(1) For implementation of the impugned Statute creamy layer must be excluded.
(2) There must be periodic review as to the desirability of continuingoperation of the Statute. This shall be done once in every five years.
(3) The Central Government shall examine as to the desirability of fixing acut off marks in respect of the candidates belonging to the Other BackwardClasses (OBCs). By way of illustration it can be indicated that five marks gracecan be extended to such candidates below the minimum eligibility marks fixed forgeneral categories of students. This would ensure quality and merit would notsuffer. If any seats remain vacant after adopting such norms they shall befilled up by candidates from general categories.
(4) So far as determination of backward classes is concerned, a Notificationshould be issued by the Union of India. This can be done only after exclusion ofthe creamy layer for which necessary data must be obtained by the CentralGovernment from the State Governments and Union Territories. Such Notificationis open to challenge on the ground of wrongful exclusion or inclusion. Normsmust be fixed keeping in view the peculiar features in different States andUnion Territories.
(5) There has to be proper identification of Other Backward Classes (OBCs.).For identifying backward classes, the Commission set up pursuant to thedirections of this Court in Indra Sawhney No.1 has to work more effectively andnot merely decide applications for inclusion or exclusion of castes. Whiledetermining backwardness, graduation (not technical graduation) or professionalshall be the standard test yardstick for measuring backwardness.
(6) To strike the constitutional balance it is necessary and desirable toear-mark certain percentage of seats out of permissible limit of 27% forsocially and economically backward classes.
(7) In the Constitution for the purposes of both Articles 15 and 16, caste isnot synonyms with class and this is clear from the paragraphs 782 and 783 ofIndra Sawhney No.1. However, when creamy layer is excluded from the caste, thesame becomes an identifiable class for the purpose of Articles 15 and 16.
(8) Stress has to be on primary and secondary education so that properfoundation for higher education can be effectively laid.
(9) So far as the constitutional amendments are concerned: (i) Articles 16(1)and 16(4) have to be harmoniously construed. The one is not an exception to theother. (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 provisions, foreign decisions donot have great determinative value. They may provide materials for deciding thequestion regarding constitutionality. In that sense, the strict scrutiny test isnot applicable and indepth scrutiny has to be made to decide theconstitutionality or otherwise, of a statute.
(11) If material is shown to the Central Government that the Institutiondeserves to be included in the Schedule, the Central Government must take anappropriate decision on the basis of materials placed and on examining theconcerned issues as to whether Institution deserves to be included in theSchedule.
(12) Challenge relating to private un-aided educational institutions has notbeen examined because no such institution has laid any challenge. It is to benoted that the petitioners have made submissions in the background of Article19(6) of the Constitution. Since none of the affected institutions have made anychallenge we do not propose to consider it necessary to express any opinion ordecide on the question.
Full text of Justice Dr Arijit Pasayat and C.K. Thakker is available here
