'The Effect Of Reservation May Appear To Perpetuate Caste'

CASE NO.: Writ Petition (civil) 265 of 2006
PETITIONER: Ashoka Kumar Thakur
RESPONDENT: Union of India & Ors
DATE OF JUDGMENT: 10/04/2008
BENCH: R. V. Raveendran
JUDGMENT: J U D G M E N T

WRIT PETITION (CIVIL) NO.265 OF 2006 WITH Writ Petition (C) No.269/2006 WritPetition (C) No.598/2006 Writ Petition (C) No.29/2007 Writ Petition (C)No.35/2007 Writ Petition (C) No.53/2007 Writ Petition (C) No.33/2007 WritPetition (C) No.313/2007 Writ Petition (C) No.335/2007 Writ Petition (C)No.231/2007 Writ Petition (C) No.425/2007 Writ Petition (C) No.428/2007 ContemptPetition (C) No.112/2007 in Writ Petition (C) No.265/2006

R. V. Raveendran J.

It has been my privilege to read the drafts of the Judgments proposed by the learnedChief Justice, learned brothers PasayatJ. and BhandariJ. I respectfully agree with them as indicated below :

A. Validity of 93rd Amendment to the Constitution of India.

I agree with the learned Chief Justice and Pasayat, J. that clause (5) ofArticle 15 is valid with reference to state maintained educational institutionsand aided educational institutions; and that the question whether Article 15(5)would be unconstitutional on the ground that it violates the basic structure ofthe Constitution by imposing reservation in respect of private unaidededucational institutions is left open. I have indicated an additional reason forrejecting the challenge to Article 15(5) on the ground that it renders Article15(4) inoperative/ineffective .

B. Validity of Central Educational Institutions (Reservation inAdmissions) Act, 2006  Act No.5 of 2007 :

I agree with the learned Chief Justice and Pasayat J. that (i) identificationof other backward classes solely on the basis of caste will be unconstitutional;(ii) failure to exclude the 'creamy layer' from the benefits of reservationwould render the reservation for other backward classes under Act 5 of 2007unconstitutional; and (iii) Act 5 of 2007 providing for reservation for otherbackward classes will however be valid if the definition of 'other backwardclasses' is clarified to the effect that if the identification of other backwardclasses is with reference to any caste considered as socially and economicallybackward, 'creamy layer' of such caste should be excluded. I have indicatedbriefly my reasons for the same.

I agree with the decision of learned Chief Justice that the Act is notinvalid 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 thechange of circumstances. A genuine measure of reservation may not be open tochallenge when made. But during a period of time, if the reservation iscontinued in spite of achieving the object of reservation, the law which wasvalid when made, may become invalid.

(C). What should be parameters for determining the creamy layer in respectof OBCs?

I agree with the learned Chief Justice that OM dated 8.9.1993 of theGovernment of India can be applied for such determination.

(D) Whether reservation to an extent of 27% in regard to other backwardclass under Act 5 of 2007 is valid?

I agree with the decision of learned Chief Justice that reservation of 27%for other backward classes is not illegal.

I would however leave open the question whether members belonging to otherbackward classes who get selected in the open competition field on the basis oftheir own merit should be counted against the 27% quota reserved for otherbackward classes under an enactment enabled by Article 15(5) of theConstitution, for consideration in an appropriate case.

2. Let me now briefly add a few words on two of the questions.

Whether Article 15(5) renders Article 15(4) ineffective?

3. This Court has held that clause (4) of Article 15 is neither an exceptionnor a proviso to clause (1) of Article 15. Clause (4) has been considered to bean instance of classification inherent in clause (1) and an emphatic restatementof the principle implicit in clause (1) of Article 15 (see : State of Kerala v.N.M. Thomas - 1976 (2) SCC 310, K.C. Vasanth Kumar v. State of Karnataka - 1985Supp. SCC 714 and Indra Sawhney v. Union of India - 1992 Supp. (3) SCC 217).Clauses (1) and (2) of Article 15 bar discrimination. Clause (1) contains aprohibition that State shall not discriminate against any citizen on groundsonly on religion, caste, creed, sex or birth. Clause (2) declares that nocitizen shall, on grounds only of religion, race, caste, sex, place of birth orany of them be subject to any disability, liability, restriction or conditionwith regard to access to shops, public restaurants, hotels and places of publicentertainment, or the use of wells, tanks, bathing ghats, roads and places ofpublic resort maintained wholly or partly out of State funds or dedicated to theuse of the general public. Clauses (3) to (5) enable the State to make specialprovisions in specified areas. While clause (3) is a part of the Article asoriginally framed, Clause (4) was added by Constitution (First 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. Theopening 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 theother enabling clauses. Clauses (3), (4) and (5) of Article 15 are not to beread as being in conflict with each other, or prevailing over each other, butare to be read harmoniously.

The need for exclusion of creamy layer.

4. Section 3 of Act 5 of 2007 mandates reservation of seats in centraleducational institutions for other backward classes to an extent of 27%. Theterm 'other backward classes' is defined as meaning the class or classes ofcitizens who are socially and economically backward, and are so determined bythe central Government. The Act does not define the term 'socially andeducationally backward classes', nor does it contain any norms or guidelines asto how the central Government should determine any class or classes as sociallyand educationally backward, so as to entitle them to the benefit of reservationunder the Act. The petitioners contend that the Act vests unguided power in theexecutive to pick and choose arbitrarily certain classes for the benefit ofreservation. The Central Government has however indicated that it intends toproceed on the basis that castes which have already been identified for thebenefit of reservations under Article 16(4) by the Mandal Commission with theadditions thereto made by the National Commission for Backward Classes, fromtime to time, will be considered, for the present, to constitute the sociallyand educationally backward classes for the purpose of availing the benefit of27% reservation under the Act. This again is challenged by the petitioners onthe ground that identification of any class of citizens as 'backward', for thepurpose of Article 16(4), cannot be considered as identification of 'sociallyand educationally backward classes of citizens' under Article 15(5). It iscontended that the term 'backward classes' in Article 16(4) is much wider than'socially and educationally backward classes of citizens' occurring in clauses(4) and (5) of Article 15.

5. Article 15(4) provides that nothing in that Article or in clause (2) ofArticle 29 shall prevent the State from making any special provision for theadvancement of any socially and educationally backward class of citizens or forScheduled Castes and Scheduled Tribes. Article 29(2) provides that no citizenshall be denied admission into any educational institution managed by the Stateor 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 providesthat notwithstanding anything contained in that Article or in Article 19(1)(g),State may make a special provision for advancement of socially and educationallybackward class of citizens or for Scheduled Castes and Scheduled Tribes byproviding for reservation relating to admission in any educational institutioneither aided or unaided by the State, other than the minority educationalinstitutions referred to in Article 30(1). It is submitted that as clause (5) ofArticle 15 does not override or exclude Article 29(2), any law made in exerciseof power under Article 15(5) will be subject to Article 29(2), and consequentlythere cannot be any affirmative action by way of reservation on the ground ofcaste alone.

6. It is submitted on behalf of the petitioners that the object of theConstitution is to achieve an egalitarian society and any attempt to divide thecitizens or the society on the ground of race, religion or caste should bestraightaway rejected. It is further submitted that the Constitution nowhererecognizes or refers to 'caste' (except Scheduled Castes and Tribes) as acriterion for conferment of any right or benefit; that both clauses (4) and (5)of Article 15 refer to 'socially and educationally backward classes' and not'socially and educationally backward castes'; that Constitution has alwaysreferred to caste in a negative sense, that is to prohibit any discrimination oraffirmative action on the basis of 'caste' - [Vide Article 15(1) and (2), 16(2)and 29(2)]; and that when Constitution bars discrimination in admissions toeducational institutions on ground only of caste, it is surprising that caste issought to be made the criterion by the State for purposes of making a specialprovision for socially and educationally backward classes in regard to suchadmissions. It is submitted that there cannot be any special provision for anygroup of citizens merely on the ground that they belong to a particular caste orcommunity (except Scheduled Castes and Tribes who are separately mentioned inArticles 15(4), 15(5), 16(4), 335, 341 and 342 etc.).

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 ofMysore [1964 (6) SCR 368], State of Andhra Pradesh v. P.Sagar [1968(3) SCR 595], Janki Prasad Parimoo v. State of Jammu & Kashmir [1973(1) SCC 420], State of Kerala v. N.M.Thomas [1976 (2) SCC 310] and K.C.VasanthKumar v. State of Karnataka [1985 Supp. SCC 714] has explained what issocial and educational backwardness. All these decisions have laid down theprinciple that caste cannot be made the sole or dominant test to determinebackwardness, and any classification determining backwardness only withreference to caste will be invalid. These decisions recognized the fact thatcaste is not equated to class and all backwardness, either social oreducational, is ultimately and primarily due to poverty or economic conditions.

8. However, in Minor P.Rajendran v. State of Madras [1968 (2) SCR786], it was held that if a caste, as a whole, is socially and educationallybackward then reservation can be made in favour of such a caste on the groundthat it is a socially and educationally backward class within the meaning ofArticle 15(4). The decision followed Balaji and therefore proceeded on the basisthat where the extent of social and educational backwardness of the caste inquestion is virtually the same as the social and educational backwardness ofScheduled Castes and Scheduled Tribes, reservation can be made on the basis ofcaste itself. In that case, it was found as a question of fact that members ofcertain castes as a whole, were socially and educationally backward, andtherefore it was held that the reservation the basis of caste was permissible inrespect of those castes. In A.Periakaruppan v. Sobha Joseph [1971 (1) SCC38], 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 issocially and educationally backward, reservation can be made in favour of such acaste on the ground that it is a socially and educationally backward class ofcitizens within the meaning of Article 15(4). It also cautioned that theGovernment should not proceed on the basis that once a class is considered as abackward class, it will continue to be backward class for all times. VasanthKumar (supra) held that only a caste comparable to the Scheduled Castes andScheduled Tribes in the matter of backwardness, could be considered to be asocially and educationally backward class in favour of which reservation couldbe made on the basis of caste. Vasanth Kumar therefore, reiterated Balaji.

9. What requires to be noticed is neither Rajendran nor Periakaruppamnor Vasanth Kumar really departed from or diluted the principle laid downin Balaji. On the other hand, the principle laid down in Balaji was reiterated.Rajendran and Periakaruppam only show that in extreme cases where it is foundthat the caste under consideration was, as a whole, socially and educationallybackward, and therefore akin to a Scheduled Caste, reservation can be made onthe basis of caste alone.

10. Then came to the decision of nine Judges in Indra Sawhney v. Union ofIndia [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 underArticle 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 as'socially and educationally backward classes' referred to in Article 15(4), butmuch wider. It held that there was no reason to qualify or restrict the meaningof the expression 'backward class of citizens' by saying that it means onlythose other backward classes who are situated similarly to Scheduled Castesand/or 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 principle for holding that other classes/groups must be situated 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 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 beand quite often is a social class in India and if it is backward socially, itwould be a 'backward class' for the purposes of Article 16(4). It held that theaccent in Article 16(4) is on social backwardness, whereas the accent in Article15(4) is on 'social and educational backwardness'. Ultimately, this Court held :

" 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 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 sections of people.

The Court however made it clear that a caste can be the starting point fordetermining a 'backward class of citizens' as it represents an existing,identifiable social group/class; and that if a caste should be designated as 'abackward class' then the creamy layer from such caste should be excluded. ThisCourt observed :

"In a backward class under clause (4) of Article 16, if the connecting link is the social backwardness, it should broadly be the same in a given class. If some of the members are far too advanced socially (which in the context, necessarily means economically and, may also mean educationally) the connecting thread between them and the remaining class snaps. They would be misfits in the class. After excluding them alone, would the class be 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)"

12. It is thus seen that Indra Sawhney certainly went a step further thanBalaji and other cases in holding that a caste can be the starting point fordetermination of backwardness. But it is clear from the decision that casteitself is not the final destination, that is, a caste by itself, cannot bedeterminative of social and educational backwardness. A caste can be identifiedto be socially and economically backward, only when the creamy layer is removedfrom the caste and a compact class emerges which can be identified as a sociallyand educationally backward class. Thus the determination is not by firstidentifying a caste as a socially and educationally backward class and,thereafter, remove or exclude the creamy layer for the purpose of bestowing thebenefits flowing to such class. On the other hand, until and unless, the creamylayer is removed from a caste, there is no compact class which can be termed associally and educationally backward class at all. Thus, while the process ofidentifying socially and educationally backward class can conveniently startwith a socially and educationally backward caste, remove the creamy layertherefrom results in the emergence of compact class which can be termed as asocially and educationally backward class. In this sense, it can be said that IndraSawhney is only a development of the principles laid down in Balaji,R.Chitralekha and Vasanth Kumar, which pointed out that the advanced section ofa backward caste constituting the creamy layer is virtually the same as forwardclass. If the creamy layer is not excluded the benefit of reservation will beappropriated by such advanced sections.