TMI Blog2008 (4) TMI 775X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Artic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatus 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. - R. V. Raveendran J. For the Appellant : V. G. Pragasam (Dead / Retired / Elevated) For the Respondent : Kailash Chand (Dead / Retired / Elevated) , B. S. Banthia (Dead / Retired / Elevated) , Shrish Kumar Misra (Dead / Retired / Elevated) , Sushma Suri, G. Prakash And Sushil Kumar Jain JUDGMENT R. V. Raveendran J. It has been my privilege to read the drafts of the Judgments proposed by the learned Chief Justice, learned brothers Pasayat J. and Bhandari J. I respectfully agree with them as indicated below : A. Validity of 93rd Amendment to the Constitution of India. I agree with the learned Chief Justice and Pasayat, J. that clause (5) of Article 15 is valid with reference to state maintained educational institutions and aided educational institutions; and that the question whether Article 15(5) would be unconstitutional on the ground that it violates the basic structure o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riate case. 2. Let me now briefly add a few words on two of the questions. Whether Article 15(5) renders Article 15(4) ineffective? 3. 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 - 1976 (2) SCC 310, K.C. Vasanth Kumar v. State of Karnataka - 1985 Supp. SCC 714 and Indra Sawhney v. Union of India - 1992 Supp. (3) SCC 217). Clauses (1) and (2) of Article 15 bar discrimination. Clause (1) contains a prohibition that State shall not discriminate against any citizen on grounds only on religion, caste, creed, sex or birth. Clause (2) declares that no citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them be subject to any disability, liability, restriction or condition with regard to access to shops, public restaurants, hotels and places of public entertainment, or the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses in Article 16(4) is much wider than socially and educationally backward classes of citizens occurring in clauses (4) and (5) of Article 15. 5. 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. Article 29(2) provides that no citizen shall be denied admission into any educational institution managed by the State or receiving aid out of State funds, on grounds only of religion, race, caste, language or any of them. On the other hand, clause (5) of Article 15 provides that notwithstanding anything contained in that Article or in Article 19(1)(g), State may make a special provision for advancement of socially and educationally backward class of citizens or for Scheduled Castes and Scheduled Tribes by providing for reservation relating to admission in any educational institution either aided or unaided by the State, other than the minority educational institutions referred to in Article 30(1). It is submitted that as clause (5) of Article 15 does not override or e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al, is ultimately and primarily due to poverty or economic conditions. 8. However, in Minor P.Rajendran v. State of Madras [1968 (2) SCR 786], it was held that if a caste, as a whole, is socially and educationally backward then reservation can be made in favour of such a caste on the ground that it is a socially and educationally backward class within the meaning of Article 15(4). The decision followed Balaji and therefore proceeded on the basis that where the extent of social and educational backwardness of the caste in question is virtually the same as the social and educational backwardness of Scheduled Castes and Scheduled Tribes, reservation can be made on the basis of caste itself. In that case, it was found as a question of fact that members of certain castes as a whole, were socially and educationally backward, and therefore it was held that the reservation the basis of caste was permissible in respect of those castes. In A.Periakaruppan v. Sobha Joseph [1971 (1) SCC 38], this Court referred to the cases starting from Balaji to Rajendran. It reiterated the principle stated in Rajendran that if a caste as a whole is socially and educationally backward, reservation can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... general level of advancement of the entire population of the country or the State, as the case may be. More than this, it is difficult to say. In the context of Article 16(4) this Court also observed that a caste can be and quite often is a social class in India and if it is backward socially, it would be a backward class for the purposes of Article 16(4). It held that the accent in Article 16(4) is on social backwardness, whereas the accent in Article 15(4) is on social and educational backwardness . Ultimately, this Court held : Neither the Constitution nor the law prescribes the procedure or method of identification of backward classes. Nor is it possible or advisable for the court to lay down any such procedure or method. It must be left to the authority appointed to identify. It can adopt such method/procedure as it thinks convenient and so long as its survey covers the entire populace, no objection can be taken to it. Identification of the backward classes can certainly be done with reference to castes among, and along with, other occupational groups, classes and sections of people. 11. The Court however made it clear that a caste can be the starting point for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... advanced section of a backward caste constituting the creamy layer is virtually the same as forward class. If the creamy layer is not excluded the benefit of reservation will be appropriated by such advanced sections. Referring to this aspect, Indra Sawhney (supra) stated : To continue to confer upon such advanced sections, special benefits, would amount to treating equals unequally. Secondly, to rank them with the rest of the backward classes would amount to treating the unequals equally. The need for exclusion of creamy layer is reiterated in the subsequent decisions of this Court in Ashoka Kumar Thakur v. State of Bihar 1995 (5) SCC 403, Indra Sawhney v. Union of India (II) 1996 (6) SCC 506, M.Nagaraj v. Union of India 2006 (8) SCC 212. 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, i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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