Ashoka Kumar Thakur vs Union of India and others ...part 2

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 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 attending school or completing homework;

(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 toto;

(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 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 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 contained 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 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 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.

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 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 165th Report by the Law Commission of
India.

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 III, Part IV and Part IVA
of the Constitution are being made which are as follows :

?. 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 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 must be quality in
nature. Only upon accomplishing both of these goals, can we say that we have achieved total compliance with Article 21A.

131. Though progress has been made, the Parliament's observation upon passing Art 21A still applies: the goal of providing universal and quality education " still remains unfulfilled."

? Does the 93rd Amendment violate the Basic Structure of the Constitution by imposing reservation on unaided institutions?

132. Imposing reservation on unaided institutions violates 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 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 filed a writ petition in this case. 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 petition. While we would usually implead a party if we felt their 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 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 novo to determine if unaided institutions should be subject to reservation. Such an exercise would unnecessarily cause further delay. The fate of lakhs of 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.

134. Amendments by their very nature are often enabling provisions. If they clear the way for future legislation that would 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 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.

"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 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 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 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 ordinary law which may or may not be passed so that it 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 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 objection and proceed to determine the point raised by the petitioners."
[emphasis added]

There is not one precise definition of the width test, 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 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).

135. As a preliminary 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 Democratic Constitution", at page 506].

136. Kesavananda and its progeny provide that an amendment to the Constitution must not alter the Constitution's basic structure. To reach a conclusion regarding a basic structure challenge, I employ the following general standard: an 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 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 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 I.R. Coelho v. State of Tamil Nadu (2007) 2 SCC 1 at Conclusion (ii) at page 111).

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 changed the basic structure of the Constitution. If legislation merely abridges the basic 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.

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 (impact/rights tests). (See: Coehlo). I further note that a total deprivation of fundamental rights, even
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?

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 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 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 and the abyss of unrestrained
power. They are Articles 14, 19 and 21. Article 31C has removed two sides of that 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 an egalitarian era through the discipline of fundamental rights, that is, without
emasculation of the rights to liberty and equality which alone can help preserve the dignity of the
individual."

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

"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 objectives through the discipline of fundamental 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 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 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."

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
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 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 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)."

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 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.

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 in violation of separation of powers. See Justice Matthew's opinion
at para 325. It was introduced by the 39th Amendment. In Minerva Mills, the Court held sections 4 and 55 of the 42nd Amendment in violation of the basic structure. Section 4 sought to expand 31C 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 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-D (5), finding that the Parliament had violated the rule of law and consequently the 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 323B-3D violated the basic structure in that they removed judicial review 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.

147. Two broad themes surface from these cases. When judicial review is barred, democracy evaporates. And when Fundamental Rights are at stake, they must be harmonized with, not made subject to, the Directive Principles. Sections 4 and 55 of the 42nd Amendment were especially egregious violations 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 the learned Mr H.M.
Seervai, who was opposing counsel in 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 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.

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 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
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 has refrained from using the doctrine, even when it may have been justified. For example, there were grounds for striking the entire 10th Schedule as violative of the basic structure in Kihoto Hollohan v Zachillhu & Others 1992 Supp (2) SCC 651. Rather than resort to the basic structure, this Court made a 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 10th Schedule, only severing a paragraph from the same. I agree that an abundance of caution ought to be 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 briefly revisit the rulings of two landmark cases: P.A. Inamdar & Others v. State of Maharashtra & Others, (2005) 6 SCC 537; T.M.A. Pai Foundation & Others v. State of Karnataka & Others (2002) 8 SCC 481. In Inamdar (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 and non-minority) institutions. A seven-Judge Bench was constituted such that Islamic Academy's clarification of Pai could be reviewed. Islamic Academy was a five-Judge Bench. Given that Pai was an eleven-Judge Bench, Inamdar could clarify but not overrule Pai.

152. At para 124, Inamdar held that the State cannot impose quotas on unaided (minority and non-minority) institutions. To do so would nationalize seats, contrary to Pai. (See: Inamdar at para 125). In dictum, Pai suggested that the State could compel unaided institutions to admit a reasonable percentage of students via reservation. (Pai, para 68). Inamdar 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: Inamdar at para 126). Unaided institutions (minority and non-minority) can admit as they choose, provided their process is fair, transparent, non-exploitative and merit-based. Inamdar 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 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 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.

125. As per our understanding, neither in the judgment of Pai Foundation nor in the Constitution
Bench decision in Kerala Education Bill, which was approved by Pai Foundation, there is anything which
would allow the State to regulate or control admissions in the unaided 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 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 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 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 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."

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. [Inamdar at para 130]

153. In T.M.A. Pai Foundation (supra) para 2 (eleven- Judge Bench), private educational institutions, aided and unaided, filed writ petitions to challenge regulations that impeded their rights. They wanted to establish and administer 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 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.

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:

"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. 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 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).

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 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 in life. ..."
[emphasis added]

155. Stripping private unaided institutions of their right to select students would be unreasonable:

"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 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 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 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 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 funds or runs the institution holds the power to select students. The State cannot ask these institutions to abridge this right in 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 their choice in matters, inter alia, 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 Court to insist that statutory authorities should impose 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.

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 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, it cannot be denied the power to admit such qualified students as pass the reasonable tests laid down by it. This is a power which every private owner of a College will have, and the Government which runs its own Colleges cannot be denied that power." (italics added by Pai; 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 are in control of the Colleges, and in this case the 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 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 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 autonomy has to be with the management with regard to administration, including the right of appointment, disciplinary powers, admission of students and the fees to be charged."

158. Unaided institutions may admit students of their 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 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 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 have the right to choose and select the students who can be admitted to
their courses of studies. It is for this reason that in the St. Stephen's College case, this Court upheld 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 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), 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 merit, the ultimate decision to grant admission to the students who have otherwise qualified for the grant of 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 unreasonable regulations by asking which functions lie at the heart of an institution's autonomy. Regulations that strike at the core of autonomy are unreasonable. For example, prescribing minimum qualifications for teachers is a reasonable regulation;
actually selecting the teachers is not.

"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 institutions. Whereas in the
latter case, the Government will have greater say in the administration, including admissions and fixing
of fees, in the case of private unaided institutions, maximum autonomy in the day-to-day administration has to be with the private unaided institutions. Bureaucratic or 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 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 private institution include the recruiting students and staff, 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 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 596, paragraph 54, as follows:

"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 advancement of the country and its people. Such
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."

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

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

163. I now query if the Parliament may subject Article 19 (1) (g) to Article 15 (5), when this Court has held that reservation in unaided institutions is an unreasonable restriction that cannot be saved by Article 19 (6).

164. I 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 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 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) --
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, 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, 31B and 31C for further support. Those Articles exclude challenges under Articles 14 and 19. In agreement with Dr. Dhavan's submission, I decline to rely on Articles 31A, 31B 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 principled basis. Nor did it make a ruling as to whether the exclusion violated the basic structure. (See: para 71-72 of Minerva Mills. See also para 43 of Waman Rao, (1981) 2 SCC 362).

166. 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 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. Champakam Dorairajan, AIR 1951 SC 226. Other examples include the 77th Amendment, which overruled Sawhney I by adding Article 16 (4-A); the 81st Amendment further overruled Sawhney I by adding Art 16 (4-B); the 82nd Amendment overruled S. Vinod Kumar & Another v. Union of India & Another (1996) 6 SCC 580 by amending Article 335; and the 85th Amendment overruled Virpal Singh Chauhann and Ajit Singh I by amending Article 16 (4-A), (1995) 6 SCC 684 and (1996) 2 SCC 715, respectively. Nevertheless, the duty to interpret the content of our fundamental rights has been left to 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 cannot alter the Constitution's basic structure. (See:
Kesavananda, Indira Nehru Gandhi (Election Case), Minerva Mills, Sambamurthy, L. Chandra Kumar and 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?

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 impact/ rights test to determine whether the basic structure has been violated. [See Coehlo at Conclusion (ii) at 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 regulation when one relies on Government funding. (See: Pai/ Inamdar). Individual liberty and freedom, as protected by the 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 draw the circle when I ask who is affected by reservation in unaided institutions. 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).

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. 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.

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 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 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, 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, because they " do not bear directly upon management although they may indirectly
affect it "). This Court has stated in Pai as clarified by Inamdar that subjecting unaided institutions is an
unreasonable restriction. As noted, Article 19 (6) provides no safe haven for reservations.

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:

(1) academic standards suffer;

(2) attracting and retaining good faculty becomes more difficult;

(3) the incentive to establish a first rate unaided institution is diminished;

(4) and ultimately the global reputation of our unaided 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 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 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 OBCs. When the creamy layer is not removed, as in the case of
Tamil Nadu, the difference in cut off marks for the general and backward categories may be insignificant. (See para 408 of Sawhney I). Of course, the extent to which standards of excellence would suffer would vary by institution. As I mention 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 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 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.

176. Third, those inclined to teach the brightest students have even less of a reason to leave private sector jobs for the 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. 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 knowledge economy. Recruiters have begun to trickle into campuses. They hail from domestic as well as international entities, and 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.

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, 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 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 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. F.N. Balsara (1951) SCR 682, where the question at issue was whether the Bombay Prohibition Act was valid:

Sections 12 and 13 of the Act imposed restrictions on the possession, consumption and sale of liquor, which had been defined in s. 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 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 attacked in its entirety as violative 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 "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 it may be 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 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
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 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, 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 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 & Another v. The United Motors (India) Ltd. & Others (1953) 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:

'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.'"

182. Here, I believe the Parliament would have gone forward without unaided institutions. While some Members of Parliament sought to overrule Pai and Inamdar, 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 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 27% reservation for OBCs without confirming that at least 27% of the population is OBC. For these reasons, I conclude that had the Parliament known that unaided
institutions were going 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:

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 U.S., the problem of racial discrimination has existed for centuries. The cases of affirmative 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. 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 condition. 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 the light of knowledge to enter from any source. In this light, I shall refer to some US decisions.

? Affirmative Action cases and standards of review from the United States:

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 medical school deemed unconstitutional). (438 U.S. 265). Justice Powell's concurring judgment is considered the key opinion in the case.

185. Justice Powell concluded that diversity was a compelling State interest that could withstand strict scrutiny. Relying on Bakke, the court later reaffirmed preferential treatment in college admissions as a means to ensure diversity in the classroom, racial diversity being just one among many 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 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 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 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 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today."

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 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 held the programmes 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. In his concurring opinion, Justice Kennedy found the 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 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 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 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 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 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. 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 deferential to Government.

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 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,' (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)).

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 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 addressing this issue must keep in mind the 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."

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 triggers strict scrutiny. However, in this framework, affirmative action classifies on the face of legislation and automatically gets strict scrutiny treatment.

194. As I have observed, American courts carefully review 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 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 reservation in aided institutions, its implementation is
contingent upon the directions given in this opinion.

? The Framers' ultimate goal: the Classless and Casteless society:

195. Did the original Framers intend to provide caste-based reservation in education to the lower classes? No, the 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), vide the First
Amendment, to the Constitution. In doing so, they deviated from their own goal the casteless 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 choice but to uphold the impugned legislation by which the Government may 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 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 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 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.

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:

SC OBC Upper caste Hindu
Poorest Rural Quintile 1.6 1.7 2.2
Richest Rural Quintile 5.1 5.5 6.1

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 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 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 insight into the original Framers' compromise between formal and substantial/egalitarian equality.

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 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 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 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, 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, 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.

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 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 advantage for itself." (CAD Vol.7 dated 30th November 1948, p. 681)"
(emphasis supplied)

Instead of moving to remove reservations, the Parliament 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 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
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 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 that
reservation in legislative bodies would fail to uplift SC/ST.
Instead, he suggested that:
"it should be laid down clearly in express terms that
free education shall be imparted to them. [and] for
the tribals and Harijans provision must be made in
the constitution that free agricultural lands should be
given to 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)"
(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.

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
original Framers rejected an amendment that would have
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
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 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 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 country.
equality is not to be equality of name only or on paper
only, but equality of fact. [pages 655-656 CAD, Vol. 7,
29 November 1948]."
(emphasis supplied)

211. Relevant to the instant case, he explains that his
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
Assembly Debates, Vol. 7, 29 November, 1948).

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
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 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].


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 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, others may presume that reservation
was a factor. Such a belief, regardless of veracity, cannot bode
well for the career prospects of SC/ST/SEBCs. Irrespective of
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.

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, 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 (SEBC/SC/ST) in education were to dilute Article 15(1)'s
prohibition against discrimination based on caste.

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 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
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
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.

7 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, 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, 1st Ed, 1972, Oxford
University press: (quoting from: K. Santhanam (an Assembly
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 and to
ensure decent conditions of living". [Cornerstone at page 27, fn. 5
(quoting from Prasad in CAD V, I, 2)]. The original 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 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:
"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 Castes and Tribes
reserved seats. The Assembly believed, in Jenning's
words, that 'to recognize communal claims . . . is to
strengthen communalism'. [see: Austin, p. 323 of
Cornerstone.]"
(emphasis added)
The same can be said today. Reservation based on caste
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. On
16 September 2006, The Hindu reported: "While medical
students at the All India Institute of Medical Sciences (AIIMS)
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 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
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:
" 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 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 theory by giving
standardized exams to groups of white and African-
American undergraduates at Stanford University.

Testers told some groups that the exam evaluated
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" 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
respond to an environment characterized by the
relative 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), 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.

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 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 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 Debates on 13
June, 1951 and 29 May, 1951 respectively].
7 If reservation is allowed, then how can 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
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 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 rejected caste
tabulation as a device to confirm the British theory that 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 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 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 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 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 I, para 859(3)(a).
7 Economic criteria allows for reservation on
grounds other than caste:

223. Despite the goal of a casteless society, the 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 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."

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 basis
of democracy, should not be violated. Part of his compromise
meant that reservation had to remain reasonable. 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 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 illustration.
Supposing, for instance, reservations were made for a
community or a collection of communities, the total of
which came to something like 70 per cent of the 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 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)."

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 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 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, 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
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.

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:
"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 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
reservation, more particularly in service. I react
strongly against anything which leads to inefficiency
and second-rate standards. I want my country to be a
first class country in everything. The moment we
encourage the second-rate, we are lost.

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 crutches which do not add to the strength or
health of the body. We have made recently two
decisions which are very important: one is, universal
free elementary education, that is the base; and the
second is scholarships on a very wide scale at every
grade of education to bright boys and girls, and this
applies not 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.

But if we go in for reservations on communal and
caste 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 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?"

7 Upon expiry of the time limit, the criteria for
identifying OBCs should only be economic in
nature because our ultimate aim is to establish a
casteless and classless society

228. I am not the first to propose economic criteria as the
exclusive means of identifying SEBCs. In Vasanth Kumar'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 Karnataka Government in
implementing reservation. [para 1]. It serves our purposes to
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 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 seems at last this 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, "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 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
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 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 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. "

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 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.

231. That said, the majority in Sawhney I 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 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
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
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
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
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 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 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
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 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:
"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 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 source of social and educational
backwardness, they must 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 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
occasions, this Court has proclaimed that the cherished goal of
the Nation is to realise a casteless society. In Shri V. V. Giri v.
Dippala Suri Dora & Others (1960) 1 SCR 426 at 442, the
Court observed as under:-
" ..The history of social reform for the last century
and 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 casteless society truly based on
social equality will be attained under 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 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."

237. In N M. 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 economic activity, including
employment 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:
"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 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 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."

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 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, 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).

241. The National Commission for Backward Classes 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 the exclusive use of economic criteria. Most 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 likely violate the
Balaji cap of 50% [see M.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.

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 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 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, 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:
"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 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 we part
ways. 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 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
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
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).

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 Legislative Assemblies would expire 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. When that was to expire, it
extended it for another ten years vide the 79th Amendment.
History has shown that it is not politically feasible for the
Parliament to say "no" to reservation especially when caste is
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 I's nine-
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 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 inequality
persist.

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

250. Relying on these provisions, Bommai (1994) 3 SCC 1 at
para 304 declared secularism " .a constitutional goal and a
basic feature of the Constitution as affirmed in Kesavananda
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
embedded in their constitutional philosophy. [para 29]. During
the Constituent Assembly Debates, Pandit Laxmikantha Mitra
stated (as quoted at para 28 of Bommai):
"By secular State, as I understand it, it is meant that
the State is not going to make any discrimination
whatsoever 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."

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. 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).

7 Conclusion on the Casteless Society
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. If
caste-based quotas in education are to stay, they should adhere
to a basic tenet of secularism: they 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
should prevail. Sawhney I has tied our hands. I nevertheless
believe that caste matters and will continue to matter as long as
we divide society along caste-lines. Caste-based discrimination
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.

5. Are Articles 15(4) and 15(5) mutually 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. 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 in the
reservation scheme. Because both provisions contain "non-
obstante clauses", they render each other void. He further
submitted that the Court is in the position of having to choose
between them in regard to this inconsistency. He provided three
tests of statutory interpretation that give us guidance in
resolving such a conflict.

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

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

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

257. 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 we subject minority
institutions (even those that are aided) to reservation.

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

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

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

261. "Sprinkling" ensured that the minority character of the
institution would not be lost. In regard to the "sprinkled" seats,
minority institutions cannot discriminate based on religion in
violation of Article 29(2). At the same time, if the State compelled
aided minority institutions to take too many non-minority
students, the institution would be "minority" in name only. But
what does "too many" mean? Can "sprinkling" be quantified?
Clearing up the ambiguity, St. Stephen's held that minority
institutions must make 50% of their seats available to outsiders
and that admission for the other 50% (its own community) must
be done on merit. Pai later rejected the rigidity attached to this
fixed percentage. Along these lines, Pai returned to a more
flexible standard, one akin to "sprinkling" in Kerala Education
Bill: the moment a minority institution takes aid, it has to admit
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
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.
" It would be open to the state authorities to insist
on allocating a certain percentage of seats to those
belonging to weaker sections of society, from amongst
the non-minority seats." [Pai at para 152].


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


263. In addition to the general power to impose conditions that
seek to maintain high standards or "excellence in education," the
State could implement the same under a related but different
rationale. That is, said regulations could be upheld in the name
of national interest. [Pai at para 107]. Yet the Government could
not destroy the minority character of an institution. [para 107].
Nor could it obliterate the establishment or administration of a
minority institution. [para 107]. A balance was to be struck
between (a) maintaining academic quality and (b) preserving the
minority right to establish/administer educational institutions.
Regulations that 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 question played out in detail in a debate
between 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-minority. He has a
point. Minorities can establish and administer institutions for
their communities per Article 30; non-minorities cannot. His
Lordship observed: (para 9 page 723)
" We do not read these paragraphs to mean that non-
minority educational institutions would have the same
rights as those conferred on minority educational
institutions by Article 30 of the Constitution of India.
Non-minority educational institutions do not have the
protection of Article 30. Thus, in certain matters they
cannot and do not stand on a similar footing as
minority educational institutions. 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 173, Pai 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 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
institutions are permitted to do. [Pai at para 138].

266. In contrast to the majority in Islamic, Justice Sinha
concludes that Article 30(1) raises minorities to an equal
platform and no higher. Relevant portion is reproduced
hereinbelow:
"The statement of law contained in paras 138
and 139 is absolutely clear and unambiguous and no
exception can be taken thereto. The doubt, if any, that
the minorities have a higher right in terms of Article
30(1) of the Constitution of India may be dispelled in
clearest terms inasmuch as the right of the minorities
and non-minorities is equal. Only certain additional
protection has been conferred under Article 30(1) of
the 'Constitution of India to bring the minorities on
the same platform as that of non-minorities as regards
the right to establish and administer an educational
institution for the purpose of imparting education to
members of their own community whether based on
religion or language. [see: Islamic Academy at para
105]."

267. Justice Sinha considers it constitutionally immoral to
discriminate against non-minorities in the guise of protecting the
constitutional rights of minorities. [See: Islamic Academy 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
Framers conferred Article 30(1) on minorities in order to instill in
them a sense of confidence and security. [Pai at page 615 at
para 229]. Their right to establish and administer educational
institutions could not be usurped by mere legislation. Khare, J.
stated at para 229 p.615:-
"Thus, while maintaining the rule of non-
discrimination envisaged by Article 29(2), the
minorities should have also right to give preference to
the students of their own community in the matter of
admission in their own institution. Otherwise, there
would be no meaningful purpose of Article 30(1) in the
Constitution. True, the receipt of State aid makes it
obligatory on the minority educational 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 any extent will be to denude the essence
of Article 30 of the Constitution. It is, therefore,
necessary that the minority be given preferential rights
to admit students of their own community in their own
institutions in a reasonable measure otherwise there
would be no meaningful purpose of Article 30 in the
Constitution."


269. Minorities possess one right or privilege that non-minorities
do not: establishing and administering institutions for their
community. The right to admit your own students in aided
minority institutions was subject to admitting a reasonable
number of outsiders. In the instant case, aided minority
institutions stand to benefit from the Reservation Act: instead of
having to admit a reasonable number of outsiders they would be
exempted from reservation. However, their non-minority
counterparts would not. Does this elevate their status? While it
does to a certain extent, however, we must also keep our
constitutional goal and philosophy in mind. Given the ultimate
goal of furthering a classless/casteless society, there is no need
to go out on a limb and rewrite them into the Amendment. Such
a ruling would subject even more institutions to caste-based
reservation. 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
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 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.
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 been in had not thoughts and ideas spread to all
corners of the globe. Throughout history,
philosophers, reformers, thinkers, and scholars 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 global
thought. The Rig Veda says:

Ano bhadrah Krtavo yantu Viswatah

Let noble thought come to us from every side."

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.

9) Is the impugned legislation invalid as it fails to
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 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 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 under 15(5)?


273. Once a candidate graduates from a university, he must be
considered educationally forward. Senior 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 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 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 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 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.
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?
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
that quality is not completely compromised. Cut offs or
admission thresholds as suggested by the Oversight Committee
are reproduced:

"4.4.2 The Committee recognizes that those
institutions of higher learning which have established
a global reputation (e.g. IITs, IIMs, IISc, AIIMS and
other such exceptional quality institutions), can only
maintain that if the highest quality in both faculty and
students is ensured. Therefore, the committee
recommends that the threshold for admission should
be determined by the respective institutions alone, as
is done today, so that the level of its excellence is not
compromised at all.


4.4.3 As regards 'cut-offs' in institutions
other than those mentioned in para 7, these may be
placed somewhere midway between those for SC/ST
and the unreserved category, carefully, calibrated so
that the principles of both equity and excellence can
be maintained.


4.4.4 The Committee strongly feels that the
students who currently tend to get excluded must be
given every single opportunity to raise their own levels
of attainment, so that they can reach their true
potential. The Government should invest heavily in
creating powerful, well designed and executed
remedial preparatory measures to achieve this
objective fully."



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
excessive, Balaji at pages 470-471 (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 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, Balaji slashed the
impugned reservation from 68 to less than 50%.

277. Balaji thus 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 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 nor 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
category students.





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
invalid if the creamy layer is not excluded.
See paras 22, 25, 27, 30, 34, 35, 43, 44.

1B. What are the parameters for creamy layer
exclusion?

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

I further urge the Government to exclude the children of
former and present Members of the Parliament and Members of
Legislative Assemblies and the said O.M. be amended
accordingly.

See paras 55-57.


1C. Is creamy layer exclusion applicable to SC/ST?


In Indra Sawhney-I, creamy layer exclusion was only in
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 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.

2. Can the Fundamental Right under Article 21A be
accomplished without great emphasis on
primary education?


No, it cannot.

An inversion in priorities between higher and
primary/secondary education would make compliance with
Article 21A extremely difficult. It is not suggested that higher
education needs no encouragement or that higher education
should not 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
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
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 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;

(c) penalizes employers who preclude children
from attending schools;

(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 toto.

(e) until we have accomplished for children from
six to fourteen years the object of free and
compulsory education, the Government should
continue to 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 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 the most important of all
the fundamental rights. For without education,
it becomes extremely difficult to exercise other
fundamental rights.


See paras 126-131.

3. Does the 93rd Amendment violate the Basic
Structure of the Constitution by imposing
reservation on unaided institutions?

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

See paras 132-182.


4. Whether the use of caste to identify SEBCs runs
afoul of the casteless/classless society, in
violation of Secularism.


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

See paras 194, 195, 231, 248, 251.
5. Are Articles 15(4) and 15(5) mutually
contradictory, such that 15(5) is
unconstitutional?

I am able to read them harmoniously.
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?

Given the inherent tension between Articles 29(2) and 30(1),
I find that the overriding constitutional goal of realizing a
casteless/classless society should serve as a tie-breaker. We
will take a step in the wrong direction if minority institutions
(even those that are aided) are subject to reservation.
See paras 268-269.
7) Are the standards of review laid down by the U.S.
Supreme Court applicable to our review of
affirmative action under Art 15(5) and similar
provisions?

The principles enunciated by the American Supreme Court,
such as, "Suspect Legislation" "Narrow Tailoring" "Strict
Scrutiny" and "Compelling State necessity" are not strictly
applicable for challenging the impugned legislation.

Cases decided by other countries are not binding but do
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
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
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
set a time-limit for caste-based reservation?

It is not invalid because it fails to set a time-limit.
See para 272.



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 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
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
OBCs should be set not more than 10 marks out of 100 below
that of the general category.
See paras 274-278.

These Writ Petitions and Contempt Petition are accordingly
disposed of. In the facts and circumstances, the parties are to
bear their own costs. Concluded

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