Supreme Court judgement on OBC quota in education institutions

CASE NO.:
Writ Petition (civil) 265 of 2006

PETITIONER:
Ashoka Kumar Thakur

RESPONDENT:
Union of India & Others

DATE OF JUDGMENT: 10/04/2008

BENCH:
Dalveer Bhandari

JUDGMENT:
J U D G M E N T

WRIT PETITION (CIVIL) NO.265 OF 2006 WITH
Writ Petition (Civil) Nos.269 AND 598 of 2006, Writ
Petition (Civil) Nos.29, 35, 53, 336, 313, 335, 231,
425, 428 of 2007 AND Contempt Petition (C) No.112 of
2007 in Writ Petition (C) No.265 of 2006.
* * * * *

Dalveer Bhandari, J.

1. The 93rd Amendment to the Constitution directly or indirectly affects millions of citizens of this country. It has been challenged in a number of writ petitions. This Court heard these petitions intermittently over the course of several months. Appearing on behalf of petitioners and respondents, the country's finest legal minds assisted us.

2. The fundamental question that arises in these writ petitions is: Whether Article 15 (5), inserted by the 93rd Amendment, is consistent with the other provisions of the Constitution or whether its impact runs contrary to the Constitutional aim of  achieving a casteless and classless society?

3. On behalf of the petitioners, Senior Advocate Mr. F.S. Nariman, eloquently argued that if Article 15 (5) is permitted to remain in force, then, instead of achieving the goal of a casteless and classless society, India would be converted into a caste-ridden society. The country would forever remain divided on
caste lines. The Government has sought to repudiate this argument. Petitioners' argument, however, echoes the grave concern of our Constitution's original Framers.

4. On careful analysis of the Constituent Assembly and the Parliamentary Debates, one thing is crystal clear: our leaders have always and unanimously proclaimed with one voice that our constitutional goal is to establish a casteless and classless society. Mahatma Gandhi said: "The caste system as we know is
an anachronism. It must go if both Hinduism and India are to live and grow from day to day." The first Prime Minister, Pt. Jawahar Lal Nehru, said that "no one should be left in any doubt that the future Indian Society was to be casteless and classless". Dr. B. R. Ambedkar called caste "anti-national".

5. After almost four decades of independence, while participating in the Parliamentary Debate on the Mandal issue, then Prime Minister Shri Rajiv Gandhi on 6th September, 1990 again reiterated the same sentiments: "I think, nobody in this House will say that the removal of casteism is not part of the
national goal, therefore, it would be in the larger interest of the nation to get rid of the castes as early as possible". It is our bounden duty and obligation to examine the validity of the 93rd Amendment in the background of the Preamble and the ultimate goal that runs through the pages of the Constitution.

6. To attain an egalitarian society, we have to urgently remove socio-economic inequalities. All learned counsel for the petitioners asserted that we must deliver the benefits of reservation to only those who really deserve it. This can only be done if we remove the creamy layer. Learned counsel for the Union of India and other respondents opposed this assertion. The principle of creamy layer emanates from the broad doctrine of equality itself. Unless the creamy layer is removed from admissions and service reservation, the benefits would not reach the group in whose name the impugned legislation was passed
the poorest of the poor. Therefore, including the creamy layer would be inherently unjust.

7. Creamy layer exclusion, however, is just one of the many issues raised by the parties. I need to examine various facets of this case in order to decide the validity of the 93rd Amendment and the Central Educational Institutions (Reservation in Admission) Bill, 2006 (passed as Act 5 of 2007) (hereinafter called the "Reservation Act"). I shall focus my analysis on the following issues:

1A. Whether the creamy layer be excluded from the 93rd Amendment (Reservation Act)?

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

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

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

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

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

5. Are Articles 15 (4) and 15 (5) mutually contradictory, such that 15 (5) is unconstitutional?

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

7. Are the standards of review laid down by the U.S. Supreme Court applicable to our review of affirmative action under Art 15 (5) and similar provisions?

8. With respect to OBC identification, was the Reservation Act's delegation of power to the Union Government excessive?

9. Is the impugned legislation invalid as it fails to set a time-limit for caste-based reservation?

10. At what point is a student no longer Educationally Backward and thus no longer eligible for special provisions under 15 (5) ?

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

8. I have carefully examined the pleadings and written submissions submitted at length. Admittedly, the provisions of the Constitution and the Preamble lead to the irresistible conclusion that the Nation has always wanted to achieve a casteless and classless society. If we permit this impugned legislation to be implemented, I am afraid, instead of a casteless and classless India, we would be left with a caste-ridden society.

9. The first place where caste can be eradicated is the
classroom. It all starts with education. In other words, if you
belong to a lower caste but are well qualified, hardly anyone
would care about your caste. Free and compulsory education is
now a fundamental right under Article 21A. The State is duty
bound to implement this Article on a priority basis. There has
been grave laxity in its implementation. This laxity adversely
affects almost every walk of life. In my opinion, nothing is more
important for the Union of India than to implement this critical
Article.

10. I direct the Union of India to set a time-limit within which
this Article is going to be completely implemented. This time-
limit must be set within six months. In case the Union of India
fails to fix the time-limit, then perhaps this work will also have to
be done by the Court.

11. The Union of India should appreciate in proper prospective
that the root cause of social and educational backwardness is
poverty. All efforts have to be made to eradicate this
fundamental problem. Unless the creamy layer is removed, the
benefit would not reach those who are in need. Reservation
sends the wrong message. Everybody is keen to get the benefit of
backward class status. If we want to really help the socially,
educationally and economically backward classes, we need to
earnestly focus on implementing Article 21A. We must provide
educational opportunity from day one. Only then will the
casteless/classless society be within our grasp. Once children
are of college-going age, it is too late for reservation to have much
of an effect. The problem with the Reservation Act is that most
of the beneficiaries will belong to the creamy layer, a group for
which no benefits are necessary. Only non-creamy layer OBCs
can avail of reservations in college admissions, and once they
graduate from college they should no longer be eligible for post-
graduate reservation. 27% is the upper limit for OBC
reservation. The Government need not always provide the
maximum limit. Reasonable cut off marks should be set so that
standards of excellence greatly effect. The unfilled seats should
revert to the general category.

12. These issues first arise out of the text of the impugned
Amendment. Reservation for Socially and Educationally
Backward Classes of Citizens (SEBCs) was introduced by the 93rd
Amendment. Article 15(5) states:
"Nothing in this article or in sub-clause (g) of clause
(1) of article 19 shall prevent the State from making
any special provision, by law, for the advancement of
any socially and educationally backward classes of
citizens or for the Scheduled Castes or the Scheduled
Tribes in so far as such special provisions relate to
their admission to educational institutions including
private educational institutions, whether aided or
unaided by the State, other than minority educational
institutions referred to in clause (1) of article 30."


? Excluding the Creamy Layer from receiving
special benefits:

13. Affirmative action is employed to eliminate substantive
social and economic inequality by providing opportunities to
those who may not otherwise gain admission or employment.
Articles 14, 15 and 16 allow for affirmative action. To promote
Article 14 egalitarian equality, the State may classify citizens into
groups, giving preferential treatment to one over another. When
it classifies, the State must keep those who are unequal out of
the same batch to achieve constitutional goal of egalitarian
society.

? Arguments of the Union of India in regard to the
creamy layer:

14. Mr. G.E. Vahanvati, learned Solicitor General and Mr K.
Parasaran, Senior Advocate appearing for the Government
contend that creamy layer exclusion is a bad policy. They argue
that if you exclude the creamy layer, there would be a shortage of
candidates who can afford to pay for higher education. This
argument harms rather than helps the Government. It cannot
be seriously disputed that most of the college-going OBCs belong
to the creamy layer for whom reservations are unnecessary; they
have the money to attend good schools, tuitions and coaching
courses for entrance exams. Naturally, these advantages result
in higher test scores vis-`-vis the non-creamy layer OBCs. The
result is that creamy OBCs would fill the bulk of the OBC quota,
leaving the non-creamy no better off than before. If the creamy
get most of the benefit, why have reservations in the first place?
Learned Senior Counsel for petitioners, Mr. Harish Salve, is
justified in arguing that before carrying out Constitutional
Amendments the Union of India must clearly target its
beneficiaries. He rightly submitted that we should not make law
first and thereafter target the law's beneficiaries. Failure to
exclude the creamy layer is but one example of this problem.

15. The Government further submitted that the creamy layer
should be included to ensure that enough qualified candidates
fill 27% of the seats reserved to OBCs. The Oversight Committee
disagreed. The Committee relied on data from Karnataka to
disprove the contention that seats go unfilled when the creamy is
excluded: " the apprehension that seats will not be filled up if
the creamy layer is excluded has been comprehensively shown to
be unfounded." [See: Oversight Committee, Vol. 1, Sept. 2006, p.
69, para 1.7.] We shall later review the Oversight Committee
opinion in greater detail.

? The reasons for which the creamy layer should
be excluded:

16. At the outset, I note that the Parliament rejected the Hindi
version of the Reservation Act. The Hindi version of the
Reservation Act would have expressly excluded the creamy layer.
[See: Prof. Rasa Singh Rawat's comments in the Parliamentary
Debate on the Reservation Act, 14 December 2006]

17. The Parliament eventually passed the English version in
which the creamy layer is not mentioned, making its intention
clear. It wanted to include the creamy layer. For all practical
purposes, it did so. Therefore, I will treat it as included.
Counsel for the Union of India argued that it is still theoretically
possible for the executive to exclude the creamy layer. Much is
possible in theory. Given the executive's failure to take action
since the time the Act was passed, I find this argument
unavailing.

18. With the Parliament's intention in view, I will deal in some
detail with the reasons as to why the creamy layer should be
excluded from reservation. I do so because I want to emphasize
that the creamy layer must never be included in any affirmative
action legislation. It also becomes imperative to gather the
original Framers' and the Framers' intention. At the outset, we
recognise a distinction between the original Framers and the
Framers, i.e., Members of the First Parliament. Members of the
Constituent Assembly and the First Parliament were one in the
same. But the distinction is necessary to the extent that the
First Parliament deviated from its constitutional philosophy. By
examining the debate on Article 15(4), I may ascertain whether
the Framers wanted to exclude the creamy layer.

19. The First Parliament believed that "economic" was included
in the "social" portion of "socially and educationally backward."
Prime Minister Nehru said as much:
"One of the main amendments or ideas put forward is
in regard to the addition of the word "economical".
Frankly, the argument put forward, with slight
variation, I would accept, but my difficult is this that
when we chose those particular words there, "for the
advancement of any socially and educationally
backward classes", we chose them because they occur
in article 340 and we wanted to bring them bodily
from there. Otherwise I would have had not the
slightest objection to add "economically". But if I
added "economically" I would at the same time not
make it a kind of cumulative thing but would say that
a person who is lacking in any of these things should
be helped. "Socially" is a much wider word including
many things and certainly including economically.
Therefore, I felt that "socially and educationally" really
cover the ground and at the same time you bring out a
phrase used in another part of the Constitution in a
slightly similar context." (See: the Parliamentary
Debates on First Amendment Bill, 1 June 1951, p.
9830.)

Had it not been for a desire to achieve symmetry in drafting,
"economically" would have been included. Had this been done,
the creamy layer would have been excluded ab initio.

20. In the 15(4) debate, Shri M.A. Ayyangar's wanted to add
"economic" to ensure that the rich SEBCs would not receive
special provisions.
"I thought "economic" might be added so that rich
men may not take advantage of this provision. In my
part of the country there are the Nattukkottai
Chettiars who do not care to have English education,
but they are the richest of the lot should there be
special reservation for them?" (See: The Parliamentary
Debates on First Amendment Bill, 1 June 1951, p.
9817.)
(emphasis added).


This hesitation aside, Shri M.A. Ayyangar was satisfied that the
term "economic" was included in the term "social." The Framers
were worried about creamy layer inclusion, albeit under a
different name. They wanted to ensure that the "richest of the
[backward] lot" would not benefit from special provisions. With
their sentiment on our side, we are even more confident that we
should strike out in the direction that strikes down laws that
include the creamy layer.

? Including the creamy layer means unequals are
treated as equals in violation of the right to
equality under Articles 14, 15 and 16.

21. In the present case, Dr. Rajeev Dhavan, the learned Senior
Counsel and Mr. S.K. Jain, the learned counsel vehemently
argued on behalf of petitioners that it is precisely because
equality is at issue that the creamy layer must be removed. The
creamy layer has been the subject matter of a number of
celebrated judgments of this Court. In a seven Judge Bench in
State of Kerala & Another v. N. M. Thomas & Others (1976)
2 SCC 310, Justice Mathew, in his concurring judgment, dealt
with the right to equality in the following words:
"66. The guarantee of equality before the law or the
equal opportunity in matters of employment is a
guarantee of something more than what is required by
formal equality. It implies differential treatment of
persons who are unequal. Egalitarian principle has
therefore enhanced the growing belief that
Government has an affirmative duty to eliminate
inequalities and to provide opportunities for the
exercise of human rights and claims. "
(emphasis added)


22. In Indra Sawhney & Others v. Union of India & Others
(1992) Supp (3) SCC 217, (hereinafter referred to as Sawhney I),
this Court has aptly observed that reservation is given to
backward classes until they cease to be backward, and not
indefinitely. This Court in para 520 (Sawant, J.) has stated as
under:
"Society does not remain static. The
industrialisation and the urbanisation which
necessarily followed in its wake, the advance on
political, social and economic fronts made particularly
after the commencement of the Constitution, the
social reform movements of the last several decades,
the spread of education and the advantages of the
special provisions including reservations secured so
far, have all undoubtedly seen at least some
individuals and families in the backward classes,
however small in number, gaining sufficient means to
develop their capacities to compete with others in
every field. That is an undeniable fact. Legally,
therefore, they are not entitled to be any longer called
as part of the backward classes whatever their original
birthmark. It can further hardly be argued that once a
backward class, always a backward class. That would
defeat the very purpose of the special provisions made
in the Constitution for the advancement of the
backward classes, and for enabling them to come to
the level of and to compete with the forward classes,
as equal citizens."
(emphasis supplied).

23. For our purposes, creamy layer OBCs and non-creamy layer
OBCs are not equals when it comes to moving up the socio-
economic ladder by means of educational opportunity. Failing to
remove the creamy layer treats creamy layer OBCs and non-
creamy layer OBCs as equals. In the same paragraph, Justice
Sawant stated that " to rank [the creamy layer] with the rest of
the backward classes would amount to treating the unequals
equally..." violating the equality provisions of the Constitution.

24. According to the Kerala Legislature, there was no creamy
layer in Kerala. The legislation was challenged in Indra
Sawhney v. Union of India & Others (2000) 1 SCC 168,
(hereinafter referred to as Sawhney II). The Court struck the
two provisions that barred creamy layer exclusion, concluding
that non-inclusion of the creamy-layer and inclusion of forward
castes in reservation violates the right to equality under Article
14 and the basic structure.

25. In Sawhney II at para 65, the Court had gone to the extent
of observing that not even the Parliament, by constitutional
amendment, could dismantle the basic structure by including the
creamy layer in reservation:
"What we mean to say is that the Parliament and the
legislature in this country cannot transgress the basic
feature of the Constitution, namely, the principle of
equality enshrined in Article 14 of which Article 16(1)
is a facet. Whether the creamy layer is not excluded or
whether forward castes get included in the list of
backward classes, the position will be the same,
namely, that there will be a breach not only of Article
14 but of the basic structure of the Constitution. The
non-exclusion of the creamy layer or the inclusion of
forward castes in the list of backward classes will,
therefore, be totally illegal. Such an illegality offending
the root of the Constitution of India cannot be allowed
to be perpetuated even by constitutional amendment."




26. By definition, the creamy and non-creamy are unequal
when it comes to schooling. Relative to their non-creamy
counterparts, the creamy have a distinct advantage in gaining
admission. While the creamy and non-creamy are given equal
opportunity to gain admission in the reserved category, this
equality exists in name only. Will the OBC daughter of a
Minister, IAS officer or affluent business owner attend better
schools than her non-creamy counterpart? Yes. Will she go to
private tuitions unaffordable to her non-creamy counterpart?
Certainly. And where will she cram for the all-decisive entrance
exams? In a coaching center? Of course. Will she come home
from school to find a family member waiting? Probably. And
when she seeks help from her parents, are they educated and
able to give superior assistance with schoolwork? Most likely.

27. I take judicial notice of these anecdotes, for they flesh out a
simple fact: she has all the resources that her non-creamy
counterpart lacks. It is no surprise that she will outperform the
non-creamy. On average, her lot will take the reserved seats.

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

29. In its conclusion at para 122, M. Nagaraj & Others v.
Union of India & Others (2006) 8 SCC 212, a Constitution
Bench of this Court while dealing with Article 16(4A) and 16(4B)
with regard to SC and ST observed as under:-
"We reiterate that the ceiling limit of 50%, the concept
of creamy layer and the compelling reasons, namely,
backwardness, inadequacy of representation and
overall administrative efficiency are all constitutional
requirements without which the structure of equality
of opportunity in Article 16 would collapse."


It was contended that Nagraj is obiter in regard to creamy layer
exclusion. According to Nagraj, reservation in promotion for
SC/ST is contingent on exclusion of the creamy layer. (paras
122, 123 and 124). The contention of the Union of India cannot
be accepted. The discussion regarding creamy layer is far from
obiter in Nagraj. If the State fails to exclude the SC/ST creamy
layer, the reservation must fall. Placing this contingency in the
conclusion makes the discussion of creamy layer part of the
ratio.

30. In sum, creamy layer inclusion violates the right to equality.
That is, non-exclusion of creamy layer and inclusion of forward
castes in reservation violates the right to equality in Articles 14,
15 and 16 as well as the basic structure of the Constitution.

? If you belong to the creamy layer, you are not
SEBC.

31. One of the prominent questions raised in the writ petitions
is whether creamy layer OBCs should be considered socially and
educationally backward under the provisions of Article 15(5).
While interpreting this provision, a basic syllogism must govern
our decision. If you belong to the creamy layer, you are socially
advanced and cannot be given the benefit of reservation. (See:
Sawhney I).

32. Once one is socially advanced, he cannot be socially and
educationally backward. He who is socially forward is likely to
be educationally forward as well. If either condition (social or
educational) goes unmet, one cannot qualify for the benefit of
reservation as SEBC. Being socially advanced, the creamy layer
is not socially backward pursuant to Articles 15(4) and 15(5) of
the Constitution.

33. Even the text of Articles 15(4) and 15(5) provides for creamy
layer exclusion. In this sense, one could say that the term
"creamy layer" is synonymous with "non-SEBC".

34. Similar interpretation is given to "backward classes" under
Article 16(4). The Parliament could not reasonably make
reservation for non-backwards. Such a Bill on the face of it
would violate the Constitution. In Sawhney I, the Government of
India issued an O.M. on 13 August 1990, reserving 27% of
Government posts to SEBCs. Writing for the majority, at para
792 of page 724, Justice Reddy explained that the creamy layer
was not SEBC.
"The very concept of a class denotes a number of
persons having certain common traits which
distinguish them from the others. In a backward class
under Clause (4) of Article 16, if the connecting link is
the social backwardness, it should broadly be the
same in a given class. If some of the members are far
too advanced socially (which in the context,
necessarily means economically and, may also mean
educationally) the connecting thread between them
and the remaining class snaps. They would be misfits
in the class. After excluding them alone, would the
class be a compact class. In fact, such exclusion
benefits the truly backward"

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

? Creamy Layer OBCs are not educationally
backward

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

7 Creamy Layer Inclusion Robs the Poor and Gives
to the Rich:

36. In a number of judgments, the view has been taken that the
creamy layer's inclusion takes from the poor and gives to the
rich.

37. Our Courts in following cases had taken the same view.
[See: N.M Thomas (supra), para 124 (seven-Judge Bench); K.C.
Vasanth Kumar & Another v. State of Karnataka, 1985
(Supp) SCC 714, paras 2, 24 and 28 (five-Judge Bench);
Sawhney I., paras 520, 793 and 859(3)(d) (nine-Judge Bench);
Ashoka Kumar Thakur v. State of Bihar & Others (1995) 5
SCC 403, paras 3, 17 and 18 (two-Judge Bench); Sawhney II,
paras 8-10, 27, 48 and 65-66 (three-Judge Bench); Nagaraj
(supra), paras, 120-124 (five-Judge Bench); Nair Service
Society v. State of Kerala, (2007) 4 SCC 1; paras 31 and 49-54
(two-Judge Bench)].

38. In Akhil Bharatiya Soshit Karamchari Sangh (Railway)
v. Union of India & Others (1981) 1 SCC 246, Justice Iyer had
this to say about the creamy layer:
"92. Maybe, some of the forward lines of the
backward classes have the best of both the worlds and
their electoral muscle qua caste scares away even
radical parties from talking secularism to them. We
are not concerned with that dubious brand. In the
long run, the recipe for backwardness is not creating a
vested interest in backward castes but liquidation of
handicaps, social and economic, by constructive
projects. All this is in another street and we need not
walk that way now.


94. Nor does the specious plea that because a few
harijans are better off, therefore, the bulk at the
bottom deserves no jack-up provisions merit scrutiny.
A swallow does not make a summer. Maybe, the State
may, when social conditions warrant, justifiably
restrict harijan benefits to the harijans among the
harijans and forbid the higher harijans from robbing
the lowlier brethren."


39. Creamy layer inclusion was not enough to strike an entire
provision in this case. He suggests that creamy layer exclusion is
an issue to be dealt with at a later time.
"98. The argument that there are rich and influential
harijans who rob all the privileges leaving the serf-level
sufferers as suppressed as ever. The Administration
may well innovate and classify to weed out the creamy
layer of SCs/STs but the court cannot force the State
in that behalf."

Thus, Justice Iyer does not mandate creamy layer exclusion;
rather, he leaves the question to the State.

40. Apart from judicial pronouncements, the Oversight
Committee suggested that failure to exclude the creamy layer
would lead to unfair results. The Committee was cautious to
reach a conclusion.

41. In its Report, it stated that " the decision taken was to
leave the matter to the Government of India, keeping in mind the
fact that the 'creamy layer' is not covered in the Reservation Act,
2006." (See: Oversight Committee, Vol. 1, p. 33 and 4.2.)

42. Before "leaving" the matter to the Government, the
Committee nevertheless made its recommendation: "In case it is
decided not to exclude the 'creamy layer', the poorest among the
OBCs will be placed at a disadvantage." (emphasis added). (See:
Oversight Committee at Appendix I in its Report at p. 70, para
1.13). At page 69 of Vol. I of its Report, the Committee offered
data to support this conclusion:
"1.6: Appendix-2 examines in detail the status of the
socio-economic development of OBCs in respect of
such parameters as relate to poverty, health,
education, unemployment, workforce participation,
land ownership etc. The analysis of the NSS data
clearly brings out that inclusion of the creamy layer
will result in reserved seats getting pre-empted by the
OBCs from the top two deciles at the cost of the poorer
income deciles of the OBCs. Thus almost all rural
OBCs as well as Urban OBCs from the Northern,
Central and Eastern regions of India will be deprived
of the intended benefits of reservation.
[emphasis added]

1.7: On the other hand, it was argued that if the
creamy layer of OBCs is denied access to reservation
in education pari-passau with the principle applied in
the case of employment, the reserved seats may not
get filled up, again defeating the purpose of bringing in
reservation for the OBCs. In a case study from
Karnataka (included in Annexure X), it has been
clearly shown that the OBC quotas have been utilized
without any compromise with academic excellence in a
situation where the creamy layer has been excluded.
The apprehension that seats will not be filled up if the
creamy layer is excluded has been comprehensively
shown to be unfounded. The case study shows that
the performance of students from below the creamy
layer is outstanding and much better than general
category students."


43. The Committee could have played it safe. Despite some
opposition, the Committee included its opinion on the matter.
And that opinion is unequivocal: the creamy must be excluded.

44. What is allegedly for the poor goes to the rich. Is that
reasonable? Trumpeted by the Parliament as a " boost to the
morale of the downtrodden" and " in the right direction of
ensuring social justice to other backward classes " and
"ensuring social justice to those weaker sections ", Article 15(5)
dupes those who actually need preferential treatment. (See: Prof.
Basudeb Barman, M.P., the Parliamentary Debates, p. 531,
December 21, 2005; Prof. M. Ramadass, M.P., at p. 510; and
Shri C.K. Chandrappan, M.P., at p. 494 respectively). For the
poorest of the poor, reservation in college is an empty promise.
Few of the financially poor OBCs attend high school, let alone
college. Instead of rewarding those that complete Plus 2, the 93rd
Amendment (Art 15(5)) poses another barrier: they will have to
compete with the creamy layer for reserved seats.

45. As explained, the poor lack the resources to compete with
the creamy, who "snatch away" those seats. {N. M. Thomas
(supra), para 124 (Iyer, J.)}. With the creamy excluded, poor
OBCs would compete with poor OBCs the playing field levelled.
As it stands, the Amendment and Act serve one purpose: they
provide a windfall of seats to the rich and powerful amongst the
OBCs. It is unreasonable to classify rich and poor OBCs as a
single entity. As noted, this violates the Article 14 right to
equality.

46. Unless the creamy layer is removed, OBCs cannot exercise
their group rights. The Union of India and other respondents
argued that creamy layer exclusion is wrong because the text of
the 93rd Amendment bestows a benefit on "classes", not
individuals. While it is a group right, the group must contain
only those individuals that belong to the group. I first take the
entire lot of creamy and non creamy layer OBCs. I then remove
the creamy layer on an individual basis based on their income,
property holdings, occupation, etc. What is left is a group that
meets constitutional muster. It is a group right that must also
belong to individuals, if the right is to have any meaning. If one
OBC candidate is denied special provisions that he should have
received by law, it is not the group's responsibility to bring a
claim. He would be the one to do so. He has a right of action to
challenge the ruling that excluded him from the special
provisions afforded to OBCs. In this sense, he has an individual
right. Group and individual rights need not be mutually
exclusive. In this case, it is not one or the other but both that
apply to the impugned legislation.

7 Whether the Creamy Layer exists outside India?:

47. An interesting question arises: does the concept of creamy
layer exist outside India? A 2003 study carried out in the
United States suggests that it does. The study by William
Bowen, former president of Princeton University, found that
when you look at students with the same Scholastic Aptitude
Test (SAT) scores, certain groups have a better chance of being
admitted to college. "The New Affirmative Action," by David
Leonhardt, New York Times, 30 September 2007, p. 3. All things
being equal, one's chance of gaining admission is augmented by
belonging to one of the preferred groups. Individuals belonging to
these groups are given preferential treatment over those who do
not.

48. The study demonstrated that Black, Latino and Native-
Americans with the same SAT scores as White or Asian students
had a 28% better chance than the White or Asian students at
gaining admission; those whose parents attended the college had
a 20% advantage over those whose parents did not; and the poor
received no advantage whatsoever over the rich. (See: New York
Times article, p. 3.)

49. The statistics indicate that the failure to exclude the creamy
layer ultimately leads to a situation in which deserving students
are excluded. When we revert to the Indian scenario, as long as
the Government gives handouts to certain groups, the creamy
layer therein will "lap" them up. A scheme in which the poor
receive no advantage can be remedied by excluding the creamy
layer.
50. Even the Mandal Commission, which was established in
1979 with a mandate to identify the socially and educationally
backward, admitted that the creamy layer was robbing fellow
OBCs of reservation. In reference to Tamil Nadu, it said: "In
actual operation, the benefits of reservation have gone primarily
to the relatively more advanced castes amongst the notified
backward classes." (See: P.37, 8.13 of the Report of the
Backward Classes Commission, First Part, Vols. 1-2, 1980). It
also stated that: "it is no doubt true that the major benefits of
reservation ..will be cornered by the more advanced
sections .." but reasoned that this was acceptable because
reform is presumably slow and should start with the more
advanced of the backward. (See: Page 62, para 13.7
(recommendations)).

51. In N. M. Thomas & Others case (supra), Krishna Iyer, J.
in his concurring judgment in para 124 noted that the research
conducted by the A.N. Sinha Institute of Social Studies, Patna,
had revealed a dual society among harijans in which a tiny elite
gobbles up the benefits.

7 Severing the Creamy Layer
52. Technically speaking, I am severing the implied inclusion of
the creamy layer. It is severable for two reasons. First, a nine-
Judge Bench in Sawhney I severed a similar provision wherein
the creamy layer was not expressly included, upholding the rest
of the O.M.'s reservation scheme. Second, because the
Parliament must have known that Sawhney I had excluded the
creamy layer, it seems likely that the Parliament also realized
that this Court may do the same. A cursory review of the
Parliamentary Debates regarding Article 15(5) clearly reveals that
the Parliament discussed the Sawhney I judgment in detail.
(See: for example, comments made by Shri Mohan Singh, p.474
and Shri Devendra Prasad, pages 478-479 on 21 December
2005). Had the Parliament insisted on creamy layer inclusion, it
could have said as much in the text of 15(5). Instead, the
Parliament left the text of 15(5) silent on the issue, delegating the
issue of OBC identification to the executive in Section 2(g) of the
Reservation Act.

53. The test for severability asks a subjective question: had the
Parliament known its provision would be struck would it still
have passed the rest of the legislation? (See: R.M.D.
Chamarbaugwalla & Another v. Union of India & Another,
AIR 1957 SC 628 at page 637 at para 23). It is never easy to say
what the Parliament would have done had it known that part of
its amendment would be severed. Nevertheless, I find it hard to
imagine that the Parliament would have said, "if the creamy is
excluded, the rest of the OBCs should be denied reservation in
education." It seems unlikely that it would have been an all-or-
nothing proposition for the Parliament, when the very goal of the
impugned legislation of promoting OBC educational
advancement does not depend on creamy layer inclusion. For
these reasons, I sever or exclude the implied inclusion of the
creamy layer.




7 Identification of Creamy Layer
54. Income as the criterion for creamy layer exclusion is
insufficient and runs afoul of Sawhney I. (See: page 724 at para
792). Identification of the creamy layer has been and should be
left to the Government, subject to judicial direction. For a valid
method of creamy layer exclusion, the Government may use its
post-Sawhney I criteria as a template. (See: O.M. of 8-9-1993,
para 2(c)/Column 3, approved by this Court in Ashoka Kumar
Thakur (supra), para 10). This schedule is a comprehensive
attempt to exclude the creamy layer in which income,
Government posts, occupation and land holdings are taken into
account. The Office Memorandum is reproduced hereunder:
"No. 36012/22/93- Estt (SCT)
Government of India
Ministry of Personnel, Public Grievances & Pension
(Department of Personnel & Training)
New Delhi, the 8th September, 1993
OFFICE MEMORANDUM
Subject: Reservation for Other Backward Classes in Civil
Posts and Services under the Government of
India Regarding.
The undersigned is directed to refer to this Department's
O.M. No.36012/31/90-Estt(SCT) dated 13th August, 1990 and
25th September, 1991 regarding reservation for Socially and
Economically Backward Classes in Civil Posts and Services
under the Government of India and to say that following the
Supreme Court judgment in Indra Sawhney v. Union of India
& Others (Writ Petition (Civil) No.930 of 1990) the Government
of India appointed an Expert Committee to recommend the
criteria for exclusion of the socially advanced persons/sections
from the benefits of reservation for Other Backward Classes in
civil posts and services under Government of India.
2. Consequent to the consideration of the Expert Committee's
recommendation this Department's Office Memorandum
No.36012/31/90-Estt. (SCT), dated 13.8.1990 referred to in para
(1) above is hereby modified to provide as follows:-
(a) 27% (Twenty seven percent) of the vacancies in civil posts
and services under the Government of India, to be filled
through direct recruitment, shall be reserved for the Other
Backward Classes. Detailed instructions relating to the
procedure to be followed for enforcing reservation will be
issued separately.
(b) Candidates belonging to OBCs recruited on the basis of
merit in an open competition on the same standards
prescribed for the general candidates shall not be adjusted
against the reservation quota of 27%.
(c) (i) The aforesaid reservation shall not apply to
persons/sections mentioned in column 3 of the
Schedule to this Office Memorandum.
(ii) The rule of exclusion will not apply to persons working
as artisans or engaged in hereditary occupations,
callings. A list of such occupations, callings will be
issued separately by the Ministry of Welfare.
(d) The OBCs for the purpose of the aforesaid reservation
would comprise, in the first phase, the castes and communities
which are common to both the lists in the report of the Mandal
Commission and the State Government's Lists. A list of such
castes and communities is being issued separately by the
Ministry of Welfare.
(e) The aforesaid reservation shall take immediate effect.
However, this will not apply in vacancies where the recruitment
process has already been initiated prior to the issue of this order.
3. Similar instructions in respect of public sector
undertakings and financial institutions including public sector
banks will be issued by the Department of Public Enterprises
and by the Ministry of Finance respectively from the date of this
Office Memorandum.
SCHEDULE

Description of
Category
To whom rule of exclusion will
apply.

I.

CONSTITUTIONAL
POSTS

Son(s) and daughter(s) of

(a) President of India;

(b) Vice President of India;

(c) Judges of the Supreme Court
and of the High Courts;

(d) Chairman & Members of
UPSC and of the State Public
Service Commission; Chief
Election Commissioner;
Comptroller & Auditor General of
India;

(e) Persons holding
Constitutional positions of like
nature.


II.

SERVICE CATEGORY

A. Group A/Class 1
officers of the All India
Central and State
Services (Direct
Recruits)



Son(s) and daughter(s) of

(a) parents, both of whom are
Class I officers;

(b) parents, either of whom is a
Class I officer;

(c) parents, both of whom are
Class I officers, but one of them
dies or suffers permanent
incapacitation.

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

(e) parents, both of whom are
class I officers die or suffer
permanent incapacitation and
before such death or such
incapacitation of the both, either
of them has had the benefit of
employment in any International
Organisation like UN, IMF, World
Bank, etc. for a period of not less
than 5 years.

(f) Provided that the rule of
exclusion shall not apply in the
following cases :-

(a) Sons and daughters of
parents either of whom or
both of whom are Class-I
officers and such parent(s)
dies / die or suffer permanent
incapacitation.

(b) A lady belonging to OBC
category has got married to a
Class-I officer, and may
herself like to apply for a job.


Group B/Class II
officers of the Central &
State Services (Direct
Recruitment)
Son(s) and daughter(s) of

(a) parents both of whom are
Class II officers.

(b) parents of whom only the
husband is a Class II officer and
he gets into Class I at the age of
40 or earlier.

(c) parents, both of whom are
Class II officers and one of them
dies or suffers permanent
incapacitation and either one of
them has had the benefit of
employment in any International
Organisation like UN, IMF, World
Bank, etc. for a period of not less
than 5 years before such death or
permanent incapacitation;

(d) parents, of whom the husband
is a Class I officer (direct recruit
or pre-forty promoted) and the
wife is a Class II officer and the
wife dies; or suffers permanent
incapacitation; and

(e) parents, of whom the wife is a
Class I officer (Direct Recruit or
pre-forty promoted) and the
husband is a Class II officer and
the husband dies or suffers
permanent incapacitation.

Provided that the rule of
exclusion shall not apply in the
following cases:
Sons and daughters of

(a) Parents both of whom are
Class II officers and one of
them dies or suffers
permanent incapacitation.

(b) Parents, both of whom are
Class II officers and both of
them die or suffer permanent
incapacitation, even though
either of them has had the
benefit of employment in any
International Organisation
like UN, IMF, World Bank, etc.
for a period of not less than 5
years before their death or
permanent incapacitation.


C. Employees in Public
Sector Undertakings
etc.
The criteria enumerated in A & B
above in this Category will apply
mutatis mutandi to officers
holding equivalent or comparable
posts in PSUs, banks, Insurance
Organisations, Universities, etc.
and also to equivalent or
comparable posts and positions
under private employment,
Pending the evaluation of the
posts on equivalent or
comparable basis in these
institutions, the criteria specified
in Category VI below will apply to
the officers in these Institutions.


III.

ARMED FORCES
INCLUDING
PARAMILITARY
FORCES

(Persons holding civil
posts are not included)



Son(s) and daughter(s) of parents
either or both of whom is or are
in the rank of Colonel and above
in the Army and to equivalent
posts in the Navy and the Air
Force and the Para Military
Forces;

Provided that:-

(i) if the wife of an Armed
Forces Officer is herself in the
Armed Forces (i.e., the
category under consideration)
the rule of exclusion will apply
only when she herself has
reached the rank of Colonel;

(ii) the services ranks below
Colonel of husband and wife
shall not be clubbed together:

(iii) if the wife of an officer in
the Armed Forces is in civil
employment, this will not be
taken into account for
applying the rule of exclusion
unless the falls in the service
category under item No.II in
which case the criteria and
conditions enumerated
therein will apply to her
independently.


IV.
PROFESSIONAL CLASS
AND THOSE
ENGANGED IN TRADE
AND INDUSTRY

(I) Persons engaged in
profession as a doctor,
lawyer, Chartered
Accountant, Income-
Tax Consultant,
financial or
management
consultant, dental
surgeon, engineer,
architect, computer
specialist, film artists
and other film
professional, author,
playwright, sports
person, sports
professional, media
professional or any
other vocations of like
status. Criteria
specified against
Category VI will apply:

(II) Persons engaged in
trade, business and
industry






Criteria specified against
Category VI will apply:




















Criteria specified against
Category VI will apply:

Explanation:

(i) Where the husband is in
some profession and the wife
is in a Class II or lower grade
employment, the income /
wealth test will apply only on
the basis of the husband's
income.

(ii) If the wife is in any
profession and the husband is
in employment in a Class II or
lower rank post, then the
income/wealth criterion will
apply only on the basis of the
wife's income and the
husband's income will not be
clubbed with it.


V.

PROPERTY OWNERS

A. Agricultural holdings



Son(s) and daughter(s) of persons
belonging to a family (father,
mother and minor children)
which owns

(a) only irrigated land which is
equal to or more than 85% of the
statutory ceiling area, or

(b) both irrigated and unirrigated
land, as follows:

(i) The rule of exclusion will
apply where the pre-condition
exists that the irrigated area
(having been brought to a
single type under a common
denominator) 40% or more of
the statutory ceiling, limit for
irrigated land (this being,
calculated by excluding the
unirrigated portion). If this
pre-condition of not less than
40% exists, then only the area
of unirrigated land will be
taken into account. This will
be done by converting the
unirrigated land on the basis
of the conversion formula
existing, into the irrigated
type. The irrigated area so
computed from unirrigated
land shall be added to the
actual area of irrigated land
and if after such clubbing
together the total area in
terms of irrigated land is 80%
or more of the statutory
ceiling limit for irrigated land,
then the rule of exclusion will
apply and dis-entitlement will
occur.

(ii) The rule of exclusion will
not apply if the land holding of
a family is exclusively
unirrigated.

B. Plantations

(i) Coffee, tea, rubber,
etc.


(ii) Mango, citrus, apple
plantations etc.



Criteria of income/wealth
specified in Category VI below
will apply.

Deemed as agricultural holding
and hence criteria at A above
under this Category will apply.





C. Vacant land and/or
buildings in urban
areas or urban
agglomerations

Criteria specified in Category VI
below will apply.

Explanation: Building may be
used for residential, industrial or
commercial purpose and the like
two or more such purposes.


VI.
INCOME/WEALTH
TEST
Son(s) and daughter(s) of

(a) Persons having gross income
of Rs.1 lakh or above or
possessing wealth above the
exemption limit as prescribed in
the Wealth Tax Act for a period of
three years.

(b) Persons in Categories I, II, III
and VA who are not disentitled to
the benefit of reservation but
have income from other sources
of wealth which will bring them
within the income/wealth criteria
mentioned in (a) above.

Explanation:

(i) Income from salaries or
agricultural land shall not be
clubbed;

(ii) The income criteria in
terms of rupee will be
modified taking into account
the change in its value every
three years. If the situation,
however, so demands, the
interregnum may be less.





Explanation: Wherever the
expression "permanent
incapacitation" occur in this
schedule, it shall mean
incapacitation which results
in putting an officer out of
service.

Smt. Sarita Prasad
Joint Secretary to the Government of India."


55. In sum, the schedule excludes the children of those who
hold constitutional posts, e.g., the children of the President of
India, Supreme Court Judges, Chairman and Members of UPSC
and others are excluded. Class 1 Officers' children are not
eligible for OBC perks either. When both parents are Class-II
Officers, their children are excluded. The same criteria that
apply to Class-I and II officers apply to children of parents who
work at high levels within the private sector. Agricultural owners
are excluded when their irrigated holdings are more than or
equal to 85% of the statutory ceiling. The O.M. further excludes
persons having a gross annual income of Rs.2.5 lakh or more.
The Government raised the income limit from Rs.1 to Rs.2.5 lakh
on 09.03.2004 vide O.M. 36033/3/2004.

56. The creamy layer schedule of the O.M. dated 8.9.93, in my
opinion, is not comprehensive. This should be revised
periodically - preferably once in every 5 years, in order to ensure
that creamy layer criteria take changing circumstances into
account.

57. Apart from the people who have been excluded vide the
office memo, I urge the Government to make it more
comprehensive. The Government should consider excluding the
children of sitting and former Members of Parliament (MP) and
Members of Legislative Assemblies (MLA) from special benefits. If
constitutional authorities have been excluded from benefits
because of their status or resources, the same should apply to
children of former and sitting MPs and MLAs. I hope the
judiciary will not have to involve itself in this matter.

2. Applying Article 21A to the Reservation Act

58. On 18 December 2006, in the Rajya Sabha Debate on the
Reservation Act, Member of Parliament and former Governor,
Dr. P.C. Alexander summed up what would become one of
Petitioners' arguments. Should Rs.17,000 crores be spent on
implementing the Reservation Act for higher education when
primary/secondary schooling is in such bad shape? Dr.
Alexander stated:
"Sir, this spending Rs.17,000 crores or whatever
amount is needed for adding seats in the Engineering
colleges, IIMs and IITs is reversing our priorities. If
you have the money for education, spend it on
schools. Spend it on the rural areas for primary
schools; spend it on the schools, which are poorly
starved in the urban areas. Instead of doing that, you
spend it by adding to the numbers because you want
to appease the so-called poorer sections in the higher
castes. So, we have taken care of you and you tell the
backward classes we are taking care of all of you. This
is where we land ourselves in trouble. We have cash
resources. They should be spent where priorities are
fixed clearly in our eyes and we don't want to do that."


Spending on higher at the expense of lower education raises the
specter of conflict with Article 21A. By the 86th Amendment,
Article 21A was inserted in our Constitution. Article 21A reads
as follows:
"The State shall provide free and compulsory
education to all children of the age of six to fourteen
years in such manner as the State may, by law,
determine."

59. Under Article 21A, it is a mandatory obligation of the State
to provide free and compulsory education to all children aged six
to fourteen. In order to achieve this constitutional mandate, the
State has to place much greater emphasis on allocating more
funds for primary and secondary education. There is no
corresponding constitutional right to higher education. The
entire Nation's progress virtually depends upon the proper and
effective implementation of Article 21A.

60. This Court in Unni Krishnan, J.P. & Others v. State of
Andhra Pradesh & Others (1993) 1 SCC 645 para 166 held as
under:
" right to education is implicit in and flows from the
right to life guaranteed by Article 21. That the right to
education has been treated as one of transcendental
importance in the life of an individual [and] has been
recognized not only in this country since thousands of
years, but all over the world. without education
being provided to citizens of this country, the
objectives set forth in the Preamble to the Constitution
cannot be achieved. The Constitution would fail."

This observation encouraged the Parliament to insert Article 21A
into the Constitution.

61. In Unni Krishnan (supra), Justice Reddy observed that the
quality of education in Government schools was extremely poor
and that the schools were woefully inadequate to the needs of the
children. He noted that many countries spend 6% to 8% of
Gross Domestic Product on education. Our expenditure on
education is just 4% of GDP.

62. Though an improvement over past performance, the overall
education picture leaves much to be desired. The bad news is
really bad. Even where we have seen improvement, there is still
failure. A survey by Pratham, an NGO, fleshes out the acute
problems found in rural schools. (See: ASER 2007 Rural Annual
Status of Education Report for 2007, published on January 16,
2008). The survey covered 16,000 villages. As Pratham
indicates, there are an estimated 140 million children in the age
group 6 to 14 years in primary schools. Of these 30 million
cannot read, 40 million can recognize a few alphabets, 40 million
can read some words, and 30 million can read paragraphs. Over
55 million of these children will not complete four years of
school, eventually adding to the illiterate population of India. The
national literacy rate is 65%.

63. 24 districts with more than 50,000 out of school children
means we have failed 24 times over. 71 districts in which there
are 60 students per teacher is just as bad, if not worse.
According to Pratham (and in line with the Ministry of HRD's six-
month review), the number of out of school children has hovered
around 7,50,000. [page 6]. Moreover, it goes without saying that
children need proper facilities. Today, just 59% of schools can
boast of a useable toilet. [page 49].

64. The quality of education is equally troubling. For
standards I and II, only 78.3% of students surveyed could
recognize letters and read words or more in their own language.
[page 47]. In 2006, it was even worse only 73.1% could do so.
It is disheartening to peruse the statistics for standards III to V,
where only 66.4% could read Standard I text or more in their
own language in 2007. [page 47]. As Pratham stated at page 7:
"What should be more worrying though, is the fact
that in class 2, only 9 percent children can read the
text appropriate to them, and 60 percent cannot even
recognise numbers between 10 and 99."


65. In the third to fifth standards, 40% of students surveyed
could not subtract. The latest figures indicate that 58.3%
children in the fifth standard read at the level appropriate for
second Standard students. [page 32]. In both 2005 and 2007,
only 74.1% of enrolled children were in attendance. [page 49].

66. The learned Solicitor General, Mr Vahanvati, submitted that
the Government has now placed sufficient emphasis on primary
education. In 2001-2002, the Government launched Sarva
Shiksha Abhiyan (SSA). This national programme's goal is to
universalize elementary education. It supplements
Governmental spending on education. As the Solicitor General
explained, it was founded on the idea that education for those
between the ages of six to fourteen is a fundamental right. In
this way, SSA seeks to fulfill the Government's obligation under
Article 21A to provide free and compulsory education to this age
group. Some of the SSA's accomplishments merit mention.

67. By March 2007, 2,03,577 toilets had been constructed or
were under construction, covering 87% of the goal; more than six
crore free textbooks had been supplied 96% of the goal;
1,93,220 new schools had been completed or were under
construction, i.e., 80% of the desired mark. The learned Solicitor
General further provided that enrolment for all districts in 2004-
05 for classes I-V was 11,82,96,540. In 2005-06, the number
increased to 12,46,15,546. A similar increase was seen in
Classes VI-VII/VIII: from 3,77,17,490 to 4,36,67,786. The total
number of teachers increased from 36,67,637 in 2003-04 to
46,90,176 in 2005-06.

68. It is the learned Solicitor General's contention that SSA was
responsible for many of the gains cited above. This includes the
improved statistics on the student-teacher ratio, out of school
children and enrollment rate for girls.

69. While the Government is on the right track with regard to
improving the infrastructure of our system, books and buildings
only go so far. They are necessary but not sufficient for
achieving the ultimate goals of (1) keeping children in school, (2)
ensuring that they learn how to think critically and (3) ensuring
that they learn skills that will help them secure gainful
employment. The quality of education provided in the majority of
primary schools is woeful. That is why I find it necessary to
review Government spending on education especially at the
primary/secondary level.

70. Undoubtedly, the Government has allocated more funds of
late for education, but we need to have far more allocation of
funds and much greater emphasis on free and compulsory
education. Anything less would flout Article 21A's mandate.
According to H.R.D. Annual Reports read with the Union of India
Budget 2008-09, we spend roughly seven times as much on the
individual college student than the individual primary or
secondary student.
Spending per Student: Comparing that which is spent
on each primary/secondary student versus each higher
education student
Year & Level of
Schooling
Estimated # of
Enrolled Students*
Total Rs.
Allocated**
Expenditure per
student in Rs.
2006-2007
School Education/
Literacy
219083879
168970000000
771
2006-2007
Tertiary Education
11777296
69120900000
5868
2007-2008
School Education/
Literacy
219083879
231913500000
1059
2007-2008
Tertiary Education
11777296
63973600000
5432
2008-2009
School Education/
Literacy
219083879
278500000000
1271
2008-2009
Tertiary Education
11777296
108528700000
9215
* = Estimated number of students for primary/secondary level is taken from
2004-2005 Annual Report, p. 250 at
http://www.education.nic.in/AR/AR0607-en.pdf. In the same Annual
Report, 11777296 students were enrolled in higher education in 2004-
2005. For consistency's sake, I have used the 2004-2005 estimates. I have
found no information that suggests that enrolment for one has significantly
outpaced the other.

** = Government of India, Expenditure Budget Vol. 1, 2008-2009, p. 6, Total Expenditure
of Ministries/Departments (school education/literacy and higher education have been added).

71. In a country where only 18% of those in the relevant age
group make it to higher education, this is incredible. See NSSO
1999-2000. It is not suggested that higher education needs to
be neglected or that higher education should not receive more
funds, but there has to be much greater emphasis on the
primary education. Our priorities have to be changed. Nothing is
really more important than to ensure total compliance with
Article 21A. How can a sizeable portion of the population be
precluded from realizing the benefits of development when
almost everyone acknowledges that the children are our future?

72. Education for children up to the age of fourteen years
should be free. This has also been suggested in the
recommendations of the Kothari Commission on Education in
1966. Taking the country's rampant poverty into account, free
education up to the age 14 years is absolutely imperative. There
is no other way for the poor to climb their way out of this
predicament.

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

74. In addition to free education and/or other financial
assistance, they should also be given books, uniforms and any
other necessary benefits so that the object of Article 21A is
achieved. Time and again, this Court, in a number of judgments,
has observed that the State cannot avoid its constitutional
obligation on the ground of financial inabilities. (See:
Hussainara Khatoon & Others (III) v. Home Secretary, State
of Bihar, Patna (1980) 1 SCC 98, 107 at para 10).

75. In Vasanth Kumar (supra) at para 150, Justice
Venkataramiah suggested that the State provide preferential
treatment such as tuition, scholarships, free boarding and
lodging, etc. According to UNESCO's Education for All, Global
Monitoring Report (2008) at page 115, at least fourteen countries
have cash-transfer programmes that target poor households with
school-age children. The largest programme is in Brazil, where
46 million people receive an education transfer of up to $44 USD
monthly per household in extreme poverty with children below
age 16. According to the Report, the programme has reduced
drop-out rates by up to 75% among beneficiaries in its more
recent stage.

76. Such a programme is not foreign to India. According to
UNICEF, the State of Gujarat put the idea of financial incentives
for youth into action:
"Figures indicate that the school enrolment drive of
the state Government supported by incentives like
Vidyalaxmi bond of Rs.1,000 given to each girl who
completes primary education and 60 kg of wheat for
tribal girls attending school, has met with significant
success. In addition to the various incentives by the
Government, many a corporate houses and
community have also come forward to motivate
parents and children by donating school bags,
uniforms, stationery, etc. As a result, the drop-out
rate has come down from 35.31 % in 1997-1998 to
3.24% in 2006-2007 in class 1-5. In girls, this rate
has dropped from 38.95% to 5.97 in the same time
period."


77. In January 2008, Haryana Chief Minister Mr. Bhupinder
Singh Hooda unfurled an incentive scheme for SC students in
which students would receive a one-time payment in addition to
a monthly stipend for attending school. (See: "Incentives
announced to curb dropout rate", The Tribune, 5 Jan. 2008).
The relevant portion is mentioned hereinbelow:
"Secretary, education, Rajan Gupta said a one-time
allowance of Rs.740 to Rs.1,450 would be given to SC
students from class I to XII. Under the monthly
incentive scheme, boys and girls studying in class I to
V would be given Rs100 and Rs.150, respectively, per
month and boys and girls of class VI to VIII Rs.150
and Rs.200. Similarly, boys and girls of class IX to XII
would be given Rs.200 and Rs.300, respectively, and
boys and girls studying science subjects in class XI
and XII Rs.300 and Rs.400, respectively. This
monthly incentive to the students would be deposited
in their bank accounts to maintain transparency in
the scheme, he added."

78. In the name of transparency, students' attendance records
could be made available to administrators and parents.
Students would be paid to attend school. They would receive a
sum for each day of school that they attended. If you only attend
7 out of 10 school days, you would only receive 70% of the
stipend.

79. Ultimately, this is the most important aspect of
implementing Article 21A, incentives should be provided to
parents so that they are persuaded to send their children to
school. More than punishment, creative incentive programmes
will go a long way in the implementation of the fundamental right
enshrined under Article 21A.

7 Historical Perspective on Compulsory Education:


80. Almost two centuries ago, Clause 43 of The Charter Act of
1813 made education a State responsibility. [See: "Free and
Compulsory Education: Genesis and Execution of Constitutional
Philosophy", Dr. P.L. Mehta and Rakhi Poonga, Deep and Deep
Publications, New Delhi (1997)]. [pages 42-47]. The Hunter
Commission (1882-83) was the first to recommend universal
education in India. Thereafter, the Patel Bill, 1917 was the first
compulsory education legislation. It proposed to make
education compulsory from ages 6 to 11.

81. The Government of India Act, 1935 provided that
"education should be made free and compulsory for both boys
and girls." Free and compulsory education got a further boost
when the Zakir Hussain Commission recommended that the
State should provide it. The 1944 Sargent Report strongly
recommended free and compulsory education for children aged
six to fourteen. By 1947, primary education had been made
compulsory in 152 urban areas and 4995 rural areas.

82. The State has been making some endeavour to provide free
and compulsory education since 1813 in one form or the other.
When the original Framers gathered at the Constituent
Assembly, their desire to provide free and compulsory education
was well established. The real question in the Debate was
whether the original Framers would make free and compulsory
education justiciable or not. They oscillated between the
options, first placing it in the fundamental rights and later
moving it to the directive principles of State policies under Article
45 of the Constitution.

83. Over 50 years later, the Parliament revisited the subject.
The Parliamentary debate on Article 21A offers a glimpse into the
history of compulsory education in other countries. The then
Minister of Human Resource Development, Dr. M.M. Joshi,
referred to the speech of Shri Gopal Krishna Gokhale on
compulsory education. While debating a bill in the imperial
legislative council in 1911, Shri Gokhale said that in most
countries:
" elementary education is both compulsory and
free, and in a few, though the principle of compulsion
is not strictly enforced or has not been introduced it is
either wholly or for the most part gratitutious, in India
alone it is neither compulsory nor free. Thus in Great
Britain and Ireland, France, Germany, Switzerland,
Austria, Hungary, Italy, Belguim, Norway, Sweden, the
United States of America, Canada, Australia and
Japan it is compulsory and free. . In Spain,
Portugal, Greece, Bulgaria, Servia and Rumania, it is
free, and in theory, compulsory, though compulsion is
not strictly enforced." [Lok Sabha Debates, 28
November, 2001, Vol.20, page 476].


84. In 1948, the United Nations made its own pronouncement
on compulsory education. Article 26(1) of the Universal
Declaration of Human Rights made free and compulsory
education a lofty if not enforceable goal. While many states
consider it an authoritative interpretation of the United Nations
Charter, the Declaration is not a treaty and is not intended to be
legally binding. Article 26(1) states:
"Everyone has the right to education. Education shall
be free, at least in the elementary and fundamental
stages. Elementary education shall be compulsory.
Technical and professional education shall be made
generally available and higher education shall be
equally accessible to all on the basis of merit."

85. Our original Framers put a similar emphasis on the matter,
placing free and compulsory education in the Directive
Principles. The un-amended Article 45 provided that:
"The State shall endeavour to provide, within a
period of ten years from the commencement of this
Constitution, for free and compulsory education for all
children until they complete the age of fourteen years."

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

"Unless the Government makes primary education
compulsory, no village can develop. If I say what they
are doing in Andhra Pradesh, some Members may
again cry foul. In Andhra Pradesh, we are having
Education Committees. If there are any dropouts, the
Committee will go to the village and find out the
reason as to why they have dropped out. It is very
important."


87. The Report of the Kothari Commission, 1964-1966, headed
by Prof. D. S. Kothari, provided important recommendations on
compulsory education. Nevertheless, the circumstances of the
day compelled it to soften its suggestions. The Nation was
relatively poor and could not afford drastic increases in
education spending. Some excerpts of this report are reproduced
as under:
"5.01. But in any given society and at a given time,
the decisions regarding the type, quantity and quality
of educational facilities depend partly upon the
resources available and partly upon the social and
political philosophy of the people. Poor and traditional
societies are unable to develop even a programme of
universal primary education. But rich and
industrialized societies provide universal secondary
education and expanding and broad-based
programmes of higher and adult education. Feudal
and aristocratic societies emphasize education for a
few. But democratic and socialistic societies
emphasize mass education and equalization of
educational opportunities. The principal problem to be
faced in the development of human resources,
therefore, is precisely this: How can available
resources be best deployed to secure the most
beneficial form of educational development? How
much education, of what type or level of quality,
should society strive to provide and for whom?
5.03 Increasing the Educational Level of Citizens. In
the next two decades the highest priority must be
given to programmes aimed at raising the educational
level of the average citizen. Such programmes are
essential on grounds of social justice, for making
democracy viable and for improving the productivity of
the average worker in agriculture and industry. The
most crucial of these programmes is to provide, as
directed by Article 45 of the Constitution, free and
compulsory education of good quality to all children
up to the age of 14 years. In view of the immense
human and physical resources needed, however, the
implementation of this programme will have to be
phased over a period of time."
88. When Article 21A was introduced, some Members of
Parliament argued that financially poor parents who fail to send
their children to school should not be punished and that the
word "compulsion" in this Article should be understood to apply
exclusively to the State.

89. Let me examine this argument. The 86th Amendment made
three changes to the Constitution. It added Articles 21A and
51A(k) and amended Article 45. I turn my focus to Article
51A(k). In addition to rejecting an amendment that would have
neutered compulsory education, the Parliament made a positive
gesture. Though it never passed legislation seeking to implement
compulsory education, it had not completely ignored the subject.
From Article 51A(k), it becomes clear that parents would be
responsible for sending their children to school. Article 51A read
with 51A(k) is reproduced as under:
"It shall be the duty of every citizen of India who is a
parent or guardian to provide opportunities for
education to his child or, as the case may be, ward
between the age of six and fourteen years."
90. Just as Article 51A(a) does not penalize disrespect of the
National Flag, Article 51A(k) does not penalize parents/guardian
for failing to send children to school. There is, of course,
legislation that gives teeth to Article 51A(a). (See: The Prevention
of Insults to National Honour Act, 1971, Section 3A).

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

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

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

94. In contrast to the relatively light aforementioned sentences,
the Compulsory Education Bill, 2006 introduced in the Rajya
Sabha would provide six months imprisonment as a penalty for
those who preclude children from going to school. If this Bill
becomes law, Section 7 would dictate the following:
"If any person including parents of children prevents
any boy or girl child from going to school or causes
hindrance or obstruction in any way, he shall be
punishable with imprisonment, which may extend to
six months."


95. It seems that the Bill simultaneously targets employers and
parents. Employers would be punished when they hire a child to
work too much or during school hours. Similarly, parents would
also be punished for allowing this to happen. The Bill would also
provide for scholarships, free hostel facilities and other
incentives, "whenever necessary" and "as may be prescribed".

96. In Bandhua Mukti Morcha v. Union of India & Others,
(1997) 10 SCC 549 at page 557 at para 11, the Court explained
why education should be compulsory. In essence, a citizen is
only free when he can make a meaningful challenge to his fellow
citizens or Government's attempt to curtail his natural freedom.
For this to happen, he needs a certain degree of education. This
is why Article 21A may be the most important fundamental right.
Without it, a citizen may never come to know of his other rights;
nor would he have the resources to adequately enforce them.
The relevant passage at para 11 reads as under:-
"A free educated citizen could meaningfully exercise
his political rights, discharge social responsibilities
satisfactorily and develop a spirit of tolerance and
reform. Therefore, education is compulsory. Primary
education to the children, in particular, to the child
from poor, weaker sections, Dalits and Tribes and
minorities is mandatory. The basic education and
employment-oriented vocational education should be
imparted so as to empower the children within these
segments of the society to retrieve them from poverty
and, thus, develop basic abilities to live a
meaningful life Compulsory education, therefore, to
these children is one of the principal means and
primary duty of the State for stability of the
democracy, social integration and to eliminate social
tensions."

97. In contrast to Article 51A(k), State and Union Territory laws
and Parliamentary intent with regard to Article 21A, the Court in
Mukti Morcha was inclined to suggest, not hold, that the State
was exclusively responsible for compulsory education. It went on
to reaffirm M.C. Mehta v. State of Tamil Nadu & Others (child
labour matter) (1996) 6 SCC 756. In that case, the Court took
up the issue of child labour in hazardous fields when it learnt of
an accident in a cracker factory in Sivakasi.

98. The said case at para 28 identified poverty as the root cause
of child labour:
"Of the aforesaid causes, it seems to us that poverty
is basic reason which compels parents of a child,
despite their unwillingness, to get it employed. The
Survey Report of the Ministry of Labour (supra) had
also stated so. Otherwise, no parents, specially no
mother, would like that a tender-aged child should toil
in a factory in a difficult condition, instead of its
enjoying its childhood at home under the paternal
gaze."


99. In other words, parents send children to work because
parents have no other choice. Food comes first. If the State does
not provide extra income so as to remove the incentive to send
children to work, it is wasting its time on mere gesture. The
Court in para 29 concluded that action must be taken:
"It may be that [child labour] would be taken care of to
some extent by insisting on compulsory education.
Indeed, Neera [Burns] thinks that if there is at all a
blueprint for tackling the problem of child labour, it is
education. Even if it were to be so, the child of a poor
parent would not receive education, if per force it has
to earn to make the family meet both the ends.
Therefore, unless the family is assured of income
aliunde, problem of child labour would hardly get
solved; and it is this vital question which has
remained almost unattended. We are, however, of the
view that till an alternative income is assured to the
family, the question of abolition of child labour would
really remain will-o'-the-wisp." (emphasis added).


100. It is interesting to note that compulsory education has been
introduced in one form or the other in various countries. From
the historical experience of these nations, we learn that the
legislation pertaining to compulsory education has played an
important role in improving educational outcomes.

7 Compulsory education's roots in the United
States

101. Compulsory education has had a long history outside of
India. In 1852, the State of Massachusetts enacted the first
compulsory attendance law in the United States; though
compulsory education laws existed much earlier in many states,
the first dating back to 1642 in Massachusetts. "Were
Compulsory Attendance and Child Labor Laws Effective? (See:
An analysis from 1915 to 1939." (2001) at p. 2. Prof. Adriana
Lleras-Muney of Princeton University.)

7 Reasons from abroad for implementing compulsory
education:


102. Prof. Lleras-Muney explains that those who advocated
for compulsory education believed that universal education was
necessary to promote democracy and guarantee a common
American culture. (Page 11). Given the influx of immigrants,
some of whom came from undemocratic countries, many
supporters of legislation viewed compulsory education as an
instrument for assimilation.

103. Other reasons cited by compulsory education proponents in
the United States included the reduction of crime, racism and
inequality. Prof. Oreopoulos of the University of Toronto cites to
sources that make it appear as though the reasons for adopting
compulsory education in Canada mirrored those cited in the
United States: the emphasis was on good citizenship and
economic development:
"Archibald Macallum, an Ontario teacher,
summarized the latter argument vigorously in an 1875
report favouring the introduction of compulsory
schooling in Canada: 'Society has suffered so cruelly
from ignorance, that its riddance is a matter of
necessity, and by the universal diffusion of knowledge
alone can ignorance and crime be banished from our
midst; in no other way can the best interests of society
be conserved and improved than by this one remedy
the compulsory enforcement of this great boon the
right of every Canadian child to receive that education
that will make him a good, loyal subject, prepared to
serve his country in the various social functions which
he may be called on to fill during his life; and prepare
him, through grace, for the life to come' (Annual
Report of the Ontario Teachers' Association, 1875, as
cited in Prentice and Houston 1975, 175 6). (See: The
Canadian Journal of Economics, Vol. 39, No.1,
February (2006) "The compelling effects of compulsory
schooling: the evidence from Canada," Prof.
Oreopoulos, at page 23)."


7 Empirical data indicating that compulsory
education has a positive effect:


104. Prof. Oreopoulos provides data that show the fruits of
imposing education on citizens. Crime may be lowered, health
improved and civic activity increased. Compulsory education
may also lead to a substantial increase in income for individuals.
Moreover, compulsory education, if it does not cause, may at
least contribute to an increase in bilingualism and employment
and a reduction in poverty. The relevant portion is reproduced
hereunder:
"(Page 24). Other papers find evidence of social
returns, but for non-pecuniary outcomes. Lochner and
Moretti (2002), for example, find that compulsory
schooling lowers crime, while Lleras-Muney (2002)
finds a correlation with improved health. In studies of
the United States and United Kingdom, Dee (2003)
and Milligan, Moretti, and Oreopoulos (2003) estimate
that tighter restrictions on leaving school early
correspond to increased levels of civic activity (like
voting and discussing politics). My analysis
suggests that students compelled to complete an extra
grade of school have historically experienced an
average increase of 9 15% in annual income.

(Page 48). I find that the introduction of tighter
provincial restrictions on leaving school between 1920
and 1990 raised average grade attainment and
incomes. Students compelled to attend an extra year
of school experienced an average increase in annual
income of about 12%. I also find that compulsory
schooling is associated with significant benefits in
terms of other socio-economic outcome measures
ranging from bilingualism, employment, and poverty
status. These results hold up against many
specifications checks and are entirely consistent with
previous studies."


105. In addition to increased income, Prof. Lleras-Muney found
that legally requiring a child to attend school for one more year
increased educational attainment by roughly five percentage
points. (Page 8). Educational attainment refers to time spent in
school.
7 Example of compulsory education statutes

106. The causes of low enrolment, high drop-out rates and
frequent truancy in the U.S. and India differ, but the
consequences thereof do not. In either case, citizens who lack
education are at an extreme disadvantage. In India, poverty has
been identified as the ultimate cause of lackluster enrolment and
attendance rates. Children are compelled to work. In developed
countries like the United States or Canada, children rarely fail to
attend school because of economic constraints. Instead, a
number of different factors may contribute to truancy. High
school students may drop out " because they detest school,
lack motivation, or anticipate little reward from graduation."
(See: The Canadian Journal of Economics, "The compelling effects
of compulsory schooling: the evidence from Canada," Prof.
Oreopoulos, p. 23, (quoting from Eckstein, Zvi, and Kenneth I.
Wolpin (1999) "Why youths drop out of high school: the impact of
preferences, opportunities, and abilities," Econometrica 67, 1295
339).

107. As I detail below, students and parents in the United States
often face the same fines when students fail to attend school.
Fines for students make more sense when low self-control is the
reason for which they fail to attend school. At the same time,
punishing Indian students who have no choice but to work
would make no sense. Such a punishment should not be
borrowed from the United States.

108. In many jurisdictions in the United States, the attendance
officer is responsible for enforcing compulsory attendance laws
for his area or school. Given the overwhelming problem of sub-
par enrolment and attendance in India, we doubt that one school
official could sufficiently do the work of inspecting places of
employment for children who have violated attendance laws.
109. Indeed, existing legislation in India already envisages the
employment of attendance officers. The Delhi Primary Education
Act, 1960, Sec. 7. Yet, there is nothing to suggest that these
employees have adequately dealt with truancy. As mentioned,
this is, in part, due to the economic conditions in which many
parents find themselves. Financial assistance or incentives must
be given. Only then, may the Government actively enforce
compulsory attendance legislation.
110. We must also remember that it is not only the child who
fails to attend but also the child who fails to enroll that has
violated an attendance law.
111. Before taking issue with State/Union Territory compulsory
education statutes, I note that education has traditionally been
reserved for the States. Only in 1976, vide the 42nd Amendment
of the Constitution, did education become a part of Concurrent
List of Schedule 7. In its 165th Report, the Law Commission of
India has also recommended enactment of Central Legislation in
this respect. Putting education in the Concurrent List turns out
to be a positive development, given the States' failure to provide
effective legislation.

112. The States' laws fail on two accounts. First, they are too
lenient to have a deterrent effect. Second, the legislation is not
adequately enforced, in part, because it does not require police
officers to do the job. If we analyze the legislation passed by
different States, another conclusion becomes obvious: no State
has provided for an adequate punishment whose effect would be
to deter citizens from committing a violation.

113. It is necessary to reproduce some of the various compulsory
education laws of the States.
114. Under Section 7 of The Tamil Nadu Compulsory Elementary
Education Act, 1994:
"Every parent or guardian of a child of school age who
fails to discharge his duty under section 4 [duty of
parent to cause child to attend elementary school]
shall be punishable with fine which may extend to one
hundred rupees."

115. Section 18(1) of The Delhi Primary Education Act, 1960
states:
"If any parent fails to comply with an attendance order
passed under Section 13, he shall be punishable with
fine not exceeding two rupees, and, in the case of
continuing contravention, with an additional fine not
exceeding fifty naye paise for every day during which
such contravention continues after conviction for the
first of such contraventions. Provided that the
amount of fine payable by any one person in respect of
any child in any one year shall not exceed fifty
rupees."

116. Analysis of these State laws reveals that they are weak in
character and perhaps have never been implemented. If we
compare these laws with their sister statutes in United States,
we realize that the U.S. laws are far stronger.
117. In Wisconsin, parents who fail to send their children to
school may have to pay a fine of not more than $500 or face
imprisonment for not more than 30 days or both. [Wisconsin
Statute Sections 118.15(1)(a) and 118.15(5)(a)1.a]. For a second
or subsequent offense, they may face a fine of not more than
$1,000 or imprisonment for not more than 90 days or both.
[Wisconsin Statute Sections 118.15(1)(a) and 118.15(5)(a)1.b].
Alternatively, they may be sentenced to perform community
service. [Wisconsin Statute Sections 118.15(1)(a) and
118.15(5)(a)2] .
Unlike Wisconsin, Tamil Nadu and Delhi's laws have no
teeth.

118. The other main problem is implementation of these laws.
Neither the State Governments nor their police agencies are at all
serious about implementing these compulsory laws. There are
hardly any cases where even fines have been imposed. Some
form of compulsory education has been on the statute books
since 1917. We have seen Western countries enforce these laws.
Most Western countries enjoy almost universal literacy while
35% of our population is illiterate. While a robust financial
incentive programme may not have been possible in 1917, it is
today. If we wish to develop further, we must educate each and
every citizen aged six to fourteen.

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

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

121. The Parliament should criminally penalize those parents
who receive financial benefits and, despite such payments, send
their children to work and penalize those employers who
preclude children from attending school or completing
homework. It has become necessary that the Government set a
realistic target within which it must fully implement Article 21A
regarding free and compulsory education for the entire country.
The Government should suitably revise budget allocations for
education. The priorities have to be set correctly. The most
important fundamental right may be Article 21A, which, in the
larger interest of the nation, must be fully implemented. Without
Article 21A, the other fundamental rights are effectively rendered
meaningless. Education stands above other rights, as one's
ability to enforce one's fundamental rights flows from one's
education. This is ultimately why the judiciary must oversee
Government spending on free and compulsory education.

122. At the same time, spending is an area in which the
judiciary must not overstep its constitutional mandate. The
power of the purse is found in Part V, Chapter II of the
Constitution, which is dedicated to the Parliament. (See: Articles
109 and 117 for "Money Bills.") Nevertheless, it remains within
the judiciary's scope to ensure that the fundamental right under
Article 21A of Part III is upheld. In M.C. Mehta v. Union of
India (vehicular pollution) (1998) 6 SCC 63, this Court did not
ignore the Article 21 right to life when deadly levels of pollution
put the right at stake. Nor will this Court ignore the Article 21A
right to education, when a dearth of quality schooling put it in
jeopardy. The Government's education programmes and
expenditures, wanting in many respects, are an improvement
over past performance. They nearly fall short of the
constitutional mark. Lackluster performance in
primary/secondary schools is caused in part because
Government places college students on a higher pedestal. Money
will not solve all our education woes, but a correction of priorities
in step with the Constitution's mandate will go a long way.

7 Opposition to Compulsory Education

123. "Compulsory" connotes enforcement. The Parliament
rejected an amendment that would have saved parents from
penal penalties. If education were not compulsory, who checks in
with parents who have sent their children to work? If no
authorities inquire, the message is clear: We, the State, do not
care if your child goes to school. Taking the opposing view, Shri
G.M. Banatwalla wanted to make sure parents were not
punished:
" this word 'compulsion' needs to be properly defined.
The word, 'compulsion' is not to be related to the
student or the parents. Parents cannot be penalized
for being too poor to send their children to school.
The word, 'compulsion' has to be understood in
relation to the State and the obligation of the State to
provide for free education. p. 523." (See: The
Parliamentary Debates on Article 21A, p. 523, 28
November 2001 at Vol. 20, No. 6-10)
124. The Parliament had the opportunity to accept such a
definition of "compulsory." But they chose otherwise.
Amendment number four, moved by Shri G.M. Banatwalla at p.
548, stated that:
"Provided that in making any law to provide for free
and compulsory education under this article, the State
shall not (b) enforce any penal sanctions on a parent
or guardian."

125. Of paramount importance, this Amendment was
"negatived." [See p. 548]. Those who wanted a safe-haven from
penal sanction for parents lost. From this vote, we know that the
Parliament intended to allow for future legislation that would
impose penal sanctions for violations of legislation under Article
21A.

7 Conclusion on Free and Compulsory Education

126. Given that so many children drop out of, or are absent
from, school before they turn fourteen, "free education" alone
cannot solve the problem. The current patchwork of laws on
compulsory education is insufficient. Monetary fines do not go
far enough to ensure that Article 21A is upheld.

127. A carrot-and-stick approach appears to be the best way to
implement Article 21A. Financial incentive programmes have
worked well in other countries. We should follow their lead.
Once that is done, the Government should strictly enforce
effective compulsory education laws. Such a policy is bound to
pay off.

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

3. The Bill seeks to achieve the above objects"


130. The Article seeks to usher in "the ultimate goal of providing
universal and quality education." (emphasis supplied). Implied
within "education" is the idea that it will be quality in 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."
3. 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 Tamilnadu (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).
7 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. If 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).

7 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.

7 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.



7 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).
7 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.