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2008 (4) TMI 775 - SC - Indian LawsExclusion of creamy layer - Validity of 93rd Amendment to the Constitution of India - whether Article 15(5) would be unconstitutional on the ground that it violates the basic structure of the Constitution by imposing reservation in respect of private unaided educational institutions - members belonging to other backward classes who get selected in the open competition field on the basis of their own merit should be counted against the 27% quota reserved for other backward classes under an enactment enabled by Article 15(5) of the Constitution, for consideration in an appropriate case - HELD THAT:- This Court has held that clause (4) of Article 15 is neither an exception nor a proviso to clause (1) of Article 15. Clause (4) has been considered to be an instance of classification inherent in clause (1) and an emphatic restatement of the principle implicit in clause (1) of Article 15 (see : State of Kerala v. N.M. Thomas [1975 (9) TMI 176 - SUPREME COURT]. Clauses (1) and (2) of Article 15 bar discrimination. Clause (5) was added by Constitution (Ninety-third Amendment) Act, 2005. Each of these three enabling provisions operate independent of each other. The opening words ’Nothing in this article’ occurring in each of these clauses (3), (4) and (5) obviously refer to clauses (1) and (2) of Art. 15 and not to the other enabling clauses. Clauses (3), (4) and (5) of Article 15 are not to be read as being in conflict with each other, or prevailing over each other, but are to be read harmoniously. The need for exclusion of creamy layer - Section 3 of Act 5 of 2007 mandates reservation of seats in central educational institutions for other backward classes to an extent of 27%. It is contended that the term ’backward classes’ in Article 16(4) is much wider than ’socially and educationally backward classes of citizens’ occurring in clauses (4) and (5) of Article 15. Article 15(4) provides that nothing in that Article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward class of citizens or for Scheduled Castes and Scheduled Tribes. It is submitted that as clause (5) of Article 15 does not override or exclude Article 29(2), any law made in exercise of power under Article 15(5) will be subject to Article 29(2), and consequently there cannot be any affirmative action by way of reservation on the ground of caste alone. The decision of nine Judges in Indra Sawhney v. Union of India [1992 (11) TMI 277 - SUPREME COURT]. This Court held that the use of the word ’class’ in Article 16(4) refers to social class, and that reservation under Article 16(4) is in favour of a backward class and not a caste. It held that ’ backward class of citizens’ contemplated in Article 16(4) is not the same as ’socially and educationally backward classes’ referred to in Article 15(4), but much wider. It held that there was no reason to qualify or restrict the meaning of the expression ’backward class of citizens’ by saying that it means only those other backward classes who are situated similarly to Scheduled Castes and/or Scheduled Tribes. The need for exclusion of creamy layer is reiterated in the subsequent decisions of this Court in Indra Sawhney v. Union of India (II) [1996 (11) TMI 487 - SUPREME COURT], M. Nagaraj v. Union of India [2006 (10) TMI 420 - SUPREME COURT]. When Indra Sawhney has held that creamy layer should be excluded for purposes of Article 16(4), dealing with ’backward class’ which is much wider than ’socially and educationally backward class’ occurring in Article 15(4) and (5), it goes without saying that without the removal of creamy layer there cannot be a socially and educationally backward class. Therefore when a caste is identified as a socially and educationally backward caste, it becomes a ’socially and educationally backward class’ only when it sheds its creamy layer. Any provision for reservation is a temporary crutch. Such crutch by unnecessary prolonged use, should not become a permanent liability. It is significant that Constitution does not specifically prescribe a casteless society nor tries to abolish caste. But by barring discrimination in the name of caste and by providing for affirmative action Constitution seeks to remove the difference in status on the basis of caste. When the differences in status among castes are removed, all castes will become equal. That will be a beginning for a casteless egalitarian society. Agree that the petitions shall stand disposed of in the manner stated by the learned Chief Justice.
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