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Ashok Kumar Thakur Versus Union of India & Ors

2008 (4) TMI 775 - SUPREME COURT

WRIT PETITION(C) NO.265 OF 2006 WITH Writ Petition (C) No.269/2006, 598/2006, 29/2007, 35/2007, 53/2007, 33/2007, No.313/2007, 335/2007, 231/2007, 425/2007, No.428/2007, Contempt Petition (C) No.112/2007 - Dated:- 10-4-2008 - R. V. Raveendran, J. 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 Amendmen .....

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jecting the challenge to Article 15(5) on the ground that it renders Article 15(4) inoperative/ineffective . B. Validity of Central Educational Institutions (Reservation in Admissions) Act, 2006 Act No.5 of 2007: I agree with the learned Chief Justice and Pasayat J. that (i) identification of other backward classes solely on the basis of caste will be unconstitutional; (ii) failure to exclude the creamy layer from the benefits of reservation would render the reservation for other backward classe .....

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Act is not invalid merely because no time limit is prescribed for caste based reservation, but preferably there should be a review after ten years to take note of the change of circumstances. A genuine measure of reservation may not be open to challenge when made. But during a period of time, if the reservation is continued in spite of achieving the object of reservation, the law which was valid when made, may become invalid. (C). What should be parameters for determining the creamy layer in re .....

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n 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. 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 .....

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d, 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 out of State funds or dedicated to the use of the general public. Clauses (3) to (5) enable the S .....

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ing 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. 4. Section 3 of Act 5 of 2007 mandates reservation of seats in central educational institutions for other backward classes to an extent of 27%. The term other backward classes is defined as meaning the class or classes of citizens who are socially and economically backward, and are so d .....

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ral Government has however indicated that it intends to proceed on the basis that castes which have already been identified for the benefit of reservations under Article 16(4) by the Mandal Commission with the additions thereto made by the National Commission for Backward Classes, from time to time, will be considered, for the present, to constitute the socially and educationally backward classes for the purpose of availing the benefit of 27% reservation under the Act. This again is challenged b .....

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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 a .....

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), 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. 6. It is submitted on behalf of the petitioners that the object of the Constitution is to achieve an egalitarian society and any attempt to divide the citizens or the society on the ground of race, religion or caste should be straightaway rejected. It is further submitted that the Constitution nowher .....

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bars discrimination in admissions to educational institutions on ground only of caste, it is surprising that caste is sought to be made the criterion by the State for purposes of making a special provision for socially and educationally backward classes in regard to such admissions. It is submitted that there cannot be any special provision for any group of citizens merely on the ground that they belong to a particular caste or community (except Scheduled Castes and Tribes who are separately me .....

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and educational backwardness. All these decisions have laid down the principle that caste cannot be made the sole or dominant test to determine backwardness, and any classification determining backwardness only with reference to caste will be invalid. These decisions recognized the fact that caste is not equated to class and all backwardness, either social or educational, is ultimately and primarily due to poverty or economic conditions. 8. However, in Minor P.Rajendran v. State of Madras [1968 .....

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eduled 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 a .....

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e matter of backwardness, could be considered to be a socially and educationally backward class in favour of which reservation could be made on the basis of caste. Vasanth Kumar therefore, reiterated Balaji. 9. What requires to be noticed is neither Rajendran nor Periakaruppam nor Vasanth Kumar really departed from or diluted the principle laid down in Balaji. On the other hand, the principle laid down in Balaji was reiterated. Rajendran and Periakaruppam only show that in extreme cases where it .....

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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 (para 795). This Court held : "If any group of class is situated similarly to the Scheduled Cast .....

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opulation 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 : & .....

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and along with, other occupational groups, classes and sections of people. The Court however made it clear that a caste can be the starting point for determining a backward class of citizens as it represents an existing, identifiable social group/class; and that if a caste should be designated as a backward class then the creamy layer from such caste should be excluded. This Court observed : "In a backward class under clause (4) of Article 16, if the connecting link is the social backwardne .....

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truly backward class and would more appropriately serve the purpose and object of clause (4)" 12. It is thus seen that Indra Sawhney certainly went a step further than Balaji and other cases in holding that a caste can be the starting point for determination of backwardness. But it is clear from the decision that caste itself is not the final destination, that is, a caste by itself, cannot be determinative of social and educational backwardness. A caste can be identified to be socially and .....

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ass which can be termed as socially and educationally backward class at all. Thus, while the process of identifying socially and educationally backward class can conveniently start with a socially and educationally backward caste, remove the creamy layer therefrom results in the emergence of compact class which can be termed as a socially and educationally backward class. In this sense, it can be said that Indra Sawhney is only a development of the principles laid down in Balaji, R.Chitralekha a .....

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ould 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 oc .....

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