT REPORTS [2008] 4 S.C.R.

A in the United States of Ameri1ca, 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. It therefore follows that the Gove.rnment may treat
people differently because of their race but only for those
B reasons that serve what is known as "compelling
Government interest". [Paras 181, 182] [175-G; 176-8-C]
9.9 For any affirmative action programme to survive
the strict standard of judicial scrutiny, the Courts want
"compelling evidence", that proves without any doubt
c 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 on suspect classifications has
been effectively raised. Therefore, in cases where a
D 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
E 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.
[Para 183] [176-C-E]
9.10 The principles applied by the Supreme Court of
F 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 have not
applied the principles of "suspect legislation" and have
been following the doctrine that every legislation passed
G by the Parliament is presumed to be constitutionally valid
unless otherwise proved. The American decisions are not
strictly applicable to India. Thus, the challenge to Act 5 of

- 2007 on the ground that it does not stand the "strict
scrutiny" test and there was no "compellable State
H necessity" to enact this legislation cannot be accepted.
),
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 21

[Paras 184, 185] [176-F-H; 177-A, E] A
The State of Madras Vs. Srimathi Champakam
Dorairajan 1951SCR525; Minerva Mills Ltd. & Ors. Vs. Union
of India & Ors. AIR 1980 SC 1789 = (1980) 3 SCC 625; His
Holiness Kesavananda Bharati Sripadagalvaru Vs. State of
Kera/a (1973) Supp. SCR 1 = (1973) 4 SCC 225; M.R. Balaji B
& Others Vs. State of Mysore (1963) Supp. 1 SCR 439 =AIR
1963 SC 649; State of Kera/av. N.M. Thomas 1976 (2) SCC
.. '1
. 310; K.C. Vasanth Kumar v. State of Karnataka 1985 Supp .
SCC 714; C.A. Rajendran Vs. Union of India & Ors. (1968) 1
SCR 721; Bhikaji Narain Dhakras & Ors. Vs. The State of C
Madhya Pradesh & Anr. (1955) 2 SCR 589; A.S. Krishna Vs.
State of Madras (1957) SCR 399; Kameshwar Prasad and
Others Vs: State of Bihar and Another 1962 Supp. (3) SCR
369 In Re. Kera/a Education Bill, 1957, 1959 SCR 995;
Minerva Mills AIR 1980 SC 1789, Saurabh Chaudhari Vs. D
Union of India 2003 (11) SCC 146 - referred to.
I City of Richmond Vs. J A Croson Co. 488 U.S. 469
(1989); Dred Scott Vs. Saunders, 60 US 393(1856); Plassy
Vs. Ferguson 163 US 537(1896); Brown Vs. Board of
Education 347 US 483; Regents of the University of California E
Vs. Bakke 438 US 265 (1978); Sweezy Vs. New Hampshire
(1957) 354 US 234; Keyishian Vs. Board of Regents (1967)
385 US 589 and Adarand Constructors Inc. Vs. Pena (1995)
515 US 200 - referred to.
F
10. "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 C?f the Constitution specifically empowers
the President of India to appoint a Commission to G
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.
H
22 SUPREME COURT REPORTS [2008] 4 S.C.R.

A 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 ba<;kward class. There is already
a National Commission and also various State
B 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 ~· ,.
c this background that the Union of India has been given
the task of determining the backward classes. The
d•termination of backward classes itself is a laborious
task and the Parliament caninot do it by itself. It is incorrect
to say that there are no sufficient guidelines to determine
the backward· classes. Various parameters have been
0
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
E determine the backward classes. The challenge to Act 5
of 2007 on that ground fails. [Para 186] (178-B-G]
11. It was contended that unless the period is
prescribed, this affirmative action will continue for an
F indefinite period and would ultimately result in reverse
discrimination. It is true that there is some force in the
contention 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
G fix a time limit or a period of time. Depending upon the
result of the measures and improvements that have taken
p1lace 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
H
19
'
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 23

legislation. After some period, if it so happens that any A
section of the community gets an undue advantage of the
affirmative action, then such community can very 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 B
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 c
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
D
·legislation cannot be held to be invalid on that ground
but a review can be .made after a period of 10 years.
[Para 187] [179-D-H; 180-A]
12. Though at the time of attaining Independence, the
basic idea" was to improve primary and secondary level E
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 F
f of education, it is anachronistic to contend that primary
education or secondary education shall be the index for
fixing backward class of citizens.. [Para 189] [181-F-G]
···.·
13.1 A legislation cannot be challenged simply on the
ground of unreasonableness because that by itself does G
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.
Therefore, the plea that the•legislation itself was intended
to please a section of the community as part of the vote H
24 SUPREME COURT REPORTS (2008] 4 S.C.R.

A catching mechanism is not a legally acceptable plea and
it is only to be rejected. [Para 191, 192] [182-F-G; 183-B] ~-
13.2 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
B operation determining as to who shall form the SEBCs.
Though a caste-wise census is not available, 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
. ~

c commissions were not fully accepted by this Court. 27%
of reservation in the matter of employment was accepted
by this Court. Petitionurs have not produced any
documents to show that the backward class citizens are
less than 27%, vis-a-vis, the total population of this
D 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 re!levant circumstances when
passing a legislation of this nature. It is futile to contend
E whether Parliament was not aware of the statistical details
of the population of this country and, therefore, this Court
does not think that 27% reservation provided in the Act is
illegal or on that account, the Act itself is liable to be struck
down. [Para 193] [183-C-F]
F Indra Sawhney Vs. Union of India & Ors. 1992 Supp. (3)
1
SCC 215 and State of Rajasthan & Ors. Vs. Union of India
and Others (1977) 3 sec 592 - referred to.
Per Dr. Arijit Pasa)lat, J.
G (For himself and C.K. Thakker, J.)
1.1 It is a settled position in law that there can be only
limited use of the parliamentary debate. The Courts should )..,,

not normally critically analyse the proceeding§ of
H Parliament. This flows from a very fundamental aspect i.e.
II
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 25

mutual respect of the Parliament and the Judiciary for A
+ each other. Each of these great institutions in a democracy
operates in different fields. It is not expected that one wing
of democracy would criticize the manner of functioning
of another wing. That would be against the basic
desirability of mutual respect. Any opinion or comment B
.
or criticism about the manner of functioning of one by
the other would be not only undesirable but imperatively
avoidable. The citizens of this· country expect a great deal.·
from the Parliament and the Judiciary. It is but natural that
the people of this country would be disappointed and dis- c
heartened and their hopes will be shattered if instead of
showing respect for each other, there is mudslinging,
unwanted criticism or impermissible criticism about the
manner of functioning or the rationale of a decision or a
view taken. [para 10) [191-G-H; 192-A-C]
D
Builders Associatior; of India v. Union of India and
Ors.1995 Supp (1) SCC 41; K. Nagaraj and Ors. v. State of
Andhra Pradesh and Anr. 1985 (1) SCC 523; State of Mysore
v. R. v. Bidap 1974 (3) sec 337 - relied on.
1.2 If one looks at the different Statutes in India, E
Article 14 of the Constitution is conceptually different from
14th Amendment to the American Constitution. [para 14)
[196-8)
Saurabh Chaudri and Ors. v. Union of India and Ors. F
(2003) 11 SCC 146; State of West Bengal v. Anwar Ali Sarkar
1952 SCR 284; State of Bombay and Anr. v. F. N. Balsara 1952
SCR 682 - referred to.
Crawford on Statutory Constitution page 388 - referred
to. G
1.3 It needs no emphasis that the formal equaJity
concept came to be recognized in U.S.A. after about 10
years of its. inception. In the first phase of the U.S.A.
Constitutional Law ther.e was only affirmative action but H
26 SUPREME COURT REPORTS [2008] 4 S.C.R.

A in the Indian Constitution right from the beginning
affirmative action has been provided, for example, 4- '
provisions made for Scheduled Castes and Schedules
Tribes. A distinction has been noted in para 640 of Indra
Sawhney No.1. Articles 38(1) and 38(2) read with Article
B 46 of the Constitution make the position clear that the
State is charged with the~ duty to secure interests of the
weaker sections of the people and minimize the
inequalities in income. The Constitution from its inception
contained Article 17 which abolishes untouchability. ·
. .
c [para 15] (197-G-H; 198-A-B]
Indra Sawhney v. Union of India and Ors. 1992 Supp.(3)
SCC 215; Minerva Mills Ud. and Ors. v. Union of India and
Ors. (1980) 3 SCC 625; His Holiness Kesavananda Bharati
Sripadagalvaru v. State of Kera/a and Anr. (1973) 4 SCC 225;
D Maharashtra Sugar Mills Ltd. AIR 1965 SC 845; Kihoto
· Hqllohan v. Zachi/lhu and Ors. 1992 Supp (2) SCC 651; Shri
Sarwan Singh and Anr. v. Shri Kasturi Lal (1977) 1 SCC 750;
./.K. Cotton Spinning and weaving Co. Ltd. v. State of U.P. and
Anr. (1961) 3 SCR 185; R.M.D. Chamarbaugwalfa v. U0/ 1957
E SCR 930; A/IMS Students Union v. A/IMS (2002) 1 SCC 428
- referred to.
Plessy v. Ferguson 163 U.S. 537 (1986) - referred to.
1.4 'Strict scrutiny' is one of the three standards for
F judicial review of legislative and administrative action
developed in the United States, the other being "rational 1
basis" and "intermediate scrutiny". [para 30] [213-C]
United States v. Carolene Products 304 U.S.144 (1938);
Skinner v. Oklahoma 316 U.S. 535 (1942) - referred to.
G
1.5 It is to be noted that the doctrine of separation as
is prevalent in the American Society is not of much
consequence in the Indian scenario. It needs to be clarified >-...
that the expression 'strict scrutiny' has also been used
by the Indian Courts, but it appears to have been used in
H
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 27

different context. What really appears to be the intention A
,..\-·
for the use of the expression is "careful and deeper
scrutiny" and not in the sense of strict scrutiny of the
provisions as is prevalent in the American jurisprudence.
It is used in different sense. The application appears to
be in technical sense in the American Courts. [para 35) 8
[214-G-H; 215-A]
Narendra Kumar and Ors. V Union of India and Ors.
;
f (1960) 2 SCR 375 - referred to.
Regents of University of California v. Allan Bakke 438 c
U.S. 265; Grutter v. Bollinger 539 U.S. 306 -referred to.
1.6 Although even under the 1919 and 1935
Government of India Acts the rights of certain class of
people like Scheduled Castes, Scheduled Tribes and the
· deprived classes have been recognized, in America, the D
rights have been conferred on individuals and so much
on the groups. The freedoms contemplated by the Indian
Constitution originally related to seven categories which
presently stand at six after the property rights were
deleted. [para 40] [218-C-D] E
State of Kera/a v. N.M. Thomas and Ors. (1976) 2 SCC
310; A.K. Roy v. Union of India (1982) 1SCC271-referred to.
1.7 The ultimate object is to bring those who are
disadvantaged to a level where they no longer continue F
t to be dis-advantaged. It needs no emphasis that individual
rights are superior to the social rights. All fundalJlental
rights are to be read together. The inequalities are to be
removed. Yet the fact that there has been no exclusion
raises a doubt about the real concern to remove inequality.
G
The ultimate objective is to bring people to a particular
level so that there can be equality of opportunity. In that
context, one has to keep in view the justice and redress
principles. There should not be mere equality in law but
· equality in fact. [paras 44 and 45] [220-C-E]
H
28 SUPREME COURT REPORTS [2008] 4 S.C.R.

A 1.8 It is true that Government has a large area of
discretion in choosing its priorities. But one factor cannot
be lost sight of. The fundamental stress has to be on
elementary education. If that is done, as a consequence
there would be reduction in the need for spending more
B money on higher education. Stress on primary and
elementary education would be a leap forward towards
higher education. There has been considerable number
of dropouts in the higher classes. This is a reality inspite
r •
of all steps which the Government claims to have adopted
c to ensure that every child of a particular age group has
education as warranted by the Constitution as a
fundamental right. [para 50] [226-C-E]
A/IMS Students Union v. A/IMS (2002) 1 SCC 428; Unni
Krishnan J.P and Ors. v. State of A.P and Ors. (1993) 1 SCC
D 645; N. M. Thomas and Ors. (1976) 2 SCC 31 O; Indra Sawhney
v. Union of India and Ors. 1992 Supp (3) SCC 215; Indra
Sawhney v. Union of India (1996) 6 SCC 506; K. Nagaraj and
Ors. v. $fate of A.P and Anr. (1985) 1 SCC 523 - referred to.
2.1 It has been rightly observed in Indra Sawhney
E No. 2 whether creamy layer is not excluded or whether
forward classes can be excluded in the list of backward
classes, the position would be the same and there will be
breach not only of Article 14 but of the basic structure of
the Constitution. As was rightly observed in the said case,
F non exclusion of the creamy layer or inclusion of forward
castes in the lists of backward classes will be totally illegal.
The illegality offends the roots and foundation of the
Constitution and cannot be allowed to be perpetuated.
Even non-exclusion of the creamy layer for the purpose
G of admission to the educational institutions cannot be
countenanced. It is inconceivable that a person who
belongs to the creamy layer is socially and educationally
backward. The backward status vanishes '·hen
somebody becomes part of the creamy layer. [paras 61
H and 63] [257-D-H; 258-A]
~ I
,. ASHOKA KUMAR THAKUR v. UNION OF INOIA & ORS. 29
'"
Indra Sawhney v. Union of India and Ors. 1992 Supp.(3) A
SCC 215; Nair Service Society v. State of Kera/a (2007) 4
SCC 1; K. C. Vasa nth Kumar and Anr. v. State of Kamataka
1985 (Supp) SCC 714; MR. Ba/aji v. State of Mysore AIR
1963 SC 649 - referred to.
'!
B
2.2 A periodic revision of the lists by the Central
Government is a statutory mandate. Petitioners have
highlighted that there is no exclusion and on the other
· hand there has been inclusion. On the question of castes
1
enumeration it is emphasized that 1931 Census was not
the basis for identification of other backward classes. In c
fact the central OBC List is not drawn up on the basis of
1931 Census. Each State has different modalities for
--< identification. Only for the purpose of quantum the
population provides a foundation. [para 75) [273-D-E]
0
2.3 It needs no emphasis that if ultimately and
indisputably the constitutional goal is the casteless and
classless society, there has to be more effective
implementation of the Backward Classes Act. The
exercise required to be undertaken under Section 11 of
E
the said Act is not intended to be a routine exercise and
also not an exercise in futility. It has to be not only effective
but also result oriented. The petitioners have highlighted
the lack of seriousness of the Government in carrying out
the exercise. Voluminous datas have been brought on
F-
record in this regard. With reference to the reports of the
I
Commission, respondents have stressed on the fact that
:J the Commission has been working with all sincerity and
with the object of effectively implementing the Backward
Classes Act. One thing needs to be noted here. Concrete
G
data about the number of backward classes in the country
does not appear to be available. The survey conducted
~
by the National Sample Survey reveals that the
,l
percentage Is not 52% as is highlighted by the
respondents. [para 76] [273-F-H; 274-A-B]
H
l
'
\ ~
30 SUPREME COURT REPORTS (2008] 4 S.C.R.

A .2.4 At this juncture, it is to be noted that the Backward
Classes Act in order to be wholly functional mandates
determination by the Central Government of the backward
classes for whom the Statute is intended. Undisputedly,
such determination has not been done. The plea is that
B for more than half a century enough attention has not been
given for the benefit of the other backward classes in the
matter of admissions to higher educational institutions.
That cannot be a ground to act with hurry and with un-
determined datas. It may be that the percentage can
c certainly be not less than 27%. But that is no answer to
the important question as to the identity test. In the
background loom the socially and economically
backward class of citizens. Poverty knows no caste. Poor
has no caste. It is an unfortunate class. It is a matter of
common knowledge that the institution of caste is a
0
peculiarity of Indian institution when there is considerable
controversy amongst the scholars as to how the caste
system originated in this country. Originally, there were
four main castes known as Varnas. But gradually castes
and sub-castes multiplied as the social fabric expanded
E with the absorption of different groups of people who
belong to various cults and professing different religious
faiths. The caste system in its earlier stage was quite
elastic but in course of time it gradually hardened into a
rigid framework based upon heredity. The inevitable result
F was social inequality. At some point of time occupation
was the background for determination of castes. May be,
at some point of time it depended on the income of the
individual. But it appears to have taken disastrous turn
with difference of status of various castes. But passage
G of time shows that the occupational label has lost much
of its significance. But at the same time, the poor and
down trodden who belong to the caste of their own were
the founders of poor. [para 78] [274-C-H; 275-A-B]
Indra Sawhney v. Union of India and Ors. 1992 Supp.(3)
H
,
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 31

sec 215 - referred to. A
+ 2.5 The haves and the have nots have to co-exist. If
the creamy layer has to be excluded the economically
backward classes have to be included. That would be
social balancing and that would be giving true meaning
of the objectives of the Constitution. Social empowerment B
cannot be and is certainly not a measure for only socially
and educationally backward classes. It also has to be for
the socially and economically backward classes. Unless
this balance, which is very delicate, is maintained the
system inevitably will develop a crack and this crack may c
after a certain point of time be difficult to be joined. Instead
of lightening the society from castes or classes it will be
over burdened and a point of time may come when we
shall not be able to bear the burden any further. Timely
steps in this regard will save the Indian society and D
democracy from a catastrophe of collapse because of
something which the Constitution wants to obliterate.
[para 85] [276-8-E]
Motor General Traders and Anr. v. State of Andhra
E
Pradesh and Ors. (1984) 1 SCC 222; State of Kera/a and Anr.
v. N.M. Thomas and Ors. (1976) 2 SCC 310 - referred to.

2.6 'Equality' and 'excellence' are two conflicting
claims difficult to be reconciled. The Constitution, in order
to ensure true equality provides for special treatment to F
j. socially and educationally backward classes of citizens
which is obviously desirable for providing social justice,
though at the cost of merit. However, the Constitution does
not provide at all for 'institutional reservation.' Therefore,
its constitutionality is to be judged on the touchstone of G
Article 14. A large number of cases cropped up in this area
concerning the institutional preference for admission into
postgraduate medical education and super specialties .
. The judiciary came forward and laid down detailed
principles covering the need of such preference and to H
32 SUPREME COURT REPORTS [2008] 4 S.C.R.

A limit the extent of such reservation in view of the
importance of merit in the context of national interest and ~ ~
international importance of universal excellence in super
specialties. It is to be noted that the foundation for fixing
27% appears to be the view that 52% of the population
B belong to OBC. There is no supportable data for this
proposition. In fact, different Commissions at different
points of time have different figures. It is the stand of the
respondents that no Commission has fixed the
percentage below 52% and, therefore, there is nothing ~

c wrong in fixing the percentage at 27%. This is not the
correct approach. It may be that in no case the percentage
of persons belonging to OBC is less. than 27% but
supposing in a given case considering the fact that the
actual percentage is 40% a figure less than 27% should
have been fixed. The Commission set out pursuant to the
D
directions of this Court seems to have somewhat acted
on the petitions filed by the people claiming exclusion or
inclusion. That was not the real purpose of this Court's f
decision to direct appointment of Commission. The very
purpose was to identify the classes. This was the exercise
E which was to be undertaken apart from considering the
applications for inclusion or exclusion as the case may
be. As has been conceded at the beginning of the case
affirmative action is not under challenge. Affirmative action
is nothing but a crucial component of social justice in the
F constitutional dispensation but at the same time it has to
be kept in view that the same does not infringe the
principles of equality of which it is a part and/or
unreasonably restrain or restrict other fundamental
freedoms and that it does not violate the basic structure
G of the Constitution. [paras 90 and 91) [282-G-H; 283-A-H]
3.1 It needs no emphasis that Articles 15(4), 15(5) and
16(4) have to comply with the requirements of Article 14
and the discipline imposed in several other provisions like
Articles 15(4)(a) and 15(4)(b), though, they form a part of
H
I
I \

~ ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 33

the equality concept, each of which is so found in our A
+
Constitution. It is a well settled principle in law that the
Court cannot read anything into a statutory provision
which is plain and unambiguous. A statute is an edict of
the Legislature. The language employed in a statute is the
determinative factor of legislative intent. Words and B
phrases are symbols that stimulate mental references to
referents. The object of interpreting a statute is to
-i
ascertain the intention of the Legislature enacting it.
[paras 92, 93 and 94] [284-A-C]
Institute of Chartered Accountants of India v. Mis Price c
Waterhouse and Anr. AIR 1998 SC 74 - relied on.

The State of Gujarat and Ors. v. Difipbhai Nathjibhai Patel
and Anr. JT 1998 (2) SC 253; Jamma Masjid Mercara v.
Kodimaniandra Deviah and Ors. AIR 1962 SC 847; D.R.
D
Venkatchalam and Ors. etc. v. Dy. Transport Commissioner
and Ors. etc. AIR 1977 SC 842; Commissioner of Sales Tax,
M.P v. Popular Trading Company, Ujjain (2000) 5. SCC 511
and , Union of India and Ors. v. Filip Tiago De Game of Vedem
Vasco De Gama AIR 1990 SC 981 - referred to.
E
Crawford v. Spooner 1846 (6) Moore PC 1, Stock v. Frank
Jones (Tiptan) Ltd. 1978 (1) All ER ~48; (HL}, Len!gh Valley
Coal Co. v. Yensavage 218 FR 547 - referred to.
3.2 Two principles of construction - one relating to
casus omissus and the other in regard to reading the F
statute as a whole - appear to be well settled. Under the
first principle a casus omissus cannot be supplied by the
Court except in the case of clear necessity and when
reason for it is found in the four corners of the statute
itself but at the same time a casus omissus should not be G
readily inferred and for that purpose all the parts of a
statute or section must be construed together and every
·"-
clause of a section should be construed with reference
to the context and other clauses thereof so that the
construction to be put on a particular provision makes a H
I I

34 SUPREME COUR:T REPORTS [2008] 4 S.C.R.

A consistent enactment of the whole statute. This would be
more so if literal construction of a particular clause leads
to manifestly absurd or anomalous results which could
not have been intended by the Legislature. [para 98]
[285-F-H; 286-A]
B Artemiou v. Procopiou (1966 1 QB 878); Luke v. /RC
(1963 AC 557); Fenton v. Hampton (1858) XI Moore, P.C. 347;
Jones v. Smart (1 T.R. 52) - referred to.

3.3 The golden rule 1:or construing wills, statutes, and,
c in fact, all written instruments has been thus stated: "The
grammatical and ordinary sense of the words is to be
adhered to unless that would lead to some absurdity or
some repugnance or inconsistency with the rest of the
instrument, in which case the grammatical and ordinary
sense of the words may be modified, so as to avoid that
D
absurdity and inconsistency, but no further". The latter
part of this "golden rule," must, however, be applied with
much caution. "if," "the precise words used are plain and
unambiguous in our judgment, we are bound to construe
them in their ordinary sense, even though it lead, to an
E absurdity or manifest injustice. Words may be modified
or varied where their import is doubtful or obscure. But
we assume the functions of legislators when we depart
from the ordinary meaning of the precise words used,
merely because we see, or fancy we see, an absurdity or
F manifest injustice from an adherence to their literal
meaning". [para 100] [286-H; 287-A-C]
Grey v. Pearson 1857 (6) H.L. Cas.61; Abley v. Dale 11,
C.B. 378 - referred to.
G 4.1 Classifications on the basis of castes in the long
run has tendency of inherently be.coming pernicious.
Therefore, the test of reasonableness has to apply. When >-
the object is elimination of castes and not perpetuation
to achieve the goal of caste less society and a society free
H from discrimination of castes judicial review within the
\ )

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 35

permissible limits is not ruled out. But at the same time A
-\-
compelling State interest can be considered while
assessing backwardness. The impact of poverty on
backwardness cannot be lost sight of. Economic
liberation and freedom are also important. [para 101]
[287-D-F] B
K. Nagaraj and Ors. v. State of A.P and Anr (1985) 1
sec 523; Minerva Mills Ltd. v. Union of India (1980) 3 SCC
i 625; TM.A. Pai Foundation and Ors. v. State of Karnataka
and Ors. (2002) 8 sec 481 - referred to.
c
4.2 Provisions of the Constitution have to be read
harmoniously and no part can be treated to be redundant.
Both the provisions viz. Article 15(4) and 15(5) operate in
different areas though there may be some amount of
overlapping but that does not in any way lead to the
D
conclusion that Article 15(5) takes away what is provided
in Article 15(4). [Para 106) [294-F]
i
4.3 A construction which reduces the statute to a
futility has to be avoided. A statute or any enacting
provision therein must be so construed as to make it E
effective and operative on the principle expressed in the
maxim ut res magis va/eat quam pereat i.e. a liberal
construction should be put upon written instruments, so
as to uphold them, if possible, and carry into effect the
intention of the parties. [Para 107] [294-G-H; 295-A] F
Broom's Legal Maxims (10th Edn.), p. 361; Craies on
Statutes (7th Edn.). p.95 and Maxwell on Statutes (11th Edn.)
- referred to.
4.4 A statute is designed to be workable and the
G
interpretation thereof by a court should be to secure that
object unless crucial omission or clear direction makes
...I that end unattainable. The courts will have to reject that
construction which will defeat the plain intention of the
legislature even though there may be some inexactitude
H
\ I

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

A in the language used. [Paras 108 and 109] [295-8-C]
CIT v. S. Teja Singh AIR 1959 SC 352 - referred to.
Whitney v. /RC (1926 AC 37) p.52; Gursahai Saiga/ v.
CIT AIR 1963 SC 1062; Salmon v. Duncombe (1886) 11AC
B 627 p.634; Curtis v. Stovin (1889) 22 QBD 513 - referred to.
4.5 If the choice is between two interpretations, the
narrower of which would fail to achieve the manifest
purpose of the legislation, we should avoid a construction
which would reduce the legislation to futility, and should
C rather accept the bolder construction, based on the view
that Parliament would legislate only for the purpose of
bringing about an effective result. [para 110] [295-D-E]
Mohan Kumar Singhania v. Union of India 1992 Supp
(1),SCC 594 - referred to.
0
Nokes v. Doncaster Amalgamated Collieries 1940 (3) All
ER 549; Pye v. Minister for Lands for NSW 1954 3 All ER 514
- referred to.
4.6 The statute must be read as a whole and one
E provision of the Act should be construed with reference
to other provisions in the same Act so as to make a
consistent enactment of the whole statute. The court must
ascertain the intention of the legislature by directing its
attent.ion not merely to the clauses to be construed but to
F the entire statute; it must compare the clause with other
parts of the law and the settin{J in which the clause to be
interpreted occurs. Such a construction has the merit of
avoiding any inconsistency or repugnancy either within
a section or between two different sections or provisions
G of the same statute. It is the duty of the court to avoid a
head-on clash between two sections of the same Act.
[paras 111, 112] [295-G-H; 296-A-B]
R. S. Raghunath v. State of Karnataka (1992) 1 SCC 335;
H Sultana Begum v. Prem Chand Jain (1997) 1 SCC 373 -
.....,.
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 37

..l referred to. A
4.7 Whenever it is possible to do so, it must be done
to construe the provisions which appear to conflict so
that they harmonise. It should not be lightly assumed that
Parliament had given with one hand what it took away
with the other. The provisions of one section of the statute B
cannot be used to defeat those of another unless it is
. .., '( impossible to effect reconciliation between them. Thus a
construction that reduces one of the provisions to a
"useless lumber" or "dead letter" is not a harmonized
construction. To harmonise is not to destroy. [paras 113 c
and 114] [296-8-D]
5.1 The Constitution of India is not intended to be
static. It is by its very nature dynamic. It is a living and
organic thing. It is an instrument which has greatest value D
to be construed. "Ut Res Va/eat Potius Quam Pereat" (the
construction should be preferred which makes the
~
machinery workable). Our Constitution reflects the beliefs
and political aspirations of those who had framed it. It is
therefore desirable that while considering the question
E
as to whether 27% fixed for the other backward classes
to be maintained without definite data the rights of those
who belong to the unfortunate categories of other
economic backward classes deserve to be concerned,
else there shall be no definite determination of number of
~ other backward classes. While fixing the measure for F
creamy layer it would not be difficult also to fix the norms
for the socially and economically backward classes
rather the latter exercise would be easier to undertake.
[para 115] [296-E-G]
G
5.2 It is to be noted that in Section 4(b) of the Act,
institutions of research, institutions of excellence,
).
institutions of national and strategic importance have
been specified in the Schedule to the Act. The proviso
permits the Central Government as and when considered H
38 SUPREME COURT REPORTS [2008] 4 S.C.R.

A necessary to amend the Schedule. In other words, on an .)._
appropriate case being presented and established before
the Central Government that the Institution is of excellence
and/or a research institute and/or an institution of national
and strategi\. importance, the Central Government can
B amend the Schedule and include such institution in the
Schedule. In other words, it is permissible for the
petitioners and anybody else to highlight to the
Government about the desirability to include an Institution
t
,,.
in the Schedule of the Act. [para 123] [304-F-H; 305-A]
c 5.3 It is not correct to contend that in fixing the
priorities the Government is the best Judge as contended
by the respondents. It may be correct in matters relating
to simple policy decisions but when the constitutional
mandate is under consideration the underlying object has
D also to be kept in view. In this context reference is made
to Article 46 of the Constitution. It is in that background
pointed out by the petitioners that what cannot be lost ~

sight of is the fact that is the foundation for basic,
elementary and primary education. The educational
E backwardness can be obliterated when at least half of the
persons belonging to a particular caste come up to a
matriculation level. [para 124] [305-D-F]
5.4 It is not merely the existence of schemes but the
effective implementation of the schemes that is important.
F It is to be noted that financial constraint cannot be a
~
ground to deny fundamental rights and the provision for
the schemes and the utilization of the funds are also
relevant factors. It appears that better coordination
between the funds provider and the utiliser is necessary.
G It is suggested that putting stress on cut off limit by
shifting from matriculation to Class XII level education as
a benchmark of gauging educational backwardness will
,>..
be a step in the right direction. Though in several
decisions, the secondary education was taken to be the
H benchmark, ground reality cannot be lost sight of that with
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 39

the limited availability of jobs and the spiraling increase A
in population, secondary or matriculation examination ca.n
no longer be considered to be an appropriate bench mark.
It has to be at the most graduation. But the question arises
whether technical education can be included while
considering educational backwardness. A delicate B
balancing has to be done in this regard. While technical
education cannot be the sole criteria for gauging
• '1 educational backwardness it definitely will form part of
50 per cent norms fixed by this Court. Slightly variable
plus or minus would be the appropriate standard to
gauge educational backwardness~ [para 125] [305-G-H;
c
306-A-D]
Indra Sawhney v. Union of India 1992 Supp. (3) SCC
215; Vasanth Kumar and Anr v. State of Kamataka (1985)
Supp. SCC 714; State of A.P and Anr. v. P Sagar 1968 (3) D
SCR 595; Kumari K. S. Jayasree and Anr v. The State of Kera/a
and Anr. (1976) 3 SCC 730; Minor A. Peeriakaruppan, Sabha
Joseph v. State of Tamil Nadu and Ors. (1971) 1 SCC 38 -
referred to.
6.1 It may be pointed out that the stand of petitioners E
is that the primary consideration in selection of candidates
for admission to the higher educational institutions must
be merit. The object of any rules, which may be made for
regulating admissions to such institutions therefore, must
be to secure the best and most meritorious students. The F
national interest and the demand of universal excellence
may even override the interests of the weaker sections.
[para 135] [330-D-E]
6.2 The interest of no person, class or region can be
higher than that of the nation. The philosophy and G
pragmatism of universal excellence through equality of
...4. opportunity for education and adv3ncement across the
nation is part of the constitutional creed. It is, therefore,
the best and most meritorious students that must be
selected for admission to technical institutions and H
40 SUPREME COURT REPORTS [2008] 4 S.C.R.

A medical colleges and no citizen can be regarded as
outsider in the constitutional set-up without serious
detriment to the 'unity and integrity' of the nation. The
Supreme Court has laid down that so far as admissions
to post graduate course such as MS, MD and the like are
B concerned, it would be imminently desirable not to provide
for any reservation based on residence or institutional
preference. However, a certain percentage of seats are
allowed to be reserved on the ground of institutional
preference. But even in this regard, so far as super
c specialties such as neurosurgery and cardiology are
concerned there should be no reservation at all even on
the basis of institutional preference and admissions
should be granted purely on all-India basis. Further,
classification made on the basis of super-specialties may
serve the interests of the nation better, though interests
0
of individual states may to a small extent, be affected.
[para 136] [330-G-H; 331-A-C]
6.3 The need of a region or institution cannot prevail
at the highest scale of specialty where the best skill or
E talent must be hand-picked by selecting them according
to capability. At the level of Ph.D., M.D. or levels of higher
proficiency where international measure of talent is made,
where losing one great scientist or technologist in the
making is a national loss, the considerations expanded
F upon as important, lose their potency. The inevitable
conclusion is that the impugned Statute can be operative
only after excluding the creamy layer from identifiable
OBCs. There has to be periodic review of the classes who
can be covered by the Statute. The periodicity should be
G five years. To strike constitutional balance there is need
for making provision for suitable percentage for socially
and economically backward classes in the 27% fixed.
[paras 137 and 138] [331-D-F]
Indra Sawhney v. Union of India 1992 Supp. (3) SCC
H 215; M.R. Balaji v. State of Mysore, 1963 Supp (1) SCR 439;
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 41

R. Chitralekha v. State of Mysore AIR 1964 SC 1823; Minor A
P Rajendran v. State of Madras (1968) 2 SCR 787; State of
Andhra Pradesh v. P Sagar (1968) 3 SCR 595; Minor A.
Peeriakaruppan (Minor) v. State of TN. (1971) 1SCC38; State
of A.P v. U.S. V. Bairam (1972) 1 SCC 660; Janki Prasad
Parimoo v. State of J&K (1973) 1 SCC 420; State of Kera/a v. B
N.M. Thomas (1976) 2 SCC 310; State of UP v. Pradip
Tandon (1975) 1 SCC 267; K.S. Jayasree (Kumari) v. State of
Kera/a (1976) 3 SCC 730; Akhil Bharatiya Soshit Karamchari
' I
Sangh (Railway) v. Union of India and Ors. (1981) 1 SCC 246;
Chintaman Rao v. The State of Madhya Pradesh 1950 SCR c
759; State of Madras v. VG. Row AIR 1952 SC 196- referred
to.
Per Dalveer Bhandari, J.
1.1 The provisions of the Constitutio11 and the D
Preamble lead to the irresistible conclusion that the Nation
has always wanted to achieve a casteless and classless
~
society. If the impugned legislation is permitted to be
implemented, instead of a casteless and classless India,
we would be left with a caste-ridden society. [para 8] E
[337-B-C]
1.2 Free and compulsory education is now a
fundamental right under Article 21A. The State is duty
bound to implement this Article on a priority basis. There
has been grave laxity in its implementation. This laxity F
' adversely affects almost every walk of life. Nothing is more
important for the Union of India than to implement this
critical Article. It is directed that the Union of India to set a
time limit within which this Article is going to be completely
implemented. This time limit must be set within six .G
months. In case the Union of India fails to fix the time limit,
then perhaps this work will also have to be done by the
Court. [paras 9 and 1O] [337-D-F]
1.3. The Union of India should appreciate in proper H
42 SUPREME COURT REPORTS [2008] 4 S.C.R. -
A prospective that the root cause of social and educational
backwardness is poverty. All efforts have to be made to +
eradicate this fundamental problem. Unless the creamy
layer is removed, the benefit would not reach those who
are in need. Reservation sends the wrong message.
B Everybody is keen to get the benefit of backward class
status. If we want to really help the socially, educationally
and economically backward classes, we need to earnestly
focus on implementing Article 21A. We must provide
educationa~ opportunity from day one. Only then will the t

c casteless/classless society be within our grasp. Once
children are of college-going age, it is too late for
reservation to have much of an effect. The problem with
the Reservation Act is that most of the beneficiaries will
belong to the creamy layer, a group for which no benefits
are necessary. Only non-creamy layer OBCs can avail of
D
reservations in college admissions, and once they
graduate from college they should no longer be eligible
for post-graduate reservation. 27% is the upper limit for
OBC reservation. The Government need not always
provide the maximum limit. Reasonable cut off marks
E should be set so that standards of excellence greatly
effect. The unfilled seats should revert to the general
category. [para 11] (337-G-H; 338-A-C]
1.4 Affirmative action is employed to eliminate
F substantive social and economic inequality by providing
opportunities to those who may not otherwise gain
admission or employment. Articles 14, 15 and 16 allow for
affirmative action. To promote "Article 14 egalitarian
equality, the State may classify citizens into groups, giving
preferential treatment to one over another. When it
G
classifies, the State must keep those who are unequal out
of the same batch to achieve constitutional goal of
egalitarian society. [para 13] [338-G-H; 339-A]
1.5 Creamy layer inclusion violates the right to
H equality. That is, non-exclusion of creamy layer and
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 43

inclusion of forward castes in reservation violates the A
right to equality in Articles 14, 15 and 16 as well as the
basic structure of the Constitution. [para 30] [345-G]
· State of Kera/a and Anr v. N. M. Thomas and Ors. (1976)
2 SCC 310; Indra Sawhney and Ors. v. Union of India and
Ors. 1992 Supp (3) SCC 217; Indra Sawhney v. Union of India B
and Ors. (2000) 1 SCC-168; M. Nagaraj and Ors. v. Union of
India and Ors. (2006) 8 SCC 212 - referred to.

2.1 Once one is socially advanced, he cannot be
socially and educationally backward. He who is socially C
forward is likely to be educationally forward as well. If
either condition (social or educational) goes unmet, one
cannot qualify for the benefit of reservation as SEBC.
Being socially advanced, the creamy layer is not socially
backward pursuant to Articles 15(4) and 15(5) of the
Constitution. Even the text of Articles 15(4) and 15(5) D
provides for creamy layer exclusion. In this sense, one
could say that the term "creamy layer" is synonymous
with "non-SEBC". [paras 32 and 33] [346-C-D]
2.2 In Sawhney I, the entire discussion was confined E
only to Other Backward Classes. Similarly, in the instant
case, the entire discussion was confined only to Other
Backward Classes. Therefore, no opinion is expressed
with regard to the applicability of exclusion of creamy
layer to the Scheduled Castes and Scheduled Tribes. F
[para 34] [347-B-C]
Indra Sawhney and Ors. v. Union of India and Ors. 1992
Supp (3) SCC 217 - referred to.
2.3 In addition to social backwardness, the text of
Article 15(5) demands that recipients are also G
educationally backward. Even though the creamy layer's
status as socially advanced is sufficient to disqualify them
-' for preferential treatment, the creamy layer from any
community is usually educated and will want the same
for its children. They know that education is the key to H
44 SUPREME COURT REPORTS [2008) 4 S.C.R.

A success. For most, it made them. People belonging to this
group do not require reservation. [para 35] [347-D-E]
2.4 Unless the creamy layer is removed, OBCs cannot
exercise their group rights. The Union of India and other
respondents argued that creamy layer exclusion is wrong
B because the text of the 93rd Amendment bestows a benefit
on "classes", not individuals. While it is a group right, the
group must contain only those individuals that belong to
the group. First take the entire lot of creamy and non
creamy layer OBCs, then remove the creamy layer on an
. ' .
C individual basis based on their income, property holdings,
occupation, etc. What is left is a group that meets
constitutional muster. It is a group right that must also
belong to individuals, if the right is to have any meaning.
If one OBC candidate is denied benefit of the special
D provisions that he should have received by law, it is not
the group's responsibility to bring a claim. He would be
the one to do so. He has a right of action to challenge the
ruling that excluded him from the special provisions
afforded to OBCs. In this sense, he has an individual right.
E Group and individual rights need not be mutually
exclusive. In this case, it is not one or the other but both
that apply to the impugned legislation. [para 46] [350-H;
351-A-D]
2.5 As long as the Government gives handouts to
F certain groups, the creamy layer therein will "lap" them up.
A scheme in which the poor receive no advantage can be -\

remedied by excluding the creamy layer. [para 49] [352-B]
Ashoka Kumar Thakur v. State of Bihar and Ors. (1995)
G 5 SCC 403; Nair Service Society v. State of Kera/a, (2007) 4
SCC 1; Akhil Bharatiya Soshit Karamchari Sangh (Railway)
v. Union of India and Ors. (1981) 1 SCC 246 - referred to.
3.1 The test for severability asks a subjective ,_
question: had the Parliament known its provision would
H be struck would it still have passed the rest of the
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 45

legislation? It is never easy to say what the Parliament. A
would have done had it known that part of its
•
amendment wou Id be severed. Nevertheless, it is hard
to imagine that the Parliament would have said, "if the
creamy is excluded, the rest of the OBCs should be
denied reservation in education." It seems unlikely that it B
would have been an all-or-nothing proposition for the
Parliament, when the very goal of the impugned legislation
of promoting OBC educational advancement does not
1 depend on creamy layer inclusion. For these reasons, the
implied inclusion of the creamy layer is severed or c
excluded. [para 53] (353-C-F]
3.2 The creamy layer schedule of the O.M. dated
8.9.93, is not comprehensive: This should be revised
periodically - preferably once in every 5 years, in order to
ensure that creamy layer criteria take changing D
.circumstances into account. [para 56] [365-A]
~ 3.3 Apart from the people who have been excluded
vide the office memo, the Government is urged to make it
more comprehensive. The Government should consider
excluding the children of sitting and former Members of . E
Parliament (MP) and Members of Legislative Assemblies
(MLA) from special benefits. If constitutional authorities
have been excluded from benefits because of their
status or resources, the same should apply to children
of former and sitting MPs and MLAs. It is hoped the F
f judiciary will not have to involve itself in this matter.
[para 57] [365-8-C]
Indra Sawhney and Ors. v. Union of India and Ors. (1992)
Supp (3) SCC 217; Ashoka Kumar Thakur v. State of Bihar
G
and Ors. (1995) 5 SCC 403; R.M.D. Chamarbaugwal/a and
Anr v. Union of India and Anr. AIR 1957 SC 628 - referred to.
~ 4.1 Ultimately, the most important aspect of
implementing Article 21A is that incentives should be
provided to parents so that they are persuaded to send H
46 SUPREME COURT REPORTS [2008] 4 S.C.R.

A their children to school. More than punishment, creative
in.centive programmes will go a long way in the
implementation of the fundamental right enshrined under
Article 21A. [para 79) [373-B]
4.2 It is interesting to note that compulsory education
B has been introduced in one form or the other in various
countries. From the historical experience of these nations,
we learn that the legislation pe:-taining to compulsory
education has played an important role in improving
educational outcomes. [para 100) (380-0)
c 4.3 The States' laws fail on two accounts. First, they
are too lenient to have a deterrent effect. Second, the
legislation is not adequately enforced, in part, because it
(ioes not require police officers to do the job. If one
analyzes the legislation passed by different States,
0 another conclusion becomes obvious: no State has
provided for an adequate punishment whose effect would
be to deter citizens from committing a violation. [para 112)
(384-D-E]

E 4.4 Analysis of these State laws reveals that they are
weak in character and perhaps have never been
implemented. If these laws are compared with their sister
statutes in United States, one realizes that the U.S. laws
are far stronger. [para 116] (385-C)
F 4.5 The Government's education programmes and
expenditures, wanting in many respects, are an
improvement over past performa11ce. They nearly fall
short of the constitutional mark. Lackluster performance
in primary/secondary schools is caused in part because
G Government places college students on a higher
pedestal. Money will not solve all our education woes, but
a correction of priorities will go a long way in achieving
the Constitutional mandate. [para 122] (387-B-C]
4.6 Given that so many children drop out of, or are '-
H absent from, school before they turn fourteen, "free 11
\ , ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 47

education" alone c.annot solve the problem. The current A
patchwork of laws on compulsory education is
insufficient. Monetary fines do not go far enough to ensure
that Article 21A is upheld. A carrot-and-stick approach
appears to be the best way to implement Article 21A.
Financial incentive programmes have worked well in B
other countries. We should follow their lead. Once that is
done, the Government should strictly enforce effective
compulsory education laws. Such a policy is bound to
pay off. The Central Government should enact legislation
that: c
(a) provides low-income parents/guardians with
financial incentives such that they may afford
to send their children to sc;hool;
(b) criminally penalizes those who receive financial
0
incentives and despite such payment send their
children to work;
(c) penalizes employers who preclude children
...(
from attending school or completing
homework; E
(d) the penalty should include imprisonment; the
aforementioned Bill would serve as an example.
The State is obligated under Article 21A to
implement free and compulsory education in
to to; F
(e) · Until we have achieved the object of free and
compulsory education, the Government should
continue to increase the education budget;
(f) the Parliament should set a deadline by which G
time free and compulsory education will have
reached every child. This must be done within
six months.
[paras 126 and 127] (388-D-H; 389-A-C] H
48 SUPREME COURT REPORTS [2008] 4 S.C.R.

A Unni Krishnan, J.P and Ors. v. State of Andhra Pradesh
and Ors. (1993) 1 SCC 645; Hussainara Khatoon and Ors.(///) +
v. Home Secretary, State of Bihar, Patna (1980) 1 SCC 98;
Bandhua Mukti Morcha v. Union of India and Ors. (1997) 10
SCC 549; M. C. Mehta v. State of Tamil Nadu and Ors. (child
B labour matter) (1996) 6 SCC 756; MC. Mehta v. Union of
India (vehicular pollution) (1998) 6 SCC 63 - referred to.
Kothari Commission Report 1964-1966 - referred to.
5.1 The terms "abridge" and "abrogate" have been
c employed by this Court to distinguish between acceptable
and unacceptable legislation. Whether legislation
abridges or abrogates is a question of degree. Using these
terms is another way of asking whether the legislation had
such an effect that it changed the basic structure of the
Constitution. If legislation merely abridges the basic
0
structure, the structure's identity remains. The legislation
is upheld. In this sense, the Parliament may take away or
destroy fundamental rights by amending the Constitution,
provided that the basic structure is not altered.
E [para 138] [394-A-B]
5.2 If it abrogates the basic structure, the structure
and thus the Constitution lose their identities. The
legislation must be struck down. This is determined on a
case-by-case basis by applying the effect test (impact/
F rights tests). A total deprivation of fundamental rights,
even in one limited area, may amount to an abrogation of
the basic structure. [para 139] [394-C-D]
M. Nagaraj and Ors. v. Union of India and Ors.· 2006 (8)
sec 212; Minerva Mills Ltd. and Ors. v. Union of India and
G Ors. 1980 (3) SCC 625; and /.R. Coelho v. State of Tamilnadu
(2007) 2 SCC 1; His Holiness Kesavananda Bharati
Sripadagalvaru v. State of Kera/a (1973) Supp. SCR- referred
to.
6.1 The structure of our Constitution permits
H
'
4'
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 49

fundamental rights, and even the Golden Triangle of A
Articles 14, 19 and 21, to be abridged in limited
circumstances. To say that subjecting Articles 19(1)(g) to
15(5) violates ·the basic structure per se is to ignore the
examples in which the most fundamental of rights is
limited. Article 16(4) expressly limits the right to formal B
equality in 16(1), a specific facet of Article 14. In this light,
Article 16(4) impliedly limits the general right to formal equality
··I in Article 14. The right to equality is expressed in the
negative in 15(1): the State shall not discriminate based
on religion, race, caste, etc. In other words, the State shall c
treat citizens of different religions, races and castes
equally. Like Article 16(4), Article 15(4) limits 15(1) -
another facet of Article 14 formal equality - such that
egalitarian equality may be pursued. Generally speaking,
Articles 15(3) and (4) and 16(4) allow the State to impose
D
affirmative action programs on the public sector. Such
. provisions necessarily limit the right to formal equality. If
the right to equality, considered by some as a basic
postulate of the Constitution, has been limited, a fortiori
Article 19(1)(g) can be too. [para 164) [407-E-H; 408-A]
E
6.2 As explained in Minerva Mills, the Court had
previously upheld Article 31A out of concern ~or stare
decisis. The Court never approved of the exclusion of
Articles 14 and 19 on a principled basis. Nor did i~ make a
ruling as to whether the exclusion violated the basic F
structure. [para 165) [408-B-C]
6.3 A basic structure challenge becomes an issue of
institutional competence. Is it for the legislature to decide
what is a reasonable restriction under 19(1)(g) read with
19(6)? Or.is it for the judiciary? It is well established that G

.. the Parliament, expressing the will of the people, may
enact amendments to overrule a judgment of this Court.
[para 166) [408-D]
6.~ Freedom under Article 19 belongs to individual
H
50 SUPREME COURT REPORTS [2008] 4 S.C.R.

A citizens. Article 19(1 )(g) provides that "all citizens shall
have the right to practice any profession, or to carry on
any occupation, trade or business." The reference to "all
citizens" means that each and every individual citizen
possesses Article 19 rights. For the impugned legislation
B to fall, it need not touch every sphere of society. If even
one individual's freedom has been curtailed, this Court is
duty bound to entertain his or her claim. It is he or she
who possesses the Article 19(1)(g) right to carry on an
occupation. [para 169] [409-F-H]
c 6.5 Parliament would have gone forward without
unaided institutions. While some Members of Parliament
sought to overrule Pai and lnamdar, the Parliament's
actions speak louder than its words. Once it had passed
Article 15(5), it limited itself to imposing greater
D reservations on aided institutions. Had unaided
institutions been the Parliament's priority, it could have ....
included them in the Reservation Act. It seems that the
Parliament's intent is to pass as much reservation as
possible. That would explain why it has gone forward with
E 27% reservation for OBCs without confirming that at least
27% of the population is OBC. For these reasons, it is
concluded had the Parliament known that unaided
institutions were going to be severed, it would have
nevertheless carried out its reservation scheme for aided
F institutions. [para 182] [414-F-H; 415-A]
Indira Nehru Gandhi v. Raj Narain and Anr. (1975) Supp
SCC 1; P. Sambamurthy v. State of A.P. (1987) 1 SCC 362; L.
Chandra Kumar v. Union of India (1997) 3 SCC 261; Kihoto
Hollohan v. Zachil/hu and Ors. 1992 Supp (2) SCC 651; P.A.
G lnamdar and Ors. v. State of Maharashtra and Ors. (2005) 6
SCC 537; T. M.A. Pai Foundation and Ors. v. State of Karnataka
and Ors. (2002) 8 SCC 481; St. Stephen's College v. University
of Delhi (1992) 1 SCC 558; The State of Bombay & Anr. v.
•
FN. Balsara (1951) SCR 682; The State of Bombay and Anr.
H v. The United Motors (India) Ltd. & Others (1953) SCR 1069 -
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 51

re~md~. A
7 .1 Whenever legislation is challenged as
unconstitutional, Courts must ask themselves how much
deference they will give to the legislature. The answer is
that it depends on the nature of the impugned legislation.
The United States Supreme Court has evolved three 8
standards of review for Government action that treats
different people differently. The first is the rational basis
standard. When the classification is rationally related to
any legitimate Government purpose, the court defers to
the State and upholds the classification. This is the most C
deferential of the three standards. The second standard
is intermediate scrutiny, which is less deferential to
Government. Here, the Court asks whether the
classification is substantially related to any important
Government purpose. The third and highest level of review D
\J2 is known as strict scrutiny, whereby the Court requires
0-- that the classification are narrowly tailored to a com_pelling
~ state interest. Strict scrutiny test is the least deferential to
...._ Government. [para 191) [417-E-H; 418-A)
(\( 7.2 Of the classifications on which there is case law, E
the one that most closely resembles caste is race. This is
because both are immutable traits. They are used by the
powerful, or those seeking power, to justify oppression.
Racism and casteism have long haunted both Nations. In
the United States, race raises red flags. It is often, though F
not always, reviewed under strict scrutiny: "Government
action dividing people by race is inherently suspect
because such classifications promote 'notions of racial
inferiority and lead to a politics of rac•al hostility,' and
"racial classifications are simply too pernicious to permit G
any but the most exact connection between the
justification and the classification." [para 192) [418-A-C)
7.3 American courts carefully review racial
classifications. Given that the 93rd Amendment on its face H
52 SUPREME COURT REPORTS [2008]" 4 S.C.R.

A discriminates against general category students, one ·
should give it careful scrutiny. The Article 14 right to formal
equality deserves as much. If 49.5% caste-based
reservation was upheld in Sawhney I for Government
employment, it follows that 49.5% caste-based
8 reservation is permitted in aided educational institutions.
Though the impugned legislation passes careful scrutiny
with respect to reservation in aided institutions, its
implementation is contingent upon the directions given
in this opinion. [para 194] [419·8-C]
C Indra Sawhney and Ors. v. Union of India and Ors. (1992)
Supp (3) SCC 217 - referred to.
Parents involved in Community Schools v. Seattle
School District No. 1 et al; Gratz v. Bollinger, 539 U.S. 244,
270; Fullilove v. Klutznick 448 U.S.448,537; Hernandez v. New
0
York 500 U.S. 352 (1991); Arlington Heights v. Metropolitan
Housing Development Corp., 429 U.S. 252, 264-265 (1977);
Washington v. Davis 426 U.S. 229, 239 (1976); Yick Wo v.
Hopkins 118 U.S. 356 (1886) - referred to.
E 8.1 In the instant case, the Union of India argued that
A'rticle 15(4), the First Amendment to the Constitution,
reflects the intent of the original Framers because it was
passed by the same members that drafted the original
Constitution. In the Parliamentary debates in 1951, Prime
F Minister Nehru argued in favour amending the
Constitution. He and other Framers, as distinguished from
the original Framers who had drafted the original
Constitution, did not hide their disapproval of Champakam
Dorairajan. Article 15(4) was to overturn that judgment. To
G justify Article 15(4), which represented a dramatic
departure from equality as envisaged in Articles 15(2), (3)
and 29(2), Pandit Nehru said that Article 15(4) would give
effect to "what ... was really intended or should be
intended." Yet, the original Framers, had no intention of
providing special provisions for SC/ST in education (and
H
••
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 53

a fortiori if not for them, nor for SEBC). What "should be A
intended" is a far cry from what they specifically enacted
and specifically rejected. It follows that Article 15(4)
deviated from the original Framers' original intent.
[para 215] (425-D-H]
8.2 Discrimination is not the only problem B
exacerbated by reservation. Given that reserved category
students gain admission with lower marks, it also stands
to reason that they would exhibit less confidence in their
studies when pitted against the general category.
[para 219] (427-D] C
8.3 To rid ourselves of reservation and its unintended
consequences like casteism, we must focus our efforts
on strengthening education at the primary and secondary
level. Only then will we achieve the castelesslclassless
society the original Framers envisaged. And only then D
will there be reason to scrap reservation altogether.
[para 220] [428-E-F]
8.4 Exhibiting tunnel vision, our First Parliament failed
to look beyond caste. Another option was available, an E
option that adhered to the original Framers' ideals.
Contrary to Dr Ambedkar's view, it" was possible to provide
reservation to backward classes without discriminating
based on caste. Economic criteria target the poorest of
the poor, irrespective of caste. As noted, these criteria also
simultaneously remove the creamy layer, (para 226] · F
[431-G-H;. 432-A]
State of Madras v. Champakam Dorairajan AIR 1951 SC
226; Indra Sawhney and Ors. II. Union oflndia and Ors. (1992)
Supp (3) SCC 217 - referred to. G
9.1 Economic criteria must include occupation and
J., land holdings because income alone is insufficient. To
decrease the likelih.ood. that the undeserving ·evade
identification, it is wise to employ more than one criterion.
[para 234] [436-D] H
54 SUPREME COURT REPORTS [2008) 4 S.C.R.

A 9.2 It all depends on how one defines "class." Once
economic criteria remove the relatively wealthy families
(from all castes and communities), a "class" will remain.
This "class" is known as "the poor." The class would
share the same characteristic, irrespective of caste. They
B would all lack money. [para 235] (437-B]
9.3 Too many people would be eligible for the
benefit. This is only a problem if you hand out
reservations based on the group's proportion of the
). ..
total population. Such a reservation would be excessively
c unreasonable and would likely violate the Ba/aji cap of
50%. [para 242] (439-B-C]
9.4 Today, the NRI carpenter's children will have likely
attended the best schools, tuitions and coaching classes
that money can buy. These children do not need special
D provisions. That is why the creamy layer has to be
removed with a time limit on caste-based reservation and
the Government is urged to use exclusively economic
criteria to identify OBCs who may avail of special
provisions. (para 245] (440-C-D]
E ,.....
9.5 The First Parliament, by enacting Article 15(5),
deviated from the original Framers' intent. They passed
an amendment that strengthens, rather than weakens
casteism. If caste-based quotas in education are to stay,
they should adhere to a basic tenet of secularism: they
F should not take caste into account. Instead, exclusively
economic criteria should be used. For a period of ten
years, other factors such as income, occupation and
property holdings etc. including caste, may be taken into
consideration and thereafter only economic criteria
G should prevail. However, caste-based discrimination I-

remains. Violence between castes occurs. Caste politics
rages on. Where casteism is present, the goal of achieving ~

a casteless society must never be forgotten. Any
legislation to the contrary should be discarded. [para 251]
H (442-F-H; 443-A]
- ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 55

State of Kera/a and Anr. v. N.M. Thomas and Ors. (1976) A
2 SCC 310; Indra Sawhney and Ors. v. Union of India & Ors.
(1992) Supp (3) SCC 217; Shri V V Giri v. Dippala Suri Dora
and Ors. (1960) 1 SCR 426 at 442; M.R. Ba/aji and Ors. v.
State of Mysore (1963) Supp (1) SCR 439; Vasanth Kumar
and Anr. v. State of Karnataka (1985) Supp SCC 714 - B
referred to.
10.1 Article 15(4) was not passed with an express
• ~
intention to include mi~ority institutions; nor did it arise
out of a case in which minority institutions were a party.
Then again, it was open to the First Parliament to exclude c
minority institutions from the beginning: Articles 15(4) and
15(5)'s purposes do not necessarily conflict. The first test
is inconclusive and thus turns to the other ones. The
second test asks which provision came into effect at a
later date (i.e., was "later in time?")? That which is later D
shall prevail. Here, 15(5) was enacted later in time. The
I
third test provides that the specific clause must trump the
general. Article 15(5) is specific in that it refers to special
provisions that relate to admission in educational
institutions, whereas 15(4) makes no such reference to E
the type of entity at which special provisions are to be
enjoyed. [para 255] [444-A-D]
10.2 Because 15(5) is later in time and specific to the
question presented, it must neutralize 15(4) in regard to
reservation in education. Constitutional articles are to be F
read harmoniously, not in isolation. This interpretation is
harmonious because Article 15(4) still applies to other
areas in which reservation may be passed. [para 256)
[444-E]
G
J.K. Cotton Spinning and Weaving Mills Co. Ltd. v. State
of Uttar Pradesh and Ors. AIR 1961 SC 1170; TM.A. Pai
Foundation and Ors. V State of Karnataka an.d Ors. (2002) 8
sec 481 - referred to.
11. Minorities possess one right or privilege that non- H
56 SUPREME COURT REPORTS [2008] 4 S.C.R.

A minorities do not: establishing and administering
institutions for their community. The right to admit your
own students in aided minority institutions was subject
to admitting a reasonable number of outsiders. In the
instant case, aided minority institutions stand to benefit
B from the Reservation Act: instead of having to admit a
reasonable number of outsiders they would be exempted
from reservation. However, their non-minority
counterparts would not. Does this elevate their status? >-- -
While it does to a certain extent, however, one must also
C keep our constitutional goal and philosophy in mind.
Given the ultimate goal of furthering a classless/casteless
society, there is no need to go out on a limb and rewrite
them into the Amendll'ent: Such a ruling would subject
even more institutions to caste-based reservation. This
would be a step back for the Nation, furthering the caste
D divide, and not agreeable to go in that direction. [para 269]
[449-F-H; 450-A]
12. U.S. law is, of course, not binding but does have
great persuasive value. This is because their problem of
E race is akin to our problem of caste. Where others have
reviewed similar issues in great detail, it behooves us to
learn from their mistakes as well as accomplishments.
[para 270] [450-C]
T.M.A. Pai Foundation and Ors. II. State of Karnataka
F and Ors. (2002) 8 SCC 481; Kera/a Education Bill; St.
Stephen's College v: University of Delhi (1992) 1 SCC 558;
Jsmalic Academy; St. Xavier's College (1975) 1 SCR 173 -
referred to.
13. In the marketplace, a candidate who has
G completed higher secondary education cannot be
considered "forward". The real value of the higher
secondary degree is that it is a prerequisite for college
admissions. The ge.neral, quality of education imparted
upto Plus 2 is of extremely indifferent quality and apart
1:1 from that, today some entry-level Government positions
( I

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 57

only accept college graduates. One is educationally A
~· backward until the candidate has graduated from a
university. Once he has, he shall no longer enjoy the
benefits of reservation. He is then deemed educationally
forward. For admission into Master's programmes, such
as, Master of Engineering, Master of Laws, Master of Arts 8
etc., nqne will be a fortiori eligible for special benefits for
-l admission into post graduation or any further studies

- -1
thereafter. [para 273] [451-F-H; 452-A]
14. Standards of excellence however should not be
limited to the best aided institutions. The Nation requires
that its citizens have access to quality education. Society
c
as a whole stands to benefit from a rational reservation
scheme. [para 275] [453-8)
15. Balaji serves as an example in which this Court D
sought to ensure that reservation would remain
reasonable. There should be no case in which the gap of
4 cut off marks between OBC and general category
students is too large. To preclude such a situation, cut off
marks for OBCs should be set no lower than 10 marks
E
below the general category. To this end, the Government
shall set up a committee to look into the question of
setting the OBC cut off at not more than 10 marks below
that of the general category. Under such a scheme,
whenever the non-creamy layer OBCs fail to fill the 27%
reservation, the remaining seats would revert to general F
I- category students. [paras 277 and 278) [453-E-H]
MR. Balaji v. State of Mysore (1963) Supp.(1) SCR 439
- referred to.
Per Raveendran J. G

1.1 Agreed with Hon'ble the Chief Justice and
Pasayat, J. it is agreed that clause (5) of Article·15 is valid
-..\
with reference to state maintained educational
institutions and aided educational institutions; and the H
I

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

A question whether Article 15(5) would be unconstitutional
on the ground that it violates the basic structure of the
Constitution, by imposing reservation in respect of
private unaided educational institutions is left open.
[Para A] [459-0-E]
B 1.2 Clause (4) of Article 15 is neither an exception nor
a proviso to clause (1) of Article 15. Clause (4) has been
considered to be an instance of classification inherent in
clause (1) and an emphatic restatement of the principle
implicit in clause (1) of Article 15. [Para 3]. [461-A]
c
State of Kera/a v. N.M. Thomas - (1976) 2 SCC 310,
K. C. Vas an th Kumar v. State of Karnataka - 1985 Supp. SCC
714 and Indra Sawhney v. Union of India - 1992 Supp. (3)
sec 217 - relied on.
D 1.3 Clauses (3) to (5) of Article 15 enable the State to
make special provisions in specified areas. While clause
(3) is a part of the Article as originally framed, Clause (4)
was added by Constitution (First Amendment) Act, 2005.
Each of these three. enabling provisions operate
E independent of each other. The opening words 'Nothing
in this article' occurring in each of these clauses (3), (4)
and (5) obviously refer to clauses (1) and (2) of Art. 15 and
not to the other enabling clauses. Clauses (3), (4) and (5)
of Article 15 are not to be read as being in conflict with
F each other, or prevailing over each other, but are to be
read harmoniously. [Para 3] [461-D-F]
2.1 It is agreed that (i) identification of other backward
classes solely on the basis of caste will be
unconstitutional; (ii) failure to exclude the 'creamy layer'
G from the benefits of reservation would render the
reservation for other backward classes under Act 5 of 2007
unconstitutional; and (iii) Act 5 of 2007 providing for
reservation for other backward classes will however be
valid if the definition of 'other backward classes' is clarified
H to the effect that if the identification of other backward
1 I

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 59

classes is with reference to any caste considered as A
\' socially and economically backward, 'creamy layer' of
such caste should be excluded. [Para B] [459-G-H;
460-A]
2.2 This Court in a series of decisions has explained
'
what is social and educational backwardness. All these 8
•'
decisions haye laid down the principle that caste cannot

-
be· made the sole or dominant test to determine
·{
backwardness, and any classification determining
backwardness only with reference to caste will be invalid.
These decisions recognized the fact that caste is not c
equated to class and all backwardness, either social or
educational, is ultimately and primarily due to poverty or
economic conditions. However, in Minor P. Rajendran, it
was held that if a caste, as a whole, is socially and
educationally backward then reservation can be made in D
favour of such a caste on the ground that it is a socially
and educationally backward class within the meaning of
Article 15(4). The decision followed Balaji and therefore
proceeded on the basis that where the extent of social
and educational backwardness of the caste in question E
is virtually the same as the social and educational
backwardness of Scheduled Castes and Scheduled
Tribes, reservation can be made on the basis of caste itself.
In that case, it was found as a question of fact that
members of certain castes as a whole, were socially and F
I- educationally backward, and therefore it was held that
reservation as the basis of caste was permissible in
respect of those castes. [Paras 7, 8) [463-G; 464-A-F]
2.3 Neither Rajendran nor Periakaruppan nor Vasanth
Kumar really departed from or diluted the principle laid G
down in Balaji. On the other hand, the principle laid down
in Balaji was reiterated. Rajendran and Periakaruppan only
.., show that in extreme cases where it is found that the caste
under consideration was, as a whole, socially and
educationally backward, and therefore aktn to a Scheduled H
~ -

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

A Caste, reservation can be made on· the basis of caste
alone. [Para 9] [465-8-C] -i..

2.4 Vasanth Kumar held that only a caste comparable
to the Scheduled Castes and Scheduled Tribes in the
matter of backwardness, could be considered to be a
8 socially and educationally backward class in favour of
which reservation could be made merely on the basis
of caste. Vasanth Kumar therefore, reiterated Ba/aji.
(Para 8] [464-H; 465-A]
c 2.5 Indra Sawhney certainly went a step further than
Balaji and other cases in holding that a caste can be the
starting point for determination of backwardness. But it
is clear from the decision that caste itself is not the final
destination, that is, a caste by itself, cannot be
determinative of social and educational backwardness. A
0
caste can be identified to be socially and economically
backward, only when the creamy layer is removed from
the caste and a compact class emerges which can be
identified as a socially and educationally backward class.
E Thus the determination is not by first identifying a caste
as a socially and educationally backward class and,
thereafter, remove or exclude the creamy layer for the
purpose of bestowing the benefits flowing to such class.
On the other hand, until and unless, the creamy layer is
removed from a caste, there is no compact class which
F can be termed as socially and educationally backward
class at all. Thus, while the process of identifying socially
and educationally backward class can conveniently start
with a socially and educationally backward caste, remove
the creamy layer therefrom results in the emergence of
G compact class which can be termed as a socially and
educationally backward class. In this sense, it can be said
that Indra Sawhney is only a development of the principles
laid down in Balaji, R. Chitralekha and Vasanth Kumar, which ,.
pointed out that the advanced section of a backward
H caste constituting the creamy layer is virtually the same
' I

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 61

as forward class. If the creamy layer is not excluded the A
-I benefit of reservation will be appropriated by such
advanced sections. [Para 12] [467-B-G]
2.6 When Indra Sawhney has held that creamy layer
should be excluded for purposes of Article 16(4), dealing
with 'backward class' which is much wider than 'socially B
and educationally backward class' occurring in Article
15(4) and (5), it goes without saying that without the
removal of creamy layer there cannot be a socially and
educationally backward class. Therefore when a caste is
identified as a socially and educationally backward caste, c
it becomes a 'socially and educationally backward class'
only when it sheds its creamy layer. [Para 12] [468-B-D]
Indra Sawhney vs. Union of India, 1992 Supple. (3) SCC
217; M.R. Balaji v. State of Mysore 1963 Supp. (1) SCR 439;
D
R. Chitralekha v. State of Mysore (1964) 6 SCR 368; State of
Andhra Pradesh v. P Sagar (1968) 3 SCR 595; Janki Prasad
i Parimoo v. State of Jammu & Kashmir (1973) 1 SCC 420;
State of Ke.rala v. N. M. Thomas (1976) 2 SCC 31 O;
K. C. Vasanth Kumar v. State of Kamataka 1985 Supp. SCC
714; A. Peeriakaruppan vs. Sabha Joseph (1971) 1 SCC E
38; Ashoka Kumar Thakur v. State of Bihar - (1995) 5 SCC
403; Indra Sawhney v. Union of India(//) - (1996) 6 SCC 506
and M.Nagaraj v. Union of India - (2006) 8 SCC 212 - relied
.; on.
F
f- 2.7 Caste has divided this country for ages. It has
hampered its growth. To have a casteless society will be
l
realization of a noble dream. To start with, the effect of
reservation may appear to perpetuate caste. The
immediate effect of caste based reservation has been
G
l rather unfortunate. In the pre-reservation era people
' wanted to get rid of the backward tag - either social or
economical. But post reservation, there is a tendency even

" among those who are considered as 'forward', to seek
'backward' tag, in the hope of enjoying the benefits of
H
62 SUPREME CO!JRT REPORTS [2008] 4 S.C.R.

A rese.rvations. When more and more people aspire for
'backwardness' instead of 'forwardness' the country itself
stagnates. Be that as it may. Reservation as an affirmative
action is required only for a limited period to bring forward
the socially and educationally backward classes by giving
B them a gentle supportive push. But if there is no review
after a rea~onable period and if reservation is continued,
the country will become a caste divided society
permanently. li:tstead of developing an united society with
diversity, we will end up as a fractured society for ever
C suspicious of each other. While affirmative discrimination
is a road to equality, care should be taken that the road
does not become a rut in which the vehicle of progress
get$ entrenched and stuck. Any provision for reservation
is a temporary crutch. Such crutch by unnecessary
prolonged. use, should not become a permanent liability.
0
It is significant that Constitution does not specifically
prescribe a casteless society nor tries to abolish caste.
But by barring discrimination in the name of caste and by
providing for affirmative actioi;i Constitution seeks to
remove the difference in status on the basis of caste.
E When the differences in status among castes are
removed, al.I. castes will become equal. That will be a
beginning for a casteless egalitarian society. [Para 13]
[468-E-H; 469-A-C]
F 3. Agreed with Hon'ble the Chief Justice. The Central
Educational Institutions (Reservations in Admissions) Act,
2006 is not invalid merely because no time limit is·
prescribed for caste based reservation, but preferably
there should be a review after ten years to take note of
the change of circumstances. A genuine ·measure of
G
reservation may not be open to challenge when made.
But during a period of time, if the reservation is continued
in spite of achieving the object of reservation, the law
which was valid when made, may become invalid. [Para B]
H [460-B-C]
' I
ASHOKA KUMAR THAKUR v. UNION OF INDIA& ORS. 63

4.1 Agreed with Hon'ble the Chief Justice, that A
,\
reservation of 27% for other backward classes is not
illegal. [Para D] [460-E]
4.2 However, the question whether members
belonging to other backward classes who get selected in
B
the open competition field on the basis of their own merit
should be counted against the 27% quota reserved for
other backward classes under an enactment enabled
by Article 15(5) of the Constitution, would be left open.
[Para D] (460-F-G]
c
WRIT APPELLATE JURISDICTION : Writ Petition (Civil)
No. 265 of 2006.
WITH
W.P. (C) Nos. 269 &598 of2006, I.A. No. 5, W.P. (C) Nos. D
29, 35, 53, 336, 313, 335, 231, 425 &428 of 2007 & Contempt
Petition (C) No. 112/07 in W.P. (C) No. 265 of 2006.
1
G.E. Vahanvati, Sol. Gen. of India, Gopal Subramanium,
ASG., Shail Kumar Dwivedi, JayshreeAnand, Manjit Singh, J.S.
Attri and Aruneshwar Gupta, AAGs .. R. Viduthalai and Sonam E
I P. Wangdi, AGs., F.S. Nariman, Dr. Rajeev Dhavan, P.P. Rao,
K. Parasaran, Indra Jai Singh, T.R. Andhyarujuna, Rakesh
Dwivedi, Ravivarma Kumar, Ram Jethmalani and Ranjeet
Kumar, Vikas Mehta, Gopal Sankaranarayanan, Arjun Suresh,
M.L. Lahoty, Pabal'l K. Sharma, Poonam Lahoty, Himanshu F
Shekhar, Anurag Sharma, Prashant Kumar, Sushi! Kumar Jain,
Uttra, Kiran Suri, Anirudh Sharma, Shashi Bhushan,
Purushottam S.T., Abhishek Gupta, Anshuman Ashok, H.S.
Uppal, Ruchita Uppal, Mohan Pandey, Subramonium Prasad,
Raghavendra Srivatsa, Hari Kumar G., Abhay Kumar, Karan G
Mehta, R. Gopala Krishnan, Jai Kishore Singh, Pratibha Jain,
Puneet Jain, Christi Jain, H.D. Thanvi, Aprajita Singh, Amish
.\ Jha, Vivekanand, Kamal Deep, Pawan Kumar, Devadatt Kamat,
Hrishikesh Baruah, Chinmoy Pradip Sharma, T.S. Murthy,
Arunabh Patnaik, Rohit Sharma, Sparsh Bhargav, Sushma Suri, H
64 SUPREME COURT REPORTS [2008] 4 S.C.R.
-
A Garvesh Kabra, Shrish Kumar Misra, Vandana Mishra, S.
Wasim A. Qadri, Manoj Kumar Dwivedi, V.G. Pragasam, S.
Joseph Aristotle, S. Prabu Ramasubramanian, Majoj Saxena,
Rajnish Kr. Singh, Rahul Shukla (for T.V. George}, G. Prakash,
Beena Parkash, K.N. Madhusoodhanan, R. Sathish, Ranjan
s Mukherjee, S.C. Ghosh, Minakshi Sarma, Riku Sarma (Mis.
Corporate Law Group), K.H. Nobin Singh, Tarun Jamwal, David
Rao, Biswajit Meitei, Atul Jha, D.K. Sinha, S.S. Shinde, Asha
G. Nair, Ashok Bhan, Su nil Roy, Alka Sharma, Aman Sinha, Kiran
Bhardwaj, Anita Sahani (for D.S. Mahra), Naveen Kumar Singh,
c Shashwat Gupta, A Mariarputham, Aruna Mathur (M/s. Arputham ·
Aruna & Co.), Dr. Kailash Chand, Prashant Bhushan, 8.8.
Singh, Avijit Bhattacharjee, Anil Katiyar, Amitesh Kumar, Gopal
Singh, Vishwajit Singh, K.K. Mahalik, Kuldip Singh, Arun K.
Sinha, Anil Shrivastav, A. Subba Rao, D.L. Chidananda, Nikhil
D Nayyar, Ankit Singhal, Rameshwar Prasad Goyal, C.G. Solshe,
Janaranjan Das, Swetaketu Mishra, T.V. George, Sanjay R.
Hegde, Amit Kr. Chawla, Vikrant Yadav, Rituraj Biswas, Mohit
. Kumar Shah, Gaurav Liberhan, Shantanu Krishna, Amit Singh,
Mukti Chaudhry, Pritika Dwivedi, Anant Prakash, Abhishek
Chaudhary, U. Hazarika, Satya Mitra, Sumita Hazarika, V.K. Biju,
E D.K. Garg, Abhishek Garg, Vikas Upadhyay, S.S. Banthia, S.
Chandra Shekhar, Sbiva Pujan Singh, Prabhash KumarYadav,
Ramji Prasad Kushwaha, K. Balu, R. Yadav, Vikas Rojipura,
!=.C. Vidyasagar, Lata Krishnamurti, Saurabh Ajay Gupta, S.
Srinivasan, Ritu Raj. Singh, Vivek 8.0., Ranbir Yadav,
F Madhusmita Bora, S. Balaji, S.R. Sharma and Kamal Gupta,
for the Appearing parties.
The Judgments of the Court was delivered by
K.G. BALAKRISHNAN, C.J.I. 1. Reservation for
G admission in educational institutions or for public employment
has been a matter of challenge in various litigations in this Court
as well as in the High Courts. Diverse opinions have been
expressed in regard to the need for reservation. Though several
grounds have been raised to oppose any form of reservation,
H few in independent India have voiced disa~;;-eement with the
( )

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 65
[K.G. BALAKRISHNAN,'C.J.I.]

proposition that the disadvantaged sections of the population A
deserve and need "special help". But there has been
consid~rab.le disagreement as to which category of
disadvantaged sections deserve such help, about the form this
help ought to take and about the efficacy and propriety of what
the government has done in this regard. B
2. Pandit Jawaharlal Nehru, who presided over the
Congress Expert Committee emphasized before the Constituent
Assembly that the removal of socio-economic inequalities was
the highest priority. He believed that only.this could make India
a casteless and classless society, without which the Constitution C
will become useless and purposeless 1 . The Founding Fathers
of the Constitution were thus aware of the ripples of inequality
present in society, decried the notion of caste and ensured that
the Constitutional framework contained adequate safeguards
that would ensure the upliftment of the socially and educationally D
backward classes of citizens, thus creating a society of equals.
The interpretation of the term "socially and educationally
backward", and its constituent classes, was left for future
generations to decide.
3. Regarding equality, Dr. Ambedkar stated in the E
Constituent Assembly2 :
" ... We must begin by acknowledging the fact that there is
complete absence of two things in Indian Society. One of
these is equality. On the social plane, we have in India a F
society based on the principle of graded inequality which
means elevation for some and degradation for others. On
the economic plane, we have a society in which there are
some who have immense wealth as against many who
live in abject poverty."
G
4. Judge Lauterpacht of the International Court of Justice,
writing in 1945, described the importance of the principle of
1
11 ConstituentAssembly Debates 317 (Wednesday, Janu'ary 22, 1947)
2
XI Constituent Assembly Debates 979 (Friday, November 25, 1949) H
l I

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

A equality in the following words:-
"The claim to equality before the law is in substantial
sense tlie most fundamental of the rights of man. It occupies
the first place in most written constitutions. It is the starting
point of all other liberties." 3
B
5. Equality has also been enshrined in various international
instruments, such as the 1948 Universal Declaration of Human
Rights. Its Preamble speaks of "the equal and inalienable rights
of all members of the human family", and of "the equal rights of
c men and women."4
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
D 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
E 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
F of university, education, without ever being able to realize it. This
advantage is necessary. In the words of President Lyndon
Johnson,
"You do not take a person who, for years, has been
hobbled by chains and liberate him, bring him up to the
G starting line and then say, 'You are free to compete with
~
3 Lauterpacht, An International Bill of the Rights of the Man (New York,
Columbia University Press, 194,5) .
4
Universal Declaration of Human Rights, pmbl., G.A. Res. 217A, U.N.
.
GAOR, 3rd Sess., pt. 1, at 71, U.N. DocA/810 (1948)
H
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 67
[K.G. BALAKRISHNAN, C.J.I.]

all the others ... "5 A
. 7. Dr. Rajendra Prasad, at the concluding address of the
Const.ituentAssembly, 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 B
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 ... "6 c
8. 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 D
may be common. As stated by Justice Ruth Bader Ginsburg at
the 51 st Cardozo Memorial Lecture, in 1999 :
"In my view, comparative analysis emphatically is relevant
to the task of interpreting constitutions and enforcing
human rights. We are losers if we neglect what others can E
tell us about endeavours to eradicate bias against women,
· -- minorities and other disadvantaged groups. For irrational
prejudice and rank discrimination are infectious in our
world. In this, reality, as well as the determination to counter
it, we all share." F
9. 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 G
Classes (OBCs), Scheduled Castes (SCs) and Scheduled

5
President Lyndon B. Johnson, Howard University Commencement
Address, 'To Fulfill These R.ights", June 4, 1965
6
V Constituent Assembly Debates 2 (Thursday, the 14th August 1947) H
68 SUPREME COURT REPORTS [2008] 4 S.C.R.

A 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
B 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
c the manner in which they have analysed and presented the case
before us which is of great importance, affecting large sections
of the community.
10. By The Constitution (Ninety-Third Amendment) Act,
2005, clause (5) was inserted in Article 15 of the Constitution
D 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
E 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
F clause (1) of article 30."
11. In Unni Krishnan, J.P. & Ors. Vs. State of Andhra
Pradesh & Ors. 7 . it was held that right to establish educational
institutions can neither be a trade or business nor can it be a
G profession within the meaning of Article 19(1}(g). This was
overruled in T.M.A. Pai Foundation & Ors. Vs. State of
Karnataka & Ors. 8 , wherein it was held that all citizens have

7
1993 (1) sec 645
H s 2002 (8) sec 481
,.. ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 69
[K.G. BALAKRISHNAN, C.J.I.]
the fundamental right to establish and administer educational A
-+
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 B
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 c
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
D
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 :- E

"At present, the number of seats available in aided or
State maintained institutions, partiqilarly in respect of
professional education, is limited in comparison to those
in private unaided institutions. F
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 G
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." H
70 SUPREME COURT REPORTS [2008] 4 S.C.R.
-
·A 12. After the above Constitution (Ninety-Third Amendment)
Act, 2005, the Parliament passed The Central Educational
Institutions (Reservation in Admission) Act, 2006 (No. 5 of 2007)
(hereinafter referred to as "the Act 5 of 2007").

13. Section 3 of Act 5 of 2007 provides for reservation of
B 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 : -

"3. The reservation of seats in admission and its extent in
c 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;
D
(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
E of study or faculty, twenty-seven per cent seats shall
be reserved for the Other Backward Classes."

14. "Central Educational Institution" has been defined
under Section 2(d} of the Act as follows:

F 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;
G
(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;
H
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 71
[K.G. BALAKRISHNAN, C.J.1.]

(iv) an institution maintained by or receiving aid from the A
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,
referre.d to in clause (iii);
(v) an educational institution set up by the Central B
Government under the Societies Registration Act,
1860.
15. The percentage of reservation to various groups such
as Scheduled Castes, Scheduled Tribes and Other Backward c
Classes are with reference to the annual permitted strength of
the Central Educational Institutions and the "annual permitted
strength" is defined under Section2(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 D
in each branch of study or faculty authorized by an
appropriate authority for admission of students to a Central
Educational Institution
16. Section 4 of the Act specifically says that the provisions
of Section 3 shall apply to certain institutions. Section 4 reads E
as under:-

4. The provisions of Section 3 of this Act shall no~ apply
to -
(a) a Central Educational Institution established in the F
tribal areas referred to in the Sixth Schedule to the
Constitution;
(b) the institutions of excellence, research institutions,
institutions of national and strategic importance G
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;
H
72. SUPREME COURT REPORTS [2008] 4 S.C.R.

A (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
B Government may, in consultation with the appropriate
authority, specify."
17. "Minority Educational Institution" is defined in Section
2(f) of the Act as follows:-
C "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
D National Commission for Minority Educational Institutions
Act, 2004"
18. Section 2(g) defines "Other Backward Classes" as
under:- .
E "Other Backward Classes" means the class or classes of
citizens who are socially and educationally backward, and ,

are so determined by the Central Government" \

19. Clause 2(h) defines. "Scheduled Castes" and clause
2(i) defines "Scheduled Tribes" as under:
F
"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.
G
20. Section 5 of the Act mandates the increase of seats in
the Central Educational Institutions by providing reservation to
Scheduled Castes, Scheduled Tribes arid Other Backward
Classes. Section 5 reads as follows:-
H "5.(1) Notwithstanding anythi1g contained in clause (iii) of
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 73
[K.G. BALAKRISHNAN, C.J.I.]

section 3 and in any other law for the time being in force, A
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 B
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 · C
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 D
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 E
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 F
are commensurate with the increase in the permitted
strength for each year."
21. 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 G
Government whether directly or indirectly, and affiliated to any
university or deemed university or institution of national
importance, in addition to universities which are established or
incorporated under a Central Act, institutions of national
importance set up by Acts of Parliament, deemed universities H
74 SUPREME COURT REPORTS [2008] 4 S.C.R.

A 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 iil. reservation in only such institutions which are
B defined as "Central Educational Institutions" and not any other
private unaided institutions.

22. The Statement of Objects and Reason~ for the Act
gives the object of the Act thus :-

"Greater access to higher education including professional
. '

c
education, to a larg~ number of students belonging to the
socially and educationally backward classes of citizens or
for the Scheduled Castes and Sched\Jled Tribes, has been
a matter of major concern. The reservation of seats for the
Scheduled Castes, the Scheduled Tribes and the Other
D
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
E in comparison to those in private unaided institutions.

2. 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
F 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.
G
3. 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
H administered by them. Accordingly, institutions declared
~
'
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 75
[K.G. BALAKRISHNAN, C.J.I.]

by the State to be minority institutions under clause (1) of A
article 30 are omitted from the operation of the proposal.
4. 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
B
in matters of admission of students belonging to these
categories in unaided educational institutions, other than
the minority educational institutions referred to in clause
. I ~ (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 c
laws for the purposes mentioned above.

5. The Bill seeks to achieve the above objects."
23. The Constitution (Ninety-ThirdAmendment)Act, 2005,
by which Article 15(5) was inserted in the Constitution, is D
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 E
importance of these questions, all these writ petitions were
referred to a Constitution Bench.

24. We have heard learned Counsel appearing for the
various petitioners. The learned Senior Counsel, Shri Harish
/. Salve, Shri F.S. Nariman, Shri K.K. Venugopal, Shri P.P. Rao F
and Dr. Rajeev Dhavan and learned Counsel Shri Sushi! Kumar
Jain addressed the main arguments on behalf of the petitioners.
Shri Ashok Kumar Thakur appeared in person. Supporting the
Constitution (Ninety-Third Amendment) Act, 2005 and the
provisions of the said Act, learned Senior Counsel Shri K. G
Parasaran, appearing for the Union of India, learned Solicitor
General Shri G.E. Vahanvati and learned Additional Solicitor
• General Shri Gopal Subramanium submitted arguments. We
have also heard learned Senior Counsel Shri Ram Jethmalani,
Shri T.R.Andhyarujina, Ms. Indra Jaisingh, Shri Rakesh Dwivedi H
\ l
76 SUPREME COURT REPORTS [2008) 4 S.C.R.

A and Shri Ravivarma Kumar. We also had the advantage of the
~
written submissions made by these Counsel.
25. The arguments advanced against the Constitution
(Ninety-Third Amendment) Act, 2005 and Act 5 of 2007 can be
summarized as follows.
B
26. It was contended by Shri Harish Salve, learned Senior
Counsel, who confined his arguments to the constitutionality of
the provisions of the Act, especially sub-clause (3) of Section 3
of the Act which deals with the reservation to the extent of 27% > '
·c of the total number of seats for the "socially and educationally
backward classes of citizens". According to him, the admission
to educational institutions should be based purely on merit and
to allow the State to prefer a student with lesser merit over those
who would have otherwise got admission, is ex facie
discriminatory. It is submitted that all obviously discriminatory
D
laws are violative of the rule of equality and it is for the State to
maintain the principles of equality and to establish the need for
such laws as well as their validity. It was further argued that Article
15(5) does not protect the validity of the Act and that the provision
in the Act for preferential admission solely on the basis of caste
E would violate Article 29(2) of the Constitution, as has been laid
down in The State of Madras Vs. Srimathi Champakam
Dorairajan 9 . It was also argued that Article 15(5) could be
construed as an exception to Article 15( 1) and affirmative action,
if excessive, is bound to result in reverse discrimination which
F is not permissible. According to the learned Senior Counsel, ~
this is not a genuine social engineering measure but vote bank
politics and would create permanent fissures in society. It was
argued that the provisions of the Act are facially violative of Article
14 and it could only be justified on the basis of compelling State
G necessity. A greater degree of compulsion is necessary to
establish a compelling State necessity than what is ordinarily
required to be shown in the case of economic legislation. The
learned Senior Counsel dealt in detail with the argument that ;.

9
H 1951 SCR 525
f- J
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 77
[K.G. BALAKRISHNAN, C.J.I.]

the backward classes cannot be defined solely on the basis of A
A-
caste and reference was made to various decisions of this Court.
Th~ learned Senior Counsel particularly referred to various
~
decisions of the Supreme Court of the United States and
contended that this kind of legislation, that is, the impugned Act,
attempting affirmative action is to be treated as "suspect B
legislation" and it has to undergo the tests of "strict scrutiny"
and "compelling state necessity". Finally, the learned Counsel
argued that non-exclusion of creamy layer is per se illegal and
~
contrary to what has been laid down by t.his Court in Indra
Sawhney Vs. Union of India & Ors. 10 . c
27. 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.
The learned Counsel was of the view that both the Act as well
as the Constitution (Ninety-Third Amendment) Act, 2005 have D
to be declared ultra vires the Constitution.
28. Dr. Rajeev Dhavan, learned Senior Counsel appearing
for the petitioners in Writ Petition No. 53/2007 contended that
the affirmative action scheme under Article 15(4), 15(5) and
16(4) has to comply with the mandate of Article 14, 15(1) and E
16(1) of the Constitution. It was argued that these are only
enabling provisions and not part of the fundamental rights.
"Notwithstanding", as used in Article 15(3), 15(4) and 15(5)
cannot be construed as "notwithstanding the declaration of
equality principle". In view of the decision of this Court in F
Champakam Dorairajan (supra) admission quotas are
impermissible on any ground based solely on religion, race,
caste or any one of them. It was argued that there is a lack of
criteria for identification of Other Backward Classes (OBCs)
and Socially and Educationally Backward Classes (SEBCs). G
The concept of creamy layer is applicable to Article 15 and
Article 16 and non-exclusion of creamy layer in the Act is illegal.
"* Further it was argued that quota should not be a punishment for

10
1992 Supp. (3) sec 215 H
\ J

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

~ unreserved categories and there should not be any reverse
discrimination. The learned Senior Counsel further challenged
the constitutional validity of Constitution (Ninety-Third
Amendment) Act, 2005 and contended that it is against the basic
structure of the Constitution. The procedure laid down under
3 Article 368 has not been followed. It was contended that the
proviso to Article 368 of the Constitution requires ratification of
the Constitution (Ninety-Third Amendment) Act, 2005 by one
half of the States. The amendment seeks to nationalize the
private educational institutions which is unreasonable and
~
_, .impermissible and reference was made in this regard to T.M.A.
Pai Foundation (supra). It was argued that Act 5 of 2007 is
unreasonable, arbitrary, capricious and contrary to Articles 14
and 21 of the Constitution. He elaborated his arguments on the
basis of the tests laid down in the M. Nagaraj & Ors. Vs. Union
of India & Ors. 11 and l.R. Coelho (Dead) by LRS. Vs. State
O of T.N. 12 cases and lastly, submitted that both Act 5 of 2007
and The Constitution (Ninety-Third Amendment) Act, 2005 are
liable to be declared as ultra vires the Constitution.
29. Dr. Rajeev Dhavan elaborately argued that perusal of
•E the history of the reservations from 1880 to 2007 for OBCs and
SEBCs showed that there was no emphasis on communities ·
by the British regime and community based criteria was held to
be illegal in Champakam Dorairajan (supra). From 1950 to
1970, there was no proper inquiry for ascertaining the OBCs or
F SEBCs. The learned Counsel emphasized that in Indra
Sawhney's case (supra), caste was excluded as a criteria and
the identification of SEBCs or OBCs based on caste could not
operate for both Articles 15(4) and 16(4). According to the
learned Senior Counsel, the criteria for identifying SEBCs
G should be based on the atrocities inflicted on that class,
discriminatory patterns followed against that class,
disadvantage suffered by that class and disempowerment in

11
(2006) asec 212
H 12
(2007) 2 sec 1 •
l}
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 79
[K.G. BALAKRISHNAN, C.J.I.]

respect of the power of the State and political non- A
...
representation. The class should also be relatively
homogeneous in nature.
30. According to the learned Senior Counsel, there is a
lack of criteria for fixing SEBCs or OBCs and this case is being
taken to excite vote-banks. It was argued that the 27% of B
reservation under the Act of 2007 was based on criteria which
did not exist. It was contended that the creamy layer principle is
applicable to OBCs and also to SCs and STs. It was argued
that historic discrimination is not a valid criteria for determining
the beneficiaries of affirmative action and the correct approach c
is to look at the continuing wrong and not past discrimination
and that the quotas should not be a punishment for the non-
reserved category resulting in reverse discrimination. The
learned Senior Counsel contended that the Ninety-Third
Amendment is against the basic structure of the Constitution. It D
was argued that the Doctrine of Equality is adversely affected
, by giving a wide and untrammeled enabling power to the Union
Legislature that may affect the rights of the non-OBCs, SCs and
STs. It was argued that the balance between what was referred
to as the "Golden Triangle" in Minerva Mill!! Ltd. & Ors. Vs. E
Union of India & Ors. 13 has been totally nullified by the Ninety-
Third Amendment. It was argued that the legislative declarations
of facts are not beyond judicial scrutiny and the court can tear
the veil to decide the real nature of the statute and decide the
constitutional validity. It was argued that the Act 5 of 2007 is F
I-
subject to judicial review on the ground that its unreasonable
and clear criteria have not been laid down to identify OBCs and
there was no compelling necessity other than political patronage.
31. Shri K.K. Venugopal, learned Senior Counsel
appearing in W.P. (Civil) No. 598 of 2006 contended that Articles G
15(4) and 15(5) are mutually exclusive with the former concerning
admissions to aided institutions and the latter concerning
~
admissions to unaided institutions. Article 15(5) expressly used

13
AIR 1980 SC 1789 = (1980) 3 sec 625 H
80 SUPREME COURT REPORTS [2008] 4 S.C.R.

A the phrase "whether aided or unaided", making it clear that it is
not merely restricting itself to unaided institutions. Therefore, it
is argued that from the very inception of the Constitution, Article
15(4) was a provision and was the source of legislative power
for the purpose of making reservation for the Scheduled Castes,
B Scheduled Tribes as well as the Socially and Educationally
Backward Classes of citizens in aided minority educational
institutions. On the other hand, Article 15(5), which provides
reservation of seats for SCs and STs as well as SEBCs in aided
educational institutions expressly excludes such reservation
C being made at all in minority educational institutions covered
by Article 30(1) of the Constitution. According to him, it would
take away the valuable rights of OBCs, SCs and STs given by
the State under Article 15(4) of the Constitution and this would
result in annulling the endeavour of the founding fathers of the
Constitution and would result in exclusion of SCs and STs from
0
the mainstream of the society and stall their development for
centuries to come. According to the learned Counsel for the
petitioners, the argument of the Union of India that Article 15(4)
and 15(5) are both enabling provisions and both will stand
together and both can be complied with is incorrect. It was
E argued that Article 15(4) operates with a qualification that nothing
in Article 15 or in Article 29(2) of the Constitution shall prevent
the State from making special provision for SCs and STs as
well as SEBCs while Article 15(5) operates with a qualification
that "nothing in Article 15 or Article 19(1 )(g)" shall prevent the
F State from making such special provisions for SCs and STs as
well as SEBCs. The qualifying words in Article 15(4) do not have
any real meaning or effect for the reason that both Article 15(1)
as well as Article 29(2) prohibit discrimination on grounds only
of religion and/or for caste. Therefore, it is argued that there is
G a direct conflict betw~enArticle 15(4) and 15(5). As both Articles
contain an exclusionary clause excluding the operation of the
rest of Article 15. It was contended that The Constitution (Ninety-
Third Amendment) Act, 2005 is violative of the basic structure
as it breaches the central character of the Constitution by placing
H the minority educational institutions based on religion on a
( ~
ASHOKA KUMAR lHAKUR v. UNION OF INDIA & ORS. 81
[K.G. BALAKRISHNAN, C.J.I.]

).
special footing and exempting it from bearing the common A
burden of reservation for SCs, STs and SEBCs. It was argued
. that such exclusion of minority institution is not severable from
Article 15(5). As regards the validity of the Act 5 of 2007, it failed
to exclude the "creamy layer" from the caste which would render
the identification of the "caste" as "backward class" which is B
unconstitutional and void. Their inclusion would result in unequals
being treated as equals and result in giving the benefit of
reservation to. the advanced sections in that caste. The
consequences would be that the inclusion of the caste for the
benefit of reservations would be purely on the basis of caste c
only thus violating Article 15(1) and Article 29(2) of the
Constitution. The doctrine of severability does not apply and
therefore, the Act 5 of 2007 is unconstitutional and void to the
extent that it does not provide exclusion of 'creamy layer' from
the SEBCs. Therefore, it was prayed that both The Constitution
D
(Ninety-Third Amendment) Amendment Act, 2005 as well as the
Act 5 of 2007 be struck down as unconstitutional.
32. Shri F.S. Nariman, learned Senior Counsel appearing
forthe petitioners in W.P. (Civil) No. 35 of2007, contended that
the caste cannot be the sole criteria for determining the socially E
and educationally backward classes under Article 15(4) and
15(5) of the Constitution and the test for Article 15(5) has to be
"occupation cum income" where caste may or may not be one
of the many considerations having a nebulous weightage, and
alternatively without conceding if caste at all is taken as one of F
the many considerations then it can only be those castes which
satisfy the test of similarity with Scheduled Castes/Scheduled
Tribes. It was argued that the decision of this Court in
R. Chitralekha & Anr. Vs. State of Mysore·& Ors. 14 still
occupies the field for the purpose of Article 15 and the decision
G
in R. Chitralekha's case (supra) was affirmed by the Bench in
. Indra Sawhney's case (supra). It was argued that OBCs are
1· •·. already educationally forward a~d no reservation in higher

14
(1964) 6 SCR 368 H
\ I

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

A education is justified. The learned Senior Counsel relied on the
literacy rate by age groups as quoted in the Sachar Committee
Report. It was contended that in data given in the judgment in
Indra Sawhney's case (supra), OBCs were not taken as
educationally backward?. According to the learned Senior
B Counsel for the petitioners, there can only be presumption of
forwardness of OBCs and they are not backward. The burden
is on the Government to provide that the intended beneficiaries
are really backward citizens. The OBCs have not suffered social
inequalities or oppression that had been inflicted on Scheduled
c Castes and Scheduled Tribes by the society and, according to
the learned Senior Counsel, the caste-occupation nexus barely
survives today and is a misleading guide. The caste based
occupation association has been rapidly disappearing from the
Indian society. For Articles 15(4) and 15(5), economic
consideration has to be the dominant criterion. The non-
0
exclusion of "creamy layer" is illegal and it was intended to
safeguard the really deprived and backward people among the
so-called OBCs. It was contended that the Government has not
published the list of OBCs for Article 15(5) and the Union of
India has not been able to produce the list or the criteria for
E determining the SEBCs. No time frame has been fixed for such
reservation. Therefore, the Act 5 of 2007 is violative of Article
14 of the Constitution of India and is thus unconstitutional.

33. Appearing for the Writ Petitioner in W.P. (Civil) No.
F 231/2007 filed by the Citizens for Equality, the learned Senior
Counsel Shri P.P. Rao contended that the mandate of Article 45
to provide free and compulsory education for all children until
they complete the age of 14 years has not been complied with
by the Government and therefore, there is clear violation of
Article 20 of the Constitution. Although the Sarva Shiksh.a
G Abhiyan (SSA) Project was introduced with certain objectives,
these objectives were not fulfilled. The Constitution seeks to
achieve a casteless and classless society. The.refore,
identification of socially and educationally backward classes
should be based on such criteria which facilitate the eradication
H
t )
ASHOKA KUMAR THAKUR v. UNION OF !NOIA & ORS. 83
[K.G. BALAKRISHNAN, C.J.1.]

of the caste system. The educational backwardness of the A
backward classes and the SEBCs should be removed and once
this educational backwardness is removed, clause 4 and 5 of
Article 15 will become redundant and unnecessary. It was
argued that without ensuring that every child belonging to a
backward class is provided free and compulsory education upto B
10+2 level any reservation provided in higher education is
discriminatory inter se between members of the backward
classes themselves and violative of Articles 14 and 15 of the
Constitution. Education upto secondary school level should be
the measure for determining educational backwardness. The c
social and educational backwardness referred to in Article 15(4)
requires separate identification of SEBCs. Agricultural
labourers, rickshaw pullers/drivers, street hawkers etc. may well
qualify for being designated as "backward classes" According
to petitioner's learned Senior Counsel, a rational basis would
0
be to identify backward classes through occupations traditionally
considered to be inferior, yielding low income. It was argued
that in any event, the "creamy layer" among the socially and
educationally backward classes is liable to be excluded.
34. Shri Sushil Kumar Jain, learned Counsel appearing in E
W.P. (Civil) No. 598 of 2006, elaborately argued the issues
involved in this case. The main contention of the petitioner's
Counsel is that the "affirmative action" policy of the Government
of India is discriminatory and against general public interest.
The policy is intended to "uplift" the so called socially and F
educationally backward sections of the society by the process
of positive discrimination. It was argued that the Ninety-Third
Constitutional Amendment is destructive of the basic structure
of the Constitution as it destroys the delicate balance of the
various fundamental rights that the citizens of the country enjoy. G
The provision of Article 15(5) was inserted as a proviso to Article
19(6) which has been held to be unreasonable and against the
constitutional scheme. Article 15(5) makes an exception for the
minority institutions covered under Article 30 and therefore treats
them differently from other private institutions. The Central H
\ I

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

A Education Institution (Reservation in Admission) Act, 2007which
has been enacted in purported exercise of the said powers, is
in excess of the said powers. Since the target beneficiaries of
Article 15(5) have not been identified with a necessary degree
of specificity, the Act 5 of 2007 is illegal. There ought to be a
B quantitative correlation between the benefits conferred and the
extent of the "problem" sought to be remedied, the correlation
being "reasonable" and not "proportionate". The Act 5 of 2007
does not provide the manner or the principles on which the .
identification of OBC is to be made. Therefore, it lacks the
c necessary nexus with the ultimate objects sought to be achieved.
The reservation of seats for the "beneficiaries" for many years
to come without any provision for review gives rigidity and
permanency to such measures. This would result in excessive
reservation and thereby cause reverse discrimination. The
100% quota in the additional seats that will be created in the
0
educational institutions is facially discriminatory. Identification
of SEBCs on the basis of caste creates vested interest in
backwardness. Therefore, the measures and means chosen
by the Government are therefore unethical to the constitutional
goals. Failure to exclude "creamy layer" allows conferment of
E benefits on undeserving persons. The action of the State
Governments lacks in the basic details of the extent of the
measure. The exact social malaise sought to be remedied is
not clear.
F 35. The learned Counsel for the petitioner further
contended that the Ninety-Third Constitutional Amendment
violates the basic structure of the Constitution. This Court clarified
the rights of the private educational institutions in terms of Article
19(1)(g) of the Constitution in T.M.A. Pai Foundation case
(supra) as explained in P.A. Inamdar & Ors. Vs. State of
G Maharashtra & Ors. 15 It was held in that case that fixation of
quotas and reservation of seats in private educational
institutions amounts to '.'Nationalization of Education". The

H 15
(2005) 6 sec 537
. ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 85
[K.G. BALAKRISHNAN, C.J.I.]

Ninety-Third Constitutional Amendment is thus an unreasonable A
action of the legislatu~e. It was argued that the impugned
amendment alters supremacy of the Constitution and there was
only limited constituent power to amend Article 368. Article 15(5)
would enable the State to make the law to provide reservation
to private educational institution which has been held to be an B
unreasonable encroachment on the fundamental rights and this
amendment would alter the balance-between Part Ill and IV of
the Constitution. Reliance was placed on various decisions by
the petitionefs learned Counsel. The impugned amendment
specifically excludes the application of Article 19(1)(g), whereas c
the institutions governed by Article 26 and the minority institutions .
governed by Article 30(1) have been left out. This, according to
the petitioner's Counsel, is discriminatory and illegal and that
· there was no justification to this differential treatment. The
petitioner's learned Counsel also. challenged the quantum of
0
reservations provided under the Act 5 of 2007. Any
determination of the extent of reservation without considering
the future impact of the reservation would be unjust, arbitrary .
and unreasonable. Caste based reservation would not be in ·
the larger interest of the national unity and integrity. The benefits
could be given only to those communities which are not E
adequately represented and not to those which are socially and
educationally advanced. Reservation in the form of quota is
illegal and if some classes are to be given some benefit and to
be equalized with the general category they could be awarded
some additional marks like ·it is being given to the women F
~- candidates seeking admission in colleges. Many of the castes
included in SEBCs are not really backward classes and some
· of them were even rulers of erstwhile States for a number of
years. The benefits and privileges which are given to SCs/STs
should not be extended to OBCs. The members of the OBC G
communities are capable of competing with the general category
candidates and the increase in seats would entail a
corresponding increase m·infrastructure, and it is submitted that
an increase in infrastructure would, therefore, to be financed
through tax collections and, therefore, every member of the public H
86 SUPREME COURT REPORTS [2008] 4 S.C.R.

A (including the general category) is entitled to be considered for -1
admission in the said increase. The learned Counsel also
strongly objected to "caste" being taken as a means of
classification and identification of SEBCs and OBCs. It is
contended that it is in complete derogation of provisions of
B Article 15(1) and, according to the petitioner's learned Counsel,
many of the castes which have been included in SEBCs are
really not SEBCs and thus past historical discrimination is
entirely irrelevant for conferment of benefits in the present times. • •
It was also contended that there are no traditional occupations
c now. It is submitted that the identification of castes as a "class"
to justify the same as being occupations on a presumption that
the persons belonging to a particular caste continue to follow a
particular occupation especially in the present constitutional
scheme which gives freedom to choose any business,
occupation or profession is entirely fallacious. The learned
0
Counsel for the petitioner also contended that the non-exclusion
of creamy layer is illegal and relied on Indra Sawhney's case
(supra) and Indra Sawhney (II) Vs. Union of India &
Others 16 .
E 36. Shri Ashoka Kumar Thakur, who appeared in person,
supported all the contentions raised by various learned Counsel
and urged that the Ninety-Third Constitution Amendment as well
-
as the Act 5 of 20b7 are unconstitutional and they are liable to
be struck down.
F 37. On behalf of the respondents, several Senior Counsel
appeared and contended that the contentions of the petitioners
challenging the Ninety-Third Constitutional Amendment and the
Act 5 of 2007 are without any merit and are liable to be
dismissed. The contentions raised by the petitioners' Counsel
G were refuted by the respondents' Counsel by raising the plea
that affirmative action is needed for promoting educational and
economic interest of weaker section of society. Shri K.
Parasaran, learned Senior Counsel appearing for the Union of

16
H (2000) 1sec168, at p. 190
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 87
[K.G. BALAKRISHNAN, C.J.1.]

j..
India, submitted that the Constitution is to be interpreted as an A
integral, logical whole, and while construing one part, regard
must be had to the provisions of the other parts, rendering no
portion as unnecessary or redundant. It was argued that when
constitutional provisions are interpreted, it has to be borne in
mind that the interpretation is such as to further the object of B
their incorporation and they cannot be interpreted in a manner
that renders another provision redundant.
~ i 38. It was argued that the constitutional provision must not
be construed in a narrow and constricted sense but in a wide
and liberal manner so as to anticipate and take into account the c
changing conditions and purposes so that the constitutional
provision does not get fossilized but remains flexible enough to
meet the newly emerging problems and challenges of this age.
Reference was made to various decisions rendered by this Court
regarding the interpretations of constitutional provisions. It was D
pointed out that when social welfare measures are sought to be
! implemented and the Constitution has to be interpreted in such
context, it has to be kept in mind that the Preamble is the text
which sets out the goal that i~ to be attained; and that Part Ill is
the texture into which is woven a pattern of rights. E
39: 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 F
His Holiness Kesavananda Bharati Sripadagalvaru Vs.
State of Kerala 17 , 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 G
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 g·et better

•
7
(1973) Supp. SCR 1=(1973)4 sec 225 H
88 SUPREME COURT REPORTS [2008] 4 S.C.R. ' I

A 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
B upliftment and progress of such diverse communities is
education.
40. The Fundamental Rights in Part Ill are not to be read in
isolation. All rights conferred in Part Ill of the Constitution are ~ ...
subject to at least other provisions of the said Part Ill. The
c Directive Principles of State Policy in Part IV of the Constitution
are equally as important as Fundamental Rights. Part IV ismade
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
D the economic capacity of the State. Article 45 is being
transformed into a fundamental right by 861h Amendment of the
Constitution by inserting Article 21A.Clause2 of Article 38 says
that, "the State shall, in particular, strive to minimize the
inequalities in income and endeavour to eliminate inequalities
E 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
F and, in particular, of the Scheduled Castes and the Scheduled
i
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.
G
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's case ..
(supra). It was pointed out that the supremacy of the Constitution,
republican and democratic form of Government and sovereignty
H
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 89
[K.G. BALAKRISHNAN, C.J.I.]

of the country, secular and federal character of the Constitution, A
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 Ill and the mandate to
build a welfare State contained in Part IV), the unity and the
integrity of the nation are spme of the principles of basic structure B
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 c
Ill and Part IV, it is manifest that there is a Constitutional promise
to the weaker sections I SEBCs and this solemn duty has to be
fulfilled.
41. It was pointed out that the observations in
Champakam Dorairajan (supra) that the Directive Principles D
are subordinate to the Fundamental Rights is no longer good
law after the decision of the Kesavanda Bharati (supra) 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 E
the socially and economically disadvantaged persons or inflicting
handicaps on those more advantageously plac~d 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 F
and educationally backward classes on the basis of caste.
Article 15(4) neutralized the decision in Champakam
Dorairajan's case (surpa). It was enacted by the Provisional
Parliament which consisted of the very same Members who
constituted the Constituent Assembly. Our Constitution is not G
caste blind and the Constitution prohibits discrimination based
'only on caste' and not 'caste and something else'.
42. In Unni Krishnan's case (supra) it was held that Article
19(1)(g) is not attracted for establishing and running educational
institutio·ns. But this decision was overruled in T.M.A. Pai H
90 SUPREME COURT REPORTS [2008] 4 S.C.R.

A Foundation (supra) 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. lnamdar's case (supra), it
was held that the private educational institutions, including
minority institutions, are free to admit students of their own
B 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
C 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).
0
But rights of minorities under Article 30 are not touched by Article
15(5).
43. In Kesavananda Bharati (supra) it was held that the
fundamental rights may not be abrogated but they can be
E 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
F especially for reaching the goal of the Preamble of the
Constitution. It is an instance of transforming the principles of
Part IV into Part Ill whereby it becomes enforceable. All rights
conferred in Part Ill of the Constitution are subject to other
provisions in the same Part. Article 15(4) introduced by the 1st
G 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.
H
,,
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 91
[K.G. BALAKRISHNAN, C.J.I.]

44. There is vital distinction between the vesting of a power A
~
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 backward class of citizens or for Scheduled
Castes and Scheduled Tribes relating to their admission to B
educational institutions including private educational institutions.
'
45. 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
...., c
protection for minorities under Article 30. It was argued that
i 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 D
educational institutions. They have to be harmoniously construed
j
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. E
46. 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 11. By virtue of the 42"d Amendment of the F
:.;.;>
Constitution, "education", which was in Entry 11 in List 11, was
deleted and inserted as Entry 25 in List 111. The executive power
of the State is not touched by the present Constitutional
Amendment.
G
47. Article 15(5) does not abrogate th.e fundamental right
enshrined under Article 19(1 )(g). If at all there is an abridgement
4 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
H
~ I
92 SUPREME COURT REPORTS [2008] 4 S.C.R.

A Amendments giving effect to Directive Principles of the State
Policy would not offend the basic structure of the Constitution.
,.
'48. The Right to Equality enshrined in our Constitution is
not merely a formal right or a vacuous decl\'lration. Affirmative
action though apparently discriminatory is calculated to produce
8 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
c the full, his natural endowments of physique, of character and of
intelligence.
49. Shri Parasaran, learned Senior Counsel, further
contended that the Act 5 of 2007 is a constitutionally valid piece
of legislation. Under Section 2(g) of Act 5 of 2007, there is no
D
excessive delegation. The plea of the petitioners that the
Parliament itself should have determined OBCs and that Act 5
of 2007 suffers from excessive delegation or. lack of guidelines
is not tenable. The backward classes of citizens have to be
identified on the materials and evidence and therefore the
E Parliament necessarily has to leave it to the Executive. The
determination of OBCs is a long-drawn process which would
cause enormous delay. Therefore, it was appropriate to leave
the identification to the Executive. Such determination of each
class as backward class would be open to judicial review. And
F the scope of judicial review would be wider if the same is made .,
by the Executive rather than by the Parliament.
50. It is also contended that merely because no time limit
,.
. is fixed, Act 5 of2007 cannot be rendered invalid. The Parliament
has got the power to review periodically and either make
G
modifications in the Act or repeal the Act. It is for the first time
certain special provisions are being made in favour of socially
and educationally backward classes of citizens, SCs and STs ~

for reservation of seats in Central Educational Institutions after
56 years of coming into force of the Constitution. At its very
H
I' ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS.
[K.G. BALAKRISHNAN, C.J.I.]
93

commencement, a time limit may not be anticipated and fixed. A
Over a period of time depending upon the result of the measures
taken and improvements in the status and educational
advancement of the SCs, STs and SEBCs, the matter could
always be reviewed. The Act cannot be struck down at the very
commencement on the ground no time limit for its operation B
has been fixed.
51. It was also submitted that the quantum of reservation
provided under the Act is valid. The ratio of population is a
relevant consideration in fixing the quantum of reservation.
Reservation in favour of OBCs is 27% and by adding the C
percentage of reservation for SCs and STs, the total quantum
of reservation does not exceed 50%. It is indisputable that the
population of OBCs exceeds 27% and SCs and STs constitute
more than 22 12%. The quantum of reservation within 50% has
been determined by the Parliament based on facts considered D
by legislature and they are conclusive and the Courts do not
exercise the power of judicial review by examining those facts.
52. The learned Senior Counsel also contended that the
contention of the Petitioners that special provisions can only be
made up to 10+2 stage is untenable. If this plea is accepted, it E
would result in higher education being the privilege of the higher
classes only and it would be a distortion of the concept of social
advancement of the downtrodden and the negation of the goal
envisaged by the Preamble. It was also contended that the
principle of reverse discrimination is not applicable. The F
Doctrine of Strict Scrutiny and Narrow Tailoring are not applicable
in India as they r.re American doctrines which operate under
different facts and circumstances. This court on earlier occasion
had rejected these pleas, when dealing with admission to Post-
graduate Medical Courses, when 75% of seats were being G
reserved on the basis of institutional preference.
53. The learned Senior Counsel further contended that the
exclusion of creamy layer has no application to SCs and STs in
regard to employment and education. Articles 341, 342, 366(24) H
-94 SUPREME COURT REPORTS [2008] 4 S.C.R.

A and 366(25) of the Constitution would militate against such
course of action.
54. It was held in E.V. Chinnaiah Vs. State of Andhra
Pradesh & Ors. 18 , that the SCs and STs form a single class.
The observations in Nagaraj's case (supra) cannot be
B 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's case, (supra) that the above discussion was
confined to Other Backward Classes and has no relevance in
c the case of Scheduled Tribes and Scheduled Castes. The
observations of the Supreme Court in Nagaraj's case (supra)
should not be read as conflicting with the decision in Indra
Sawhney's case (supra). The observations in Nagaraj's case
(supra) as regards SCs and STs are obiter. In regard to SCs
D and STs, there can be no concept of creamy layer.
55. 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
E concerned, the principle 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.
56. Equality of opportunity of education is a must for every
F 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
G
the rest of the society.
57. It was further argued that Article 15(4) and 15(5) are
+
provisions of power coupled with duty. It is the constitutional duty

H
18
· (2005) 1 sec 394
ASHOKA KUMAR THAKUR v. UNION OF !NOIA & ORS. 95
[K.G. BALAKRISHNAN, C.J.I.]

to apply these principles in the governance of the country and in A
making law for the reason that it is a constitutional promise of
social justice which has to be redeemed.
58. It was strongly contended by the· learned Senior
Counsel Shri Parasaran that the validity of the constitutional
amendment and the validity of plenary legislation have to be B
decided purely on the basis of constitutional law. And the
submission, as it was contended that the Amendment has a
vote catching mechanism is inappropriate. The contention that
the Ninety-Third Constitutional Amendment is against the
Universal Declaration of Human Rights is also not tenable. Right C
to Equality of Opportunity operates at every level and it is being
provided for a particular level either by a legislative or an
executive action. The merit has to be interpreted in the context
of egalitarian equality and not formal equality.
D
59. It was also submitted that the speeches in the
Parliament, constitutional debates, text books of authors and
views expressed in articles do not normally constitute evidence
before the Court to determine the Constitutional validity of the
legislations.
E
60. Shri G.E. Vahanvati, learned Solicitor General of India
appearing on behalf of the Union of India, submitted that the
argument of Shri Harish Salve, learned Senior Counsel that the
American doctrine of "strict scrutiny" should be applied to the
affirmative action envisaged under Article 15(5) is not correct. It F
was argued that the impugned iegislation is not ex facie
discriminatory and, therefore, it cannot be classified as a
"suspect legislation". It was argued that right that from 'the case
of The General Manager Sou.them Railway Vs.
Rangachari, 19 Article 16(4) is an exception to Article 16(1) and G
this reasoning was followed in M.R. Balaji & Others Vs. State
of Mysore20 by a five Judge Bench. Ther~after, the same view

19
1962 (2) SCR 586 at p. 607
20
(1963) Supp. 1 SCR 439 at 455 =AIR 1963 SC 649 H
96 SUPREME COURT REPORTS [2008] 4 S.C.R.

A prevailed in T. Devadasan Vs. The Union of India & Anr. 21
But Subba Rao. J. (as he then was) said that "the expression
'nothing in this article' is a legislative device to express its
intention in a most emphatic way that the power conferred there
under is not limited in any way by the main provision but falls
B outside it". The view that Articles 15(4) and 16(4) are exceptions
to Article 15(1) and 16(1) respectively was again reiterated in
Triloki Nath Vs. State of Jammu & Kashmir & Ors. (11) 22
and in The State of Andhra Pradesh & Ors. Vs. U.S.V.
Bairam, Etc 23 . The learned Solicitor General further pointed
C out that in State of Kerala & Anr. Vs N.M. Thomas & Ors. 24
the majority opinion held that Articles 14, 15 and 16 are parts of
the scheme of equality and that Articles 15(4) and 16(4) are not
exceptions to Articles 15(1) and 16(1) respectively. The said
change in N.M. Thomas's case (supra) was noticed by Justice
Chinnappa Reddy in K.C. Vasanth Kumar & Anr. Vs. State
0
of Karnataka 25 and the same view was upheld in Indra
Sawhney's case (supra). The learned Solicitor General further
contended that once it is accepted that Articles 15(4) and 16(4)
are not exceptions to Articles 15( 1) and 16( 1) respectively, then
there is no question of treating the social welfare measure as
E being 'facially discriminatory' or "ex facie"violative of the rule of
equality. It was argued that it is not simply a matter of legal
equality. De jure equality must ultimately find its raison d'etre in
de facto equality. The State must, therefore, resort to
. compensatory State action for the purpose of uplifting people
~ who are factually unequal in their wealth, education or social
environment. Relying on the observations of Subba Rao, J. in T.
Devadasan's case (supra), it was argued that centuries of
calculated oppression and habitual submission has reduced a

G 21 1964 (4) SCR 680

22
1969 (1) SCR 103
23
sec 660
1972 (1 l
24
1975 (2) sec 310
H 25
(1985) Supp sec 714
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 97
[K.G. BALAKRISHNAN, C.J.I.]

considerable section of our community to a life of serfdom and A
it would be well nigh impossible to raise their standards if the
doctrine of equal opportunity was strictly enforced in their case
and they would not have any change if they were made to enter
the open field of competition without adventitious aids till such
time when they could stand on their own legs. Laying reliance B
on the observations made in N.M. Thomas's case (supra) and
also in Indra Sawhney's case (supra), the learned Solicitor
General argued that under Articles 15(4) and 16(4) the State is
obliged to remove inequalities and backwardness from society.
It was further submitted that the American doctrine of "strict c
scrutiny" had been expressly rejected by this Court in Saurabh
Chaudri & Ors. Vs. Union of India & Ors. 26 As regards
identification of backward classes, the learned Solicitor General
contended that while dealing with the aspect of identification of
backwardness forsocially and educationally backward classes, D
it cannot be denied that there is backwardness in this country;
that large sections of the country are socially and educationally
-I backward; that this problem is not new but is age old; that such
backwardness arose because of certain peculiarities of the
caste system which proceeded on the assumption that the
choice of occupation of members of a caste was pre-determined E
in many castes; and that member~ of particular castes were
prohibited from engaging themselves in· occupations other than
those certain occupations which were considered to be
degrading and impure and considered fit only for those castes.
It was pointed out that Chief Justice Wanchoo in C.A. Rajendran F
Vs. Union of India & Ors. 27 held that the main criteria for
inclusion in the list is social and educational backwardness of
the castes based on the occupation pursued by those castes.
Reference was made to various decisions rendered by this Court
on this issue, especially Minor A. Peeriakaruppan & Anr. Vs. G
State of Tamil Nadu & Ors. 28 ; U.S.V. Bairam (supra); K.C.

26
(2003) 11 sec 146
27
(1968) 1 SCR 721
28
1911 (1) sec 38 H
98 SUPREME COURT REPORTS [2008] 4 S.C.R.

A Vasanth Kumar (supra), referred to earlier. The learned
Solicitor General also pointed out that in B. Venkataramana
Vs. The State of Madras & Anr. 29 , the list of backward classes
as mentioned in Schedule 3 to the Madras Provincial and
Subordinate Services Rule, 1942 was approved and which was
s also noticed in Indra Sawhney's case (supra). Reference was
also made to the debates in Parliament where Dr. Ambedkar
stated that "the backward classes are nothing but collection of
certain castes". It was further contended that it is incorrect to
say that the majority in Indra Sawhney's case (supra) did not
c accept or approve the Mandal Commission Report. That Report
was referred to in several places in that judgment and the criterion
adopted by the Mandal Commission to classify the backward
clas$es was more or less accepted. The learned Solicitor
General also pointed out that it is not correct to say that the
State Lists are defective and that they ought not to have been
0
accepted by the Central Government. It is pointed out that the
Central List has been operating for 14 years for the purposes
of reservations of posts and not a single person has challenged
any Inclusion in the Central List as being void or illegal; that the
State Lists have also been operating both for the purposes of
E Arti~les 16(4) and 15(4) and there has been no challenge at all
in any High Court or in the Supreme Court with regard to the
State List and that there has not been a single complaint made
before the State Government or the National Commission with·
regard to over-inclusion of any caste or community. The learned
F Solicitor General pointed out that the allegations in relation to
the working of the National Commission for the Backward
. Classes are not true. The National Commission has framed
elaborate guidelines for consideration of request for inclusion
and complaints of non-inclusion in the Central List for other
G backward classes. The 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. Th~ National Commission held 236 public

29
H AIR 1951 SC 229 = 19511 MLJ 625
~ }
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 99
[K.G. BALAKRISHNAN, C.J.I.]

hearings at various places since its inception. The National A
Commission had also prepared an elaborate questionnaire for
considering classes for inclusion in the State Lists. Detailed
data was required to be submitted with regard to social,
educational and economic criteria of the communities that were
considered. It is pointed out that during the period of its B
functioning the National Commission recommended 297
requests for inclusion and at the same time rejected 288
requests for inclusion of main castes. It was further pointed out
that the National Commission has not mechanically allowed all
applications for inclusion in the Central List. The National c
Commission while examining the applications had taken note
of the ethnographic history of the concerned castes/sub-groups/
communities and it has also taken note of the recommendations
of the various State Commissions. It was also submitted that
the contention that the inclusion of the caste in OBCs was D
motivated by political considerations is erroneous and the
National Commission had emphatically rejected politically
dominant castes such as the Marathas from being included in
the Central List and several other castes were thus excluded
from OBCs list. The learned Solicitor General also contended E
that the plea that reservation under Article 15(5) with reference
to Article 29(2) would render 15(5) constitutionally violative is
incorrect. Article 2~(2) is a protection given by the Constitution
against denial of admission to educational institutions on the
ground of religion, race, caste, language or any of them. It does F
not apply if provision is made for backward classes when the
basis for classification is not solely on these grounds. It was
argued further that the American doctrines and tests relating to
"strict scrutiny", "compelling State necessity" and "narrow
tailoring" are tests which are not applicable to India at all. There c:-
is a presumption of constitutionality of the legislatiops passed
by Parliament. The Indian Constitution specifically provides
. provisions like Articles 15(4) and 16(4) which permit special

,
provisions for backward classes. It was also contended that it
is incorrect to suggest that there have been no efforts on the ~
t !

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

A part of successive Governments to concentrate on elementary
education towards universal elementary education. "Sarva
Shiksha Abhiyan" (SSA) had been launched by the Government
in 2001-2002. The learned Solicitor General also pointed out
that it is incorrect to say that there has been no proper
B consideration of the Bill in Parliament, particularly in relation to
Financial Memorandum. It is pointed that debates in Parliament
are not usually relevant for construction of the provisions of an
Act. The learned Solicitor General also submitted that it cannot
seriously be disputed that large sections of the population are
•C socially and educationally backward and it is nobody's case
that the total population of OBCs in this country is less than 27%.
Even on the basis of the facts relied on by the petitioners,
namely, National Sample Survey Organisation (NSSO), the total
population of OBCs in India is around 36%. The NSSO had
IJ conducted this survey for the preparation of its 61 51 Round of
survey which was published in October 2006. This survey
indicated that the total number of OBCs in India is around 41 %.
27% reservation in relation to admission had been upheld in
Indra Sawhney's case (supra) and the Parliament has taken
- special care to see that this reservation does not affect seats in
the general category. The learned Solicitor General also pointed
out that the policy of reservation flows from the mandate of
equality till the time the Constitutional objective of real equality
is achieved. Moreover, the policy of reservation has been
- introduced for the first time after 56 years of coming into force
of the Constitution. The learned Solicitor General also pointed
out thq:it meticulous care has been taken for the inclusion of certain
castes in the OBCs list and reference was made to cases in
Rajasthan, Karnataka and Kerala.
61. Shri Gopal Subramanium, the learned Additional
Solicitor General, supported the Constitution (Ninety-Third
Amendment) Act, 2005 and also the provisions of Act 5 of2007.
The learned Additional Solicitor General submitted that the
, American doctrines are not applicable to India. In this regard,
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 101
[K.G. BALAKRISHNAN, C.J.I.]

the observations of this Court in A.K. Roy Vs. Union of India A
·t
& Ors. 30 , that "we cannot transplant, in the Indian context and
conditions, principles which took birth in other soils, without a
careful examination of their relevance to the interpretation of
our Constitution" were cited. It is pointed by the learned
Additional Solicitor General that prepositions enunciated in the B
decisions of the United States Supreme Court in Regents of
the University of California Vs. Bakke 31 , Grutter Vs.
.(
Bollinger3 2 and Gratz Vs. Bollinger33 , and Parents Involved
in Community Schools Vs. Seattle School District34 , that
the Court will apply the standard of strict scrutiny while reviewing c
legislation involving suspect classification; that and such
legislation would be effected if two conditions are met, namely,
(i) there is a compelling governmental interest in making the
classification, and (ii) the legislation has been narrowly tailored
to meet that classification; that the classification based on race
D
is a suspect classification and that accordingly while race can
be a factor in admission policies of educational institutions, it
cannot be the sole factor and it cannot lead to the imposition of
quotas, which are per se unconstitutional - each of these
propositions has been rejected in Indian law and the Indian
Constitution neither admits "suspect classification" nor "strict E
scrutiny". The constitutionality of quotas has been repeatedly
affirmed and reliance by the Petitioners on the United States
"affirmative action" judgments is wholly misconceived. The
learned Additional Solicitor General has made special reference
to various American decisions on the doctrine of "affirmative F
f-
action". The learned Additional Solicitor General has also
referred to the decisions of this Court in N.M. Thomas' case
(supra) and K.C. Vasanth kumar's case (supra) and other

G
30
1982 (1) sec 271
31
438 us 265 (1978)
32
539 us 306 (2003)
33
539 us 244 (2003)
34
127 S.Ct. 2738 (2007) H
102 SUPREME COURT REPORTS [2008] 4 S.C.R.

A decisions to contend that Articles 16(4) and 15(4) are not
exceptions to Articles 16(1) and 15(1) respectively and these .;.
provisions have to be read together with the principles of
governance set out in Part IV of the Constitution and it is beyond
doubt that underlying constitutional obligations are towards
B socially and educationally backward classes and there is a
positive obligation on the State to take steps to eradicate their

c
backwardness. The learned Additional Solicitor General also
refuted the contentions advanced by Shri P.P. Rao, learned
Senior Counsel, and contended that all efforts have been made
by the Government to improve primary and upper primary
~ .
education in India. The learned Additional Solicitor General also
contended that the argument advanced by Dr. Rajeev Dhavan
is not correct. He relied upon Arjun Sen Gupta's Report 35
wherein it is stated :-
D " ..... Education can b~ a liberating capability but access
to it is made difficuit, if not impossible, by such inherited
characteristics as lower social status, rural origin, informal ~
work status and gender or a combination of these."

62. Shri Ram Jethmalani , learned Senior Counsel
E appearing for the lntervener-Rashtriya Janta Dal Party in W.P.
No. 313 of 2007 and W.P. No. 335 of 2007, contended that the
attempt of the petitioners in these writ petitions is to off-set the
decision of the Nine Judges Bench in Indra Sawhney's case
(supra). It is pointed out that the equality of citizens is the basic
.F feature of the Indian Constitution but by "equality" is meant not ..
"formal or technical equality" but "real and substantial equality".
The word "only" used in Articles 15(1) and 16(2) is decisive.
Even if reservations are made for castes, the classification will
become invalid if it is only on the basis of caste and if some
G other additional requirement is imposed, that case would be
considered to be outside the prohibition of Article 15(1 ).
Reference is made to B. Venkataramana's case (supra). It

35 Arjun Sen Gupta Report on "Conditi; ns of Work and Promotion of

H Livelihood in the Unorganised Sector (July 2007)
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 103
[K.G. BALAKRISHNAN, C.J.1.]

was contended that a statute cannot be declared ultra vires A
merely because backwardness is a complex concept and no
precise definition is possible. The Court is bound to assume
that a state of facts existed at the time of the enactment of the ·
statute which would validate that statute and when the
Constitution of the United States came into effect it did not B
contain the constitutional right of equality. Even the Vth·
Amendment of 1971 to the Constitution of the United States of
.f America did not introduce this concept. The XIVth Amendment
of 1868 provided that the "State shall not deny to any person the
equal protection of the laws". Even after this injunction, the Unitedc
States Supreme Court delivered the judgment in Plessy Vs.
Ferguson 36 , which laid down the doctrine of "Equal but
Separate". This doctrine was in force till it was reversed in 1954.
The learned Senior Counsel also contended that the policy of
reservation is not destructive of merit and that the Symbiosis
0
University is not covered by the statute.
63. Shri T.R . Andhyarujina , the learned Senior Counsel
appearing for the respondents in W.P. 265/2006, contended
thatArticles 15(4) and 16(4) operate in different fields and Article
15(4) enables the State Government to make special provisions E
for backward classes, SCs and STs which can be done both by
law or by executive order. The special provision in Article 15(4)
is not restricted to advancement of SEBCs, SCs and STs in
educational institutions only and enables the State to make
several kinds of positive action programmes in addition to F
reservations. As a condition for giving aid, the State can make
reservations for SEBCs, SCs and STs in educational institutions
which are State owned or State aided. The State, however,
cannot make such reservations in private unaided educational
institutions, as held by this Court in T.M.A. Pai Foundation G
(supra) and P.A. lnamdar (supra) . This disability was because
of T.M.A. Pai Foundation (supra) which provided that private
unaided educational institutions had a fundamental right to

36
(1896)41 L.Ed. 256 H
104 SUPREME COURT REPORTS [2008] 4 S.C.R.

A "occupation" of carrying on education under Article 19(1 )(g).
Therefore, the Parliament introduced Article 15(5) by the
Constitution (Ninety-Third Amendment) Act to enable the State
to make special provisions for the advancement of SCs, STs
and SEBCs in relation to a specific subject, namely, admission
8 in educational institutions including private educational
institutions whether aided or unaided by the State
notwithstanding the provisions of Article 19(1 )(g). However,
Article 15(5) excluded private educational institutions.which are
minority educational institutions referred to in clause (1) of Article
c 30. The saving for minority educational institutions in Article 15(5)
is really ex abundandi cautela as minority educational
institutions were constitutionally protected and at all times
considered different from other private educational institutions.
Article 15(5) does not take away the "basic structure" of the
Constitution. The "basic structure" of the Constitution should not
0
be trivialized to mean other features of the Constitution.
Reference was made to the observations made by Khanna, J.
in Kesavananda Bharati's case (supra). It was also submitted
that Article 15(5) does not amend Entry 25 List Ill to the extent
that the State can no more make laws for reservation of seats in
E minority educational institutions and, therefore, it is incorrect to
say that the amendment in Article 15(5) required ratification
under Article 368(2). The State's power to legislate under Article
245 is always subject to the other provisions of the Constitution,
including fundamental rights. Article 15(4) does 'not take away
F the power of the State to make reservations in its own institutions
by an executive action under Article 162. Right to carry on
business is not a part of the basic structure of the Constitution .
64. On behalf of the respondent/State of Bihar in Writ
G Petition (Civil) No. 269/2007, learned Senior Counsel Shri
Rakesh Dwivedi submitted that the use of non-obstante clauses
in Article 15(3), (4) and (5) vis-a-vis Article 15(1) shows that the
prohibition against use of only caste as a ground for
discrimination qua any citizen is there in so far as making of a
special provision for adva'1cement of prescribed categories is
H
( J
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 105
[K.G. BALAKRISHNAN, C.J.I.)

concerned. There is no repugnance between 15(4) and 15(5). A
....
It was contended that in Kesavananda Bharati's case (supra),
it was held that "Part Ill of the Constitution could be amended
subject to the basic structure doctrine". The view which was held
in l.C. Golak'Nath & Ors. Vs. State of Punjab & Anrs, 37
making Article 368 more restrictive, had been overruled in B
Kesavananda Bharati's case (supra). The Fundamental
Rights are not absolute and are designed to suffer reasonable
. JI
restrictions and classifications. Any sort of abridgement by
Constitutional Amendment is clearly permissible so long as the
invasion does not amount to total elimination or emasculation. c
Within the domain of equality there is distinction between formal
equality and real equality or equality in fact and both are
comprehended in Article 14 and both are part of the basic
structure.
65. The learned Senior Counsel also contended that the D
judicial review ideas of "suspect classification'', "strict scrutiny",
i "compelling State interest" and "narrow tailoring" are measures
propounded by the U.S. Supreme Court are not applicable and
the Supreme Court of India has consistently taken a view that
the judgments of the U.S. Supreme Court do norafford safe E
guidance on account of differing structure of the provisions under
the two constitutions and the social conditions in these two
countries being different.

66. Reference was made to the various decisions of this
~ court and it was argued that the comparison of the 14th F
Amendment of the US Supreme Court read with Civil Rights
Act, 1964 on the one hand and the fascicules of equality
provisions in the Constitution of India, i.e. Articles 14 to 18 on
the other hand shows that the equality provisions of our
Constitution are not only differently structured but it contains G
provisions for making special provisions for the advancement
of SEBCs & SCs/STs. It is pointed out that our Constitution
additionally enshrines Directive Principles of State Policy in

37
(1967) 2 SCR 762 H
~ I
106 SUPREME COURT REPORTS [2008] 4 S.C.R.

A Part-IV of the Constitution requiring the State to strive to promote
justice social, economic and political and to minimize the ...
inequalities in income and endeavour to remove inequalities in
status, facilities and opportunities (Article 38).
67. Shri Ravivarma Kumar, learned Senior Counsel
8 appearing for Pattali Makkal Katchi, contended that the creamy
layer principle shall not be invoked for the purpose of Article
15(5). According to the Counsel, reservation in educational
institutions is not a poverty alleviation programme nor it is a
programme to eradicate unemployment. Reservation under
C Article 15(5) is not even a programme to educate all the
backward classes. According to the Counsel the one and only
goal of the reservation policy under Clause 4 & 5 of Article 15 of
the Constitution is to bring about equality among various castes
and unless all the castes are brought to one level playing field,
D the caste system cannot be eradicated. It is intended for removal
of inequality between castes so that the castes will come
together. These provisions are designed to bring together the
leaders of each caste and community together and the same
can be achieved only if the best teachers, the best
E administrators, the best doctors, the best engineers and the
best lawyers are brought together. And so long as the gap in
education persists between castes, the castes will not come
together. It is only when each backward caste is permitted to
advance educationally to meet the educational level of upper
F castes, can there be a real egalitarian society. According to the
Counsel, it is precisely for this reason that Clause (2) of Article
38 seeks to eliminate inequality in status, facilities and
opportunities, not only among individuals, but also among groups
of people. Therefore, it is to provide for such equality in status,
G facilities and opportunities, that reservation is contemplated to
those castes which are socially and educationally below other
castes. If the best from the lower caste are deprived of these
facilities and opportunities in the name of "creamy layer", it will
be counter productive and frustrate the very object of reservation,
namely to achieve equality in status, facilities and opportunities.
H
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 107
[K.G. BALAKRISHNAN, C.J.I.]

68. The Counsel also contended that the question of A
prescribing prior time limit for reservation under the impugned
Act is immature and should not be considered at this stage.
69. The link between "caste" and its occupation is an
unbreakable bondage to which the caste system has
condemned the backward classes. Whether a backward caste 8
man carries on his traditional occupation or not, he continues to

- be socially identified with the said occupation. This link between
' the caste and the occupation has not been severed for thousands
of years and it cannot be broken by arguments and theories.
The ground reality is that every caste in every village is identified C
by its traditional occupation. And all the service communities
continue to discharge their traditional occupation. It is pointed
out that throughout the country in 6.5 lakh villages, it is the barber
communities and barber communities alone, which carry on the
traditional occupation of hair cuttings and no other community D
has taken up the said occupation. And they continue to labour
1 without any social security or whatsoever.
70. The Counsel pointed out that the last six decennial
censuses have eschewed recording of caste particulars, the
three National Commissions and scores of State Commissions E
have found these Census data useless in identification of
Backward Classes.
71. The learned Counsel submitted that there is no
justification for not collecting details of caste identity at the F
decennial census operation. According to the Counsel a
.massive exercise is rendered useless for the all important work
of identification of Backward Classes.
72. It is further submitted that the entire identification of
backward classes has not been done on the basis of 1931 G
Census data. In each State the identification of Backward
Classes has been done on the basis of criteria evolved by the
State Commissions on social, educational and economic
parameters. Each State has adopted its own methodology. The
identification of backward classes is essentially done at the H
108 SUPREME COURT REPORTS [2008) 4 S.C.R.

A State level on a very objective criteria and a scientific
...
methodology. According to the Counsel, origin of the term
"classes of citizens" may be traced to the later part of the 19th
century. Quite often classes have been interchangeably used
with castes, tribes and communities. Some of the earlier
B Committee reports referred to Depressed Classes. Under the
1919 Act, Governors of the provinces give instruction to take

c
measures forthe social and industrial welfare of the people and
tending to fit all classes of population. And the Provincial ~
Governments prepared a list of Backward Classes with three
parts namely, Depressed Classes, Aboriginal Tribes and
Backward Communities. Dr. Ambedkar demanded separate
-
electorate for the Depressed Classes at the Round Table
Conference.
73. The Counsel also pointed out that the building of a
D casteless society is not the goal of the Constitution. And that it
is futile to contend that caste should not be considered for any
purpose whatsoever. In every conceivable activity of private life
caste system plays an important role. There are hundreds of
communal hostels and educational institutions owned and
E managed by certain communities. Some castes and
communities have communal clubs, associations, cooperatives,
banks etc. Their membership and admission are confined to a
particular caste or community. Even carrying of the caste names
is the guaranteed right of every citizen. There is nothing in the
F Constitution to prohibit a person from discriminating on the
ground only of caste or community in matters relating to marriage,
electing candidates to political position etc. Most of the
professional colleges like medical, dental and engineering
colleges are established and administered by a body of persons
G exclusively belonging -to a class or a community. Though
Dr. Ambedkar intended to abolish caste system by abolishing
all the privileges and disabilities of the forward classes, the plea
was opposed by Shri K.M. Munshi and the Draft Article 3(4)
stated:
H "Un-touchability is abolished and its practice thereof is
~ J
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 109
[K.G. BALAKRISHNAN, C.J.I.]

punishable by the law of the Union". A
..!
74. The Constitution never prohibits the practice of caste
::j
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 B
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 c
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. D
75. 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 E
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 F
disproportionate to their known proportion of their.population. It
is contended that without the advancement of SCs, $Ts 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 G
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.
76. The main challenge in these writ petitions is the
H
l I

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

A constitutional validity of the Act 5 of 2007. This legislation was
passed by Parliament consequent upon The Constitution
(Ninety-Third 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
B petitions filed by the petitioners. As the Act itself is based on
the Constitution (Ninety-Third 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. Article 15 of
the Constitution, afterthe Constitution (Ninety-Third Amendment)
c Act, 2005, reads as follows :-
"15. Prohibition of discrimination on grounds of
religion, race, caste, sex or place of birth.-
(1) The State shall not discriminate against any citizen on
grounds only of religion, race, caste, sex, place of birth or
D
any of them.
(2) No citizen shall, on grounds only of religion, race, caste,
sex, place of birth or any of them, be subject to any disability,
liability, restriction or condition with regard to,-
E (a) access to shops, public restaurants, hotels and places
of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and
places of public resort maintained wholly or partly out of
F State funds or dedicated to the use of the general public.
· (3) Nothing in this Article shall prevent the State from making
any special provision for women and children.
(4) Nothing in this Article or in clause (2) of Article 29 shall
G prevent the State from making any special provision for
the advancement of any socially and educationally
backward classes of citizens or for the Scheduled Castes
and the Scheduled Tribes
(5) Nothing in this Article or sub-clause (g) of clause (1) of
H Article 19 shall prevent the State from making any provision
,,
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS .. 111
[K.G BALAK~ISHNAN, C.J.1.]

by law for the advancement of any socially a.nd A
educationally backward classes of citizens or the
Scheduled Castes or the Scheduled Tribes in so far as
such special provision relate to their admission to the
educational institutions, including private educational
institutions whether aided or unaided by the State other B
minority educational institutions referred to in clause (1) of
Article 30."
77. T.M.A. Pai Foundation (supra) held that a private
unaided educational institution has the fundamental right under
Article 19(1 )(g) of the Constitution as the running of an c
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 D
since as a result of T.M.A. Pai Foundation (supra) 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. E
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. F
78. 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 G
equality principles guaranteed under Article 15 and other
·I 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 H

\
112 SUPREME COURT REPORTS [2008] 4 S.C.R.

A 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
B 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
c 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
0 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.
E t
1. Whether Ninety-Third Amendment of the
Constitution Is against the "basic structure" of the
Constitution?
79. The Constitution (Ninety-Third Amendment) Act, 2005,
F 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
G 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.
Of course, minority educational institutions referred to in clause
H (1) of Article ~Oare excluded. Thus, the newlv added clause (5)
,,
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 113
[K.G. BALAKRISHNAN, C.J.I.]
of Article 15 is sought to be applied to educational institutions A
r whether aided or unaided. In other words, this newly added
constitutional provision would enable the State to make any
special provision by law for admissi.on in private educational
institutions whether aided or unaided. In al! the petitions which
have been filed before us the main challenge is against Act 5 of B
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 c
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 D
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 E
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 F
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 G
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 H
' I
114 SUPREME COURT REPORTS [2008] 4 S.C.R.

A 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
B 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
C 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
D as it relates to the state maintained institutions and aided
educational institutions.
80. Several contentions have been advanced by the
petitioners' Counsel challenging the constitutional validity of the
E 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
F (supra). This case was a decision of 13 Judge Bench of this
Court. Though the 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 :-
G
. "The basic structure of the Constitution is not a vague
concept and the apprehensions exp,ressed 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
H
~
,
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 115
[K.G. BALAKRISHNAN, C.J.I.]

L
of the Constitution, the relevant provisions thereof including A
Article 368 are kept in kind 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) :-
1. The supremacy of the Constitution. B

2. Republican and Democratic form of Government and
sovereignty of the country.
3. Secular and federal character of the Constitution.
c
4. Demarcation of power between the legislature, the
executive and the judiciary.
5. The dignity of the individual secured by the various
freedoms and basic rights in Part Ill and the mandate
to build a welfare State contained in Part IV. D
6. The unity and the integrity of the nation."
81. 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
E
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. F
(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. G=
(5) Federal character of the Constitution."
~
82. 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. HI
' I
116 SUPREME COURT REPORTS [2008] 4 S.C.R..

A The majority decision in Kesavananda Bharati's case (supra)
1
overruled the decision in l.C. Golak Nath Vs. State of Punjab,
(supra). 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
18 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
doctrin¢ 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 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 eivery 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."
83. Hegde & Mukherjee, JJ. finally concluded (at p 355)
that:
"The power to amend the Constitution under Article 368
-i
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 117
[K.G. BALAKRISHNAN, C.J.I.]
as It stood before its amendment empowered the A
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 B
emasculate the basic elements or the fundamental features
of the Constitution."
-f 84. Ray J. (as he then was) (at p 461) held that:-
" .. .The Constitution is the supreme law. Third, an c
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
D
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 E
raise any impediment to amendment of alleged essential
features."
85. Palekar, J. (at p. 632) concluded that :-
''The power and the procedure for the amendment of the F
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 G
. Part Ill 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 non·e after its H
118 SUPREME COURT REPORTS [2008] 4 S.C.R.
' I

A amendment."
86. 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
B 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 ' ..
c 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 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
D
articles."
87. 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
E amendment without substituting a mechanism by which
the State is constituted and organized. That limitation flows
from the language of the article itself."
88. Beg, J. (at p. 886) held that:-
F "The majority view in Golak Nath's case (supra), holding
thatArticle 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
G
Act including addition of Article 31C.
89. Dwivedi, J finally concluded that:
"The word "amendmenr in Article 368 is broad enough to •
authorize the varying or abridging each and every provision
H
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 119
[K.G. BALAKRISHNAN; C.J.I.]

of the Constitution, including Part Ill. There are no inherent A
and implied limitations of the amendment power in Article
·3sa"
90. Finally, Chandrachud, J. (at p. 1000} held.that:
"The power of amendment of the Constitution conferred B
by the then Article 368 was wide and unfettered. It reached
every part and provision of the Constitution."

-i 91. A survey of the conclusions reached by the learned
Judges in Kesavananda Bharati's case (supra) clearly shows
that the power of amendment was very wide and even the C
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 lndia38 , to the effect that preamble to
the Constitution was not part of the Constitution wa~ disapproved D
in Kesavananda Bharati's case (supra) 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 E
Kesavananda Bharati's case (supra) 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's case (supra} clearly F
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 G
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 (Ninely-Third

38 (1960) 3 SCR 250
H
t I

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

A Amendment) Act, 2005 is to be examined in the light of the above
position.
92. 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
8 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
y
..
c 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
D 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
E future ages to come and consequently it has to be adapted to
the various changes that may take place in human affairs.
93. 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
F 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
G 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's case (supra) did not hold
H that all facets of Article 14 or any of the fundamental rights would
\

' ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS.
[K.G. BALAKRISHNAN, C.J:I.]
121

\ form part of the basic structure of the Constitution. The majority A
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 B
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 c
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
D
variability of changing conditions may necessitate the
I modifications in the structure and design of these rights, but the
transient characters of formal a·rrangements 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 far-reaching change that is E
objectionable, rather it is the content of this change in so far as
it implicates the question of constitutional identity.
94. The observations made by Mathew, J in Smt. Indra
Gandhi Vs. Raj Narain 39 are significant in this regard: F
"To be a basic structure it must be a terrestrial concept
having its habitat within the four corners of the Constitution."
What constitutes basic structure is not like "a. twinkling
star up above the Constitution." It does not consist of any
abstract ideals to be found outside the provisions of the G
Constitution. The Preamble no doubt enumerates great
.. concepts embodying the ideological aspirations of the
people but these concepts are particularised and their
39
(1976) 2 SCR 347: (AIR 1975 SC 2299) H
lI
122 SUPREME COURT REPORTS (2008) 4 S.C.R.

A essential features delineated in the various provisions of
the Constitution. It is these specific provisions in the body
of the Constitution which determine the type of democracy
which the founders of that instrument established; the
quality and nature of justice, political, social and economic
B which they aimed to realize, the content of liberty of thought
and expression which they entrenched in that document
and the scope of equality of status and of opportunity which
they enshrined in it. These specific provisions enacted in
the Constitution alone ccin determine the basic structure
c of the Constitution. These specific provisions, either
separately or in combination, determine the content of the
great concepts set out in the Preamble. It is impossible to
spin out any concrete concept of basic structure out of the
gossamer concepts set out in the Preamble. The specific
provisions of the Constitution are the stuff from which the
D
basic structure has to be woven".
95. 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
E 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
F the constitution is of no force. Moreover, the interpretation of
the Constitution shall not be in a narrow pedantic way. The
observations made by the Constitution Bench in Nagaraj's
case (supra) at page 240 are relevant: ·
"Constitution Is not an ephermal legal document
G 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
H interpretation should be adopted. A Constitutional provision
\ J
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 123
[K.G. BALAKRISHNAN, C.J.I.]
must be construed not in a narrow and constricted sense A
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." B
96. 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 c
people and Directive Principles set out the proximate grounds
in the governance of this country.
97. Therefore, we hold that the Ninety-Third Amendment
to the Constitution does not violate the "basic structure" of the D.
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. E
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 /is between the affected parties and others
who support such legislation. F
2. Whether Articles 15(4) arid 15(5) are mutually
contradictory, hence Artlcle 15(5) Is to be held ultra
vires?
98. The next contention raised by the petitioner's Counsel G
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 H
1I
124 SUPREME COURT REPORTS [2008] 4 S.C.R.

A (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
(supra) and Article 15(5) provides for reservation of seats for
B 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
c 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 and this according to the
petitioner's Counsel would result in annulling the endeavour of
0
the founding fathers and the various provisions for neutralizing
the exclusion of SCs & STs from the mainstream of society and
development for centuries.
99. It is argued by petitioners' learned Counsel that Article
E 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
F 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
G inconsistent with 15(4) and thus non-operative.
100. Both Article 15(4) and 15(5) are enabling provisions.
Article 15(4) was introduced when the "Communal G.O." in the
1
State of Madras was struck down by this Court in Champakam
Doralrajan's case (supra). In Unni Krishnan (supra), this Court
H held that Article 19(1 )(g) is not attracted for establishing and
\
' ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS.
[K.G. BALAKRISHNAN, C.J.I.]
125

running educational institutions. However, in T.M.A. Pai A
l
Foundation case, (supra), 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's case was later explained in P.A. lnamdar's
case, (supra). It was held that as regards unaided institutions, B
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 Ninety-Third Amendment Act,
2005. Thus, both Article 15(4) and 15(5) operate in different
areas. The "nothing in this Article" [mentioned at the beginning c
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
D
~I of Constitution, effect shall be given to all the provisions of the
"I 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 E
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 F
J
"I
their own field and the validity of any legislation made on the
basis of Article 15(4) or 15(5) have to be examined on the basis
of provisions contained in such legislation or the special provision
j that may be made under Article 15(4) or 15(5). It may also be
noticed that no educational institutions or any aggrieved party G
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 H
126 SUPREME COURT REPORTS [2008] 4 S.C.R.

A valid cannot be accepted. As has been held in N.M. Thomas
case (supra) and Indra Sawhney's case (supra), 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 constitutional
B mandate and thus it is constitutionally valid and the contentions
raised on these grounds are rejected.

3. Whether exclusion of minority educational
institutions from Article 15(5) is violative of Article 14
of Constitution?
c
101. 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
o. 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
E Constitution. Moreover, both Article 15(4) and Article 15(5) are
operative and the plea of non-severability is not applicable.
102. Learned Senior Counsel Dr. Rajeev Dhavan and
· 1earned 'Counsel Shri Sushil Kumar Jain appearing for the
F 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
G 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 ~r any other equality
principle, the affected educational institution should have
H
{~
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 127
[K.G. BALAKRISHNAN, C.J.1.]

approached this Court to vindicate their rights. No such petition A
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. B
4. Whether the Constitutional Amendment followed
the procedure prescribed under Article 368 of the
Constitution?
103. Another contention raised by the petitioner's Counsel c
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
D
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.
104. This contention of the petitioner's Counsel has no
force. The powers of the Parliament and the State legislatures E
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 F
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 power conferred by Article 162. It may also be
noticed that by virtue of the 42nd Amendment to the Constitution,
G
"education" which was previously in Entry No. 11 in List II was
deleted and inserted in List Ill as Entry No. 25 as the field of
legislation in List Ill. 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
,,,. H

.....
I
' I
128 SUPREME COURT REPORTS [2008] 4 S.C.R.

A 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
B 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
c rejected.
5. 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?
D
105. 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
E 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
F 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
G 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.
106. There is a long jurisprudential history as to whether
H
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 129
[K.G. BALAKRISHNAN, C.J.I.]

caste can play any role in determining the socially and A
educationally backward classes of citizens. In Indra Sawhney's
case (supra), 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 B
of various decisions on this question would give a history of the
jurisprudential development on this subject.
107. 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 c
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's case (supra), it
was held that caste could be the starting point for determining
the socially and educationally backward classes of citizen .. D
108. In Champakam Dorairajan (supra), 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 E
guaranteed to the citizens. The court held that Article 46 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 F
Constitution.
1
109. The next important case is M.R. Balaji & Ors. Vs.
State of Mysore (supra). In this case, the State of Mysore issued
an order that all the communities except the Brahm in community
G
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
H
130 SUPREME COURT REPORTS [2008] 4 S.C.R.

A 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
B 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
C 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
D 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
E purports to act under Article 15 (4)."

110. 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
F 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.
111. In R. Chitralekha's case (supra), the Government of
G 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
H
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 131
[K.G. BALAKRISHNAN, C.J.I.]

then was), speaking for the majority, held that a classification of A
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 dete.rmine social backwardness of a class, it B
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 c
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 happen to belong. The Court
0
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.
112. Minor P. Rajendran Vs. State of Madras & Ors. 40
is another Constitution Bench decision wherein the order of the E
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 F
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 G
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 .

40 (1968) 2 SCR 786
H
132 SUPREME COURT REPORTS (2008) 4 S.C.R.

A 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
B 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
c solely on the caste of the citizen, it might be open to
objection.

(emphasis supplied)
113. It may be noticed that the list prepared by the State
showed certain castes, and members of those castes according
0
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
E backward and the list based on caste was upheld by the
Constitution Bench and held to be not violative of Article 15(1 ).
114. In Triloki Nath Tiku Vs. State of J & K (1) 41 , 50% of
the gazetted posts were to be filled up by promotion in favour of
F 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
G Nath(ll) (supra), the court observed that the expression
"backward class" is not used as synonymous with "backward
caste".
115. In Minor A. Peerikaruppan Vs. State of Tamil Nadu t
41
IH (1967)2 SCR 265
-
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 133
[K.G. BALAKRISHNAN, C.J.I.]

& Ors. (supra), this Court made reference to the earlier A
.\
decisions especially in M.R. Balaji case (supra) and R.
Chitralekha case (supra). 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 B
backward. To ignore their existence is to ignore the facts
of life. Hence we are unable to uphold the contention that
1 the impugned reservation is not in accordance with Article
15 (4). But all the same the Government should not proceed
r on the basis that once a class is considered as a c
backward class it should continue to be backward class
for all times. Such an approach would defeat the Very
purpose of the reservation because once a class reaches
a stage of progress which some modern writers call as
take off stage then competition is necessary for their future D
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." E
116. The learned Counsel. for the petitioners also made
reference to State of Uttar Pradesh & Ors. Vs. Pradip
f Tandon & Ors. 42 wherein Chief Justice Ray observed at
paragraph 14 :-
F
"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
G
(4)."
117. Another important decision is that of State of Kerala
• & Anr. Vs N.M. Thomas & Ors. (supra), wherein the

42
(1975) 1 sec 267 H
' I
134 SUPREME COURT REPORTS [2008] 4 S.C.R.

A constitutional validity of Rule 13-AA of the Kerala State &
Subordinate Services Rules was under challenge. The Rule 1-

gave ex~mption 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
B Rule and in an appeal by the State the question of reservation
was elaborately considered. Mathew, ~· in his concurring
judgment, held that in ord~r 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, -
c 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
ahd illumina.te the approach of the court when it makes a
decision, as the court is also a "State" within the meaning of
D 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.
E
118. In K.C. Vasanth Kumar Vs. State of Karnataka
(supra) the question of identifying socially and educationally
backward class came up for consideration. Desai, J.,
elaborately considered this question in paragraph 20 and
F 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,
G 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 over-
H simplified approach ignored a very realistic situation
'~
'
/ ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 135
[K.G. BALAKRISHNAN, C.J.I.]

existing in each caste that in every such caste whose A
l
members claim to be socially and educationally backward,
had an economically well-placed segments."
119. Chinnappa Reddy, J., also dealt with the question
elaborately and observed :-
B
"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 factor brands all backwardness c
·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 D
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 ai:id
degradation which has divided the entire Indian and E
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 F
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 G
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 H
( I

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

A equal terms to catch up with the upper crust. "
120. Reference was also made to other decisions, namely,
State of Andhra Pradesh & Anr. Vs. P: Sagar43 and T.
Devadasan Vs. The Union of India & Anr. 44 . The earlier
decisions took the view that caste shall not be a basis for
B 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 flyin the face of Article
15(1) of the Constitution as it expressly prohibits any
C 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 (supra),
while examining the validity of the 'Backward Class List'
prepared by the Manda! Commisson, Jeevan Reddy. J.,
D speaking for the majority, held as under:-
"705. 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
E 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: (SCR p. 790-91)
F
"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
G
discrimination on the ground of caste only. Now if the
reservation in question had been based only on caste and

43 (1968) 3 SCR 595

44
H (1964) 4 SCR 680
' J
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS.
[K.G,. BALAKRISHNAN, C.J.I.]

had not taken into account the social and educational A
137

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 fa'7our of such a caste on the ground that is a B
socially and educationally backward class of citizens within
the meaning of Article 15(4) .... It is 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 c
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
D
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 at those castes are really classes of E
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 F
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."
121. In that decision it was further held that "Backward G
Class" in Article 16(4) cannot be read as "Backward Caste".
And under Article 340 of the Constitution, the President may by
J 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 H
lJ
138 SUPREME COURT REPORTS [2008] 4 S.C.R.

A 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
B and problems of socially and educationally backward classes
of citizens. And in Indra Sawhney's case (supra), 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
c 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
D 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
E constitutional goal. It was pointed ~ut 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.
F 122. 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
G to suffer social segregation based on caste. In Pradip
Tandon's case (supra) 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
H and who are identifiable by some common attributes. The
ASHOKA KUMAR THAKUR v. UNlON OF INDIA & ORS. 139
[K.G. BALAKRISHNAN, C.J.I.]
homogeneity of the class of citizens is social and A
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."
123. The above statement is not fully correct. Caste plays
an important role in determining the backwardness ot the B
individual. In society, social status and standing depend upon
the nature of the occupation followed. In paragraph 779 of Indra
.-> 1 Sawhney's case, it is stated:
"Lowlier the occupation, lowlier the social standing of the c
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
D
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."
124. "Caste" is often used interchangeably with "class" and E
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.,Qfher rules have to do
with the regulC1tions pertaining to religious purity or cleanliness. F
. 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.
G
125. The observations made byVenkataramaiah 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·
H
140 SUPREME COURT REPORTS [2008) 4 S.C.R.

A 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
B 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
c 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
D
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
E 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
F practised by members belonging to higher castes. Children
who grew in this caste ridden atmosphere 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
G 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)
126. Rivers, the leading anthropologist, criticizes the use
H
• ,
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 141
[K.G. BALAKRISHNAN, C.J.1.]

of the terms "caste" and "class" as synonyms 45 . However, many A
others, such as Lowie 46 and Kimball Young 47 , use these
terms as though they were identical. ,
127. Very common is the use of the word caste to indicate
hereditary status. Cecil Clare. North 48 , the noted sociologist,
accepts the point of view that degrees of rigidity mark the B
difference between class and caste systems. His definition
reads:

"A group in which status, occupation, and culture have
become hereditary is known as a caste. As a matter of c
fact, however, the distinction between a society based
upon caste and one in which open classes prevail is simply
one of degree."
128. North concludes by saying that the term "caste"
applies to classes that have become fixed, and that all such D
classes tend to become castes.
129. Maclver49 , another leading authority in the field of
social class theory, also identifies caste with hereditary status.
He attempts to tie his interpretation with the situation in India, a
procedure not often followed by the other sociologists. He writes E
thus,

"Caste as unchangeable status: - The feudal order
approximated to a caste system. When status is wholly
predetermined, so that men are born to their lot in life F
without hope of changing it, then class takes the extreme
" form of caste. This is the situation in Hindu society. 'Every

45
W.H.R. Rivers, Social Organization (New York, 1924) p. 143
46
Robert H. Lowie, The Origin of the State (New York, 1927) p. 21; Lowie, G
An Introduction to Cultural Anthropology (New York, 1940) p. 268
47
Kimball Young, An Introductory Sociology (New York, 1924)
I 48
Cecil Clare North, Social Differentiation (Chapel Hill, 1926) p. 254
-~ 49
R.N. Maciver, Society: A textbook of Sociology (New York 1937)
p.171.9 H
~
,
142 SUPREME COURT REPORTS [2008] 4 S.C.R.

A Hindu necessarily belongs to the caste of his parents, and
in that caste he inevitably remains. No accumulation of
wealth and no exercise of talents can alter his caste status;
and marriage outside his caste is prohibited or severely
discouraged.' Caste is a complete barrier to the mobility
B of class."
130. Therefore, a class always enjoys certain privileges
or at least certain advantages over others in society. When it is
more or less rigorously closed, or enjoys hereditary privileges,
it is called a "caste''.
c
131. However, there are other sociologists who are of the
opinion that the Caste system has a hereditary function also.
Charles Horton Cooley50 opines that:
"if the transmission of function from father to son has
D become established, a caste spirit, a sentiment in favour
of such transmission and opposed to the passage from
one class to another, may arise and be shared even by
the unprivileged classes. The individual then thinks of
himself and his family as identified with his caste ... "
E 132. Therefore, according to the early sociological
theories, the term "caste" has been used to mean "class",
hereditary or rigid status, and hereditary occupation.
133. The Mysore Census of 1901 51 is quoted, in this
F connection, as follows:
"In any one of the iinguistic divisions of India there are as
many as two hundred castes which can be grouped in
classes whose gradation is largely acknowledged by all.
But the order of social precedence amongst the individual
G castes of any class cannot be made definite, because not
only is there no ungrudging acceptance of such rank but

°Charles Horton Cooley, Social Organization (New York, 1909) p. 215
5

51 G.S. Ghurye, Caste and Race in India (Bombay, 1979) p. 6, Quoting
'
H from Mysore Census, 1901, p. 400
•,
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 143
[K.G. BALAKRISHNAN, C.J.I.]
-4
f
also the ideas of the people on this point are very nebulous A
and uncertain. The following observations vividly bring out
this state of things."
Excepting the Brahm in at· one end and the admittedly
degraded castes like the Holeyas at the other, the
members of a large proportion of the immediate castes B
l think or profess to think that their caste is better than their
neighbours, and should be ranked accordingly."
~
~

134. On the other hand, it is possible that within a caste
~ group there is a marked inequality of status, opportunity, or social c
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 ofa
D
rich Brahmin may be a poor Brahmin.
;. 135. 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. E
136. 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;
J
rather, it is characterized by its codes and its close-knit socia'
, controls. In the case of classes, however, there may not exist, ·F
}
such close-knit unit social controls, and there may exist great
disparity in occupational characteristics.
137. A social class is therefore a homogeneous unit, from
the point of view of status and mutual recognition; whereas a
G
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.
1
i Moreover, its emphasis upon ritual and regulations pertaining
H
( ,
144 SUPREME COURT REPORTS [2008] 4 S.C.R

A 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
B freely with it.

r38. 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.
c
139. 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.
0
140. 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 guiqelines have been framed after studying the
E 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
F 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 out
that the Commission took into consideration detailed data with
regard to social, educational and economic criteria. The
G 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. \
141. It is pointed out that an elaborate questionnaire was
H prepared by the Commission and the answers in this

·-
~
,
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 145
[K.G. BALAKRISHNAN, C.J.1.]

questionnaire were considered in detail for inclusion/rejection A
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. B
142. We hold that the determination of SEBCs is done
not solely based on caste and hence, the identification of SEBCs
(I
is not violative of Article 15(1) of the Constitution.

6. Whether Creamy Layer is to be excluded from c
SEBCs?

143. The SEBCs have been identified by applying various
criteria. Though for the purpose of convenience, the list is based
_, or caste, it cannot be said that 'Backward Class' has been
identified solely on the basis of caste. All the castes which D
suffered the social and educational backwardness have been
/1- 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
i of the castes included in this list, there may be an affluent
section (Creamy Layer) which cannot be included in the list of E
SEBCs.

144. 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 F
J 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's case should be equally
applied to any of the legislations that may be passed as per G
Article 15(5) of the Constitution. The Counsel forthe petitioners
submitted that SEBCs have been defined under section 2 (g)
-{ ·yf
of the Act and fhe 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 H
.,
146 SUPREME COURT REPORTS [2008] 4 S.C.R.

A 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.
B 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 I ~

exorbitantly high and the ordinary citizen would not be in a
c position to afford the payment of fees and thus the very purpose
of the reservation would be frustrated.
145. 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
D 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 Layer applied in reservations to jobs
E 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
F 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
G 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.
H
' "'
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 147
[K.G. BALAKRISHNAN, C.J.I.)

146. The learned Counsel pointed out that grouping of all A
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 b!'ickward 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 B
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 c
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
D
separate percentage of reservation .has been provided.
147. 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 E
Sawhney's 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 reservatiqn for further progress
in life. They are socially and educationally advanced enough to
compete for the general seats along with other candidates. F
./ 148. In Indra Sawhney's case (supra) 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
G
appropriate identification of a class - a backward class.
The very concept of a class denotes a number of persons
' ·.,t 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
H
4 ~ .-
148 SUPREME COURT REPORTS [2008] 4 S.C.R.

A 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
B the class. After excluding them alone, would the class be
a compact class. In fact, such exclusion benefits the truly
backward." (p. 724)
149. It is to be understood that "creamy layer" principle is I .\

introduced merely to exclude a section of a particular caste on
c the ground that they are economically advanced or educationally
forward. They are excluded because unless this segment of
caste is excluded 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
D that have be.en included among the socially and educationally
backward classes have been included exclusively on the b.asis
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 ""
I
prohibited by various decisions of this Court and it is also against
...
E 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.
150. It may be noted that the "creamy layer" principle is '
applied not as a general principle of reservation. It is applied
F 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's case upheld the exclusion of "creamy layer" for the
G purpose of reservation in Article 16(4). Therefore, we are bound
by the larger Bench decision of this Court in Indra Sawhney's
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
H education thereby raising educational, social and economical
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 149
[K.G. BALAKRISHNAN, C.J.I.]

levels of those who are lagging behind and once this progress A
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 B
so, it would be unreasonable, discriminatory or arbitrary, resulting
in reverse discrimination.

151 . Sawant, J. also made observation in Indra
Sawhney's case to ensure removal of 'creamy layer'. He
observed:- C

" .... at least some individuals and families in the backward
classes - - gaining. sufficient means to develop their
capacities to compete with others in every fi~ld .... Legally,
therefore, they are not entitled to be any longer called as D
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 E
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 F
to the exclusion and to the cost of the rest in those classes,
thus keeping the rest in perpetual backwardness."
152. All these reasonings are equally applicable to the
reservation or any special action contemplated under Article G
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 H
150 SUPREME COURT REPORTS [2008] 4 S.C.R.

A 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 without the exclusion of 'creamy layer' may not
be in accordance with Article 15(1) of the Constitution.
B 7. What should be the para-meters for determining
the "creamy layer" group ?
153. After the decision in Indra Sawhney's case (supra),
the Government of India, Ministry of Personnel, Public
c 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
D
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
E 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 Sawhneyvs. Union of
India (Writ Petition (Civil) No. 930of1990) the Government of
F 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.
2. Consequent to the consideration of the Expert
G 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
H
.' ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 151
[K.G. BALAKRISHNAN, C.J.I.)

-f.-
Posts and Services under the Government of India, to be A
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.
***
B
(b)
(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 C
as artisans or engaged in hereditary occupations, callings.
A list of such occupations, callings will be issued separately
by the Ministry of Welfare.
(d)-(e) * * *
D
* * *

3. SCHEDULE
Description of category To whom rule of exclusion
will apply E
1 2 3

I I. CONSTITUTIONAL
POSTS
Son(s) and daughter(s) of
(a) President of India;
(b) Vice-President of India; F

(c) Judges of the Supreme
Court and of the High Courts;
(d) Chairman & Members of
UPSC and of the State Public G
Service Commission; Chief
Election Commissioner;
Comptroller and Auditor
General of India;
H
t~
152 SUPREME COURT REPORTS [2008] 4 S.C.R.
...
A
(e) persons holding _.
constitutional positions of like
nature.

II. SERVICE CATEGORY Son(s) and daughter(s) of
B A. Group A/Class I Officers (a) parents, both of whom are
of the All India Central Class I Officers;
and State Services (b) parents, either of whom
is a Class I officer; I~
('

(Direct Recruits) (c) parents, both of whom are
c Class I Officers, but one of
them dies or suffers
permanent incapacitation;

(d) parents, either of whom is
a Class I officer and such
D
parent dies or suffers
permanent incapacitation and
-",
before such death or such
incapacitation has had the
benefit of employment in any
E International Organisation like
UN, IMF, World Bank, etc. for
a period of not less than 5
years;

F (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
G
benefit of employment in any
International Organisation like
UN, IMF, World Bank, etc. for y
a period of not less than 5
years.
H
' ,
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 153
[K.G. BALAKRISHNAN, C.J.I.)

·+ Provided that the rule of . A
exclusion shall not apply in the
following cases :

(a) Son(s) and daughter(s) of
parents either of whom or both 8
of whom are class I officers
and such parent(s) dies/die or
suffer permanent
"} "'"'\ incapacitation;

't
(b) A lady belonging to OBC c
category has got married to a
/
Class I officer, and may herself
like to apply for a job.
-'I B. Group B/Class II officers Son(s) and daughter(s) of
of the Central and State (a) Parents both of whom D
Services are Class II officers;
,,...
(Direct Recruitment) (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; E

(c) parents, both of whom are
Class 11 officers and one of
them dies or suffers
~ permanent incapacitation and
F
.j ,,. 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 5 years
before such death or G
permanent incapacitation;
-,; (d) parents of whom the
husband is a Class I officer
(direct recruit or pre-forty H
154 SUPREME COURT REPORTS [2008] 4 S. C.R.
.,
A
promoted) and the wife is a
Class II officer and the wife
dies; or suffers permanent
incapacitation; and

B (e) parents, of whom the wife
is a Class I officer (direct
recruit or pre-forty promoted)
and the husband is a Class II
officer and the husband dies
or suffers permanent
c incapacitation:
Provided that the rule of
exclusion shall not apply in the
following cases:
D Son(s) and daughter(s) of
(a) parents both of whom are
Class II officers and one of
them dies or suffers
E permanent incapacitation;
(b) parents, both of whom are
Class II officers and both of
them die or suffer permanent
incapacitation, even though
F 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
G before their death or
permanent incapacitation.
C. Employees in Public
Sector Undertakings etc. The
criteria enumerated in A and
H
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 155
[K.G. BALAKRISHNAN, C.J.I.]

B above in this category will
A
apply mutatis mutandis to
officers holding equivaleot or
comparable posts in PSUs,
Banks, Insurance
Organisations, Universities, B
etc. and also to equivalent or
comparable posts and
positions under private
employment, pending the
evaluation of the posts on c
equivalent or comparable
basis in these institutions, the
criteria specified in Category
VI below will apply to the
officers in these institutions. D
Ill. ARMED FORCES Son(s) and daughter(s) of
INCLUDING parents either or both of whom
PARAMILITARY is or are in the rank of Colonel
FORCES (Persons and above in the Army and
holding civil posts to equivalent posts in the Navy E
are not Included) and the Air Force and the
Paramilitary Forces:
Provided that:

I (i) If the wife of an Armed F
,A
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 G
reached the rank of Colonel;
(ii) The service ranks below
Colonel of husband and wife
shall not be clubbed together;
H
I I

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

A
(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
B falls in the service category
under Item No. II in which case
the criteria and conditions
.t
enumerated therein will apply f ••

to her independently.
c
IV. PROFESSIONAL
CLASS AND THOSE
ENGAGED IN TRADE
AND INDUSTRY
D (i) Persons engaged in
profession as a doctor,
lawyer, chartered .....
accountant, Income Tax
consultant, financial or
E management
consultant, dental
surgeon, engineer,
architect, computer
specialist, film artists
F and other film
professional, author,
playwright, sports
persons, sports
professional, media
professional or any
G
other vocations of like
status.
(ii) Persons engaged in Criteria specified against '-f

trade, business and Category VI will apply-
H
' ,
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 157
[K.G. BALAKRISHNAN, C.J.I.)

industry. Criteria specified against A
Category VI will apply-
Explanation:
(i) Where the husband is in
same profession and the wife 8
is in a Class II or lower grade
employment, the income/
wealth test will apply only on
the basis of the husband's
income;
c
(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 D
apply only on the basis of the
,>
wife's income and the
husband's income will not be
clubbed with it.
V. PROPERTY OWNERS E
A. Agricultural holdings Son(s) and daughter(s) of
persons belonging to a family
(father, mother and minor
children) which owns only F
irrigated land which is equal to
or inore than 85% of the
statutory area; or
-··
(a) both irrigated and
unirrigated land, as follows : G
(i) The rule of exclusion will
apply where the precondition
exists that the irrigated area
(having been brought to a
H
158 SUPREME COURT REPORTS [2008] 4 S.C.R.

A single type under a common
denominator) 40% or more of
the statutory ceiling limit for
irrigated land (this being
calculated by excluding the
B unirrigated portion). If this
precondition of not less than
40% exists, then only the area
.t.
of unirrigated land will be
'
taken into account. This will be
c done by converting the
unirrigated land on the basis
of the conversion formula
existing, into the irrigated type.
The irrigated area so
D 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% or
E
more of the statutory ceiling
limit for irrigated land, then the
rule of exclusion will apply and
disentitlement will occur;

F (ii) The rule of exclusion will not
apply if the land holding of a
family is exclusively
unirrigated.
Criteria of income/wealth
G specified in Category VI
below will apply
Deemed as agricultural
holding and hence criteria at
H
I
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 159
[K.G. BALAKRISHNAN, C.J.I.]

A
A above under this category
-+
will apply.
Criteria specified in Category
VI below will apply.
Explanation: Building may be 8
used for residential, ir:idustrial
or commercial purpose and
" .. the like two or more such
purposes.
c
B. Plantations
(i) Coffee, tea, rubber
etc.
(ii) Mango, citrus, apple
D
plantations, etc.

,>.. C. Vacant land and/or
buildings, in urban areas
or urban agglomerations
VI. INCOME/ Son(s) and daughter(s) of
E
WEALTH TEST (a) persons having gross
of
annual income Rs. 1 lakh or
above or possessing wealth
above the exemption limit as
prescribed in the Wealth Tax F
!
,;:, Act for a period of thre.e
consecutive years;
(b) persons in Categories I, II,
Ill and V-A who are not
G
disentitled to the benefit of
reservation but have income
y
from other sources of wealth
which will bring them within the
income/wealth criteria
H
.,
160 SUPREME COURT REPORTS [2008] 4 S.C.R.

A
mentioned in (a) above.
Explanation.
(i) Income from salaries or
agricultural land shall not be
B clubbed;
(ii) The income criteria in
terms of rupee will be modified
taking into account the change
c in its value every three years;
If the situation,- however, so
demands, the interregnum
may be less.

Explanation: Wherever the expression 'permanent
D incapacitation' occurs in this Schedule, it shall mean
incapacitation which results in putting an officer out of
service."

154. We make it clear that same principle of determining
E the creamy layer for providing 27% reservation for backward
classes for appointment need not be strictly followed in case of
reservation envisaged under Article 1°5(5) of the Constitution.
As pointed by Shri Ravivarma Kumar, learned Senior Counsel,
if a strict income restriction is made for identifying the "creamy
F layer'', those who are left in the particular caste may not be able
to have a sufficient number of candidates for getting admisslon
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
G 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
H
~ ,
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 161
[K.G. BALAKRISHNAN, C.J.1.]

implementation of the reservation purposefully. A
155. 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". B

8. Whether the "creamy layer" principle is applicable
~). to Scheduled Tribes and Scheduled Castes ?
156. Learned Senior Counsel Dr. Rajeev Dhavan
submitted that "cr~amy layer" principle is to be applied to SCs c
and STs. He drew inspiration from the observations made by
Justice Krishna Iyer in N.M. Thomas's case (supra) and also
from the observations made in Nagaraj's case and reference
was made to paragraphs 80, 110 and 120 to 123 of Nagaraj's
case (supra). D
157. N.M. Thomas's case (supra) does not state that
"creamy layer" principle should apply to SCs and STs. In K.C.
Vasanth Kumar's case (supra) the "creamy layer" was used
in the case of backward caste or class. In K.C. Vasanth
Kumar5 2 (supra), Desai J. quoted from N.M. Thomas (supra) E
as follows :-

"In the light of experience, here and elsewhere, the danger
of 'reservation', it seems to me, is threefold. Its ben~fits,
)
by and large, are snatched away by the top creamy layer F
.;'- of the 'backward' caste or class, thus keeping the weakest
among the weak always weak and leave the fortunate .
layers to consume the whole cake."
(N.M. Thomas (supra) p. 363, para 124)
G
158. In Nagaraj's case (supra) 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

52
(supra) p. 733
H
162 SUPREME COURT REPORTS [2008] 4 S.C.R.
., }
A 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's case· (supra) and earlier in M.G. Badappanavar
B &Anr. Vs. State of Karnataka & Ors. 53 ; Ajit Singh & Ors. (II)
vs. State of Punjab & Ors.54 and Union of India & Ors. Vs .
.Virpal Singh Chauhan & Ors. 55 . Virpal Singh Chauhan's
case (supra) dealt with reservation of railway employees wherein ,~
it is held that once the number of posts reserved for being filled
C 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 ll's case (supra)
dealt with consequential seniority on promotion and held that
roster points fixed at Level 1 are not intended to determine any
0
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.
E M.G. Badappanavar's case (supra) followed the cases of Ajit
Singh II (supra) and Virpal Singh (supra).
159. In none of these decisions it is stated that the "creamy
layer" principle would apply to SCs and STs. In Indra
F Sawhney's case (supra), it is specifically stated that the
"creamy layer" principle will not apply to STs and SCs. In ,._
Nagaraj's case (supra) , 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
G of equality such as 50% ceiling (quantitative limitation) and
"creamy layer'' (quantitative exclusion) may be kept in mind. In

53 (2001) 2 sec 666
54
(1999)1sec209
55
H (1995) 6 sec 684
(J
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 163
[K.G. BALAKRISHNAN, C.J.1.]

Nagaraj's case (supra) it has not been discussed or· decided A
that the creamy layer principle would be applicable to SCs/STs.
Therefore, it cannot be said that the observations made in
Nagaraj's case are contrary to the decision in Indra Sawhney's
case (supra).
160. Moreover, the "creamy layer" principle is not yet B
applied as a principle of equality or as a general principle to
apply for all affirmative actions. The observations made by
-I
. Chinnappa Reddy, J. in K.C. Vasanth Kumar case are relevant
in this regard. The learned Judge observed as under :
c
"One cannot quarrel with the statement that social science
·research and not judicial impressionism should form the
basis of examination, by courts, of the sensitive question
of reservation for backward classes. Earlier we mentioned
how the assumption that efficiency will be impaired if
D
reservation exceeds 50%, if reservation is extended to
promotional posts or if the carry forward rule is adopted,
is not based on any scientific data. One must, however,
enter a caveat to the criticism that the benefits of
reservation are often snatched away by the top creamy
layer of backward class or caste. That a few of the seats E
and posts reserved for backward classes are snatched
away by the more fortunate among them is not to say that
reservation is not necessary. This is bound to happen in
a competitive society such as ours. Are not the unreserved
seats and posts snatched away, in the same way, by the F
j
top creamy layer of society itself? Seats reserved for the
backward classes are taken away by the top layers
amongst them on the same principle of merit on which the
unreserved seats are taken away by the top layers of
society." (p. 763) G
161. So far, this Court has not applied the "creamy layer"
y . 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
H
~ J
164 SUPREME COURT REPORTS [2008] 4 S.C.R.

A 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
B 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 Arti.cles 341
and 342 of the Constitution. The President may, after .. ~
consultation with the Governor, by public notification, specify the
c caste·s, races or tribes or parts of or groups within castes, races
or tribes which for the purpose of the Constitution shall be
deemed to be Scheduled Castes of Scheduled Tribes. Once
the N'otification is issued, they are deemed to be the members
of Scheduled Castes or Scheduled Tribes, whichever is
applicable. In E.V. Chinnaiah (supra), concurring with the
D
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,
E 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
F 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
1:1urview thereof or tinker with the order issued by the
G
President of India would be unconstitutional. (Paras 52,
111 and 84)
y
(emphasis supplied)
162. A plea was raised by the respondent-State that
H •
ASHOKA KUMAR THAKUR v. UNION OF !NOIA & ORS. 165
[K.G. BALAKRISHNAN, C.J.I.]

categorization of Scheduled Castes could be justified by A
applying the "creamy layer" test as used in Indra Sawhney's
case (supra) which was specifically rejected in paragraph 96 of
the E.V. Chinnaiah's case (supra). It is observed :-

But we must state that whenever such a situation arises in
respect of S~heduled Caste, it will be Parliament alone to 8
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." (p. 430)

163. Moreover, right from the beginning, the Scheduled c
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
0
soeially 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
Trib~. .

9. Whether the principles laid down by the United E.
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 F
_,._I of India?

164. 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 G
Supreme Court and only by passing this test of ·"strict scrutiny",
·such legislation could be put into practice.

165. At the. outset, it must be stated that the decisions of
the United States Supreme Court were not applied in the lncjian
H
166 SUPREME COURT REPORTS [2008] 4 S.C.R.

A 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 & Ors. Vs. The State of
Madhya Pradesh & Anr.56 and A.S. Krishna Vs. State of
57
B Madras wherein this Court specifically held that the due
process clause in the Constitution of the United States of
America is not applicable to India. While considering the scope
and applicability of Article 19( 1)(g) in Kameshwar Prasad and
.. t
Others Vs. State of Bihar and Another58 , it was observed "- •
c "As regards these decisions of the American Courts, it
should be borne in mind that though the First Amendment
to the Constitution of the United States reading "Congress
shall make no law .. .-.abridging the freedom of speech .... "
appears to confer no power on the Congress to impose
D any restriction on the exercise of the guaranteed right, still
it has always been understood that the freedom guaranteed
.is subject to the police power - the scope of which however ....
~has not been defined with precision or uniformly. " (p. 378)

166. In Kesavananda Bharati 59 case also , while
E 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 :-

F "The American decisions which have been copiously cited
before us, ~ere 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
G
56 [1955] 2 SCR 589

57
(1957} SCR 399 ...,..
58 1962 Supp. (3) SCR 369

59 [1973] 4 sec 22s
H
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 167
[K.G. BALAKRISHNAN, C.J.I.]

~
and the underlying concepts of law and judicial approach A
· 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". (p. 615)
167. It may also be noticed that there are structural
differences in the Constitution of India and the Constitution of B
the United States of America. Reference may be made to the
14th Amendment to the U.S. Constitution. Some of the relevant
i';.
.> portions thereof are as follows:
"All persons born or naturalized in the United States, and c
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
D
without due process of law nor deny to any person within
>-
its jurisdiction the equal protection of the laws."
1·68. 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 E
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 F
).' (Article 38). Earlier, there was a view that Articles 16(4) and
15(5) are exceptions to Article 16(1) and 15(1) respectively. This
view was held in The General Manager Southern Railways
Vs. Rangachari 60 and M.R. Balaji Vs. State of Mysore61 .
169. In T. Devadasan62 (supra), Subba Rao J., gave a G
dissenting opinion wherein he held that Article 16(4) was not an
v' 60
(supra) at p. 607
61
(supra) at 455
;~
62
(supra) at 700 H
168 SUPREME COURT REPORTS [2008] 4 S.C.R.

A 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
B really carved out an exception, but has preserved a power
untrammeled by the other provisions of the Article."
170. In two other subsequent decisions, i.e. in Triloki Nath
(1) 63 (supra) and T. Devadasan case (supra), it was held that,
c 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 Vs. N.M.
Thomas (supra) held that Article 15(4) and 16(4) are not
exceptions to Article 15(1) and 16(1) respectively. Fazal Ali J.,
said:
D "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 ....
on this point. That is to say clause (4) of Article 16 is not
an exception to Article 14 in the sense that whatever
E classification can be made, can be done only through
clause (4) of Article 16. Claus~ (4) of Article 16, however,
'
is an explanation containing an exhaustive and exclusive
provision regarding reservation which is one of the forms
of classification."
F 171. This brought out a drastic change in the view of this
Court. In K.C. Vasanth Kumar Vs. State of Karnataka 64
(supra), 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
G
also asks the State not to deny the equal protection of the
laws. Equality before law connotes absence of any
''(
63
(supra) at 104 ,..._
64
H (supra) at 800
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 169
[K.G. BALAKRISHNAN, C.J.I.]

discriminatic;m in law. The concept of equal protection A
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 B
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 c
·or protective discrimination to grant relief to persons .
belonging to socially oppressed castes and minorities." .
172. 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 D
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 E
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 111 and Directives Principles of State Policy in Part
IV of the Constitution. The Fundamental Rights represent the F
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 Prea~ble of the Constitution.
1
Granville Austin, in his· book65 , states : .

"Both types of rights have developed as a common G
demand, products of the national and social revolutions,
of their almost inseparable intertwining, and of the

65
Granville Austin : The Indian Constitution : Corner-stone o·fa Nation, .
~~ . H
(

A
170 SUPREME COURT REPORTS

character of Indian politics itself."
[2008] 4 S.C.R.
-"'
I-
173. 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 justicia.ble and the
B 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
"'
c 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's case
(supra), it was observed that "the Directive Principles have to
D conform to and run subsidiary to the Chapter of Fundamental
Rights." But this view did not hold for a long time and was later
changed in a series of subsequent decisions. (See : In Re. .
.
Kerala Education Bill, 195766 ; Minerava Mills (supra))
174. In Minerva Mills 67 (supra) Bhagwati, J observed :
E
"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
F 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
G
Rights available to all irrespective of their power, position
or wealth. The dynamic provisions of the Directive
y

H
66
1959 SCR 995
67 AIR 1980 SC 1789,
at p. 1847
·-
.-
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 171
[K.G. BALAKRISHNAN, C.J.I.]

Principles fertilise the static provisions of the Fundamental A
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 B
structure of the society. Can there be any individual liberty
at all for the large masses of people who are suffering
1"
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 c
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-
D
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 E
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

.A
. constitutional scheme and it is only in the framework of the F
·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 G
and who are living below the poverty level."
175. Article 46 enjoins upon the State to promote with
v
special care the educational and economic interests of the
weaker sections of the people and to protect them from social
H
172 SUPREME COURT REPORTS [2008] 4 S.C.R

A injustice and all forms of exploitation whereas urider 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
B recognized. In Dred Scott Vs. Saunders 68 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
C for a long time and after the Civil War, the 14th amendment was
enacted in 1868 and this amendment gave (equal protection of
laws to all persons). In Plassy Vs. Ferguson 69 which involved
a challenge to a Louisiana statute that provided for equal but
separate accommodations for black and white passengers in
D 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 Vs. Board of Education 70 was delivered
in 1954. In many cases, the strict scrutiny doctrine was being
E applied to all laws of racial classifications. The learned Counsel
for the petitioner made reference to Gratz Vs. Bollinger (supra)
and some of the earlier decisions of the UniteJStates Supreme
Court. During the past two decades, the Court has become
sceptical of race-based affirmative action practiced or ordered
F 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.
176. The 14th Amendment to the Constitution of the United
G
States of America and Title VI of the 1964 Civil Rights Act,

68
60 us 393( 1856) •.,.-
69
163 us 537(1896)
H 70
347 us 483
•'
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 173
[K.G BALAKRISHNAN, C.J.I.]

~ prohibit universities to discriminate on the basis of classifications A
such as race, colour, national origin and the like in all their
.., operations. In a number of decisions of the United States
1
Supreme Court spanning decades of jurisprudence, a heavy
"
'I burden has been placed on institutionswhose affirmative action
"' programmes are challenged before the United States Supreme B
Court on grounds that have been recognized as suspect or
unconstitutional. According to the United States Supreme Court,
l_j
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 c
courts have subjected all affirmative action programmes relying
-j
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
"') I scrutiny" test.
D
>-. 177. The case of Regents of the University of California
Vs. Bakke 71 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 E
_, scrutiny'' test, as developed by the United States Supreme Court.
The two grounds are as follows:
1. 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 F
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.
G
In the case of City of Richmond Vs. J A Croson Co. 72 ,
the United States Supreme Court held that if a university is able
y
'
71
438 us 265 (1978)
72 488 U.S. 469 (1989)
H
', '

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

A 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
B 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 "t
relief'. (Croson's Case73 )
c 2. 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
D case of Regents of the University of California Vs. Bakke74
(supra). 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
75
E academic freedom [Sweezy Vs. New Hampshire and
Keyishian Vs. Board of Regents 76 } and observed:
"[l]t is the business of a university to provide that
atmosphere which is most conducive to speculation,
.....
experiment and creation ......... The atmosphere of
F speculation, experiment and creation - so essential to ~

the quality of higher education - is widely believed to be
promoted by a diverse student body.... [l]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
G
73 (supra), p. 492-93
y
14 (supra) at 311-313
75 (1957) 354 US 234 at 263

H 1s ( 1967) 385 US 589 at 603
'
I

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 175
[K.G. BALAKRISHNAN, C.J.I.]
__..
as diverse as this Nation of many peoples." A
178. 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 8
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. c
Otherwise, it may be possible that the rights of other people
may be infringed upon, which would make the affirmative action
programme unconstitutional.
179. Thus, the first limb of the strict scrutiny test that
D
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.
E
180. 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 F
" 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.
G
181. 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 lr:idia. As the US Supreme Court
elucidated in the case of Grutter Vs. Bollinger (supra), H
176 SUPREME COURT REPORTS [2008] 4 S.C.R.

A "Because the Fourteenth Amendment "protect[s] persons, not f

groups," 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. (See : Adarand
77
B Constructors Inc. Vs. Peiia) .
182. 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".
c
183. 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
D
institution that practices affirmative action programmes based
on 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
E 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.
F .~

184. 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
G
the doctrine that every legislation passed by the Parliament is
presumed to be constitutionally valid unless otherwise proved.
~-
We have repeatedly held that the Am~,,ican decisions are not

77
H (1995) 515 US 200 at 227
(

' ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS.
[K.G. BALAKRISHNAN, C.J.I.]
177

strictly applicable to us and the very same principles of strict A
--'. scrutiny and suspect legislation were sought to be applied and
this Court rejected the same in Saurabh Chaudhari Vs. Union
of lndia 78 . 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 B
Shri Salve cannot be applied in this case. Such a test is
not applied in Indian Courts. In any event, such a test may
-J;. 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 c
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." D
185. 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 to Act 5 of 2007 E
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.
10. Whether delegation of power to the Union F
Government to determine as to who shall be the
·""· backward class is constitutionally valid?
186. 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 G
Class" would be identified and the delegation of such power to
the Union of India to determine as to who shall be the "backward
y class" without their being proper guidelines is illegal as it
76
2003 (11) sec 146 H
178 SUPREME COURT REPORTS [2008] 4 S.C.R.
' )

A 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
B 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
c 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
0
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
E 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
F 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
G has been given wide powers to determine the backward classes.
The challenge to Act 5 of 2007 on that ground fails.
11. Whether the Act is invalid as there is no time limit y
prescribed for its operation and no periodical review
H
is contemplated? •
'J ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 179
[K.G. BALAKRISHNAN, C.J.I.]

187. The learned Counsel for the petitioners contended A
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 B
""" 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 c
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
D
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 E
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 F
,;, it so happens that any section of the community gets an undue
advantage of the affirmative action, then such community can
very 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 G
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 H
180 SUPREME COURT REPORTS [2008] 4 S.C.R.

A 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
B a period of 10 years.
12. What shall be the educational standard to be
prescribed to find out whether any class is
educationally backward? •• ..-
c 188. 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
D
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
E 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
F 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
G education.
189. 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
H
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 181
[K.G. BALAKRISHNAN, C.J.I.]

incorrect to suggest that there have been no efforts on the part A
of successive Governments to concentrate on level of education
towards universal elementary education. "Sarva Shiksha
Abhiyanf" (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 B
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 c
Integrated Child Development Services (ICDS} scheme was
started in 1975. 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 %
D
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 primary and from 40.9% to 44% at upper primary stage. The E
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 F
j

,J., 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 G
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.
H
182 SUPREME COURT REPORTS [2008] 4 S.C.R.

A 13. Whether the quantum of reservation provided
for in the Act is valid and whether 27% of seats for
SEBC was required to be reserved?
. 190. The main contention of the petitioner's Counsel
especially that of Shri Sushil Kumar Jain is that the entire Act is
8 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
C 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.
191. A legislation passed by the Parliament can be
0
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 orany
E 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
F 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
G constitutional law. This Court in State of Rajasthan & Ors. Vs.
Union of India and Others 79 said :
" ... if a question brought before the Court is purely a

H 79
(1977) 3 sec 592 at p. 660
\ ' ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 183
[K.G. BALAKRISHNAN, C.J.I.]

politically question not involving determination of any legal A
or constitutional right or obligation, the court would not
entertain it, since the Court is concerned only with
adjudication of legal rights and liabilities."
192. Therefore, the plea of the Petitioner that the legislation
itself was intended to please a section of the community as part 8
of the vote catching mechanism is not a legally acceptable plea
and it is only to be rejected.
193. The quantum of reservation provided under the Act 5
of 2007 is based on the detailed facts available with the c
Parliament. Various commissions have been in operation
determining as to who shall form the SEBCs. Though a caste-
wise census is not available, several other data and statistics
are available. In the case of Indra Sawhney (supra), the Mandal
Commission was accepted in principle though the details and
0
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 E
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, F
J 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:
1. Whether the Ninety-Third Amendment of the G
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
H
184 SUPREME COURT REPORTS [2008] 4 S.C.R.
.,
A relates to the state maintained institutions and aided educational
institutions. Question whether the Constitution (Ninety-Third t-
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. (Paragraph
B 79)
2. Whether Articles 15(4) and 15(5) are mutually
contradictory, hence Article 15(5) is to be held
ultra vires? •"
•
c Article 15(5) is constitutionally valid and Articles 15(4) and
15(5) are not mutually contradictory. (Paragraph 100)
3. Whether exclusion of minority educational
institutions from Article 15(5) is violative of
Article 14 of Constitution?
D
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
E provisions. (Paragraph 102)
4. Whether the Constitutional Amendment·
followed the procedure prescribed under Article
368 of the Constitution?
The Ninety-Third Amendment of the Constitution does not
F 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. (Paragraph
103)·
5. Whether the Act 5 of 2007 is constitutionally
G
invalid in view of definition of "Backward Class"
and whether the identification of such
"Backward Class" based on "caste" is
constitutionally valid?
H Identification of "backward class" is not done solely based
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 185
[K.G. BALAKRISHNAN, C.J.I.]

on caste. Other parameters are followed in identifying the A
backward class. Therefore, Act 5 of 2007 is not invalid for this
reason. (Paragraph 142)
6. Whether ·~creamy Layer" is to be excluded from
SEBCs?
B
"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. (Paragraph 152)
7. What should be the para-meters for determining C
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
0
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 E
excluding the creamy layer. (Paragraphs 153 and 155)
8. Whether the "creamy layer" principle is
applicable to Scheduled Tribes and Scheduled
.
,;.,
Castes? F
"Creamy Layer" principle is not applicable to Scheduled
Castes and Scheduled Tribes. (Paragraph 163)
9. Whether the principles laid down by the United
States Supreme Court for affirmative action such G
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?
H
• ,
186 SUPREME COURT REPORTS [2008) 4 S.C.R.

A 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.
B (Paragraphs 184)

10. Whether delegation of power to the Union
Government to determine as to who shall be
the backward class is constitutionally valid?

c 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. (Paragraph 186)
11. Whether the Act is invalid as there is no time
D 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. (Paragraph 187)
E
12. 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
F or (10+2) should be the benchmark to find out whether any class .
J..

is educationally backward is rejected. (Paragraph 189)
13. Whether the quantum of reservation provided
for in the Act is valid and whether 27% of seats
for SEBC was required to be reserved?
G
27% of seats for other backward classes is not illegal and
the Parliament must be deemed to have taken into consideration .v
all relevant circumstances when fixing the 27% reservation.
(Paragraph 193)
H
' ,
" ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 187
' [DR. ARIJIT PASAYAT, J.]

These Writ Petitions are disposed off in light of the above A
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 B
reference to caste, it shall exclude "Creamy Layer" from among
such caste. In Contempt Petition (Civil) No. 112/2007 in Writ

- -.;
\. Petition (C) No. 265/2006, no orders are required. It is
dismissed.
Dr. ARIJIT PASAYAT, J. 1. The issues involved in the c
present writ petitions have far reaching consequences and in
essence pose several questions of seminal importance. In
essence, they raise questions which have no easy answers.
The complexity can be gauged from the fact that on one hand
the petitioners have questioned the logic of providing D
).
reservations/quotas for a class of people whom they described
as "unidentifiable" or "undetermined" while the respondents
justify their action by labelling them as measures taken for
upliftment of vast majority of people who have suffered social
humiliation and sneer for the social backwardness. Complex E
questions like whether the expressions 'class' and 'castes' are
synonyms, whether reservations provide the only solution for
social empowerment measures, alleged lack of concern for the
economically weaker group of citizens are some of the basic
.
,A.
issues which need to be addressed. It has been emphatically
highlighted by the petitioners that when the ultimate objective is
F
classless and casteless in Indian democracy, there is no question
of unendingly providing the reservation and that too without any
definite data regarding backwardness. In essence, they contend
that these measures perpetuate backwardness and do not
G
remove them. On the epicenter of challenge is the Central
Educational Institutions (Reservation in Admission) Act 2006
)I (in short the 'Act') and the 93rd Amendment to the Constitution
of India, 1950 (in short the 'Constitution~). Interestingly, both the
petitioners and the respondents rely strongly on certain
H
.
) I.•I

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

A observations made by this Court in Indra Sawhney v. Union of
India 1992 (Suppl. 3) SCC 217 (commonly known as 'Indra
Sawhney No.1 ')
2. When the writ petitions were placed before a Bench of
two Judges, considering the importance of the matter they were
...
B referred to be heard by a larger bench and certain questions
which arise for consideration were formulated. That is how these
cases are before this Bench.
3. Arguments have been advanced by both the sides as to
J
-
c whether Constitution contemplates casteless society. While the
respondents submit that the Constitution really does not think of
a casteless society, it prohibits untouchability in the background
of Article 17. It has to be noted that both in Articles 15 and 16
the stress is on non-discrimination on the ground of castes. The
Preamble of the Constitution also throws light on this aspect.
D
Ultimately if the social status of a man goes in the higher direction
because of his education, the difference in status gets
obliterated. Education is a great leveller. In that sense, the
ultimate object is that every Indian citizen should have the social
status which is not inferior to another and that would be
E obliteration of the difference in status. The ultimate objective is
to see that no person gets discriminated because of his caste.
If that be so, it would not be right to say that the ultimate objective
is not the casteless society.

F 4. Various Articles of the Constitution of India and the .
.l..
Preamble provide an insight to the. monumental document i.e.
the Constitution of India. Article 14 guarantees equality before
the law in addition to equal protection of law. Article 15(1)
mandates that there shall not be any discrimination against any
citizen on the grounds of religion, caste, sex, race, or place of
G
birth. Article 16(1) makes the fundamental right of equality
specific relating to job opportunities. Article 16(2) significantly
~
speaks of government employment by providing that no citizen
shall be ineligible only on the grounds of religion, race, caste,
sex, descent, place of birth or any of them or discriminated
H
' ,
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 189
[DR. ARIJIT PASAYAT, J.]

against in respect of any employment or office under the State. A
-4 Article 16(4) is an important provision which empowers the State
~
~ permitting the provision for the reservation of appointments and
posts in favour of any backward class of citizens which in the
opinion of the State is not adequately represented in the services
of the State. The stress is on backwardness of the citizens and B
inadequate representation in the services under the State.
5. If one takes a walk on the pathway relating to the views
\. expressed by this Court in the matter of reservation or quotas
for the other backward classes one comes across many
milestones. Some of them were noted extensively in Indra c
Sawhney No. 1. They are: The State of Madras v. Sm.
Champakam Dorairajan & Anr. (AIR 1951 SC 226), Minor A
Peeriakaruppan v. Sobha Joseph (1971 (1) SCC 38), The State
of Andhra Pradesh and Ors. v. U.S. V Bairam, etc. (1972 (1)
SCC 660), Shri Janki Prasad Parimoo and Ors. v. State of D
Jammu and Kashmir and Ors. (1973(1) SCC 420), State of
·~
)...
Uttar Pradesh and Ors. v. Pradip Tandon and Ors. (1975 (1)
SCC 267), State of Kera/a and Anr. v. N.M. Thomas and Ors.
(1976(2) SCC 310), Kumari KS. Jayashree and Anr. v. The
State of Kera/a and Anr. (1976 (3) SCC 730), K.C. Vasanth E
Kumar and Anr. v. State of Kamataka (1985 (Supp) SCC 714)
and Indra Sawhney v. Union of India and Ors. (2000 (1) SCC
168) (known as Indra Sawhney No.2).
6. Two recent decisions have also been highlighted by the
parties. They are M. Nagaraj and Ors. v. Union of India and F
.
Jo- Ors. (2006 (8) SCC 212) and Nair Service Society v. State of
Kera/a (2007 (4) sec 1). It is to be noted that some of the
arguments which have been raised relate to broad principles of
law and the jurisprudential approach. They are the applicability
of the foreign decisions, more particularly, the decisions of the G
American Courts. They relate to the principles of strict scrutiny
and narrow tailoring.
'f 7. Learned counsel for the petitioners have stressed on
these decisions to show as to what should be the approach in
H
\
190 SUPREME COURT REPORTS [2008] 4 S.C.R.

A matters relating to social empowerment. Learned counsel for
the respondents have however submitted that the approach is
to be different because the problems before the American
Courts essentially related to individual rights while the Indian
Courts are more concerned with group rights i.e. rights of class
B of citizens. We shall deal with this in some length later.
8. The other issue which was hotly contested related to
the exclusion of the creamy layer.
9. One of the major challenges raised by the petitioners is
c based on the allegation that there is no acceptable data for fixing
the percentage of other backward classes. This has been
highlighted to show that there is no rational basis for fixing the
percentage of reservation at 27% for the other backward
classes. It is pointed out that the figures appear to have been
culled out from some survey done more than seven decades
0
back i.e. 1931 to be precise. Thereafter, there seems to be no
definite data to know the actual percentage. It is pointed out
that in Indra Sawhney No. 1 (supra) this Court had laid
considerable stress on having a Commission to identify and
determine the criteria for determining the socially and
E educationally backward classes. Very little appears to have been
done. It is surprising, it was contended, that there has been not
even a single case of exclusion but on the other hand more than
250 new castes/sub-castes have been added. This shows that ••
there is really no serious attempt to identify the other backward
F classes. On the other hand, there has been over-jealous anxiety .
to include more number of people so that they can get the .....
benefits of reservations/quotas and this has been termed as
"vote bank politics". It is highlighted that even when a serious
matter relatfng to adoption of the Act was under consideration
G there was hardly any discussion and every political party was
exhibiting its anxiety to get the Statute passed. Crocodile tears
were shed to show lip sympathy for the backwardness of the
people. In reality, the object was to give a wrong impression to
the people that they were concerned about the backwardness
H of the people and they were the 'Messiahs' of the poor and the
~
,
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 191
[DR. ARIJIT PASAYAT, J.]

down trodden. In reality, in their hearts the ultimate object was A
-+ to grab more votes. The lack of seriousness of the debate
exhibits that the debate was nothing but a red-herring to divert
attention from the sinister, politically motivated design masked
by the "tearful" faces of the people masquerading as champions
of the poor and down trodden. It is pointed out that contrary to. B
what was being projected by the parties when the discussions
were going on, in an impassioned speech by late Rajeev
Gandhi who was the leader of opposition at an earlier point of
\
time, the fallacies in adopting the Manda! Report were
highlighted. It is surprising, it is submitted, that those very people c
who were the champions of anti-reservation and anti- quota as
members. of opposition, have done summersault and were
saying just the opposite. It is pointed out that when one member
Shri P.C. Alexandar exhibited real courage and highlighted the
fallacies in the stand taken, his view appears to have been lightly
D
brushed aside and the Statute hustled through. It is also
submitted that the objectivity and sanctity of the report submitted
in the Parliament commonly known as "Oversight Committee
Report" has been lightly brushed aside. This only indicates that
there was no serious debate about the consequences. The
foresight of late Rajiv Gandhi in saying that the country will be E
divided on caste basis and that would lead to disaster has been
prophetically proved to be correct and it is a reality. It is submitted
that the enactment has created a sharp divide amongst the
citizens of the country and it has not even an iota of good results
flowing from it. On the contrary, the country will be divided sharply F
)
... leading to social unrest and caste-wars. It is pointed out that in
the recent past such caste wars have resulted in large scale
. loss of life and destruction of public properties.
10. The relevance of the parliamentary debate or the
G
speech of the Minister has been highlighted by this Court in
many cases. It is a settled position in law that there can be only
limited use of the parliamentary debate. The Courts should not
'~
I normally critically analyse the proceedings of Parliament. This
flows from a very fundamental aspect i.e. mutual respect of the
H
~
,,
192 SUPREME COURT REPORTS [2008] 4 S.C.R.

A Parliament and the Judiciary for each other. Each of these great
institutions in a democracy operates in different fields. It is not ....
expected that one wing of democracy would criticize the manner
of functioning of another wing. That would be against the basic
desirability 'of mutual respect. Any opinion or comment or
B criticism about the manner of functioning of one by the other
would be not only undesirable but imperatively avoidable. The
citizens of this country expect a great deal from the Parliament
and the Judiciary. It is but natural that the people of this country
./
would be disappointed and dis-heartened and their hopes will
c be shattered if instead of showing respect for each other, there
is mudslinging, unwanted criticism or impermissible criticism
about the manner of functioning or the rationale of a decision or
a view taken. In this context, it would be relevant to take note of
what this Court said in Builders Association of India v. Union
of India and Ors. (1995 Supp (1) sec 41), and K. Nagaraj and
D
Ors. v. State of Andhra Pradesh and Anr. (1985 (1) SCC 523).
In State of Mysore v. R. V Bidap (1974 (3) SCC 337), it was
observed as follows:
"5. Anglo-American jurisprudence, unlike other systems,
E has generally frowned upon the use of parliamentary
debates and press discussions as throwing light upon the
meaning of statutory provisions. Willes, J. in Miller v. Tayler,
[1769] 4 Burri, 2303, 2332., stated that the sense and
meaning of an Act of Parliament must be collected from
F what it says when passed into law, and not from the history
of changes it underwent in the House where it took its rise. ;..
That history is not known to the other House or to the
Sovereign. In Assam Railways and Trading Company
Ltd. v. l.R.C., [1935] A.C. 445 at p. 458, Lord Writ in the
Privy Council said :
G
"It is clear that the language of a Minister of the Crown
in proposing in Parliament a measure which
eventually becomes law is inadmissible and the 1' ~

report of commissioners is even more removed from
H value as evidence of intention, because it does not
~
,
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 193
[DR. ARIJIT PASAYAT, J.)

follow that their recommendations were accepted." A
The rule of grammatical construction has been accepted
in India before and after Independence. In the State of
Travancore-Cochin and Ors. v. Bombay Company Ltd.,
Alleppey, (AIR 1952 S.C. 366), Chief Justice Patanjali
Sastri delivering the judgment of the Court, said :- B

,• "It remains only to point out that the use made by the
learned Judges below of the speeches made by the
members of the Constituent Assembly in the course
of the debates on the draft Constitution is c
unwarranted. That this form of extrinsic aid to the
interpretation of statutes is not admissible has been
generally accepted in England, and the same rule
has been observed in the construction of Indian
statutes-see Administrator-General of Bengal v.
D
Prem Lal Mullick, 22 Ind. Appl. 107 (P.C.) at p. 118.
The reason behind the rule was explained by one of
"·
us in Gopalan v. State of Madras, (1950) S.C.R. 88
thus:
A speech made in' the course of the debate on a bill E
could at best be indicative of the subjective intent of
the speaker, but it could not reflect the inarticulate
mental process lying behind the majority vote which
carried the bill. Nor is it reasonable to assume that
the minds of all those legislators were in accord". F
'
.~
Or, as it is more tersely put in an American case-
"Those who did not speak may not have agreed with
those who did; and those who spoke might differ
from each other-United States v. Trans-Missouri
G
Freight Association, (1897) 169 U.S. 290 at p. 318
(sic).
, T
This rule of exclusion has not always been adhered
to in America, and sometimes distinction is made
between using such material to ascertain the purpose H
• ,
194 SUPREME COURT REPORTS [2008] 4 S.C.R.

A of a statute and using it for ascertaining its meaning.
It would seem that the rule is adopted in Canada and
Australia-see Craies on Statute Law, 5th Edn. p. 122
(pp. 368-9)".
11. In the American jurisdiction, a more natural note has
B sometimes been struck. Mr. Justice Frankfurter was of the view
that-
)'
"If the purpose of construction is the ascertainment (

of meaning, nothing that is logically relevant should
c be excluded, and yet, the Rule of Exclusion, which is
generally followed in England, insists that, in
interpreting statutes, the proceedings in the
Legislatures, including speeches delivered when the
statute was discussed and adopted, cannot be cited
in courts."
D
12. Crawford on Statutory Construction at page 388 notes
that-
'The judicial opinion on this point is certainly not quite
uniform and there are American decisions to the
E effect that the general history of a statute and the
various steps leading up to an enactment including
amendments or modifications of the original bill and
reports of Legislative Committees can be looked at
for ascertaining the intention of the legislature where
F it is in doubt; but they hold definitely that the legislative J..

history is inadmissible when there is no obscurity in
the meaning of the statute."
The Rule of Exclusion has been criticised by jurists as
artificial. The trend of academic opinion and the practice in the
G
European system suggest that interpretation of a statute being
an exercise in the ascertainment of meaning, everything which _.,
is logically relevant should be admissible. Recently, an eminent
Indian jurist has reviewed the legal position and expressed his
agreement with Julius Stone and Justice Frankfurter. Of course,
H
, ,
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 195
[DR. ARIJIT PASAYAT, J.]

_. nobody suggests that such extrinsic materials should be A
decisive but they must be admissible. Authorship and
interpretation must mutually illumine and interact. There is
authority for the proposition that resort may be had to these
sources with great caution and only when incongruities and
ambiguities are to be resolved. A.K. Gopalan v. State of Madras B
(1950 SCR 88). There is a strong case for whittling down the
Rule of Exclusion followed in the British courts and for less
--( apologetic reference to legislative proceedings and like
~
materials to read the meaning of the words of a statute. Where
it is plain, the language prevails, but where there is obscurity or c
lack of harmony with other provisions and in other special
circumstances, it may be legitimate to take external assistance
such as the object of the provisions, the mischief sought tq be
remedied, the social context, the words of the authors and other
allied matters. The law of statutory construction is a strategic
D
branch of jurisprudence which must, it may be felt, respond to
the great social changes but a conclusive pronouncement on
the particular point arising here need not detain us because
nothing decisive as between the alternative interpretations flows
from a reliance on the Constituent Assembly proceedings or
the broad purposes of the statutory scheme. E

13. One thing however needs to be noted here that mere
short length of debate cannot and does not become a ground
for invalidity of the decision and the reverse is also not true.
•
.). .
14. Elaborate arguments have been advanced about the F
applicability of the foreign decisions, more particularly, the
American Courts. It is to be noted that the American cases which
have been highlighted by the petitioners relate essentially to
strict classification, strict scrutiny and narrow tailoring. This issue
is of considerable importance when so much debate is taking G
place about respect being shown by courts of a country to a
'<;.
decision of another country. The factual scenario and the basic
issues involved in the cases sometimes throw light on the
controversy. It has been rightly contended by Mr. Vahanvati and
Mr. Gopal Subramanium that there is a conceptual difference H•
~ )
196 SUPREME COURT REPORTS [2008] 4 S. C.R.

A between the cases decided by the American Supreme Court
and the cases at hand. In Saurabh Chaudri and Ors. v. Union
of India and Ors. (2003 (11) SCC 146) it was held that the logic
of strict classification and strict scrutiny does not have much
relevance in the cases of the nature at hand. If one looks at the
B different Statutes in India, Article 14 of the Constitution is .
conceptually different from 14th Amendment to the American
Constitution as was noted in State of West Bengal vs. Anwar
Ali Sarkar (1952 SCR 284) and State of Bombay and Anr. v. .r ,
FN. Balsara (1952 SCR 682). In Anwar Ali's case (supra) at
c pages 363 and 364 it was noted as follows:
"I find it impossible to read these portions of the
Constitution without regard to the background out of which
they arose. I cannot blot out their history and omit from
consideration the brooding spirit of the times. They are
D not just dull, lifeless words static and hide- bound as in
some mummified manuscript, but, living flames intended
to give life to a great nation and order its being, tongues
of dynamic fire, potent to mould the future as well as guide
the present. The Constitution must, in my judgment, be left
E elastic enough to meet from time to time the altering
conditions of a changing world with its shifting emphasis
and differing needs. I feel therefore that in each case
judges must look straight into the heart of things and regard
the facts of each case concretely much as a jury would do;
F and yet, not quite as a jury, for we are considering here a
matter of law and not just one of fact; Do these "laws" "'
which have been called in question offend a still greater
law before which even they must bow?
99. Doing that, what is the history of these provisions?
G They arose out of the fight for freedom in this land and are
but the endeavour to compress into a few pregnant
phrases some of the main attributes of a sovereign .r
democratic republic as seen through Indian eyes. There
was present to the collective mind of the Constituent
H Assembly, reflecting the mood of the peoples of India, the
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 197
[DR. ARIJIT PASAYAT, J.]

memory of grim trials by hastily constituted tribunals with A
novel forms of procedure set forth in Ordinances
promulgated in haste because of what was then felt to be
the urgent necessities of the moment. Without casting the
slightest reflection of the judges and the Courts so
constituted, the fact remains that when these tribunals were B
declared invalid and the same persons were retfred in the
ordinary Courts, many were acquitted, many who had been
sentenced to death were absolved. That was not the fault
of the judges but of the imperfect tools with which they
were compelled to work. The whole proceedings were c
repugnant to the peoples of this land, and to my mind,
article 14 is but a reflex of this mood .
.100. What I am concerned to see is not whether there is
absolute equality in any academical sense of the term but
whether the collective conscience of a sovereign D
democratic republic can regard the impugned law,
f.
contrasted with the ordinary law of the land, as the sort of
substantially equal treatment which men of resolute minds
and unbiased views can regard as right and proper in a
democracy of the kind we have proclaimed ourselves to E
be. Such views must take into consideration the practical
necessities of government, the right to alter the laws and
many other facts, but in the forefront must remain the
freedom of the individual from unjust and unequal
• treatment, unequal in the broad sense in which a F
,J...
democracy would view it. In my opinion, 'law' as used in
Article 14 does not mean the "legal precepts which are
actually · recognised and applied in tribunals of a given
time and place" but "the more general body of doctrine
and tradition from which those precepts are chiefly drawn,
G
and by which we criticise, them."

....,. 15. It needs no emphasis that the formal equality concept
came to be recognized in U.S.A. after about 10 years of its
inception. In the first phase of the U.S.A. Constitutional Law there
was only affirmative action but in the Indian Constitution right H
198 SUPREME COURT REPORTS [2008] 4 S.C.R. -
A from the beginning affirmative action has been provided, for ~
example, provisions made for Scheduled Castes and Schedules
Tribes. A distinction has been noted in para 640 of Indra
Sawhney No.1. Articles 38(1) and 38(2) read with Article 46 of
the Constitution make the position clear that the State is charged
B with the duty to secure interests of the weaker sections of the
people and minimize the inequalities in income. The Constitution
from its inception contained Article 17 which abolishes
untouchability. r-
•
16. In this context the following paras need to be noted.
c
17. In Minerva Mills Ltd. and Ors. v. Union of India and
Ors. (1980) 3 SCC 625) in para 63 it was held as follows:
"63. The learned Attorney General argues that the State is
under an obligation to take steps for promoting the welfare
D of the people by bringing about a social order in which
social, economic and political justice shall inform all the
~
institutions of the national life. He says that the deprivation
of some of the fundamental rights for the purpose of
achieving this goal cannot possibly amount to a destruction
E of the basic structure of the Constitution. We are unable
to accept this contention. The principles enunciated in
· Part IV are not the proclaimed monopoly of democracies
alone. They are common to all polities, democratic or
authoritarian. Every State is goal-oriented and claims to
F strive for securing the welfare of its people. The distinction
between the different forms of Government consists in ....
that a real democracy will endeavour to achieve its
objectives through the discipline of fundamental freedoms
like those conferred by Articles14 and 19. Those are the
most elementary freedoms without which a free democracy
G
is impossible and which must therefore be preserved at
all costs. Besides, as observed by Brandies, J., the need
to protect liberty is the greatest when Government's ~

purposes are beneficent. If the discipline of Article 14 is
withdrawn and if immunity from the operation of that article
H
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 199
[DR. ARIJIT PASAYAT, J.]

is conferred, not only on laws passed by the Parliament A
but on laws passed by the State Legislatures also, the
political pressures exercised by numerically large groups
can tear the country asunder by leaving it to the legislature
to pick and choose favoured areas and favourite classes
for preferential treatment." B
18. In His Holiness Kesavananda Bharati Sripadagalvaru
v. State of Kera/a and Anr. (1973 (4) SCC 225) it was held as
under:
"531 . According to Mr. Palkhivala, the test of the true width c
of a power is not how probable it is that it may be exercised
but what can possibly be done under it; that the abuse or
misuse of power is entirely irrelevant; that the question of
the extent of the power cannot be mixed up with the
question of its exercise and that when the real question is
D
as to the width of the power, expectation that it will never
be used is as wholly irrelevant as an imminent danger of
its use. The court does not decide what is the best and
what is the worst. It merely decides what can possibly be
done under a power if the words conferring it are so
construed as to have an unbounded and limitless width, E
as claimed on behalf of the respondents.
532. It is difficult to accede to the submission on behalf of
the respondents that while considering the consequences
with reference to the width of an amending power F
·' contained in a Constitution any question of its abuse is
""' involved. It is not for the courts to enter into the wisdom or
policy of a particular provision in a Constitution or a statute.
That is for the Constitution makers or for the parliament or
the legislature. But that the real consequences can be
G
taken into account while judging the width of the power is
well settled. The Court cannot ignore the consequences
'1';- to which a particular construction can lead while
ascertaining the limits of the provisions granting the power.
According to the learned Attorney General, the declaration
H
200 SUPREME COURT REPORTS (2008) 4 S.C.R.

A in the preamble to our Constitution about the resolve of
the people of India to constitute it into a Sovereign,
Democratic Republic is only a declaration of an intention
which was made in 194 7 and it is open to the amending
body now under Article 368 to change the Sovereign
B Democratics Republic into some other kind of polity. This
by itself shows the consequence of accepting the
construction sought to be put on the material words in that
article for finding out the ambit and width of the power
..
'
conferred by it."
c 19. In Sajan Singh v. Maharashtra Sugar Mills Ltd. (AIR
1965 SC 845) it was held as follows:

"6. It is obvious that the fundamental rights enshrined in
Part Ill are not included in the proviso, and so, if Parliament
intends to amend any of the provisions contained in Articles
D
12 to 35 which are included in Part Ill, it is not necessary
to take recourse to the proviso and to satisfy the additional
requirements prescribed by it. Thus far, there is no difficulty.
But in considering the scope of Art. 368, it is necessary to
remember that Art. 226, which is included in Chapter V of
E Part VI of the Constitution, is one of the constitutional
provisions which fall under clause (b) of the proviso; and
so, it is clear that if Parliament intends to amend the
provisions of Art. 226, the bill proposing to make such an
amendment must satisfy the requirements of the proviso.
F The question which calls for our decision is : what would ;..
be the requirement about making an amendment in a
constitutional provision contained in Part Ill, if as a result
of the said amendment, the powers conferred on the High
Courts under Art. 226 are likely to be affected? The
G petitioners contend that since it appears that the powers
prescribed by Art. 226 are likely to be affected by the
intended amendment of the provisions contained in Part :r
Ill, the bill introduced for the purpose of making such an
amendment. must attract the proviso, and as the impugned
H Act has admittedly not gone through the procedure
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 201
[DR. ARIJIT PASAYAT, J.]

prescribed by the proviso, it is invalid; and that raises the A
question about the construction of the provisions contained
in Art. 368 and the relation between the substantive part
of Art. 368 with its proviso.
8. On the other hand, if the substantive part of Art. 368 is
very liberally and generously construed and it is held that B
· even substantial modification of the fundamental rights
which may make a very serious and substantial inroad on
the powers of the High Courts under Art. 226 can be made
without invoking the proviso, it may deprive clause (b) of
the proviso of its substance. In other words, in construing c
both the parts of Art. 368, the rule of harmonious
construction requires that if the direct effect of the
amendment of fundamental rights is to make a substantial
inroad on the High Courts' powers under Art. 226, it would
become necessary to consider whether the prov.iso would D
cover such a case or not. If the effect of the amendment
).. ,
made in the fundamental rights on the powers of the High
Courts prescribed by Art. 226, is indirect, incidental, or is
otherwise of an insignificant order, it may be that the proviso
will not apply. The proviso would apply where the E
amendment in question seeks to make any change, inter
alia, in Art. 226, and the question in such a case would be
: does the amendment seek to make a change in the
provisions of Art. 226? The answer to this question would
depend upon the effect of the amendment made in the F
fundamental rights.
).

9. In dealing with constitutional questions of this character,
courts generally adopt a test which is described as the
pith and substance test. In Attorney-General for Ontario v.
Reciprocal Insurers ([1924] AC. 328), the Privy Council G
was called upon to consider the validity of the Reciprocal
Insurance Act, 1922 (12 & 13 Geo. 5, Ont., c. 62) ands.
~,, 50Bc which had been added to the Criminal Code of
Canada by ss. 7 & 8 Geo. 5, c. 29 Dom. Mr. Justice Duff,
who spoke for the Privy Council, observed that in an enquiry H
202 SUPREME COURT REPORTS [2008] 4 S.C.R. .._

A like the one with which the Privy Council was concerned
in that case, "it has been formally laid down in judgments
of this Board, that in such an inquiry the Courts must
ascertain the 'true nature and character' of the enactment
: Citizens' Insurance Co. of Canada v. Parsons ([1881] 7
B AC 96); its 'pith and substance' : Union Colliery Co. of
British Columbia Ltd. v. Bryden ([1899] A.C. 580); and it
is the result of this investigation, not the form alone, which
the stp• ite may have assumed under the hand of the
[
drc> .,intsman, that will determine within which of the <

c categories of subject matters mentioned in ss. 91 and 92
the legislation falls; and for this purpose the legislation
must be 'scrutinised in its entirety' : "Great West Saddlery
Co. v. The King" ([1921] 2A.C. 91, 117). ltis not necessary
to multiply authorities in support of the proposition that in
considering the constitutional validity of the impugned Act,
D
it would be relevant to inquire what the pith and substance
of the impugned Act is. This legal position can be taken
to be established by the decisions of this Court which
have consistently adopted the view expressed by Justice
Duff, to which we have just referred.
E
14. Thus, it would be seen that the genesis of the
amendments made by Parliament in 1951 by adding
Articles 31A and 31 B to the Constitution, clearly is to assist
the State Legislatures in this country to give effect to the
F economic policy in which the party in power passionately
believes to bring about much needed agrarian reform. It ....
is with the same object that the second amendment was
made by Parliament in 1955, and as we have just
indicated, the object underlying the amendment made by
the impugned Act is also the same. Parliament desires
G
that agrarian reform in a broad and comprehensive sense
must be introduced in the interests of a very large section
of Indian citizens who live in villages and whose financial
~"
prospects are integrally connected with the pursuit of
progressive agrarian policy. Thus, if the pith and substance
H
',
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 203
[DR. ARIJIT PASAYAT, J.]

test is applied to the amendment made by the impugned A
Act, it would be clear that Parliament is seeking to amend
fundamental rights solely with the object of removing any
possible obstacle in the fulfilment of the socio-economic
policy in which the party in power believes. If that be so,
the effect of the amendment on the area over which the · B
High Courts' powers prescribed by Art. 226 operate, is
incidental and in the present case can be described as of
an insignificant order. The impugned Act does not purport
.., i to change the provisions of Art. 226 and it cannot be said
even to have that effect directly or in any appreciable c
measure. That is why we think that the argument that the
impugned Act falls under the proviso, cannot be sustained.
It is an Act the object of which is to amend the relevant
Articles in Part Ill which conferfundamental rights on citizens
and as such it falls under the substantive part of Art. 368
0
and does not attract the provisions of clause (b) of the
proviso. If the effect of the amendment made in the
fundamental rights on Art. 226 is direct and not inciclental
and is of a very significant order, different considerations
may perhaps arise. But in the present case, there is no
occasion to entertain or weigh the said considerations. E
Therefore the main contention raised by the petitioners
and the interveners against the validity of the impugned
Act must be rejected."
20. In Kihoto Ho/Johan v. Zachil/hu and Ors. (1992 Supp. F
•
).
(2) sec 651) it wa~.pbserved as follows:
"61. The propositions that fell for consideration in Sankari
Prasad Singh's and Sajjan Singh'scases are indeed
different. There the jurisdiction and power of the Courts
under Articles 136 and 226 were not sought to be taken G
away nor was there any change brought about in those
provisions either "in terms or in effect", since the very rights
which could be adjudicated under and enforced by the
Courtswere themselves taken away by the Constitution.
The result was that there was no area for the jurisdiction H
204 SUPREME COURT REPORTS [2008] 4 S.C.R.
•,
A of the Courts to operate upon. Matters are entirely different
in the context of paragraph 7. Indeed the aforesaid cases, }-..

by necessary implication support the point urged for the
petitioners. The changes in Chapter IV of Part V and
Chapter V of Part VI envisaged by the proviso need not
B be direct.The change could be either "in terms of or in
effecf'. It is not necessary to change the language of Articles
136 and 226 of the Constitution to attract the proviso. If in
effect these Articles are rendered ineffective and made
inapplicable where these articles could otherwise have
,_
c been invoked or would.but for Paragraph 7, have operated
there is ·in effect' a change in those provisions attracting
the proviso. Indeed this position was recognised in Salian
Singh'scase (supra) where it was observed:
"If the effect of the amendment made in the
D fundamental rights on Article 226 is direct and not
incidental and is of a very significant order, different
considerations may perhaps arise." ...
62. In the present cases, though the amendment does not
bring in any change directly in the language of Article 136,
E 226 and 227 of the Constitution, however, in effect
paragraph 7 curtails the operation of those Articles
respecting matters falling under the Tenth Schedule. There
is a change in the effect in Article 136, 226 and 227 within
the meaning of clause (b) of the proviso to Article 368(2).
F Paragraph 7, therefore, attracts the proviso and ratification
was necessary. Accordingly, on Point B, we hold: :..
'That having regard to the background and evolution
of the principles underlying the Constitution (52"d
Amendment) Act, 1985, in so far as it seeks to
G
introduce the Tenth Schedule in the Constitution of
India, the provisions of Paragraph 7 of the Tenth
Schedule of the constitution in terms and in effect
bring about a change in the operation and effect to' .r
Articles 136, 226 and 227 of the Constitution of India
H
.' ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS.
[DR. ARIJIT PASAYAT, J.]
205

and, therefore, the amendment would require to be A
ratified in accordance with the proviso to sub-Article
(2) of Article 368 of the Constitution of India."
21. In Shri Sarwan Singh and Anr. v. Shri Kasturi Lal (1977
(1) sec 750) it was observed as follows:
B
"20. Speaking generally, the object and purpose of a
legislation assume greater relevance if the language of
the law is obscure and ambiguous. But, it must be stated
~
that we have referred to the object of the provisions newly
introduced into the Delhi Rent Act in 1975 not for seeking c
light from it for resolving in ambiguity, for there is none, but
for a different purpose altogether. When two or more laws
operate in the same field and each contains a non obstante
clause stating that its provisions will override those of any
other law, stimulating and incisive problems of
D
interpretation arise. Since statutory interpretation has no
conventional protocol, cases of such conflict have to be
).,
decided in reference to the object and purpose of the
laws under consideration. A piquant situation, like the one
before us, arose in Shri Ram Narain v. Simla Banking &
Industrial Co. Ltd. competing statutes being the Banking E
Companies Act, 1949 as amended by Act 52 of 1953,
and the Displaced Persons (Debts Adjustment) Act, 1951.
Section 45A of the Banking Companies Act, which was
introduced by the amending Act of 1953, and Section 3 of
.
,J.
the Displaced Persons Act 1951 contained such a non
obstante clause, providing that certain provisions would
F

have effect "notwithstanding anything inconsistent therewith
contained in any other law for the time being in force". This
Court resolved the conflict by considering the object and
purpose of the two laws and giving precedence to the G
"' Banking Companies Act by observing : "It is, therefore,
desirable to determine the overriding effect of one or the
"¥ other of the relevant provisions in these two Acts, in a
given case, on much broader considerations of the
purpose and policy underlying the two Acts and the clear H
t
206 SUPREME COURT REPORTS [2008] 4 S.C.R. '
A intendment conveyed by the language of the relevant
provisions therein." (p. 615) As indicated by us, the special
and specific purpose which motivated the enactment of
Section 14Aand Chapter lllAofthe Delhi RentActwould
be wholly frustrated if the provisions of the Slum Clearance
B Act requiring permission of the competent authority were
to prevail over them. Therefore, the newly introduced
provisions of the Delhi Rent Act must hold the field and be
given full effect despite anything to the contrary contained
in the Slum Clearance Act. .
~

c 21. For resolving such inter se conflicts, one other test
may also be applied though the persuasive force of such
a test is but one of the factors which combine to give a,
fair meaning to the language of the law. That test is that
the later enactment must prevail over the earlier one.
D Section 14A and Chapter lllA having been enacted with
effect from December 1, 1975 are later enactments in
reference to Section 19 of the Slum Clearance Act which,
in Its present form, was placed on the statute book with
effect from February 28, 1965 and in reference to Section
E 39 of the same Act, which came into force in 1956 when
the Act itself was passed. The legislature gave overriding
effect to Section 14A and Chapter lllA with the knowledge
that Sections 19 and 39 of the Slum Clearance Act
contained non obstante clauses of equal efficacy. Therefore
F the later enactment must prevail over the former. The same
test was mentioned with approval by this Court in Shri
:...
Ram Narain's case at page 615.
23. The argument of implied repeal has also no substance
in it because our reason for according priority to the
G provisions of the Delhi Rent Act is not that the Slum
Clearance Act stands impliedly repealed protanto. Bearing
in mind the language of the two laws, their object and
purpose, and the fact that one of them is later in point of
time and was enacted with the knowledge of the non
H obstante clauses in the earlier law, we have come to the
,.
' ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 207
[DR. ARIJIT PASAYAT, J.]
conclusion that the provisions of Section 14A and Chapter A
lllA of the Rent Control Act must prevail over those
contained in Sections 19 and 39 of the Slum Clearance
Act.
22. In J.K. Cotton Spinning and weaving co. Ltd. v. State
ofU.P. andAnr. (1961 (3) SCR 185) it was observed as under: B
"There will be complete harmony however if we hold instead
that clause 5(a) will apply in all other cases of proposed
dismissal or discharge except where an inquiry is pending
within the meaning of clause 23. We reach the same result· c
by applying another well known rule of construction that
general provisions yield to special provisions. The learned
Attorney-General seemed to suggest that while this rule of
construction is applicable to resolve the conflict between
the general provision in one Act and the special provision
D
in another Act, the rule cannot apply in resolving a conflict
between general and special provisions in the same
.>.. legislative instrument. This suggestion does not find support
in either principle or authority. The rule that general
provisions should yield to specific provisions is not an
arbitrary principle made by lawyers and judges but springs E
from the common understanding of men and women that
when the same person gives two directions one covering
a large number of matters in general and another to only
some of them his intention is that these latter directions
. should prevail as regards these while as regards all the F
,.i rest the earlier direction should have effect. In Pretty v.
Solly [(1859-53 ER 1032) (quoted in Craies on Statute
Law at p. 205, 5th Edition) Romilly, M. R. mentioned the
rule thus:-
G
''The rule is, that whenever there is a particular
eAactment and a general enactment in the same
statute and the latter, taken in its most comprehensive
'j.
sense, would overrule the former, the particular
enactment must be operative, and the general
H
208 SUPREME COURT REPORTS [2008] 4 S.C.R.

A enactment must be taken to affect only the other parts
of the statute to which it may properly apply". The rule
has been applied as between different provisions of
the same statute in numerous cases some of which
only need be mentioned : De Winton v. Brecon
B [(1858) 28 L.J. Ch. 598], Churchill v. Crease [(1828)
5 Bing. 177), United States v. Chase [(1889) 135
U.S. 255] and Carroll v. Greenwich Ins. Co. [(1905)
199 U.S. 401)."
23. In R.M.D. Chamarbaugwalla v. UOI (1957 SCR 930)
C it was held as under:
"The question whether a statute which is void in part is to
be treated as void in toto, or whether it is capable of
enforcement as to that part which is valid is one which can
arise only with reference to laws enacted by bodies which
D
do not possess unlimited powers of legislation, as, for
example, the legislatures in a Federal Union. The limitation
on their powers may be of two kinds: It may be with
reference to the subject-matter on which they could
legislate, as, for example, the topics enumerated in the
E Lists in the Seventh Schedule in the Indian Constitution, •
ss. 91 and 92 of the Canadian Constitution, ands. 51 of
the Australian Constitution; or it may be with reference to
the character of the legislation which they could enact in
respect of subjects assigned to them, as for example, in
F relation to the fundamental rights guaranteed in Part Ill of
the Constitution and similar constitutionally protected rights
in the American and other Constitutions. When a legislature
whose authority is subject to limitations aforesaid enacts
a law which is wholly in excess of its powers, it is entirely
G void and must be completely ignored. But where the
legislation falls in part within the area allotted to it and in
part outside it, it is undoubtedly void as to the latter; but
does it on that account become necessarily void in its
entirety? The answer to this question must depend on
H whether what is v·alid could be separated from what is
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 209
[DR. ARIJIT PASAYAT, J.]

invalid, and that is a que&tion which has to be decided by A
the court on a consideration of the provisions of the Act.
This is a principle well established in American
Jurisprudence, Vide Cooley's Constitutional Limitations,
Vol. I, Chap. VII, Crawford on Statutory Construction, Chap.
16 and Sutherland on Statutory Construction, 3rd Edn, B
Vol. 2, Chap. 24. It has also been applied by the Privy
Council in deciding on the validity of laws enacted by the
legislatures of Australia and Canada, Vide Attorney-
General for the Commonwealth of Australia v. Colonial
Sugar Refining Company Limited [[1914] A.C. 237] and c
Attorney-General for Alberta v. Attorney-General for
Canada [L.R. [1947] A.C. 503]. It was approved by the
Federal Court in In re Hindu Women's Rights to Property
Act [[1941] F.C.R. 12] and adopted by this Court in The
State of Bombay and anotherv. F. N. Balsara [[1951] S.C.R.
D
682] and The State of Bombay v. The United Motors (India)
Ltd., and others [[1953] S.C.R. 1069]. These decisions
are relied on by Mr. Seervai as being decisive in his favour.
Mr. Palkhiwala disputes this position, and maintains that
on the decision of the Privy Council in Punjab Province v.
Daulat Singh and others [[1946] F.C.R. 1] and of the E
decisions of this Court in Romesh Thappar v. State of
Madras [[1950] S.C.R. 594] and Chintaman Rao v. State
of Madhya Pradesh [[1950] S.C.R. 759], the question must
be answered in this favour. We must now examine the
.
l precise scope of these decisions . F

The resulting position may thus be stated : When a statute
is in part void, it will be enforced as regards the rest, if that
is severable from what is invalid. It is immaterial for the
purpose of this rule whether the invalidity of the statute
G
arises by reason of its subject-matter being outside the
competence of the legislature or by reason of its provisions
contravening constitutional prohibitions.
That being the position in law, it is now necessary to
consider whether the impugned provisions are severable H
210 SUPREME GOURT REPORTS [2008) 4 S.C.R.

A In their application to competitions of a gambling character, t'- ~

assuming of course that the definition of 'prize competition'
In s. 2(d) Is wide enough to Include also competitions
Involving skill to a substantial degree. It will be useful for
the determination of this question to refer to certain rules
B of construction laid down by the American Courts, where
the question of severablllty has been the subject of
consideration In numerous authorities. They may be
summarised as follows : r
1. In determining whether the valid parts of a statute are
c separable from the Invalid parts thereof, It Is the Intention
of the legislature that is the determining factor. The test to
be applied Is whether the legislature would have enacted
the valid part If it had known that the rest of the statute was
invalid. Vlde Corpus Juris Secundum, Vol. 82, p. 156;
D Sutherland on Statutory Construction, Vol. 2, pp, 176-177.
2. If the valid and Invalid provisions are so inextricably
mixed up that they cannot be separated from one another,
then the Invalidity of a portion must result In the Invalidity
of the Act In Its entirety. On the other hand, If they are so
E distinct and separate that after striking out what Is Invalid,
what remains Is In Itself a complete code Independent of
the rest, then It wlll be upheld notwithstanding that the rest
has become unenforceable. Vlde Cooley's Constitutional
Limitations, Vol. 1 at pp. 360-361: Crawford on Statutory·
F Construction, pp. 217·216.
""'
3. Even when the provisions which are valid are distinct
and seporate from those which are invalid, If they all form
part of a single scheme which is intended to be operntive
as a whole, then also the Invalidity of a part will result in the
G
failure of the whole. Vide Crawford on Statutory
Construction, pp. 218·219.
~
4. Likewi~e. when the valid and invalid r Jhs of a statute
are independent and do not form part gf a oeheme but
H what is left after omitting the invalid pgrtion ia so thin and
ASHOKA KUMAR THAKUR v. UNION OF INOIA & ORS. 211
!DR. ARIJIT PASAYAT, J.J
truncated as to be In substance different from what It was A
when It emerged out of the legislature, then also It will be
rejected In lte entirety.
5. The separability of the valid and Invalid provisions.of a
statute does not depend on whether the law is enacted In
the same section or different sections; (Vide Cooley's B
Constitutional Limitations, Vol. 1, pp. 361 ·362); it is not
the form, but the substance of the matter that Is material,
and that has to be ascertained on an examination of the
Act as a whole and of the setting of the relevant provisions
therein. C
6. If after the Invalid portion Is expunged from the statute
what remains cannot be enforced. without making
alterations and modifications therein, then the whole of It
must be struck down as void, as otherwise It will amount
to judicial legislation. Vlde Sutherland on Statutary D
Construction, Vol. 2, p, 194,
7. In determining the legislative Intent on the question of
11eparablllty, It will be legitimate to take Into acgount the
history gf the legislation, Its object, the titlt:! and the i;
preamble to It. Vlde Sutherland on 6ti:1tutory Construction,
Vol. 2, pp, 177,flfil,"
24, In AllM$ Studf3nf$ Unionv, A/IMS (2002 (1) SOC 428)
In para ~P It was observed Elli> fi:illows: ·
) F
"36, ihe pringiple pf institutii;inal l:lontinulty whllt:! seeking
i:1dmission tg higher levelis gf stwdy as prnpi;iynfled by th@
learned @guni:iel for th@ 1:1ppellant§ the.Ygh 1;1r1;1ueg at l!!mf:Jth
dges not have mYch rogm eivail1;1t;ile fgr innQvi:JtiV§ i1.Jflicial
ieal t\:.l Play, ft::!r the gn;iund !i!lrflady §t!ilnd§ !i!lm@st PG@Yi:>ie!'l (3
by Iii §@t g( pregedents, m1:ire §§when we 1=1re d@E!liflg with
profe§siim~I or teghni!3-!i!I @oYr§e§ of §tudy, It wgyig §uffi@e
tg hi:Jve a brief resume th!:!regf ngtigin~ the detetil§ wh!:!rever
nece§§ary",
It wa§ again highlight!lld in p!i!rE! 44 Iii§ fgllow§: H
212 SUPREME COURT REPORTS [2008] 4 S.C.R.

A "44. When protective discrimination for promotion of
equalisation is pleaded, the burden is one the party who
seeks to justify the ex facie deviation from equality. The
basic rule is equality of opportunity for every person in the
country, which is a constitutional guarantee. A candidate
B who gets more marks than another is entitled to preference
for admission. Merit must be the test when choosing the
best, according to this rule of equal chance for equal marks.
This proposition has greater importance when we reach
the higher levels and education like post-graduate courses.
c Reservation, as an exception, may be justified subject to
discharging the burden of proving justification in favour of
the class which must be educationally handicapped-the
reservation geared up to getting over the handicap. The
rationale of reservation in the case of medical students
must be removal of regional or class inadequacy or like
D
disadvantage. Even there the quantum of reservation
should not be excessive or societally injurious. The
higher the level of the speciality the lesser the role of
reservation."

E 25. A bare reading of the provision goes to show that the
burden is on the person who justifies deviation from equality.
26. Even then, this doctrine was upheld by the Supreme
Court of U.S.A. in Plessy v. Ferguson (163 U.S. 537(1896).
This case involved a challenge to a Louisiana statute that
F provided for equal but separate accommodations for black and ....
white passengers in trains. The Court rejected the challenge.
Justice Brown famously observed:
If one race be inferior to the other socially, the constitution
of the United States cannot put them upon the same plane.
G
(163 U.S. at 552)
27. He held that racial segregation was a reasonable .r
exercise of State police power for the promotion of the public
good and upheld the law.
H
""'
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 213
[DR. ARIJIT PASAYAT, J.]
•
-t
28. Thus, even in this second phase, affirmative action was A
never truly initiated - the country was still struggling to establish
even a formally equal society.
29. At the same time, another very important development
in its constitutional law was taking place, which would later have
a serious impact on affirmative action programmes. This was B
the birth of the doctrine of strict scrutiny.

... -1 30. 'Strict scrutiny' is one of the three standards for judicial
review of legislative and administrative action developed in the
United States, the other being "rational basis" and "intermediate c
scrutiny".
31. The origin of this standard can be traced to the decision
in United States v Carotene Products (304 U.S. 144 (1938).
The question before the Court was whether the Filled Milk Act,
1923 which prohibited the shipment in interstate commerce of D
skimmed milk compounded with any fat or oil other than milk
,>- fat, so as to resemble milk or cream, transcended the power of
Congress to regulate inter state commerce or infringed the Fifth
Amendment. Justice Harlan Stone, writing the opinion for the
Court, upheld the law, holding that the existence of facts E
supporting the legislative judgment was to be presumed, for
regulatory legislation affecting ordinary commercial transactions
was not to be pronounced unconstitutional unless in the light of
the facts made known or generally assumed it was of such a
character as tci preclude the assumption that it rested upon some F
) rational basis within the knowledge and experience of the
legislators. However, he added what has been described as
"the most celebrated footnote in constitutional law".
·"There may be narrower scope for operation of the
presumption of constitutionality when legislation appears G
on its face to be within a specific prohibition of the
Constitution, such as those of the first ten Amendments,
-r which are deemed equally specific when held to be
embraced within the Fourteenth."
H
214 SUPREME COURT REPORTS [2008] 4 S.C.R.
,....
A 32. What the Court was saying was that economic ~-

leglslatlon would be judged by a standard of "rational basis" -
so long as the law was a rational way of furthering a legitimate
governmental purpose, It was valid. However, where the
leglslatlon "on Its face" appeared to be violating any of the
B fundamental rights, a more exacting standard would be applied.
33. The precise term "strict scrutiny" was used by the Court
for the first time In Sklnnerv. Oklahoma (316 U.S. 535 (1942). t ...
The Oklahoma Habitual Crlmlnal Sterlllsation Act provided for
vasectomy to be performed on any person convicted two or more
c times for crimes amounting to "felonies Involving moral
turpitude'', Justice Douglas, giving the opinion of the Court,
described the statute as vlolatlng the right to have offspring - "a
right which Is basic to the perpetuation of a race". The question
before the Court was whether this statute violated the 141"
D Amendment. Holding that It did, Justice Douglas observed:
"Strict scrutiny of the classlflcatlon which a State makes In ....
a sterilization law Is essential, lest unwittingly or otherwise
Invidious discriminations are made against groups or
types of Individuals In violation of the constitutional
E guarantee of just and equal laws."
34. In India there has to be collective commitment for
upliftment of those who needed It. In that sense, the question
again comes back to the basic issue as to whether the action
F taken by the Government can be upheld after making judicial
scrutiny. Much a111Si&tance Ii not available to the petitioners from "
the American declaions.
36. It i& to be noted that the doctrine of separation as i8
prevalent in the American Society ia not of much comsequenc:e
G in the Indian scenario. It need& tc:> be clarified that the expres§ion
'§triet scrutiny' ha11 also been used by the lndi~rn Courts in
Narendra Kumar and Ors. v. Union of India and Ors. (1960 (2)
SCR 376) but it appears to have be.en used in different context.
Wh111t really i:tppe111rs to be the intention for the. use of the
19 expre.Hion is ''careful and deeper scrutiny" and not in the ae.nae
ASHOKA KUMAR THAKUR v. UNION OF INOIA & ORS. 215
[DR. ARIJIT PASAYAT, J.J
-1 of strict scrutiny of the provisions as Is prevalent In the American A
. jurisprudence. It Is used In different sense. The application
appears to be In technical sense In the American Courts, for
example, Regents of University of Cal/fornla v. Allan Bakke
(438 U.S. 266).
36. Some of the judgments of American Courts throwing B
light on the controversy need to be noted:
.!>
i 37. In Allan Bakka's case (supra) It was held as follows:
"Hence, the purpose of helping certain groups whom the
faculty of the Davis Medical School perceived as victims C
of "societal discrimination" does not justify a classification
that Imposes disadvantages upon persons llke
respondent, who bear no responslblllty for whatever harm
the beneficiaries of the special admissions'',
D
"The fatal flaw In petitioner's preferential program Is Its
, )- - . disregard of Individual rights as guaranteed by the
Fourteenth Amendment. Shelley v. Kri:iemer, 334 US, at
22, 92 Led 1161, 66 S Ct 636, 3ALRd 441. Such rights
are not absolute, But when a State'a.dlstribution of benefits E
or imposition of burdens hinges on ancestry or the color.
of a person's skin or ancestry, that Individual Is @ntltled to
a demi;instrntlon thi;it the challenged classlflcatlon Is
nec~:u11rnry to promote a sutn~ti;intial state interest.
Petitioner has fll!iled tP earry this burden."
_)
. r
36, In Gmtter v; So/linger (539 U.S. 306) It wll!a held as
f1;;1ll!~ws:

[21. 22-a) "We !\'lckn()wledi:Je that "there are serious
problem§ i;if jYstiee egnneeted with the idea of pr!!!lferenee
ltr11elf," Bakke, 4~~ \..1$, lilt ~ea. 57 L md 2d 760, fl!P s et Q
27~~ (opinion of Powell, J), Narrow tail@ring, therefgre,
requires th!i!t a rac1M~onsci@Ys @dmissions program n9t
uni:luly h11rm members gf @ny rac:iit11l 9rnup, Even remedi@I
rt11ce"b11sed 91;;1vernmental @l'ition generli!llY !!remains
1rnbject to c~mtirrning oversight to @ssure that it will wgrk H
i
216 SUPREME COURT REPORTS (2008] 4 S.C.R.
,
A the least harm possible to other innocent persons ,_
competing for the benefit." Id., at 308, 57 L Ed 2d 750, 98
S Ct 2733. To be narrowly tailored, a race-conscious
admissions program must not "unduly burden individuals
who are not members of the favored racial and ethnic
B groups." Metro Broadcasting, Inc. v. FCC, 497 Us 547,
630, 111 L Ed 2d 445, 110 S Ct 2997 (1990) (O'Connor,
J., dissenting).

[22b, 23] We are satisfied that the Law School's
r•
admissions program does not. Because the Law School
c considers "all pertinent elements of diversity," it can (and
does) select non-minority applicants who have greater
potential to enhance student body diversity over
underrepresented minority applicants. See Bakke, supra,
at 317, 57 L Ed 2d 750, 98 S Ct 2733 (opinion of Powell,
D J). As Justice Powell recognized in Bakke, so long as a
race-conscious admissions program uses race as a "plus"
factor in the context of individualized consideration, a
rejected applicant "will not have been foreclosed from all
consideration for that seat simply because he was not the
E right color or had the wrong surname ...... His qualifications
would have been weighed fairly and competitively, and he
would have no basis to complain of unequal treatment
under the Fourteenth Amendment." 438 US, at 318, 57 L
Ed 2d 750, 98 S Ct 2733.
F [13f, 22C] We agree that, in the context of its individualized ...
inquiry into the possible diversity contributions of all
applicants, the Law School's race-conscious admissions
program does not unduly harm nonminority applicants.
[24, 25a, 26] We are mindful, however, that "[a] core purpose
G
of the Fourteenth Amendment was to do away with all
governmentally imposed discrimination based on race"
Palmo~e v Sidoti, (539 US 342] 466 US 429, 432, 80 L Ed
2d, 421, 104 s Ct 1879 (1984). Accordingly, race-
• H
conscious admissions policies must be limited in time.
a - ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS.
[DR. ARIJIT PASAYAT, J.)
217

_, This requirement reflects that racial classifications, A
however, compelling their goals are potentially so
dangerous that they may be employed no more broadly
than the interest demands. Enshrining a permanent
justification for racial preferences would offend this
fundamental equal protection principle. We see no reason B
to exempt race-conscious admissions programs from the
requirement that all governmental use of race must have
·1 a logical end point. The Law School, too, concedes that
.,,- -i' '
all "race-conscious programs must have reasonable
durational limits." Brief for Respondent Bollinger et al. 32. c
[25b] In the context of higher education, the durational
requirement can be met by sunset provisions in race-
conscious admissions policies and periodic reviews to
determine whether racial preferences are still necessary
to achieve student body diversity. Universities in California,
D
Florida, and Washington State, where racial preferences
in admissions are prohibited by state law, are currently
,)-,
engaged in experimenting with a wide variety of alternative
approaches. Universities in other States can and should
draw on the most promising aspects of these race-neutral
alternatives as they develop. Cf. United States v. Lopez, E
514 US 549, 581, 131 L Ed 2d 626, 115 S Ct 1624 (1995)
(Kennedy, J., concurring) ("[T] he States may perform their
role as laboratories for experimentation to devise various
solutions where the best solution is far from clear"). The
requirement that all race-conscious admissions programs F
~
'-
have a termination point "assure[s] all citizens that the
deviation from the norm of equal treatment of all racial and
ethnic groups is a temporary matter, a measure taken in
the service of the goal of equality itself." Richmond v. J.A.
Croson Co., 488 US, at 510, 102 L Ed 2d 854, 109 S Ct G
706 (plurality opinion); see also Nathanson & Bartnik. The
Constitutionality of Preferential Treatment for Minority
'1-' Applicants to Professional Schools, [539 US 343] 58
Chicago Bar Rec. 282, 293 (May-June 1977) ("It would
be a sad day indeed, were America to become a quota- H
t
218 SUPREME COURT REPORTS [2008] 4 S.C.R.

A ridden society, with each identifiable minority assigned ,_
proportional representation in every desirable walk of life.
But that is not the rationale for programs of preferential
treatment; the acid test of their justification will be their
efficacy in eliminating the need for any racial or ethnic
B preferences at all."
39. The provisions of the American Constitution in United
States relating to formal equality concept do not appear to have
operated from the beginning of the American Constitution. r
'
c 40. Although even under the 1919 and 1935 Government
of India Acts the rights of certain class of people like Scheduled
Castes, Scheduled Tribes and the deprived classes have been
recognized, in America, the rights have been conferred on
individuals and so much on the groups. The freedoms
contemplated by the Indian Constitution originally related to
D
seven categories which presently stand at six after the property
rights were deleted. The stand of Mr. Vahanvati and Mr. Gopal
Subramanium is that the logic of strict scrutiny, compelling the "'
Government and narrow tailoring do not have relevance so far
as the present case is concerned.
E
41. In Thomas's case (supra) it was clearly noticed by this
Court that American conditions do not apply adequately for the
Indian scenario. Unlike U.S.A., the targeted beneficiaries are
alien to our Constitution. In India cognizance has been taken
F constitutionally. The victims of untouchability, identifying social
and economic backwardness have been accepted as "-
permissible measures. However, the question how long they
can be continued is another aspect which shall be dealt with
separately. Rationality in that sense is a measure for the special
provisions. But the question that still needs to be addressed is
G
whether these groups are really identifiable. While formulating
the policy all factors need not be specifically expressed but there
must be some criteria to identify social and educational {
backwardness.
H 42. In A.K. Roy v. Union of India (1982 (1) SCC 271) it
a a ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 219
[DR. ARIJIT PASAYAT, J.]

was noted as follows: A
_,
"8. We are not, as we cannot be, unmindful of the danger
to people's liberties which comes in any community from
what is called the tyranny of the majority. Uncontrolled power
in the executive is a great enemy of freedom and therefore,
eternal vigilance is necessary in the realm of liberty. But B
we cannot transplant, in the Indian context and conditions,
principles which took birth in other soils, without a careful
examination of their relevance to the interpretation of our
- . -j -
Constitution. No two Constitutions are alike, for it is not
mere words that make a Constitution. It is the history of a c
people which lends colour and meaning to its Constitution.
We must therefore turn inevitably to the historical origin of
the ordinance making power conferred by 9ur Constitution
and consider the scope of that power in the light of the
restraints by which that power is hedged. Neither in D
England nor in the United States of America does the
.>-
executive enjoy anything like the power to issue ordinances .
In India, that power has a historical origin and the executive,
at all times, has resorted to it freely as and when it
considered it necessary to do so. One of the larger States E
in India has manifested its addiction to that power by
making an overgenerous use of it- so generous indeed,
that ordinances which lapsed by efflux of time were
renewed successively by a chain of kindred creatures,
one after another. And, the ordinances embrace everything F
under the sun, from Prince to pauper and crimes to
)
contracts. The Union Government too, so we are informed
passed about 200 Ordinances between 1960 and 1980,
out of which 19 were passed in 1980".
43. One of the grey areas focused by learned counsel for G
the petitioners and the respondents is the ever perplexing
question "how long". The respondents say that so long as the
·~ problems of backwardness exist they can be continued. The
petitioners have highlighted that notwithstanding the concerns
shown in Indra Sawhney No. 1 and in a large number of cases H
220 SUPREME COURT REPORTS (2008] 4 S.C.R. ·

A that the reservations are not meant to be a permanent feature
there is a case for concern. Admittedly, there is no deletion from '-
the list of other backward classes. It goes on increasing. Learned
counsel for the respondents have stated that in large number of
cases where applications were made for inclusion they have
B been turned down. But that is no answer to the question as to
why and how there has been no exclusion. Is it that
backwardness has increased instead of decreasing. If the
answer is 'yes', as contended by the respondents, then one is
bound to raise eyebrows as to the effectiveness of providing
c reservations or quotas.
44. The ultimate object is to bring those who are
disadvantaged to a level where they no longer continue to be
dis-advantaged. It needs no emphasis that individual rights are
superior to the social rights. All fundamental rights are to be
D read together. The inequalities are to be removed. Yet the fact
that there has been no exclusion raises a doubt about the real
concern to remove inequality.
45. The ultimate objective is to bring people to a particular
level so that there can be equality of opportunity. In that context,
E one has to keep in view the justice and redress principles. There
should not be mere equality in law but equality in fact.
46. The necessary ingredients of equality essentially
involve equalization of unequals. Linked with this question the
F problem posed by the petitioners is whether reservation is the
only way to equalize unequals? There are several methods and
modes. If reservation really does not work as contended by the
petitioners, then the alternative methods can be adopted. It is
the stand of the respondents that not only reservations but other
G incentives like free lodging and boarding facilities have been
provided in some States.
47. Learned counsel for the respondents have stated that
the measures under challenge are nothing but a much needed r
leap towards attainment of the objectives. If it is true, the leap
H has to end somewhere. It cannot hang in the air as there is
---
~

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 221
[DR. ARIJIT PASAYAT, J.]
_, nothing immortal in this world; much less, a progressive measure A
purportedly intended to benefit the other backward classes. If
after nearly six decades the objectives have not been achieved,
necessarily the need for its continuance warrants deliberations.
,, It is to be noted that some of the provisions were intended to be
'· replaced after a decade but have continued. It indirectly shows B
that backwardness appears to have purportedly increased and
not diminished. It would therefore be rational and logical to restrict
operation of the impugned Statute for a period of 10 years from
its inception.
-1 48. At this juncture, report of the Oversight Committee c
throws considerable light on the controversy. Some parts of the
Report need to be noted.
I
llf/ This report seeks to expand the provision of Higher
:)
• Education while at the same time ensuring social inclusion
D
I and academic excellence. A society which excludes a
./
~1
... significant section of its population from access to higher
• education cannot be said to be providing equality of
opportunity. Equally, if academic excellence gets
compromised in the process of expansion, it would lose
its competitive edge in the emerging knowledge society E
- an edge which can propel India into a position of global
leadership.
Page X and XI of the report

~ A simpler way of implementing reservations was to F
steamroll our way through, in the name of social equity,
regardless of its impact on quality and excellence. We
have deliberately chosen the more difficult way which
delivers equity in a manner that enhances excellence i.e.
by making concomitant investments in faculty & G
infrastructure and by bringing much needed governance
\ related reforms involving institutional, financial and
administrative autonomy and process re-engineering in
our Higher Educational Governance system. It is easy to
equalize by "mindlessly leveling everyone down to lowest H
222 SUPREME COURT REPORTS [2008]'4 S.C.R.

A common-denominator". Our effort has been to create an '-
upward moving equalization process- where the disabilities
are overcome by the erstwhile excluded sections and the
system brings out the best in them.
Besides the many out of the box innovative ideas
B concerning faculty and infrastructure related issues, I
believe three of our recommendations, which cut
horizontally across the five groups, are critical to the
establishment of the goal of an "inclusive society, in pursuit
of excellence". These four programmes are considered
c by the Oversight Committee to be integral to the above
vision and should be considered to be inseverable part of
our core recommendations. (page-x)
We have to acknowledge that the challenges facing ...
us in the entire education sector are enormous and in the
D
Tertiary Education Sector these can be met, only if both
public and private funding to educational institutions
increased several fold. The need for private participation
in this mammoth task cannot be over-emphasized but
market forces themselves cannot deliver justice. The
E relative importance of public vs. private funding is brought
out very strongly by Joseph Stiglitz when he opined "I had
studied the failures of both markets and governments,
and was not so na'ive to think that the government could
remedy every failure. Neither was I so foolish as to believe
F that markets by themselves solved every societal problem. ~
Inequality, unemployment, pollution: these are all important
issues in which Government has to take an importance
role."
"Expansion, Inclusion and Excellence" has been our
G
credo. They have remained the abiding theme guiding all
our deliberations. I will be failing in my duty if the Oversight
{
Committee does not acknowledge the source of inspiration
for our deliberations. It is the Prime Minister's speech
giving the overpowering vision of the "need to create the ,_
H
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 223
[DR. ARIJIT PASAYAT, J.]
. I second wave of nation building" which has inspired us in A
our thoughts and deliberations. I would also like to express
my gratitude to Hon'ble HRD Minister, Sri Arjun Singhji for
his affection and guidance right through. (Page-xi)
Treatment of the creamy Layer (Chapter IV- Report
of Oversight Committee Vot.-1) B

. 4.2 (b) The true benefit of reservations will be realized
only when the high school enrolment of OBCs, especially
in rural areas, increases significantly. Attention will need
to be paid to this issue in the coming years. c
Chapter VI- Estimate of Resources required for the
expansion
6.1 In overall terms, the total estimated expenditure on the
expansion has now been assessed by the five Sub-Groups
D
in their final reports at Rs.18, 197.83 crore, as compared
to the amount of Rs.16,563.34 crore, that was included by
the Oversight Committee in its interim report. The summary
statement of additional student strength, faculty required
and estimates of recurring and non-recurring expenditure
that have been projected by the Groups are as at Table E
6.1 and the year-wise break up is at table 6.2.
6.3 The Committee in its discussions with the individual
Groups, had stressed. the need to estimate the additional
infrastructure and manpower that would be required after F
taking into account the slack, if any, in the existing facilities
as also the scope for using IT as a resource multiplier.
While the Groups seems to have accepted this m principle
their expenditure projections, and the norms on which they
are based seems to have just extrapolated past trends G
The Committee has had some input regarding global
trends and the best practices being followed in the world's
leading institutions. Based on this, and in consultation with
experts, the Committee has developed a plan for a "Gyan
Vahini" project, as has been explained in an earlier Chapter
H
224 SUPREME COURT REPORTS [2008] 4 S.C.R.

A in this report. The total expenditure on this component of
the expansion and upgradation project would be Rs.1752
crore in 5 years. Apart from significantly enhancing the
quality of instruction and learning, and brining it close to
the best levels in the world, this investment will certainly
B contribute to efficiency and to reducing the conventional
costs of the higher education system.
Summary Statement of Expenditure Requirements r
(As given in the Final Reports of the Groups)
c Sector No. Existing Annual Addi. Non Recur· Total
of Student Addi. Facility Recur· ring Exp.
lnstn Intake Student Re· ring Exp. In
Intake quired Ex. (SY rs) 5 Yrs.

Agriculture 5 825 454 187 102.75 92.71 195.46
D
Central 17 92011 49689 6609 2702.11 2455.92 5158.03
Universities

Management 7 1791 966 139 511.32 177.48 688.80

E Medical 11 993 565 N.A. 1783.98 1027.69 2811.67

Engineering 38 29671 16440 4919 5503.83 3840.04 9343.87

Grand
Total 125291 68114 11854 10603.99 7593.84 18197.83
F
Chapter VII- The Way Forward
7.1 As indicated earlier in this report, this opportunity for
expansion, inclusion and excellence should only be the
beginning of a larger process, which is to build a
G knowledge society in India and allow the country to take
its rightful place in the comity of nations. Our recent
economic growth and the values of knowledge and
education carried forward by a billion diverse people, point
to India's potential future as a knowledge society. Other
H countries that visualize a similar future have planned
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 225
[DR. ARIJIT PASAYAT, J.]

massive investments in order to enhance both the quality A
-· and quantity of higher education and research. China, for
example, has made substantial increase in its allocation
of resources of higher education. In the first phase, China
has provided a grant of US $ 125 million to each of the 1O
leading universities and US $ 225 million to Beijing and B
Tsinghua Universities. In the second phase, China
proposes to provide additional grants to 30 universities,
with the objective of having 100 high quality universities in
China in the 21 51 century and with 15% of the citizens in
the age group 18-22 receiving tertiary education. c
7.2 India has suffered in the past because of severe under
investment in higher education. This has been caused
partly by the thinking that looks at primary and higher
education in an either or manner. It is very clear however
that large public investment is needed in both sectors. As D
Prime Minister Dr. Manmohan Singh said, while launching
the Knowledge Commission, "At the bottom of the
• knowledge pyramid, the challenge is one of improving
access to primary education. At the top of the pyramid
there is need to make our institutions of higher education E
and research world class. The time has come for India to
embark on a second wave of nation building. Denied this
investment, the youth will become a social and economic
liability.
49. It was emphasized by learned counsel for the F
.
). petitioners that the massive financial burden question finds no
place in the parliamentary debate. In response, Mr. Vahanvati
has submitted that before the Parliamentary Standing
Committee, the report of the Oversight Committee was available.
When the Oversight Committee's report was discussed in detail, G
needless to say the financial aspect was also considered.
50. It has been highlighted by Mr. P.P. Rao that unmindful
of the duty to focus on primary and elementary education, large
sums of money are intended to be used for implementation of
H
226 SUPREME COURT REPORTS [2008] 4 S.C.R.

A Statute. Various figures and datas have been highlighted to show
that there is really no concern for the primary and elementary
education. Repelling these contentions Mr. Vahanvati has
highlighted that there is no laxity so far as primary and elementary
education is concerned. He has referred to voluminous details
B relating to Sarva Shiksha Abhiyan. It is contended that uniform
policy of elementary education and the progress made upto
31.3.2007 shows the concern of the Government to translate
into reality the constitutional objective of providing adequate
education to all citizens. It is true that there has been
c considerable effort in this regard. But one question still remains
to be answered. There has to be balancing of priorities. Mr.
Vahanvati has said that this balancing is prerogative of the
Government. It is true that Government has a large area of
discretion in choosing its priorities. But one factor cannot be
lost sight of: The fundamental stress has to be on elementary
0
education. If that is done, as a consequence there would be
reduction in the need for spending more money on higher
education. Stress on primary and elementary education would
be a leap forward towards higher education. There has been
considerable number of drop outs in the higher classes. This is
E a reality in spite of all steps which the Government claims to
have adopted to ensure that every child of a particular age group
has education as warranted by the Constitution as a fundamental
right.
F 51. Unni Krishnan, J.P and Ors. v. State of A.P and Ors.
(1993 (1) sec 645) emphasized on the importance of education
in the following words:
"166. In Bandhua Mukti Morcha this Court held that the
right to life guaranteed by Article 21 does take in
G "educational facilities". (The relevant portion has been
quoted herein before). Having regard to the fundamental
significance of education to the life of, an individual and
the nation, and adopting the reasoning and logic adopted
in the earlier decisions of this Court referred to herein
H before, we hold, agreeing with the statement in Bandhua
.., ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS.
[DR. ARIJIT PASAYAT, J.]
227

Mukti Morcha, that right to education is implicit in and A
-~
flows from the right to life guaranteed by Article 21. Th~t
the right to education has been treated as one of
transcendental importance in the life of an individual has
been recognised not only in this country since thousands
of years, but all over the world. In Mohini Jain, the B
impatience of education has been duly and rightly stressed.
The relevant observations have already been set out in
para 7 herein before. In particular, we agree with the
! observation that without education being provided to the
citizens of this country, the objectives set forth in the c
Preamble to the Constitution cannot be achieved. The
Constitution would fail. We do not think that the importance
of education could have been better emphasised than in
the above words. The importance of education was
emphasised in the "Neethishatakam' by Bhartruhari (First
D
Century B.C. in the following words:
Translation:
Education is the special manifestation of man;
Education is the treasure which can be preserved
without the fear of loss; Education secures material E
pleasure, happiness and fame; Education is the
teacher of the teacher; Education is God incarnate;
Education secures honour at the hands of the State,
not money. A man without education is equal to
animal. F
).
168. In Brown v. Board of Education (347 US 483 (1954)
Earl Warren, C.J., speaking for the U.S. Supreme Court
emphasized the right to education in the following words:
"Today, education is perhaps the most important G
function of State and local governments ... It is
required in the performance of our most basic
responsibilities, even service in the armed forces. It
is the very foundation of good citizenship. Today it is
the principal instrument in awakening the child to H
228 SUPREME COURT REPORTS [2008] 4 S.C.R.

A cultural values, in preparing him for later professional
training, and in helping him to adjust normally to his
environment. In these days, it is doubtful any child
may reasonably be expected to succeed in life if he
is denied the opportunity of an education."
B 52. Observations of this Court in A/IMS Students' Union
case (supra) highlight the importance of higher education and
the modalities to be adopted for ensuring excellence are in the
following words:

c "58. The Preamble to the Constitution of India secures, as
one of its objects, fraternity assuring the dignity of the
individual and the unity and integrity of the nation to 'we he
people of India'. Reservation unless protected by the
constitution itself, as given to us by the founding fathers
and as adopted by the people of India, is sub-version of
D
fraternity, unity and integrity and dignity of the individual.
While dealing with Directive Principles of State Policy,
Article 46 is taken note of often by overlooking Articles 41
and 47. Article 41 obliges the State inter alia to make
effective provision for securing the right to work and right
E to education. Any reservation in favour of one, to the extent
of reservation, is an inroad on the right of others to work
and to learn. Article 47 recognises the improvement of
public health as one of the primary duties of the State.
Public health can be improved by having the best of
F doctors, specialists and super specialists. Under-graduate
level is a primary or basic level of education in medical
sciences wherein reservation can be understood as the
fulfilment of societal obligation of the State towards the
weaker segments of the society. Beyond this, a reservation
G is a reversion or diversion from the performance of primary
duty of the State. Permissible reservation at the lowest or
primary rung is a step in the direction of assimilating the
lesser fortunates in mainstream of society by bringing them
to the level of others which they cannot achieve unless
H protectively pushed. Once that is done the protection needs
,.. ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS.
[DR. ARIJIT PASAYAT, J.]
229

to be withdrawn in the own interest of protectees so that A
_, they develop strength and feel confident of stepping on
higher rungs on their own legs shedding the crutches.
Pushing the protection of reservation beyond the primary
level betrays bigwigs' desire to keep the crippled crippled
for ever. Rabindra Nath Tagore's vision of a free India 8
cannot be complete unless "knowledge is free" and "tireless
striving stretches its arms towards perfection". Almost a
quarter century after the people of India have given the
... j
Constitution unto themselves, a chapter on fundamental
duties came to be incorporated in the Constitution. c
Fundamental duties, as defined in Article 51A, are not
made enforceable by a writ of court just as the fundamental
rights are, but it cannot be lost sight of that 'duties' in Part
IVA - Article 51A are prefixed by the same word
'fundamental' which was prefixed by the founding fathers
D
of the Constitution to 'rights' in Part Ill. Every citizen of
India is fundamentally obliged to develop the scientific
temper and humanism. He is fundamentally duty bound to
strive towards excellence in all spheres of individual and
collective activity so that the nation constantly rises to higher
levels of endeavour and achievements. State is, all the E
citizens placed together and hence though Article 51A
does not expressly cast any fundamental duty on the State,
the fact remains that the duty of every citizen of India is the
collective duty of the Sate. Any reservation, apart from
being sustainable on the constitutional anvil, must also be F
<
,J. reasonable to be permissible. In assessing the
reasonability one of the factors to be taken into
consideration would be - whether the character and
quantum of reservation would stall or accelerate achieving
the ultimate goal of excellence enabling the nation G
constantly rising to higher levels. In the era of globalisation,
where the nation as a whole has to compete with other
nations of the world so as to survive, excellence cannot be
given an unreasonable go by and certainly not
compromised in its entirety. Fundamental duties, though H
230 SUPREME COURT REPORTS [2008] 4 S.C.R.

A not enforceable by a writ of the court, yet provide a valuable
guide and aid to interpretation of constitutional and legal
issues. In case of doubt or choice, people's wish as
manifested through Article 51A, can serve as a guide not
only for resolving the issue but also for constructing or
B moulding the relief to be given by the courts. Constitutional
enactment of fundamental duties, if it has to have any
meaning, must be used by courts as a tool to tab, even a
taboo, on State action drifting away from constitutional
values". 1 ~-

c 53. Respondents have vehemently contended that the
concept of creamy layer may have relevance for the purpose of
Article 16(4), but is really inconsequential so far as Articles 15(4)
and 15(5) are concerned. It is submitted that Article 16(4) is
relatable to inadequate representation in Government services
D and in that context the well to do in the socially and educationally
backward classes have to be excluded in view of the decisions
of this Court. But that logic cannot apply to the present dispute
which relates to admissions to educational institutions. Before
considering the question as to the desirability of excluding
E 'creamy layer' the concept of creamy layer needs to be focused
upon. Observations of this Court in various cases on this concept
need to be noted.
54. In N.M. Thomas's case (supra) at page 363, it was
inter alia observed as follows :
F
"124. A word of sociological caution. In the light of
,.
experience, here and elsewhere, the danger of
"reservation", it seems to me, is threefold. Its benefits, by
and large, are snatched away by the top creamy layer of
the "backward" caste or class, thus keeping the weakest
G
among the weak always weak and leaving the fortunate
layers to consume the whole cake. Secondly, this claim is
overplayed extravagantly in democracy by large and vocal
groups whose burden of backwardness has been
substantially lightened by the march of time and measures
H
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 231
[DR. ARIJIT PASAYAT, J.]

of better education and more opportunities of employment, A
but wish to wear the "weaker section" label as a means to
score over their near-equals formally categorised as the
upper brackets. Lastly, a lasting solution to the problem
comes only from improvement of social environment,
added educational facilities and cross-fertilisation of B
castes by inter-caste and inter-class marriages sponsored
as a massive State programme, and this solution is
calculatedly hidden from 'liew by the higher "backward"
groups with a vested interest in the plums of backwardism.
But social science research, not judicial impressionism, c
will alone tell the whole truth and a constant process of
objective re-evaluation of progress registered by the
"underdog" categories is essential lest a once deserving
"reservation" should be degraded .into "reverse
discrimination". Innovations in administrative strategy to
0
help the really untouched, most backward classes also
emerge from such socio-legal studies and audit exercises,
if dispassionately made. In fact, research conducted by
the A.N. Sinha Institute of Social Studies, Patna, has
revealed a dual society among harijans, a tiny elite gobbling
up the benefits and the darker layers sleeping distances E
away from the special concessions. For them, Articles 46
and 335 remain a "noble romance", the bonanza going to
the "higher" harijans. I mention this in the present case
because lower division clerks are likely to be drawn from
the lowest levels of harijan humanity and promotion F
prospects being accelerated by withdrawing, for a time,
"test" qualifications for this category may perhaps delve
deeper. An equalitarian breakthrough in a hierarchical
structure has to use many weapons and Rule 13/AA
perhaps is one. G
Xx xx xx
139. It is platitudinous constitutional law that Articles 14 to
16 are a common code of guaranteed equality, the first
laying down the broad doctrine, the other two applying it H
232 SUPREME COURT REPORTS [2008] 4 S.C.R.

A to sensitive areas historically important and politically
polemical in a climate of communalism and jobbery.
55. In Vasant Kumar's case (supra) at page 732 the view
was re-iterated in the following words :
B "24. In order to appreciate the view point advanced by Mr
Desai which appeals to me both for its indepth study of
the problem, and a fresh outlook on this vexed problem,
at the outset let me take a look at the futuristic view of the
Indian Society as envisaged in the Constitution. No one is
c left in any doubt that the future Indian Society was to be
casteless and classless. Pandit Jawaharlal Nehru the first
Prime Minister of India said that Mahatma Gandhi has
shaken the foundations of caste and the masses have
been powerfully affected. But an even greater power than
Gandhi is at work, the conditions of modern life - and it
D
seems at last this hoary and tenacious ralic of past times
must die. Mahatma Gandhi, the Father of the Nation said,
"The caste system as we know is an anachronism. It must
go if both Hinduism and India are to live and grow from
day to day". In its onward march towards realising the
E constitutional goal, every attempt has to be made to destroy
caste stratification. Article 38(2) enjoins the State to strive
to minimise the inequality in income and endeavour to
eliminate inequalities in status, facilities and opportunities,
not only amongst individuals but also amongst groups of
F people residing in different areas or engaged in different
vocations. Article 46 enjoins duty to promote with special
care the educational and economic interests of the weaker
sections of the people, and in particular of the Scheduled
Castes and Scheduled Tribes, and shall protect them from
G social injustice and all forms of exploitation. Continued
retention of the division of the society into various castes
simultaneously introduces inequality of status. And this
inequality in status is largely responsible for retaining
inequality in facilities and opportunities, ultimately resulting
H in bringing into existence an economically depressed
,,-
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 233
[DR. ARIJIT PASAYAT, J.]
_, class for transcending caste structure and caste barrier. A
The society therefore was to be classless caste less society.
In order to set up such a society, steps have to be taken
to weaken and progressively eliminate caste structure.
Unfortunately, the movement is in the reverse gear. Caste
stratification has become more rigid to some extent, and B
where concessions and preferred treatment schemes are
introduced for economically disadvantaged classes,
~ "
~
identifiable by caste label, the caste structure unfortunately
received a fresh lease of life. In fact there is a mad rush
for being recognized as belonging to a caste which by its c
nomenclature would be included in the list of socially and
educationally backward classes. To illustrate: Bakshi
Commission in Gujarat recognized as many as 82 castes ·
as being. socially and educationally backward. On the
publication of its report, Government of Gujarat received
D
representations by members of those castes who had not
made any representation to the Bakshi Commission for
treating them as socially and educationally backward. This
phenomenon was noticed by Mandal Commission when
it observed: "Whereas the Commission has tried to make
the State-wise lists of OBCs as comprehensive as possible, E
it is quite likely that several synonymy of the castes listed
as backward have been left out. Certain castes are known
by a number of synonymy which vary from one region to
the other and their complete coverage is almost
, impossible". Mandal Commission found a way out by F
recommending that if a particular caste has been listed
as backward then all its synonyms whether mentioned in
the State lists or not should also be treated as backward.
Gujarat Government was forced to appoint a second
commission known as Rane Commission. Rane G
Commission took note of the fact that there was an
organised effort for being considered socially and
educationally backward castes. Rane Commission
recalled the observations in Balaji case that "Social
backwardness is on the ultimate analysis the result of H
234 SUPREME COURT REPORTS [2008] 4 S.C.R.

A poverty to a very large extent". The Commission noticed h
that some of the castes just for the sake of being
considered as socially and educationally backward, have
degraded themselves to such an extent that, they had no
hesitation in attributing different types of vices to and
B associating other factors indicative of backwardness, with
their castes. The Commission noted that the malaise
requires to be remedied. The Commission therefore,
devised a method for determining socially and t
•
educationally backward classes without reference to caste,
c beneficial to all sections of people irrespective of the caste
to whi_ch they belong. The Commission came to an
irrefutable conclusion that amongst certain castes and
communities or class of people, only lower income groups
amongst them are socially and educationally backward.
We may recall here a trite observation in case of N. M.
D
Thomas which reads as under (SCC pg.363 para 124):
A-

"A word of sociological caution. In the light of ·
experience, here and elsewhere, the danger of
'reservation', it seems to me, is threefold. Its benefits,
E by and large, are snatched away by the top creamy
layer of the 'backward' caste or class, thus keeping
the weakest among the weak always weak and
leaving the fortunate layers to consume the whole
cake. Secondly, this claim is overplayed extravagantly
F in democracy by large and vocal groups whose
burden of backwardness has been substantially
lightened by the march of time and measures of better
education and more opportunities of employment,
but wish to wear the 'weaker section' label as a means
to score over their near-equals formally categorised
G
as the upper brackets."
25. A few other aspects for rejecting caste as the
basis for identifying social and educational
backwardness may be briefly noted. If State
H patronage for preferred treatment accepts caste as
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 235
[DR. ARIJIT PASAYAT, J.]

the only insignia for determining social and A
educational backwardness, the danger looms large
that this approach alone would legitimise and
perpetuate caste system. It does not go well with our
proclaimed secular character as enshrined in the
Preamble to the Constitution. The assumption that B
all members of same caste a re equally socially and
educationally backward is not well-founded. Such an
approach provides an over-simplification of a
complex problem of identifying the social and
educational backwardness. The Chairman of the c
Backward Classes Commission, set up in 1953, after
having finalised the report, concluded that "it would
have been better if we could determine the criteria of
backwardness on principles other than caste". Lastly
it is recognised without dissent that the caste based
0
reservation has been usurped by the economically
well-placed section in the same caste. To illustrate,
it may be pointed that some years ago, I came across
a petition for special leave against the decision of
the Punjab and Haryana High Court in which the
reservation of 2Y:z per cent for admission to medical E
and engineering colleges in favour of Majhabi Sikhs
was challenged by none other than the upper crust of
the members of the Scheduled castes amongst Sikhs
in Punjab; proving that the labeled weak exploits the
really weaker. Add to this, the findings of the Research F
Planning Scheme of sociologists assisting the
Mandal Commission when it observed: "while
determining the criteria of socially and educationally
backward classes, social backwardness should be
considered to be the critical element and educational G
backwardness to be the linked element though not
necessarily derived from the former". The team
ultimately concluded that "social backwardness refers
to ascribed status, and it considered social
backwardness as the critical element and H
236 SUPREME COURT REPORTS [2008] 4 S.C.R.

A educational backwardness to be the linked though 1-
not derived element". The attempt is to identify socially
and educationally backward classes of citizens. The
caste, as is understood in Hindu Society, is unknown
to Muslims, Christians, Parsis, Jews etc. Caste
B criterion would not furnish a reliable yardstick to
identify socially and educationally backward group
in the aforementioned communities though economic
backwardness would. r
~.

28. Reservation in one or other form has been there
c for decades. If a survey is made with reference to
families in various castes considered to be socially
and educationally backward, about the benefits of
. preferred treatment, it would unmistakably show that
the benefits of reservations are snatched away by
D the top creamy layer of the backward castes. This
has to be avoided at any cost.
_.\.

56. Significantly in Indra Sawhney No. 1 it was emphatically
noted as follows:
E "520. Society does not remain static. The industrialisation
and the urbanisation which necessarily followed in its wake,
the advance on political, social and economic fronts made
particularly after the commencement of the Constitution,
the social reform movements of the last several decades,
F the spread of education and the advantages of the special
provisions including reservations secured so far, have all ...
undoubtedly seen at least some individuals and families
in the backward classes, however small in number, gaining
sufficient means to develop their capacities to compete
with others in every field. That is an undeniable fact. Legally,
G
therefore, they are not entitled to be any longer called as
part of the backward classes whatever their original
birthmark. It can further hardly be argued that once a .(
backward class, always a backward class. That would
defeat the very purpose of the special provisions made in
H
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 237
[DR. ARIJIT PASAYAT, J.]

the Constitution for the advancement of the backward A
classes, and for enabling them to come to the level of and
to compete with the forward classes, as equal citizens.
On the other hand, to continue to confer upon such
advanced sections from the backward classes the special
benefits, would amount to treating equals unequally B
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. What is more, it will lead to perverting c
the objectives of the special constitutional provisions since
the forwards among the backward classes will thereby be
enabled to lap up all the special benefits to the exclusion
and at the cost of the rest in those classes, thus keeping
the rest in perpetual backwardness. The object of the D
special constitutional provisions is not to uplift a few
individuals and families in the backward classes but to
ensure the advancement of the backward classes as a
whole. Hence, taking out the forwards from among the
backward classes is not only permissible but obligatory
under the Constitution. However, it is necessary to add E
that just as the backwardness of the backward groups
cannot be measured in terms of the forwardness of the
forward groups, so also the forwardness of the forwards
among the backward classes cannot be measured in terms
of the backwardness of the backward sections of the said F
classes. It has to be judged on the basis of the social
capacities gained by them to compete with the forward
classes. So long as the individuals belonging to the
backward classes do oot develop sufficient capacities of
their own to compete with others, they can hardly be G
classified as forward.
xx xx xx
629. More backward and backward is an illusion. No
constitutional exercise is called for it. What is required is H
l
238 SUPREME COURT REPORTS [2008] 4 S.C.R.

A practical approach to the problem. The collectivity or the
'group may be backward class but the individuals from
that class may have achieved the social status or economic
affluence. Disentitle them from claiming reservation.
Therefore, while reserving posts for backward classes,
B the departments should make a condition precedent that
every candidate must disclose the annual income of the
parents beyond which one could not be considered to be
backward. What should be that limit can be determined )
'•
by the appropriate State. Income apart, provision should
c be made that wards of those backward classes of persons
who have achieved a particular status in society either
political or social or economic or if their parents are in
higher services then such individuals should be precluded
to avoid monopolisation of the services reserved for
backward classes by a few. Creamy layer, thus, shall stand
D
eliminated. And once a group or collectivity itself is found
to have achieved the constitutional objective then it should
be excluded from the list of backward class. Therefore,
(1) No reservation can be made on economic criteria.
E (2) It may be under Article 16(4) if such class satisfies the
test of inadequate representation. ·
(3) Exclusion of creamy layer is a social purpose. Any
legislative or executive action to remove such persons
F individually or collectively cannot be constitutionally invalid.
Xx xx xx
790. 'Means-test' in this discussion signifies imposition
of an income limit, for the purpose of excluding persons
(from the backward class) whose income is above the
G
said limit. This submission is very "Often referred to as the
"creamy layer" argument. Petitioners submit that some
members of the designated backward classes are highly
advanced socially as well as economically and
educationally. It is submitted that they constitute the forward
H
r ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 239
[DR. ARIJIT PASAYAT, J.]
_,,, section of that particular backward class - as forward as A
any other forward class member - and that they are
lapping up all the benefits of reservations meant for that
class, without allowing the benefits to reach the truly
backward members of that class. These persons are by
no means backward and with them a class cannot be B
treated as backward. It is pointed out that since Jayasree
almost every decision has accepted the validity of this
.
I
submission .
791. On the other hand, the learned counsel for the States
of Bihar, Tamil Nadu, Kerala and other counsel for c
respondents strongly oppose any such distinction. It is
submitted that once a class is identified as a backward
class after applying the relevant criteria including the
economic one, it is not permissible to apply the economic
criteria once again and sub-divide a backward class into D
... two sub-categories. Counsel for the State of Tamil Nadu
submitted further that at one stage (in July 1979) the State
o f Tamil Nadu did indeed prescribe such an income limit
but had to delete it in view of the practical difficulties
encountered and also in view of the representations E
received. In this behalf, the learned counsel invited our
attention to Chapter 7-H (pages 60 to 62) of the
Ambashankar Commission (Tamil Nadu Second
Backward Classes Commission) Report. According to
the respondents the argument of 'creamy layer' is but a F
'....
mere ruse, a trick, to deprive the backward classes of the
benefit of reservations. It is submitted that no member of
backward class has come forward with this plea and that
it ill becomes the members of forward classes to raise
this point. Strong reliance is placed upon the observations
G
• of Chinnappa Reddy, J in Vasanth kumar to the following
effect (SCC p.763, para 72)
~
" .... One must, however, enter a caveat to the criticism
that the benefits of reservation are often snatched away
by the top creamy layer of backward class or caste. That H
240 SUPREME COURT REPORTS [2008] 4 S.C.R.
.ti~

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

are snatched away by the more fortunate among them is ·
not to say that reservation is not necessary. This is bound
to happen in a competitive society such as ours. Are not
the unreserved seats and posts snatched away, in the
B same way, by the top creamy layer of society itself? Seats
reserved for the backward classes are taken away by
the top layers amongst them on the same principle of
merit on which the unreserved seats are taken away by >.
the top layers of society. How can it.be bad if reserved
c seats and posts are snatched away by the creamy layer
of backward classes, if such snatching away of
unreserved posts by the top creamy layer of society itself
is not bad?"
792. In our opinion, it is not a question of permissibility or
D desirability of such test out one ·of proper and more
appropriate identification of a class - a backward class.
The very concept of a class denotes a number of persons
having certain common traits which distinguish them from
the others. In a backward class under clause (4) of Article
E 16, if the connecting link is the social backwardness, it
should broadly be the same in a given class. If some of the
members are far too advanced socially (which in the
context, necessarily means economically and, may also
mean educationally) the connecting thread between them
F and the remaining class snaps. They would be misfits in
the class. After excluding them alone, would the class be ;.

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

necessarily means social advancement. Let us illustrate
the point. A member of backward class, say a member of
H
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 241
[DR. ARIJIT PASAYAT, J.)

carpenter caste, goes to Middle East and works there as A
a carpenter. If you take his annual income in rupees, it
would be fairly high from the Indian standard. Is he to be
excluded from the Backward Class? Are his children in
India to be deprived of the benefit of Article 16(4)? Situation
may, however, be different, if he rises so high economically B
as to become - say a factory owner himself. In such a
situation, his social status also rises. He himself would be
in a position to provide employment to others. In such a
case, his income is merely a measure of his social status.
Even otherwise there are several practical difficulties too C
in imposing an income ceiling. For example, annual
income of Rs.36,000 may not count for much in a city like
Bombay, Delhi or Calcutta whereas it may be a handsome
income in rural India anywhere. The line to be drawn must
be a realistic one. Another question would be, should such
0
a line be uniform for the entire country or a given State or
should it differ from rural to urban areas and so on. Further,
income from agriculture may be difficult to assess and,
therefore, in the case of agriculturists, the line may have
to be drawn with reference to the extent of holding. While
· the income of a person can be taken as a measure of his E
social advancement, the limit to be prescribed should not
be such as to result in taking away with one hand what is
given with the other. The income limit must be such as to
mean and signify social advancem,ent. At the same time,
it must be recognised that there are certain positions, the F
occupants of which can be treated as socially advanced
without any further enquiry. For example, if a member of a
designated backward class becomes a member of IAS
or IPS or any other All India Service, his status is society
(social status) rises; he is no longer socially G
disadvantaged. His children get full opportunity to realize
their potential. They are in no way handicapped in the
race of life.
793. Keeping in mind all these considerations, we direct H
242 SUPREME COURT REPORTS (2008] 4 S.C.R.

A the Government of India to specify the basis of exclusion
- whether on the basis of income, extent of holding or
otherwise - of 'creamy layer'. This shall be done as early
as possible, but not exceeding four months. On such
specification persons falling within the net of exclusionary
B rule shall cease to be the members of the Other Backward
Classes (covered by the expression 'backward class of
citizens') for the purpose of Article 16(4). The impugned
Office Memorandums dated August 13, 1990 and l
September 25, 1991 shall be implemented subject only to
c such specification and exclusion of socially advanced
persons from the backward classes contemplated by the
said O.M. In other words, after the expiry of four months
from today, the implementation of the said O.M. shall be
subject to the exclusion of the 'creamy layer' in accordance
with the criteria to be specified by the Government of India
D
and not otherwise".
57. In.Indra Sawhney v. Union of India (1996) 6 SCC 506)
at page 508) it was noted as follows :
"3. Thereafter the matter again came up before the Court
E on 20-3-1995. Finding that the State of Kerala has not
taken any steps, this Court issued notice to show cause
why action should not be taken for non-compliance of this
Court's order. Again the matter came up on 10-7-1995.
Even on that date no report of compliance was submitted
F to the Court; instead an affidavit sworn to by the Chief
Secretary to the State was handed over explaining the ,..
circumstances why the implementation of the judgment
was delayed.
)()( )()( )()(
G
5. In the circumstanc,es, out of sheer exhaustion and having ,....-
regard to the fact that the constitutionality of the Kera la Act
16of1995 is pending disposal before this Court, we have -F
decided to get the information ourselves regarding "creamy
H layer" issue through a High Level Committee.
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 243
[DR. ARIJIT PASAYAT,. J.]

6. Accordingly, we request the learned Chief Justice of the A
Kerala High Court to appoint a retired Judge of the High
Court to be the Chairman of the High Level Committee
who will induct not more than 4 members from various
walks of life to identify the "creamy layer'' among "the
designated other backward classes" in Kerala State in B
the light of the ruling of this Court in Manda/ case and
forward the report to this Court within 3 months from the
date of receipt of this order."
58. In Indra Sawhney No. 2 it was observed as follows:
c
"7. Our Constitution is wedded to the concept of equality
and equality is a basic feature. Under Article 15(2), there
is a prohibition that the State shall not discriminate against
any citizen on the grounds only of religion, race, caste, sex
and place of birth or any of them. It is equally t~ue that ours
D
is a caste-ridden society. Still, it is a constitutional mandate
not to discriminate on the basis of caste alone. Provisions
+ can be made for the upliftment of socially and educationally
backward classes, Scheduled Castes or Scheduled
Tribes or for women and children. Article 1-6(4) empowers
the States for making any provision for reservation in E
appointments or posts in favour of any backward class of
citizens which, in the opinion of the State, is not adequately
represented in the services under the State. Reservation
is permissible ( i ) in favour of any backward class of
citizens; and ( ii ) if it is not adequately represented in F
services under the State.
"
8. Caste only cannot be the basis for reservation.
Reservation can be for a backward class citizen of a
particular caste. Therefore, from that caste, the creamy
G
layer and the non-backward class of citizens are to be ·
excluded. If the caste is to be taken into consideration
then for finding out the socially and economically backward
class, the creamy layer of the caste is to be eliminated for
granting benefit of reservation, because that creamy layer
H
244 SUPREME COURT REPORTS (2008] 4 S.C.R

A cannot be termed as socially and economically backward.
These questions are exhaustively dealt with by a nine-
Judge Bench of this Court in Indra Sawhney v. Union of
India and it has been specially held that "only caste" cannot
be the basis for reservation.
B 9. Inclusion of castes in the list of backward classes cannot
be mechanical and cannot be done without adequate
relevant data. Nor can it be done for extraneous reasons ...
Likewise, periodic examination of a backward class could
c lead to its exclusion if it ceases to be socially backward
or if it is adequately represented in the services. Once
backward, always backward is not acceptable. In any case,
the "creamy layer" has no place in the reservation system.
10. If forward classes are mechanically included in the list
D of backward classes or if the creamy layer among
backward classes is not excluded, then the benefits of
reservation will not reach the really backward among the +
backward classes. Most of the benefits will then be knocked
away by the forward castes and the creamy layer. That will
E leave the truly backward, backward forever.
xx xx xx
13. In Indra Sawhney on the question of exclusion of the
"creamy layer'' from the backward classes, there was
F agreement among eight out of the nine learned Judges of
this Court. There were five separate judgments in this
behalf which required the "creamy layer'' to be identified
and excluded.
xx xx xx
G
22. As appears from the judgments of six out of the eight
Judges, viz. Jeevan Reddy (for himself and three others),
Sawant and Sahai, JJ. - (i.e. six learned Judges out of
nine), - they specifically refer to those in higher services
like IAS, IPS and All India Services or near about as
H
' ,
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 245
[DR. ARIJIT PASAYAT, J.]

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

27. As the "creamy layer" in the backward class is to be
0
treated "on a par'' with the forward classes and is not
entitled to benefits of reservation, it is obvious that if the
"creamy layer'' is not excluded, there will be discrimination
and violation of Articles 14 and 16(1) inasmuch as equals
(forwards and creamy layer of backward classes) cannot
be treated unequally . Again, non-exclusion of creamy E
layer will also be violative of Articles 14, 16(1) and 16(4)
of the Constitution of India since unequals (the creamy
layer) cannot be treated as equals , that is to say, equal
to the rest of the backward class. These twin aspects of
discrimination are specifically elucidated in the judgment F
'... of Sawant, J. where the learned Judge stated as follows:
(SCC p. 553, para 520)
'To continue to confer upon such advanced sections
special benefits, would amount to treating equals G
unequally. Secondly, to rank them with the rest of the
backward classes would amount to treating the
unequals equally."
Thus, any executive or legislative action refusing to exclude
the creamy layer from the benefits of reservation will be H
~ ,
246 SUPREME COURT REPORTS (2008] 4 S.C.R.

A violative of Articles 14 and 16(1) and also of Article 16(4).
We shall examine the validity of Sections 3, 4 and 6 in the
light of the above principle.
Xx xx xx
B 64. The Preamble to the Constitution of India emphasises
the principle of equality as basic to our Constitution. In
Kesavananda Bharati v. State of Kera/a it was ruled that
even constitutional amendments which offended the basic
structure of the Constitution would be ultra vires the basic
c structure. Sikri, C.J. laid stress on the basic features
enumerated in the Preamble to the Constitution and said
that there were other basic features too which could be
gathered from the constitutional scheme (para 506-A of
SCC). Equality was one of the basic features referred to
in the Preamble to our Constitution. Shelat and Grover,
D
JJ. also referred to the basic rights referred to in the
Preamble. They specifically referred to equality (paras
520 and 535-A of SCC). Hegde and Shelat, JJ. also
referred to the Preamble (paras 648, 652). Ray, J. (as he
then was) also did so (para 886). Jaganmohan Reddy, J.
E too referred to the Preamble and the equality doctrine
(para 1159). Khanna, J. accepted this position (para
1471). Mathew, J. referred to equality as a basic feature
(para 1621). Dwivedi, J. (paras ~882, 1883) and
Chandrachud, J. (as he then was) (see para 2086)
F accepted this position.
65. What we mean to say is that Parliament and the
legislature in this country cannot transgress the basic
feature of the Constitution, namely, the principle of equality
enshrined in Article 14 of which Article 16(1) is a facet.
G
Whether the creamy layer is not excluded or whether
forward castes get included in the list of backward classes
, the position will be the same, namely, that there will be
a breach not only of Article 14 but of the basic structure of
the Constitution. The non-exclusion of the creamy layer
H
' ,
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 247
[DR. ARIJIT PASAYAT, J.]

or the inclusion of forward castes in the list of backward A
classes will, therefore, be totally illegal. Such an illegality
offending the root of the Constitution of India cannot be
allowed to be perpetuated even by constitutional
amendment. The Kerala Legislature is, therefore, least
competent to perpetuate such an illegal discrimination. B
What even Parliament cannot do, the Kerala Legislature
cannot achieve."
,. "i 59. Though in M. Nagaraj's case (supra) some
observations of general nature have been made so far as the
applicability of the principles to Scheduled Castes and c
Scheduled Tribes are concerned, really that case did not concern
with Scheduled Castes and Scheduled Tribes. Similar is the
position here. The focus on the identity test in M. Nagaraj's case
(supra) is unexceptionable. At paras 80 and 110, it was noted
as follows: D
"80. Before concluding, we may refer to the judgment of
this Court in M.G Badappanavar. In that case the facts
were as follows. Appellants were general candidates. They
contended that when they and the reserved candidates
were appointed at Level-1 and junior reserved candidates E
got promoted earlier on the basis of roster- points to Level-
2 and again by way of roster-points to Level-3, and when
the senior general candidate got promoted to Level-3,
then the general candidate would become senior to the
·reserved candidate at Level-3. At Level-3, the reserved F
•).
candidate should have been considered along with the
senior general candidate for promotion to Level-4. In
support of their contention, appellants relied upon the
judgment of the Constitution Bench in Ajit Singh (//).The
above contentions raised by the appellants were rejected G
by the tribunal. Therefore, the general candidates came to
this Court in appeal. This Court found on facts that the
"• Service Rule concerned did not contemplate computation
of seniority in respect of roster promotions. Placing reliance
on the judgment of this Court in Ajit Singh(/) and in Virpa/ H
248 SUPREME COURT REPORTS [2008) 4 S.C.R.

A Singh, this Court held that roster promotions were meant
only for the limited purpose of due representation of
backward classes at various levels of service and,
therefore, such roster promotions did not confer
consequential seniority to the roster-point promotee. In
B Ajit Singh (//) , the circular which gave seniority to the
roster-point promotees was held to be violative of Articles
14and16. ltwas further held in M.G Badappanavarthat
equality is the basic feature of the Constitution and any
treatment of equals as unequals or any treatment of
c unequals as equals violated the basic structure of the
Constitution. For this proposition, this Court placed
reliance on the judgment in Indra Sawhneywhile holding
that if creamy layer among backward classes were given
some benefits as backward classes, it will amount to
equals being treated unequals. Applying the creamy layer
D
test, this Court held that if roster-point promotees are given
consequential seniority, it will violate the equality principle
which is part of the basic structure of the Constitution and
in which event, even Article 16(4A) cannot be of any help
to the reserved category candidates. This is the only
E judgment of this Court delivered by three-Judge bench
saying that if roster-point promotees are given the benefit
of consequential seniority, it will result in violation of equality
principle which is part of the basic structure of the
Constitution. Accordingly, the judgment of the tribunal was
F set aside.
xx xx xx
110. As stated above, the boundaries of the width of the
power, namely, the ceiling-limit of 50% (the numerical
G benchmark), the principle of creamy layer, the compelling
reasons, namely, backwardness, inadequacy of
representation and the overall administrative efficiency
are not obliterated by the impugned amendments. At the
appropriate time, we have to consider the law as enacted
H · by various States providing for reservation if challenged.
r ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS.
[DR. ARIJIT PASAYAT, J.]

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

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

. ,,. ~
to make reservation, as stated above, if the impugned law
violates any of the above substantive limits on the width of
the power the same would be liable to be set aside."
·60. There is an interesting article by an author dealing with c
Affirmative Action which reads as follows:
"In his much referred to speech on 26November1949,
Dr. Ambedkar said that India was wanting in its recognition
of the principle of fraternity. What does fraternity mean?
D
Fraternity means a sense of common brotherhood of all
Indians - of India being one people. The virtues of liberty
by themselves do not create fraternity. This is why several
liberal theorists are unsure about whether or not state
interventions should be allowed for when the issue of
overcoming disprivileges are concerned. The central E
concern then is how to inculcate a sense of 'common
brotherhood' among people with divergent histories and
who occupy vastly different positions in the economic and
social structure of a society.
F
"A. Before we go further on discussing the specifics of
caste and reservations in India it is worth recording that
liberty and equality can sometimes be contradictorily
positioned. This is why it is important for democracy to
redress these community-based grievances within a
G
framework that does not violate liberal principles. While
i the individual needs to be protected, there are individuals
in certain groups and communities that need safeguards
''~
and support as well. After all it must be remembered that
communities do not create citizens, but that there are
H
250 SUPREME COURT REPORTS [2008] 4 S.C.R.

A citizens within communities. Also, while it is rather risky to ,,_
say that communities have rights, there is no doubt at all
that within liberal democracies, individuals have rights.
Indeed, these rights were secured historically so that
individuals did not have to be burdened by community
B and ascriptive pressures on them.
The rationale behind affirmative action is that it
releases suppressed talents and expands the pool of social
assets in society for the general good. If today we are ..
r.,.
looking for a justification for affirmative action in this fashion,
c several decades ago it was precisely this enlarging of the
social pool of talents that recommended equal treatment
for women. As L.T. Hobhouse argued then that when women
are repressed then there is a loss of all the elements in the
common stock which the free play of the woman's mind
D would contribute. By increasing the sum of realized talents
in society individuals can actually gain greater inter-
subjectivity in their everyday lives. As the set of -+-
resemblances between them is now so much larger, they
can practice, pace Rawls, the moral precept of
E participating in one another's fate. In this process, fraternal
values of citizenship gain materiality and fulfilment. It should
be recognized that fraternity can only come about through
a basic set of resemblances between citizens. This
conception of resemblances is about citizens being equally
F able to avail of institutional facilities that ensure their
acquisition of those skills that are considered to be socially
valuable. In other words, social opportunities exist for
individual self-expansion, and it is only individuals now
who can exclude themselves. If grinding poverty comes in
the way of acquiring such socially valuable skills, then those
G
blocks should be met by developmental interventions such
as the anti-poverty programmes. But on no account should
the removal of poverty be made synonymous with ..... -
reservations. Reservations are only meant to create a
measure of confidence and dignity among those who didn't
H
., ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 251
[DR. ARIJIT PASAYAT, J.]
dare dream of an alternative life. But that alone cannot A
create structural conditions that address the root causes
of poverty.
If quality education and the imparting of socially
valuable skills are provided across the board through
reservations, then that would take care of the complaint B
that affirmative action is largely about the equality of results.
1'
1 Rawls' principle of justice as fairness only says that offices
should be open to all. But what if people do not qualify for
these offices because their potentialities have remained
unrealized on account of inadequate qualifications arising c
from a history of discrimination compounded by poverty,
or, indeed, because of sub-standard education? Does it
mean that, through positive discrimination and
reservations, they should be given these jobs anyway
regardless of the welfare of institutions? In this connection, D
Andre Beteille's warning that affirmative action should be
sensitive to institutional well-being as well needs to be
recalled. Beteille sifted between the various imperatives
that different organizations are subsumed under and
accordingly advised a careful calibration of reservations E
such that these provisions of performance do not
undermine efficiency of performance. The resemblances
that are being advocated in the context of affirmative action
should not be interpreted in terms of homogeneous
~.
'sameness'. Sameness is what medieval religious F
" fundamentalists aim for. On the other hand, the set of
resemblances in a constitutional democracy enhances
equality and not sameness by providing identical
opportunities to all for self-expression and development.
Citizenship is not about the sameness of lifestyles or of
G
income. Marshall's notion of citizenship as a status that
tends towards equality should be interpreted in this light.
-~ According to Marshall, the equality that citizenship
guarantees should be the foundation on which other kinds
of differences can develop.
H
4'
252 SUPREME COURT REPORTS (2008] 4 S.C.R.

A It will no doubt be the case that differences will exist
even after a minimum set of resemblances is established.
But these will no longer be outcomes of the accidents of
birth. When diversity exists outside of choice then that is
not a state of affairs that a democratic society can rejoice
B in. Affirmative action is instrumental in enlarging the scope
of difference and diversity, but it succeeds in doing so by
first ensuring that citizens resemble one another at a very
critical level namely in their ability to acquire socially • l
valuable skills.
c Affirmative action gets somewhat complicated in India
on account of caste politics.
Undeniably, India is the most stratified society in the
world. Over and above caste differentiations there are
huge income disparities, religious and community
D
differences that are deeply engrave'd into everyday social
relations. No doubt, the nature of caste and community
interactions has changed over time, but con!liderations
along ascriptive lines still remain important markers, both
at the public and private domains.
E
Not only are we now confronted by identity assertions
of earthy peasant castes, that were earlier ranked as lowly
shudras (or menials), but also, of those who, till recently,
were called 'untouchables'. Now we also know that none
F of these castes had ever ideologically accepted their
degraded status. Yet they lived out their humble lives quietly "'
for generations for fear of offending the privileged strata.
We now know more of their origin tales that boast of
the elevated positions they once held before an
G unsuspected chicanery, a lost war, or a mercurial god,
demoted them to lowly rungs in popular perceptions. Today
these tales are an important source of symbolic energy 1/
for caste mobilizations and identity assertions. Now that
the Mandal recommendations are in place, reservations
H are not just for the Scheduled Castes and Tribes, but for
- ,. ,
ASHOKA KUMAR THAKUR v. UNION QF INDIA & ORS. 253
[DR. ARIJIT PASAYAT, J.]

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

In pursuance of Article 340 of the Constitution, the
Kalelkar Commission was set up in 1955 but it could not E
come to any satisfactory conclusion about who should be
legitimately considered as OBCs. The· Manda I
Commission came into existence in 1980 and it promptly
came up with a long list of 3,743 backward castes on the
basis of social, economic and educational backwardness. F
The Manda! Commission's recommendations were
implemented in 1990 by the then Prime Minister VP Singh.
This meant that a further 29 per cent of seats in educational
institutions and government jobs would now be reserved
for OBCs. G
The implementation of reservations for OBCs set off
a furore of protests, including a few suicides, all over the
country by those who are considered to be members of
forward castes. Many felt th at reservations for OBCs were
not warranted for two reasons. First, this would make India H
~ J
254 SUPREME COURT REPORTS [2008] 4 S.C.R.

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

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

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

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

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

A everybody in society. If, on the other hand, either colour or )...-
race, which are only ready reckoners, become permanent
considerations, without taking into account biographical
profiles of actual and potential beneficiaries, then that
would inhibit fraternity and sow seeds of permanent
B divisions in society.
Affirmative action begins by placing the assets of the
better off in a collective pool, not for redistribution, but to
create the infrastructure that is needed to enhance the
~ ..
minimum set of resemblances necessary for substantive
c citizenship. With the help of this capital, socially valuable
assets are now created in sites where there were none.
This measure has a strong practical dimension for out of
. this collective pooling new assets are being created. The
"creation of such new assets is possible because the initial
D pooling of assets of the privileged section allows the
society to underwrite the expenses incurred for the
establishment of certain baseline similarities in society
as a whole. As the most important feature in this case is
not one's ascriptive badge, but the creation of socially
E valuable assets, it is expected that those who have been
. the beneficiaries of the scheme will gradually slip out of
the net. They will cease to receive from the collective pool
and instead will begin to contribute to it. As far as public
policy is concerned they are no long members of certain
F designated castes or communities. They are now simply
citizens.
"
In passing it is worth putting in perspective that the
difference between reservations in India and affirmative
action in America is that the former talks about extirpating
G caste whereas the latter is interested primarily in
representing races. If the accent is on representation then
the ascriptive factor becomes a permanent badge that
r'
can never be overcome. Again, Americans believe in race
representation, not in quotas, and in not sacrificing
H standards for social justice. But the great similarity between
~ ~
ASHOKA KUMAR THAKUR v. UNION OF ltilDIA & ORS. 257
[DR. ARIJIT PASAYAT, J.]

~ . the two forms of preferential policy is that in both cases it A
is the public sector where positive discrimination is
effectively realized. In America, the State encourages
private sector units to employ people of diverse
backgrounds without specifying quotas for different races.
If these enterprises can show a fair racial mix then they B
can get preferential contracts from the government. The
State cannot force any private sector unit to implement
., 1 affirmative action. It is a combination of goodwill and
rewards that takes affirmative action forward in the private
sector of America. For example, Bob Jones University c
does not receive any public money and, therefore, it refuses
to accept affirmative action, even of the most muted kind.
It is only when organizations depend on state funding, or
when they want to be rewarded by the State, that policy of
affirmative action comes to life."
D
61. It has been rightly observed in Indra Sawhney No. 2
~
~~ (supra) whether creamy layer is not excluded or whether forward
classes can be excluded in the list of backward classes, the
position would be the same and there will be breach not only of
Article 14 but of the basic structure of the Constitution. As was E
rightly observed in the said case, non exclusion of the creamy
layer or inclusion of forward castes in the lists of backward
classes will be totally illegal. The illegality offends the roots and
foundation of the Constitution and cannot be allowed to be
perpetuated. F
~
... 62. In Nair Service Society's case (supra) this Court
observed as follows:
"54. This Court, thus, has categorically laid down the law
that determination of creamy layer is a part of the
G
constitutional scheme."
63. In our view, even non exclusion of the creamy layer for
-.. the purpose of admission to the educational institutions cannot
be countenanced. It is inconceivable that a person who belongs
to the creamy layer is socially and educationally backward. The H
~ ~
258 SUPREME COURT REPORTS [2008] 4 S.C.R.

A backward status vanishes when somebody becomes part of
the creamy layer. " ..
64. In Vasant Kumar's case (supra) it was aptly described
that the benefits of reservation are snatched away by the top
creamy layer of the backward classes and this has to be avoided
B at any cost. By inclusion of the creamy layer or in other words
non inclusion thereof a fresh lease of life to those who should
have been left out is given. Their continuance would mean
keeping weakest amongst the weak always weak and leaving
t
..
the fortunate ones to enjoy the benefits. If the ultimate aim is a
c casteless and classless society in line with the dream of the
Constitution framers that has to be chewed out. As Father of
the Nation had once said if the caste system as we know is an
anchronism, then it must go. There is a feeling and it cannot be
said without reason that reservation hits at the root of this belief
D and instead of its obliteration there is perceivable perpetuation.
It is true that obliteration cannot be done immediately or within
..,... ~
a short span of time but that is no answer to the lack of
seriousness in seeking obliteration.
65. In Indra Sawhney No.1 (supra) the following
E observations on the question of giving priority over reservation
are of significance. It was held:
"293. Preference without reservation may be ado12ted in
favour of the chosen classes of citizens by 12rescribing for
F them a longer geriod for gassing a test or by awarding
additional marks or granting other advantages like ...'
relaxation of age or other minimum reguirements. (See
the preferential treatment in State of Kerala and Anr. v.
N.M. Thomas and Ors. (1976) 1 SCR 906). Furthermore,
it would be within the discretion of the State to provide
G
financial assistance to such persons by way of grant,
scholarships, fee concessions etc. Such preferences or
advantages are like temporary crutches for additional ,~

support to enable the members of the backward and other
disadvantaged classes to march forward and compete
H
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 259
[DR ARIJIT PASAYAT, J.]

with the rest of the people. These preferences are extended A
to them because of their inability otherwise to compete
effective!y in open selections on the basis of merits for
appointment to posts in public services and the like or for
selection to academic courses. Such preferences can be
extended to all disadvantaged classes of citizens, whether B
or not they are victims of prior discrimination. What qualifies
persons for preference is backwardness or disadvantage
of any kind which the State has a responsibility to
ameliorate. The blind and the deaf, the dumb and the
maimed, and other handicapped persons qualify for c
preference. So do all other c!asses of citizens who are at
a comparative disadvantage for whatever reason, and
whether or not they are victims of prior discrimination. All
these persons may be beneficiaries of preferences short
of reservation. Any such preference, although
0
discriminatory on its face, may be justified as a benign
classification for affirmative action warranted by a
compelling state interest
294. In addition to such preferences, quotas may be
provided exclusively reserving posts in public services or E
seats in academic institutions for backward people entitled
to such protection. Reservation is intended to redress
backwardness of a higher degree. Reservation prima
facie is the very antithesis of a free and open selection. It
is a discriminatory exclusion of the disfavoured classes of F
meritorious candidates. M.R Balaji (supra). It 1s not a case
of merely providing an advantage or a concession or
preference in favour of the backward classes and other
disadvantaged groups. It is not even a handicap to
disadvantage the forward classes so as to attain a G
measure of qualitative or relative equality between the
two groups. Reservation which excludes from
consideration all those persons failing outside the specia!!y
favoured groups, irrespective of merits and qualifications,
is much more positive and drastic a discrimination - albeit
H
260 SUPREME COURT REPORTS [2008] 4 S.C.R.

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

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

323 (16). In the final analysis, poverty which is the ultimate
G result of inequities and which is the immediate cause and
effect of backwardness has to be eradicated not merely
by reservation as aforesaid. but by free medical aid, free
elementary education, scholarships for higher education
and other financial support, free housing. self- employment
H and settlement schemes. effective implementation of land
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 261
[DR. ARIJIT PASAYAT, J.)

reforms, strict and im12artial 012eration of the law-enforcing A
~ .. machine!Y, industrialization, construction of roads, bridges,
culverts, canals, markets, introduction of trans12ort, free
SUQQly of water, electricitv and other ameliorative measures
12articularly in areas densely 12012ulated by backward
classes of citizens. B
(underlined for emphasis)
66. Following observations in M.R. Balaji v. State of
..A. Mysore (AIR 1963 SC 649) are also relevant:
"In this connection, it is necessary to remember that the c
reservation made by the impugned order is in regard to
admission in the seats of higher education in the State. It
is well-known that as a result of the awakening caused by
political freedom, all classes of citizens are showing a
growing desire to give their children higher university D
education and so, the Universities are called upon to face
the challenge of this growing demand. While it is necessa!Y
that the demand for higher education which is thus
increasing from year to year must be adeguately met and
12ro12erly channelised, we cannot overlook the fact that in E
meeting that demand standards of higher education in
Universities must not be lowered. The large demand for
education may be met by starting larger number of
educational institutions vocational schools and
polytechnics. But it would be against the national interest
F
to exclude from the 12ortals of our Universities gualified
'" and com12etent students on the ground that all the seats in
the Universities are reserved for weaker elements in
society. As has been observed by the University Education
Commission, "he indeed must be blind who does not see
that mighty as are the political changes, far deeper are G
the fundamental questions which will be decided by what·
happens in the universities" (p. 32). Therefore, in
't considering the question about the propriety of the
reservation made by the impugned order, we cannot lose
sight of the fact that the reservation is made in respect of H
262 SUPREME COURT REPORTS [2008] 4 S.C.R.

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

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

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

The learned Advocate-General has suggested that
F reservation of a large number of seats for the weaker
sections of the society would not affect either the depth or
,.
efficiency of scholarship at all, and in support of this "
argument, he has relied on the observations made by the
Backward Classes Commission that it found no complaint
G in the States of Madras, Andhra, Travancore-Cochin and
Mysore where the system of recruiting candidates from
other Backward Classes to the reserve quota has been in
vogue for several decades. The Committee further i"
observed that the representatives of the upper classes
H did not complain about any lack of efficiency in the offices
ASHOKA KUMAR THAKt;R v ~l\ilON OF INDIA & ORS. 263
[DR. ARIJIT PASAYAT, J.;

recruited by reservation (p. 135) This opinion, however, A
•• is plainly inconsistent with what is bound to be the inevitab!e
consequence of reservation in higher university education.
If admiss,;on to professional and technical colleges is
unduly liberalised it would be idle to contend that the quality
of our graduates will not suffer. That is not to say that B
reservation should not be adopted; reservation should and
must be adopted to advance the prospects of the weaker
...., I sections of society. but in prov•:ding for special measures
in that behalf care shou:d be taken not to exclude
admission to higher educational centres to deserving and c
qualified candidates of other communities A special
provision contemplated by Art 15(4) like reservation of
posts and appointments contemplated by Art. 16(4) must
be within reasonable :imits The interests of weaker
sections of society which are a first charge on the states
D
and the Centres have to be adjusted with the interests of
the community as a whole The adjustment of these
competing c!aims is undoubtedly a difficult matter, but if
under the guise of making a special provision, a State
reserves practically all the seats available in ail the colleges,
that dearly would be subverting the object of Art. 15(4). In E
this matter again, we are reluctant to say definitely what
would be a proper provision to make. Speaking generally
and m a broad way a special provision should be less
than 50%, how much less than 50% would depend upon
the relevant prevailing circumstances in each case. In F
...
.... this particular case it :s remarkable that when the State
issued its order on .:uly 10, 1961. it emphaticaHy expressed
its opinion that the reservation of 68% recommended by
the Nagan Gowda Committee would not be \n the larger
interests of the State. What happened between July 10, G
1961 . and July 31. 1962, does not appear on the record.
But the State changed its mind and adopted the
-i- recommendation of the Committee ignoring its earlier
decision that the said recommendation was contrary to
the larger inte•ests of the State. In our opinion, when the H
l
264 SUPREME COURT REPORTS [2008) 4 S.C.R.

A State makes a special provision for the advancement of
the weaker sections of society specified in Art. 15(4) it " ..
has to approach its task objectively and in a rational
manner. Undoubtedly, it has to take reasonable and even
generous steps to help the advancement of weaker
B elements; the extent of the problem must be weighted, the
requirements of the community at large must be borne in
mind and a formula must be evolved which would strike a
reasonable balance between the several relevant ~ .....
considerations. Therefore, we are satisfied that the
c reservation of 68% directed by the impugned order is
plainly inconsistent with Art. 15(4).
The petitioners contend that having regard to the infirmities
in the impugned order, action of the State in issuing the
said order amounts to a fraud on the Constitutional power
D conferred on the State by Art. 15(4). This argument is well-
founded, and must be upheld. When it is said about an
executive action that it is a fraud on the Constitution, it
does not necessarily mean that the action is actuated by
mala fides. An executive action which is patently and plainly
E outside the limits of the constitutional authority conferred
on the State in that behalf ·is struck down as being ultra
vires the State's authority. If, on the other hand, the
executive action does not patently or overtly transgress
the authority conferred on it by the Constitution, but the
F transgression is covert or latent, the said action is struck
down as being a fraud on the relevant constitutional power. ,.•
It is in this connection that courts often consider the
substance of the matter and not its form and in ascertaining
the substance of the matter, the appearance or the cloak,
or the veil of the executive action is carefully scrutinized
G
and if it appears that notwithstanding the appearance, the
cloak or the veil of the executive action, in substance and
in truth the constitutional power has been transgressed,
the impugned action is struck down as a fraud on the r-'
Constitution. We have already noticed that the impugned
H
c
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 265
[DR. ARIJIT PASAYAT, J.]

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

is not permitted by Art. 15(4); and we have also held that
the reservation of 68% made by the impugned order is
plainly inconsistent with the concept of the special
provision authorised by Art. 15(4). Therefore, it follows B
that the impugned order is a fraud on the Constitutional
power conferred on the State by Art. 15(4). The learned
.,., j Advocate-General has made an earnest and strong plea
before us that we should not strike down the order, but
should strike down only such portions of the order which c
appear to us to be unconstitutional on the doctrine of
severability. He has urged that since 1958, the State has
had to make five orders to deal with the problem of
advancing the lot of the Backward Classes and the State
is anxious that the implementation of the impugned order
D
should not be completely prohibited or stopped. We do
• J-
not see how it would be possible to sever the invalid
provisions of the impugned order. If the categorisation of
the Backward Classes is invalid, this Court cannot and
would not attempt the task of enumerating the said
categories; and if the percentage of reservation is improper E
and outside Art. 15(4), this Court would not attempt to lay
down definitely and in an inflexible manner as to what
would be the proper percentage to reserve. In this
connection, it may be relevant to refer to one fact on which
"\
the petitioners have strongly relied. It is urged for them F
... that the method adopted by the Government of Maharashtra
in exercising its power under Art. 15(4) is a proper method
to adopt. It appears that the Maharashtra Government has
decided to afford financial assistance, and make monetary
grants to students seeking higher education where it is G
shown that the annual income of their families is below a
prescribed minimum. The said scheme is not before us
-t
and we are not called upon to express any opinion on it..
However, we may observe that if any State adopts such a
measure, it may afford relief to and assist the advancement H
\
266 SUPREME COURT REPORTS [2008] 4 S.C.R.

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

action taken by the State must be based on an objective
approach, free from all extraneous pressures. The said
action is intended to do social and economic justice and
G must be taken in a manner that justice is and should be
done.
Whilst we are dealing with this question, it would be relevant ~-
to add to that the provisions of Art. 15(4) are similar to
those of Art. 16(4) which fell to be considered in the case
H
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 267
:oR. AR!JIT PASAYAT, J.]
of The General Manager, Southern Railway v. A
Rangachan (1962 (2) SCR 586) In that case, the majority
decision of this Court held that the power of reservation
which is conferred on the State under Art. 16(4) can be
exercised by the State In a proper case not only by
providing for reservation of appofntrnents, but also by B
providing for reservation of selection posts. This conclusion
was reached on the basis that it served to give effect to
the intent!on of the Constitution makers to make adequate
safeguards for the advancement of Backward Classes
and to secure their adequate representation in the Services. c
The judgment shows that the oniy point which was raised
for the decision of this Court :n that case was whether the
reservation made was outside Art. 16(4) and that posed
the bare question about the construction of Art. 16(4). The
propriety. the reasonableness or the wisdom of the
0
impugned order was not questioned because it was not
.
-~
the respondent's c<':.e that if the order was justified under
Art. 16(4) it was 'l fraud on the Constitution. Even so, it
was pointed out in the judgment that the efficiency of
administration 1s of such a paramount importance that it
would be u'1wise and impermissible to make any E
reservation at the cost of efficiency of administration; that,
it was stated, was undoubtedly the effect of Art. 335.
Therefore, wliat 1s true in regard to Art. 15(4) is equally
true in regard to Art. 16(4) There can be no doubt that the
Constitution-makers assuried as they were entitled to, F
that while IT'aking adequate reservation under Art. 16(4),
care would be taken not to provide for unreasonable,
excessive or extravagant reservation, for that would, by
eliminating general competition in a large field and by
creating wide·spread dissatisfaction amongst the G
employees. materially affect efficiency. Therefore, like the
special provision improperly made under Art 15(4),
reservation made under Art. 16(4) beyond the permissible
and legitimate limits would be Hable to be challenged as
a fraud on the Constitution. In this connection it is necessary H
t ~
268 SUPREME COURT REPORTS [2008] 4 S.C.R.

A to emphasize that Art. 15(4) is an enabling provision; it
... 1
does not impose an obligation, but merely leaves it to the
discretion of the appropriate government to take suitable
action, if necessary."
67. To similar effect is the view expressed in K. C. Vasanth
B Kumar's case (supra) at para 150:

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

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

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 269
[DR. ARIJIT PASAYAT, J.]
•
the populace. Profession exQertise, born of knowledge A
~ ' and exQerience, of a high degree of technical knowledge
and OQeration skill is reguired of Qilots and aviation
engineers The lives of citizens deQend on such Qersons.
There are other similar fields of governmental activitv where
[1rofessional, technological, scientific or other sgecial §kill B
is called for. In such services or Qosts under the Union or
State, we think where can be no room for reservation of
,,, 1 QOsts; merit alone must be the sole and decisive
CQnsideration for aggointments."
(underlined for emphasis) c
68. Lengthy arguments have been advanced as to the
seriousness in identifying the backward classes. On the basis
of Indra Sawhney No.1's judgment, the Government of India
issued orders in respect of reservations of appointments or on
D
posts under the Government of India in favour of backward
classes of citizens. It was the subject matter of challenge in
- J.
lndra_Sawhney No.1. In its judgment dated 16.11.1992 this
Court directed the Government to constitute a permanent body
by 15.3.1993 for entertaining and examining and recommending
upon requests made for inclusion or complaints of over inclusion E
and under inclusion in the lists of backward classes of cttizens.
69. Constituent Assembly Debates 1951 have also
relevance for adjudicating the controversy. The following portion
needs to be extracted: F
....
~
70. Parliamentary Standing Committee Report at paras
36, 37 and 46 read as follows:
"36. The committee notes that there is a major limitation
on data about the social economic and educational profile
G
of our population in general and about OBCs in particular.
The last caste-based census in India was done in 1931.
..... Accordingly there are no periodic data available on the
demographic spread of OBCs and their access to
amenities. Even the Mandal Commission had used the
H
270 SUPREME COURT REPORTS (2008] 4 S,C.R.

A 1931 Census data. Whatever limited data are available,
• t
pertain to surveys conducted by NSSO from 1998-99
onwards, which are only 's.ample surveys'.
37. The Committee found that there exists no accepted
mechanism/criteria to group the people into different
B categories. As a result, existing list of backward castes/
communities are termed in some cases, as inaccurate.
Besides, any regular process of review is also not in place.
Such a review implies both 'inclusion' and ·exclusion'. The
Committee, therefore, emphasizes the need for taking
c urgent measures/steps for identifying and removing all
such lacunae and removing all such lacunae and problems
by putting in place scientific and objective mechanism/
benchmarks for this purpose.
xx xx xx
D
46. There have been suggestions/counter-suggestions on·
the issue of exclusion of the 'creamy layer amongst OB Cs
in the proposed legislation. On the one hand, it was argued
that the concept of creamy layer did not apply in the case
E of reservation in admission. It was pointed out that the
debate on the exclusion of the creamy layer was misplaced
as the Supreme Court's observation regarding the
exclusion of the creamy layer within the SCs and STs from
the purview of reservation was only for public employment
F and promotion. The other view in this regard was that the
inclusion of the creamy layer in reservation \'iOuld defeat
the very purpose of providing reservation to the backward
classes. It was also stated that the exclusion of the creamy
layer would ensure that the intended benefits of the
reservation reach to the really deserving among the
G
backward classes. It was further stated that this in itself
would not suffice and should be supplemented by
categorization of the backward classes in various groups
depending upon their degree of backwardness and
apportioning of appropriate percentage of reservation to
H
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS 271
[DR. ARIJIT PASAYAT, J.]

~ . each group. It was also brought to the committee that A
similar experiments in States of Andhra Pradesh, Kerala,
Karnataka, Tamil Nadu, Maharashtra etc. have, in fact,
stood the test of time and yielded the desired results."
71. One of the petitioners "Youth for Equality" had filed a
representation before the Parliamentary Committee giving B
certain :mportant data. Relevant portions read as follows:
.... ' "TOP WITHOUT BASE
The condition of infrastructure and staff at the primary and
secondary level is of some concern and the government- c
especially the Ministry for Human Resource and
Development which has proposed increased reservations,
should work towards improvement in this area for "Real"
affirmative action. According to the National Institute of
Educational Planning and Administration (in 2003) the state D
of affairs at the primary level was as under:-
- ,.
{i) In 62 996 schools in country do not have school
building and are operating in tents or under the trees.
{ii) In 70,739 Primary Schools - No class room. E
{iii) In 95,003 primary Schools - Single Class room.
{iv) In 8,269 Primary Schools - No teacher
{v) In 1.15,267 Primary schools -Single teacher
.., F
• {vi) In more than 60.000 schools the pupil: Teacher ratio
is greater than 100 :1 while the acceptable ratio is less
than 40:1.
{vii) In 84,848 schools - No black board
G
{viii) In More than 1 00 000 Schools - No electricity.
\1
... t Apart from the above, according to the NCERT {In 1998),
Only 34.6% of Govt. Schools had safe Drinking water,
13.2% had urinal and 4.9% had urinals for girls and only
6.0% had a lavatory. While the government promises a H
~ ,
272 SUPREME COURT REPORTS [2008] 4 S.C.R.

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

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

2004-2005 3.5% r ...

72. The National Commission for Backward Classes Act,
c 1993 (in short 'Backward Classes Act') was accordingly
enacted. Few provisions of this Act need to be noted.
73. Section 2 (c) defines lists as follows:
"Lists means lists prepared by the Government of India
D from time to time for purposes of making provisions for
the reservation of appointments or posts in favour of .....__
backward classes of citizens which, in the opinion of that
Government, are not adequately represented in the
services under the Government of India and any local or
E other authority within the territory of India or under the control
of the Government of India".
74. Important provisions are Sections 9 and 10 which read
as follows:

F "9. Functions of the Commission (1) The Commission ,.
shall examine requests for inclusion of any class of citizens "'
as a backward class in such lists and hear complaints of
over-inclusion or under inclusion of any backward class in
such lists and tender such advice to the Central Government
G as it deems appropriate.
(2) The advice of the Commission shall ordinarily bE!
binding upon the Central Government.
p
~--
10. Powers of the Commission- The Commission shall,
while performing its functions under sub-section (1) of
H
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS 273
[DR. ARIJIT PASAYAT; J.]

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

(d) requisitioning any public record or copy thereof from c
any court of office;
(e) issuing commissions for the examination of witnesses
and documents; and
(f) any other matter which may be prescribed."
D
75. A periodic revision of the lists by the Central
Government is a statutory mandate. Petitioners have highlighted
that there is no exclusion and on the other hand there has been
inclusion. On the question of castes enumeration it is
emphasized that 1931 Census was not the basis for E
identification of other backward classes. In fact the central OBC
List is not drawn up on the basis of 1931 Census. Each State
has different modalities for identification. Only for the purpose
of quantum the population provides a foundation.
76. It needs no emphasis that if ultimately and indisputably F
the constitutional goal is the casteless and classless society,
there has to be more effective implementation of the Backward
Classes Act. The exercise required to be undertaken under
Section 11 of the said Act is not intended to be a routine exercise
and also not an exercise in futility. It has to be not only effective G
but also result oriented . The petitioners have highlighted the lack
of seriousness of the Government in carrying out the exercise.
Voluminous datas have been brought on record in this regard.
With reference to the reports of the Commission, learned
counsel for the respondents on the other hand have stressed H
~ J
274 SUPREME COURT REPORTS [2008] 4 S.C.R.

A on the fact that the Commission has been working with all
>- 1
sincerity and with the object of effectively implementing the
Backward Classes Act. One thing needs to be noted here.
Concrete data about the number of backward classes in the
country does not appear to be available. The survey conducted
B by the National Sample Survey reveals that the percentage is
not 52% as is highlighted by the respondents.
77. Section 2(g) of the Act is relevant in this regard. It reads
as follows: ..
c "Other Backward Classes" means the class or classes of
citizens who are socially and educationally backward, and
are so determined by the Central Government."
78. At this juncture, it is to be noted that the Backward
Classes Act in order to be wholly functional mandates
D determination by the Central Government of the backward
classes. for whom the Statute is intended. Undisputedly, such
determ'ination has not been done. The plea is that for more than
half a century enough attention has not been given for the benefit
of the other backward classes in the matter of admissions to
E higher educational institutions. That cannot be a ground to act
with hurry and with un-determined datas. It may be as rightly
contended by learned counsel for the respondents that the
percentage can certainly be not less than 27%. But that is no
answer to the important question as to the identity test. In the
F background loom the socially and economically backward class
of citizens. Poverty knows no caste. Poor has no caste. It is an ,.,..
unfortunate class. It is a matter of common knowledge that the
institution of caste is a peculiarity of Indian institution when there
is considerable controversy amongst the scholars as to how
the caste system originated in this country. Originally, there were
G
four main castes known as Vamas . But gradually castes and
sub-castes multiplied as the social fabric expanded with the
absorption of different groups of people who belong to various ~
cults and professing different religious faiths. The caste system
in its earlier stage was quite elastic but in course of time it
H
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS 275
[DR ARIJIT PASAYAT, J.]

t , gradually hardened into a rigid framework based upon heredity. A
The inevitable resuit was social inequality. At some point of time
occupation was the background for determination of castes.
May be, at some point of time it depended on the income of the
mdividual. But it appears to have taken disastrous turn with
difference of status of various castes. But passage of time shows B
that the occupational label has lost much of its significance. But
at the same time, the poor and down trodden who belong to the
. .. caste of their own were the founders of poor, In Indra Sawhr.ey
No.1 this factor was noticed.
79. It is said that one must take life in ones stride, let today c
embrace the past wtth remembrance and the future with long mg.
80. Don't look for the path far away, the path exists under
your feet.
81. What is past and what cannot be prevented should not D
~.i.
be grieved for.
82. With reference to the Office Memorandum which
provides for preference in favour of "poorer sections· over other
members of the backward c!asses, the expression was held to
be relatable to those who are socially and economically more E
backward. The use of the word 'poorer' in the context was held
to be a measure of the social backwardness. It is therefore
unmistakenly recognized that economic backwardness is a
factor which can never be lost sight of. There are or.ly two
""!
. families in the world; the haves and the have nots said lvHquel F
De Cervantes Don Qutxote de ta Mancha. Tolstoy has
emphatically said "We will do anything for the poor man anything
but get of his back" (quoted in Huntington Philanthrophy and
Morality).
G
83. William Cobbett had said 'to be poor and independent
is very nearly an 1mpossibi!ity. (See His book 'Advise to Young
... ~
Men} We cannot turn Nelson's eye to the poor, those covered
by all encompassing expression "economically backward
classes".
H
~ I
276 SUPREME COURT REPORTS (2008] 4 S.C.R.

A 84. Should this class of people be kept out of the
'" f
mainstream of governmental priorities and policies because
they belong to a particular caste? As noted above, the poor
have no caste. A person belonging to a higher caste should not
be made to suffer for what his forefathers had done several
B generations back.
85. Franklin D Roosevelt in a speech in 1940 had said "It
is an unfortunate human failing that a full pocket book often .. ...
groans more loudly than an empty stomach". The haves and the
have nots have to co-exist. If the creamy layer has to be excluded
c the economically backward classes have to be included. That
would be social ~a lancing and that would be giving true meaning
of the objectives of the Constitution. Social empowerment
cannot be and is certainly not a measure for only socially and
educationally backward classes. It also has to be for the socially
D and economically backward classes. Unless this balance, which
is very delicate, is maintained the system inevitably will develop _..._
a crack and this crack may after a certain point of time be difficult
to be joined. Instead of lightening the society from castes or
classes it will be over burdened and a point of time may come
E when we shall not be able to bear the burden any further. Timely
steps in this regard will save the Indian society and democracy
from a catastrophe of collapse because of something which
the Constitution wants to obliterate.
86. On the question of time period for the reservation, it is
F submitted that length of the leap to be provided depends upon ,.
the gap to be filled. It is fairly accepted by learned counsel for "'
the respondents that as and when castes reach a higher level it
is to be excluded from the zone of consideration. It is further
submitted that traditional occupation is being pursued by
G persons belonging to some castes and the system still subsists
and has not broken down. In the absence of alternative
occupation which may not be lucrative, the persons who used 1"'
to previously carry on the traditional occupation find it difficult to
take up any other occupation.
H
~ ~
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 277
[DR. ARIJIT PASAYAT, J.]

~ ~
87. It has been averred that consequent to several efforts, A
India has made enormous progress in terms of increase in
institutions, teachers and students in elementary education. But
despite atl the efforts large population of the children in the
country still remain out of school.
88. One of the contentions is that by passage of time B
prolonged reservation becomes Hlicit. In Motor General Traders
and Anr v State of Andhra Pradesh and Ors. (1984 (1) SCC
-<:) • 222) following observations were made:
"16. What may be unobjectionable as a transitional or c
temporary measure at an initial stage can still become
discriminatory and hence violative of Article 14 of the
Constitution if it is persisted in over a long period without
any Justification. The trend of decisions of this Court on
the above question may be traced thus. In Bhaiyalal Shukla
D
v. State of Madhya Pradesh [1962] Supp. 2 S.C.R. 257
. ).
one of the contentions urged was that the levy of sales tax
in the area which was formerly known as Vindhya Pradesh
(a Part 'C' State) on building materials used in a works
contract was discriminatory after the merger of that area
in the new State of Madhya Pradesh which was formed on E
November 1, 1956 under the States Reorganisation Act,
1956 as the sale of building materials in a works contract
was not subject to any levy of sales tax in another part of
the same new State namely the area which was formerly
part of the area known as State of Madhya Pradesh (the F
"(
. Central Provinces and Berar area). That contention was
rejected by this Court with the following observations at
pages 274-275 :
The laws in different portions of the new State of
G
Madhya Pradesh were enacted by different
Legislatures, and under Section 119 of the States
~ Reorganisation Act all laws inforce are to continue
' ._..,.
until repealed or altered by the appropriate
Legislature. We have already held that the sales tax
H
~ )
278 SUPREME COURT REPORTS [2008] 4 S.C.R.

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

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

of Rajasthan (Civil Appeal No. 327of1956 decided
c on November 2, 1960) and again in The State of
Madhya Pradesh v. The Gwalior Sugar Co. Ltd. (Civil
Appeals Nos. 98 and 99 of 1957 decided on
November 30, 1960). The latter case is important,
because the sugarcane cess levied in the former
Gwalior State but not in the rest of Madhya Bharat of
D
which it formed a part, was challenged on the same
ground as here, but was upheld as not affected by ....__
Article14. We, therefore, reject this argument.
89. In N.M. Thomas's case (supra) the parameters of
E various clauses of Article 16 were highlighted as follows:
~

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

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

Article 16(4) removes any doubt in this respect. A
xx xx xx
44. Our Constitution aims at equality of status and
opportunity for all citizens including those who are socially,
economically and educationally backward. The claims of B
members of backward classes require adequate
representation in legislative and executive bodies. If
members of Scheduled Castes and Tribes, who are said
by this Court to be backward classes, can maintain
minimum necessary requirement of administrative c
efficiency, not only representation but also preference may
be given to them to enforce equality and to eliminate
inequality. Articles 15(4) and 16(4) bring out the position
of backward classes to merit equality. Special provisions
are made for the advancement of backward classes and
0
reservations of appointments and posts for them to secure
adequate representation. These provisions will bring out
the content of equality guaranteed by Articles 14, 15(1)
and 16( 1). The basic concept of equality is equality of
opportunity for appointment. Preferential treatment for
members of backward classes with due regard to E
administrative efficiency alone can mean equality of
opportunity for all citizens. Equality under Article 16 could
not have a different content from equality under Article 14.
Equality of opportunity for unequals can only mean
aggravation of inequality. Equality of opportunity admits F
discrimination with reason and prohibits discrimination
without reason. Discrimination with reasons means rational
classification for differential treatment having nexus to the
Constitutionally permissible objf;!ct. Preferential
representation for the backward classes in services with G
due regard to administrative efficiency is permissible
object and backward classes are a rational classification
recognised by our Constitution.· Therefore, differential
·treatment in standards of selection is within the concept of
~uality H
\ ~
280 SUPREME COURT REPORTS [2008] 4 S.C.R.

A )()( )()( xx • 1
56. If we are all to be treated in the same manner, this
must carry with it the important requirement that none of
us should be better or worse in upbringing, education,
than any one else which is an unattainable ideal for human
B · beings of anything like the sort we now see. Some people
maintain that the concept of equality of opportunity is an
unsatisfactory concept For, a complete formulation of it
renders it incompatible with any form of human society.
Take for instance, the case of equality of opportunity for
c education. This equality cannot start in schools and hence
requires uniform treatment in families which is an evident
impossibility. To remedy this, all children might be brought
up in state nurseries, but, to achieve the purpose, the
nurseries would have to be run on vigorously uniform lines.
D Could we guarantee equality of opportunity to the young
even in those circumstances? The idea is well expressed
by Laski:
'Equality m·eans, in the second place, that adequate
opportunities are laid open to all. By adequate
E opportunities we cannot imply equal opportl!nities in
a sense that implies identity of original chance. The
native endowments of men are by no means equal.
Children who are brought up in an atmosphere where
things of the mind are accounted highly are bound to
F start the race of life with advantages no legislation ..
can secure. Parental character will inevitably affect
profoundly the equality of the children whom it
touches. So long, therefore, as the family endures -
and there seems little reason to anticipate or to desire
G its disappearance - the varying environments it will
create make the notion of equal opportunities a
fantastic one'.
)()( xx )()(

f-: 60. Bernard A.O. Williams, in his article 'The Idea of
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 281
[DR. ARIJIT PASAYAT, J.]
Equality" (supra) gives an illustration of the working of the A
•• principle of equality of opportunity:
'Suppose that in a certain society great prestige is
attached to membership of a warrior class, the duties
of which require great physical strength. This class
has in the past been recruited from certain wealthy 8
families only, but egalitarian reformers achieve a
change in the rules, by which warriors are recruited
from all sections of the society, on the result of a
suitable competition. The effect of this, however, is
that the wealthy families still provide virtually all the C
warriors, because the rest of the populace is so
undernourished by reason of poverty that their
physical strength is inferior to that of the wealthy and
well nourished. The reformers protest that equality of
opportunity has not really been achieved; the wealthy D
reply that in fact it has, and that the poor now have
the opportunity of becoming warriors - it is just bad
luck that their characteristics are such that they do
not pass the test- "We are not", they might say,
"excluding anyone for being poor; we exclude people E
for being weak, and it is unfortunate that those who
are poor are also weak'.
xx xx xx
67. Today, the political theory which acknowledges the F
obligation of government under Part IV of the Constitution
to provide jobs, medical care, old age pension, etc.,
extends to human rights and imposes an affirmative
obligation to promote equality and liberty. The force of the
idea of a state with obligation to help the weaker sections G
of its members seems to have increasing influence in
Constitutional law. The idea finds expression in a number
of cases in America involving social discrimination and
also in the decisions requiring the state to offset the effects
of poverty by providing counsel, transcript of appeal, expert H
282 SUPREME COURT REPORTS [2008] 4 S.C.R.

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

social, economic or otherwise, is one of the dominant
forces in Constitutional law. While special concessions
for the under-privileged have been easily permitted, they
B have not traditionally been required. Decisions in-the areas
of criminal procedure, voting rights and education in
America suggest that the traditional approach may not be
completely adequate. In these areas, the inquiry whether
equality has been achieved no longer ends with numerical
c equality; rather the equality clause has been held to require
resort to a standard of proportional equality which requires
the state, in framing legislation, to take into account the
private inequalities of wealth, of education and other
circumstances.
D xx xx xx
89. The ultimate reason for the demand of equality for the
members of backward classes is a moral perspective
which affirms the intrinsic value of all human beings and
calls for a society which provides these conditions of life
E which men need for development of their varying
capacities. It is an assertion of human equality in the sense
that it manifests an equal concern for the well being of all
men. On the one hand it involves a demand for the removal
of those obstacles and impediments which stand in the
F way of the development of human capacities, that is, it is
a call for the abolition of unjustifiable inequalities. On the
other hand, the demand itself gets its sense and moral
driving force from the recognition that "the poorest he that
is in England hath a life to live, as the greatest he".
G
90. 'Equality' and 'excellence' are two conflicting claims
difficult to be reconciled. The Constitution, in order to ensure
true equality provides for special treatment to socially and
educationally backward classes of citizens which is obviously
desirable for providing social justice, though at the cost of merit.
H
I )

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

However, the Constitution does not provide at all for 'institutional A
~ • reservation.' Therefore, it's constitutionality is to be judged on
the touchstone of Article 14. A large number of cases cropped
up in this area concerning the institutional prefere~ce for
admission into postgraduate medical education and super
specialties. The judiciary came forward and laid down detailed 8
principles covering the need of such preference and to Hmit the
extent of such reservation in view of the importance of merit in
1 the context of national interest and international importance of
""(>
universal exce!lence in super specialties.
91. lt is to be noted that the foundation for fixing 27% c
appears to be the view that 52% of the population belong to
OBC. There is no supportable data for this proposition. In fact,
different Commissions at different points of time have different
figures. It is the stand of the respondents that no Commission
has fixed the percentage below 52% and, therefore, there is D
nothing wrong in fixing the percentage at 27%. This is not the
·- . correct approach. It may be that in no case the percentage of
persons belonging to OBC is less than 27% but supposing in a
given case considering the fact that the actual percentage is
40% a figure less than 27% should have been fixed. The E
Commission set out pursuant to the directions of this Court
seems to have somewhat acted on the petitions filed by the
people claiming exclusion or inclusion. That was not the real
purpose of this Court's decision to direct appointment of
Commission. The very purpose was to identify the classes. This F
..,.. was the exercise which was to be undertaken apart from
considering the applications for inclusion or exclusion as the
case may be. As has been conceded at the beginning of the
case affirmative action is not under challenge. Affirmative action
is nothing but a crucial component of social justice in the
G
constitutional dispensation but at the same time it has to be
kept in view that the same does not infringe the principles of
....,,. equality of which it is a part and/or unreasonably restraint or
restrict other fundamental freedoms and that it does not violate
the basic structure of the Constitution.
H
~ I

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

A 92. It needs no emphasis that Articles 15(4), 15(5) and
16(4) have to comply with the requirements of Article 14 and • •
the discipline imposed in several other provisions like Articles
15(4)(a) and 15(4)(b), though, they form a part of the equality
concept, each of which is so found in our Constitution.
B 93. It is a well settled principle in law that the Court cannot
read anything into a statutory provision which is plain and
unambiguous. A statute is an edict of the Legislature. The
language employed in a statute is the determinative factor of
legislative intent.
c
94. Words and phrases are symbols that stimulate mental
references to referents. The object of interpreting a statute is to
ascertain the intention of the Legislature enacting it. (See
Institute of Chartered Accountants of India v. Mis Price
Waterhouse and Anr. (AIR 1998 SC 74). The intention of the
0
Legislature is primarily to be gathered from the language used,
which means that attention should be paid to what has been
said as also to what has not been said. As a consequence, a
construction which requires for its support, addition or
substitution of words or which results ·in rejection of words as
E meaningless has to be avoided. As observed in Crawford v.
Spooner (1846 (6) Moore PC 1), Courts, cannot aid the
Legislatures' defective phrasing of an Act, we cannot add or
mend, and by construction make up deficiencies which are left
there. (See The State of Gujarat and Ors. v. Dilipbhai
F Nathjibhai Patel and Anr. (JT 1998 (2) SC 253). It is contrary to
all rules of construction to read words into an Act unless it is
absolutely necessary to do so. (See Stock v. Frank Jones
(Tiptan) Ltd. (1978 1 All ER 948 (HL). Rules of interpretation do
not permit Courts to do so, unless the provision as it stands is
G meaningless or of doubtful meaning. Courts are not entitled to
read words into an Act of Parliament unless clear reason for it
is to be found within the four corners of the Act itself. (Per Lord
Loreburn L.C. in Vickers Sons and Maxim Ltd. v. Evans (1910)
AC 445 (HL), quoted in Jamma Masjid, Mercara v.
H Kodimaniandra Deviah and Ors.(AIR 1962 SC 847).
~ l
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 285
[DR. ARIJIT PASAYAT, J.]

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

- ;.
97. While interpreting a provision the Court only interprets
the law and cannot legislate it. If a provision of law is misused
and subjected to the abuse of process of law, 1t is for the
legislature to amend, modify or repeal it, if deemed necessary.
(See Commissioner of Sa/es Tax, MP v Popular Trading E
Company, Ujjain (2000 (5) SCC 511). The legislative casus
omissus cannot be supplied by judicial interpretative process.
98. Two principles of construction - one relating to casus
omissus and the other in regard to reading the statute as a whole F
4
,, - appear to be well settled. Under the first principle a casus
omissus cannot be supplied by the Court except in the case of
clear necessity and when reason for it is found in the four corners
of the statute itself but at the same time a c~sus omlssus should
not be readily inferred and for that purpose all the parts of a
G
statute or section must be construed together and every clause
of a section should be construed with reference to the context
and other clauses thereof so that the construction to be put on a
.... " particular provision makes a consistent enactment of the whole
statute. This would be more so if literal construction of a particular
H
~ I
286 SUPREME COURT REPORTS [2008) 4 S.C.R.

A clause leads to manifestly absurd or anomalous results which
could not have been intended by the Legislature. "An intention •
to produce an unreasonable result", said Danackwerts, L.J. in '
Artemiou v. Procopiou (1966 1 QB 878), "is not to be imputed
to a statute ifthere is some other construction available". Where
B to apply words literally would "defeat the obvious intention of
the legislature and produce a wholly unreasonable result" we
must "do some violence to the words" and so achieve that
obvious intention and produce a rational construction. (Per Lord .. ..
Reid in Luke v. /RC (1963 AC 557) where at p. 577 he also
c observed: "this is not a new problem, though our standard of
drafting is such that it rarely emerges".
99. It is then true that, "when the words of a law extend not
to an inconvenience rarely happening, but due to those which
often happen, it is good reason not to strain the words further
D than they reach, by saying it is casus omissus, and that the law
intended quae frequentius accidunt." "But," on the other hand,
"it is no reason, when the words of a law do enough extend to J., .,
an inconvenience seldom happening, that they should not extend
to it as well as if it happened more frequently, because it happens
E but seldom" (See Fenton v. Hampton (1858) XI Moore, P.C.
347). A casus omissus ought not to be created by interpretation,
save in some case of strong necessity. Where, however, a casus
omissus does really occur, either through the inadvertence of
the legislature, or on the principle quod semel aut bis existit
F praeterunt /eg1slatores (legislators says pass over that which
happens only once or twice), the rule is that the particular case.
thus left unprovided for, must be disposed of according to the
. ~

law as it existed before such statute - Casus omissus et oblivioni
datus dispositioni communis juris relinquitur; "a casus omissus,"
observed Buller, J. in Jones v. Smart (1 T.R. 52), "can in no
G
case be supplied by a court of law, for that would be to make
laws"
100. The golden rule for construing wills, statutes, and, in ......
fact, all written instruments has been thus stated: 'The
H grammatical and ordinary sense of the words is to be adhered
' ~
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 287
[DR. ARIJIT PASAYAT, J.]

to unless that would lead to some absurdity or some repugnance A
f> ' or inconsistency with the rest of the instrument, in which case
the grammatical and ordinary sense of the words may be
modified, so as to avoid that absurdity and inconsistency, but
no further" (See Grey v. Pearson (1857 (6) H.L. Cas. 61). The
latter part of this "golden rule" must, however, be applied with 8
much caution. "if," remarked Jervis, C.J., "the precise words
used are plain and unambiguous in our judgment, we are bound
•p
to construe them in their ordinary sense, even though it lead, in
our view of the case, to an absurdity or manifest injustice. Words
may be modified or varied where their import is doubtful or c
obscure. But we assume the functions of legislators when we
depart from the ordinary meaning of the precise words used,
merely because we see, or fancy we see, an absurdity or
manifest injustice from an adherence to their literal meaning"
(See Abley v. Dale 11, C.B. 378).
D
101. Classifications on the basis of castes in the long run
..... has tendency of inherently becoming pernicious. Therefore, the
test of reasonableness has to apply. When the object is
elimination of castes and not perpetuation to achieve the goal
of casteless society and a society free from discrimination of E
castes judicial review within the permissible limits is not ruled
out. But at the same time compelling State interest can be
considered while assessing backwardness. The impact of
poverty on backwardness cannot be lost sight of. Economic
liberation and freedom are also important. In Nagaraj's case F
.. ~
(supra) it was inter alia observed as follows:
"44. The above three concepts' are independent variable
concepts. The application of these concepts in public
employment depends upon quantifiable data in each case.
Equality in law is different from equality in fact. When we G
construe Article 16(4), it is equality in fact which plays the
.... dominant role. Backward Classes seek justice. General
class in public employment seeks equity. The difficulty
comes in when the third variable comes in, namely,
efficiency in service. In the issue of reservation, we are H
~ I
288 SUPREME COURT REPORTS [2008] 4 S.C.R.

A being asked to find a stable equilibrium between justice
to the backwards, equity for the forwards and efficiency
for the entire system. Equity and justice in the above context
are hard concepts. However, if you add efficiency to equity
and justice, the problem arises in the context of the
B reservation. This problem has to be examined, therefore,
on the facts of each case. Therefore, Article 16(4) has to
be construed in the light of Article 335 of the Constitution.
Inadequacy in representation and backwardness of the
Scheduled Castes and Scheduled Tribes are
c circumstances which enable the State Government to act
under Article 16(4) of the Constitution. However, as held
by this Court the limitations on the discretion of the
Government in the matter of reservation under Article 16(4)
as well as Article 16(4-A) come in the form of Article 335
of the Constitution.
D
xx xx xx
46. The point which we are emphasising is that ultimately
the present controversy is regarding the exercise of the
power by the State Government depending upon the fact
E situation in each case. Therefore, "vesting of the power"
by an enabling provision may be constitutionally valid and
yet "exercise of the power" by the State in a given case
may be arbitrary, particularly, if the State fails to identify
and measure backwardness and inadequacy keeping in
F mind the efficiency of service as required under Article
335.
xx xx xx
48. It is the equality "in fact" which has to be decided
G looking at the ground reality. Balancing comes in where
the question concerns the extent of reservation. If the extent
of reservation goes beyond cut-off point then it results in
reverse discrimination. Anti-discrimination legislation has
a tendency of pushing towards de facto reservation.
H Therefore, a numerical benchmark is the surest immunity
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS 289
[DR. ARIJIT PASAYAT, J]

against charges of discrimination. A

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

·- , merit (Article 335)/efficiency are variables which can oniy
be identified and measured by the State. Therefore, in
each case, a contextual case has to be made out
depending upon different circumstances which may exist
State-wise. L
xx xx xx
102. In the matter of application of the principle of basic
structure, tw~n tests have to be satisfied, namely, the "width
test" and the test of "identity". As stated herefnabove, the F
concept of the "catch-up" rule and "consequential seniority"
are not constitutional requirements. They are not implicit
in clauses (1) and (4) of Article 16. They are not
constitutional limitations. They are cor.cepts derived from
service jurisprudence. They are not constitutional G
pnnciples. They are not axioms like, secularism.
federalism, etc. Obliteration of these concepts or insert:on
of these concepts does not change the equality code
indicated by Articles 14, 15 and 16 of the Constitution
Clause ( 1) of Article 16 cannot prevent the State from
H
290 SUPREME COURT REPORTS [2008] 4 S.C.R.

A taking cognizance of the compelling interests of Backward
Classes in the society. Clauses (1) and (4) of Article 16
are restatements of the principle of equality under Article
14. Clause (4) of Article 16 refers to affirmative action by
way of reservation. Clause (4) of Article 16, however, states
B that the appropriate Government is free to provide for
reservation in cases where if is satisfied on the basis of
quantifiable data that Backward Class is inadequately
represented in the services. Therefore, in every case where
the State decides to provide for reservation there must
c exist two circumstances, namely, "backwardness" and
"inadequacy of representation". As stated above, equity,
justice and efficiency are variable factors. These factors
are context-specific. There is no fixed yardstick to identify
/ and measure these three factor's, it will depend on the
facts and circumstances of each case. These are the
D
limitations on the mode of the exercise of power by the
State. None of these limitations have been removed by
the impugned amendments. If the State concerned fails to
identify and measure backwardness, inadequacy and
overall administrative efficiency then in that event the
E provision for reservation would be invalid. These
amendments do not alter the structure of Articles 14, 15
and 16 (equity code). The parameters mentioned in Article
16(4) are retained. Clause (4-A) is derived from clause
(4) of Article 16. Clause (4-A) is confined to SCs and STs
F alone. Therefore, the present case does not change the •
identity of the Constitution. The word "amendment"
connotes change. The question is-whether the impugned
amendments discard the original Constitution. It was
vehemently urged on behalf of the petitioners that the
G Statement of Objects and Reasons indicates that the
impugned amendments have been promulgated by
Parliament to overrule the decisions of this Court. We do
not find any merit in this argument. Under Article 141 of
the Constitution the pronouncement of this Court is the
law of the land. The judgments of this Court in Virpal Singh,
>

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

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

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

xx xx xx
107. It is important to bear in mind the nature of
constitutional amendments. They are curative by nature
Article 16(4) provides for reservation for Bacl<ward C
Classes in cases of inadequate representation m public
employment. Article 16(4) is enacted as a remedy for the
past historical discriminations against a sodal ctass. The
object in enacting the enabling provisions like Articles
16(4), 16(4-A) and 16(4-8) is that the State is empowered H
292 SUPREME COURT REPORTS [2008) 4 S.C.R.

A to identify and recognise the compelling interests. If the
.State has quantifiable data to show backwardness and
inadequacy then the State can make reservations in
.-
promotions keeping in mind maintenance of efficiency
which is held to be a constitutional limitation on the
B discretion of the State in making reservation as indicated
by Article 335. As stated above, the concepts of efficiency,
backwardness, inadequacy of representation are required
to be identified and measured. That exercise depends on
availability of data. That exercise depends on numerous
c factors. It is for this reason that enabling provisions are
required to be made because each competing claim
seeks to achieve certain goals. How best one should
optimise these conflicting claims can only be done by the
administration in the context of local prevailing conditions
in public employment. This is amply demonstrated by the
D
various decisions of this Court discussed hereinabove.
Therefore, there is a basic difference between "equality in
law" and "equality in fact" (see Affirmative Action by William
Darity). If Articles 16(4-A) and 16(4-B) flow from Article
16(4) and if Article 16(4) is an enabling provision then
E • Articles 16(4-A) and 16(4-B) are also enabling provisions.
As long as the boundaries mentioned in Article 16(4),
namely, backwardness, inadequacy and efficiency of
administration are retained in Articles 16(4-A) and 16(4-
8) as controlling factors, we cannot attribute constitutional
F invalidity to these enabling provisions. However, when the
State fails to identify and implement the controlling factors
then excessiveness comes in, which is to be decided on
the facts of each case. In a given case, where
excessiveness results in reverse discrimination, this Court
G has to examine individual cases and decide the matter in
accordance with law. This is the theory of "guided power''.
We may once again repeat that equality is not violated by
1' ...
mere conferment of power but it is breached by arbitrary
exercise of the power conferred". ·· •
H
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 293
[DR. ARIJIT PASAYAT, J.]
102. In Minerva Mills Ltd. v. Union of India (1980) 3 SCC A
p • 625) it was observed as follows:
"57. This is not mere semantics. The edifice of our
Constitution is built upon the concepts crystallised in the
preamble. We resolved to constitute ourselves into a
Socialist State which carried with it the obligation to secure B
to. our people justice - social, economic and political.
We, therefore, put Part IV into our Constitution containing
,..., directive principles of State policy which specify the
socialistic goal to be achieved. We promised to our people
a democratic polity which carries with it the obligation of c
securing to the people liberty of thought, expression, belief,
faith and worship; equality of status and of opportunity and
the assurance that the dignity of the individual will at all
costs be preserved. We, therefore, put Part Ill in our
Constitution conferring those rights on the people. Those D
rights are not an end in themselves but are the means to
}- an end. The end is specified in Part IV. Therefore, the
rights conferred by Part Ill are subject to reasonable
restrictions and the Constitution provides that enforcement
of some of them may, in stated uncommon circumstances, E
be suspended. But just as the rights conferred by Part Ill
would be without a radar and a compass if they were not
geared to an ideal, in the same m~nner the attainment of
the ideals set out in Part IV would become a pretence for
tyranny if the price to be paid for achieving that ideal is F
.. human freedoms. One of the faiths of our founding fathers
was the purity of means. Indeed, under our law, even a
dacoit who has committed a murder cannot be put to death
in the exercise of right of self-defence after he has made
good his escape. So great is the insistence of civilised
G
laws on the purity of means. The goals set out in Part IV
have, therefore, to be achieved without the abrogation of
""> ., the means provided for by Part Ill. It is in this sense that
Parts Ill and IV together constitute the core of our
Constitution and, combine to form its conscience. Anything
H
294 SUPREME COURT REPORTS [2008] 4 S.C.R.

A, that destroys the balance between the two parts will ipso
•
facto destroy an essential element of the basic structure
of our Constitution".
'
103. The view was affirmed in TM.A. Pai Foundation and
Ors. v. State of Karnataka and Ors. (2002 (8) SCC 481)
B
104. It has been highlighted that Articles 15(4) and 15(5)
are irreconcilable. It is pointed out that Article 30 is not intended
to pamper any class of people, but is intended to assure
....
minorities regarding the right to establish. In that sense, Article
c 19(1 )(g) is applicable. The said right is an inalienable and
sacrosanct right. According to Mr. Venugopal, Article 15(5)
carved out an area from Article 15(4). Article 29(2) has to be
read into Article 15(5) as Articles 15(4) and 15(5) operated side
by side. As a result of Article 15(5) by special provision minorities
unaided rights are excluded. Article 30 does not relate to any
D
special right for protection against majority and it cannot be
termed to be any higher right and, therefore, Article 19(1 )(g)
restriction is not there. The object is not to create inequality. "
105. It is pointed out that both Articles 15(4) and 15(5)
E begin with non obstante provision .. Article 15(5) is a later
introduction. It is stated that Article 15(1) has to prevail over
Article 15(4) and the right given to certain class of people in
Article 15(4) gets eliminated because of Article 15(5).
106. Provisions of the Constitution have to be read
F harmoniously and no part can be treated to be redundant. In our ~

considered view both the provisions operate in different areas
though there may be some amount of overlapping but that does
not iii any way lead to the conclusion that Article 15(5) takes
away what is provide9 in Article 15(4).
G
107. A construction which reduces the statute to a futility
has to be avoided. A statute or any enacting provision therein
must be so construed as to make it effective and operative on
the principle expressed in the maxim ut res magis valeat quam
~·
pereat i.e. a liberal construction should be put upon written
H
~ ~
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 295
[DR. ARIJIT PASAYAT, J.]

instruments, so as to uphold them, if possible, and carry into A
effect the intention of the parties. (See Broom's Legal Maxims
(10th Edn.), p. 361, Craies on Statutes (7th Edn.), p. 95and
Maxwell on Statutes (11th Edn.).
108. A statute is designed to be workable and the
interpretation thereof by a court should be to secure that object B
unless crucial omission or clear direction makes that end
unattainable. (See Whitneyv. IRC (1926AC 37) at p. 52 referred
1
to in CIT v. S. Teja Singh (AIR 1959 SC 352) and Gursahai
""' Saigal v. CIT (AIR 1963 SC 1062).
c
109. The courts will have to reject that construction which
will defeat the plain intention of the legislature even though there
may be some inexactitude in the language used. (See Salmon
v. Duncombe (1886) 11AC 627 at p.634, Curtisv. Stovin (1889)
22 QBD 513) referred to in S. Teja Singh case.)
D
110. If the choice is between two interpretations, the
f narrower of which would fail to achieve the manifest purpose of
the legislation, we should avoid a construction which would
reduce the legislation to futility, and should rather accept the
bolder construction, based on the view that Parliament would E
legislate only for the purpose of bringing about an effective result.
(See Nokes v. Doncaster Amalgamated Collieries (1940 (3)
All ER 549) referred to in Pye v. Minister for Lands for NSW
(1954) 3All ER 514. The principles indicated in the said cases
were r~iterated by this Court in Mohan Kumar Singhania v. F
~ Union of India (1992 Supp (1) SCC 594).
111. The statute must be read as a whole and one provision
of the Act should be construed with reference to other provisions
in the same Act so as to make a consistent enactment of the
whole statute. G
112. The court must ascertain the intention of the legislature
.. ' by directing its attention not merely to the clauses to be
construed but to the entire statute; it must compare the clause
with other parts of the law and the setting in which the clause to
H
296 SUPREME COURT REPORTS [2008) 4 S.C.R.

A be interpreted occurs. (See R. S. Raghunath v. State of
Kamataka (1992) 1sec335) Such a construction has the merit .-
of avoiding any inconsistency or repugnancy either within a
section or between two different sections or provisions of the
same statute. It is the duty of the court to avoid a head-on clash
B between two sections of the same Act. (See Sultana Begum v.
Prem Chand Jain 1997 (1) SCC 373.)
113. Whenever it is possible to do so, it must be done to
construe the provisions which appear to conflict so that they
harmonise. It should not be lightly assumed that Parliament had
C given with one hand what it took away with the other.
114. The provisions of one section of the statute cannot
be used to defeat those of another unless it is impossible to
effect reconciliation between them. Thus a construction that
reduces one of the provisions to a "useless lumber" or "dead
D letter" is not a harmonized construction. To harmonise is not to
destroy.
115. The Constitution of India is not intended to be static.
It is by its very nature dynamic. It is a living and organic thing. It
E is an instrument which has greatest value to be construed. "Ut
Res Va/eat Potius Quam Pereat" (the construction should be
preferred which makes the machinery workable). Our
Constitution reflects the beliefs and political aspirations of those
who had framed it. It is therefore desirable that while considering
F the question as to whether 27% fixed for the other backward
classes to be maintained without definite data the rights of those Y

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

116. In Indra Sawhney's No. 1 the desirability of excluding
H some posts from the zone of reservation was highlighted. It was
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 297
[DR ARIJIT PASAYAT, J.]

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

' . application, provision for reservation would not be
advisable.
xx xx xx
840. We may point out that the services/posts enumerated E
above. on account of their nature and duties attached, are
such as call for highest level of intelligence, skill and
excellence. Some of them are second level and third level
posts in the ascending order. Hence, they form a category
apart. Reservation therein may not be consistent with F
., "efficiency of administration" contemplated by Article 335 .
"'
xx xx xx
859. "We may summarise our answers to the various
questions dea(t with and answered hereinabove;
G
(1) (a) a is not necessary that the 'provision' under Article
16(4) should necessarily be made by the Parliament/
::::0.
• Legislature. Such a provision can be made by the
Executive also. Local bodies, statutory Corporations
and other instrumentalities of the State falling under H
~ I
298 SUPREME COURT REPORTS [2008] 4 S.C.R. ,.

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

'
(b) Article 16(4) is exhaustive of the subject of
c reservation in favour of backward class of citizens,
as explained in this judgment.
(c) Reservations can also be provided under clause
(1) of Article 16. It is not confined to extending of
preferences, concessions or exemptions alone.
D
These reservations, if any, made under clause (1)
have to be so adjusted and implemented as not to
exceed the level of representation prescribed for
'backward class of citizens' - as explained in this
judgment.
E
(3) (a) A caste can be and quite often is a social class
in India. If it is backward socially, it would be a
backward class for the purposes of Article 16(4).
Among non-Hindus, there are several occupational
F groups, sets and denominations, which for historical
reasons are socially backward. They too represent .,
backward, social collectivities for the purposes of
Article 16(4).
(b) Neither the Constitution nor the law prescribes
G · the procedure or method of identification of backward
classes. Nor is it possible or advisable for the court
to lay down any such procedure or method. It must
T ,0:::
be left to the authority appointed to identify. It can
adopt such method/procedure as it thinks convenient
H and so long as its survey covers the entire populace,
ASHOKA KliMAR THAKUR v. UNION OF INDIA & ORS. 299
[DR. ARIJIT PASAYAT, J.]
no objection can be taken to it. Identification of the A
backward classes can certainly be done with
reference to castes among, and alongwith, other
occupational groups, classes and sections of people.
One can start the process either with occupational
groups or with castes or with some other groups. B
Thus one can start the process with castes, wherever
they are found, apply the criteria (evolved for
determining backwardness) and find out whether it
satisfy the criteria. If it does-what emerges is a
"backward class of citizens" within the meaning of c
and for the purposes of Article 16(4). Similar process
can be adopted in the case of other occupational
groups, communities and classes so as to cover the
entire populace. The central idea and overall objective
should be to consider all available groups, sections ·
0
and classes in society Since caste represents an
existing, identifiable social group/class
encompassing an overwhelming minority of the
country's population, one can well begin with it and
then go to other groups, sections and classes.
E
(c) It is not correct to say that the backward class of
citizens contemplated in Article 16(4) is the same as
the socially and educationally backward classes
referred to in Article 15(4). It is much wider. The
accent in Article 16(4) is on social backwardness. F
Of course, social, educational and economic
backwardness are closely inter-twined in the Indian
context.
(d) 'Creamy layer' can be. and must be excluded.
G
(e) It is not necessary for a class to be designated as
a backward class that it is situated similarly to the
.. ' Scheduled Castes/Scheduled Tribes .
(f) The adequacy of representation of a particular
class in the services under the State is a matter within H
~ I
300 SUPREME COURT REPORTS [2008] 4 S.C.R.

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

c on the basis of occupation cum income, without
reference to caste, if it is so advised.
(5) There is no constitutional bar to classify the backward
classes of citizens into backward and more.
backward categories.
D
(6) (a) and (b) The reservations contemplated in clause
(4) of Article 16 should not exceed 50%. While 50%
shall be the rule, it is necessary not to put out of
... -
consideration certain extra ordinary situation inherent
in the great diversity of this country and the people.
E
117. In Vasanth Kumar's case (supra) at para 2(4), it was
observed as follows:
"2(4). The policy of reservations in employment, education
and legislative institutions should be reviewed every five
F :
years or so. That will at once afford an opportunity (i) to the r
State to rectify distortions arising out of particular facets ,.
of the reservation policy and (ii) to the people, both
backward and" non-backward, to ventilate their views in a
public debate on the practical impact of the policy of
G reservations."
118. In State of A.P. & Anr. v. P. Sagar (1968 (3) SCR
595) at para 15, it was observed as follows: • ..
"Article 15 guarantees by the first clause a fundamental
H right of far-rea~hing importance to the public generally.
{ ~
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 301
[DR. ARIJIT PASAYAT, J.)

Within certain defined limits an exception has been A
engrafted upon the guarantee of the freedom in cl. (1 ), but
being in the nature of an exception, the conditions which
justify departure must be strictly shown to exist. When a
dispute is raised before a Court that a particular law which
is inconsistent with the guarantee against discrimination B
is valid on the plea that it is permitted under clause (4) of
Art. 15 the assertion by the State that the officers of the
State had taken into consideration the criteria which had
i
been adopted by the Courts for determining who the
sociaUy and educationally backward classes of the Society c
are, or that the authorities had acted in good faith in
determining the socially and educationally backward
classes of citizens, would not be sufficient to sustain the
validity of the claim. The Courts of the country are invested
with the power to determine the validity of the law which
D
infringes the fundamental rights of citizens and others and
when a question arises whether a law which prima facie
-
- .' infringes a guaranteed fundamental right is within an
exception, the validity of that law has to be determined by
the Courts on materials placed before them. By merely
asserting that the law was made after full consideration of E
the relevant evidence and criteria which have a bearing
thereon, and was within the exception, the jurisdiction of
the Courts to determine whether by making the law a
fundamental right has been infringed is not excluded."
F
, 119. Significant observations were made in Kumari K.S.
Jayasree and Anr v. The State of Kera/a and Anr (1976 (3)
sec 730 ). At para 22 it was noted as follows:
."The problem of determining who are socially and
educationally backward classes is undoubtedly not simple. G
Sociological and economic considerations come into play
in evolving proper criteria for its determination. ·This is the
... r
function of the State. The Court's jurisdiction is to decide
whether the tests applied are valid. If it appears that tests
applied are proper and valid the classification of socially H
( I
302 SUPREME COURT REPORTS [2008) 4 S.C.R.

A and educationally backward classes based on the tests
will have to be consistent with the requirements of Article
15(4). The Commission has found on applying the relevant
tests that the lower income group of the communities
named in Appendix VII I of the Report constitute the socially
B and educationally. backward classes. In dealing with the
question as to whether any class of citizens is socially
backward or not, it may not be irrelevant to consider the
caste of the said group of citizens. It is necessary to
remember that special provision is contemplated for •
classes of citizens and not for individual citizens as such,
"
c and so though the caste of the group of citizen may be
relevant, its importance should not be exaggerated. If the
classification is based solely on caste of the citizen, it
may not be logical. Social backwardness is the result of
poverty to a very large extent. Caste and poverty are both
D
relevant for determining the backwardness. But neither
caste alone nor poverty alone will be the determining tests.
When the Commission has determined a class to be _,
'
socially and educationally backward it is not on the basis
of income alone, and the determination is based on the
E relevant criteria laid down by the Court. Evidence and
material are placed before the Commission. Article 15(4)
which speaks of backwardness of classes of citizens
indicates that the accent is on classes of citizens. Article
15(4) also speaks of Scheduled Castes and Scheduled
F Tribes. Therefore, socially and educationally backward
classes of citizens in Article 15(4) cannot be equated with ,. r
castes. In R. Chitralekha and Anr. v. State of Mysore and
Ors. ( 1964 (6) SCR 368 ) this Court said that the
classification of backward classes based on economic
G conditions and occupations does not offend Article 15(4)."
120. Further, in Minor A. Peeriakaruppan, Sobha Joseph
v. State of Tamil Nadu and Ors. (1971 (1) SCC 38) at para 29 _,
it was observed as follows: '
H "Rajendran's Gase (1968 (2) SCR 786) is an authority for l"=
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 303
[DR. ARIJIT PASAYAT, J.]

the proposition that the classification of backward classes A
=.,7 on the basis of castes is within the purview of Article 15(4)
if those castes are shown to be socially and educationally
backward. No further material has been placed before us
to show that the reservation for backward classes with
which we are herein concerned is not in accordance with B
Article 15(4). There is no gainsaying the fact the there are
numerous castes in this country which are socially and
educationally backward. To ignore their existence is to
~ ignore the facts of life. Hence we are unable to uphold the
contention that impugned reservation is not in accordance c
with Article 15(4). But all the same the Government should
not proceed on the basis that once a class is considered
as a backward class it should continue to be backward
class for all times. Such an approach would defeat the
very purpose of the reservation because once a class
D
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 E
reservation. Reservation of seats should not be allowed
to become a vested interest. The fact that candidates of
backward classes have secured about 50% of the seats
in the general pool does show that the time has come for
a de novo comprehensive examination of the question. It F
.. .. must be remembered that the Government's decision in
this regard is open to judicial review."
121. It has been highlighted that the Act has been made
applicable to Central Educational Institutions established,
G
maintained or aided by the Central Government. Central
Educational Institutions have been defined in Section 2(d) as

-
.._
,
follows:
"2(d) Central Educational Institution" means-
H
~ I
304 SUPREME COURT REPORTS [2008] 4 S.C.R.

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

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

B (iii) an institution, declared as a deemed University under
Section 3 of the University Grants Commission Act,
1956 and maintained by or receiving aid from the
Central Government; r
"-=
(iv) an institution maintained by or receiving aid from the
c Central Government, whether directly or indirectly,
and affiliated to an institution referred to in clause (i)
or clause (ii), or a constituent unit of an institution
referred to in cla,use (iii);
(v) an educational institution set up by the Central
D
Government under the Societies Registration Act,
1860."
' .
122. It is pointed out that there cannot be any reservations
in respect of super specialities and institutions imparting
E education of highly complex subjects. The example of All India
Institute of Medical Sciences has been given. It has been pointed
out that its status as an institution for super speciality has been
judicially recognized. It needs to be noted that in terms of Section
'
4(b) of the Act certain educational institutions have been
F excluded from the operation of the Act.
123. The Act has been made inapplicable to them. It is to .•
be noted that in the said provision, institutions of research,
institutions of excellence, institutions of national and strategic
importance have been specified in the Schedule to the Act. The
G proviso permits the Central Government as and when
considered necessary to amend the Schedule. In other words,
on an appropriate case being presented and established before
the Central Government that the Institution is of excellence and/
'
...
or a research institute and/or an institution of national and ...
'
H strategic importance, the Central Government can amend the
ASHOKA KliMAR THAKUR v. UNION OF INDIA & ORS. 305
[DR ARIJIT PASAYAT, J.]

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

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

- constraint cannot be a ground to deny fundamental rights and
the provision for the schemes and the utilization of the funds are
also relevant factors. It appears that better coordination between
the funds provider and the utiliser is necessary. It is suggested H
306 SUPREME COURT REPORTS [2008] 4 S.C.R.

A that putting stress on cut off limit by shifting from matriculation
to Class XII level education as a benchmark of gauging
educational backwardness will be a step in the right direction.
Though as rightly contended by Mr. P.P. Rao that in several
decisions, for example, M.R. Balaji's case (supra), Ba/ram's
B case (supra) and Kumari K.S. Jayasree's case (supra) the
secondary education was taken to be the benchmark, ground
reality cannot be lost sight of that with the limited availability of
jobs and the spiraling increase in population, secondary or
matriculation examination can no longer be considered to be
c an appropriate bench mark. It has to be at the most graduation.
But the question arises whether technical education can be
included while considering educational backwardness. A
delicate balancing has to be done in this regard. While technical
education cannot be the sole criteria for gauging educational
backwardness it definitely will form part of 50 per cent norms
0
fixed by this Court. Slightly variable plus or minus would be the
appropriate standard to gauge educational backwardness. ..
126. One of the grey areas which have been highlighted
by learned counsel for the petitioners is that caste is not a
E substitute f.or class and nevertheless the two terms are not
synonyms. Much of the argument in this regard is centred round
the paragraphs 782 and 783 of Indra Sawhney No. 1 (supra). ,
The same read as under:
"782. Coming back to the question of identification, the
F fact remains that one has to begin somewhere - with
some group, class or section. There is no set or recognised
method. There is no law or other statutory instrument
prescribinQ. the methodology. The ultimate idea is to survey
the entire populace. If so, one can well begin with castes,
G which represent explicit id.entifiable social classes/
groupings, more particularly when Article 16(4) seeks to
ameliorate social backwardness. What is unconstitutional
with it, more so when caste, occupation poverty and social
-·,
backwardness are so closely intertwined in our society?
H [Individual survey is out of question, since Article 16(4)
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 307
[DR. ARIJIT PASAYAT, J.]

. speaks of class protection and not individual protection]. A
This does not mean that one can wind up the process of
identification with the castes. Besides castes (whether
found among Hindus or others) there may be other
communities, groups, classes and denominations which
may qualify as backward class of citizens. For example, B
in a particular State, Muslim community as a whole may
be found socially backward. (As a matter of fact, they are
~ so treated in the State of Karnataka as we!I as in the State
of Kerala by their respective State Governments). Similarly,
certain sections and denominations among Christians in c
Kerala who were included among backward communities
notified in the former princely State of Travancore as far
back as in 1935 may also be surveyed and so on and so
forth. Any authority entrusted with the task of identifying
backward classes may well start with the castes. It can
D
take caste '/!\, apply the criteria of backwardness evolved
._ , by it to that caste and determine whether it qualifies as a
backward class or not. If it does qualify, what emerges is
a backward class, for the purposes of clause (4) of Article
16. The concept of 'caste' in this behalf is not confined to
castes among Hindus. It extends to castes, wherever they E
='< obtain as a fact, irrespective of religious sanction for such
practice. Having exhausted the castes or simultaneously
with it, the authority may take up for consideration other
occupational groups, communities and classes. For
. example, it may take up the Muslim community (after F
excluding those sections, castes and groups, if any, who
have already been considered) and find out whether it can
be characterised as a backward class in that State or
region, as the case may be. The approach may differ from
State to State since the conditions in each State may differ G
from State to State since the conditions in each State may
-~
~
differ. Nay, even within a State, conditions may differ from
region to region. Similarly, Christians may also be
considered. If in a given place, like Kerala, there are
several denominations, sections or divisions, each of these H
308 SUPREME COURT REPORTS [2008] 4 S.C.R.

A groups may separately be considered. In this manner, all
the classes among the populace will be covered and that
is the central idea. The effort should be to consider all the
available groups, sections and classes of society in
whichever order one proceeds. Since caste represents
B an existing, identifiable, social group spread over an over
whelming majority of the country's population, we say one
may well begin with castes, if one so chooses, and then
go to other groups, sections and classes. We may say, at
this stage, that we broadly commend the approach and
c methodology adopted by the Justice 0. Chinnappa Reddy
Commission in this respect.
783. We do not mean to suggest - we may reiterate -
that the procedure indicated hereinabove is the only
procedure or method/approach to be adopted. Indeed,
D there is no such thing as a standard or model procedure/
approach. It is for the authority (appointed to identify) to
adopt such approach and procedure as it thinks
appropriate, and so long as the approach adopted by it is
fair and adequate, the court has no say in the matter. The
E only object of the discussion in the preceding para is to
emphasise that if a Commission/Authority begins its
process of identification with castes (among Hindus) and
occupational groupings among others, it cannot by that
reason alone be said to be constitutionally or legally bad.
We must also say that there is no rule of law that a test to
be applied for identifying backward classes should be ..
only one and/or uniform. In a vast country like India, it is
simi:iJy.-not practicable. If the real object is to discover and
locate backwardness, and if such backwardness is found
in a caste, it can be treated as backward; if it is found in
any other group, section or class, they too can be treated
as backward."
127. On a closer reading of the paragraphs it appears
that this Court took note of the fact that several religions do not
.---
~ have any caste. Therefore, the first sentence of para'782 lays
~ ~
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 309
[DR. ARIJIT PASAYAT, J.]

emphasis to begin somewhere - with some group, class or A
section. lt also states that there is no set or recognized method
and there is no law or other statutory :nstrument prescribing the
methodology. In this context, it has also been stated that one
can weil begin with castes which represent explicit identifiable
social classes or groupings. Therefore, the emphasis was on B
beginning with castes which represent as explicit identifiable
social classes or grouping. Again in paragraph 783, it has been
stated that in a vast country like India it is simply not practicable
.,#')
to fix the test for identifying backward classes. In that background
it was held that if the real objective is to discover and locate the c
real backwardness and if such backwardness is found in a caste
it can be considered as backwardness. Similarly if it is found in
any other group, section or class they too can be treated as
backward. The intention therefore is clear that if caste is found
to be backward it can certainly be treated as backward. To give
D
any other meaning would be adding or subtracting to what has
been specificaily stated in the decision.
,
128. It is also relevant to take note of certain earlier
decisions referred to in Indra Sawhney No. 1 case (supra) which
throw beacon light on the issue. They are as under: E
1. M.R. Balaji v. State of Mysore, 1963 Supp (1) SCR
439.
"Article 15(4) authorises the State to make a special
provision for the advancement of any socially and F
• educationally backward classes of citizens, as
distinguished from the Scheduled Castes and Scheduled
Tribes. No doubt, special provision can be made for both
categories of citizens, but in specifying the categories,
the first category is distinguished from the second. Sub-
< G
clauses (24) and (25) of Article 366 define Scheduled
Castes and Scheduled Tribes respectively, but there is no
clause defining socially and educationally backward
classes of citizens, and so, in determining the question as
to whether a particular provision has been validly made
H
( )

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

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

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

D Let us take the question of social backwardness first. By
what test should it be decided whether a particular class
is socially backward or not? The group of citizens to whom
Article 15(4) applies are described as "classes of citizens",
not as castes of citizens. A class, according to the dictionary
E meaning, shows division of society according to status,
rank or caste. In the Hindu social structure, caste
unfortunately plays an important part in determining the
status of the citizen. Though according to sociologists and
vedic scholars, the caste system may have originally begun
F on occupational or functional basis, in course of time, it
became rigid and inflexible. The history of the growth of ,.. •
caste -system shows that its original functional and
occupational basis was later over-burdened with
considerations of purity based on ritual concepts, and that
led to its ramifications which introduced inflexibility and
G
rigidity. This artificial growth inevitably tended to create a c
feeling of superiority and inferiority, and to foster narrow
caste loyalties. Therefore, in dealing with the question as •
to whether any class of citizens is socially backward or
not, it may not be irrelevant to consider the caste of the
H
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 311
[DR. ARIJIT PASAYAT. J.]

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

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

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

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

Justice Subba Rao referred to the observations in M.R.
Balaji v. State of Mysore and obser\.ed:
"15. Two principles stand out prominently from the said
B observations, namely, (i) the caste of a group of citizens
may be a relevant circumstance in ascertaining their social
backwardness; and (ii) though it is a relevant factor to
determine the social backwardness of a class of citizens,
it cannot be the dole or dominant test in that behalf. The
c observations extracted in the judgment of the High Court
appear to be in conduct with the observations of this Court.
While this Court said that caste is only a relevant
circumstance and that it cannot be the dominant test in
ascertaining the backwardness of a class of citizens, the
High Court said that it is an important basis in determining
D
the class of backward Hindus and that the Government
should have adopted caste as one of the tests. As the
said observations made by the High Court may lead to
some confusion in the mind of the authority concerned
who may be entrusted with the duty of prescribing the
E rules for ascertaining the backwardness of classes of
citizens within the meaning of Art. 15(4) of the Constitution,
we would hasten to make it clear that caste is only a relevant
circumstance in ascertaining the backwardness of a class
and there is nothing in the judgment of this Court which
F precludes the authority concerned from determining the
social backwardness of a group of citizens if it can do so
without reference to caste. While this Court has not
excluded caste from ascertaining the backwardness of a
class of citizens, it has not made it one of the compelling
G circumstances affording a basis for the ascertainment of
backwardness of a class. To put it differently, the authority
concerned may take caste into consideration in
ascertaining the backwardness of a group of persons;
but, if it does not, its order will not be bad on that account,
H if it can ascertain the backwardness of a group of persons
,..
' ASHOKA KLMAR THAKUR v. UNION OF INDIA & ORS. 313
[DR. ARIJIT PASAYAT, J.]

on the basis of other relevant criteria. A

19 ...... The important factor to be noticed in Art. 15(4) is
that it does not speak of castes, but only speaks of
classes. If the makers of the Constitution intended to take
castes also as units of social and educational
backwardness, they would have said so as they have said B
in the case of the Scheduled Castes and the Scheduled
Tribes. Though it may be suggested that the wider
expression "classes" is used in clause (4) of Art. 15 as
~
there are communities without castes, if the intention was
to equate classes with castes, nothing prevented the c
makers of the Constitution from using the expression
"backward classes or castes". The juxtaposition of the
expression "backward classes" and "Scheduled Castes"
in Art. 15(4) also leads to a reasonable inference that the
expression "classes" is not synonymous with castes. l_t D
may be that for ascertaining whether a particular citizen or
, a group of citizens belong to a backward class or not, his
or their caste may have some relevance, but it cannot be
either the sole or the dominant criterion for ascertaining
the class to which he or they belong. E
20. This interpretation will carry out the intention of the
Constitution expressed in the aforesaid Articles. It helps
the really backward classes instead of promoting the
interests of individuals or groups who, though they belong
to a particular caste a majority whereof is socially and F
>
educationally backward, really belong to a class which is
socially and educationally advanced. To illustrate, take a
caste in a State which is numerically the largest therein. It
may be that though a majority of the people in that caste
are socially and educationally backward, an effective G
minority may be socially and educationally far more
advanced than another small sub-caste the total number
... of which is far less than the said minority. If we interpret the
expression "classes" as "castes", the object of the
Constitution wHI be frustrated and the people who do not H
( J

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

A deserve any adventitious aid may get it to the exclusion of
those who really deserve. This anomaly will not arise if,
without equating caste with class, caste is taken as only
one of the considerations to ascertain whether a person
belongs to a backward class or not. On the other hand, if
B the entire sub-caste, by and large, is backward, it may be
included in the Scheduled Castes by following the
appropriate procedure laid down by the Constitution.
21. We do not intend to lay down any inflexible rule for the
Government to follow. The laying down of criteria for
C ascertainment of social and educational backwardness of a
class is a complex problem depending upon many
circumstances which may vary from State to State and even
from place to place in a State. But what we intend to emphasize
is that under no circumstances a "class" can be equated to a
D "caste", though the caste of an individual or a group of individual
may be considered along with other relevant factors in putting
him in a particular class. We would also like to make it clear A

that if in a given situation caste is excluded in ascertaining a
class within the meaning of Art. 15(4) of the Constitution, it does
E not vitiate t~e classification if it satisfied other tests.
3. Minor P. Rajendran v State of Madras (1968 (2)
SCR 787)
"The first challenge is to r. 5 on the ground that it violates
F Art. 15 of the Constitution. Article 15 forbids discrimination
against any citizen on the grounds only of religion, race, f

caste, sex, place of birth or any of them. At the same time
Art. 15(4) inter alia permits the State to make any special
provision for the advancement of any socially and
educationally backward classes of citizens. The contention
G
is that the list of socially and educationally backward
classes for whom reservation is made under r. 5 is nothing
but a list of certain castes. Therefore, reservation in favour
of certain castes based only on caste considerations
violates Art. 15(1 ), which prohibits discrimination on the
H
~ ~
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 315
[DR. ARIJIT PASAYAT, J.]

ground o caste only. Now if the reservation in question A
~
rad been based only on caste and had not taken into
account the social and educational backwardness of the
caste in question, it would be violative of Art. 15(1 ). But it
must not be forgotten that a caste is also a class of citizens
and if the caste as a whole is socially and educationally B
backward reservation can be made in favour of such a
caste on the ground that it is a socially and educationally
backward class of citizens within the meaning of Art. 15(4).
~ Reference in this connection may be made to the
observations of this Col.rt in M. R. Balaji v. State of Mysore c
([1963] Supp. 1 S.C.R. 439 at p. 459-460) to the effect
that it was not irrelevant to consider the caste of a class
of citizens in determining their social and educational
backwardness It was further observed that though the
caste of a class of citizens may be relevant its importance
D
should not be exaggerated; and if classification of
backward classes of citizens was based solely on the
. I' caste of the citizen. 1t :night be open to objection. It is true
that m the present cases the list of socially and
educationally backward classes has been specified by
caste. But that does not necessarily mean that caste was E
the sole consideration and that persons belonging to these
castes are also not a class of socially and educationally
backward citizens. In its reply. the State of Madras has
given the history as to how this list of backward classes
was made, starting from the year 1906 and how the list F
~
. has been kept upto date and necessary amendments made
therein. It has also been stated that the main criterion for
inclusion in the list was the social and educational
backwardness of the caste based on occupations pursued
by these castes. Because the members of the caste as a G
whole were found to be socially and educationally
backward, they were put in the list. The matter was finally
.. examined after the Constitution came into force in the
light of the provisions contained in Art 15(4). As it was
found that members of these castes as a whole were H
316 SUPREME COURT REPORTS (2008] 4 S.C.R.

A educationally and socially backward, the list which had
been coming on from as far back as 1906 was finally •
adopted for purposes of Art. 15(4). In short the case of the
State of Madras is that the castes included in the list are
only a compendious indication of the class of people in
B those castes and these classes of people had been put
in the list for the purpose of Art. 15(4) because they had
been found to be socially and educationally backward.
This is the position as explained in the Affidavit filed
on behalf of the State of Madras. On the other hand the
c only thing stated in the petitions is that as the list is based
on caste alone it is violative of Art. 15(1 ). In view however
of the explanation given by the State of Madras, which has
not been controverted by any rejoinder, it must be accepted
that though the list shows certain castes, the members of
D those castes are really classes of educationally and socially
backward citizens. No attempt was made on behalf of the
petitioners/appellant to show that any caste mentioned in A •
this list was not educationally and socially backward. No
such averment was made in the affidavit in support of their
E cases, nor was any attempt made to traverse the case put
forward on behalf of tl)e State of Madras by filing a rejoinder
affidavit to show that even one of the castes included in
the list was not educationally and socially backward. In
this state of the pleadings, we must come to the conclusion
F . that though the list is prepared caste-wise, the castes
included therein are as a whole educationally and socially
backward and therefore the list is not violate of Art. 15.
The challenge to r. 5 must therefore fail.
4) State of Andhra Pradesh v P. Sagar (1968 (3) SCR
G 595)
"In the context in which it occurs the expression "class"
means a homogeneous section of the people grouped
together because of certain likenesses or common traits
and who are identifiable by some common attributes such
H
ASHOKA KUMAR THAKUR v. UNION OF INDIA & OR9 3'7
[OR. ARIJIT PASAYAT, J.]

as status, rank, occupation, residence in a !ocality. race. A
reHgion and the like. In determining whether a particular
section forms a class, caste cannot be excluded altogether
But in the determination of a class a test solely based
upon the caste or community cannot also be accepted. By
cl. (1) Art. 15 prohibits the State from discriminating against B
any citizen on grounds only of religion, race, caste, sex,
place of birth or any of them. By cl. (3) of Art. 15 the State
is, notwithstanding the provision contained in cl. (1 ),
permitted to make special provision for women and
children. By cl. (4) a spedal provision for the advancement c
of any socially and educationally backward crasses of
citizens or for the Scheduled Castes and Scheduled Trlbes
is outside the purview of cl. (1 ). But cl. (4) is an exception
to cl. (1 ). Being an exception, it cannot be extended so as
in effect to destroy the guarantee of cl. (1 ). The Parliament
D
has by enacting cl. (4) attempted to balance as against
,. the right of equality of citizens the special necessit:es of
the weaker sections of the people by allowing a prov~sron
to be made for their advancement. In order that effect may
be given to cl. (4), it must appear that the beneficiaries of
the special provision are classes whic~ are backward E
socially and educationaHy and they are other that the
Scheduled Castes and Scheduled Tribes, and that the
provision made is for their advancement"
5. F:.!iinor A. Peeriafraruppan (i!iinor) v. State of T.i"!., F
• (1971) 1 sec 38 :

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

- t
"In my opinion, the expression 'classes of His
Majesty's subjects' in Section 153-A of the Code 1s
used in restrictive sense as denoting a collection of
H
318 SUPREME COURT REPORTS [2008] 4 S.C.R.

A individuals or groups bearing a common and
exclusive designation and also possessing common
and exclusive characteristics which may be
associated with their origin, race or religion, and that
the term 'class' within that section carries with it the
B idea of numerical strength so large as could be
grouped in a single homogeneous community."
26. In para 10, Chapter V of the Backward Classes
Commission's Report, it is observed:

c "We tried to avoid caste but we find it difficult to
ignore caste in the present prevailing conditions. We
wish it were easy to dissociate caste from social
backwardness at the present juncture. In modern
time anybody can take to any profession. The
Brahman taking to tailoring, does not become a tailor
D
by caste, nor is his social status lowered as a
Brahman. A Brahman may be a seller of boots and A •
shoes, and yet his social status is not lowered
thereby. Social backwardness, therefore, is not today
due to the particular profession of a person, but we
E cannot escape caste in considering the social
backwardness in India.
In para 1f of that Report it is stated:
"It is not wrong to assume that social backwardness
F has largely contributed to the educational
backwardness of a large number of social groups."
27. Finally in para 13, the committee concludes with
following observations:
G "All this goes to prove that social backwardness is
mainly based on racial, tribal, caste and
denominational differences."
i -.

28. The validity of the impugned list of backward cla:;ses
came up for consideration before this Court in Rajendran
H
{ ~
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS 319
[DR. ARIJIT PASAYAT, J.]

case and this is what this Court observed therein. A

"The contention is that the list of socially and
educationally backward classes for whom reservation
is made under Rule 5 nothing but a Hst of certain
castes. Therefore. reservation m favour of certain
B
castes based only on caste considerations violates
Article 15(1 ), which prohibits discrimination on the
ground of caste only. Now if the reservation in
question had been based only on caste and had not
taken into account the social and ed;.;cationa:
backwardness of the justice in question. it would be c
violative of Article 15(1 ). But it must not be forgotten
that a caste is also a class of citizens and if the caste
as a whole is socially and educationally backward.
reservation can be made in favour of such a caste
on the ground that it is a socially and educationally D
backward class of citizens within the meaning of
,. Article 15(4)."
29. Ra1endran case is a~ authority for the proposition that
the classification of backward classes on the basis of
castes is within the purview of Article 15(4) 1fthose castes' E
are shown to be socially and educationally backward. No
further material has been placed before us to show that
the reservation for backward classes with which we are
herein concerned is not in accordance with Article 15(4)
There 1s no gainsaying the fact that there are numerous F
" castes in this country which are socially and educationally
backward. To ignore their existence is to ignore the facts
of life. Hence we are unable to uphold the contention that
the impugned reservat:on is not in accordance with Article
15(4). But all the same the Government stiould not proceed G
on the basis that once a class is considered as a

-
J
~
backward class it should continue to be backward crass
for all times. Such an approach would defeat the very
purpose of the reservation because once a class reaches
a stage of progress which some modern writers call as H
~ I
320 SUPREME COURT REPORTS [2008] 4 S.C.R.

A take off stage then competition is necessary for their future
progress. The Government should always keep und.er
review the question of reservation of seats and only the
classes which are really socially and educationally
backward should be allowed to have the benefit of
B reservation. Reservation of seats should not be allowed
to become a vested interest. The fact that candidates of
backward classes have secured about 50% of the seats
in the general pool does show that the time has come for
a de nova comprehensive examination of the question. It
c must be remembered that the Government's decision in
this regard is open to judicial review."
6. State of A.P. v. U.S. \I. Bairam, (1972) 1 SCC 660, at
page 685 :
"82 ...... In the determination of a class to be grouped as
D
backward, a test solely based upon caste or community
cannot be accepted as valid. But, in our opinion, though
Directive Principles contained in Article 46 cannot be
enforced by courts.Article 15(4) will have to be given effect
to in order to assist the weaker sections of the citizens, as
E the State has been charged with such a duty. No doubt,
we are aware that any provision made under this clause
must be within the well defined limits and should not be on
the basis of caste alone. But it should not also be missed
that a caste is also a class of citizens and that a caste as
F such may be socially and educationally backward. If after
collecting the necessary data, it is found that the caste as
a whole is socially and educationally backward, in our
opinion, the reservation made of such persons will have to
be upheld notwithstanding the fact that a few individuals in
G that group may be both socially and educationally above
the general average. There :s no gainsaying the fact that
there are numerous castes in the country, which are socially
and educationally backward and therefore a suitable
provision will have to be made by the State, as charged
H in Article 15(4) to safeguard their interest".
I ,

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

)()( )()( )()( A
94. To conc~ude. though prima fac1e the list of Backward
Classes which is under attack before us may be
considered to be on the basis of caste, a closer
examination will clearly show that it 1s only a description of
the group following the particular occupations or B
professions, exhaustively referred to by the Commission.
Even on the assumption that the list is based exclusively
on caste, it is clear from the materials before the
Comm~ssion and the reasons given by it in its report that
the entire caste is socially and educationally backward C
and therefore their :nclus1on in the list of Backward Classes
is warranted by Article 15(4). The groups mentioned therein
have been included in the list of Backward Classes as
they satisfy the various tests, which have been laid down
by this Court for ascertaining the social and educational D
backwardness of a class."
7. Janki Prasad Parimoo v. State of J&K, (1973) 1 SCC
420, at page 432 :

"22. Articie 15(4) speaks about "socially and educationally E
backward classes of citizens" while Article 16(4) speaks
only of "any backward class citizens". However, it is now
settled that the expressron "backward class of citizens" in
Article 16(4) means the same thing as the expression
·'any sociaily and educationally backward class of citizens" F
t
in Article 15(4). In order to qualify for being called a
"backward class citizen" he must be a member of a socially
and educationally backward class. It is social and
educational backwardness of a class which is material for
the purposes of both Articles 15(4) and 16(4)."
G
)()( )()( xx
,,. f
24. It is not merely the educational backwardr,ess or the
social backwardness which makes a class of citizens
backward; the class identified as a class as above must
H
~ I
322 SUPREME COURT REPORTS [2008] 4 S.C.R.

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

and the difficult task is which class can be recognised out
of these several layers as been socially and educationally
backward."
25 ..... lndeed all sectors in the rural areas deserve
G
encouragement but whereas the former by their.
enthusiasm for education can get on without special
,. ...
treatment, the latter require to be goaded into the social
stream by positive efforts by the State. That accounts for
the raison-d'etre. of the principle explained in Balaji case
H
ASHOKA KUMAR THAKUR v. UNION OF !NOIA & ORS. 323
· [DR. ARIJIT PASAYAT, J.]

which pointed out that backward classes for whose A
improvement special provision was contemplated by
Article 15(4) must be comparable to Scheduled Castes
and Scheduled Tribes who are standing examples of
backwardness socially and educationally. If those
examples are steadily kept before the mind the difficulty s
in determining which other classes should be ranked as
backward classes will be considerably eased."
- 8. State of Kera/a v. N.M. Thomas, (1976) 2 SCC 310,
at page 367:
c
"135. We may clear the clog of Article 16(2) as it stems
from a confusion about caste in the. terminology of
scheduled castes and scheduled tribes. This latter
expression has been defined in Articles 341 and 342. A
bare reading brings out the quintessential concept that
0
they (sic there) are ·no castes in the Hindu fold but an
amalgam of castes, races, groups, tribes, communities
or parts thereof found on investigation to be the lowliest
and in need of massive State aid and notified as such by
the President. To confuse this backwardmost social
composition with castes is to commit a constitutional error, E
misled by a compendious appellation. So that, to protect
harijans is not to prejudice any caste but to promote citizen
solidarity. Article 16(2) is out of the way and to extend
protective discrimination to this mixed bag of tribes, races,
groups, communities and non-castes outside the four-fold F
Hindu division is not to compromise with the acceleration
of castelessness enshrined in the sub-article. The
discerning sense of the Indian Corpus Juris has generally
regarded scheduled castes and scheduled tribes, not as
caste but as a large backward group deserving of societal G
compassion ...... "
9. State of U.P. v. Pradip Tandon, (1975) 1SCC267, at
page 273:
"14. Article 15(4) speaks of socially and educationally H
ij I
324 SUPREME COURT REPORTS [2008] 4 S.C.R.

A backward classes of citizens. The State described the
rural, hill and Uttrakhand areas as socially and
educationally backward areas. The Constitution does not
enable the State to bring socially and educationally
backward areas within the protection of Article 15(4). The
B Attorney-General however submitted that the affidavit
evidence established the rural, hill and Uttrakhand areas
to have socially and educationally backward classes of
citizens. The backwardness contemplated under Article
15(4) is both social and educational. Article 15(4) speaks
c of backwardness of classes of citizens. The accent is on
classes of citizens. Article 15(4) also speaks of Scheduled
Castes and Scheduled Tribes. Therefore, socially and
educationally backward classes of citizens in Article 15(4)
could not be equated with castes. In MR. Balaji v. State
of Mysore and State of A.P v. Sagar this Court held that
D
classification of backwardness on the basis of castes
would violate both Articles 15(1) and 15(4).
15. Broadly stated, neither caste nor race nor religion can
be made the basis of classification for the purposes of
E determining social and educational backwardness within
the meaning of Article 15(4). When Article 15(1) forbids
discrimination on grounds only of religion, race, caste,
caste cannot be made one of the criteria for determining
social and educational backwardness. If caste or religion
F is recognised as a criterion of social and educational
backwardness Article 15(4) will stultify Article 15(1). It is
true that Article 15(1) forbids discrimination only on the
ground of religion, race, caste, but when a classification
takes recourse to caste as one of the criteria in determining
socially and educationally backward classes the
G
expression "classes" in that case violates the rule of
expressio unius est exclusio alterius. The socially and
educationally backward classes of citizens are groups
other than groups ba$<;,~! )n caste. .1

H 16. The expression "socially and educationally backward
ASHOKA KUMAR THAKUR v. UNtON OF INDIA & ORS. 325
[DR. ARIJIT PASAYAT, J.]

classes· in Article 15(4) was explained in Ba/aji case to A
be comparable to Scheduled Castes and Scheduled
Tribes The reason is that the Scheduled Castes and
Scheduled Tribes illustrated social and educational
backwardness It is difficult to define the expression
"socially and educationally backward classes of citizens". B
The traditional unchanging occupations of citizens may
contribute to social and educational backwardness. The
place of habitation and its environment is also a
determining factor !n judging the social and educational
backwardness. c
17. The expression "classes of citizens" indicates a
homogeneous section of the people who are grouped
together because of certain likenesses and common traits
and who are identifiable by some common attr;butes. The
homogeneity of the class of citizens is social and D
educational backwardness. Neither caste nor religion nor
place of birth will be the uniform element of common
attributes to make them a class of citizens."
10. K.S. Jayasree (Kumari) v. State of Kera/a, (1976) E
3 sec 730, at page 733 :

"13. Backward classes for whose improvement special
provisions are contemplated by Article 15(4) are in the
matter of their backwardness comparable to scheduled
castes and scheduled tribes. This Court has emphasised F
:n decisions that the backwardness under Article 15(4)
must be both social and educational. In ascertaining social
backwardness of a class of citizens, the caste of a citizen
cannot be the sole or dominant test. Just as caste_is not
the sole or dominant test. similarly poverty is not the G
decisive and determining factor of social backwardness.
xx xx xx
21. In ascertaining social backwardness of a class of
citizens :t may not be irrelevant to consider the caste of H
\
326 SUPREME COURT REPORTS [2008] 4 S.C.R.

A the group of citizens. Caste cannot however be made the
sole or dominant test. Social backwardness is in the
ultimate analysis the result of poverty to a large extent.
Social backwardness which results from poverty is likely
to be aggravated by considerations of their caste. This
B shows the relevance of both caste and poverty in
determining the backwardness of citizens. Poverty by itself
is not the determining factor of social backwardness.
Poverty is relevant in the context of social backwardness. •
The commission found that the lower income group
c constitutes socially and educationally backward classes.
The basis of the reservation is not income but social and
educational backwardness determined· on the basis of
relevant criteria. If any classification of backward classes
of citizens is based solely on the caste of the citizen it will
perpetuate the vice of caste system. Again, if the
D
classification is based solely on poverty it will not be logical.
The society is taking steps for uplift of the people. In such
a task groups or classes who are socially and educationally
backward are helped by the society. That is the philosophy
of our Constitution. It is in this context that social
E backwardness which results from poverty is likely to be
magnified by caste considerations. Occupations, place
of habitation may also be relevant factors in determining
who are socially and educationally backward classes.
Social and economic considerations come into operation
F in solving the problem and evolving the proper criteria of
determining which classes are socially and educationally
backward. That is why our Constitution provided for special
consideration of socially and educationally backward
classes of citizens as also scheduled castes and tribes.
G It is only by directing the society and the State to offer
them all facilities for social and educational uplift that the
problem is solved. It is in that context that·the commission ~
in the present case found that income of the classes of
citizens mentioned in Appendix VIII was a relevant factor
H in determining their social and educational backwardness."
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 327
[DR. ARIJIT PASAYAT, J.]

129. In Chitrelekha's case (supra) it was stated that the A
caste is the starting point. This is subject of course to the
parameters that if the caste itself satisfies the test of
backwardness which is implicit and inherent as noted in para
782 of Indra Sawhney No.1 (supra). In that case caste becomes
the relevant factor. The view expressed in Chitralekha's case B
(supra) was not dissented from in Indra Sawhney No. 1 (supra).
In fact Justice Jeevan Reddy in the majority judgment in Indra
... Sawhney No.1 (supra) referred to Chitrelekha's case (supra)
at para 704. As noted above in para 782 of Indra Sawhney
No. 1 (supra) it has not been held that caste is class. In the said c
paragraph it has been stated that individual survey is out of
question since Article 16(4) speaks of class protection and not
individual protection. In that context also it has been said that it
does not mean that one can wind up the process of identification
for the castes. It has also been emphasized in the said
D
paragraph that having exhausted the castes or simultaneously
t with it, the authority may take up for consideration other
occupational groups, communities and classes. If caste is a
substitute for class, the question of any simultaneous
' consideration of others does not arise. Therefore, the Court
observed that one may well begin with castes if one chooses E
and then go to other groups, sections and classes. If the Court
meant to substitute the word caste with class the question of
going to other classes would not arise.
130. Reference may also be made to Akhil Bharatiya F
Soshit Karamchari Sangh (Railway) v. Union of India (UOI)
and Ors. (1981(1) sec 246) where at para 22 it was noted as
follows:
"This is not mere harmonious statutory construction of
Article 16(1) and (4) but insightful perception of our G
constitutional culture, reflecting the current of resurgent
India bent on making, out of a sick and stratified society
of inequality and poverty, a brave new Bharat. If freedom,
justice and equal opportunity to unfold one's own
personality, belong alike to bhangi and brahmin, prince H
328 SUPREME COURT REPORTS (2008] 4 S.C.R.

A and pauper, ifthe panchama proletariat is to feel the social
transformation Article 16(4) promises, the State must apply
equalising techniques which will enlarge their opportunities
and thereby progressively diminish the need for props.
The success of State action under Article 16(4) consists
B in the speed with which result-oriented reservation withers
away as, no longer a need, not in the everwidening and
everlasting operation of an exception [Article 16(4)] as if
it were a super-fundamental right to continue backward all
the time. To lend immortality to the reservation policy is to
c defeat its raison de'etre; to politicise this provision for
communal support and Party ends is to subvert the solemn
undertaking of Article16(1 ), to casteify 'reservation' even
beyond the dismal groups of backward-most people,
euphemistically described as SC & ST, is to run a grave
constitutional risk. Caste, ipso facto, is not class in a
D
secular State."
131. Much emphasis has been laid on the use of the word
'only'. It is to be noted that while the respondents contend that
where it is demonstrated that caste is not the only consideration
E the permissible provision will operate. Reference was made to
Venkataraman's case (supra). As has been rightly contended
by learned counsel for the petitioners the true effect of the word
'only' has been clarified in the decision itself.

132. It is unnecessary to decide as it has been contended
F by learned counsel for the petitioners whether the concept of
strict scrutiny is a measure of judicial scrutiny as highlighted by
the conditions in India. It is submitted that label is not relevant.
133. The ultimate object is the eradication of castes and
G that is the foundation for reservation. While considering the
method adopted for eradication by adopting the process of
reservation indirectly the facet of strict scrutiny comes in. The
strict scrutiny test was applied in the background of Article 19
vis-a-vis compelling State needs. The principle was recognized
in Chintaman Rao v. The State ot /i/!adhya Pradesh (1950 SCR
H
ASHOKA KUMAR THAKUR v. UNION OF !NOIA & ORS. 329
[DR ARIJIT PASAYAT J]

759). It was inter-alia quoted as follows: A
"The question for decision is whether the statute under
the guise of protecting public •nterests arbitrarily interferes
with private business and imposes unreasonab!e and
unnecessarily restrictive regulations upon lawful
occupation; '.n other words, whether the total prohibition of 8
carrying on the business of manufacture of bid is within the
agricultural season amounts to a reasonable restriction
on the fundamental rights mentioned in article 19 (1 )(g) of
the Constitution. Unless it is shown that there is a
reasonable re!ation of the provisions of the Act to the C
purpose •n view, the right of freedom of occupation and
business cannot be curtai!ed by it
The phrase "reasonable restriction" connotes that the
limitation imposed on a person in enjoyment of the right
0
should not be arbitrary or of an excessive nature, beyond
what is required in the interests of the public. The word
"reasonable" implies intelligent care and deliberation, that
is, the choice of a course which reason dictates.
Legislation which arbitrarily or excessively invades the
right cannot be said to contain the quality of E
reasonableness and unless it strikes a proper balance
between the freedom guaranteed in Article 19(1)(g) and
the social control permitted by clause (6) of Article19, it
must be held to be wanting in that quality"
F
134. Again in State of Madras v VG. Row (AIR 1952 SC
196) it was observed as follows:
"13. Before proceeding to consider this question we think
it right to point out, what is sometimes overlooked. that
our Constitution contains express provisions for judicial G
review of legislation as to its conformity with the constitution
unlike as in America where tre Supreme Court has
assumed extensive power of reviewing legislative acts
under cover of the widely interpreted "due process" clause
in the Fifth and Fourteenth An:endments. If, tren. the courts H
330 SUPREME COURT REPORTS (2008) 4 S.C.R.

A in this country face up to such important and none too
easy task, it is not out of any desire to tilt at legislative
authority in a crusader's spirit, but in discharge of a duty
plainly laid upon them by the Constitution. This is especially
true as regards the "fundamental rights" as to which this
B Court has been assigned the role of a sentinel on the qui
vive. While the Court naturally attaches great weight to the
legislative judgment, it cannot dessert its own duty to
determine finally the constitutionality of an impugned
statute. We have ventured on these obvious remarks
c because it appears to have been suggested in some
quarters that the courts in the new set up are out to seek
clashes with the legislatures in the country".
135. At the outset, it may be pointed out that the stand of
petitioners is that the primary consideration in selection of
D candidates for admission to the higher educational institutions
must be merit. The object of any rules, which may be made for
regulating admissions to such institutions therefore, must be to
secure the best and most meritorious students. The national
interest and the demand of universal excellence may even
E override the interests of the weaker sections. In this context,
Krishna Iyer J aptly observed:
"To sympathise mawkishly with the weaker sections by
selecting substandard candidates, is to punish society as
a whole by denying the prospect of excellence, say, in
F hospital service. Even the poorest, when stricken by critical
illness, needs the attention of super-skilled specialists not
humdrum second rates".
136. Thus, the interest of no person, class or region can
G be higher than that of the nation. The philosophy and pragmatism
of universal excellence through equality of opportunity for
education and advancement across the nation is part of the
constitutional creed. It is, therefore, the best and most meritorious ,.
students that must be selected for admission to technical
institutions and medical colleges and no citizen can be regarded
H
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 331
[DR. ARIJIT PASAYAT, J.]

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

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

138. The inevitable conclusion is that the impugned Statute
can be operative only after excluding the creamy layer from
identifiable OBCs. There has to be periodic review of the classes F
'\)
who can be covered by the Statute. The periodicity should be
five years To strike constitutional balance there is need for
making provision for suitable percentage for socially and
economica!ly backward classes in the 27% fixed.
G
139. To sum up, the conclusions are as follows:
(1) For implementation of the impugned Statute creamy
layer must be excluded.
(2) There must be periodic review as to the desirability
H
332 SUPREME COURT REPORTS [2008] 4 S.C.R.

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

has to work more effectively and not merely decide
applications for inclusion or exclusion of castes.
While determining backwardness, graduation (not
technical graduation) or professional shall be the
G
standard test yardstick for measuring backwardness.
(6) To strike the constitutional balance it is necessary
t'
and desirable to ear-mark certain percentage of seats
out of permissible limit of 27% for socially and
H economically backward classes.
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 333
[DR. ARIJIT PASAYAT, J.]

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

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

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

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

(10) While interpreting the constitutional prov1st0ns, E
foreign decisions do not have great determinative
value. They may prov!de materials for deciding the
question regarding constitutionality. In that sense. the
strict scrutiny test is not applicable and indepth
scrutiny has to be made to decide the constitutiol"ality F
or otherwise, of a statute.
(11) If material is shown to the Central Government that
the Institution deserves to be included :n the
Schedule, the Central Government must take an
appropriate decision on the basis of mater:a1s placed G
and on examining the concerned issues as to whether
Institution deserves to be included in the Schedule.
(12) Challenge relating to private ur-aided educationai
institutions has not been examined because ro such
H
' p
. 334 SUPREME COURT REPORTS [2008] 4 S.C.R.

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

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

c DALVEER BHANDARI, J. 1. The 93rct Amendment to the
Constitution directly or indirectly affects millions of citizens of
this country. It has been challenged in a number of writ petitions.
This Court heard these petitions intermittently over the course
of several months. Appearing on behalf of petitioners and
respondents, the country's finest legal minds assisted us.
D '
2. The fundamental question that arises in these writ
petitions is: Whether Article 15(5), inserted by the 93rct ~
Amendment, is consistent with the other provisions of the
Constitution or whether its impact runs contrary to the
E Constitutional aim of achieving a casteless and classless
society?

3. On behalf of the petitioners, Senior Advocate Mr. F.S.
Nariman, eloquently argued that if Article 15(5) is permitted to
remain in force, then, instead of achieving the goal of a casteless
F and classless society, India would be converted into a caste- ....
ridden society. The country would forever remain divided on
caste lines. The Government has sought to repudiate this
argument. Petitioners' argument, however, echoes the grave
concern of our Constitution's original Framers.
G
4. On careful analysis of the Constituent Assembly and the
Parliamentary Debates, one thing is crystal clear: our leaders
have always and unanimously proclaimed with one voice that
our constitutional goal is to establish a casteless and classless
society. Mahatma Gandhi said: "The caste system as we know
H
\ ~
ASHOKA KUMAR "J:HAKUR v. JNION OF INDIA & ORS. 335
[DALVEER BHANDARI, J.]

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

5. After almost four decades of independence, while B
participating in the Parliamentary Debate on the Mandal issue,
then Pnrne Minister Shri Raj!v Gandhi on 5th September, 1990
again reiterated the same sentiments: "I think, nobody in this
House will say that the removal of casteism is not part of the
national goal, therefore, it would be in the larger interest of the C
nation to get rid of the castes as early as possib!e". It is our
bounden duty and obligation to examine the validity of the 93rd
Amendment :n the bad 3round of the Preamble and the ultimate
goal that runs through the pages of the Constitution.
D
6. To attain an egalitarian society, we have to urgently
remove socio-economic inequalities. All learned counsel for the
petitioners asserted that we must deliver the benefits of
reservation to only those who really deserve it. This can oniy be
done if we remove the creamy layer. Learned counsel for the
Union of India and other respondents opposed this assertion. E
The principle of creamy layer emanates from the broad doctrine
of equality itself. Unless the creamy layer is removed from
admissions and service reservation, the benefits would not reach
the group :n whose name the impugned legislation was passed
-the poorest of the poor. Therefore, including the creamy layer F
would be inherently unjust.
7. Creamy layer exclusion, however, is just one of the many
issues raised by the parties. I need to examine various facets
of this case in order to decide the validity of the 93rd Amendment G
and the Central Educational Institutions (Reservation in
Admission) Bill, 2006 (passed as Act 5 of 2007) (hereinafter
called the "Reservation Act"). I shall focus my analysis on the
following issues:

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

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

A 93.rd Amendment (Reservation Act)?
18. What are the parameters for creamy layer
exclusion?
1C. Is creamy layer exclusion applicable to SC/ST?
B 2. Can the Fundamental Right under Article 21A
be accomplished without great emphasis on
primary education?
3. Does the 93rd Amendment violate the Basic
c Structure of the Constitution by imposing
reservation on unaided institutions?
4. Whether the use of caste to identify SEBCs runs
afoul of the casteless/classless society, in
violation of Secularism.
D
5. Are Articles 15(4) and 15(5) mutually
contradictory, such that 15(5) is
unconstitutional?
6. Does Article 15(5)'s exemption of minority
E institutions from the purview of reservation
violate Article 14 of the Constitution?
7. Are the standards of review laid down by the
U.S. Supreme Court applicable to our review of
affirmative action under Art 15(5) and similar
F provisions?
8. With respect to OBC identification, was the
Reservation Act's delegation of power to the
Union Government excessive?
G 9. Is the impugned legislation invalid as it fails to
se: a time-limit for caste-based reservation?
.J At what point is a student no longer
Edu1..3tionally Backward and thus no longer
ei.g1ble fur special provisions under 15(5)?
\ ~
ASHOKA KUMAR THAKUR v. UNION OF !NOIA & ORS 337
[DALVEER BHANDARI. ..;.]

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

8. I have carefully exalT'ined the pieadings ard written
submissions submitted at !ength. Admittedly, the provis:ors of 8
the Constitution and the Preamble lead to the irres stible
conclusion trat the Nation ras always wanted to act"ieve a
casteless and classless society. !f we perm:t tris ilT'pugred
legislation to be 'mpler1ented, I alT' afraid. 'r~stead of a casteiess
and classless India, we would be left with a caste-ridden society C

9. The first place where caste car. be eradicated is the
classroom. It all starts with education. !n other words. if you belong
to a lower caste but are weil qualified. hardly anyone wouid care
about your caste. Free and cornpi.;lsory education is row a
0
fundamental right under Article 2~ A. ;re State is duty bound to
implement this Article on a priority basis. There has been grave
laxity :nits 'mplementation. This laxity adversely affects almost
every walk of life. In my opinion. nothirg is more important for
the Urion of India than to :mplement this cr'tical Article.
E
10. I direct the Union of India to set a time·:ilT'it withir which
this Article is going to be completely implemented . .,.his time-
lilT'it Must be set within six ~ontlis 'r Ct's" '"'r ' 1"'c ~ .,f ·rr1·.,
fails to fix the time-limit, then perhaps this work will also have to
be done by the Court. F-

11. The Union of India should appreciate in proper
prospective that the root cause of social and edi.;catonal
backwardness 1s poverty. ,A !I efforts have to be "lade to
eradicate this fundamental probler:' i..,;nless the crear;y layer is
removed. tre benefit would not reach those who are in need G
Reservat:or sends the wrong message f veryoody is Kev !o
get tre berefit of backward class <.!,L;s ·r '.'•"' ,·1a.~• '" 'w;i11y
he!p the sociaily educatona 1y a:id eccr101":' ca y bacw11'1
1

classes. we need to earnest:y focus or 1mp!e"1e"'. "J : "
21 A. We mi.;st provide educatiora1 opportun:ty r~'J("'. .' j , '
~ I
338 SUPREME COURT REPORTS [2008] 4 S.C.R.

A Only then will the caste less/classless society be within our grasp.
Once children are of college-going age, it is too late for "'
reservation to have much of an effect. The problem with the
Reservation Act is that most of the benefi9iaries will belong to
the creamy layer, a group for which no benefits are necessary.
B Only non-creamy layer OBCs can avail of reservations in college
admissions, and once they graduate from college they should
no longer be eligible for post-graduate reservation. 27% is the
upper limit for OBC reservation. The Government need not ~
always provide the maximum limit. Reasonable cut off marks
c should be set so that standards of excellence greatly effect. The
unfilled seats should revert to the general category.
12. These issues first arise out of the text of the impugned
Amendment. Reservation for Socially and Educationally
Backward Classes of Citizens (SEBCs) was introduced by the
D 93rd Amendment. Article 15(5) states:
"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
E Scheduled Castes or the Scheduled Tribes in so far as
such special provisions relate to their admission to
educational institutions including private educational
institutions, whether aided or unaided by the State, other
than minority educational institutions referred to in clause
F (1) of article 30." ,
~

• Excluding the Creamy Layer from receiving
special benefits:
13. Affirmative action is employed to eliminate substantive
G social and economic inequality by providing opportunities to
those who may not otherwise gain admission or employment.
Articles 14, 15 and 16 allow for affirmative action. To promote
Article 14 egalitarian equality, the State may classify citizens ~

into groups, giving preferential treatment to one over another.
H When it classifies, the State must keep those who are unequal
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 339
[DALVEER BHANDARI, J.]

). out of the same batch to achieve constitutional goal of egalitar:an A
• society.
• Arguments of the Union of India in regard to the
creamy layer:
14. Mr. G.E. Vahanvati, learned Solicitor General and i11lr B
K. Parasaran, Senior Advocate appearing for the Government
contend that creamy layer exclusion is a bad poiicy. They argue
that if you exclude the creamy layer, there would be a shortage
of candidates who can afford to pay for higher education. This
argument harms rather than helps the Government. It cannot be c
seriously disputed that most of the college-going OB Cs belong
to the creamy layer for whom reservations are unnecessary: they
have the money to attend good schools, tuitions and coaching
courses for entrance exams. Naturally, these advantages resu~t
m higher test scores vis-a-vis the non-creamy layer OBCs. The
D
result is that creamy OB Cs would fill the bulk of the OBC quota,
leaving the non-creamy no better off than before. If the creamy
'...
get most of the benefit, why have reservations in the first place?
Learned Senior Counsel for petitioners, Mr. Harish Salve, is
justified in arguing that before carrying out Constitutional
Amendments the Union of India must clearly target its E
beneficiaries. He rightly submitted that we should not make
law first and thereafter target the law's beneficiaries. Failure
to exclude the creamy layer is but one example of this
problem.
. " F
15. The Government further submitted that the creamy layer
"' should be included to ensure that enough qualified candidates
fill 27% of the seats reserved to OBCs. The Oversight Committee
disagreed. The Committee relied on data from Karnataita to
disprove the contention that seats go unfilled when the c•earry
G
ls excluded·" ... the apprehension that seats will not be filled up
if the creamy layer is excluded has been comprehensively shown
. ~
to be unfounded." [See: Oversight Committee, Vol. 1, Sept
2006. p 69, para 1. 7 ] We shall later review the Oversight
Committee opinion ;n greater detail.
H
340 SUPREME COURT REPORTS [2008] 4 S.C.R.

A The reasons for which the creamy layer should
be excluded:
•"

16. At the outset, I note that the Parliament rejected the
Hindi version of the Reservation Act. The Hindi version of the
Reservation Act would have expressly excluded the creamy layer.
B [See: Prof. Rasa Singh Rawat's comments in the Parliamentary
Debate on the Reservation Act, 14 December 2006]
17. The Parliament eventually passed the English version
in which the creamy layer is not mentioned, making its intention
c clear. It wanted to include the creamy layer. For all practical
purposes, it did so. Therefore, I will treat it as included. Counsel
for the Union of India argued that it is still theoretically possible
for the executive to exclude the creamy layer. Much is possible
in theory. Given the executive's failure to take action since the
time the Act was passed, I find this argument unavailing.
D
18. With the Parliament's intention in view, I will deal in
some detail with the reasons as to why the creamy layer should +
.
be excluded from reservation. I do so because I want to
emphasize that the creamy layer must never be included in any
E affirmative action legislation. It also becomes imperative to
gather the original Framers' and the Framers' intention. At the
outset, we recognise a distinction between the original Framers
and the Framers, i.e., Members of the First Parliament.
Members of the Constituent Assembly and the First Parliament
F were one in the same. But the distinction is necessary to the ... ~

extent that the First Parliament deviated from its constitutional ...
philosophy. By examining the debate on Article 15(4), I may
a~certain whether the Framers wanted to exclude the creamy
!J11e1
{ j
19. The First Parliament believed that "economic" was
inc1uded in the "social" portion of "socially and educationally
b::i.-kward." Prime Minister Nehru said as much:
~

"One of the main amendments or ideas put forward is in
regard to the addition of the word "economical". Frankly,
H
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 341
[DALVEER BHANDARI, J.]

~ the argument put forward, with slight variation, I would A
• accept, but my difficult is this that when we chose those
particular words there, "for the advancement of any socially
and educationally backward classes", we chose them
because they occur in article 340 and we wanted to bring
them bodily from there. Otherwise I would have had not B
the slightest objection to add "economically". But if I added
"economically" I would at the same time not make it a kind
~)- of cumulative thing but would say that a person who is
lacking in any of these things should be helped. "Socially"
is a much wider word including many things and certainly c
including economically. Therefore, I felt that "socially and
educationally" really cover the ground and at the same
•
time you bring out a phrase used in another part of the
Constitution in a slightly similar context." (See: the
Parliamentary Debates on First Amendment Bill, 1 June
D
1951, p. 9830.)
Had it not been for a desire to achieve symmetry in drafting,
"economically" would have been included. Had this been done,
the creamy layer would have been excluded ab initio.
20. In the 15(4) debate, Shri M.A. Ayyangar's wanted to E
add "economic" to ensure that the rich SEBCs would not receive
special provisions.
"I thought "economic" might be added so that rich men
may not take advantage of this provision. In my part of the F
~

country there are the Nattukkottai Chettiars who do not
"
care to have English education. but they are the richest of
the lot ... should there be s12ecial reservation for them?"
(See: The Parliamentary Debates on First Amendment
Bill, 1June1951, p. 9817.)
G
(emphasis added).
. ~
This hesitation aside, Shri M.A. Ayyangar was satisfied
that the term "economic" was included in the term "social." The
Framers were worried about creamy layer inclusion, albeit under
H
342 SUPREME COURT REPORTS [2008] 4 S.C.R.

A a different name. They wanted to ensure that the "richest of the ....
[backward] lot" would not benefit from special provisions. With '
their sentiment on our side, we are even more confident that we
should strike out in the direction that strikes down laws that
include the creamy layer.
B • Including the creamy layer means unequals are
treated as equals in violation of the right to
equality under Articles 14, 15 and 16.
21. In the present case, Dr. Rajeev Dhavan, the learned .f -

c Senior Counsel and Mr. S.K. Jain, the learned counsel
vehemently argued on behalf of petitioners that it is precisely
because equality is at issue that the creamy layer must be .
removed. The creamy layer has been the subject matter of a .L

number of celebrated judgments of this Court. In a seven Judge
Bench in State of Kera/a & Another v. N. M. Thomas & Others
D
(1976) 2 SCC 310, Justice Mathew, in his concurring judgment,
dealt with the right to equality in the following words:
"66. The guarantee of equality before the law or the equal
opportunity in matters of employment is a guarantee of
'
E something more than what is required by formal equality.
It implies differential treatment of persons who are
unequal. Egalitarian principle has therefore enhanced the
growing belief that Government has an affirmative duty to
eliminate inequalities and to provide opportunities for the
F exercise of human rights and claims .......... "
~

(emphasis added) ~

22. In Indra Sawhney & Others v. Union of India &
Others ( 1992) Supp (3) SCC 217, (hereinafter referred to as
G Sawhney /), this Court has aptly observed that reservation is
given to backward classes until they cease to be backward,
and not indefinitely. This Court in para 520 (Sawant, J.) has
stated as under:
"Society does not remain static. The industrialisation and
H the urbanisation which necessarily followed in its wake,
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 343
[OALVEER BHANDARI, J.]

the advance on political, social and economic fronts made A
•• particularly after the commencement of the Constitution,
the social reform movements of the last several decades,
the spread of education and the advantages of the special
provisions including reservations secured so far, have all
undoubtedly seen at least some individuals and families B
in the backward classes, however small in number, gaining
sufficient means to develop their capacities to compete
with others in every field. That is an undeniable fact.
Legally, therefore, they are not entitled to be any longer
called as part of the backward classes whatever their c
original birthmark. It can further hardly be argued that
once a backward class, always a backward class. That
would defeat the very purpose of the special provisions
made in the Constitution for the advancement of the
backward classes, and for enabling them to come to the
0
level of and to compete with the forward classes, as equal
citizens."
•...
(emphasis supplied).
23. For our purposes, creamy layer OBCs and non-creamy
layer OBCs are not equals when it comes to moving up the socio- E
economic ladder by means of educational opportunity. Failing
to remove the creamy layer treats creamy layer OBCs and non-
creamy layer OBCs as equals. In the same paragraph, Justice
Sawant stated that' ... to rank [the creamy layer] with the rest of
the backward classes would ... amount to treating the unequals F
equally... " violating the equality provisions of the Constitution.
24. According to the Kerala Legislature, there was no
creamy layer in Kerala. The legislation was challenged in Indra
Sawhney v Union of India & Others (2000) 1 SCC 168, G
(hereinafter referred to as Sawhney II). The Court struck the
two provisions that barred creamy layer exclusion, concluding
that non-inclusion of the creamy-layer and inclusion of forward
castes in reservation violates the right to equality under Article
14 and the basic structure.
H
344 SUPREME COURT REPORTS [2008] 4 S.C.R.

A 25. In Sawhney II at para 65, the Court had gone to the .l,
•
extent of observing that not even the Parliament, by
constitutional amendment, could dismantle the basic structure
by including the creamy layer in reservation:
"What we mean to say is that the Parliament and the
B legislature in this country cannot transgress the basic
feature of the Constitution, namely, the principle of equality
enshrined in Article 14 of which Article 16(1) is a facet.
-f ...
Whether the creamy layer is not excluded or whether
forward castes get included in the list of backward classes,
c the position will be the same, namely, that there will be a
breach not only of Article 14 but of the basic structure of
the Constitution. The non-exclusion of the creamy layer
or the inclusion of forward castes in the list of backward
classes will, therefore, be totally illegal. Such an illegality
D offending the root of the Constitution of India cannot be
allowed to be perpetuated even by constitutional
amendment." ~
.
26. By definition, the creamy and non-creamy are unequal
when it comes to schooling. Relative to their non-creamy
E counterparts, the creamy have a distinct advantage in gaining
admission. While the creamy and non-creamy are given equal
opportunity to gain admission in the reserved category, this
equality exists in name only. Will the OBC daughter of a Minister,
IAS officer or affluent business owner attend better schools than
F her non-creamy counterpart? Yes. Will she go to private tuitions ~ .
unaffordable to her non-creamy counterpart? Certainly. And
where will she cram for the all-decisive entrance exams? In a
coaching center? Of course. Will she come home from school
to find a family member waiting? Probably. And when she seeks
G help from her parents, are they educated and able to give
superior assistance with schoolwork? Most likely.
27. I take judicial notice of these anecdotes, for they flesh
out a simple fact: she has all the resources that her non-creamy
"''
counterpart lacks. It is no surprise that she will outperform the
H
{~
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 345
[DALVEER BHANDARI, J.]

non-creamy. On average, her lot will take the reserved seats. A
~
• 28. I cannot consider the OBC Minister's daughter and
the non-creamy OBC as equals in terms of their chances at
earning a university seat; nor can I allow them to be treated
equally. To :ump them in the same category is an unreasonable
classification. Putting them in head-to-head competition for the 8
same seats violates the right to equality in Articles 14, 15 and
16.

- ~
29. In its conclusion at para 122, M. Nagaraj & Others v.
Union of India & Others (2006) 8 SCC 212, a Constitution c
Bench of this Court while dealing with Article 16(4A) and 16(48)
with regard to SC and ST observed as under:-

"We reiterate that the ceiling limit of 50%, the concept of
creamy layer and the compelling reasons, namely,
backwardness, inadequacy of representation and overall D
administrative efficiency are all constitutional requirements
•I, without which the structure of equality of opportunity in
Article 16 would collapse."
It was contended that Nagraj is obiter in regard to creamy
layer exclusion. According to Nagraj, reservation in promotion E
for SC/ST is contingent on exclusion of the creamy layer. (paras
122, 123 and 124). The contention of the Union of India cannot
be accepted. The discussion regarding creamy layer is far from
obiter in Nagraj. If the State fails to exclude the SC/ST creamy
F
.. layer, the reservation must fall. Placing this contingency in the
conclusion makes the discussion of creamy layer part of the
ratio.

30. In sum. creamy layer inclusion violates the right to
equality. That is. non-exclusion of creamy layer and inclusion of
G
forward castes in reservation violates the right to equality in
Articles 14. 15 and 16 as well as the basic structure of the
:::::c~sHution.
-~
If you belong to the creamy layer, you are not
SEBC. H
~ I
346 SUPREME COURT REPORTS [2008] 4 S.C.R.

A 31. One of the prominent questions raised in the writ ...
I
petitions is whether creamy layer OBCs should be considered
socially and educationally backward under the provisions of
Article 15(5). While interpreting this provision, a basic syllogism
must govern our decision. If you belong to the creamy layer, you
B are socially advanced and cannot be given the benefit of
reservation. (See: Sawhney I).
32. Once one is socially advanced, he cannot be socially
and educationally backward. He who is socially forward is likely ~ ..,.
to be educationally forward as well. If either condition (social or
c educational) goes unmet, one cannot qualify for the benefit of
reservation as SEBC. Being socially advanced, the creamy layer
is not socially backward pursuant to Articles 15(4) and 15(5) of
the Constitution.
33. Even the text of Articles 15(4) and 15(5) provides for
D
creamy layer exclusion. In this sense, one could say that the
term "creamy layer" is synonymous with "non-SEBC".
-J
34. Similar interpretation is given to "backward classes"
under Article 16(4). The Parliament could not reasonably make
E reservation for non-backwards. Such a Bill on the face of it would
violate the Constitution. In Sawhney I, the Government of India
issued an O.M. on 13 August 1990, reserving 27% of
Government posts to SEBCs. Writing for the majority, at para
792 of page 724, Justice Reddy explained that the creamy layer
F was not SEBC.
"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
G should broadly be the same in a given class. If some of the
members are far too advanced socially (which in the
context, necessarily means economically and, may also
mean educationally) the connecting thread between them ~-
and the remaining class snaps. They would be misfits in
H the class. After excluding them alone, would the class be
- '~
ASHOKA KUMAR THAKUR v< UNION OF INDIA & ORS. 347
[DALVEER BHANDARI, J.]

a compact class. In fact, such exclusion benefits the truly A
••
backward"

Even though the O<M. was silent on the issue of creamy
layer, Justice Reddy excluded the creamy layer at para 859(3)(d).
The O M could not go into effect until the creamy layer was
excluded< [para 861 (b}]. Exclusion was only in regard to OBC; B
SC/ST were not touched. (para 792). In Sar1hney I, the entire
discussion was confined only to Other Backward Classes<

-- ~ Similarly, in the instant case, the entire discussion was confir.ed
only to Other Backward Classes. Therefore, I express no opinion
with regard to the app!icability of exclusion of creamy layer to c
the Scheduled Castes and Scheduled Tribes.

• Creamy Layer OBCs are not educationally
backward

35. In addition to social backwardness, the text of 15(5) D
demands that recipient& are also educationally backward. Even
' though the creamy layer's status as socially advanced is
" sufficient to disqualify them for preferential treatment, the creamy
layer from any community is usually educated and will want the
same for its children. They know that education is the key to E
success. For most, it made them. People belonging to this group
do not require reservation.

• Creamy Layer Inclusion Robs the Poor and
Gives to the Rich:
F
36. In a number of judgments, the view has been taken
"' that the creamy layer's inclusion takes from the poor and gives
to the rich.

37. Our Courts in following cases had taken the same view.
[See: N.fti Thomas (supra), para 124 (seven-Judge Bench); G
K. C. Vasa nth Kumar &Another v. State of J(arnatalca. 1985
(Supp) SCC 714. paras 2, 24 and 28 (five-Judge Bench);
- ~ Sawhney /., paras 520, 793 and 859(3)(d) (nine-Judge Bench);
Asholca Kumar Thakur v< State of Bihar & Others (1995) 5
SCC 403, paras 3, 17 and 18 (two-Judge Bench); Sawhney H
~
348 SUPREME COURT REPORTS [2008)4 S.C.R. '
A II, paras 8-10, 27, 48 and 65-66 (three-Judge Bench); Nagaraj
-I
(supra), paras, 120-124 (five-Judge Bench); Nair Service '
Society v. State of Kera/a, (2007) 4 SCC 1; paras 31 and 49-
54 (two-Judge Bench)].

38. In Akhil Bharatiya Soshit Karamchari Sangh
B (Railway) v. Union of India & Others (1981) 1 SCC 246,
Justice Iyer had this to say about the creamy layer:

"92 .... Maybe, some of the forward lines of the backward
~ ........
classes have the best of both the worlds and their
c electoral muscle qua caste scares away even radical
parties from talking secularism to them. We are not
concerned with that dubious brand. In the long run, the
recipe for backwardness is not creating a vested interest
in backward castes but liquidation of handicaps, social
and economic, by constructive projects. All this is in another
D
street and we need not walk that way now.
94 .... Nor does the specious plea that because a few
"
.
harijans are better off, therefore, the bulk at the bottom
deserves no jack-up provisions merit scrutiny. A swallow
E does not make a summer. Maybe, the State may, when
social conditions warrant, justifiably restrict harijan benefits
to the harijans among the harijans and forbid the higher
harijans from robbing the lowlier brethren."
39. Creamy layer inclusion was not enough to strike an
F entire provision in this case. He suggests that creamy layer ,
exclusion is an issue to be dealt with at a later time.
"98. The argument that there are rich and influential harijans
who rob all the privileges leaving the serf-level sufferers
as suppressed as ever. The Administration may well
G
innovate and classify to weed out the creamy layer of SCs/
STs but the court cannot force the State in that behalf."
,
Thus, Justice Iyer does not mandate creamy layer ~

exclusion; rather, he leaves the question to the State.
H
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 349
[DALVEER BHANDARI, J.]

•• 40. Apart from judicial pronouncements, the Oversight A
Committee suggested that failure to exclude the creamy layer
would lead to unfair results. The Committee was cautious to
reach a conclusion.
41. In its Report, it stated that "... the decision taken was
to leave the matter to the Government of India, keeping in mind B
the fact that the 'creamy layer' 1s not covered in the Reservation
Act, 2006." (See: Oversight Committee, Vol. 1, p. 33 and 4.2.)
·~

42. Before "leaving" the matter to the Government. the
Committee nevertheless made its recommendation: "In case it c
is decided not to exclude the 'creamy layer', the poorest
among the OBCs will be placed at a disadvantage." (emphasis
added). (See. Oversight Committee at Appendix I in its Report
at p. 70, para 1.13). At page 69 of Vol. I of its Report, the
Committee offered data to support this conclusion:
D
.
~
"1.6: Appendix-2 examines in detail the status of the socio-
economic development of OBCs in respect of such parameters
as relate to poverty, health, education, unemployment, workforce
participation, land ownership etc. The analysis of the NSS data
clearly brings out that inclusion of the creamy layer will result E
in reserved seats getting pre-empted by the OBCs from the
top two deciles at the cost of the poorer income deciles of the
OBCs. Thus almost all rural OBCs as well as Urban OBCs from
the Northern, Central and Eastern regions of India will be
deprived of the intended benefits of reservation. F
[emphasis added]
1. 7: On the other hand, it was argued that if the creamy
layer of OBCs is denied access to reservation in education pari-
passau with the principle applied in the case of employment,
G
the reserved seats may not get filled up, again defeating the
., purpose of bringing in reservation for the OBCs. In a case study
>
from Karnataka (included in Annexure X), it has been clearly
shown that the OBC quotas have been utilized without any
compromise with academic excellence in a situation where the
H
350 SUPREME COURT REPORTS [2008] 4 S.C.R.

A creamy layer has been excluded. The apprehension that seats .-\
j
will not be filled up if the creamy layer is excluded has been
comprehensively shown to be unfounded. The case study shows
that the performance of students from below the creamy layer is
outstanding and much better than general category students."
B 43. The Committee could have played it safe. Despite
some opposition, the Committee included its opinion on the
matter. And that opinion is unequivocal: the creamy must be
excluded. ~

c 44. What is allegedly for the poor goes to the rich. Is that
reasonable? Trumpeted by the Parliament as a "... boost to the
morale of the downtrodden" and. "... in the right direction of
ensuring social justice to other backward classes ... " and
"ensuring social justice to those weaker sections ... ", Article
15(5) dupes those who actually need preferential treatment.
D
(See: Prof. Basudeb Barman, M.P., the Parliamentary Debates,
p. 531. December 21, 2005; Prof. M. Ramadass, M.P., at p. ,
510; and Shri C.K. Chandrappan, M.P., at p. 494 respectively). f

For the poorest of the poor, reservation in college is an empty
promise. Few of the financially poor OBCs attend high school,
E let alone college. Instead of rewarding those that complete Plus
2, the 93rd Amendment (Art 15(5)) poses another barrier: they
will have to compete with the creamy layer for reserved seats.
45. As explained, the poor lack the resources to compete
F with the creamy, who "snatch away" those seats. {N. M. Thomas
(supra), para 124 (Iyer, J.)}. With the creamy excluded, poor ~
... -
OBCs would compete with poor OBCs-the playing field levelled.
As it stands, the Amendment and Act serve one purpose: they
provide a windfall of seats to the rich and powerful amongst the
OBCs. It is unreasonable to classify rich and poor OBCs as a
G
single entity. As noted, th is violates the Article 14 right to
equality.
~,
46. Unless the creamy layer is removed, OBCs cannot
exercise their group rights. The Union of India and other
H respondents argued that creamy layer exclusion is wrong
ASHOKA KUMAR THAKUR v. UNION OF }NOIA & ORS 351
[DALVEER BHANDARI, J]

• because the text of the 93'0 Amendment bestows a benefit on A
"classes", not individuals. While it is a group right the group
must contain only those individuals that belong to the group. I
first take the entire lot of creamy and non creamy layer OBCs. 1
then remove the creamy layer on an 1ndividu.al basis based on
their income, property holdings. occupation, etc. What is left is B
a group that meets constitutional rnusteL It 1s a group right that
must also belong to individuals. if the right '.s to have any
\.. meaning. If one OBC candidate is denied special provisions
that he should have received by law, it is not the group's
responsibility to bring a craim. He would be the one to do so.
He has a right of action to chatlenge the ruling that excluded him
c
from the special provisions afforded to OBCs. In this sense, he
has an individual right. Grou~ and indiv!dual rights need not be
mutually exclusive. In this cas,e. it is not one or the other but both
that apply to the impugned legislation
D
• Whether the Creamy Layer exists outside
•
~ India?:
47. An interesting question arises: does the concept of
creamy layer exist outside India? A 2003 study carried out m
the United States suggests that it does. The study by William E
Bowen, former president of Princeton University. found that when
you look at students with the same Scholastic Aptitude Test (SAT)
scores, certain groups have a better chance of being admitted
to college. ''The New Affirmative Action." by David Leonhardt.
~
New York Times, 30 September 2007, p. 3. All things being F
~

equal, one's chance of gaining admission is augmented by
belonging to one of the preferred groups. lndividuais belonging
to these groups are given preferential treatment over those who
do not.
G
48 The study demonstrated that Stack, Latino and Native-
Americans with the same SAT scores as White or Asian
). studerts had a 28% better chance than the White or Asian
studer ·- ... ; gaining admrssior those whose parents attended
the college had a 20% advantage over those whose parents
H
~i
352 SUPREME COURT REPORTS [2008] 4 S.C.R.

A did not; and the poor received no advantage whatsoever over J,
'
the rich. (See: New York Times article, p. 3.)
49. The statistics indicate that the failure to exclude the
creamy layer ultimately leads to a situation in which deserving
students are excluded. When we revert to the Indian scenario,
B as long as the Government gives handouts to certain groups,
the creamy layer therein will "lap" them up. A scheme in which
the poor receive no advantage can be remedied by excluding ·~
the creamy layer.

c 50. Even the Mandal Commission, which was established
in 1979 with a mandate to identify the socially and educationally
backward, admitted that the creamy layer was robbing fellow
OBCs of reservation. In reference to Tamil Nadu, it said: "In actual
operation, the benefits of reservation have gone primarily to the
relatively more advanced castes amongst the notified backward
D
classes." (See: P.37, 8.13 of the Report of the Backward
Classes Commission, First Part, Vols. 1-2, 1980). It also stated f
.
that: "it is no doubt true that the major benefits of
r
reservation ..... will be cornered by the more advanced
sections ..... " but reasoned that this was acceptable because
E reform is presumably slow and should start with the more
advanced of the backward. (See: Page 62, para 13.7
(recommendations)).
51. In N. M. Thomas & Others case (supra), Krishna Iyer,
F J. in his concurring judgment in para 124 noted that the research .;
-,....
conducted by the A.N. Sinha Institute of Social Studies, Patna, •
had revealed a dual society among harijans in which a tiny elite
gobbles up the benefits.
• Severing the Creamy Layer
G
52. Technically speaking, I am severing the implied
inclusion of the creamy layer. It is severable for two reasons.
First, a nine-Judge Bench in Sawhney I severed a similar ... '
..
provision wherein the creamy layer was not expressly included,
upholding the rest of the O.M.'s re:;ervation scheme. Second,
H
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 353
[DALVEER BHANDARI, J.]

because the Parliament must have known that Sawhne!' I had A
• excluded the creamy layer, it seems likely that the Parliarnent
'
also realized that this Court may do the same. A cursory revie'.'f
of the Parliamentary Debates regarding Article 15(5) clearly
reveals that the Parliament discussed the Sawhney f judgmero•
m detail. (See: for example. comments made by Shri Moh"'n H
Singh, pA74 and Shri Devendra Prasad, pages 478-479 on
21 December 2005) Had the Parliament insisted on creamy
layer inclusion, it could have said as much in the text of 15(5).
Instead, the Parliament left the text of 15(5) silent on the issue,
delegating the issue of OBC identification to the executive in c
Section 2(g) of the Reservation Act.
53. The test for severability asks a subjective question.
had the Parliament known its provision would be struck would it
still have passed the rest of the legislation? (See. R.i.:l.D.
Chamarbaugwalla & Another v. Union of India & Another, D
AIR 1957 SC 628 at page 637 at para 23). It is never easy to
•lr say what the Parliament would have done had it known that part
of its amendment would be severed. Nevertheless, I find it hard
to imagine that the Parliament would have said, "if the creamy
is excluded, the rest of the OBCs should be denied reservation E
:n education." It seems unlikely that it would have been an a!l-or-
nothing proposition for the Parliament, when the very goal of
the impugned legislation of promoting OBC educational
advancement does not depend on creamy layer inclusion. For
these reasons, I sever or exclude the implied inclusion of the F
creamy layeL
• Identification of Creamy Layer
54. Income as the criterion for creamy layer exclusion is
insufficient and runs afoul of Sawhney I (See· page 724 at G
para 792). !dentification of the creamy layer has been and should
be left to the Government, subject to judicial direction. For a
vatid method of creamy layer exclusion, the Government may
·~ use.its post-Sawhney I criteria as a template. (See: O.lvL of 8-
9-1993, para 2(c)/Colurrn 3. approved by this Court in Asholra H
354 SUPREME COURT REPORTS (2008] 4 S.C.R.

A Kumar Thakur (supra), para 10). This schedule is a ~

comprehensive attempt to exclude the creamy layer in which
income, Government posts, occupation and land holdings are
taken into account. The Office Memorandum is reproduced
hereunder:
B "No. 36012/22/93- Estt (SCT)
Government of India
Ministry of Personnel, Public Grievances & Pension
(Department of Personnel & Training)
New Delhi, the 8th September, 1993
c
OFFICE MEMORANDUM

Subject: Reservation for Other Backward Classes in Civil
Posts and Services under the Government of
India - Regarding.
D
The undersigned is directed to refer to this Department's
O.M. No.36012/31/90-Estt(SCT) dated 13th August, 1990 and
25th September, 1991 regarding reservation for Socially and i-'

Economically Backward Classes in Civil Posts and Services
under the Government of India and to say that following the
E
Supreme Court judgment in Indra Sawhney v. Union of India
& Others (Writ Petition (Civil) No.930 of 1990) the Government
of India appointed an Expert Committee to recommend the
criteria for exclusion of the socially advanced persons/sections
from the benefits of reservation for Other Backward Classes in
F civil posts and services under Government of India.
1 ~

2. Consequent to the consideration of the Expert "
Committee's recommendation 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
G
follows:c
(a) 27% (Twenty seven percent) of the vacancies in
civil posts and services under the Government of -4'.

India, to be filled through direct recruitment, shall
H be reserved for the Other Backward Classes.
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS 355
[DALVEER BHANDARI, J.]

Detai!ed instruct:ons relating to the procedure to A
•• be followed for enforcing reservation will be issued
separate:y.
(b) Candidates belonging to OBCs recruited on the basis
of merit in an open competition on the same
8
standards prescribed for the general candidates
shall not be adjusted against the reservation quota
of 27%.

(c) (i) The aforesaid reservation shall not apply to
persons/sections mentioned in column 3 of the C
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 D
occupations, camngs will be issued separateiy
by the Ministry of Welfare.
(d) The OBCs for the purpose of the aforesaid
reservation would comprise, in the first phase. the
castes and communities which are common to both E
the lists in the report of the Mandal Commission and
the State Government's Lists. A list of such castes
and communities is being issued separateiy by the
Ministry of Welfare.
F
(e) The aforesaid reservation shall take immediate eftect
However, this will not apply in vacancies whero th~
recruitment process has already been initiated prior
to the issue of this order.
3 Similar instructions in respect of public sector G
undertakings and financial :nstitutions including public sector
banks will be issued by the Department of Public Enteror:ses
"- and by the Ministry of Finance respectively from the date of this
Office Memorandum.
H
356 SUPREME COURT REPORTS [2008] 4 S.C.R.

A
SCHEDULE

Description of To whom rule of exclusion
Category will apply.

B I. CONSTITUTIONAL Son(s) and daughter(s) of
POSTS (a) President of India;
(b) Vice President of India;
(c) Judges of the Supreme Court
c and of the High Courts;
(d) Chairman & Members of
UPSC and of the State Public
Service Commission; Chief
Election Commissioner;
D Comptroller & Auditor General of
India;
(e) Persons holding
Constitutional positions of like
nature.
E
II. SERVICE Son(s) and daughter(s) of
CATEGORY
A. Group NClass 1 (a) parents, both of whom
F officers of the All are Class I officers;
India Central and (b) parents, either of whom
State Services is a Class I officer; '
(Direct Recruits)
(c) parents, both of whom are
G 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
H
" I

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 357
[DALVEER BHANDARI, J.)

A
;. dies or suffers permanent
' incapacitation and before such
death or such incapacitation has
had the benefit of employment in
any International Organisation'.:'.:'.
UN, IMF, World Bank, etc. for a B
period of not less than 5 years.
(e) parents, both of whom are
class I officers die or suffer
permanent incapacitation and c
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
D
Bank, etc. for a period of not less
than 5 years .
.
• (f) Provided that the rule of
exclusion shall not apply in the
following cases :- E
(a) Sons and daughters of parents
either of whom or both of whom
are Class-I officers and such
parent(s) dies I die or suffer
permanent incapacitation. f

(b) A lady belonging to OBC
category has got married to a
Class-I officer, and may herself
like to apply for a job.
c
Group B/Class II Son(s) and daughter(s) of
officers of the Central (a) parents both of whom
& State Services are Class II officers.
(Direct Recruitment) (b) parents of whom only the
H
358 SUPREME COURT REPORTS [2008] 4 S.C.R.

A
husband is a Class II officer and -I
I
he gets into Class I at the age of
40 or earlier.
(c) parents, both of whom are
8 Class II officers and one of them
dies or suffers permanent
incapacitation and either one of
them has had the benefit of
~ r
employment in any International
c Organisation like UN, IMF, World
Bank, etc. for a period of not less
than 5 years before such death or
permanent incapacitation;
(d) parents, of whom the husband
[j 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 (e) parents, of whom the wife is a
Class I officer (Direct Recruit or
pre-forty promoted) and the
husband is a Class 11 officer and
the husband dies or suffers
F permanent incapacitation.
.
Provided that the rule of exclusion "
shall not apply in the following
cases:
G Sons and daughters of
(a) Parents both of whom are
Class II officers and one of them
dies or suffers permanent _.-'
incapacitation.
H
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 359
[DALVEER BHANDARI, J.]

(b) Parents, both of whom are
A
Class II officers and both of them
die or suffer permanent
incapacitation, even though either
of them has had the benefit of '
empioyment in any International 8
Organisation Hke UN, IMF, World
Bank, etc. for a period of not less
than 5 years before their death or
permanent incapacitation.
The criteria enumerated in A & B
c
C Employees in
Public Sector above in this Category will apply
Undertakings etc. mutatis mutandi to officers holding
equivalent or comparable posts in
PSUs, banks, Insurance
D
Organisations, Universities, etc.
and also to equivalent or
..• comparable posts and positions
under private employment,
Pending the evaluation of the
posts on equivalent or E
comparable basis in these
institutions, the criteria specified
'.n Category VI below will apply to
the officers in these Institutions.
F
• Ill. ARMED FORCES Son(s) and daughter(s) of
parents
INCLUDING either or both of whom is or are in
PARAMILITARY the rank of Colonel and above in
FORCES the Army and to equivalent posts G
(Persons holding in the Navy and the Air Force and
civil posts are not the Para Military Forces;
included)
Provided that:-
H
~ I

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

A
(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 herse,1r
B has reached the rank of Colonel;
(ii) the services ranks below
Colonel of husband and wife shall
not be clubbed together: ...
c (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 the falls in the
D service category under item No.II
in which case the criteria and
conditions enumerated therein will ,,.
apply to her independently.

E IV. PROFESSIONAL
CLASS AND
THOSE ENGAN-
GED IN TRADE &
INDUSTRY
F (I) Persons
engaged in
profession as a
doctor, lawyer,
Chartered
G Accountant,
Income-Tax
Consultant,
financial or
management
H consultant, dental
\ ' ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS.
[DALVEER BHANDARI, J.]
361

A
surgeon, engineer,
architect, computer
specialist, film
artists and other
film professional,
author, playwright, B
sports person,
sports professional,
media professional
or any other voca-
tions of like status. c
Criteria specified
against Category VI
will apply:
(II) Persons engaged in Criteria specified against
D
trade, business and Category VI will apply:
•.. industry
Explanation:
(i) Where the husband is in some
profession and the wife is in a E
Class II or lower grade
employment, the income I wealth
test will apply only on the basis of
the husband's income.
• F
(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
G
wife's income and the husband's
income will not be clubbed with
it.

V. PROPERTY Son(s) and daughter(s) of
H
~ I

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

A ~
OWNERS persons belonging to a family I

A. Agricultural (father, mother and minor children)
holdings which owns
(a) only irrigated land which is
B equal to or more than 85% of the
statutory ceiling area, or
(b) both irrigated and unirrigated
~
land, as follows:

c (i) The rule of exclusion will apply
where the pre-condition exists that
the irrigated area (having been
brought to a single type under a
common denominator) 40% or
D more of the statutory ceiling, limit
for irrigated land (this being,
calculated by excluding the y'
unirrigated portion). If this pre-
condition of not less than 40%
exists, then only the area of
E
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
F 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
G terms of irrigated land is 80% or
more of the statutory ceiling limit
for irrigated land, then the rule of
~/
exclusion will apply and dis-
entitlement will occur.
H
I ~
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 363
[DALVEER BHANDARI, J.]

(ii) The rule of exclusion will not
A
apply if the land holding of a family
is exclusively unirrigated.
8. Plantations
(i) Coffee, tea, Criteria of income/wealth 8
rubber. etc. specified in Category VI below will
apply.
(ii) Mango, citrus, apple Deemed as agricultural holding
plantations etc. and hence criteria at A above c
under this Category will apply.
C. Vacant land and/or Criteria specified in Category VI
buildings in urban below will apply.
areas or urban
agglomerations Explanation: Building may be D
used for residential, industrial or
commercial purpose and the like
two or more such purposes.

VI. INCOME/ Son(s) and daughter(s) of E
WEALTH TEST
(a) Persons having gross income
of Rs.1 lakh or above or
possessing wealth above the
exemption limit as prescribed in F
the Wealth Tax Act for a period of
three years.
(b) Persons in Categories I, 11, Ill
and VA who are not disentitled to
the benefit of reservation but have
G
income from other sources of
wealth which will bring them within
the income/wealth criteria
mentioned in (a) above.
I H
364 SUPREME COURT REPORTS [2008] 4 S.C.R.

A
Explanation:
(i) Income from salaries or
agricultural land shall not be
clubbed;
B (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
c interregnum may be less.
Explanation: Wherever
the expression
"permanent incapa-
citation" occur in this
D
schedule, it shall mean
incapacitation which
results in putting an
officer out of service.

E Smt. Sarita Prasad
Joint Secretary to the Government of India."
55. In sum, the schedule excludes the children of those
who hold constitutional posts, e.g., the children of the President
of India, Supreme Court Judges, Chairman and Members of
F UPSC and others are excluded. Class 1 Officers' children are
not eligible for OBC perks either. When both parents are Class-
11 Officers, their children are excluded. The same criteria that
apply to Class-I and II officers apply to children of parents who
work at high levels within the private sector. Agricultural owners
G are excluded when their irrigated holdings are more than or equal
to 85% of the statutory ceiling. The O.M. further excludes persons
having a gross annual income of Rs.2.5 lakh or more. The
Government raised the income limit from Rs.1 to Rs.2.5 lakh on
09.03.2004 vide O.M. 36033/3/2004.
H
\ ~
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 365
[DALVEER BHANDARI, J.]

.\ 56. The creamy layer schedule of the O.M. dated 8.9.93, A
in my opinion, is not comprehensive. This should be revised
periodically- preferably once in every 5 years, in order to ensure
that creamy layer criteria take changing circumstances into
account.
8
57. Apart from the people who have been excluded vide
the office memo, I urge the Government to make it more
comprehensive. The Government should consider excluding the
children of sitting and former Members of Parliament (MP) and
Members of Legislative Assemblies (MLA) from special
benefits. lf constitutional authorities have been excluded from
c
benefits because of their status or resources, the same should
apply to children of former and sitting MPs and MLAs. I hope
the judiciary will not have to involve itself in this matter.
2. Applying Article 21A to the Reservation Act D

~
58. On 18 December 2006, in the Rajya Sabha Debate
" on the Reservation Act, Member of Parliament and former
Governor, Dr. P.C. Alexander summed up what would become
one of Petitioners' arguments. Should Rs.17 .000 crores be
spent on implementing the Reservation Act for higher education E
when primary/secondary schooling is in such bad shape?
Dr. Alexander stated:
"Sir, this spending Rs.17,000 crores or whatever amount
is needed for adding seats in the Engineering colleges, F
,.• llMs and llTs is reversing our priorities. If you have the
money for education, spend it on schools. Spend it on the
rural areas for primary schools; spend it on the schools,
which are poorly starved in the urban areas. Instead of
doing that, you spend it by adding to the numbers because G
you want to appease the so-called poorer sections in the
higher castes. So, we have taken care of you and you tell
'~
the backward classes we are taking care of all of you.
This is where we land ourselves :n trouble. We have cash
resources. They should be spent where priorities are fixed H
~ I

366 SUPREM! COURT REPORTS [2008] 4 S.C.R.

A clearly in our eyes and we don't want to do that."
Spending on higher at the expense of lower education
raises the specter of conflict with Article 21A. By the 86 1h
Amendment, Article 21Awas inserted in our Constitution. Article
21A reads as follows:
8
"The State shall provide free and compulsory education to
all children of the age of six to fourteen years in such
manner as the State may, by law, determine."
59. Under Article 21A, it is a mandatory obligation of the
C State to provide free and compulsory education to all children
aged six to fourteen. In order to achieve this constitutional
mandate, the State has to place much greater emphasis on
allocating more funds for primary and secondary education.
There is no corresponding constitutional right to higher
D education. The entire Nation's progress virtually depends upon
the proper and effective implementation of Article 21A.
60. This Court in Unnl Krishnan, J.P. & Others v. State
of Andhra Pradesh & Others (1993) 1 SCC 645 para 166
E held as under:
•... right to education is implicit in and flows from the right
to life guaranteed by Article 21. That the right to education
has been treated as one of transcendental importance in
the life of an individual [and] has been recognized not only
F in this country since thousands of years, but all over the
world .... without education being provided to citizens of
this country, the objectives set forth in the Preamble to the
Constitution cannot be achieved. The Constitution would
fail."
G
This observation encouraged the Parliament to i~sert
Article 21A into the Constitution.
61. In Unnl Krishnan (supra), Justice Reddy observed
that the quality of education in Government schools was
H
.,
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 367
[DALVEER BHANDARI, J.]

.., extremely poor and that the schools.were woefully inadequate A
to the needs of the children. He noted that many countries spend
6% to 8% of Gross Domestic Product on education. Our
expenditure on education is just 4% of GDP.
62. Though an improvement over past performance, the
B
overall education picture leaves much to be desired. The bad
news is really bad. Even where we have seen improvement,
,. there is still failure. A survey by Pratham, an NGO, fleshes out
the acute problems found in rural schools. (See: ASER 2007 -
Rural Annual Status of Education Report for 2007, published
on January 16, 2008). The survey covered 16,000 villages. As
c
Pratham indicates, there are an estimated 140 million children
in the age group 6 to 14 years in primary schools. Of these 30
million cannot read, 40 million can recognize a few alphabets,
40 million can read some words, and 30 million can read
D
paragraphs. Over 55 million of these children will not complete
four years of school, eventually adding to the illiterate
"' population of India. The national literacy rate is 65%.
63. 24 districts with more than 50,000 out of school chHdren
means we have failed 24 times over. 71 districts in which there E
are 60 students per teacher is just as bad, if not worse. According
to Pratham (and in line with the Ministry of HRD's six-month
review), the number of out of school children has hovered around
7,50,000. [page 6]. Moreover, it goes without saying that
children need proper facilities. Today, just 59% of schools can F
,,• boast of a !JSeable toilet. [page 49].
64. The quality of education is equally troubling. For
standards I and II, only 78.3% of students surveyed could
recognize letters and read words or more in their own language.
[page47]. In 2006, it was even worse-only 73.1% could do so. G
It is disheartening to peruse the statistics for standards Ill to V,
where only 66.4% could read Standard I text or more in their
' ... own language in 2007. [page 47]. As Pratham stated at
page 7:
H
368 SUPREME COURT REPORTS [2008] 4 S.C.R.

A "What should be more worrying though, is the fact that in
class 2, only 9 percent children can read the text /
appropriate to them, and 60 percent cannot even
recognise numbers between 10 and 99."
65. In the third to fifth standards, 40% of students surveyed
8
could not subtract. The latest figures indicate that 58.3% children
in the fifth standard read at the level appropriate for second
Standard students. [page 32]. In both 2005 and 2007, only
74.1% of enrolled children were in attendance. [page 49].
C 66. The learned Solicitor General, MrVahanvati, submitted
that the Government has now placed sufficient emphasis on
primary education. In 2001-2002, the Government launched
Sarva Shiksha Abhiyan (SSA). This national programme's goal
is to universalize elementary education. It supplements
D Governmental spending on education. As the Solicitor General
explained, it was founded on the idea that education for those
between the ages of six to fourteen is a fundamental right. In •
f
this way, SSA seeks to fulfill the Government's obligation under
Article 21A to provide free and compulsory education to this
E age group. Some of the SSA's accomplishments merit mention.
67. By March 2007, 2;03,577 toilets had been constructed
or were under construction, covering 87% of the goal; more than
six crore free textbooks had been supplied - 96% of the goal;
1,93,220 new schools had been completed or were under
F construction, i.e., 80% of the desired mark. The learned Solicitor
General further provided that enrolment for all districts in 2004-
05 for classes 1-V was 11,82,96,540. In 2005-06, the number
increased to 12,46, 15,546. A similar increase was seen in
Classes Vl-VllNlll: from 3,77, 17,490 to 4,36,67,786. The total
G number of teachers increased from 36,67,637 in 2003-04 to
46,90, 176 in 2005-06.
68. It is the learned Solicitor General's contention that SSA
was responsible for many of the gains cited above. This includes
H the improved statistics on the student-teacher ratio, out of school
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 369
[DALVEER BHANDARI, J.]

children and enrollment rate for girls. A
\
69. While the Government is on the right track with regard
to improving the infrastructure of our system, books and
buildings only go so far. They are necessary but not sufficient
for achieving the ultimate goals of (1) keeping children in school,
8
(2) ensuring that they learn how to think critically and (3) ensuring
that they learn skills that will help them secure gainful
employment. The quality of education provided in the majority
of primary schools is woeful. That is why I find it necessary to
review Government spending on education - especially at the C
primary/secondary level.
70. Undoubtedly, the Government has allocated more funds
of late for education, but we need to have far more allocation of
funds and much greater emphasis on free and compulsory
education. Anything less would flout Article 21A's mandate. D
According to H.R.D. Annual Reports read with the Union of India
Budget 2008-09, we spend roughly seven times as much on
..' the individual college student than the individual primary or
secondary student.
Spending per Student: Comparing that i:Jhich is E
spent on each primary/secondary student versus each
higher education student
Year & Estimated# Total Rs. Expenditure
Level of of Enrolled Allocated** per student F
Schooling Students* In Rs.

2006-2007
School Education/ 219083879 168970000000 771
Literacy
2006-2007 G
Tertiary Education 11777296 69120900000 5868
2007-2008
School Education/
Literacy 219083879 231913500000 1059 IH
370 SUPREME COURT REPORTS [2008] 4 S.C.R.

A 2007-2008
Tertiary Education 11777296 63973600000 5432 • /
I
2008-2009
School Education/
Literacy 219083879 278500000000. 1271
B
2008-2009
Tertiary Education 11777296 108528700000 9215

• = Estimated number of students for primary/secondary level is taken from
2004-2005 Annual Report, p. 250 at http://www.education.nic.in/AR/
c AR0607-en.pdf. In the same Annual Report, 11777296 students were
enrolled in higher education in 2004-2005. For consistency's sake, I
have used the 2004-2005 estimates. I have found no information that
suggests that enrolment for one has significantly outpaced the other.
••=Government of India, Expenditure Budget Vol. 1, 2008-2009, p. 6, Total
Expenditure of Ministries/Departments (school education/literacy and
D higher education have been added).
71. In a country where only 18% of those in the relevant
age group make it to higher education, this is incredible. See
,.•
NSSO 1999-2000. It is not suggested that higher education
E needs to be neglected or that higher education should not
receive more funds, but there has to be much greater emphasis
on the primary education. Our priorities have to be changed.
Nothing is really more important than to ensure total compliance
with Article 21A. How can a sizeable portion of the population
F be precluded from realizing the benefits of development
when almost everyone acknowledges that the children are ..\ .i;::
our future? ...

72. Education for children up to the age of fourteen years
should be free. This has also been suggested in the
G recommendations of the Kothari Commission on Education in
1966. Taking the country's rampant poverty into account, free
education up to the age 14 years is absolutely imperative. There
is no other way for the poor to climb their way out of this -4'
,
predicament.
H
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 371
[DALVEER BHANDARI, J.]

73. Mr. P. P. Rao, learned Senior Advocate, rightly A
""' \
,
submitted that when you lack a school building, teachers, books
and proper facilities, your schooling might be "free" but it is not
an "education" in any proper sense. Adequate number of schools
must be established with proper infrastructure without further
delay. In order to achieve the constitutional goal of free and B
compulsory education, we have to appreciate the reality on the
ground. A sizeable section of the country is still so poor that
~
many parents are compelled to send their children to work. The
State must carve out innovative policies to ensure that parents
send their children to school. The Mid-Day Meal Scheme will
c
go a long way in achieving this goal. But, apart from Mid-Day
Meals, the Government shouid provide financial help to extremely
poor parents.

74. In addition to free education and/or other financial
assistance, they should also be given books, uniforms and any D
other necessary benefits so that the object of Article 21A is
•... achieved. Time and again, this Court, in a number of judgments,
has observed that the State cannot avoid its constitutional
obligation on the ground of financial inabilities. (See."
Hussainara Khatoon & Others (Ill) v. Home Secretary, State E
of Bihar, Patna (1980) 1 SCC 98, 107 at para 10).
75. In Vasanth Kumar (supra) at para 150, Justice
Venkataramiah suggested that the State provide preferential
treatment such as tuition, scholarships, free boarding and
lodging, etc. According to UNESCO's Education for All, Global F
,,... Monitoring Report (2008) at page 115, at least fourteen
countries have cash-transfer programmes that target poor
households with school-age children. The largest programme
is in Brazil, where 46 million people receive an education transfer
of up to $44 USO monthly per household in extreme poverty G
with children below age 16. According to the Report, the
programme has reduced drop-out rates by up to 75% among
beneficiaries in its more recent stage .
•
76. Such a programme is not foreign to India. According
H
372 SUPREME COURT REPORTS (2008] 4 S.C.R.

A to UNICEF, the State of Gujarat put the idea of financial
incentives for youth into action: l /II>-
~

"Figures indicate that the school enrolment drive of the
state Government supported by incentives like Vidyalaxmi
bond of Rs.1,000 given to each girl who completes primary
B education and 60 kg of wheat for tribal girls attending
school, has met with significant success. In addition to the
various incentives by the Government, many a corporate
houses and community have also come forward to motivate -l ,-

parents and children by donating school bags, uniforms,
c stationery, etc. As a result, the drop-out rate has come
down from 35.31 % in 1997-1998 to 3.24% in 2006-2007
in class 1-5. In girls, this rate has dropped from 38.95%
to 5.97 in the same time period."
77. In January 2008, Haryana Chief Minister Mr. Bhupinder
D
Singh Hooda unfurled an incentive scheme for SC students in
which students would receive a one-time payment in addition
to a monthly stipend for attending school. (See: "Incentives
.
'r

announced to curb dropout rate", The Tribune, 5 Jan. 2008).
The relevant portion is mentioned hereinbelow:
E
"Secretary, education, Rajan Gupta said a one-time
allowance of Rs. 740 to Rs.1,450 would be given to SC
students from class I to XII. ... Under the monthly incentive --
scheme, boys and girls studying in class I to V would be
F given Rs100 and Rs.150, respectively, per month and boys
and girls of class VI to VIII Rs.150 and Rs.200. Similarly, ~

boys and girls of class IX to XI I would be given Rs.200 and '
Rs.300, respectively, and boys and girls studying science
subjects in class XI and XII Rs.300 and Rs.400,
respectively.... This monthly incentive to the students would
G
be deposited in their bank accounts to maintain
transparency in the scheme, he added."
78. In the name of transparency, students' attendance ~
/

records could be made available to administrators and parents.
H Students would be paid to attend school. They would receive a
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 373
[DALVEER BHANDARI, J.]

sum for each day of school that they attended. If you only attend A
'\ 7 cut of 1O school days, you would only receive 70% of the
stipend.
79. Ultimately, this is the most important aspect of
implementing Article 21A, incentives should be provided to
parents so that they are persuaded to send their children to 8
school. More than punishment, creative incentive programmes

-
will go a long way in the implementation of the fundamental right
> enshrined under Article 21A.

Historical Perspective on Compulsory Education: c
80. Almost two centuries ago, Clause 43 of The Charter
Act of 1813 made education a State responsibility. [See: "Free
and Compulsory Education: Genesis and Execution of
Constitutional Philosophy", Dr. P.L. Mehta and Rakhi Poonga,
Deep and Deep Publications, New Delhi (1997)]. [pages 42- D
47]. The Hunter Commission (1882-83) was the first to
•, recommend universal education in India. Thereafter, the Patel
Bill, 1917 was the first compulsory education legislation. It
proposed to make education compulsory from ages 6 to 11.
81. The Government of India Act, 1935 provided that E
"education should be made free and compulsory for both boys
and girls." Free and compulsory education got a further boost
when the Zakir Hussain Commission recommended that the
State should provide it. The 1944 Sargent Report strongly
recommended free and compulsory education for children aged F
...• six to fourteen. By 1947, primary education had been made
compulsory in 152 urban areas and 4995 rural areas.
82. The State has been making some endeavour to
provide free and compulsory education since 1813 in one form
G
or the other. When the original Framers gathered at the
Constituent Assembly, their desire to provide free and
compulsory education was well established. The real question
' ~
in the Debate was whether the original Framers would make
free and compulsory education justiciable or not. They oscillated
H
374 SUPREME COURT REPORTS [2008] 4 S.C.R

A between the options, first placing it in the fundamental rights
and later moving it to the directive principles of State policies ,-1

under Article 45 of the Constitution.
83. Over 50 years later, the Parliament revisited the subject
The Parliamentary debate on Article 21A offers a glimpse intc
B the history of compulsory education in other countries. The then
Minister of Human Resource Development, Dr. M.M. Joshi,

-
referred to the speech of Shri Gopal Krishna Gokhale on
compulsory education. While debating a bill in the imperial
~
legislative council in 1911, Shri Gokhale said that in most
c countries:
"... elementary education is both compulsory and free, and
in a few, though the principle of compulsion is not strictly
enforced or has not been introduced it is either wholly or
for the most part gratitutious, in India alone it is neither
D
compulsory nor free. Thus in Great Britain and Ireland,
France, Germany, Switzerland, Austria, Hungary, Italy,
Belguim, Norway, Sweden, the United States of America, ,,.•
Canada, Australia and Japan it is compulsory and free .
... . In Spain, Portugal, Greece, Bulgaria, Servia and
E Rumania, it is free, and in theory, compulsory, though
compulsion is not strictly enforced." [Lok Sabha Debates,
28 November, 2001, VoL20, page 476].
84. In 1948, the United Nations made its own
F pronouncement on compulsory education. Article 26(1) of the
Universal Declaration of Human Rights made free and ...
-
compulsory education a lofty if not enforceable goal. While many '
states consider it an authoritative interpretation of the United
Nations Charter, the Declaration is not a treaty and is not
intended to be legally binding. Article 26(1) states:
G
"Everyone has the right to education. Education shall be
free, at least in the elementary and fundamental stages.
Elementary education shall be compulsory. Technical and ~-
professional education shall be made generally available
H and higher education shall be equally accessible to all on

c:
I="
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS 375
[DALVEER BHANDARI. J.]

the basis of merit." A
85. Our original Framers put a similar emphasis on the
matter, placing free and compulsory education in the Directive
Princ~ples. The un-amended Article 45 provided that:

"The State shall endeavour to provide, within a period of B
ten years from the commencement of this Constitution, for
free and compulsory education for all children until they
complete the age of fourteen years."

86. At this juncture, I deem it appropriate to refer to the
Parliamentary Debate on the aspect of free and compulsory C
education. In the Lok Sabha debate of 28 November 2001 at
Vol. 20, Shri M.V.VS. Murthi, at page 499, stated:

"Unless the Government makes primary education
compulsory, no village can develop. If I say what they are D
doing in Andhra Pradesh, some Members may again cry
foul. In Andhra Pradesh, we are having Education
Committees. If there are any dropouts, the Committee will
go to the village and find out the reason as to why they
have dropped out. It is very important."
E
87. The Report of the Kothari Commission, 1964-1966,
headed by Prof. D. S. Kothari, provided important
recommendations on compulsory education. Nevertheless, the
circumstances of the day compelled it to soften its suggestions.
The Nation was relatively poor and could not afford drastic F
increases in education spending. Some excerpts of this report
are reproduced as under:
"5.01 .... But in any given society and at a given time, the
decisions regarding the type, quantity and quality of
educational facilities depend partly upon the ·resources G
available and partly upon the social and political philosophy
of the people. Poor and traditional societies are unable to
develop even a programme of universal primary
education. But rich and industrialized societies provide
universal secondary education and expanding and broad- H
376 SUPREME COURT REPORTS (2008] 4 S.C.R.

A based programmes of higher and adult education. Feudal <
t
and aristocratic societies emphasize education for a few.
But democratic and socialistic societies emphasize mass
education and equalization of educational opportunities.
The principal problem to be faced in the development of
B human resources, therefore, is precisely this: How can
available resources be best deployed to secure the most
beneficial form of educational development? How much
education, of what type or level of quality, should society .. or-
strive to provide and for whom?
c 5.03 Increasing the Educational Level of Citizens. In the
next two decades the highest priority must be given to
programmes aimed at raising the educational level of the
average citizen. Such programmes are essential on
grounds of social justice, for making democracy viable
D and for improving the productivity of the average worker
in agriculture and industry. The most crucial of these
programmes is to provide, as directed by Article 45 of the '
y

Constitution, free and compulsory education of good quality
to all children up to the age of 14 years. In view of the
E immense human and physical resources needed, however,
the implementation of this programme will have to be
phased over a period of time." ,,,,,.
88. When Article 21A was introduced, some Members of
Parliament argued that financially poor parents who fail to send
F their children to school should not be punished and that the word
"compulsion" in this Article should be understood to apply
~-
..
exclusively to the State.
89. Let me examine this argument. The 861h Amendment
made three changes to the Constitution. It added Articles 21A
G
and 51A(k) and amended Article 45. I turn my focus to Article
51A(k). In addition to rejecting an amendment that would have
neutered compulsory education, the Parliament made a positive ~-~

gesture. Though it never passed legislation seeking to implement
compulsory education, it had not completely ignored the subject.
H
ASHOKA KUMAR THAKLIR v. UNION OF INDIA & ORS. 377
[!JALVEER BHANDARI, J.]

From Article 51A(k}. it becomes clear that parents would be. A
'\ responsible for sending their children to school. Article 51A read
with 51A(k) is reproduced as under:
...
"It shall be the duty of every citizen of India - who is a
parent or guardian to provide opportunities for education
to his child or, as the case may be, ward between the age B
of six and fourteen years."

, )-
90. Just as Article 51A(a) does not penalize disrespect of
the National Flag, Article 51A(k} does not penalize parents/
guardian for failing to send children to school. There is, of c
course, legislation that gives teeth to Article 51A(a). (See:
The Prevention of Insults to National Honour Act, 1971, Section
3A).

91. Article 51A(k) indicates that it is parents, not the State.
who are responsible for making sure children wake up on time D
and reach school. Thus, Art!de 21A read with Article 51A(k)
> distributes an obligation amongst the State and parents: the
• State is concerned with free education, parents with compulsory.
Notwithstanding parental duty, the State also has a role to play
in ensuring that compulsory education is feasible - a topic I will E
•
cover below.

92. The Central Government has made some effort to fulfill
its obligation under Article 21A with regard to ;'free education."
Sarva Shiksha Abhiyan is one such example. When it comes to
"compulsory education," the Central Government has made no F
I
• such effort. The Parliament has not passed any legislation. The
executive has not issued any ordeL What we have is a patchwork
of different State and Union Territory laws. These States/UTs
(and NCR) include:
G
Assam, Andhra Pradesh. Bihar, Chhatisgarh, Goa,
Gujarat, Haryana, Himachal Pradesh, Jammu & Kashmir,
Karnataka, Kerala, Madhya Pradesh, Maharashtra,
• Orissa, Punjab, Rajasthan, Sikkim, Tamil Nadu, Uttar
Pradesh, West Bengal, Delhi, Andaman & Nicobar
H
378 SUPREME COURT REPORTS [2008] 4 S. C.R.

A Islands.
t
93. The majority of the States and Union Territories levy
very small fines on parents. I note that these laws do not go into
effect with one unexcused absence. Notice is given to the
parents, giving them time to remedy the problem. Of course,
B enforcement is almost always a different story.

94. In contrast to the relatively light aforementioned
sentences, the Compulsory Education Bill, 2006 introduced in ~ ~

the Rajya Sabha would provide six months imprisonment as a
c penalty for those who preclude children from going to school. If
this Bill becomes law, Section 7 would dictate the following:
"If any person including parents of children prevents any
boy or girl child from going to school or causes hindrance
or obstruction in any way, he shall be punishable with
D imprisonment, which may extend to six months."
95. It seems that the Bill simultaneously targets ,
employers and parents. Employers would be punished when ~

they hire a child to work too much or during school hours.
Similarly, parents would also be punished for allowing this to
E happen. The Bill would also provide for scholarships, free hostel
facilities and other incentives, "whenever necessary" and "as
may be prescribed".
96. In Bandhua Mukti Morcha v. Union of India &
F Others, (1997) 10 SCC 549 at page 557 at para 11, the Court
explained why education should be compulsory. In essence, a •..
citizen is only free when he can make a meaningful challenge to
his fellow citizens or Government's attempt to curtail his natural
freedom. For this to happen, he needs a certain degree of
education. This is why Article 21A may be the most important
G
fundamental right. Without it, a citizen may never come to know
of his other rights; nor would he have the resources to adequately
enforce them. The relevant passage at para 11 reads as under:-
1
"A free educated citizen could meaningfully exercise his
H political rights, discharge social responsibilities
r-

ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 379
[DALVEER BHANDARI, J.) ··· -----.
satisfactorily and develop a spirit of tolerance and reform. A
Therefore, education is compulsory. Primary education to
the children, in particular, to the child from poor, weaker
sections, Dalits and Tribes and minorities is mandatory.
The basic education and employment-oriented vocational
education should be imparted so as to empower the B
children within these segments of the society to retrieve
them from poverty and, thus, develop basjc abilities .:. to
live a meaningful life ... Compulsory education, therefore,
to these children is one of the principal means and primary
duty of the State for stability of the democracy, social c
integration and to eliminate social tensions."
97. In contrast to Article 51A(k), State and Union Territory
laws and Parliamentary intent with regard to Article 21A, the
Court in Mukti Morcha was inclined to suggest, not hold, that
the State was exclusively responsible for compulsory education. D
It went on to reaffirm M.C. Mehta v. State of Tamil Nadu &
Others {child labour matter) (1996) 6 SCC 756. In that case,
the Court took up the issue of child labour in hazardou·s fields
when it learnt of an accident in a cracker factory in Sivakasi.
98. The said case at para 28 identified poverty as the root E
cause of child labour:
"Of the aforesaid causes, it seems to us that ... poverty is
basic reason which compels parents of a child, despite
their unwillingness, to get it employed. The Survey Report F
of the Ministry of Labour (supra) had also stated so.
Otherwise, no parents, specially no mother, would like that
a tender-aged child should toil in a factory in a difficult
condition, instead of its enjoying its childhood at home
under the paternal gaze."
~-- -~
G
99. In other words, parents send children to work because
parents have no other choice. Food comes first. If the State does
not provide extra income so as to remove the incentive to send
children to work, it is wasting its time on mere gesture. The Court
in para 29 co-ricluded that action must be taken: H
380 SUPREME COURT REPORTS [2008] 4 S.C.R.

A "It may be that [child labour] would be taken care of to
some extent by insisting on compulsory education. Indeed,
t
Neera [Burns] thinks that if there is at all a blueprint for
tackling the problem of child labour, it is education. Even
if it were to be so, the child of a poor parent would not
B receive education, if per force it has to earn to make the
family meet both the ends. Therefore, unless the family is
assured of income aliunde, problem of child labour would
hardly get solved; and it is this vital question which has
remained almost unattended. We are. however, of the view
c that till an alternative income is assured to the family, the
question of abolition of child labour would really remain
will-o'-the-wisp." (emphasis added).
100. It is interesting to note that compulsory education has
been introduced in one form or the other in various countries.
D From the historical experience of these nations, we learn that
the legislation pertaining to compulsory education has played
an important role in improving educational outcomes.
Compulsory education's roots in the United
States
E
101. Compulsory education has had a long history outside
of India. In 1852, the State of Massachusetts enacted the first
compulsory attendance law in the United States; though
compulsory education laws existed much earlier in many states,
F the first dating back to 1642 in Massachusetts. "Were
Compulsory Attendance and Child Labor Laws Effective? (See:
An analysis from 1915 to 1939." (2001) at p. 2. Prof. Adriana
Lleras-Muney of Princeton University.)
Reasons from abroad for implementing
G compulsory education:
102. Prof. Lleras-Muney explains that those who
advocated for compulsory education believed that universal ~~
education was necessary to promote democracy and guarantee
a common American culture. (Page 11). Given the influx of
H
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 381
[DALVEER BHANDARI, J.]

immigrants, some of whom came from undemocratic countries A
many supporters of legislation viewed compulsory education
~
as an instrument for assimilation.
103. Other reasons cited by compulsory education
proponents in the United States included the reduction of cr\me.
racism and inequality. Prof. Oreopoulos of the University of B
Toronto cites to sources that make it appear as though the
reasons for adopting compulsory education in Canada mirrored
those cited in the United States: the emphasis was on good
citizenship and economic development:
c
"Archibald Macallum, an Ontario teacher, summarized
the latter argument vigorously in an 1875 report favouring
the introduction of compulsory schooling in Canada:
'Society has suffered so cruelly from ignorance, that its
riddance is a matter of necessity, and by the universal
D
diffusion of knowledge alone can ignorance and crime be
banished from our midst; in no other way can the best
interests of society be conserved and improved than by
"• this one remedy - the compulsory enforcement of this
great boon - the right of every Canadian child to receive
that education that will make him a good, loyal subject, E
prepared to serve his country in the various social functions
which he may be called on to fill dur!ng his life; and prepare
him, through grace, forthe life to come' (Annual Report of
the Ontario Teachers' Association, 1875. as cited in
Prentice and Houston 1975. 175-6). (See: The Canadian F
~ Journal of Economics, Vol. 39, No.1, February (2006) "The
" compelling effects of compulsory schooling: the evidence
from Canada," Prof. Oreopoulos, at page 23)."
• Empirical data indicating that compulsory
G
education has a positive effect:
104. Prof. Oreopoulos provides data that show the fruits
of imposing education on citizens. Crime may be lowered, health
• improved and civic activity increased. Compulsory education
may also lead to a substantial increase in income for :ndividuals. H
382 SUPREME COURT REPORTS [2008] 4 S.C.R.

A Moreover, compulsory education, if it does not cause, may at
least contribute to an increase in bilingualism and employment l
and a reduction in poverty. The relevant portion is reproduced
hereunder:

"(Page 24). Other papers find evidence of social returns,
B but for non-pecuniary outcomes. Lochner and Moretti
(2002), for example, find that compulsory schooling lowers
crime, while Lleras-Muney (2002) finds a correlation with
improved health. In studies of the United States and United
Kingdom, Dee (2003) and Milligan, Moretti, and
c Oreopoulos (2003) estimate that tighter restrictions on
leaving school early correspond to increased levels of
civic activity (like voting and discussing politics) .... My
analysis suggests that students compelled to complete
an extra grade of school have historically experienced an
D average increase of 9-15% in annual income.

(Page 48). I find that the introduction of tighter provincial
restrictions on leaving school between 1920 and 1990
raised average grade attainment and incomes. Students
compelled to attend an extra year of school experienced
E an average increase in annual income of about 12%. I
also find that compulsory schooling is associated with
significant benefits in terms of other socio-economic
outcome measures ranging from bilingualism,
employment, and poverty status. These results hold up
F against many specifications checks and are entirely
consistent with previous studies." ..
105. In addition to increased income, Prof. Lleras-Muney
found that legally requiring a child to attend school for one more
G year increased educational attainment by roughly five
percentage points. (Page 8). Educational attainment refers to
time spent in school.

• Example of compulsory education statutes
106. The causes of low enrolment, high drop-out rates and
H
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 383
:DALVEER BHANDARI, J]

frequent truancy :n the U.S. and India differ, but the consequences A
thereof do not. In either case, citizens who lack education are at
an extreme disadvantage. In India, poverty has been ident:fied
as the ultimate cause of lackluster enrolment and attendance
rates. Children are compelled to work. In developed countries
like the United States or Canada, children rarely fail to attend B
school because of economic constraints. Instead, a number of
different factors may contribute to truancy. High school students
may drop out" ... because they detest school, lack motivation,
or anticipate little reward from graduation." (See: The Canadian
Journal of Economics, "The compelling effects of compulsory c
schooling: the evidence from Canada," Prof. Oreopoulos, p.
23, (quoting from Eckstein, Zvi, and Kenneth I. Wolpin (1999)
"Why youths drop out of high school: the impact of preferences,
opportunities, and abilities," Econometrica 67, 1295-339).
107. As I detail below, students and parents in the United D
States often face the same fines when students fail to attend
school. Fines for students make more sense when low self-
~
• control is the reason for which they fail to attend school. At the
same time, punishing Indian students who have no choice but
to work would make no sense. Such a punishment should not E
be borrowed from the United States.

108. In many jurisdictions in the United States, the
attendance officer is responsible for enforcing compuisory
attendance laws for his area or school. Given the overwhelming
problem of sub-par enrolment and attendance in India, we doubt F
,,
(
that one school official could sufficiently do the work of inspecting
places of employment for children who have violated attendance
laws.

109. Indeed, existing legislation in India already envisages
G
the employment of attendance officers. The Delhi Primary
Education Act, 1960, Sec. 7. Yet, there is nothing to suggest
that these employees have adequately dealt with truancy. As
• mentioned, this is. in part, due to the economic conditions in
which many parents find themselves. Financial assistance or
H
384 SUPREME COURT REPORTS [2008) 4 S.C.R.

A incentives must be given. Only then, may the Government actively
enforce compulsory attendance legislation.
1'
110. We must also remember that it is not only the child
who fails to attend but also the child who fails to enroll that has
violated an attendance law.
B
111. Before taking issue with State/Union Territory
compulsory education statutes, I note that education has
traditionally been reserved for the States. Only in 1976, vide the
42nd Amendment of the Constitution, did education become a
c part of Concurrent List of Schedule 7. In its 1651h Report, the
Law Commission of India has also recommended enactment
of Central Legislation in this respect. Putting education in the
Concurrent List turns out to be a positive development, given
the States' failure to provide effective legislation.
D 112. The States' laws fail on two accounts. First, they are
too lenient to have a deterrent effect. Second, the legislation is
not adequately enforced. in part, because it does not require
police officers to do the job. If we analyze the legislation passed ~

by different States, another conclusion becomes obvious: no
•
E State has provided for an adequate punishment whose effect
would be to deter citizens from committing a violation.
113. It is necessary to reproduce some of the various
compulsory education laws of the States.

F 114. Under Section 7 of The Tamil Nadu Compulsory
Elementary Education Act, 1994:
>
"Every parent or guardian of a child of school age who "'
fails to discharge his duty under section 4 [duty of parent
to cause child to attend elementary school] shall be
G punishable with fine which may extend to one hundred
rupees."
115. Section 18(1) of The Delhi Primary Education Act,
1960 states: ..\~

H "If any parent fails to comply with an attendance order
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 385
[DALVEER BHANDARI, J)

passed under Section 13, he shall be punishable with fine A
not exceeding two rupees. and. in the case of continuing
contravention, with an additional fine not exceeding fifty
naye paise for every day during which such contravention
continues after conviction for the first of such contraventions.
Provided that the amount of fine payable by any one person 8
in respect of any child in any one year shall not exceed
fifty rupees."
116. Analysis of these State laws reveals that they are wea«
in character and perhaps have never been implemented If we
compare these laws with their sister statutes in United States, c
we realize that the U.S. laws are far stronger.

117. In Wisconsin, parents who fail to send their children
to school may have to pay a fine of not more than $500 or face
imprisonment for not more than 30 days or both. [Wiscor.sm
D
Statute Sections 118.15(1 )(a) and 118.15(5)(a)1.a]. For a
p; second or subsequent offense, they may face a fine of not more
than $1,000 or imprisonment for not more than 90 days or both.
[Wisconsin Statute Sections 118.15(1 }(a) and 118 15(5}(a)1.b;
Alternatively. they may be sentenced to perform comrrur.rty
service. [Wisconsin Statute Sections 118.15(1)(a) ard E
118.15(5)(a)2] .

Unlike Wisconsin, Tamil Nadu and Delhi's laws have no
teeth .
...• 118. The other main problem is implementation of t·ese r
laws. Neither the State Governments nor their police agencies
are at all ser:ous about :mplementing these compulsory laws.
There are hardly any cases where even fines have been
:mposed. Some form of compulsory education has been on ~r·e
statute books since 1917. We rave seen Western countries G
enforce these laws. Most Western countries enioy a'rrost
~
universal literacy while 35% of our population is !!literate. W"1le
a robust financial incentive programme may not have been
possible in 1917. it is today. If we wish to develop further we
must educate each and every citizen aged six to fourteen 1-1
386 SUPREME COURT REPORTS [2008] 4 S.C.R.

A 119. In order to give effect to the constitutional right under
Article 21A, it is imperative that the Central Government pass 1'
suitable legislation. The fine should be suitably increased.
Imprisonment should be a sentencing option as well. The current
patchwork of State/UT legislation on compulsory education is
B insufficient. Small monetary fines do not go far enough to ensure
the implementation of Article 21A.

120. A disclaimer is attached to these recommendations.
The recommendations for the enforcement of compulsory
education are contingent upon the implementation of a financial
c incentive program that would make education viable for the poor.
The carrot must come before the stick. If there is no financial
incentive program in place, the Government cannot expect the
poorest of the poor to send their children to school.

121. The Parliament should criminally penalize those
0
parents who receive financial benefits and, despite such
payments, send their children to work and penalize those
~
employers who preclude children from attending school or >
completing homework. It has become necessary that the
Government set a realistic target within which it must fully
E implement Article 21A regarding free and compulsory education
for the entire country. The Government should suitably revise
budget allocations for education. The priorities have to be set
correctly. The most important fundamental right may be Article
21A, which, in the larger interest of the nation, must be fully
F implemented. Without Article 21 A, the other fundamental rights )

are effectively rendered meaningless. Education stands above ...
other rights, as one's ability to enforce one's fundamental rights
flows from one's education. This is ultimately why the judiciary
must oversee Government spending on free and compulsory
G education.
122. At the same time, spending is an area in which the
judiciary must not overstep its constitutional mandate. The power
of the purse is found in Part V, Chapter II of the Constitution,
...
'~

which is dedicated to the Parliament. (See: Articles 109 and
H
ASHOKA KUMAR THAKUR v. UNION OF 1NDIA & ORS. 387
[DALVEER BHANDARI, J.]

117 for "Morey Bills.") Nevertheiess, it remains within the A
judiciary's scope to ensure that the furdamental right under
Article 21Aof Part Ill is upheld. In M.C. Mehta v. Union of India
(vehicular pollution) (1998) 6 SCC 63. this Court did not ignore
the Article 21 right to life when deadly levels of pollution put the
right at stake Nor will this Col' rt ignore the Article 21A right to B
education, when a dearth of quality schooling put it in jeopardy.
The Government's educatior programmes and expenditures,
wanting in many respects, are an improvement over past
performance. They nearly fall short of the constitutional mark.
Lack:uster performance in pr:mary/secondary schools is caused c
in part because Government places college students on a higher
pedestal. Money will rot solve all our education woes, but a
correction of priorities in step with the Constitution's mandate
will go a long way
• Opposition to Compulsory Education D
123. "Compulsory" connotes enforcement. The Parliament
)
. rejected an amendment that would have saved parents from
penal penalties. If education were r.ot compulsory, who checks
in with parents who have sent their children to work? If no
author:ties inquire. the message is clear: We. the State, do not E
care if your child goes to school. Taking the opposing view, Shri
G.M. Banatwalla wanted to make sure parents were not
punished:

" ... this word 'compulsion' needs to be properly defined. F
The word, 'compulsion' is not to be related to the studert
or the parents. Parents cannot be penalized for being too
poor to send their children to school. The word,
'compulsion' has to be urderstood ;n relation to the State
and the obligation of the State to provide for free education. G
p. 523." (See: The Parliamentary Debates on Article 2.1A,
p. 523, 28 November 2001 at Vol. 20, No. 6-10)
124. The Parliament had the opportunity to accept such a
definition of "compulsory." But they chose otherwise. Amendment
number four, rroved by Shri G.M. Banatwalla at p. 548, stated H
388 SUPREME COURT REPORTS [2008] 4 S.C.R.

j -~
A that:
"Provided that in making any law to provide for free and
compulsory education under this article, the State shall
not ... (b) enforce any penal sanctions on a parent or
guardian."
B
125. Of paramount importance, this Amendment was
"negatived." [Seep. 548]. Those who wanted a safe-haven from
penal sanction for parents lost. From this vote, we know that the
Parliament intended to allow for future legislation that would
c impose penal sanctions for violations of legislation under Article
21A.
• Conclusion on Free and Compulsory Education
126. Given that so many children drop out of, or are absent
from, school before they turn fourteen, "free education" alone
D
cannot solve the problem. The current patchwork of laws on
~
compulsory education is insufficient. Monetary fines do not go >
far enough to ensure that Article 21 A is upheld.
127. A carrot-and-stick approach appears to be the best
E way to implement Article 21A. Financial incentive programmes
have worked well in other countries. We should follow their lead.
Once that is done, the Government should strictly enforce
effective compulsory education laws. Such a policy is bound to
pay off.
F In sum, the Central Government should enact legislation
).
..
that:
(a) provides low-income parents/guardians with financial
incentives such that they may afford to send their
G children to school;
(b) criminally penalizes those who receive financial
incentives and despite such payment send their ~
children to work;
(c) penalizes employers who preclude children from
H
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 389
[DALVEER BHANDARI, J.]
~ attending school or completing homework; A
(d) the penalty should include imprisonment; the
aforementioned Bm would serve as an example. The
State is obligated under Article 21A to implement
free and compulsory education in toto;
B
(e) Until we have achieved the object of free and
compulsory education, the Government should
continue to increase the education budget;
(f) the Parliament should set a deadline by which time
free and compulsory education will have reached c
every child. This must be done within six months.
128. With regard to (a), the state cannot cite budgetary
constraints or lack of resources as an excuse for failing to
provide financial assistance/incentives to poor parents. See
D
Hussainara Khatoon (supra}, at page 107, para 10.
•.. 129. Article 21A's reference to "education" must mean
something. This conclusion is bolstered by the Parliament's
Statement of Objects and Reasons for Article 21A:
"The Constitution of India in a Directive Principle contatned E
in article 45, has made a provision for free and compulsory
education for all children up to the age of fourteen years
within ten years of promulgation of the Constitution. We
could not achieve this goal even after 50 years of adoption
of this provision. The task of providing education to all F
children in this age group gained momentum after the
National Policy of Education (NPE) was announced in
1986. The Government of India. in partnership with the
State Governments, has made strenuous efforts to fulfill
this mandate and, though significant improvements were G
seen in various educational indicators. the ultimate goal
.. of providing universal and quality education still remains
unfulfilled. In order to fulfill this goal, it is felt that an explicit
provision should be made in the Part relating to
Fundamental Rights of the Constitution. H
390 SUPREME COURT REPORTS [2008] 4 S.C.R.

A 1. With a view to making right to free and compulsory -) ·
education a fundamental right, the Constitution (Eighty-
third Amendment) Bill, 1997 was introduced in the
Parliament to insert a new article, namely, article 21A
conferring on all children in the age group of 6 to 14 years
B the right to free and compulsory education. The said Bill
was scrutinized by the Parliament Standing Committee
on Human Resource Development and the subject was
also dealt with in its 155th Report by the Law Commission ~
of India.
C 2. After taking into consideration the report of the Law
Commission of India and the recommendations of the
Standing Committee of the Parliament, the proposed
amendments in Part Ill, Part IV and Part IVA of the
Constitution are being made which are as follows ...
D
3. The Bill seeks to achieve the above objects"
130. The Article seeks to usher in "the ultimate goal of
providing universal and quality education." (emphasis supplied).
Implied within "education" is the idea that it will be quality in
E nature. Current performance indicates that much improvement
needs to be made before we qualify "education" with "quality."
Of course, for children who are out school, even the best
education would be irrelevant. It goes without saying that all
children aged six to fourteen must attend school and education
F must be quality in nature. Only upon accomplishing both of these
.I
goals, can we say that we have achieved total compliance with
Article 21 A.
131. Though progress has been made, the Parliament's
observation upon passing Art 21A still applies: the goal of
G providing universal and quality education " ... still remains
unfulfilled."
3. Does the 93rd Amendment violate the Basic
Structure of the Constitution by imposing
reservation on uraided institutions?
H
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 391
[DALVEER BHANDARI, J.]

.. 132. Imposing reservation on unaided institutions violates A
' the basic structure by obliterating citizens' 19(1 )(g) right to carry
on an occupation. Unaided entities, whether they are educational
institutions or private corporations, cannot be regulated out of
existence when they are providing a public service like
education. That is what reservation would do. That is an 8
unreasonable restriction. When you do not take a single paisa
of public money, you cannot be subjected to such restriction.
~ The 93rd Amendment's reference to unaided institutions must
' be severed.
133. No unaided institution f:led a writ petition in this case. c
Had either this Court or respondents had an objection, they could
have raised it at any time during the proceedings. We listened
to the parties for months. We received voluminous written
submissions from the parties, yet no objection was made with
regard to the fact that no unaided institution had filed a writ D
petition. While we would usually implead a party if we felt their
0-"( presence was necessary to the resolution of the dispute, the
facts of this case are peculiar. The best lawyers in the country
argued the case for both sides, and a brief from an unaided
institution would not have added much if anything to the E
substance of the arguments. The Government will likely target
unaided institutions in the future. At that time, this Court will have
to go through this entire exercise de nova to determine if unaided
institutions should be subject to reservation. Such an exercise
would unnecessar!ly cause further delay. The fate of lakhs of F
A.
; students and thousands of institutions would remain up in the
air. (See: Minerva Mills Ltd. & Others v. Union of India &
Others (1980) 3 SCC 625). Therefore, looking to the
extraordinary facts, I have decided to proceed with this aspect
of the matter in the larger public interest.
G
134. Amendments by their very nature are often enabling
provisions. :f they clear the way for future legislation that wouid
.. ). in fact violate the basic structure, the Court need not wait for a
potential violation to become an actual one. it can strike the
entire amendment ab initio. The question of potential width was H
\ I

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

,...
A resolved in Minerva Mills (supra), paras 38-39. The Court
acknowledged that it generally does not anticipate constitutional
issues before they arise, but it held that circumstances required
it to act before unconstitutional provisions could be passed under
the authority of an unconstitutional amendment.
B "38. But, we find it difficult to uphold the preliminary
objection because, the question raised by the petitioners
as regards constitutionality of Sections 4 and 55 of the
42nd Amendment is not an academic or a hypothetical
~ .
question. The 42nd Amendment is there for anyone to
c see and by its Sections 4 and 55 amendments have been
made to Articles 31-C and 368 of the Constitution. An
order has been passed against the petitioners under
Section 18-A of the Industries (Development and
Regulation) Act, 1951, by which the petitioners are
D aggrieved."
"39. Besides there are two other relevant considerations :-
which must be taken into account while dealing with the
preliminary objection. There is no constitutional or statutory
inhibition against the decision of questions before they
E actually arise for consideration. In view of the importance
of the question raised and in view of the fact that the
question has been raised in many a petition, it is
expedient in the interest of justice to settle the true
position. Secondly, what we are dealing with is not an
F ordinary law which may or may not be passed so that it
J
..
could be said that our jurisdiction is being invoked on the
hypothetical consideration that a law may be passed in
future which will injure the rights of the petitioners. We are
dealing with a constitutional amendment which has been
G brought into operation which, of its own force, permits the
violation of certain freedoms through laws passed for
certain purposes. We, therefore, overrule the preliminary ...
-4
objection and proceed to determine the point raised by
the petitioners."
H [emphasis added]
ASHOKA KL.;MAR THAKUR v. UNION OF INDIA & ORS. 393
[DALVEER BHANDARI, J.]

There is not one precise definition of the width test, A
• however. The test asks if an amendment is so wide that in effect
" (actual or potential}, it goes beyond the Parliament's amending
power. Kesavananda, paras 531-532: "But that the real
consequences can be taken into account while judging the width
of the power is settled. The Court cannot ignore the B
consequences to which a particular construction can lead ... "
To make such a determination, it follows that the Court should
ask whether an amendment infringes constitutional limitations
as opposed to those evolved from mere common law. (See:
Nagaraj, para 103). c
135. As a pre!iminary matter, I turn to the cases by which
the basic structure doctrine has been established. It has been
stated that, "Kesavananda had propounded the doctrine, the
Indira Gandhi Election case had upheld it, and Minerva
engraved it on stone." (See: Granville Austin, "Working a D
Democratic Constitution". at page 506].
136. Kesavanandc and its progeny provide that an
amendment to the Constitution must not alter the Constitution's
basic structure. To reach a conclusion regard~ng a basic structure
challenge, I employ the following general standard: an E
amendment alters the basic structure if its actual or potential
effect would be to damage a facet of the basic structure to such
an extent that the facet's original identity is compromised.

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

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

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

C 139. If it abrogates the basic structure, the structure and
thus the Constitution lose their identities. The legislation must
be struck down. This is determined on a case-by-case basis by
applying the effect test (impacUrights tests). (See: Coehlo). I
further note that a total deprivation of fundamental rights, even
D in one limited area, may amount to an abrogation of the basic
structure. (See: Minerva Mills, para 59).
• Step One: Does Article 15(5) affect a facet of the
basic structure?
E 140. In the instant case, Article 15(5) expressly precludes
the application of Article 19(1 )(g). Whenever reservations are
implemented under Article 15(5), citizens are stripped of their
fundamental rights under Article 19(1 )(g). By excluding Article
19(1 )(g), Article 15(5) obviously affects Article 19(1 )(g), a facet
F of the basic structure of the Constitution. Step One is therefore
cleared. What is more, Article 19(1 )(g) belongs to the Golden
Triangle-Articles 14, 19 and 21 are the three fundamental rights
that stand above the rest. Writing for the majority in Minerva
Mills, Justice Chandrachud provides an eloquent justification
G for shielding the Golden Triangle from attack. To achieve a more
egalitarian society, individual liberty must be protected:
"Para 74 of Minerva Mills: Three Articles of our
Constitution, and only three, stand between the heaven of ...
freedom into which Tagore wanted his country to awake
H and the abyss of unrestrained power. They are Articles
ASHOKA KUMAR THAKUR v. LNION OF INDIA & ORS. 395
[DALVEER BHANDAR:, J)

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

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

t, "para 63 ... Every State is goal-oriented and claims to
strive for securing the welfare of its people. The distinction
between the different forms of Government consists in
that a real democracy will endeavour to achieve its E
objectives through the discipline offundalT'ental freedoms
like those conferred by Articles 14 and 19. Those are the
most elementary freedoms without which a free
democracy is impossible and which must therefore
be preserved at all costs. Besides, as observed by F
,.," Brandies, J., the need to protect liberty is the greatest
when Government's purposes are beneficent. If the
discipline of Article 14 is withdrawn and if immunity from
the operation of that article is conferred, not only on
laws passed by the Parliament but on laws passed by G
the State Legislatures also. the political pressures
exercised by numerically large groups car tear the country
._ asunder by leaving it to the legislature to pick and choose
).
favoured areas and favourite classes for preferential
treatment." H
396 SUPREME COURT REPORTS [2008] 4 S.C.R.

A 142. United States Supreme Court Justice Brandeis' word
of caution is relevant to today's dispute wherein the Government
trumpets reservation in higher education as an answer to our
age-old problems of poverty and caste. At first blush, it sounds
as if reservation in higher education would help the backward
B help themselves. The road out of poverty is paved with education.
However, the "devil is the details." With elementary freedom on
the line, I must carefully scrutinize those details.
143. The right to freedom under Article 19 has been long
recognized as a natural and inalienable right that belongs to all ~ .
c citizens. Indeed, what would Independence mean without it?
Chief Justice Sikri cites the following passage in Kesavananda
at para 300:
''That article (Article 19) enumerates certain freedoms
under the caption "right to freedom" and deals with those
D
great and basic rights which are recognised and
guaranteed as the natural rights inherent in the status of
a citizen of a free country." (Per Patanjali Sastri, C.J., in
State of West Bengal v. Subodh Gopal Bose [1954] S.C.R. .:
587, 596)."
E
144. With fundamental rights in jeopardy, I shall review the
cases in which the basic structure doctrine has been
implemented to invalidate constitutional amendments. By
looking at these cases synoptically, we get a sense as to how
F much damage the basic structure can withstand before
crumbling. In Kesavananda, the second part of Article 31C
,\
precluded courts from reviewing whether a law under Article ...
39(b) or (c) promoted the policy for which it was enacted. This
violated the basic structure. Article 31C was introduced by the
25th Amendment.
G
145. In Indira Nehru Gandhi v. Raj Narain & Another
(1975) Supp SCC 1, the Court struck Article 329A(4) as violative
of the basic structure. This provision appropriated the Court's
power to adjudicate election laws, encroaching on the judiciary . ...
H in violation of separation of powers. See Justice Matthew's
ASHOKA KUMAR THAKUR v. UNION OF INDtA & ORS 397
[DALVEER BHANDARI, J.]

opinion at para 325. It was introduced by the 39th Amendment. A
In Minerva frl1ills, the Court held sections 4 and 55 of tre 42rn
Amendment in violation of the basic structure. Section 4 sought
to expand 31 C such that all laws giving effect to Directive
Principles, not just those intended to promote Article 39(b) or
(c), would be immune to an Article 14 or 19 challenge. Section B
55 would have barred judicial review of constitutional
. amendments.
146. In P. Sambamurthy v. State of A.P. (1987) 1 SCC
362, the Court invalidated Article 371-0(5), finding that the
Parliament had violated the rule of law and consequently the c
basic structure, by removing judicial review from the High Court
and placing it in the hands of one of the parties - the State
Government. In L. Chandra Kumar v. Union of India (1997) 3
SCC 261, the Court held that Articles 323A-2D and 3238-30
violated the basic structure in that they removed judicial review 0
of the High Courts and Supreme Court under Articles 226/227
and 32, respectively. These articles were introduced by the 42nd
..... Amendment to empower the Parliament or the State
Legislatures to establish Tribunals for various substantive areas
of law: tax, labour, criminal, etc. E
147. Two broad themes surface from these cases. When
judicial review is barred, democracy evaporates. And whe"
Fundamental Rights are at stake, they must be harmonized with.
not made subject to, the Directive Principles. Sections 4 and
55 of the 42rd Amendment were especially egregious violations F

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

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

A Democratic Constitution")
148. Government cannot be trusted; that is precisely why
we divide its powers into separate organs. If it could be trusted,
there would be no need for co-equal branches in which power
is shared. Separation of powers is an axiom of democracy.
8
149. Had Section 55 of the 42nd Amendment been upheld,
the basic structure of the Constitution could have been destroyed
by a single slash. Future constitutional amendments would not
have been reviewed. The impugned Amendment looks rather
c mild in comparison to the damage that would have been wrought
by the 42nd Amendment. The impugned legislation limits one
fundamental right in one limited circumstance. Yet an
amendment need not be as invidious as the 42nd Amendment
for us to invalidate it. If the standard were that high, amendments
could destroy the basic structure or the essence of the
0
Constitution by a thousand slashes.
150. Since Kesavananda's time, many amendments
have been passed and many challenges under the basic
structure have been made. This Court has used caution and
E has refrained from using the doctrine, even when it may have
been justified. For example, there were grounds for striking the
entire 101h Schedule as violative of the basic s.tructure in Kihoto
Hollohan v Zachil/hu & Others 1992 Supp (2) SCC 651.
Rather than resort to the basic structure, this Court made a
F narrow ruling on procedural grounds. (See: S.P. Sathe, Judicial
Activism in India: Transgressing Borders and Enforcing Limits,
2nd Edn., 2002 (Oxford University Press) pages 92-93). The
Court upheld the 1oth Schedule, only severing a paragraph from
the same. I agree that an abundance of caution ought to be
G taken before employing the basic structure doctrine. The
violation must truly abrogate the basic structure. Anything short
of this standard must be upheld - the will of the people, through
their elected representatives, heard.
· 151. Before making such a determination, it is prudent to
H briefly revisit the rulings of two landmark cases: P.A. /namdar
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 399
[DALVEER BHANDARI, J.]

& Others v. State of Maharashtra & Others, (2005) 6 SCC A
537; T.f:ll.A. Pai Foundation & Others v. State of Karnatalca
& Others (2002) 8 SCC 481. In lnamdar (supra), paras 26-
27 (seven-Judge Bench), unaided (minority and non-minority)
professional Institutions filed petitions to determine, inter alia,
whether the State could impose quotas on unaided (minority B
and non-minority) institutions. A seven-Judge Benc_h was
constituted such that Islamic Academy's clarification of Pai
could be reviewed. Islamic Academywas a five-Judge Bench.
Given that Pai was an eleven-Judge Bench, lnamdar could
clarify but not overrule Pai. c
152. At para 124, lnamdar held that the State cannot
impose quotas on unaided (minority and non-minority)
institutions. To do so would nationalize seats, contrary to Pai.
(See: lnamdar at para 125). In dictum, Pai suggested that the
State could compel unaided institutions to admit a reasonable D
percentage of students via reservation. (Pai, para 68). lnamdar
clarified this point, stating that Pai should be read to mean that
().. the State and unaided institutions may enter into consensual
agreement regarding reservation. (See: lnamdarat para 126).
Unaided institutions (minority and non-minority) can admit as E
they choose, provided their process is fair, transparent, non-
exploitative and merit-based. lnamdar stated:
"124: So far as appropriation of quota by the State and
enforcement of its reservation policy is concerned, we do
not see much of difference between non-minority and F
.,. • minority unaided educational institutions. We find great
force in the submission made on behalf of the petitioners
that the States have no power to insist on seat sharing in
the unaided private professional educational institutions
by fixing a quota of seats between the management and G
the State. The State cannot insist on private
educational institutions which receive no aid from
the State to implement State's policy on reservation
•.
for granting admission on lesser percentage of marks,
i.e. on any criterion except merit. H
400 SUPREME COURT REPORTS [2008] 4 S.C.R.

A 125. As per our understanding, neither in the judgment of
Pai Foundation nor in the Constitution Bench decision in
Kera/a Education Bill, which was approved by Pai
Foundation, there is anything which would allow the State
to regulate or control admissions in the unaided
B professional educational institutions so as to compel them
to give up a share of the available seats to the candidates
chosen by the State, as if it was filling the seats available
to be filled up at its discretion in such private institutions.
This would amount to nationalization of seats which
c has been specifically disapproved in Pai Foundation.
Such imposition of quota of State seats or enforcing
reservation policy of the State on available seats in
unaided professional institutions are acts
constituting serious encroachment on the right and
autonomy of private professional educational
D
institutions.
Such appropriation of seats can also not be held to
be a regulatory measure in the interest of minority
within the meaning of Article 30(1) or a reasonable
E restriction within the meaning of Article 19(6) of the
Constitution. Merely because the resources of the State
in providing professional education are limited, private
educational institutions, which intend to provide better
professional education, cannot be forced by the State to
F make admissions available on the basis of reservation
policy to less meritorious candidate. Unaided
institutions, as they are not deriving any aid from ...
State funds, can have their own admissions if fair,
transparent, non-exploitative and based on merit."
G To the extent that Islamic Academy had approved of
quotas in unaided institutions. a scheme in which the States
could fix quota for seat sharing between management and the
State, Islamic was overruled. [lnamdar at para 130]
153. In T.M.A. Pai Foundation (supra) para 2 (eleven-
H
ASHOKA KUMAR THAKUR v UNION OF INDIA & ORS. 40 1
[DALVEER BHANDARI, J.]

Judge Bench), private educational institutions, aided and A
t
unaided. filed writ petitions to challenge regulations that
impeded their rights. They warted to establish and admirister
educational institutions, unfettered by Government interference.
[para 2]. Reading Article 29(2) and 30(1) harmoniously, the six-
Justice majority held that (1) unaided institutions could admit B
students free of Government interference, as long as their
admission process was transparent and merit-based; (2)
minority aided institutions may still admit their own students,
contingent upon admitting a reasonable number of non-minority
students per the percentage provided by the State Government. c
154. For our purposes, it is important to note that education
falls within the meaning of "occupation" under 19(1 )(g). This is
so because a large number of persons are employed as
teachers and administrative staff. For them, education is an
occupation. Pai stated: D
"20: "Article 19(1)(g) employs four expressions, viz.,
\~
profession, occupation, trade and business. Their fields
may overlap, but each of them does have a content of its
own. Education is per se regarded as an activity that is
charitable in nature [See The State of Bombay v R.M.D. E
Chamarbaugwala, . . . Education has so far not been
regarded as a trade or business where profit is the motive.
Even if there is any doubt about whether education is a
profession or not. it does appear that education will fall
,....
within the meaning of the expression ;·occupation". Article F
19(1 )(g) uses the four expressions so as to cover all
activities of a citizen in respect of which income or profit
is generated, and which can consequently be regulated
under Article 19(6).
G
25 The establishment and running of an educational
institution where a large number of persons are employed
• ~
as teachers or administrative staff. and an activity is
carried on that results in the imparting of knowledge to
the students, must necessarily be regarded as an
H
' I

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

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

[emphasis added]
155. Stripping private unaided institutions of their right to ~

select students would be unreasonable:
c "para 40: Any system of student selection would be
unreasonable if it deprives the private unaided institution
of the right of rational selection, which it devised for itself,
subject to the minimum qualification that may be
prescribed and to some system of computing the
D equivalence between different kinds of qualifications, like
a common entrance test. Such a system of selection can
involve both written and oral tests for selection, based on /
principle of fairness."
156. Like Article 15(5) in the instant case, Unni Krishnan
E effectively nationalized education. Pai overturned Unni
Krishnan. (See: para 45).
"38: The scheme in Unni Krishnan's case has the effect
of nationalizing education in respect of important
F features, viz., the right of a private unaided institution to
).
give admission and to fix the fee. By framing this scheme, ...
which has led to the State Governments legislating in
conformity with the scheme the private institutions are
undistinguishable from the Government institutions;
curtailing all the essential features of the right of
G
administration of a private unaided educational institution
can neither be called fair or reasonable."
157. Pai traces the autonomy of institutions back to ~
•
Chitralekha and Rajendran. The proposition is simple: he who
H funds or runs the institution holds the power to select students.
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 403
[DALVEER BHANDARI, J.]

The State cannot ask these institutions to abridge this right in A
exchange for affiliation/recognition. The relevant paragraphs are
reproduced hereunder:
"36: The private unaided educational institutions impart·
education, and that cannot be the reason to take away
B
their choice in matters, inter a/ia, of selection of students
and fixation of fees. Affiliation and recognition has to be
available to every institution that fulfills the conditions for
~
grant of such affiliation and recognition. The private
institutions are right in submitting that it is not open to
the Coutt to insist that statutory authorities should impose c
the terms of the scheme as a condition for grant of
affiliation or recognition; this completely destroys the
institutional autonomy and the very objective of
establishment of the institution.
D
42. In R. Chitralekha and Anr. v. State of Mysore and
Ors.[citation omitted], while considering the validity of a
'~ viva-voce test for admission to a Government medical
college, it was observed at page 380 that colleges run by
the Government, having regard to financial commitments
and other relevant considerations, would only admit a E
specific number of students. It had devised a method for
screening the applicants for admission. While upholding
the order so issued, it was observed that "once it is
conceded, and it is not disputed before us, that the State
... Government can run medical and engineering colleges, F
I(
it cannot be denied the power to admit such qualified
students as pass the reasonable tests laid down by it.
This is a g_ower which everv g_rivate owner of a College
will have, and the Government which runs its own Colleges
cannot be denied that g_ower." (italics added by Pai; G
underscore is mine).
;.
,. 43. Again, in Minor P Rajendran v. State of Madras and
Ors ... , it was observed at page 795 that "so far as
admission is concerned, it has to be made by those who
H
404 SUPREME COURT REPORTS [2008] 4 S.C.R.

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

61. In the case of unaided private schools, maximum
D autonomy has to be with the management with regard to
administration, including the right of appointment,
disciplinary powers, admission of students and the fees 1
)>-
to be charged."
158. Unaided institutions may admit students of their
E choice, subject to an objective and rational procedure of
selection. They might admit a small percentage of students
belonging to the weaker sections of the society by granting those
sections freeships or scholarships, if not granted by the
Government. [See: Pai at para 53]. Given a transparent and
F reasonable selection process, it is up to the institution to define
>.
"merit" according to its own values. Pai stated: ...
"65. The reputation of an educational institution is
established by the quality of its faculty and students, and
the educational and other facilities that the colleges has to
G
offer. The private educational institutions have a
personality of their own, and in order to maintain their
atmosphere and traditions, it is but necessary that they ...
must h< ve the right to choose and select the students ...
who can be admitted to their courses of studies. If is for
-:H
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 405
[DALVEER BHANDARI, J.]

this reason that in the St. Stephen's College case, this A
t Court uphe1d the scheme whereby a cut-off percentage
was fixed for admission, after which the students were
interviewed and thereafter selected. While an educational
institution cannot grant admission on its whims and fancies,
and must follow some identifiable or reasonable B
methodology of admitting the students, any scheme, rule
or regulation that does not give the institution the right to
- . reject candidates who might otherwise be qualified
according to say their performance in an entrance test,
would be an unreasonable restriction under Article 19(6), c
though appropriate guidelines/modalities can be
prescribed for holding the entrance test a fair manner.
Even when students are required to be selected on the
basis of ment, the ultimate decision to grant admission to
the students who have otherwise qualified for the grant of
D
admission must be left with the educational institution
concerned. However, when the institution rejects such
•~ students, such rejection must not be whimsical or for
extraneous reasons."
159. The Court distinguishes between reasonable and E
unreasonable regulations by asking which functions lie at the
heart of an institution's autonomy. Regulations that strike at tr.e
core of autonomy are unreasonable. For example, prescribing
minimum qualifications for teachers is a reasonable regulation;
actually selecting the teachers is not. F
.. • "55. But the essence of a private educational institution is
the autonomy that the institution must have in its
management and administration. There, necessarily, has
to be a difference in the administration of private unaided
institutions and the Government-aided institut:ons. G
Whereas in the latter case, the Government will have
greater say in the administration. including admissions
•~ and fixing of fees. :n the case of private unaided institutions,
maximum autonomy in the day-to-day administration has
to be with the private unaided institutions. Bureaucratic or H
..
~
406 SUPREME COURT REPORTS [2008] .4 S.C.R.

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

160. The same argument was framed in similar terms in
St. Stephen's College v. University of Delhi, 1992 (1) SCC
558. In that case, the Court distinguished regulations based on
whether they directly or indirectly affected management. Those
D that indirectly affected management were reasonable; those that
directly affected the management of the institution were not. [Pai
at para 125]. ;-
~

161. In St. Stephen's, this Court referred to the earlier
decisions, and with regard to Article 30(1) observed at page
E 596, pa,ragraph 54, as follows:
r
" ... But the standards of education are not a part of the
management as such. The standard concerns the body
politic and is governed by considerations of the
F advancement of the country and its people. Such
J
regulations do not bear directly upon management
although they may indirectly affect it. The State, therefore
has the right to regulate the standard of education and
allied matters."
G 162. Once a private institution (non-minority) takes aid, it
is subject to (1) reservation and (2) regulation of administration
and maintenance of the institution. Pai stated:

"71: "While giving aid to professional institutions, it would
. ..
be permissible for the authority giving aid to prescribe by
H
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 407
[DALVEER BHANDARI, J.]

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

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

163. I now query if the Parliament may subject Article
19(1 )(g) to Article 15(5), when this Court has held that reservation
D
in unaided institutions is an unreasonable restriction that cannot
be saved by Article 19(6) .
...
164.1 answer this question in the affirmative. The structure
of our Constitution permits fundamental rights, and even the
Golden Triangle of Articles 14, 19 and 21, to be abridged in E
limited circumstances. To say that subjecting Articles 19(1 )(g)
··-,
to 15(5) violates the basic structure per se is to ignore the
examples in which the most fundamental of rights is limited.
Article 16(4) expressly limits the right to formal equality in 16(1 ),
a specific facet of Article 14. In this light, Article 16(4) impliedly F
~
• limits the general right to formal equality in Article 14. The right
to equality is expressed in the negative in 15(1 ): the State shall
not discriminate based on religion, race, caste, etc. In other
words, the State shall treat citizens of different religions, races
and castes equally. Like Article 16(4), Article 15(4) limits 15(1)
G
- another facet of Article 14 formal equality - such that
egalitarian equality may be pursued. Generally speaking,
• ~
Articles 15(3) and (4) and 16(4) allow the State to impose
affirmative action programs on the public sector. Such provisions
necessarily limit the right to formal equality. If the right to equality,
H
408 SUPREME COURT REPORTS [2008] 4 S.C.R.

A considered by some as a basic postulate of the Constitution,
has been limited, a fortiori Article 19(1 )(g) can be too.
165. Along these lines, I could turn to Articles 31A, 318
and 31 C for further support. Those Articles exclude challenges
under Articles 14 and 19. In agreement with Dr. Dhavan's
8 submission, I decline to rely on Articles 31A, 318 and 31C for
support. As explained in Minerva Mills, the Court had previously
upheld Article 31A out of concern for stare decisis. The Court
never approved of the exclusion of Articles 14 and 19 on a "f - -
principled basis. Nor did it make a ruling as to whether the
c exclusion violated the basic structure. (See: para 71-72 of
Minerva Mills. See also para 43 of Waman Rao, (1981) 2
sec 362).
166. A basic structure challenge becomes an issue of
institutional competence. Is it for the legislature to decide what
D
is a reasonable restriction under 19(1 )(g) read with 19(6)? Or
is it for the judiciary? It is well established that the Parliament,
expressing the will of the people, may enact amendments to
,.
overrule a judgment of this Court. The First Parliament added
Article 15(4) to the Constitution to overrule State of Madras v.
E Champakam Dorairajan, AIR 1951 SC 226. Other examples
include the 77th Amendment, which overruled Sawhney I by
adding Article 16(4-A); the 81 st Amendment further overruled
Sawhney I by adding Art 16 (4-8); the 82nd Amendment
overruled S. Vinod Kumar & Another v. Union of India &
F Another (1996) 6 SCC 580 by amending Article 335; and the )

35th Amendment overruled Virpal Singh Chauhann and Ajit •
Singh I by amending Article 16(4-A), (1995) 6 sec 684 and
(1996) 2 SCC 715, respectively. Nevertheless, the duty to
interpret the content of our fundamental rights has been left to
G the Courts. "The important point to be noted is that the content
of a right is defined by the Courts. The final word on the content
of the right is of this Court." (Nagaraj at para 21 ). (emphasis
added). While the Parliament may amend the Constitution, it ~
.. r
cannot alter the Constitution's basic structure. (See:
H Kesavananda, Indira Nehru Gandhi (Election Case),
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 409
[DALVEER BHANDARI, J.]

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

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

.. " 169. Freedom under Article 19 belongs to individual
citizens. Article 19(1 )(g) provides that "all citizens shall have the
right to practice any profession. or to carry on any occupation,
trade or business." The reference to "all citizens" means that
each and every individual citizen possesses Article 19 rights. G
For the impugned legislation to fall, it need not touch every
sphere of society. If even one individual's freedom has been
~
curtailed, this Court is duty bound to entertain his or her claim. It
).
is he or she who possesses the Article 19(1 )(g) right to carry on
an occupation. H
410 SUPREME COURT REPORTS [2008] 4 S.C.R.

A 170. If 15(5) were implemented, the educator in unaided
institutions would still have students to educate. I use "educator" ~
in the broadest sense of the term and include teachers,
professors, lecturers, faculty, staff, administrators and those who
finance institutions. Without one of the aforementioned, the
B institution cannot function properly.
171. Though affected by reservation, the educator still has
a job. His occupation remains intact. Students will come.
Classes will commence. Marks will be distributed. The greatest ~
impact on the educator is that neither he nor his institution will
c choose whom to teach.
172. Almost half of the time (49.5%), the State would decide
for them. Selecting students or employees goes to the heart of
an organization's autonomy. The essence of an unaided
educational institution is the freedom to manage its affairs,
D
according to Pai at paragraph 55. That is, " ... the essential
ingredients of the management of the private institution include
the recruiting [of] students and staff ...." The same argument ,.. ..
was framed in similar terms (at para 54) in St. Stephen's
College (regulations imposing standards of education upheld,
E because they " ... do not bear directly upon management
although they may indirectly affect it ... "). This Court has stated
in Pai as clarified by lnamdarthat subjecting unaided institutions
is an unreasonable restriction. As noted, Article 19(6) provides
no safe haven for reservations.
F
173. The Government-imposed selection of students in ...
turn has wide-ranging consequences for unaided institutions and ~

their educators. I am required to examine the effect of the
impugned Amendment. At least four problems will likely arise:
G (1) academic standards suffer;
(2) attracting and retaining good faculty becomes more
difficult;
~
.
(3) the incentive to establish a first rate unaided institution
H is diminished;
I ~
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 411
[DALVEER BHANDARI, J.]

(4) and ultimately the global reputation of our unaided A
institutions is severely compromised.
174. First, once the State tells them whom to teach,
standards of excellence will suffer. This is because those
institutions will no longer be able to admit the highest-scoring
students. As good as some of our institutions are, they do not 8
teach blank slates. The best universities are the best, in part,
because they attract the best students. The same can be said
for almost any organization. In the case of higher education, the
.
" universities that admit the best will likely churn out the best. The
c
precise extent to which the university made the best so good
cannot be qualified. The point is that universities alone cannot
produce qualified job candidates. Forced to admit students with
lower marks, the university's final product will not be as strong.
Once the creamy is excluded, cut-off marks would likely drop
considerably in order to fill the 27% quota for non creamy layer D
OBCs. When the creamy layer is not removed, as in the case of
.. 'r'
Tamil Nadu, the difference in cut off marks for the general and
backward categories may be insignificant. (See para 408 of
Sawhney /). Of course, the extent to which standards of
excellence would suffer would vary by institution. As I mention E
below, I urge the Government to set OBC cut off marks no lower
than 10 marks below that of the general category. This is only a
recommendation, however. It may never be adopted.
175. Second, reservations weaken the incentive to
establish unaided institutions: if the State usurps the right to F
.. .... select students, would one still spend the time and money to
establish an unaided institution? The question is all the more
relevant today. Counsel for petitioners posit that tomorrow's
knowledge economy requires a well-educated populace. "Well-
educated" does not imply a string of degrees from less than G
taxing institutions. Rather, it means that one will possess the
skills, knowledge and creativity to compete globally. Our
;.
unaided institutions must remain places where these traits are
')._
refined.
H
{ I

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

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

c knowledge economy. Recruiters have begun to trickle into
campuses. They hail from domestic as well as international
entities, ~md they too may take note of reservations in unaided
institutions. The effect on educators, from the top down, would
be felt. For them, little more than a semblance of occupation
would remain.
D
177. Given the dramatic effect that reservations would have
on educators, the unaided institutions in which they teach and,
consequently, society as a whole, Article 19(1 )(g) has been more ..,. ...
than abridged. When education is effectively nationalized,
E freedom stands obliterated. The identity of the Constitution is
altered when unreasonable restrictions make a fundamental
right meaningless. The 93rd Amendment's imposition of
reservation on unaided institutions has abrogated Article
19(1 )(g), a basic feature of the Constitution, in violation of our
F Constitution's basic structure. Therefore, I
sever the 93rd Amendment's reference to "unaided" "' ,.
institutions as ultra vires of the Constitution.
178. The case law on severability asks the following
question: had the Parliament known its provision would be
G
severed would it still have passed the rest of the legislation?
(See: R.M.D. Chamarbaugwalla (supra)).
179. At page 943 of R.M.D. Chamarbaugwalla (supra), ...
~
the Court relied in part on The State of Bombay & Another v.
H F.N. Balsara (1951) SCR 682, where the question at issue was
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. . 413
[DALVEER BHANDARI, J.]

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

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

A limitations."
180. At page 944, the court in R.M.D. Chamarbaugwalla
sought guidance from American case law on severability:
"In discussing the effect of a severability clause, Brandies,
B J. observed in Dorchy v. State of Kansas (1924) 264
US 286 that it "provides a rule of construction, which may
sometimes aid in determining that intent. But it is an aid
merely; not an inexorable command". The weight to be
attached to a classification of subjects made in the statute
c itself cannot, in our opinion, be greater than that of a
severability clause."
181. The court in R.M.D Chambarbaugwalla went on
to cite Patanjali Sastri, C.J., in The State of Bombay &
Anotherv. The United Motors (India) Ltd. & Others (1953)
D SCR 1069:
"dealing with the contention that a law authorizing the
imposition of a tax on sales must be declared to be wholly .., •
void because it was bad in part as transgressing
constitutional limits observed:
E
'It is a sound rule to extend severability to include
separability in enforcement in such cases, and we are of
opinion that the principle should be applied in dealing with
taxing statutes in this country."'
F 182. Here, I believe the Parliament would have gone _.
forward without unaided institutions. While some Members of •
Parliament sought to overrule Pai and lnamdar, the Parliament's
actions speak louder than its words. Once it had passed Article
15(5), it limited itself to imposing greater reservations on aided
G institutions. Had unaided institutions been the Parliament's
priority, it could have included them in the Reservation Act. It
seems that the Parliament's intent is to pass as much reservation
as possible. That would explain why it has gone forward with -4'
.
27% reservation for OBCs without confirming that at least 27%
H of the population is OBC. For these reasons, I conclude that
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 415
roALVEER BHANDARI, J.]

had the Parliament known that unaided institutions were going A
to be severed, it would have nevertheless carried out its
reservation scheme for aided institutions.
4. The Casteless and Classless Society versus
Caste-based Reservation:
B
183. The caste system is peculiar to this country. Perhaps
the entire society has been divided on the basis of caste. This
social problem can be compared to some extent with that of
American society. In the US., the problem of racial
discrimination has existed for centuries. The cases of affirmative c
action decided in the United States are relevant. They show us
how that society has dealt with the problem of racial
discrimination. At the outset, I would like. to make it clear that
decisions of foreign countries are not binding on Indian courts.
Indian Courts have not adopted American standards of review.
D
But the judgments delivered by U.S. courts on affirmative action
have great persuasive value and they may provide broad
• ..,.
guidelines as to how we should tackle our prevailing cordition .
A large number of English laws have been inherited by India
and America. English and American cases are frequently cited
by our courts. We need to keep our window open and permit E
the light of knowledge to enter from any source. In this ligi"t, I
shall refer to some US decisions.
• Affirmative Action cases and standards of review
from the United States: F
...
~
184. In 1978, Regents of the University of California v.
Bakke put an end to reservation ("quotas") in education
(reserving 16 out of 100 seats for minorities in IT'edical school
deemed unconstitutional). (438 U.S. 265). Justice Powell's
concurring judgment is considered the key opinion in the case. G

185. Justice Powell concluded that diversity was a
,,. compelling State interest that could withstard strict scrutiny.
~
Relying on Bakke, the court later reaffirmed preferential
treatment in college admissions as a means to ensure diversity
H
416 SUPREME COURT REPORTS [2008] 4 S.C.R.

A 1n the classroom - racial diversity being just one among many i
types of diversity ("overcoming personal adversity and family
hardship" was another form of diversity), (See: Grutter v.
Bollinger, 539 U. S. 306, 338 (2003)). The Grutter Case
insisted that universities make an individualized evaluation of a
B student seeking admission, rather than one that mechanically
accepted or rejected students on the basis of race. (Grutter at
337). Such an evaluation would ensure that race was only
considered as one type of diversity, rather than a pretext for
achieving racial balance. Quotas could not be covertly installed
c in the name of diversity. This reasoning led the court to strike
down an admission scheme that automatically assigned more
points to minority students than to residents of the State or to
athletes, for example. (Gratz v. Bollinger, 539 U.S. 244, 270).
186. Justice O'Conner for the majority in Grutter came to
D a very significant conclusion. She suggested that there was time
limit on preferential treatment for certain races as a means of
promoting diversity. Justice O'Connor stated: "we expect that y
•
25 years from now, the use of racial preferences will no longer
be necessary to further the interest approved today."
E 187. In Parents Involved in Community Schools v.
Seattle School District No.1 et al, reported in 168 Lawyers
Ed. 2d 508 & 517 (2007), school districts used a student's race
to assign that student to a particular school within the district. In
Seattle, this was done to achieve racial balance amongst the
F district's schools. One school should not be overwhelmingly ~

white, another all non-white. Unlike the system approved in
Grutter, race was not just one among many types of diversity
that was considered by the district in assigning students. Seattle
at 525. Instead, it was, at times, the decisive factor. The court
G held the programmec:; unconstitutional. Chief Justice Roberts
summed up the plurality's view on racial classifications· "the
way to stop discrimination on the basis of race is to stop
discriminating on the basis of race." -"'
188. This was far from a complete victory for the plurality.
H
- ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS.
[DALVEER BHANDARI, J.]
417

In his concurring opinion, Justice Kennedy found the A
programmes unconstitutional. However, he would not go so far
as to treat all racial balancing as per se unconstitutional. He
considered the plurality opinion to represent • ... an all-too-
unyielding insistence that race cannot be a factor in instances,
when, in [his] view, it may be taken into account." (Seattle at s
565).
189. Justice Kennedy found that schools have a compelling
interest to prevent racial isolation or achieve a diverse student
population. (Seattle at 572). Like Justice Powell's concurring
opinion in Bakke, Justice Kennedy's concurring opinion leaves C
the door open for further use of racial classification for so-called
benign purposes in school admissions.
190. More important than any one case are the standards
by which the court scrutinized discriminatory legislation. Of
0
course, Indian courts have not accepted the .. principles of
narrow tailoring and strict scrutiny. Nevertheless, we should
seek guidance from any corner and permit the light from any
quarter.
191. Whenever legislation is challenged as E
unconstitutional, courts must ask themselves how much
deference they will give to the legislature. The answer is that it
depends on the nature of the impugned legislation. The United
States Supreme Court has evolved three standards of review
for Government action that treats different people differently. The F
first is the rational basis standard. When the classification is
rationally related to any legitimate Government purpose, the
court defers to the State and upholds the classification. This is
the most deferential of the three standards. The second standard
is intermediate scrutiny, which is less deferential to Government. G
Here, the court asks whether the classification is substantially
related to any important Government purpose. The third and
highest level of review is known as strict scrutiny, whereby the
...
court requires that the classification are narrowly tailored to a
compelling state interest. Strict scrutiny test is the least H
418 SUPREME COURT REPORTS [2008] 4 S.C.R.

A deferential to Government.
i
192. Of the classifications on which there is case law, the
one that most closely resembles caste is race. This is because
both are immutable traits. They are used by the powerful, or
those seeking power, to justify oppression. Racism and casteism
B have long haunted both Nations. In the United States, race raises
red flags. It is often, though not always, reviewed under strict
scrutiny: "Government action dividing people by race is
inherently suspect because such classifications promote
'notions of racial inferiority and lead to a politics of racial hostility,'
c (Croson at 102 L. Ed. 2d 854) and "racial classifications are
simply too pernicious to permit any but the most exact connection
between the justification and the classification." (Gratz v.
Bollinger, 539 U.S. 244, 270 (quoting J. Stevens' dissent in
Fullilove v. Klutznick, 448 U.S. 448, 537)).
D
193. Legislation whose text does not classify based on
race is considered facially neutral. When facially neutral
legislation has a disproportionate impact on a particular race, .., •
American courts ask whether it was passed with an intention to
discriminate. If no intention is found, the rational basis test
E applies. [See: Hernandez v New York, 500 U.S. 352 (1991)
(quoting from Arlington Heights v. Metropolitan Housing
Development Corp., 429 U.S. 252, 264-265 (1977)]:
"A court adu1essing this issue must keep in mind the
F fundamental principle that "official action will not be held
unconstitutional solely because it results in a racially ....

disproportionate impact. ... Proof of racially discriminatory
intent or purpose is required to show a violation of the
Equal Protection Clause."
G See also Washington v. Davis, 426 U.S. 229, 239 (1976).
The exception to this rule is Yick Wo v. Hopkins, 118 U.S. 356
(1886), where extreme disproportionate impact warranted
greater scrutiny. Where there is disproportionate impact and
..
discriminatory intention, then even facially neutral legislation "
H triggers strict scrutiny. However, in this framework, affirmative
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 419
[DALVEER BHANDARI, J.]

action classifies on the face of legislation and automat\cally gets A
strict scrutiny treatment.
194. As I have observed, American courts carefully rev~ew
racial classifications. Given that the 93rd Amendment on its face
discriminates against general category students, we should give
it careful scrutiny. The Article 14 right to formal equality deserves 8
as much. If 49.5% caste-based reservation was upheld in
Sawhney I for Government employment, it follows that 49.5%
caste-based reservation is permitted in aided educational
institutions. While I compelled by Sawhney I to hold that the
impugned legislation passes careful scrutiny with respect to c
reservation in aided institutions, its implementation is contingert
upon the directions given in this opinion.
• The Framers' ultimate goal: the Classless and
Casteless society:
D
195. Did the original Framers intend to provide caste-
~ based reservation in education to the lower classes? No, the
v
original Framers did not. Soon after the Constitution was
adopted, the very same Framers acted quickly to permit
reservation for SC/ST/SEBCs in education by adding Art 15(4), E
vide the First Amendment, to the Constitution. In doing so, they
deviated from their own goal- the caste less society would have
to wait. In Sawhney I, the Court upheld this decision and bound
us to a certain degree on this point. I have no cl"oice but to
uphold the impugned legislation by which the Government l'T'ay F
" still identify SEBCs, in part, by using caste.
"
196. Caste-based reservation was initially a temporary
measure that was to only last for ten years. The original Framers
considered caste-based reservation a necessary evil. Thus. they
limited it in time. Extending this time limit has only exacerbated G
casteism.

... 197. The Parliamentary Debates clearly reflect that the
• ultimate aim of reservation was a casteless and classless
society for India . To this end, reservation should only be given
H
420 SUPREME COURT REPORTS [2008] 4 S.C.R.

A for a specific period of time. If these reservations or benefits
have to continue perpetually, then the basic goal of achieving
casteless and classless society would never be accomplished.
198. The need for caste-based reservation has "worn out"
over time. Evidence for the proposition that caste is no longer a
8 valid determinant of one's ability to move up in society is strong.
More than the way society judges you based on caste, the
relevant question is whether caste precludes you from rising. If
caste doesn't, then what does? The answer is simple: money.

c 199. Income is a much better determinant of educational
achievement than caste. The table below was derived from the
Reproductive Child and Health Survey, 2002-2004 (600,000
households surveyed).
Average years of schooling:
D
SC OBC Upper caste Hindu
Poorest Rural Quintile 1.6 1.7 2.2 y •
Richest Rural Quintile 5.1 5.5 6.1
E For the upper caste, caste barely helps. These numbers
indicate that it is one's income, not caste, that makes a real
difference in determining how much schooling one completes.
Therefore, if income be the bar to education, economic criteria
should be the means by which we identify beneficiaries of
F special provisions under Article 15(5).
• No original intent to provide caste-based quotas
in education:
200. As drafters, the original Framers were prolific. They
G made our Constitution the world's longest- removing as many
doubts as possible and in that way limiting the Court's role. The
Constitution contains a number of Articles that reserve seats
for various groups. The original Framers, however, imposed .
various limitations on reservation. These limitations provide
H insight into the original Framers' compromise between formal
\ ~
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 421
[DALVEER BHANDARI, J.]

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

.. ~
202. Dr Ambedkar stated that "the report of the Minorities
Committee provided that all minorities should have two benefits
or privileges, namely representation in the legislatures and c
representation in the services." (emphasis added) (See: CAD,
26 August 1949, vol. 9, p. 702). Given this limitation, we must
take extra caution when reviewing the constitutionality of adding
additional benefits.
203. Article 334 fixed a 10-year time limit on the legislative D
reservations provided in Articles 330 and 332. In the discussion
• regarding draft Article 292, Sardar Hukam Singh said, "we are
~
accepting this reservation of seats [in legislative bodies] as an
unavoidable evil for the present, thought it is only for the
Scheduled Castes and scheduled tribes." (See: p. 645, E
Constituent Assembly Debates, Vol. 9, 24 August 1949).
204. Shri Singh's comment sums up the limitations on
legislative reservation. OBC/SEBCs were excluded, and
reservations were limited in time. Unlike the legislative
.._ reservations, Article 16(4) contains no fixed time limit. It does, F
., however, preclude the State from making reservations in
Government service if the backward classes are adequately
represented. The idea is that, at some point in time, the
backward classes would no longer need reservations.
G
205. In discussing draft Article 10 (Article 16(4) of the
Constitution), Pandit Hirday Nath Kunzru stated:
. ~ "We are all aware that when the Report of the Minorities
Committee was considered by the House, the entire
House was anxious that reservations of whatever kind H
\ I

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

A should be done away with as quickly as possible. .. .
~
whatever protection might be considered necessary now,
should be granted temporarily only, so that the population
of the county might become fully integrated, and no
community or class might be tempted to claim special
B advantage for itself." (CAD Vol.7 dated 301h November
1948, p. 681)"
(emphasis supplied)
Instead of moving to remove reservations, the Parliament
~ ...
c has gone the other way by extending time limits and adding
beneficiaries. Article 15(5) is just the latest example.
206. While the original Framers went out of their way to
put SC/ST in the Parliament and State Assemblies and SC/ST/
backward classes in Government service, they did not reserve
D a single classroom seat. Instead, Article 29(2) prohibited caste-
based discrimination in admissions, and Article 15(2) prohibited
caste-based discrimination in general. Education was to remain
reservation-free.
.. •
207. When preferential treatment was given in regard to
E education, it was limited to educational grants. There was no
question of doling out reservations for special groups. Article
337 provided educational grants to Anglo-Indian schools for the
benefit of that community. In the spirit of conciliation, the original
Framers allowed the grants that were already going to those
F schools to continue for 10 years. (See: p 936-941 of Constituent
..\
Assembly Debates, Vol. 8 1949). ~

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

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

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

.,. ~
209. Shri Prasad's comments are relevant because he
recognizes the limited effect of reservation. Rather than reserve
seats for a few, he advocated for free education for all. c
210. In the debate regarding Article 15 of the Constitution,
Syed Abdur Rouf summed up the essence of the provision: "The
intention of this article is to prohibit discrimination against
citizens." (See: p. 650 of CAD, Vol.7, 29 Nov 1948). This
intention was only qualified for women and children. In fact, the D
original Framers rejected an amendment that would have
C' watered down Article 15's prohibition against discrimination.
~
Prof. K. T. Shah sought special protection for SC/ST. He wanted
to ensure that Article 15 would allow SC/ST to benefit from
affirmative action. To this end, he introduced an amendment E
that would have altered 15(3) to read as follows: "Nothing in this
article shall prevent the State from making any special provision
for women and children or for the Scheduled Castes or
backward tribes, for their advantage, safeguard or betterment."
(Shah amendment in italics). Prof. Shah proposed the F
, ~
amendment
"... so that any special discrimination in favour of them
may not be regarded as violating the basic principles of
equality for all classes of citizens in the country. They
need and must be given for some time to come at any G
rate, special treatment in regard to education, in regard
to opportunity for employment. and in many other cases
• ~ where their present inequality, the present backwardness
is only a hindrance to the rapid development of the cour,try.
. .. equality is not to be equality of name only or on paper H
424 SUPREME COURT REPORTS [2008] 4 S.C.R.
' I

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

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

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

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

well for the career prospects of SC/ST/SEBCs. Irrespective of A
the reason for which the Shah amendment was rejected, the
original Framers contemplated special provisions for SC/ST
that would have included education. At the end of the day, they
decided that only women and children should benefit from
discriminatory provisions. B
214. Article 15(4) and the Shah amendment only differ in
that Article 15(4) provides special provisions to SC/ST and
. ~ SEBC, while Shah only gave the same to SC/ST. Of course, if
the original Framers rejected special provisions for SC/ST, they
would have done the same with respect to SEBC/SC/ST. In sum, c
by limiting Article 15(3) to women and children and rejecting an
amendment equivalent to Article 15(4), the original Framers'
intent was clear: no special provisions for backward classes
(SE BC/SC/ST) in education were to dilute Article 15(1 )'s
prohibition against discrimination based on caste. D

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

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

A • Limitations on Reservation must be seen in the
light of providing a casteless society:
216. Seeking to remove the blight created by caste, the
original Framers were social reformers. "The social revolution
meant 'to get (India) out of the medievalism based on birth,
B religion, custom, and community and reconstruct her social
structure on modern foundations of law, individual merit, and
secular education'." (See: Granville Austin, Indian Constitution:
Cornerstone of a Nation at page 26, 151 Ed, 1972, Oxford 1 .
University press: (quoting from: K. Santhanam (an Assembly
c member) in Magazine Section, The Hindustan Times New
Delhi, 8 September 1946).
217. India's first President Rajendra Prasad assured the
Nation that the assembly and the Government's aim was to "end
poverty and squalor ... to abolish distinction and exploitation
D
and to ensure decent conditions of living". [Cornerstone at page
27, fn. 5 (quoting from Prasad in CAD V, I, 2)]. The original
i
Framers took steps to abolish caste-based distinction. For ~

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

H (emphasis added)
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 427
[DALVEER BHANDARI, J.]

The same can be said today. Reservation based on caste A
}
strengthens communalism. Non-SEBCs naturally seek SEBC
status so that they may capture SEBC benefits. Upper castes,
denied a seat, harbor ill will against lower castes who gain
admission (whether it was by merit or not).
218. These feelings are the basis for discriminatory action. B
On 16 September 2006, The Hindu reported: "While medical
students at the All India ln.stitute of Medical Sciences (AllMS)
.. } have complained of caste discrimination, now doctors from the
reserved category at the Guru Teg Bahadur Hospital (GTBH)
too have written about 'biased attitude towards reserved c
category junior residents'."
219. Discrimination is not the only problem exacerbated
by reservation. Given that reserved category students gain
admission with lower marks, it also stands to reason that they
D
would exhibit less confidence in their studies when pitted against
the general category. In her work on the unintended
~
consequences of preferential treatment for minorities in college
admissions in the United States, Marie Gryphon, a policy analyst
for the Cato Institute (Washington, D.C.), writes:
E
" ... recent research shows that affirmative action impedes
academic achievement by undermining minority students'
confidence ....
Preferences harm students' self-images, and this harm
~
has practical costs in terms of grades and graduation F
rates. Both studies build on earlier work by Stanford
University sociologist Claude Steele, who coined the term
"stereotype threat" to refer to the decline in performance
suffered by members of groups who become afraid of
confirming negative group stereotypes. Steele tested his G
theory by giving standardized exams to groups of white
and African-American undergraduates at Stanford
• ~ University.
Testers told some groups that the exam evaluated
H
\ I

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

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

The point is that affirmative action produces consequences )

that may outweigh its supposed benefits.
E 220. To rid ourselves of reservation and its unintended
consequences like casteism, we must focus our efforts on
strengthening education at the primary and secondary level. Only
then will we achieve the casteless/classless society the original
Framers envisaged. And only then will there be reason to scrap
F reservation altogether. _.
221. In his speeches to the Parliament regarding 15(4),
Prime Minister Nehru could not have been clearer: "After all the
whole purpose of the Constitution, as proclaimed in the
Directive Principles is to move towards what I may say a
G casteless and classless society" ... and in an attempt to achieve
an egalitarian society, "... we want to put an end to all those
infinite divisions that have arisen in our social life; I am referring
to the caste system and other religious divisions, call them by •
whatever name you like." (emphasis added). [Parliamentary "
H Debates on 13 June, 1951and29 May, 1951 respectively].
\ I
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 429
[DALVEER BHANDARI, J.)

• If reservation is allowed, then how can a A
casteless society still be realized?
-!'
222. This raises the issue of how beneficiaries of special
provisions are to be classified. As mentioned above, Mr Salve
and other learned counsel for petitioners pleaded that the
Government cannot go forward with the Reservation Act when it B
has yet to identify its beneficiaries. No one can say with certainty
what percentage of the population is OBC, yet the Government
is content with giving OBCs 27% of the seats in universities.
We do not know what proportion of the population is OBC
because the census does not count OBCs. It has been Central c
Government policy practically since Independence to avoid the
question. Eminent American Professor Mark Galanter writes
that the absence of caste data was the deliberate policy of
Sardar Patel, the Home Minister until 1950. Mr. Patel reiected
caste tabulation as a device to confirm the British theory that D
India was a caste-ridden country and as an expedient "to meet
the needs of administrative measures dependent on caste
" division" (See: Professor Marc Galanter, (1978)"Who are the
-< OBCs?" An Introduction to a Constitutional Puzzle. 13
Economic and Political Weekly 1812 at page 1824 at footnote E
78 (quoting from Mr. Patel's 1950 address to the census
conference). Taking an OBC census is horrifying because it
encourages Government to enact policy on the basis of caste.
Doing so only furthers the caste-divide, contrary to our
constitutional aim. This has been recognized since 1950. If the F
Central Governments have consistently rejected an OBC census
• because it would promote casteism, how can this Central
Government make reservation on the same ground? It is one
thing to ask a citizen his caste, it is even worse to grant or reject
his college application on that ground. The Government is
G
between a rock and a hard place. The only way out is to use
exclusively economic criteria. This would negate the need for a
caste-based census while ensuring that reservation go to the
• ~
poor, the group for which the Reservation Act was purportedly
passed. The Parliament eventually settled on enabling States
H
430 SUPREME COURT REPORTS [2008] 4 S.C.R.

A to provide provisions for "socially and educationally backward
classes." Article 15(4). This Court has interpreted "backward
classes" to include caste as one of the criteria of classification
under Article 16(4). Sahwney I, para 859(3)(b). In other
words, caste falls .under class according to Sawheny /, para
B 859(3)(a).
• Economic criteria allows for reservation on
grounds other than caste:
223. Despite the goal of a casteless society, the -t
c Parliament allowed for caste-based reservation and,
consequently, caste-based discrimination. Ultimately, they
subjected Articles 29(2) and Article 15 to Article 15(4). Dr.
Ambedkar saw no choice but to discriminate based on caste,
stating that "if you make a reservation in favour of what are called
backward classes which are nothing else but collection of certain
D
castes, those who are excluded are persons who belong to
certain castes. Therefore, in the circumstances of this country,
it is impossible to avoid reservation without excluding some •
people who have got a caste." ' ~

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

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

total of which came to something like 70 per cent of the p.
_,. total posts under the State and only 30 per cent are retained
as the unreserved. Could anybody say that the reservation
of 30 per cent as open to general competition would be
satisfactory from the point of view of giving effect to the
first principle, namely, that there shall be equality of a
opportunity? It cannot be in my judgment. Therefore the
seats to be reserved, if reservation is to be consistent
with sub-clause (1) of Article 10, must be confined to a
minority of seats. (see CAD, Vol. 7, 30th November, 1948
pp 701-02)." c
225. On 17th November, 1949, the Constituent Assembly
began the third reading of the Constitution Bill. While replying
to the debate, Dr. Ambedkar stated:
"This anxiety is deepened by the realization of the fact that D
in addition to our old enemies in the form of castes and
creeds we are going to have many political parties with
• ~ diverse and opposing political creeds. Will Indians place
the country above their creed or will they place creed
above country? I do not know. But this much is certain that E
if the parties place creed above country, our independence
will be put in jeopardy a second time and probably be lost
forever. This eventuality we must all resolutely guard against.
We must be determined to defend our independence with
the last drop of our blood. (See: CAD on 25th November, F
1949 pp 977-978)"
;.
(emphasis supplied).
226. Exhibiting tunnel vision, our First Parliament failed to
look beyond caste. Another option was available, an option that G
adhered to the original Framers' ideals . Contrary to Or
Ambedkar's view, it was possible to provide reservation to
backward classes without discriminating based on caste.
Economic criteria target the poorest of the poor, irrespective of
caste. As noted, these criteria also simultaneously remove the H
·~ )

t::
432 SUPREME COURT REPORTS [2008] 4 S.C.R.

A creamy layer.
1,
227. One of the other prominent advocates of reservation
later .realised that the policy did more harm than good. Prime
Minister Nehru wrote the following letter to the Chief Ministers
on June 27th, 1961:
B
"I have referred above to efficiency and to our getting out
of our traditional ruts. This necessitates our getting out of
the old habit of reservations and particular privileges
being given to this caste or that group. The recent meeting ~

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

in everything. The moment we encourage the second-rate,
we are lost.
E
The only real way to help a backward group is to give
opportunities for good education. This includes
technical education, which is becoming more and more
important. Everything else is provision of some kind of
F crutches which do not add to the strength or heal~h of
the body. We have made recently two <;Jecisions which
are very important: one is, universal free elementary
education, that is the base; and the se·cond is
scholarships on a very wide scale at every grade of
. . education to bright boys and girls, and this applies not
G
merely to literary education, but, much more so, to technical,
scientific and medical training. I lay stress on bright and
able boys and girls. I have no doubt that there is a vast
reservoir of potential talent in this country if only we can
give it opportunity.
H
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 433
[DALVEER BHANDARI, J.]

But if we go in for reservations on communal and caste A
basis, we swamp the bright and able people and remain
second-rate or third-rate. I am grieved to learn of how far
this business of reservation has gone based on communal
consideration. It has amazed me to learn that even
promotions are based sometimes on communal and caste B
considerations. This way lies not only folly, but disaster.
Let's help the backward groups by all means, but never
at the cost of efficiency. How are we going to build our
public sector or indeed any sector with second-rate
people?" c
• Upon expiry of the time limit, the criteria for
identifying OBCs should only be economic In
nature because our ultimate aim Is to esmbUnh
a casteless and classless society
D
228. I am not the first to propose economic criteria as the
exclusive means of identifying SEBCs. In Vasanth f(umeJr's
case, counsel sought an opinion from the Court regarding
reservations in employment and education for SC/STs and
OBCs. The opinion would guide the Kamataka Government in
implementing reservation. [para 1]. It serves our purposes to E
review their thorough analysis of the identification issue.
229. The Court in Vasanth Kumar observed as under:
"24 . ... No one is left in any doubt that the future Indian
Society was to be casteless and classless. Pandit F
Jawaharlal Nehru the first Prime Minister of India said
that Mahatma Gandhi has shaken the foundations of
caste and the masses have been powerfully affected.
But an even greater power than Gandhi is at work, the
conditions of modem life - and it seems at last this G·
hoary and tenacious ralic of past times must die.
(Discovery of India by Pandit Nehru, Ch VI, p 234) Mahatma
Gandhi, the Father of the Nation said, W The caste system
as we know is an anachronism. It must go if both Hinduism
and India are to live and grow from day to day''. In its i--:-
I I

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

A onward march towards realising the constitutional goal,
every attempt has to be made to destroy caste stratificatiol").
Article 38(2) enjoins the State to strive to minimise the
inequality in income and endeavour to eliminate
inequalities in status, facilities and opportunities, not only
B amongst individuals but also amongst groups of people
residing in different areas or engaged in different
vocations. Article 46 enjoins duty to promote with special
.Gare the educational and economic interests of the weaker
sections of the people, and in particular, of the Scheduled
c Castes and Scheduled Tribes, and shall protect them from
social injustice and all forms of exploitation. Continued
retention of the division of the society into various castes
simultaneously introduces inequality of status. And this
inequality in status is largely responsible for retaining
inequality in facilities and opportunities, ultimately resulting
in bringing into existence an economically depressed
class far transcending caste structure and caste barrier.
The society therefore, was to be classless casteless
society. In order to set up such a society, steps have to be
taken to weaken and progressively eliminate caste
structure. Unfortunately, the movement is in the reverse
gear. Caste stratification has become more rigid to some
extent, and where concessions and preferred treatment
schemes are introduced for economically disadvantaged
classes, identifiable by caste label, the caste structure
unfortunately received a fresh lease of life. In fact there
is a mad rush for being recognised . as belonging to· a
caste which by its nomenclature would be included in the
list of socially and educationally backward classes . ... Rane
Commission took note of the fact that there was an
,... organised effort for being considered socially and
educationally backward castes. Rane Commission
recalled the observations in Balaji case [(1963) Supp (1)
SCR 439) that "Social backwardness is on the ultimate
analysis the result of poverty to a very large extent" . ... The
-·
- 1 Commission came to an irrefutable conclusion that
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 435
[DALVEER BHANDARI, J.]

,~ amongst certain castes and communities or class of A
people, only lower income groups amongst them are
socially and educationally backward ...."
230. In this judgment, this Court further observed that if
State patronage for preferred treatment accepts caste as the
only insignia for determining social and educational B
backwardness, the danger looms large that this approach alone
would legitimize and perpetuate the caste system. Caste-based
~
reservation does not go well with our secular character as
enshrined in the Preamble to the Constitution.
c
231 . That said, the majority in Sawhney /later sided with
Justice Chinnappa Reddy's view: caste can be a factor in
identifying SEBCs. This view should not hold the day forever.
Eventually, the words of Justice Desai should be revived.
232. Justice Desai wanted to achieve two goals with one D
~
fell swoop of the pen. Had his opinion prevailed (1) the creamy
layer would have been removed ensuring that the truly deserving
get the benefit and (2) the casteless society would have been
furthered. To these ends, he would have applied economic
criteria to remove the creamy layer and simultaneously rid E
reservation of caste.
233. He explained that poverty is the bane of Indian
society. Given rampant poverty, it comes as no surprise that" ...
the bank balance, the property holding and the money power
~
determine the social status of the individual and guarantee the F
opportunities to rise to the top echelon." [Vasanth Kumar at
para 27}. As a result, the way ~ ... wealth is acquired has lost
significance." And "upper caste does not enjoy the status or
respect ... any more even in rural areas what to speak of highly
westernised urban society." Finally, his Lordship recognized that G
creamy layer exclusion is inherently linked with identification
based on. economic criteria, i.e., "occupation, income and land
holdings":
"30 .... If economic criterion for compensatory
H
I I

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

A discrimination or affirmative action is accepted, it would
strike at the root cause of social and educational
backwardness, and simultaneously take a vital step in the
direction of destruction of caste structure which in turn
would advance the secular character of the Nation. This
B approach seeks to translate into reality the twin
constitutional goals: one, to strike at the perpetuation of
the caste stratification of the Indian Society so as to arrest
progressive movement and to take a firm step towards
establishing a casteless society; and two, to progressively
c eliminate poverty by giving an opportunity to the
disadvantaged. sections of the society to raise their
position and be part of the mainstream of life which means
eradication of poverty."
234. Economic criteria must include occupation and land
D holdings because income alone is insufficient. To decrease the
likelihood that the undeserving evade identification, it is wise to
employ more than one criterion.
235. In Vasanth Kumar, Justice Chinnappa Reddy
departs from Justice Desai's use of economic criteria as the
r-
E sole means of identification. Nevertheless, he recognizes that "
... attainment of economic equality is the final and only solution
to the besetting problems." In Justice Chinnappa Reddy's
opinion, it is easier to classify based on caste than economic
criteria:
F
"80: Class poverty, not individual poverty, is therefore the
primary test. Other ancillary tests are the way of life, the
standard of living, the place in the social hierarchy, the
habits and customs, etc. etc. Despite individual exceptions,
it may be possible and easy to identify socially
G
backwardness with reference to caste, with reference to
residence, with reference to occupation or some other
dominant feature. Notwithstanding our antipathy to caste
and sub-regionalism, these are facts of life which cannot
be wished away. If they reflect poverty which is the primary
H
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 437
[DALVEER BHANDARI, J.]

)· source of social and educational backwardness, they must A
be recognised for what they are along with other less
primary sources."
It all depends on how one defines "class." Once economic
criteria remove the relatively wealthy families (from all castes
and communities), a "class" will remain. This "class" is known B
as "the poor." The class would share the same characteristic,
irrespective of caste. They would all lack money.
~~
236. In a number of judgments, this Court has spelt out our
constitutional philosophy regarding caste. On numerous c
occasions, this Court has proclaimed that the cherished goal of
the Nation is to realise a caste!ess society. In Shri \I. \I. Giri v.
Dippa/a Suri Dora & Others (1960) 1 SCR 426 at 442, the
Court observed as under:-
"... ..... The history of social reform for the last century and D
more has shown how difficult it is to break or even to relax
"' the rigour of the inflexible and exclusive character of the
caste system. It is to be hoped that this position will change,
and in course of time the cherished ideal of caste!ess
society truly based on social equality will be attained under E
the powerful impact of the doctrine of social justice and
equality proclaimed by the Constitution and sought to be
implemented by the relevant statutes and as a result of the
spread of secular education and the growth of a rational
outlook and of proper sense of social values; but at present F
~
~ it would be unrealistic and utopian to ignore the difficulties
which a member of the depressed tribe or caste has to
face in claiming a higher status amongst his co-religionists.
It is in the light of this background that the alternative plea
of the appellant must be considered."
G
237. In N l:li. Thomas (supra), a seven Judge Bench
observed as under:
'This consummation is accomplished only when the utterly
depressed groups.can claim a fair share in public life and
H
' I

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

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

340. The caste system which has been put in the grave by
the framers of the Constitution is trying to raise its ugly
D head in various forms. Caste poses a serious threat to the
secularism and as a consequence to the integrity of the
country. Those who do not learn from the events of history
are doomed to suffer again."
E 239. In Akhil Bhartiya Soshit Karamchari Sangh
(Railway) (supra), it was observed as under::
"14. These forces nurtured the roots of our constitutional
values among which must be found the fighting faith in a
casteless society, not by obliterating the label but by
F advancement of the backward ...
240. Returning to Vasanth Kumar, one of Justice
Reddy's arguments deals with the level of effort required to
identify the poor compared to the effort expended on
identifying caste. In the current context, a number of factors,
· G including economic, are measured to determine SEBC status.
(See: the National Commission of Backward Classes'.
Guidelines for considerations of Requests for inclusion and
complaints of under-inclusion in the Central List of Other
Backward Classes).
H
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 439
[DALVEER BHANDARI, J.]

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

242. Thus, too many people would be eligible for the
benefit. This is only a problem if you hand out reservations
based on the group's proportion of the total population. Such
a reservation would be excessively unreasonable and would C
likely violate the Balaji cap of 50% [see fii.R. Balaji & Ors. v.
State of Mysore [(1963) Supp (1) SCR 439]. If economic
reservation were limited to a reasonable number, it could be
upheld.
D
243. In addition to the problem of extending the benefit to
.. too many, Reddy, J. cannot contemplate the idea of bestowing
\ reservation on an economically poor Brahmin. "The idea that
poor Brahmins may also be eligible for the benefits of Articles
15(4) and 16(4) is too grotesque even to be considered ." He E
says that they are not "socially backward", thus they should
not receive the benefit. But can one call a Brahmin sweeper,
poor by occupation, socially forward? To do so would be a
stretch.

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

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

A "A member of backward class, say a member of carpenter
caste, goes to Middle East and works there as a carpenter.
If you take his annual income in rupees, it would be fairly
high from the Indian standard. Is he to be excluded from
the Backward Class? Are his children in India to be
B deprived of the benefit of Article 16(4)?"
245. Unless the carpenter became a factory owner, where
his income would be a reflection of his status, Justice Reddy
would answer his own question in the negative. This is where f ·--
we part ways. Today, the NRI carpenter's children will have likely
C attended the best schools, tuitions and coaching classes that
money can buy. These children do not need special provisions.
That is why I am removing the creamy layer, calling for a time-
limit on caste-based reservation and urging the Government to
use exclusively economic criteria to identify OBCs who may avail
D of special provisions.
246. The United States Supreme Court has taken a similar
position with regard to setting a time-limit on race-based '
affirmative action. As mentioned above, Justice Sandra Day
E O'Connor opined that there may be a time-limit to promoting
diversity via preferential treatment for certain races: "We expect
that 25 years from now, the use of racial preferences will no
longer be necessary to further the interest approved today."
(See: Grutter at 343).
F 247. In our context, one need-not look past the Parliament's
affinity with extending time-limits on reservation to see that only
the judiciary can put a stop to caste-based reservation. Article
334 originally said that reservation for SC/ST/Anglo-Indians in
the Lok Sabha and State Legis.lative Assemblies would expire
G on the Constitution's tenth birthday. The Parliament later
substituted "ten" for "thirty years" vide the 45th Amendment.
When that was to expire, the Parliament extended it for another
ten years vide the 62nd Amendment. \JVhen that was to expire,
it extended it for another ten years vide the 79th Amendment.
H History has shown that it is not politically feasible for thef
ASHOKA KUr11tAR THAKUR v. UNION OF INDIA & ORS. 441
[DALVEER BHANDARI, J.]

Par1iament to say ;,'lo" to reservation - especially when caste is A
involved.
248 . Nevertheless, I have noted that Sawhney I rejects
purely economic criteria (occupation/income/property holdings/
or similar measures of economic power) with respect to
classification under 16(4). [para 859, 4(a)]. Sawhney l's nine-
8
Judge holding precludes us from striking the impugned
legislation to the extent that it has not yet ruled out the use of
~ ~ caste-based criteria for identifying SEBC status. It also
precludes us from forcing the Government to wean itself off
caste-based reservation by a certain date. In order to achieve C
a casteless and classless society, after a lapse of ten years,
special preference or reservation should be granted only on the
basis of economic criteria as long as grave disparity and
inequaHty persist. ·
D
• Secularism is Part of the Basic Structure
249. To be clear. there is no claim arising out of the goal to
promote a caste!ess society. No right of action exists. The right
of action is found in secularism. Though not explicitly found in
the un-amended Constitution, the original Framers made it clear E
that India was to be a secular democracy. Discrimination based
on religion is prohibited by Articles 14, 15(1) and 15(2), 16(1)
~nd 16(2), 29(2) and 325. The original Framers went out of their
way to ensure that minorities would be able to maintain their
identity. (See: Articles 28, 29 and 30). Article 27 precludes the F
state from adopting a state religion, whereas Article 25 grants
citizens the right to profess, practice and propagate religion.
With rights come responsibi!ities. One of them is found at Article
51A(3). which instructs citizens " ... to promote harmony and
sptrit of brotherhood amongst all people .. . transcending G
religious ... diversities.''
250. Relying on these provisions. Bommai (1994) 3 SCC
1 at para 304 declared secularism ".... a constitutional goal and
a basic feature of the Constitution as affirmed :n Kesavananda
H
442 SUPREME COURT REPORTS [2008] 4 S.C.R.

A Bharati and Indira N. Gandhi v. Raj Narain. Any step
inconsistent with this constitutional policy is, in plain words, ~
·unconstitutional." The Court reasoned that the original Framers
adopted Articles 25, 26 and 27 so as to further secularism. (See:
Bommai at para 28 (Ahmadi, J.)). Secularism was very much
B embedded in their constitutional philosophy. [para 29]. During
the Constituent Assembly Debates, Pandit Laxmikantha Mitra
stated (as quoted at para 28 of Bomma1):
"By secular State, as I understand it, it is meant that the
State is not going to make any discrimination whatsoever
c on the ground of religion or community against any person
professing any particular form of religious faith . ... no
citizen .. . will have any preferential treatment ... simply
on the ground that he professed a particular form of
religion ."
D
This is relevant today because quotas are state-
sponsored discrimination against those who are not deemed
SEBCs - caste being a by-product of religion. Though affirmative ,
action is allowed, there is a point at which it violates secularism.
E Finally, I note that the 42nd Amendment, which formally inserted
secularism into the Preamble, merely made what was already
implicit explicit. (See Bommai at para 29).
• Conclusion on the Casteless Society
F 251 . In conclusion, the First Parliament, by enacting Article
15(5), deviated from the original Framers' intent. They passed
an amendment that strengthens, rather than weakens casteism. 1
If caste-based quotas in education are to stay, they should
adhere to a basic tenet of secularism: they should not take caste
G into account. Instead, exclusively economic criteria should be
used. For a period of ten years, other factors such as income,
occupation and property holdings etc. including caste, may be
taken into consideration and thereafter only economic criteria
should prevail. Sawhney I has tied our hands. I nevertheles(
H believe that caste matters and will continue to matter as long ?r
ASHOKA KUMAR THAKUR v LNION OF !NOIA & ORS 443
:DALVEFR BHANDARI, J.]

we divide society along caste"lines. Caste-based discrimination A
remains. Violence between castes occurs. Caste politics rages
on. Where casteism is present, the goal of achieving a casteless
society must never be forgotten. Any legis:ation to the contrary
should be discarded.
5. Are Articles 15(4) and 15(5) mutually 8
contradictory, such that 15(5) is
unconstitutional?
252. While contradictory, I am able to read them
harmoniously. Learned senior counsel for petitioners, Mr. K.K. c
Venugopal, argued that Articles 15(5) and 15(4) are inconsistent
to the extent that 15(5) exempts minority institutions from
reservation and 15(4) incorporates aided minority institutions
;n ttie reservation scheme. Because both provisions contain
"non-obstante clauses", they render each other void. He further D
submitted that the Court is in the position of having to choose
between them in regard to this inconsistency. He provided three'·
tests of statutory interpretation that give us guidance in resolving
such a conflict.
253. First, if the Court cannot harmonize the two provisions, E
it must invalidate the one that completely destroys the other's
purpose. Sarwan Singh & Another v. Kasturi Lal (1977) 1
sec 750, pages 760-761, at para 20). In the instant case, one
of the express purposes of 15(5) was to exempt minority
institutions and thus avoid conflict with Article 30(1 ). This is found F
in the text of Article 15(5) itself.
254. With nothing in the text of 15(4) to guide us, we turn to
its Statement of Objects and Reasons:
"...... The Act also amplifies Article 15(3) so as to ensure G
that any special provisions that the State may make for
the educational, economic or social advancement of any
backward class citizens may not be challenged on the
ground of being discriminatory. "
H
444 SUPREME COURT REPORTS [2008] 4 S.C.R.

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

256. Because 15(5) is later in time and specific to the
question presented, it must neutralize 15(4) in regard to
reservation in education. Mr K. Parasaran, learned senior
E counsel for the respondents, correctly pointed out that
constitutional articles are to be read harmoniously, not in
isolation. (See: T.M.A. Pai (supra) at page 582, para 148). Our
interpretation is harmonious because Article 15(4) still applies
to other areas in which reservation may be passed.
F
6. Does Article 15(5)'s exemption o.f minority
institutions from the purview of reservation
violate Article 14 of the Constitution?
257. Given the inherent tension between Articles 29(2) and
G 30(1 ), I find that the overriding constitutional goal of realizing a
casteless/classless society should serve as a tie-breaker. We
will take a step in the wrong direction if we subject minority
institutions (even those that are aided) to reservation.
..,
258. Minority aided institutions were subject to a limited
H
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 445
[DALVEER BHANDARI, J.)

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

259. Article 30(1) provides that "all minorities, whether c
based on religion or language, shall have the right to establish
and administer educational institutions of their choice." Article
29(2) states that "no citizen shall be denied admission into any
educational institution maintained by the State or receiving aid
out of State funds on grounds only of religion, race, caste, D
language or any of them."
260. In other words, 30(1) by itself would allow minority
~ aided institutions to reject all non-minority candidates, and 29(2)
by itself would preclude the same as discrimination based solely E
on religion. Yet neither provision exists by itself. Rather than
disturb the Constitution, this Court struck a compromise and
diluted each provision in order to uphold both. Reading Articles
30(1) and 29(2) harmoniously, Kera/a Education Bill provided
that once minority institutions receive aid, a sprinkling of
F
outsiders must be admitted.
~
261. "Sprinkling" ensured that the minority character of the
institution would not be lost. In regard to the "sprinkled" seats,
minority institutions cannot discriminate based on religion in
violation of Article 29(2). At the same time, if the State compelled G
aided minority institutions to take too many non-minority
students, the institution would be "minority" in name only. But
what does "too many" mean? Can "sprinkling" be quantified?
~ Clearing up the ambiguity, St. Stephen's held that minority
' institutions must make 50% of their seats available to outsiders H
446 SUPREME COURT REPORTS [2008] 4 S.C.R.

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

c institutions: minority and non-minority. In the minority pool, merit
was to be observed. From the non-minority pool, reservations
for the weaker sections may be made while the remaining seats,
if any, would be distributed based on merit to non-minority
students.
D
"... It would be open to the state authorities to insist on
allocating a certain percentage of seats to those belonging
to weaker sections of society, from amongst the non-
minority seats." [Pai at para 152). .. "
E 262. With regard to the percentage of reservation, the State
Governments were to determine the percentage of non-minority
seats according to the needs of that State. As a compliment to
reservation, aided minority institutions were also subject to
regulation of administration and management. Pai declared at
F para 72 as noted above that:
"Once aid is granted to a private professional educational ...
institution, the Government or the state agency, as a
condition of the grant of aid, can put fetters on the freedom
in the matter of administration and management of the
G
institution. The state, which gives aid to an educational
institution, can impose such conditions as are necessary
for the proper maintenance of the high standards of
education as the financial burden is shared by the state. •
" '
H I
....
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 447
[DALVEER BHANDARI, J.]

263. In addition to the general power to impose conditions A
that seek to maintain high standards or "excellence in
"" I education," the State could implement the same under a related
but different rationale. That is, said regulations could be upheld
in the name of national interest. [Pai at para 107]. Yet the
Government could not destroy the minority character of an B
institution. [para 107]. Nor could it obliterate the
establishment or administration of a minority institution. [para
107]. A balance was to be struck between (a) maintaining
, I
academic quality and (b) preserving the minority right to
establish/administer educational institutions. Regulations that c
embraced these two objectives were considered reasonable.
[Pai at para 122].
264. A question of great import is whether Article 30 was
designed to put minorities on equal or higher footing than non-
.minorities. This questic;m played out in detail in a debate between D
Khare, C.J. and Justice Sinha in Islamic Academy. Writing for
the majority, Chief Justice Khare takes issue with Pai. The Chief
Justice says that Pai has wrongly categorized minority rights
as equal to those of the non-mino.rity. He has a point. Minorities
can establish and administer institutions for their communities E
per Article 30; non-minorities cannot. His Lordship observed:
(para 9 page 723)
"... We do not read these paragraphs to mean that non-
minority educational institutions would have the same rights F
as those conferred on minority educational institutions by
Article 30 of the Constitution of India. Non-minority
educational institutions do not have the protection of Article
30. Thus, in certain matters they cannot and do not stand
on a similar footing as minority educational institutions. G
Even though the principle behind Article 30 is to ensure
that the minorities are protected and are given an equal
treatment yet the special right given under Article 30 does
give them certain advantages ... "
>
Relying on St. Xavier's case (1975) 1 SCR 17'3. Pai H
448 SUPREME COURT REPORTS (2008] 4 S.C.R.

A concluded that the object of Article 30 was to ensure minorities
of equal treatment and nothing more.
265. It was observed in St. Xaviers College case, at page
...
192, that "the whole object of conferring the right on minorities
under Article 30 is to ensure that there will be equality between
B
the majority and the minority. If the minorities do not have such
special protection, they will be denied equality." The minority
institutions must be allowed to do what the non-minority

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

is equal. Only certain additional protection has been
E conferred under Article 30(1) of the 'Constitution of India
to bring the minorities on the same platform as that of
non-minorities as regards the right to establish and
administer an educational institution for the purpose of
imparting education to members of their own community
F whether based on religion or language. [see: Islamic
Academy at para 105]." ...
267. Justice Sinha considers it constitutionally immoral to ' '
discriminate against non-minorities in the guise of protecting
the constitutional rights of minorities. [See: Islamic Academy
G
at para 118]. Even in the face of Articles that provide preferential
treatment to minority or weaker sections, e.g., 30(1), 15(4) and
16(4), the right to equality must mean something.
268. Justice Khare, as he then was, concludes that original ~
•
H Framers conferred Article 30(1) on minorities in order to instill
ll
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 449
[DALVEER BHANDARI, J.]
.;. . in them a sense of confidence and security. [Pai at page 615 at A
para 229]. Their right to establish and administer educational
institutions could not be usurped by mere legislation. Khare, J.
stated at para 229 p.615:-
"Thus, while maintaining the rule of non-discrimination
B
envisaged by Article 29(2), the minorities should have also
right to give preference to the students of their own
_,. ~
community in the matter of admission in their own
institution. Otherwise, there would be no meaningful
purpose of Article 30(1) in the Constitution. True, the receipt
of State aid makes it obligatory on the minority educational c
institution to keep the institution open to non-minority
students without discrimination on the specified grounds.
But, to hold that the receipt of State aid completely
disentitles the management of minority educational
institutions from admitting students of their community to D
... any extent will be to denude the essence of Article 30 of
•
the Constitution. It is, therefore, necessary that the minority
be given preferential rights to admit students of their own
community in their own institutions in a reasonable
measure otherwise there would be no meaningful purpose E
of Article 30 in the Constitution."
269. -Minorities possess one right or privilege that non-
minorities do not: establishing and administering institutions for
.> their community. The right to admit your own students in aided
F
minority institutions was subject to admitting a reasonable
number of outsiders. In the instant case, aided minority
institutions stand to benefit from the Reservation Act: instead of
having to admit a reasonable number of outsiders they would
be exempted from reservation. However, their non-minority
G
counterparts would not. Does this elevate their status? While it
~
does to a certain extent, however, we must also keep our
~
constitutional goal and philosophy in mind. Given the ultimate
goal of furthering a classless/casteless society, there is no need
to go out on a limb and rewrite them into the Amendment. Such
H
450 SUPREME COURT REPORTS (2008] 4 S.C.R.

I ._
A a ruling would subject even more institutions to caste-based
reservation.
r
This would be a step back for the Nation, furthering
the caste divide. I refuse to go in that direction.
7. Are the standards of review laid down by the
U.S. Supreme Court applicable to our review of
B
affirmative action under Article 15(5) and similar
provisions?
~ --
270. As noted above, U.S. law is, of course, not binding
but does have great persuasive value. This is because their
c problem of race is akin to our problem of caste. Where others
have reviewed similar issues in great detail, it behooves us to
learn from their mistakes as well as accomplishments.
Mr. R. Venkataraman, former President of India in a
foreword to a book of eminent constitutional expert Dr. L.M.
D Singhvi "Democracy And Rule of Law: Foundation And
Frontiers", has aptly observed which reads as under: ~

"Society progresses only by exchange of thoughts and
ideas. Imagine what a sorry state the world would have
E been in had not thoughts and ideas spread to all corners
of the globe. Throughout history, philosophers, reformers,
thinkers, and scholar~ have recorded their thoughts,
regardless of whether they were accepted or not in their
times, and thus contributed towards progress of
humankind. India was the first to encapsulate this seminal -\.
F
global thought. The Rig Veda says:
Ano bhadrah Krlavo yantu Viswatah
Let noble thought come to us from every side."
G 8. With respect to OBC identification, was the
Reservation Act's delegation of power to the
Union Government excessive? •
"
271. It is not an excessive delegation. I agree with the
Chief Justice's reasoning at para 185 of his judgment.
H
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 451
[DALVEER BHANDARI, J.]

9. Is the impugned legislation invalid as it fails to A
set a time-limit for caste-based reservation?
272. It is not invalid because it fails to set a time-limit. Given
the Parliament's history of extending time-limits on other
reservation schemes, there is much force to the argument that
the Parliament will forever continue to extend reservations. As B
noted above, it is consistent with our constitutional goal of
achieving a classless/casteless society that a time-limit be set.
But I am bound by Sawhney I and believe that only a larger
bench could make such a ruling. A larger bench could certainly
hold that only economic criteria could be used to identify SEBCs C
and that it should be done by a certain date.
10. At what point is a student no longer
Educationally Backward and thus no longer
eligible for special provisions un~er 15(5)? o
273. Once a candidate graduates from a university, he must
be considered educationally forward. Sen!or counsel for
petitioners, Mr. P.P. Rao, contended that those who have
completed Plus 2 should be considered educationally forward.
In other words, they would no longer be eligible for reservation E
. in university or post-graduate studies. There is some force in
this argument where only 18% in the relevant age-group have
completed Plus 2. From this vantage point, this means that they
are educationally elite. But the answer to most questions in law
is not so simple. The answer often depends on the F
circumstances surrounding the issue. In the marketplace, a
candidate who has completed higher secondary education
cannot be considered "forward". The real value of the higher
secondary degree is that it is a prerequisite for college
admissions. The general quality of education imparted upto Plus G
2 is of extremely indifferent quality and apart from that. today
some entry-level Government positions only accept college
graduates. One is educationally backward until the candidate
has graduated from a university. Once he has, he shall no longer
enjoy the benefits of reservation. He is then deemed H
452 SUPREME COURT REPORTS [2008] 4 S.C.R.

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

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

"4.4.2 The Committee n~cognizes that those
institutions of higher learning· which have established a
E global reputation (e.g. llTs, II Ms, II Sc, AllMS and other such
exceptional quality institutions), can only maintain that if
the highest quality in both faculty and students is ensured.
Therefore, the committee recommends that the threshold
for admission should be determined by the respective
F institutions alone, as is done today, so that the level of its
..
excellence is not compromised at all.
4.4.3 As regards 'cut-offs' in institutions other than
those menti-Oned in para 7, these may be placed
somewhere midway between those for SC/ST and the
G
unreserved category, carefully, calibrated so that the
principles of both equity and excellence can be
maintained. '
4.4.4 The Committee strongly feels that the students
H who currently tend to get excluded must be given every
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 453

, . [DALVEER BHANDARI, J.]

single opportunity to raise their own levels of attainment, A
so that they can reach their true potential. The Government
should invest heavily in creating powerful, well designed
and executed remedial preparatory measures to achieve
this objective fully."
B
275. Standards of excellence however should not be limited
to the best aided institutions. The Nation requires that its citizens
~· have access to quality education. Society as a whole stands to
benefit from a rational reservation scheme.
276. Finding 68% reservation in educational institutions c
excessive, Balaji at pages 470-4 71 (supra) admonished States
that reservation must be reasonable and balanced against other
societal interests. States have "... to take reasonable and even
generous steps to help the advancement of weaker elements;
the extent of the problem must be weighted, the requirements D
4
of the community at large must be borne in mind and a formula
' must be evolved which would strike a reasonable balance
between the several relevant considerations." To strike such a
balance, Ba/aji slashed the impugned reservation from 68 to
less than 50%. E
277. Ba/ajithus serves as an example in which this Court
sought to ensure that reservation would remain reasonable. We
heed this example. There should be no case in which the gap of
cut off marks between OBC and general category students is
~
,. too large. To preclude such a situation, cut off marks for OBCs F
should be set no lower than 10 marks below the general
category.
278. To this end, the Government shall set up a committee
to look into the question of setting the OBC cut off at not more
G
than 10 marks below that of the general category. Under such a
,. scheme, whenever the non-creamy layer OBCs fail to fill the
-
-.:
~
27% reservation, the remaining seats would revert to general
category students.
H
454 SUPREME COURT REPORTS [2008] 4 S.C.R.

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

See paras 22, 25, 27, 30, 34, 35, 43, 44.
.j "'p
18. What are the parameters for creamy layer
exclusion?
c For a valid method of creamy layer exclusion, the
Government may use its post-Sawhney I criteria as a template.
(See: Office Memorandum dated 8-9-1993, para 2(c)/Column
3). I urge the Government to periodically revise the O.M. so that
changing circumstances can be taken into consideration while
D keeping our constitutional goal in view.

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

H 2. Can the Fundamental Right under Article 21A
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 455
[DALVEER BHANDARI, J.]
, t
be accomplished without great emphasis on A
primary education?
No, it cannot.
An inversion in priorities between higher and primary/
secondary education would make compliance with Article 21A B
extremely difficult. It is not suggested that higher education
needs no encouragement or that higher education should not
... - t
receive more funds, but there has to be much greater
emphasis on primary education. Our priorities have to be
changed. Nothing is really more important than to ensure total c
compliance of Article 21A. Total compliance means good
quality education is imparted and all children aged six to fourteen
regularly attend schools. I urge the Government to implement
the following:
The current patchwork of laws on compulsory education is D
... insufficient. Monetary fines do not go far enough to ensure that
Article 21A is implemented. The Central Government should
enact legislation that:
(a) provides low-income parents/guardians with financial E
incentives such that they may afford to send their
children to schools;
(b) criminally penalizes those who receive financial
incentives and despite such payment send their
children to work; F
(c) penalizes employers who preclude children from
attending schools;
(d) the penalty should include imprisonment; the
aforementioned Bill would serve as an example. The G
State is obligated under Article 21A to implement
,. ,. free and compulsory education in toto.
(e) until we have accomplished for children from six to
fourteen years the object of free and compulsory
H
\ I -,

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

A education, the Government should continue to I '

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

the most important of all the fundamental rights. For
without education, it becomes extremely difficult to
c exercise other fundamental rights.
See paras 126-131.
3. Does the 93rd Amendment violate the Basic
Structure of the Constitution by imposing
D reservation on unaided institutions?
Yes, it does. Imposing reservation on unaided iµ,stitutions .. ~

violates the Basic Structure by stripping citizens of their
fundamental right under Article 19(1 )(g) to carry on an
E occupation. T.M.A. Pai and lnamdar affirmed that the
establishment and running of an educational institution falls under
the right to an occupation. The right to select students on the
basis of merit is an essential feature of the right to establish
and run an unaided institution. Reservation is an unreasonable
restriction that infringes this right by destroying the autonomy
F
and essence of an unaided institution. The effect of the 93rd
Amendment is such that Article 19 is abrogated, leaving the
Basic Structure altered. To restore the Basic Structure, I sever
the 93rd Amendment's reference to "unaided" institutions.
G See paras 132-182.
4. Whether the use of caste to identify SEBCs runs
afoul of the casteless/classless society, in -1
"'
violation of Secularism.
H Sawhney I compels me to conclude that use of caste is
I I
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 457
[DALVEER BHANDARI, J.]

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

See paras 194, 195, 231, 248, 251. c
5. Are Articles 15(4) and 15(5) mutually
contradictory, such that 15(5) is
unconstitutional?

I am able to read them harmoniously. D

See paras 252-256.
6. Does Article 15{5)'s exemption of minority
institutions from the purview of reservation
violate Article 14 of the Constitution? E
Given the inherent tension between Articles 29(2) and
30(1 ), I find that the overriding constitutional goal of realizing a
casteless/classless society should serve as a tie-breaker. We
will take a step in the wrong direction if minority institutions (even F
those that are aided) are subject to reservation.
See paras 268-269.
7. Are the standards of review laid down by the
U.S. Supreme Court applicable to our review of G
affirmative action under Art 15(5) and similar
provisions?
The principles enunciated oy the American Supreme Court,
such as. "Suspect Legislation" "Narrow Tailoring" "Strict Scrutiny"
and "Compelling State necessity" are not strictly applicable for H
\ I

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

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

See para 183.
8. With respect to OBC identification, was the
Reservation Act's delegation of power to the
c Union Government excessive?
It is not an excessive delegation. With respect to this issue,
I agree with the reasoning of the Chief Justice in his judgment.
9. Is the impugned legislation invalid as it fails to
D set a time-limit for caste-based reservation?
It is not invalid because it fails to set a time-limit.
See para 272.

E 10. At what point is a student no -longer
Educationally Backward and thus no longer
eligible for special provisions under 15(5)?
Once a candidate graduates from a university, the said
candidate is educationally forward and is ineligible for special
F benefits under Article 15(5) of the Constitution for post graduate
and any further studies thereafter.
See para 273.
11. Would it be reasonable to balance OBC
G reservation with societal interests by instituting
OBC cut-off marks that are slightly lower than
that of the general category?
It is reasonable to balance reservation with other societal
interests. To maintain standards of excellence, cut off marks for
H
\ I
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 459
[R.V. RAVEENDRAN J.]

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

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

I have indicated an additional reason for rejecting the
challenge to Article 15(5) on the ground that it renders Article
15(4) inoperative/ineffective .
8. Validity of Central Educational Institutions F
, (Reservation in Admissions) Act, 2006 - Act No.5
,. of 2007:
I agree with the learned Chief Justice and Pasayat J. that
(i) identification of other backward classes solely on the basis
G
of caste will be unconstitutional; (ii) failure to exclude the 'creamy
layer' from the benefits of reservation would render the
reservation for other backward classes under Act 5 of 2007
. )'-
unconstitutional; and (iii) Act 5 of 2007 providing for reservation
for other backward classes will however be valid if the definition
H
\ I

460 SUPREME COURT REPORTS [2008] 4 S.C.R.
.r=
A of 'other backward classes' is clarified to the effect that if the
identification of other backward classes is with reference to any
caste considered as socially and economically backward, ~ '
'creamy layer' of such caste should be excluded. I have indicated
briefly my reasons for the same.
B I agree with the decision of learned Chief Justice that the. ·
Act is not invalid merely because no time limit is prescribed for
caste based reservation, but preferably there should be a review
after ten years to take note of the change of circumstances. A
genuine measure of reservation may not be open to challenge .. ..,
c when made. But during a period of time, if the reservation is
continued in spite of achieving the object of reservation, the law
which was valid when made, may become invalid.
C. What should be parameters for determining the
D creamy layer in respect of OBCs?
I agree with the learned Chief Justice that OM dated
8.9.1993 of the Government of India can be applied for such
determination. ..
D. Whether reservation to an extent of 27% in regard
"
E
to other backward class under Act 5 of 2007 is valid?
I agree with the decision of learned Chief Justice that
reservation of 27% for other backward classes is not illegal.
I would however leave open the question whether
F
members belonging to other backward classes who get
selected in the open competition field on the basis of their ~
~
own merit should be counted against the 27% quota reserved
for other backward classes under an enactment enabled by
Article 15(5) of the Constitution, for consideration in an
G
appropriate case.
2. Let me now briefly add a few words on two of the
questions.
....
Whether Article 15(5) renders Article 15(4) ineffective? -1
H
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 461 .
[R.V. RAVEENDRAN J.]

• i 3. This Court has held that clause (4) of Article 15 is neither A
an exception nor a proviso to clause (1) of Article 15. Clause
(4) has been considered to be an instance of classification
inherent in clause (1) and an emphatic restatement of the
principle implicit in clause (1) of Article 15 (see: State of Kera/a
v. N.M. Thomas - 1976 (2) SCC 310, K.C. Vasanth Kumar v. B
State ofKarnataka -1985 Supp. SCC 714 apd Indra Sawhney
v. Union of India - 1992 Supp. (3) SCC 217). Clauses (1) and
~ ~ (2) of Article 15 bar discrimination. Clause (1) contains a
prohibition that State shall not discriminate against any citizen
on grounds only on religion, caste, creed, sex or birth. Clausa c
(2) declares that no citizen shall, on grounds only of religion,
race, caste, sex, p!ace of birth or any of them be subject to any
disability, liability, restriction or condition with regard to access
to shops, public restaurants, hotels and places of public
entertainment, or the use of wens, tanks, bathing ghats, roads D
and places of public resort maintained wholly or partly out of
4
State funds or dedicated to the use of the general public. Clauses
•
(3) to (5) enable the State to make special provisions in
specified areas. While clause (3) is a part of the Article as
originally framed, Clause (4) was added by Constitution (First E
Amendment) Act, 1951. Clause (5) was added by Constitution
(Ninety-third Amendment) Act, 2005. Each of these three
enabling provisions operate independent of each other. The
opening words 'Nothing in this article' occurring in each of these
clauses (3), (4) and (5) obviously refer to clauses (1) and (2) of
,. .. Art. 15 and not to the other enabling clauses. Clauses (3), (4)
F
and (5) of Article 15 are not to be read as being in conflict with
each other, or prevailing over each other, but are to be read
harmoniously.
The need for exclusion of creamy layer. G
4. Section 3 of Act 5 of2007 mandates reservation of seats
..... in central educational institutions for other backward classes to
I-
an extent of 27%. The term 'other backward classes' is defined
as meaning the class or classes of citizens who are socially
H
\ I

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

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

for the purpose of Article 16(4), cannot be considered as
identification of 'socially and educationally backward classes
E of citizens' under Article 15(5). It is contended that the term
'backward classes' in Article 16(4) is much wider than 'socially
and educationally backward classes of citizens' occurring in
clauses (4) and (5) of Article 15.
5. Article 15(4) provides that nothing in that Article or in
F clause (2) of Article 29 shall prevent the State from making any ~
~

special provision for the advancement of any socially and
educationally backward class of citizens or for Scheduled
Castes and Scheduled Tribes. Article 29(2) provides that no
citizen shall be denied admission into any educational institution
G managed by the State or receiving aid out of State funds, on
grounds only of religion, race, caste, language or any of them.
On the other hand, clause (5) of Article 15 provides that ~
~
notwithstanding anything contained in that Article or in Article
19(1 )(g), State may make a special .provision for advancement
H of socially and educationally backward class of citizens or for
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 463
[RV RAVEENDRAN J.]

Scheduled Castes and Scheduled Tribes by providing for A
. ~
reservation relating to admission in any educational institution
either aided or unaided by the State, other than the minority
educational institutions referred to in Article 30(1 ). It is submitted
that as clause (5) of Article 15 does not override or exclude
Article 29(2), any !aw made in exercise of power under Article B
15(5) will be subject to Article 29(2), and consequently there
cannot be any affirmative action by way of reservation on the
ground of caste alone .
. - ~
6. It is submitted on behalf of the petitioners that the object
of the Constitution is to achieve an egalitarian society and any c
attempt to divide the citizens or the society on the ground of
race, religion or caste should be straightaway rejected. It is
further submitted that the Constitution nowhere recognizes or
refers to 'caste' (except Scheduled Castes and Tribes) as a
criterion for conferment of any right or benefit; that both clauses D
(4) and (5) of Article 15 refer to 'socially and educationally

. • backward classes' and not 'socially and educationally backward
castes'; that Constitution has always referred to caste in a
negative sense, that is to prohibit any discrimination or
affirmative action on the basis of 'caste' - [Vide Article 15(1) E
and (2), 16(2) and 29(2)]; and that when Constitution bars
discrimination in admissions to educational institutions on
ground only of caste, it is surprising that caste is sought to be
made the criterion by the State for purposes of making a special
provision for socially and educationally backward classes in F
regard to such admissions. It is submitted that there cannot be
~
• any special provision for any group of citizens merely on the
ground that they belong to a particular caste or community (except
Scheduled Castes and Tribes who are separately mentioned
in Articles 15(4), 15(5), 16(4), 335, 341 and 342 etc.). G
7. This Court in a series of decisions commencing from
M.R. Balaji v. State of Mysore (1963 Supp. (1) SCR 439],
---<
~~ R. Chitralekha v. State of Mysore (1964 (6) SCR 368], State
~
of Andhra Pradesh v. PSagar (1968 (3) SCR 595], Janki
H
464 SUPREME COURT REPORTS [2008] 4 S.C.R.

A Prasad Parimoo v. State of Jaminu & Kashmir [1973 (1)
SCC 420], State of Kera/a v. N. M. Thomas [1976 (2) SCC 31 OJ
and K. C. Vasanth Kumar v. State of Karnataka [1985 Supp.
sec 714] has explained what is social and educational
backwardness. All these decisions have laid down the principle
B that caste cannot be made the sole or dominant test to
determine backwardness, and any classification determining
backwardness only with reference to caste will be invalid.
These decisions recognized the fact that caste is not equated
to class and all backwardness, either social or educational,
c is ultimately and primarily due to poverty or economic
conditions.
8. However, in Minor PRajendran v. State of Madras
[1968 (2) SCR 786], it was held that if a caste, as a whole, is
socially and educationally backward then reservation can be
D made in favour of such a caste on the ground that it is a socially
and educationally backward class within the meaning of Article
15(4). The decision followed Balaji and therefore proceeded
on the basis that where the extent of social and educational .
backwardness of the caste in question is virtually the same as
E the social and educational backwardness of Scheduled Castes
and Scheduled Tribes, reservation can be made on the basis
of caste itself. In that case, it was found as a question of fact
that members of certain castes as a whole, were socially and
educationally backward, and therefore it was held that the
F reservation the basis of caste was permissible in respect of
those castes. In A.Periakaruppan v. Sobha Joseph [1971 (1)
SCC 38], this Court referred to the cases starting from Balaji to
Rajendran. It reiterated the principle stated in Rajendran that if
a caste as a whole is socially and educationally backward,
G reservation can be made in favour of such a caste on the ground
that it is a socially and educationally backward class of citizens
within the meaning of Article 15(4). It also cautioned that the
Government should not proceed on the basis that once a class
is considered as a backward class, it will continue to be
H backward class for all times. Vasanth Kumar (supra) held that
' I
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 465
[R.V. RAVEENDRAN J.]

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

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

-
E
as 'socially and educationally backward classes' referred to in
Article 15(4), but much wider. It held that there was no reason to
qualify or restrict the meaning of the expression 'backward class
of citizens' by saying that it means only those other backward
classes who are situated similarly to Scheduled Castes and/or
F
Scheduled Tribes (para 795). This Court held :
,. "If any group of class is situated similarly to the Scheduled
Castes, they may have a case for inclusion in that class
but there seems to be no basis either in fact or in pr:nciple
for holding that other classes/groups must be situated G
similarly to them for qualifying as backward classes. There
is no warrant to import any such a priori notions into the
concept of Other Backward Classes. At the same time,
we think it appropriate to clarify that backwardness, being
a relative term, must in the context be judged by the general H
466 SUPREME COURT REPORTS [2008] 4 S.C.R.

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

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

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

.. ~
the class. After excluding them alone, would the class be A
a compact class .. While we agree that clause (4) aims
at group backwardness, we feel that exclusion of such
socially advanced members will make the 'class' a truly
backward class and would more appropriately serve the
purpose and object of clause (4)" B
12. It is thus seen that Indra Sawhney certainly went a step
further than Balaji and other cases in holding that a caste can
-· ~
be the starting point for determination of backwardness. But it
is clear from the decision that caste itself is not the final
destination, that is, a caste by itself, cannot be determinative ofc
social and educational backwardness. A caste can be identified
to be socially and economically backward, only when the creamy
layer is removed from the caste and a compact class emerges
which can be identified as a socially and educationally backward
class. Thus the determination is not by first identifying a caste D
-... as a socially and educationally backward class and, thereafter,
remove or exclude the creamy layer for the purpose of bestowing
the benefits flowing to such class. On the other hand, until and
unless, the creamy layer is removed from a caste, there is no
compact class which can be termed as socially and educationally E
backward class at all. Thus, while the process of identifying
socially and educationally bacKward ciass can conveniently start
with a socially and educationally backward caste, remove the
creamy layer therefrom results in the emergence of compact
class which can be termed as a socially and educationally F
backward class. In this sense, it can be said that Indra Sawhney
is only a development of the principles laid down in Balaji,
R. Chitralekha and Vasanth Kumar, which pointed out that the
advanced section of a backward caste constituting the creamy
layer is virtually the same as forward class. If the creamy layer is G
not excluded the benefit of reservation will be appropriated by
,, such advanced sections. Referring to this aspect, Indra Sawhney
(supra) stated :
"To continue to confer upon such advanced sections,
H
I .

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

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

13. Caste has divided this country for ages. It has
E hampered its growth. To have a casteless society will be
realization of a noble dream. To start with, the effect of reservation
may appear to perpetuate caste. The immediate effect of caste
based reservation has been rather unfortunate. In the pre-
reservation era people wanted to get rid of the backward tag -
either social or economical. But post reservation, there is a
F
tendency even among those who are considered as 'forward',
to seek 'backward' tag, in the hope of enjoying the benefits of
reservations. When more and more people aspire for
'backwardness' instead of 'forwardness' the country itself
stagnates. Be that as it may. Reservation as an affirmative action
G is required only for a limited period to bring forward the socially
and educationally backward classes by giving them a gentle .___
supportive push. But if there is no review after a reasonable
period and if reservation is continued, the country will become
a caste divided society permanently. Instead of developing an
H
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 469
[R.V. RAVEENDRAN J.]

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

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

. JUDGilliErfP BY COURT 1. The Constitution 93rd
Amendment Act, 2005, is valid and does not violate the "basic
'
structure" of the Constitution so far as it relates to the State
maintained institutions and aided educational institutions.
E
Question whether the Constitution (Ninety Third Amendment)
Act, 2005 would be constitutionally valid or not so far as
"private unaided" educational institutions is concerned, is not
considered and left open to be decided in an appropriate
case.
F
Justice Bhandari, in his opinion, has, however, considered
"
the issue and has held· that the Constitution (Ninety Third
Amendment) Act, 2005 is not constitutionally valid sofar as
private un-aided educational institutions are concerned.
G
2. Act 5 of 2007 is constitutionally valid subject to the
definition of 'Other Backward Classes' in Section 2(g) of ~he
_, Act 5 of 2007 being clarified as follows : If the determination of
'Other Backward Classes' by the Central Government is with
reference to a caste, it shall exclude the 'creamy layer' among
H
470 SUPREME COURT REPORTS [2008] 4 S.C.R.

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