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 53