2008 Supreme(SC) 637

2008(3) Supreme 331
SUPREME COURT OF INDIA
Dalveer Bhandari, J.
Ashoka Kumar Thakur — Petitioner
versus
Union of India & Others — Respondents
Writ Petition (civil) 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.
Decided on : 10-04-2008

IMPORTANT POINT
Article 21A must be implemented completely to provide compulsory school education.
27% is the upper limit for OBC reservation. The Government need not always provide the maximum limit.

Headnote:(a) Constitution of India – 93rd Amendment and the Central Educational Institutions (Reservation in Admission) Bill, 2006 (passed as Act 5 of 2007) – Our constitutional goal is to establish a casteless and classless Society – If impugned legislation is permit ted to be implemented, instead of a casteless and classless India, we would be left with a caste-ridden society. (Paras 4 and 8)

        (b) Constitution of India – 93rd Amendment – Validity of the amendment has to be examined in the background of the Preamble and the ultimate goal that runs through the pages of the Constitution – The Constitution Framers had set a casteless society as Constitutional goal – However the caste based reservation in the First amendment was accepted as a necessary evil and therefore was limited to ten years – Extending this time limit has only exacerbated casteism deferring the Constitutional goal – The need for caste-based reservation has “worn out” over time. (Paras 5, 195, 196 and 198)

        (1960) 1 SCR 426; (1976) 2 SCC 310; 1992 Supp (3) SCC 217; (1981) 1 SCC 246; (1963) Supp (1) SCR 439 – Relied upon.

        (c) Constitution of India –Creamy layer – The principle of creamy layer emanates from the broad doctrine of equality itself. (Para 6)

        (d) Constitution of India – Article 21A – 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 – Union of India directed 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. (Paras 9 and 10)

        (e) Central Educational Institutions (Reservation in Admission) Bill, 2006 (passed as Act 5 of 2007) – 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. (Para 11)

        (f) Reservation in Educational Institutions – OBC – Creamy layer – It cannot be seriously disputed that most of the college-going OBCs belong to the creamy layer for whom reservations are unnecessary – As a result 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? (Para 14)

        (g) Administrative Law – 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. (Para 14)

        (h) Reservation – OBC – Creamy layer – Reservation is given to backward classes until they cease to be backward, and not indefinitely – 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 - Therefore failing to remove the creamy layer and thereby treating creamy layer OBCs and non-creamy layer OBCs as equals amounts to treating two unequals as equals – Not even the Parliament, by constitutional amendment, could dismantle the basic structure of the Constitution by including the creamy layer in reservation. (Paras 22, 23, 25)

        (1976) 2 SCC 310; 1992 Supp (3) SCC 217; (2000) 1 SCC 168 – Relied upon.

        (i) Constitution f India – Articles 14, 15 and 16 – To lump the creamy and non-creamy OBC 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. (Para 28)

        (2006) 8 SCC 212 – Relied upon.

        (j) Constitution of India – Articles 15(4) and 15(5) – 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) – Further, The creamy layer’s inclusion takes from the poor and gives to the rich – The Oversight Committee also unequivocally recommended that creamy layer must be excluded. (Paras 32, 36 and 43)

        1985(Supp) SCC 714; (1995) 5 SCC 403; (2007) 4 SCC 1; (1981) 1 SCC 246 – Relied upon.

        (k) Constitution of India – Article 15(5) – Article 15(5) dupes those who actually need preferential treatment – The Amendment and the Act serve one purpose, that is, to 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 – This violates the Article 14 right to equality. (Paras 44 and 45)

        (l) Constitution of India – Article 15(5) – The provision does not expressly include creamy layer – It is 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 – Creamy layer excluded. (Para 53)

        AIR 1957 SC 628 – Relied upon.

        (m) Reservation – Criterion for identifying creamy layer restated – Should be revised periodically. (Paras 54 and 56)

        (n) Constitution of India – Article 21A – When the mandatory obligation of providing lower education to children could not still be implemented completely, spending on higher at the expense of lower education raises the specter of conflict with Article 21A. (Para 58)

        (1993)1 SCC 645; (1980)1 SCC 98 – Relied upon.

        (o) Constitution of India – Article 21A r/w Article 51A(k) – A combined reading 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. (Para 91)

        (1997) 10 SCC 549; (1996) 6 SCC 756 – Relied upon.

        (p) Constitution of India – Article 21A – The recommendations made by the Court for 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. (Para 120)

        (q) Constitution of India – Article 21A – Spending is an area in which the judiciary must not overstep its constitutional mandate – The power of the purse, found in Part V, Chapter II of the Constitution, is dedicated to the Parliament – Nevertheless, it remains within the judiciary’s scope to ensure that the fundamental right under Article 21A of Part III is upheld – Measures suggested for implementing compulsory education as mandated by Article 21A. (Paras 122 and 127)

        (1998) 6 SCC 63 – Relied upon.

        (r) Constitution of India – 93rd Amendment – 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 – The 93rd Amendment’s reference to unaided institutions held ultra vires. (Para 132)

        (1980) 3 SCC 625 – Relied upon.

        (s) Interpretation of Constitution – Amendments by their very nature are often enabling provisions – However, if they clear the way for future legislation that would in fact violate the basic structure of the Constitution – The Court in that case need not wait for a potential violation to become an actual one – It can strike the entire amendment ab initio. (Para 134)

        (1980) 3 SCC 625; (2007) 2 SCC 1 – Relied upon.

        (t) Constitution of India – Article 15(5) – Validity – Article 15(5) expressly precludes the application of Article 19(1)(g) – Whenever reservations are implemented under Article 15(5), citizens are stripped of their fundamental rights under Article 19(1)(g) – By excluding Article 19(1)(g), Article 15(5) obviously affects Article 19(1)(g), a facet of the basic structure of the Constitution – However an abundance of caution ought to be taken before employing the basic structure doctrine. (Paras 140 and 150)

        1992 Supp (2) SCC 651 – Relied upon.

        (u) Constitution of India – Articles 14, 19 and 21 – These three Articles form the basic structure of our Constitution and are known as the golden triangle – Without this triangle democracy is impossible – However it is not that the basic postulates of the Constitution cannot, in any circumstances, be limited – The fundamental rights guaranteed under Articles 14 and 16 have been limited and therefore Article 19(1)(g) can be too. (Paras 141 and 164)

        (1980) 3 SCC 625; [1954] SCR 587; 1975 Supp SCC 1; (1981) 2 SCC 362 – Relied upon.

        (v) Interpretation of Constitution – When judicial review is barred, democracy evaporates – When Fundamental Rights are at stake, they must be harmonized with, not made subject to, the Directive Principles. (Para 147)

        (1987) 1 SCC 362; (1997) 3 SCC 261 – Relied upon.

        (w) Constitution of India – Article 19(1)(g) – Education falls within the meaning of “occupation” under 19(1)(g). (Para 154)

        (2005) 6 SCC 537; (2002) 8 SCC 481 – Relied upon.

        (x) Constitution of India – Article 15(5) – Regulations that strike at the core of autonomy are unreasonable – For example, prescribing minimum qualifications for teachers is a reasonable regulation; actually selecting the teachers is not. (Para 159)

        (1992) 1 SCC 558 – Relied upon.

        (y) Constitution of India – Article 386 – Amendments – Well established that the Parliament, expressing the will of the people, may enact amendments to overrule a judgment of the Supreme Court – Nevertheless, the content of a right is defined by the Courts. (Para 166)

        1992 Supp (3) SCC 217; 1975 Supp SCC 1; (2006) 8 SCC 212; ; (1980) 3 SCC 625; (1997) 3 SCC 261; (1987) 1 SCC 362; (2007) 2 SCC 1; (1973) 4 SCC 225; AIR 1951 SC 226; (1996) 6 SCC 580; (1996) 2 SCC 715: 1996(2) SUPREME 436; (1995) 6 SCC 684 – Referred.

        (z) Constitution of India – Article 15(5) – Validity – Individual liberty and freedom, as protected by the Golden Triangle, must carry greater weight for those who set off on their own and refuse Government money – Total deprivation of fundamental rights, even in a limited area, can amount to abrogation of fundamental right just as a partial deprivation in every area can – Given the dramatic effect that reservations would have on educators, the unaided institutions in which they teach and, consequently, society as a whole, Article 19(1)(g) has been more than abridged – When education is effectively nationalized, freedom stands obliterated – Therefore the amendment as applicable to unaided institutions severed as ultra vires of the Constitution. (Paras 167, 168 and 177)

        (1980) 3 SCC 625 – Relied upon.

        (aa) Constitution of India – Article 15(5) – Effect – In order to maintain high standards of education in unaided institutions, Government urged to set OBC cut off marks no lower than 10 marks below that of the general category – However this is only a recommendation. (Paras 174, 277 and 278)

        (ab) Interpretation of Constitution – Severability – Principle of severability is applicable even when Act’s invalidity arises by reason of its contravention of constitutional limitations – Had the Parliament known that unaided institutions were going to be severed, it would have nevertheless carried out its reservation scheme for aided institutions. (Para 182)

        AIR 1957 SC 628; (1951) SCR 682; (1924) 264 US 286; (1953) SCR 1069 – Relied upon.

        (ac) Constitution of India – Article 15(5) – The amendment ex facie discriminates against general category students who also deserve Article 14 right to formal equality – Nevertheless, the impugned legislation passes the careful scrutiny in terms of Sawhney I – However, its implementation is contingent upon the directions given. (Para 194)

       438 U.S. 265; 539 U. S. 306, 338 (2003); 539 U.S. 244, 270; 168 Lawyers Ed. 2d 508 & 517 (2007); 500 U.S. 352 (1991); 426 U.S. 229, 239 (1976) – Referred

        (ad) Constitution of India – Articles 25, 26, 27 and 51A(3) – Secularism is a constitutional goal and a basic feature of the Constitution – Any step inconsistent with this constitutional policy is unconstitutional – Caste being a by-product of religion, any discrimination or preference on the basis of caste would be against the Constitutional policy of secularism. (Para 250)

        (1994) 3 SCC 1 – Relied upon.

        (ae) Constitution of India – Articles 15(4) and 15(5) – Interpretation – Well settled that if the Court cannot harmonize the two provisions, it must invalidate the one that completely destroys the other’s purpose – However the purposes of these two provisions do not necessarily conflict; 15(5) was enacted later in time and it is specific – Article 15(5) refers to special provisions that relate to admission in educational institutions, whereas 15(4) makes no such reference to the type of entity at which special provisions are to be enjoyed – Therefore Article 15(5) must neutralize 15(4) in regard to reservation in education. (Paras 253, 255 and 256)

        (1977) 1 SCC 750; AIR 1961 SC 1170 – Relied upon.

        (af) Constitution of India – Article 15(5) – In view of the settled position of Articles 29(2) and 30(1) and the overriding constitutional goal of realizing a casteless society, subjecting minority institutions to reservation in the garb of Article 14 would be a step in wrong direction. (Para 257)

        (1975) 1 SCR 173; 2003(6) Supreme 303: (2003)6 SCC 697: AIR 2003 SC 3724 – Referred.

        (ag) Constitution of India – Article 15(5) – One is educationally backward until he has graduated from a university – Once he has, he shall no longer enjoy the benefits of reservation because then he is deemed educationally forward. (Para 273)

       Facts of the case:

        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.

        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?

       Findings of the Court :

        Article 21A must be implemented completely. 93rd Constitution amendment violates the basic structure of the Constitution.

       Result : Writs disposed of with observations and directions.