# (2008] 4 S.C.R. 1 , ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS

- **Citation:** [2008] 4 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 2008-04-10
- **Bench:** K.G. Balakrishnan, Dr .. Arijit Pasayat; C.K. Thakker, R.V. Raveendran, Dalveer Bhandari
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/2008-4-s-c-r-1-ashoka-kumar-thakur-v-union-of-india-ors-24781
- **Pages:** 470

## Headnote

A
.B
. Constitution (Ninety Third Amendment) Act, 20051 c
Central Educational Institutions (Reservation in ·Admission) ..
Act, 2005 (Act 5 of 2007):
Whether violative ol the "basic· structure" of the
Constitution in. so far as it relates fo the state maintained
, · institutions and aided educational institutions - Held not D
violative - However, in so far as "private unaided" educational
institutions are concerned, the question left open to .be decided
.. in appropriate case.
Constitutional validity in view of definition of "backwaid E
·class" - Whether identification of such "backward class" based
on "caste" is constitutionally valid - ·Held; Valid.
Constitutional validity of since the Amending Act does
not prescribe any time limit for its operation and no periodical
review is contemplated - Held, valid, but a periodical review F
can qe made at the end of every ~ years . .
· . · Whether the quantum of reservation provided in the Act .
is valid and whether 27% of seats for SEBC was· required to
be made - Held valid - Parliament must be deemed to have
. taken into consideration all relevant circumstances while fixing G
the 27% reservation.
Articles 15( 4) and 15(5) - Held not mutually contradictory.
..
Articles 14 and 15(5) - Exclusion ofminority educational
1
H
2
SUPREME COURT REPORTS
[2008] 4 S.C.R.
A institutions from Article 15(5) - Not violative of Article 14.
Article 15 and s.2(g) of the Act 5 of 2007 - Creamy layer
- Creamy fayer is to be excluded from SEBS - Parameters
for determining the "creamy layer' group - Applicability of the
0. M. dated 8. 9. 1993 - Applicability of "creamy layer principle"
B to SC/ST - Held not applicable.
Article 15(5) -
Principles of reservation or other
affirmative action -Applicability of principles laid down by U.S.
Supreme Court - Held not applicable.
C
Other Backward Classes- Determination of- Delegation
of power to Union Government - Held, constitutionally valid.
Educationally backward class - Prescribing benchmark
of matriculation or 10+2 rejected.
D
Articles 162 and 368 - Constitution 93rd Amendment
E
dof)s not affect the executive power of the State - Hence
procedure prescribed under proviso to Article 368(2) not
required to be followed.
Words & Phrases:
"Basic structure of the constitution", "backward class",
"caste", "creamy layer",
"su~pect legislation", "strict scrutiny",
"compelling state necessity" - Meaning of.
The validity of the Constitution (Ninety Third)
F Amendment Act, 2005 was challenged in the Writ Petitions
before the Constitution Bench on being referred to it by a
Division Bench, on various grounds.
On the basis of the diverse contentions raised, the
G following questions were formulated:
H
1. Whether the Ninety~Third Amendment of the
Constitution is against the " basic structure" of the
Constitution?
2. Whether Articles 15(4) and 15(5) are mutually
'
I
ASHOKA KUMAR THAKUR v. UNION OF !NOIA & ORS.
3
contradictory, hence Article 15(5) is to be held ultra vires? A
3. Whether exclusion of minority educational
institutions from Article 15(5) is violative of Article 14 of
Constitution?
4. Whether the Constitutional Amendment followed
B
the procedure prescribed under Article 368 of the
Constitution?
5. Whether the Act 5 of 2007 is constitutionally invalid
in view of definition of "Backward Class" and whether
the identification of such "Backward Class" based on c
"caste" is constitutionally valid?
6. Whether "Creamy Layer" is to be excluded from
SEBCs?
7. What should be the para-meters for determining D
the "creamy _layer" group?
8. Whether the "creamy layer" principle is applicable
to Scheduled Tribes and Scheduled Castes?
9. Whether the principles laid down by the United E
States Supreme Court for affirmative action such as
"suspect legislation", "strict scrutiny" and "compelling
State necessity" are applicable to principles of reservation
or other affirmative· action contemplated under Article
15(5) of the Constitution?
F
r
10. Whether delegation of power to the Union
Go

## Text

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..
(2008] 4 S.C.R. 1
, ASHOKA KUMAR THAKUR
v.
UNION OF INDIA & ORS ..
(Writ Petition (Civil) No. 265 of 2006)
. APRIL 10, 2008 ·
(K.G. BALAKRISHNAN, C.J. AND DR .. ARIJIT PASAYAT;
C.K. THAKKER, R.V. RAVEENDRAN & DALVEER
BHANDARI, JJ,)
A
.B
. Constitution (Ninety Third Amendment) Act, 20051 c
Central Educational Institutions (Reservation in ·Admission) ..
Act, 2005 (Act 5 of 2007):
Whether violative ol the "basic· structure" of the
Constitution in. so far as it relates fo the state maintained
, · institutions and aided educational institutions - Held not D
violative - However, in so far as "private unaided" educational
institutions are concerned, the question left open to .be decided
.. in appropriate case.
Constitutional validity in view of definition of "backwaid E
·class" - Whether identification of such "backward class" based
on "caste" is constitutionally valid - ·Held; Valid.
Constitutional validity of since the Amending Act does
not prescribe any time limit for its operation and no periodical
review is contemplated - Held, valid, but a periodical review F
can qe made at the end of every ~ years . .
· . · Whether the quantum of reservation provided in the Act .
is valid and whether 27% of seats for SEBC was· required to
be made - Held valid - Parliament must be deemed to have
. taken into consideration all relevant circumstances while fixing G
the 27% reservation.
Articles 15( 4) and 15(5) - Held not mutually contradictory.
..
Articles 14 and 15(5) - Exclusion ofminority educational
1
H
2
SUPREME COURT REPORTS
[2008] 4 S.C.R.
A institutions from Article 15(5) - Not violative of Article 14.
Article 15 and s.2(g) of the Act 5 of 2007 - Creamy layer
- Creamy fayer is to be excluded from SEBS - Parameters
for determining the "creamy layer' group - Applicability of the
0. M. dated 8. 9. 1993 - Applicability of "creamy layer principle"
B to SC/ST - Held not applicable.
Article 15(5) -
Principles of reservation or other
affirmative action -Applicability of principles laid down by U.S.
Supreme Court - Held not applicable.
C
Other Backward Classes- Determination of- Delegation
of power to Union Government - Held, constitutionally valid.
Educationally backward class - Prescribing benchmark
of matriculation or 10+2 rejected.
D
Articles 162 and 368 - Constitution 93rd Amendment
E
dof)s not affect the executive power of the State - Hence
procedure prescribed under proviso to Article 368(2) not
required to be followed.
Words & Phrases:
"Basic structure of the constitution", "backward class",
"caste", "creamy layer",
"su~pect legislation", "strict scrutiny",
"compelling state necessity" - Meaning of.
The validity of the Constitution (Ninety Third)
F Amendment Act, 2005 was challenged in the Writ Petitions
before the Constitution Bench on being referred to it by a
Division Bench, on various grounds.
On the basis of the diverse contentions raised, the
G following questions were formulated:
H
1. Whether the Ninety~Third Amendment of the
Constitution is against the " basic structure" of the
Constitution?
2. Whether Articles 15(4) and 15(5) are mutually
'
I
ASHOKA KUMAR THAKUR v. UNION OF !NOIA & ORS.
3
contradictory, hence Article 15(5) is to be held ultra vires? A
3. Whether exclusion of minority educational
institutions from Article 15(5) is violative of Article 14 of
Constitution?
4. Whether the Constitutional Amendment followed
B
the procedure prescribed under Article 368 of the
Constitution?
5. Whether the Act 5 of 2007 is constitutionally invalid
in view of definition of "Backward Class" and whether
the identification of such "Backward Class" based on c
"caste" is constitutionally valid?
6. Whether "Creamy Layer" is to be excluded from
SEBCs?
7. What should be the para-meters for determining D
the "creamy _layer" group?
8. Whether the "creamy layer" principle is applicable
to Scheduled Tribes and Scheduled Castes?
9. Whether the principles laid down by the United E
States Supreme Court for affirmative action such as
"suspect legislation", "strict scrutiny" and "compelling
State necessity" are applicable to principles of reservation
or other affirmative· action contemplated under Article
15(5) of the Constitution?
F
r
10. Whether delegation of power to the Union
Government to determine as to who shall be the backward
class is constitutionally valid?
11. Whether the Act is invalid as there is no time limit
prescribed for its operation and. no periodical review is G
contemplated?
12. What shall be the educational standard to be
prescribed to find out whether any class is educationally
backward?
H
4
SUPREME COURT REPORTS
[2008} 4 S.C.R.
A
13. Whether the quantum of reser'Vation provided for
in the Act is valid and whether 27% of seats for SEBC
was required to be reserved?
Disposing of the petitions, the Court
B
HELD: By the Court: 1.1 The Constitution 93rd
Amendment Act, 20051 is valid and does not violate the
"basic structure
11 of the Constitution so far as it relates to
the· State maintained institutions and aided educational
institutions. Question whether the Constitution (Ninety
C Third Amendment) Act, 2005 would be constitutionally
valid or not so far as "private unaided" educational
institutions is concerned, is not considered and left open
to be decided in an appropriate case. [Para 1] [469-D-E]
1.2 Bhandari, J. in his opinion! has, however,
o considered the issue and has held that the Constitution
(Ninety Third Amendment) Act, 2005 is not constitutionally
v~lid sofar as private un-aided educational institutions are
concerned. [Para 1] [469-E-F]
2.1 Act 5 of 2007 is constitutionally valid subject to
E the definition of 'Other Backward Classes' in Section 2(g)
of the Act 5 of 2007 being clarified as follows : If the
determination of 'Other Backward Classes' by the Central
Government is with reference to a .caste, it shall exclude
the 'creamy layer' among such caste. [Para 2] [469-F-H;
F 41'0-A]
2.2 Quantum of reservation of 27% of seats to Other
Backward Classes in the educational institutions provided
In the Act is not illegal. [Para 2] [470-A]
G
2.3 Act 5 of 2007 is not invalid for the reason that
there is no time limit prescribed for its operation but
majority of the Judges are of the view that the Review
should be made as to the need for continuance of
reservation at the end of 5 ye~rs. [Para 2] (470-B]
H
Per K.G. Balakrishnan, CJ:
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS.
5
1.1 For determining whether a particular feature of A
the Constitution is part of the basic structure or not, it has .
. ·to be examined in each individual case keeping in mind ·
the scheme of the Constitution, its objects and purpose
and the integrity of the Constitution as a fundamental
instrument for the country's governance. It may be noticed B
that it is not open to challenge the ordinary legislations
on the basis of the basic structure principle. State
· legislation can be challenged on the question whether it
is violative of the provisions of the Constitution. But as
regards constitutional amendments, if any cha·11enge is c
made on the basis of basic structure, it has to be
. examined based on the basic features of the Constitution.
It may be noticed that the majority in Kesavananda Bharati's
case did not hold that all facets of Article 14 or any of the
fundamental rights would form part of the basic structure 0
of the Constitution. The majority upheld the validity of the
first part of Article 30(1)(c) which would show that the
.constitutional amendment which takes away or abridges
the right to challenge the validity of an arbitrary law or
violating a fundamental right under that Article would not
destroy or damage the basic structure. Equality is a multiE
coloured concept incapable of a single definition as is also
the fundamental right under Article 19(1 )(g). The principle
of equality is a delicate, vulnerable a-nd supremely
. precious concept for our society. It is t~ue that it has
embraced a critical and essential · component of F
constitutional identity. The larger principles of equality as ·
stated in Article 14, 15 and 16 may be understood as an
element of the "basic structure" of the Constitution and
may not be subject to amendment, although, these
provisions, intended to configure these rights In a G
particular way, may be changed within the constraints of .
. the broader principle. The variability of changing
conditions may necessitate the modifications in the
structure and design of these rights, but the transient
characters of formal arrangements. must reflect the larger H
6
SUPREME COURT REPORTS
[2008] 4 S.C.R.
A purpose and principles that are the continuous and
unalterable thread of constitutional identity. It is not the
introduction of significant and far-reaching change that
is objectionable, rather it is the content of this change in
so far as it implicates the question of constitutional
B identity. [Para 93] [120-E-H; 121-A-E]
1.2 If any Constitutional amendment is made which
moderately abridges or alters the equality principle or the
principles under Article 19(1 )(g), it cannot be said that it
violates the basic structure of the Constitution. If such a
C principle is accepted, our Constitution would not be able
to adapt itself to the changing conditions of a dynamic
human society. Therefore, the plea raised that the present
Constitutional Ninety-Third Amendment Act, 2005 alters
the basic structure of the constitution is of no force.
D Moreover, the interpretation of the Constitution shall not
be in a narrow pedantic way. [Para 95] [122-D, E, F]
1.3 It has been held in many decisions that when a
constitutional provision is interpreted, the cardinal rule is
to look to the Preamble to the Constitution as the guiding
E star and the Directive Principles of State Policy as the
'Book of Interpretation'. The Preamble embodies the
hopes and aspirations of the people and Directive
Principles set out the proximate grounds in the
F
governance of this country. [Para 96] [123-8, C]
1.4 The Ninety-Third Amendment to the Constitution
does not violate the "basic structure" of the Constitution
so far as it relates to aided educational institutions.
Question whether reservation could be made for SCs, STs
G or SEBCs in private unaided educational institutions on
the basis of the Ninety-Third Constitutional Amendment;
or whether reservation could be given in such
institutions; or whether any such legislation would be
violative of Article 19(1)(g) or Article 14 of the Constitution;
or whether the Ninety-Third Constitutional Amendment
H
'
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS.
7
which enables the State Legislatures or Parliament to A
). .
make sach legislation - are all questions to be decided in
a properly constituted /is between the affected parties and
others who support such legislation. [Para 97] [123-C-F]
His Holiness Kesavananda Bharati Sripadagalvaru Vs. B
State of Kera/a (1973) Supp. SCR 1 = (1973) 4 SCC 225 RE :
The Berubari Union and Exchange of Enclaves, Reference
under Article 143(1) of the Constitution of India (1960) 3 SCR
-1
250 and Smt. Indra Gandhi Vs. Raj Narain (1976) 2 SCR 347:
AIR 1975 SC 2299 - relied on.
c
I. C. Golak Nath & Ors. Vs. State of Punjab & Anrs (1967)
2 SCR 762 - referred to.
2.1 Both Article 15(4) and 15(5) are enabling
provisions. Article 15(4) was introduced when the
"Communal G.O." in the State of Madras was struck down D
by this Court in Champakam Dorairajan's case. In Unni
Krishnan, this Court held that Article 19(1 )(g) is not
attracted for establishing and running educational
institutions. However, in TM.A. Pai Foundation case, it was
held that the right to establish and running educational E
institutions is an occupation within the meaning of Article
19(1 )(g). The scope of the decision in T. M.A. Pai
Foundation's case was later explained in PA. lnamdar's
case. It was held that as regards unaided institutions,
the State has no control and such institutions are free F
,.
to admit students of their own choice. The said decision
necessitated the enactment of the Constitution NinetyThird Amendment Act, 2005. [Para 100] [124-G, H;
125-A, B]
2.2 Both Article 15(4) and 15(5) operate in different G
areas. The "nothing in this Article" [mentioned at the
beginning of Article 15(5)] would only mean that the
nothing in this Article which prohibit the State on grounds
which are mentioned in Article 15(1) alone be given
importance. Article 15(5) does not exclude 15(4) of the H
8
SUPREME COURT REPORTS
[2008] 4 S.C.R.
A Constitution. It is a well settled principle of constitutional
interpretation that while interpreting the provisions of
Constitution, effect shall be given to all the provisions of
the Constitution and no provision shall be interpreted in
a manner as to make any other provision in the
B Constitution inoperative or otiose. If the intention of the
Parliament was to exclude Article 15(4), they could have
very well deleted Article 15(4) of the Constitution. Minority
institutions are also entitled to the exercise of fundamental
rights under Article 19(1 )(g) of the Constitution, whether
C they be aided or unaided. But in the case of Article 15(5),
the minority educational institutions, whether aided or
unaided, are excluded flrom the purview of Article 15(5) of
the Constitution. Both, being enabling provisions, would ·
operate in their own field and the validity of any legislation
made on the basis of Article 15(4) or 15(5) have to be
D examined on the basis of provisions contained in such
legislation or the special provision that may be made under
Article 15(4) or 15(5). It may also be noticed that no
educational institutions or any aggrieved party have
come before this Court challenging the constitutional
E amendment on these grounds. The challenge is made by
petitioners objecting to the reservations made under Act
5 of 2007. Therefore, the plea that Article 15(4) and 15(5)
are mutual~y contradictory and, therefore, Article 15(5) is
not constitutionally valid cannot be accepted. As has been
F held in N. M. Thomas case and Indra Sawhney's case, Article
15(4) and 16(4) are not exceptions to Article 15(1) and
Article 16(1) but independent enabling provision. Article
15(5) also to be taken as an enabling provision to carry
out certain constitutional mandate and thus it is
G' constitutionally valid and the contentions raised on
these grounds are rejected. [Para 100] (124-G; 125-A-H;
126-A-B]
Indra Sawhney Vs. Union of India & Ors. 1992 Supp. (3)
SCC 215 and State of Kera/a & Anr. Vs N. M. Thomas & Ors.
H 1976 (2) SCC 310 - relied on.
• ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS.
9
Unni Krishnan, J.P & Ors. Vs. State of Andhra Pradesh A
.
~
. & Ors. 1993 (1) SCC 645; T. M.A. Pai Foundation & Ors. Vs .
State of Karnataka & Ors. 2002 (8) SCC 481; The State of
Madras Vs. Srimathi Champakam Dorairajan 1951 SCR 525
and PA. lnamdar & Ors. Vs. State of Maharashtra & Ors.
(2005) 6 sec 537 - referred to.
B
3. It has been held that Article 15(4) and Article 16(4)
are not exceptions to Article 15(1) and Article 16(1)
respectively. It may also be noted that if at all there is any
violation of Article 14 or any other equality principle, the c
affected educational institution should have approached
this Court to vindicate their rights. No such petition has
been filed before this Court. Therefore, it is held that the
exclusion of minority educational institutions from Article
15(5f is not violative of Article 14 of the Constitution as
D
the minority educational institutions, by themselves, are
a separate class and their rights are protected by other
-\
constitutional provisions. [Para 102] [126-G; 127-A-B]
4. The powers of the Parliament and the State
legislatures to legislate are provided for under Article 245E
255 of the Constitution. Under the proviso to Article 162,
any matter with respect to which the legislature of the State
and. the Parliament have power to make laws, the
executive power of the State shall be subjectto and limited
by the executive power expressly conferred by the F
r
Constitution or by any law made by Parliament upon the
· Union authorities thereof. The Ninety-Third Constitutional
Amendment does not expressly or impliedly take away
any such power conferred by Article 162. It may also be
noticed that by virtue of the 42"d Amendment to the G
Constitution, "education" which was previously in Entry
No. 11 in List II was deleted and inserted in List Ill as Entry
_j
No. 25 as the field of legislation in List Ill. Article 245 will
operate and by reasons of proviso to Article 162, the
executive power of the State be subjectto, limited by, the
H
10
SUPREME COURT REPORTS
[2008] 4 S.C.R.
A executive power expresslly conferred by the Constitution
or by any law made by Parliament upon the Union
authorities thereof. Subject to restrictions imposed under
the Constitution, it has bE!en in existence. Such power of
the State is not limited cir curtailed by the Ninety-Third
B Constitutional Amendment as it does not interfere with
the power of the State under Article 162. The Ninety-Third
Constitutional Amendment does not fall within the scope
of proviso to Article 368:. Therefore, the plea that the
Ninety-Third Constitutionail Amendment did not follow the
t
c prescribed procedure of Article 368 is not correct and the
plea is only to be rejected. [Para 104] (127-E-G; 128-A-C]
5.1 "Caste" is often used interchangeably with
"class" and can be callE!d as the basic unit in social
stratification. The most characteristic thing about a caste
D group is its autonomy in caste related matters. One of the
universal codes enforced by all castes is the requirement
of endogamy. Other rules have to do with the regulations
)
pertaining to religious puriity or cleanliness. Sometimes it
restricts occupational choices as well. It is not necessary
E that these rules be enforced in particular classes as well,
and as such a "class" may be distinguished from the
broader realm of "caste" c>n these grounds. Castes were
often rated, on a purity scale, and not on a social scale.
[Para 124] [139-E-F]
F
5.2 A class always enjoys certain privileges or at least
certain advantages over others in society. When it is more
-1
or less rigorously closed, 1:>r enjoys hereditary privileges,
it is called a "caste". [Para 130] [142-B]
G
5.3 There is every reason to believe that within a
single caste group there are some classes or groups of
people to whom good fortune or perseverance has
brought more dignity, social influence and social esteem
....
than it has to others. [Para 135] (143-D-E]
H
5.4 In India, caste, in a socio-organizational manner
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS.
11
would mean that it is not characterized merely by the A
..-
physical or occupational characteristics of the individuals
who make it up; rather, it is characterized by its codes
and its close-knit social controls. In the case of classes,
however, there may not exist such close-knit unit social
controls, and there may exist great disparity in B
occupational characteristics. A social class is therefore a
homogeneous unit, from the point of view of status and
mutual recognition; whereas a caste is a homogeneous
unit from the point of view of common ancestry, religious
rites and strict organizational control. Thus the manner C
in which the caste is closed both in the organizational
and biological sense causes it to differ from social class.
Moreover, its emphasis upon ritual and regulations
pertaining to cleanliness and purity differs radically from
the secular nature and informality of social class rules. In
a social class, the exclusiveness would be based primarily D
on status. Social classes divide homogeneous
populations into layers of prestige and esteem, and the
members of each layer are able to circulate freely with it.
In a caste, however, the social distance between members
is due to the fact that they belong to entirely different E
organizations. It may be said, therefore, that a caste is
a horizontal division and a class, a vertical division.
[Paras 136, 137, 138] [143-E-H; 144-A-B]
5.5 It was pointed out that the National Commission
for the Backward Classes and the State Commission for F
Backward Classes have prepared a list based on
elaborate guidelines 'and these guidelines have been
framed after studying the criteria/indicators framed by the
. Mandal Commission and the Commissions set up in the
past by different State Governments. Various G
Commissions held public hearings at various places and
the National Commission held 236 public hearings before
.J.
it finalized the list. It is also pointed out that during the
period of its functioning, the National Commission had
recommended 297 requests for inclusion and at the same H
12
SUPREME COURT REPORTS
(2008] 4 S.C.R.
A time rejected 288 requests for inclusion of the main castes.
It is further pointed out that the Commission took into
consideration detailed data with regard to social,
educational and economic criteria. The Commission has
also looked into whether there has been any improvement
B or deterioration in the condition of the caste or community
being considered for inclusion during the past twenty
years. It is pointed out that an elaborate questionnaire was
prepared by the Commission and the answers in this
questionnaire were considered in detail for inclusion/
r •
c rejection in the list. It is clear that the lists of socially and
educationally backward classes of citizens are being
prepared not solely on the basis of the caste and if caste
and other considerations are taken into account for
determining backwardnuss, it cannot be said that it would
0
be violative of Article 15(1) of the Constitution. Thus, the
determination of SEBCs is done not solely based on caste
and hence, the identification of SEBCs is not violative of
Article 15(1) of the Constitution. [Para 140, 141, 142]
>
[144-D-H; 145-A, B]
E
Indra Sawhney Vs. Union of India & Ors. 1992 Supp. (3)
sec 21.5 - relied on.
The State of Madras Vs. Srimathi Champakam
Dorairajan 1951 SCR 52!5; R. Chitralekha & Anr. Vs. State of
Mysore & Ors. (1964) 6 SCR 368; M.R. Balaji & Others Vs.
F State of Mysore (1963) Supp. 1SCR439 =AIR 1963 SC 649;
State of .Kera/a & Anr. Vs N. M. Thomas & Ors. 1976 (2) SCC
31 O; K. C. Vasanth Kumar & Anr. Vs. State of Karnataka (1985)
Supp SCC 714; Minor A Peeriakaruppan & Anr. Vs. State of
Tamil Nadu & Ors. (1971) 1 SCC 38; Minor P Rajendran Vs.
G State of Madras & Ors.(1968) 2 SCR 786; Triloki Nath Tiku
Vs. State of J & K (I) (1967) 2 SCR 265; State ofUttar Pradesh
& Ors. Vs. Pradip Tandon & Ors. (1975) 1 SCC 267; State of
Andhra Pradesh & Anr. Vs. P Sagar (1968) 3 SCR 595 and T.
Devadasan Vs. The Union of India & Anr. (1964) 4 SCR 680 -
H referred to.
I
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS.
13
Mysore Census of 1901 G.S. Ghurye, Caste and Race A
in India (Bombay, 1979) p. 6, Quoting from Mysore Census,
1901, p. 400 - referred to.
WH.R. Rivers, Social Organization (New York, 1924)
p.143; Lowie Robert H. Lowie, The Origin of the State (New
York, 1927) p. 21; Lowie, An Introduction to Cultural B
Anthropology (New York, 1940) p. 268; Kimball Young, An
Introductory Sociology (New York, 1924); Cecil Clare North
1
Cecil Clare North, Social Differentiation (Chapel Hill, 1926)
p. 254; Maciver R.N. Maciver, Society: A textbook of
Sociology (New York 1937) p. 171. 9 and Charles Horton C
Cooley Charles Horton Cooley, Social Organization (New
York, 1909) p. 215 - referred to.
6.1 Determination of backward class cannot be
exclusively
based
on
caste.
Poverty,
social
backwardness, economic backwardness, all are criteria D
for determination of backwardness. It has been noticed
'
in Indra Sawhney's case that among the backward class, a
section of the backward class is a member of the affluent
section of society. They do not deserve any sort of
reservation for further progress in life. They are socially E
and educationally advanced enough to compete for the
general seats along with other candidates. [Para 147]
[147-D, E, F]
6.2 It is to be understood that "creamy layer" principle
~
is introduced merely to exclude a section of a particular F
caste on the ground that they are economically advanced
or educationally forward. They are excluded because
unless this segment of caste is excluded from that caste
group, there cannot be proper identification of the
backward class. If the "Creamy Layer" principle is not G
applied, it could easily be said that all the castes that have
been included among the socially and educationally
backward classes have been included exclusively on the
basis of caste. Identification of SEBC for the purpose of
either Article 15(4), 15(5) or 16(4) solely on the basis of H
14
SUPREME COURT REPORTS
[2008) 4 S.C.R.
A caste is expressly prohibited by various decisions of this
Court and it is also against Article 15(1) and Article 16(1)
of the Constitution. To fulfil the conditions and to find out
truly what. is socially and educationally backward class,
the exclusion of "creamy layer" is essential. [Para 149]
B [148·B·E]
6.3 The "creamy layer" principle is applied not as a
general principle of reservation. It is applied for the
purpose of identifying the socially and educationally
backward class. One of the main criteria for determining
c the SEBC is poverty. If that be so, the principle of exclusion
of "creamy layer" is necessary. Moreover, the majority in
Indra Sawhney's case upheld the exclusion of "creamy
layer" for the purpose of reservation in Article 16(4).
Therefore, it cannot be said that the "creamy layer"
D principle cannot be applied for identifying SEBCs.
Moreover, Articles 15(4) and 15(5) are designed to provide
opportunities in education thereby raising educational,
>
social and economical levels of those who are lagging
behind and once this progress is achieved by this section,
E any legislation passed thereunder should be deemed to
have served its purpose. By excluding those who have
already attained economic: well being or educational
advancement, the special benefits provided under these
clauses cannot be further extended to them and, if done
F so, it would be unreasonablle, discriminatory or arbitrary,
resulting in reverse discrimination. [Para 150] [148-E, F, G,
H; 151-A, B]
6.4 It cannot be said that if 'creamy layer' is excluded,
there may be practically no representation for a particular
G backward class in educational institutions because the
remaining members, namely, the non-craamy layer, may
not have risen to the level or standard necessary to qualify
to get admission even within the reserved quota. If the
creamy layer is not excluded, the identification of SEBC
H wi.11 not be complete and any SEBC without the exclusion
\
I
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS ..
15
of 'creamy layer' may not be in accordance with Article A
~
15(1) of the Constitution. [Para 152] [149-G; 150-A]
Indra Sawhney Vs. Union of India & Ors. 1992 Supp. (3)
. sec 215 - relied on.
7.1 It is made clear that same principle of determining B
the creamy layer for providing 27% reservation for
backward classes for appointment need not be strictly
followed in case of reservation envisaged under Article
15(5) of the Constitution. If a strict income restriction is
made for identifying the "creamy layer", those who are c
left in the particular caste may not be able to have a
sufficient number of candidates for getting admission in
the central institutions as per Act 5 of 2007. Government
can make a relaxation to some extent so that sufficient
number of candidates may be available for the purpose D
of filling up, the 27% reservation. It is for the Union
Government and the State Governments to issue
-\
appropriate guidelines to identify the "creamy layer" so
that SEBC are properly determined in accordance with
the guidelines given by this Court. If, even by applying E
this principle, still the candidates are not available, the
State can issue appropriate guidelines to effectuate
the implementation of the reservation purposefully.
[Para 154) (160-D-G; 161-A]
7.2 "Backward class" defined in Section 2(g) does F
t
not exclude "creamy layer". Therefore, it is made clear
that backward class as defined in Section 2(g) of Act 5 of
2007 must be deemed to have been such backward class
by applying the principle of exclusion of "creamy layer".
[Para 155) [161-A-B]
G
Indra Sawhney Vs. Union of India & Ors. 1992 Supp. (3)
sec 215 - referred to .
• ..4
8.1 In Indra Sawhney's case, it is specifically stated that
the "creamy layer" principle will not apply to STs and SCs.
H
16
SUPREME COURT REPORTS
(2008] 4 S.C.R.
A In Nagaraj's case, in paragraphs 110 and 120 and finally in
paragraphs 121, 122 and 123, it is only stated that when
considering questions of' affirmative action, the larger
principle of equality such as 50% ceiling (quantitative
limitation) and "creamy layer" (quantitative exclusion) may
B be kept in mind. In Nagaraj's case it has not been
discussed or decided that the creamy layer principle
would be applicable to SCs/STs. Therefore, it cannot
be said that the observations made in Nagaraj's case
are contrary to the decision in Indra Sawhney's case. [Para
c 159] [162-E-G; 163-A]
8.2 Moreover, the "creamy layer" principle is not yet.
applied as a principle of equality or as a general principle
to apply for all affirmative actions. [Para 160] [163-B]
D
8.3 So far, this Court has not applied the "creamy
layer" principle to the general principle of equality for the
purpose of reservation. The "creamy layer" so far has
been applied only to identify the backward class, as it
f
required certain paramet1~rs to determine the backward
E 'classes. "Creamy layer" principle is one of the parameters
to identify backward classes. Therefore, principally, the
''creamy layer" principle cannot be applied to STs and
$Cs, as SCs and STs are s;eparate classes b5' themselves.
"Scheduled Castes and Scheduled Tribes are not a caste
within the ordinary meaning of caste". And they are so
F identified by virtue of the Notification issued by the
President of India under Articles 341 and 342 of the
Constitution. The President may, after consultation with
the Governor, by public notification, specify the castes,
races or tribes or parts of or groups within castes, races
G or tribes which for the purpose of the Constitution shall
be deemed to be Scheduled Castes of Scheduled Tribes.
Once the Notification is Jssued, they are deemed to be
the members of Scheduled Castes or Scheduled Trtbes,
whichever is applicable. [Para 161] [163-G; 164-A-C]
H
I
I
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS.
17
8.4 Right from the beginning, the Scheduled Castes A
+-
and Scheduled Tribes were treated as a separate category
and nobody ever disputed identification of such classes.
So long as "creamy layer" is not applied as one of the
principles of equality, it cannot be applied to Scheduled
Castes and Scheduled Tribes. So far, it is applied only to B
identify the socially and educationally backward classes.
It is clarified that for the purpose of reservation, the
principles of "creamy layer" are not applicable for
Scheduled Castes and Scheduled Tribes. [Para 163]
[165-C-D]
c
Indra Sawhney Vs. Union of India & Ors. 1992 Supp. (3)
SCC 215; /.R. Coelho (Dead) by LRs. Vs. State of TN. (2007)
2 SCC 1; E. V Chinnaiah Vs. State of Andhra Pradesh & Ors.
(2005) 1 SCC 394; State of Kera/a & Anr. Vs N. M. Thomas &
Ors. 1976 (2) SCC 31 O; K. C. Vasa nth Kumar & Anr. Vs. State D
of Kamataka (1985) Supp SCC 714; M.G Badappanavar &
Anr. Vs. State of Karnataka & Ors. (2001) 2 SCC 666; Ajit
Singh & Ors. (//) vs. State of Punjab & Ors. (1999) 7 SCC 209
and Union of India & Ors. Vs. Virpal Singh Chauhan & Ors.
(1995) 6 sec 684 - referred to.
E
9.1 The decisions of the United States Supreme Court
were not applied in the Indian context as it was felt that
the structure of the provisions under the two Constitutions
and the social conditions as well as o~her factors are
widely different in both the countries. [Para 165] [165-H;
F
166-A]
9.2 There are structural differences in the Constitution
of India and the Constitution of the United States of
America. Whereas in India, Articles 14 and 18 are differently
structured and contain express provisions for special G
provision for the advancement of SEBCs, STs and SCs.
.J
Moreover, in our Constitution there is a specific provision
under the Directive Principles of State Policy in Part IV of
the Constitution requiring the State to strive for justice -
social, economic and political - and to minimize the H
18
SUPREME COURT REPORTS
[2008] 4 S.C.R.
A inequalities of income and endeavour to eliminate
inequalities in status, facilities and opportunities (Article
38). Earlier, there was a view that Articles 16(4) and 15(5)
are exceptions to Article 16(1) and 15(1) respectively.
[Paras 167, 168] [167-B, E, F]
B
9.3 From the constitutional history of India, it can be
seen that from the point of view of importance and
significance, no distinction can be made between the two
sets of rights, namely, Fundamental Rights which are
made justiciable and the Directives Principles which are
C made non-justiciable. The Directive Principles of State
Policy are made non-justiciable for the reason that the
implementation of many of these rights would depend on
the financial capability of the State. Non-justiciable clause
WCJS provided for the reason that an infant State shall not
D be made accountable immediately for not fulfilling these
obligations. Merely because the Directive Principles are
non-justiciable by the judicial process does not mean that
they are of subordinate importance. [Para 173] [170-A-C]
9.4 The 14th Amendment to the Constitution of the
E United States of America and Title VI of the 1964 Civil
Rights Act, prohibit universities to discriminate on the
basis of classifications such as race, colour, national
origin and the like in all their operations. In a number of
decisions of the United States Supreme Court spanning
F decades of jurisprudence, a heavy burden has been
placed on institutions whose affirmative action
programmes are challenged before the United States
St,1preme Court on grounds that have been recognized
as suspect or unconstitutional. According to the United
G States Supreme Court, all such programmes are
inherently suspect since they rely on suspect forms of
classification (such as race). Therefore, because such
forms of classification are inherently suspect, the courts
have subjected all affirmative action programmes relying
H on them to a very high standard of scrutiny, wherein
\
I
f
;
I
I
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS.
19
those practicing these affirmative action programmes A
-+
have to adhere to a very high standard of proof, which
we know as the "strict scrutiny" test. [Para 176] [172-G;
173-A-D]
· 9.5 All efforts aimed at remedying past injustices
against certain identified groups of people, who were B
unlawfully discriminated against in the past, serve as
adequate justifications and all affirmative action
programmes that are implemented with this aim serve
the compelling institutional interest in removing all
vestiges of discrimination that occurred in the past. C
[Para 177] [173-F-G]
9.6 The other part of the "strict scrutiny" test is the
"narrow tailoring" test. The University, whose affirmative
action programme is in question before the United States 0
Supreme Court, is required to prove that its affirmative
action programme has been designed in the narrowest
possible manner, in order to benefit only those specific
people who are to be benefited, thus serving the
"compelling purposes" of the affirmative action
programme. The program cannot be made in a broad E
manner to encompass a large group of people, and it has
to serve the minimum possible requirement, in order to
achieve its goal. Otherwise, it may be possible that the
rights of other people may be infringed upon, which would
make the affirmative action programme unconstitutional.
F
[Para 178] [175-A-C]
9.7 The first limb of the strict scrutiny test that
elucidates the "compelling institutional interest" is
focused on the objectives that affirmative action G
programmes are designed to achieve. The second limb,
that of "narrow tailoring", focuses on the details of
specific affirmative action programmes and on the specific
people it aims to benefit. [Para 179) [175-D-E]
9.8 Furthermore, the courts, both in India as well as
H
20
SUPREME COURT REPORTS
[2008] 4 S.C.R.
A in the United States of Ameri1ca, have looked with extreme
caution and care at any legislation that aims to
~
discriminate on the basis of race in the US and caste in
India. It therefore follows that the Gove.rnment may treat
people differently because of their race but only for those
B reasons that serve what is known as "compelling
Government interest". [Paras 181, 182] [175-G; 176-8-C]
9.9 For any affirmative action programme to survive
the strict standard of judicial scrutiny, the Courts want
"compelling evidence", that proves without any doubt
c that the affirmative action program is narrowly tailored and
serves only the most compelling of interests. Thus, the
bar for the State or institution that practices affirmative
action programmes based on suspect classifications has
been effectively raised. Therefore, in cases where a
D compelling interest is found, race-based methods may be
used only after all other methods have been considered
and found deficient, and that too only to that limited extent
which is required to remedy a discrimination that has been
identified, and only when it has been shown that the
E identified beneficiaries have suffered previously in the
past, and lastly, only if all undue burdens that may impinge
upon the rights of other non- beneficiaries are avoided.
[Para 183] [176-C-E]
9.10 The principles applied by the Supreme Court of
F the United States of America cannot be applied directly to
India as the gamut of affirmative action in India is fully
supported by constitutional provisions and have not
applied the principles of "suspect legislation" and have
been following the doctrine that every legislation passed
G by the Parliament is presumed to be constitutionally valid
unless otherwise proved. The American decisions are not
strictly applicable to India. Thus, the challenge to Act 5 of
2007 on the ground that it does not stand the "strict
),
-
scrutiny" test and there was no "compellable State
H necessity" to enact this legislation cannot be accepted.
..
.
'1
I
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS.
21
[Paras 184, 185] [176-F-H; 177-A, E]
The State of Madras Vs. Srimathi Champakam
Dorairajan 1951SCR525; Minerva Mills Ltd. & Ors. Vs. Union
A
of India & Ors. AIR 1980 SC 1789 = (1980) 3 SCC 625; His
Holiness Kesavananda Bharati Sripadagalvaru Vs. State of
Kera/a (1973) Supp. SCR 1 = (1973) 4 SCC 225; M.R. Balaji B
& Others Vs. State of Mysore (1963) Supp. 1 SCR 439 =AIR
1963 SC 649; State of Kera/av. N.M. Thomas 1976 (2) SCC
310; K.C. Vasanth Kumar v. State of Karnataka 1985 Supp .
SCC 714; C.A. Rajendran Vs. Union of India & Ors. (1968) 1
SCR 721; Bhikaji Narain Dhakras & Ors. Vs. The State of C
Madhya Pradesh & Anr. (1955) 2 SCR 589; A.S. Krishna Vs.
State of Madras (1957) SCR 399; Kameshwar Prasad and
Others Vs: State of Bihar and Another 1962 Supp. (3) SCR
369 In Re. Kera/a Education Bill, 1957, 1959 SCR 995;
Minerva Mills AIR 1980 SC 1789, Saurabh Chaudhari Vs.
D
Union of India 2003 (11) SCC 146 - referred to.
City of Richmond Vs. J A Croson Co. 488 U.S. 469
(1989); Dred Scott Vs. Saunders, 60 US 393(1856); Plassy
Vs. Ferguson 163 US 537(1896); Brown Vs. Board of
Education 347 US 483; Regents of the University of California E
Vs. Bakke 438 US 265 (1978); Sweezy Vs. New Hampshire
(1957) 354 US 234; Keyishian Vs. Board of Regents (1967)
385 US 589 and Adarand Constructors Inc. Vs. Pena (1995)
515 US 200 - referred to.
10. "Backward class" is not a new word.