# INDIRA SA WHNEY v. UNION OF INDIA AND ORS

- **Citation:** [1999] Supp. 5 S.C.R. 229
- **Court:** Supreme Court of India
- **Decided:** 1999-12-13
- **Case number:** I.A. Nos. 35-36. IN Writ Petition No. 930 of 1990
- **Bench:** M. Jagannadha Rao, D.P. Wadhwa, M.B. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/indira-sa-whney-v-union-of-india-and-ors-17058
- **Pages:** 42

## Headnote

B
Constitution of India
Articles 14, 16( 1) & 16( 4)-Reservation-Backward Classes- 'Creamy C
layer '-Identification and exclusion of from the purview of reservationDirections issued by Supreme Court in Indira Sawhney case-State of KeralaFailure to identify 'creamy layer '-State Legislature passing a law for
continuing the existing system of reservation by declaring non-existence of
'creamy layer' in Backward Classess and inadequate representation of
Backward Classes in services under the State-Validity of-Held; 'creamy D
layer' in a caste is not economically and socially backward-Conferring the
benefit of reservation without excluding creamy layer will amount to treating
unequals as equals and equals as unequals-Thus, violative of equality
principle enshrined in Articles 14 and 16(1)-Declarations in the Act not in
conformity with the judicial declaration of Supreme Court in Indira Sawhney 's
case and Ashok Kumar Thakur 's case-Thus, provision of the Act E
unconstitutional and violative of Articles 14 and 16-Kerala State Backward
Classes (Reservation of Appointments or Posts in the Service under the State)
Act, 1995-Ss. 3, 4 and 6.
Articles 14, 16(4), 16(1) and 16(2)-Reservation-Backward ClassesF
Identification-Caste-Criteria-Held, caste cannot be the only basis for
reservation-Inclusion of castes in the list qf backward Classes cannot be
done mechanically-'Creamy layer' in a caste is on par with forward classes
and therefore has to be excluded from the benefit of reservation.
Articles 14 and 16(1)-Principle of equality-Violation of- G
Reservation-Backward Classes-Non-exclusion of 'creamy layer '-Effect ofHeld, amounts to treating unequals as equals and equals as unequals-Thus,
violative of principle of equality enshrined in Articles 14 and 16(1) which
is the basic feature of Constitution-Executive or legislative action violating
basic fea:ure is unconstitutional.
229
H
230
SUPREME COURT REPORTS [1999) SUPP. 5 S.C.R.
A
Articles 14, 16, 32 and 226-Judicial review-Scope of Legislative
declaration-State of Kera/a passing an Act declaring that in view of 'known
facts' there is no 'creamy layer' in Backward Classes having capacity to
compete with Forward Classes-Held, amenable to judicial review-Kera/a
State backward Classes (Reservation of Appointments or Posts in the Service)
B Act, /995-S.3(a)(b).
Articles 14, 16(/), 16(2), 16(4) and 335-Reservation-Backward
Classes-Need for maintenance of efficiency of administration-Specific
provision regarding Scheduled Castes/Scheduled Tribes-No provision
regarding Backward Classes-Held, such principle deducible from Articles
C 14 and 16-Maintenance of efficiency of administration applicable to
Backward Classes also.
Articles 14 and 16(/ )-Reservation-'-Backward Classses-Creamy
layer-Exclusion of-Inadequate represeniation of Backward Classes in
service under the State-Whether a valid ground for extending the benefit of
D reservation? Held, No-Kera/a State Backward Classes (Reservation of
Appointments or Posts in the Services under the State) Act, /995-S.3(b).
Articles 14, 16(/) and 245-Validating enactment-ReservationBackward Classes-Creamy layer-Exclusion of-Directions of Supreme
Court. in Indira Sawhney case-Siate legislation enacting law with
E retrospective validation without removing the defects-validity of-Held,
amounts to overruling the judgment of Supreme Court~ontrary to doctrine
of separation of powers-Violative of Articles 14 and 16(/)-Kerala State
Backward Classes (Reservation of Appointments or Posts in the Services
under the State) Act, 1995-S.6.
F
Articles 14, 16(/) and 16(4)-Kerala State Backward Classes
(Reservation of Appointments or Posts in the Services under the State) Act,
I995-Ss.3, 4 and 6-Constitutional validity of-Held, unconstitutional.
In Indira Sawhney's case this Court issued directions to the Central
G Government and State Governments to identify the 'creamy layer' within the
Backward Classes and exclude them from the category of reservation under
Article 16(4)

## Text

_Characters 0–39,978 of 107,544. This is a partial read: ask again with offset=39978 for what follows._

INDIRA SA WHNEY
A
v.
UNION OF INDIA AND ORS.
DECEMBER 13, 1999
[M. JAGANNADHA RAO, D.P. WADHWA AND M.B. SHAH, JJ.]
B
Constitution of India
Articles 14, 16( 1) & 16( 4)-Reservation-Backward Classes- 'Creamy C
layer '-Identification and exclusion of from the purview of reservationDirections issued by Supreme Court in Indira Sawhney case-State of KeralaFailure to identify 'creamy layer '-State Legislature passing a law for
continuing the existing system of reservation by declaring non-existence of
'creamy layer' in Backward Classess and inadequate representation of
Backward Classes in services under the State-Validity of-Held; 'creamy D
layer' in a caste is not economically and socially backward-Conferring the
benefit of reservation without excluding creamy layer will amount to treating
unequals as equals and equals as unequals-Thus, violative of equality
principle enshrined in Articles 14 and 16(1)-Declarations in the Act not in
conformity with the judicial declaration of Supreme Court in Indira Sawhney 's
case and Ashok Kumar Thakur 's case-Thus, provision of the Act E
unconstitutional and violative of Articles 14 and 16-Kerala State Backward
Classes (Reservation of Appointments or Posts in the Service under the State)
Act, 1995-Ss. 3, 4 and 6.
Articles 14, 16(4), 16(1) and 16(2)-Reservation-Backward ClassesF
Identification-Caste-Criteria-Held, caste cannot be the only basis for
reservation-Inclusion of castes in the list qf backward Classes cannot be
done mechanically-'Creamy layer' in a caste is on par with forward classes
and therefore has to be excluded from the benefit of reservation.
Articles 14 and 16(1)-Principle of equality-Violation of- G
Reservation-Backward Classes-Non-exclusion of 'creamy layer '-Effect ofHeld, amounts to treating unequals as equals and equals as unequals-Thus,
violative of principle of equality enshrined in Articles 14 and 16(1) which
is the basic feature of Constitution-Executive or legislative action violating
basic fea:ure is unconstitutional.
229
H
230
SUPREME COURT REPORTS [1999) SUPP. 5 S.C.R.
A
Articles 14, 16, 32 and 226-Judicial review-Scope of Legislative
declaration-State of Kera/a passing an Act declaring that in view of 'known
facts' there is no 'creamy layer' in Backward Classes having capacity to
compete with Forward Classes-Held, amenable to judicial review-Kera/a
State backward Classes (Reservation of Appointments or Posts in the Service)
B Act, /995-S.3(a)(b).
Articles 14, 16(/), 16(2), 16(4) and 335-Reservation-Backward
Classes-Need for maintenance of efficiency of administration-Specific
provision regarding Scheduled Castes/Scheduled Tribes-No provision
regarding Backward Classes-Held, such principle deducible from Articles
C 14 and 16-Maintenance of efficiency of administration applicable to
Backward Classes also.
Articles 14 and 16(/ )-Reservation-'-Backward Classses-Creamy
layer-Exclusion of-Inadequate represeniation of Backward Classes in
service under the State-Whether a valid ground for extending the benefit of
D reservation? Held, No-Kera/a State Backward Classes (Reservation of
Appointments or Posts in the Services under the State) Act, /995-S.3(b).
Articles 14, 16(/) and 245-Validating enactment-ReservationBackward Classes-Creamy layer-Exclusion of-Directions of Supreme
Court. in Indira Sawhney case-Siate legislation enacting law with
E retrospective validation without removing the defects-validity of-Held,
amounts to overruling the judgment of Supreme Court~ontrary to doctrine
of separation of powers-Violative of Articles 14 and 16(/)-Kerala State
Backward Classes (Reservation of Appointments or Posts in the Services
under the State) Act, 1995-S.6.
F
Articles 14, 16(/) and 16(4)-Kerala State Backward Classes
(Reservation of Appointments or Posts in the Services under the State) Act,
I995-Ss.3, 4 and 6-Constitutional validity of-Held, unconstitutional.
In Indira Sawhney's case this Court issued directions to the Central
G Government and State Governments to identify the 'creamy layer' within the
Backward Classes and exclude them from the category of reservation under
Article 16(4) of the Constitution. However, State of Kerala instead of
implementing the said directions, passed the Kerala State Backward Classes
(Reservation of Appointments or Posts in the ~ervices under the State) Act,
1995 for continuing the existing system of reservation declaring that in view
H of 'known facts' in existence in the State there were no socially advanced
-
INDIRA SAWHNEYv. U.O.I.
231
sections in Backward Classes having capacity to compete with Forward A
Classes and the Backward Classes in the State were not adequately
represented in the services under the State. In the meantime, as the State
Government failed to identify the 'creamy layer' in the State, the Chief Justice
of Kerala High Court, on this Court's request appointed a Commission headed
by Justice K.C. Joseph. The said Commission submitted its report identifying B
'creamy layer' in the State. The present interlocutory applications and writ
petitions were filed for declaring the Kerala Act as unconstitutional and
violative of Articles 14 & 16 of the Constitution.
Disposing of the interlocutory applications and writ petitions, the Court
HELD : 1.1. Caste only cannot be the basis for reservation. Reservation C
can be for a backward class citizen of a particular caste. But creamy layer of
that caste are not socially and economically Backward Classes and thus they
are to be excluded from the benefit of reservation. Inclusion of castes in the
list of Backward Classes cannot be mechanical and cannot be done without
adequate relevant data. Nor can it be done for extraneous reasons. Care should D
be taken that the Forward Castes do not get included in the backward castes
list. If Forward Classes are mechanincally included in the list of Backward
Classes or if the creamy layer among Backward Classes is not excluded, then
the benefits of reservation will not reach the really backward· among the
Backward Classes. Most of the benefits will then be knocked away by the
forward castes and the creamy layer. That will leave the truly backward, E
backward for ever. Thus in Indira Sawhney 's case on the question of exclusion
of 'creamy layer' from the Backward Classes, there was agreement amongst
majority of Judges of this Court. [239-C, F; 240-B; 241-C]
Indira Sawhney v. Union of India, [1992) Suppl. 3 SCC 217, followed. p
1.2. In Indira Sawhney 's case a specific declaration of law was made to
the effect that those in higher services like IAS, IPS and All India Services
or near about as persons who have reached a higher level of social
advancement and economic status, as a matter of law, such persons should be
declared not entitled to be treated as backward. They are to be treated as G ·
creamy layer "without further inquiry." Likewise persons living in sufficient
affluence who are able to provide employment to others are to be treated as
having reached a higher social status on account of their affluence, and
therefore outside the backward class. Those holding higher level of
agricultural land holdings or getting income from property, beyond a limi~
have to be excluded from the backward classes. Further, pursuant to Indira H
232
SUPREME COURT REPORTS (1999] SUPP. 5 S.C.R.
A Sawhney 's case, Government issued a notification dated 8.9.93 identifying
certain broad categories of persons viz. constitutional functionaries, service
personnel, professionals, persons in industry and trade, persons holding
agricultural or urban land as creamy layer which was accepted by this Court
in Ashok Kumar Thakur 's case. Thus, a declaration of law was made by this
B Court in Indira Sawhney 's case and Ashok Kumar Thakur 's case in relation
to identification and exclusion of creamy layer.
(244-F, G; 245-B, E, H; 246-A]
Indira Sawhney v. Union of India, (1992] Suppl. 3 SCC 217, followed.
C
Ashok Kumar Thakur v. State of Bihar and Ors., (1995] 5 SCC 403,
relied on.
2. 'Creamy layer' in the Backward Class is to be treated "on par" with
the Forward Classes and is not entitled to benefits of reservation. If the
'creamy layer' is not excluded, there will be discrimination and violation of
D Articles 14 and 16(1) of the Constitution oflndia since unequals (the creamy
layer) cannot be treated as equals that is to say, equal to the rest of the
Backward Class. Thus, any executive or legislative action refusing to exclude
the creamy layer from the benefits of reservation will be violative of Articles
14 and 16(1) and also of Article 16(4). (246-C, D, E, F]
E
3.1. The provisions of Ss.3, 4 and 6 of the Kerala State Backward
Classes (reservation of Appointments or Posts in the Services under the State)
Act, 1995 are unconstitutional and violative of Articles 14, 16(1) and 16(4) of
the Constitution and the law laid down by this Court. (260-F]
3.2 The declaration in Sub-clause 3 of the Act providing that according
F to 'known facts' there is no socially advanced sections in any backward
Classes having the capacity to compete with forward classes has no factual
basis in spite of the use of the words 'known facts'. If the Kerala Government
and the Kerala Legislature meant in their declaration in sub-clause(a) of
section 3 that there was, in effect, no 'creamy layer' in the State of Kerala,
G among the notified backward Classes, then they must go to the length of
stating that there was none from backward classes who had so far been
recruited to the services of IAS, JPS etc. or none had come within broad
categories listed in the Central Government's O.M. dated 8.9.93, in the Kerala
State. But it was not the case of the State of Kerala that the above categories
of persons were non-existent in the State. Further the broad categories and
H norms are valid not merely for the present but for the future also. Thus, the
_,.
·-
INDIRA SAWHNEYv. U.0.1.
233
declaration in S.3(a) is a mere cloak and is unrelated to facts in existence. It A
· is also contrary to the principles laid down by this Court in Indira Sawhney
and in Ashok Kumar .Thakur. It is, therefore, violative of Articles 14 and 16(1)
of the Constitution of India. Sub-clause (a) of S.3 is, therefore, declared
unconstitutional. (253-C, 255-B, C, D, F; 256-B, CJ
Indira Sawhney v. Union of India, (1992) Suppl. 3 SCC 217, followed. B
Ashok Kumar Thakur v. State of Bihar and Ors., (1995) 5 SCC 403,
relied on.
3.3. The mere inadequate representation of a particular Backward Class
.in public services.flowing as a consequence of exclusion of creamy layer is C
not legally sufficient to provide or continue reservation to the creamy layer.
Reservation even for Backward Classes can be made only if it will not
undermine the efficiency of the administration in the particular department.
Though there is no specific constitutional provision in relation to the need
for maintenance of 'efficiency of administration' so far as Backward Classes
are concerned (such as the special provisions in Article 335 in the case of D
Schedule Castes and Schedule Tribes). But such a principle of efficiency of
administration is, equally paramount and is implied in Articles 14 and 16 of
the Constitution even so far as Backward Classes are concerned. The
Constitution has not envisaged that inadequately represented backward
classes are to be placed on a more favourable footing than inadequately E
represented Schedule Castesffribes for that would offend Article 14 as
between two sets of Backward Classes-namely the Scheduled Castes and the
other Backward Classes. The qualifications, standard and talent necessary
for Backward Classes cannot be relaxed or reduced to a level which may affect
the efficiency of administration. The constitutional principle that equals cannot
be treated unequally and unequals cannot be treated equally based on Articles F
14 and 16(1) overrides other considerations. Thus, even assuming that, when
creamy layer is excluded, there will be inadequate representation of certain
Backward Classes in services, that cannot be a valid reason for the continued
inclusion of the creamy layer in the Backward Class, after Indira Sawhney.
Thus, sub-clause (b) of section 3 does not provide any valid answer for not G
eliminating the creamy layer and must also be held to be unconstitutional
and violative of Articles 14, 16(1) and 16(4) of the Constitution. .
[257-F, G; 258-B, C, D, F, G, H; 259-A)
Ajit Singh II v. State of Punjab, (1999) 7 SCC 209, referred to.
3.4. The non-obstante clause in S.4 of the Act cannot override the H
'
234
SUPREME COURT REPORTS [1999) SUPP. 5 S.C.R.
A judgments of this Court based on Articles 14, 16(1) and 16(4) ifthe defect is
not removed by the legislation. Neither Parliament nor the State Legislature
can make any law to continue reservation to the creamy layer inasmuch as
the judgments of this Court are based on Articles 14 and 16(1) of the
Constitution of India, and no law can obviously be made to override the
B provisions of Articles 14 and 16(1). (259-G, H; 260-A)
3.5. It is true that whenever legislative or executive action is declared
as being violative of the provisions of Part III of the Constitution, it will be
permissible for the Executive or Legislature to remove the defect which is
the cause for discrimination prospectively and which defect has been pointed
C out by the Court. The defect can be removed retrospectively too by legislative
action and the previous actions can also be validated. But where there is mere
validation with retrospective effect, without the defect being legislatively
removed with retrospective effect, the legislative action will amount to
overruling the judgment of the courts by way of legislative fiat and will be
invalid as being contrary to the doctrine of separation of powers.
D
[246-G, H; 247-B]
3.6. If the legislature of any State does not take steps to remove the
defect or to effectively and realistically remove the defect to exclude the
'creamy layer' from the backward classes then the benefits of reservations
which are invalidly continued in favour of the 'creamy layer' cannot be
E declared retrospectively valid merely be a legislative declaration that such
creamy layer is absent as done by Section 3 of the Kerala Act. Nor can it be
done by means of the validating provision contained in section 6 of that Act.
Further Section 6 cannot stand alone once Sections 3 and 4 are declared
unconstitutional. As long as the crea~y layer is not excluded and the defect
F continues, any validation - without elimination of the defect which is the basic
cause of unconstitutionality -will be ineffective and will be invalid.
(247-A, B, CJ
4. Equality was one of the basic features referred to in the Preamble to
our Constitution. Parliament and the legislatures in this country cannot
G transgress the basic feature of the Constitution, namely, the principle of
equality enshrined in Article 14 of which Article 16(1) is a facet. Whether
creamy layer is not excluded or whether forward castes get included in the
list of backward classes, the position will be the same namely, that there will
be a breach not only of Article 14 but of the basic structure of the Constitution.
The non-exclusion of the creamy layer or the inclusion of Forward Castes in
H the list of backward classes will, therefore, be totally illegal. Such an illegality
INDIRA SA WHNEY v. U.0.1.
235
offending the root of the Constitution of India cannot be allowed to be A
perpetuated even by Constitutional amendment. [260-H; 261-C, D, E)
Keshavananda Bharati v. State of Kera/a, [1973) 4 SCC 225, relied on.
5. The Report submitted by Justice Joseph Committee is accepted in
toto subject to the addition of communities and sub-castes as pointed out in B
the affidavit of the State of Kerala dated 16.1.98. Adopting the principle of
prospective overruling, the exclusion of creamy layer as stated in that Report
shall be applicable from the date of this Judgment. However, State ofKerala
is permitted to make provision for exclusion of creamy layer among the
Backward Classes in the State in accordance with Constitution and law laid
down in Indira Sawhney and Ashok Kumar Thakur and in accordance with
the principles laid down now. Once the State Government itself identifies the
creamy layer, the recommendations of Justice Joseph Committee will cease
to apply. [266-D; 268-B-D)
c
6. The unreasonable delay on the part of the Kerala Government and D
the discriminatory law made by the Kerala Legislature have been in virtual
defiance of the Rule of Law and also an indefensible breach of the equality
principle which is a basic feature of the Constitution. They are also in open
violation of the Judgments of this Court which.are binding under Article 141
and the fundamental concept of separation of powers which has also been held
to be a basic feature of the Constitution. Attitude and action of the State of E
Kerala has unfortunately resulted in allowing 'creamy layer' among backward
Classes in the State to continue to grab the posts in the services in
Government, public sector etc. even after Indira Sawhney 's case and get away
with the same. The result is that really backward among the Backward
Classes have been deliberately deprived by the State of their legitimate rights F
because they have no voice in the decision making process.
[268-G, H; 269-A)
Akhil Bhartiya Soshit Karamchari Sangh v. Union of India, [1981) 1
sec 246, referred to.
CIVIL ORIGINAL JURISDICTION : I.A. Nos. 35-36.
IN
Writ Petition No. 930 of 1990 Etc.
(Under Article 32 of the Constitution of India.)
G
H
A
236
SUPREME COURT REPORTS [1999] SUPP. 5 S.C.R.
WITH
W.P. (C) No. 699/95 and W.P. (C) No. 727/95, I.A. No. 2/99, IAS. 8 and
9 in W.P. (C) No. 699195.
K.N. Rawal, Addl. Solicitor General (Gopal Subramanium) (A.C.),
B P. Krishnamoorthy, K.K. Venugopal, Dayan Krishnan, (Ms. Indra Sawhney)
(IN-Person) (NP), Ms. V.M. Rahana,
G. Prakash, (S.W.A. Quadri) for
S.N. Terdol, T.C. Sharma, Ms. Neelam Sharma for Ms. Sushma Suri,
Ms. A. Subhashini, Ajay Kumar Yadav, K.V. Mohan, S.R. Setia, *(A.N. Rajan
Babu, Shakil Ahmad Syed), E.M.S. Anam, Ms. Lilly Thomas, Sri Justus Nadar,
C Dr. Rajiv Dhawan, Roy Abraham, (Rajan Babu) for Ms. Baby Krishnan,
V.J. Francis, P.I. Jose and M.T. George for the appearing parties.
D
*(AN. Rajan Babu and Shakil Ahmad Syed) for Interver in I.A. No. 21
99 and for R. No. 3-4 in W.P. (C) No. 699195.
The Judgment of the Court was delivered by
M. JAGANNADHA RAO, J. The cases in this batch raise common
issues relating to the identification of 'creamy layer' among the Backward
Classes in the State ofKerala and the implementation of the law declared and
directions issued in Indira Sawhney v. Union of India, [ l 992] (Suppl) 3, SCC
217). The State of Kerala took time for implementation of the directions in
E Indira Sawhney for appointment of a Commission for the purpose of identifying
the creamy layer in the State but it failed to appoint a Commission or to
proceed with the implementation. Indira Sawhn~ was decided in 1992. For
more than three years the State of Kerala did not implement the judgment.
This Court by its order dated 10.7.1995 held (in IAs. 35, 36 filed by the State
p for extension of time etc.) that the State of Kerala, represented by its Chief
Secretary was guilty of contempt but gave a further opportunity to the state
to purge the contempt and adjourned the matter to 11.9.1995. It was made.
clear that if the directions of this Court were not complied with, the Chief
Secretary would 'run the risk of being sentenced'. Having sought time for
years to appoint a Commission, the Kerala Legislature then suddenly came
G forward with the Kerala State Backward Classes ( Reservation of Appointments
or Posts in the Services under the State) Act, 1995 which, in section 3
declared that "having regard to known facts in existence in the State of
Kerala, that there are no socially advanced sections in any Backward Classes
who have acquired capacity to compete with forward classes" and that the
H Backward classes in the State were not "adequately represented" in the
INDIRA SAWHNEY v. U.0.1. [M. JAGANNADHA RAO, J.]
~.37
services under the State and they would continue to be entitled to reservation A
under Clause ( 4) of Article 16 of the Constitution. The provisions of Section
4 continued the existing system of reservation which was in force as per Rules
made in 1958 and Section 6 was incorporated as a validating section with
retrospective effect. On the ground that the provisions of this Act of 1995
were discriminatory and violative of Articles 14 and 16 of the Constitution,
WP. 699of1995 was filed by the Nair Service Society, Kerala while W.P. 727 B
of 1995 was filed by one K. Ramaswamy, belonging to the Elavami Community
of Kerala (a Backward Community) to declare the provisions of the Act as
unconstitutional and violative of Articles 14 and 16 of the Constitution of
India. Some IAs were filed by interveners to support one or other of the rival
groups. The Act was passed on 2.9.95 but was given retrospective effect from C
2.10.1992.
..
As the State Government failed to appoint a Commission as directed
in Indira Sawhney, this Court, by an elaborate order dated 4.11.96 deemed it
necessary to appoint a High Level Committee to gather the necessary
information regarding 'creamy layer' and requested the Chief Justice, Kerala
High Court, to appoint a retired Judge of the High Court to be the Chairman D
of the High Level Committee. The Chairman of the Committee, it was held,
could induct not more than 4 persons as members from various walks of life
"to identify the creamy layer among the designated backward classes" in the
State of Kerala in the light of the ruling of this Court in Indira Sawhney and
forward its report to the Supreme Courf within three months. This Court E
directed the State Government to extend .:o-operation to the above Committee.
This Court also directed that the O.M. of the Government oflndia dated 8.9.93
( Ministry of Personnel Public Grievances and Pensions) where the Central
Government laid down guidelines for identification of the creamy layer, be
placed before the High Level Committee "for use and guidance" in identifying
the 'creamy layer' among the other Backward Classes in the State of Kerala. p
Accordingly, the Chief Justice of the High Court of Kerala nominated
Sri Justice K.J. Joseph, as Chairman of the High Level Committee. The other
members of the Committee were Sri O.C. Vincent, IAS, Sri K.P. Mohammed,
Adv. Sri K. Aravindaksha Menon, Retd. District and Sessions Judge and Sri
· K. Asokan, Retd. Director of Public Relations. The said Committee, after a G
public notification, received evidence and gave opportunity of hearing to
various individuals, communities etc. and submitted its report dated 4.8.97 to
this Court identifying the "creamy layer" in the Backward Classes of Kerala
State. Thereafter, objections were filed in this Court by various parties to the
said report and that is how the matter has come before us.
H
238
SUPREME COURT REPORTS [1999] SUPP. 5 S.C.R.
A
We do not propose just now to decide the further course of action in
B
the suo motu contempt proceedings in which the State of Kerala represented
by its Chief Secretary was held guilty of contempt and was given time to
purge the contempt. We make it clear that that issue is kept pending and
matter will be processed later, on the basis of the judgment in this case and
the directions which we propose to issue at the end of this judgment.
We have heard arguments of Sri Gopal Subramaniam, learned senior
counsel as Amicus Curiae and of Sri K.K. Venugopal, learned senior counsel
who contended that the Kerala Act 16/95 was unconstitutional a11d violative
of Articles 14, 16(1) and 16(4). We heard Sri P.Krishna Moorthi, learned senior
counsel for the State of Kerala and Sri Rajeev Dhawan, learned senior counsel
C for the SNDP Yoghm, Sri A.N. Rajan Babu, Sri EMS Anam, Ms. Lilly Thomas
and Sri V.J. Francis and others who contended that the Act was a valid piece
of legislation. Sri K.N. Raval, Additional Solicitor General stated that the
Central Government stood by the O.M. already issued.
D
E
F
G
H
The issues which presently arise before this Court are, as follows:
(I) What is the law declared and what are the directions given in
•
Indira Sawhney in regard to "creamy layer" in the context of Articles
14 and 16?
(2) Can the declaration of law in regard to "creamy layer" in the
context of Articles 14 and 16 in Indira Sawhney and in other rulings
be undone by the Kerala Legislature by a retrospective validating law
containing a statutory declaration whose effect is to say that no
"creamy layer" exists in the State of Kerala ?
(3) Are the provisions of sections 3, 4 and 6 of the Kerala State
Backward Classes ( Reservation of Appointments or Posts in the
Services) Act ( Act No.16/95) violative of Articles 14 and 16 of the
Constitution of India ?
(4) Whether the violation of Article 14(and Article 16) amounts to
violation of the basic structure of the Constitution of India?
(5) If the provisions of sections 3, 4 and 6 of the Kerala Act 16/95 are
to be struck down, is the Report of High Level Committee headed by
Justice K.J. Joseph to be accepted and are there any valid objections
to the report ?
( 6) If sections 3, 4 and 6 of the Kerala Act 16/95 are to be struck down
and the High Level Committee Report of Justice K.J. Joseph is accepted,
what further directions are to be issued to the State of Kerala ?
--
INDIRA SA WHNEY v. U.0.1. [M. JAGANNADHA RAO, J.]
239
POINT/:
Our Constitution is wedded to the concept of equality and equality is
a basic feature. Under Article 15(2), there is a prohibition that State shall not
discriminate against any citizen on the grounds only of religion, race, caste,
A
sex and place of birth or any of them. It is equally true that ours is a casteridden society. Still, it is a constitutional mandate not to discriminate on the B
basis of caste alone. Provisions can be made for the upliftment of socially and
educationally backward classes, scheduled castes or scheduled tribes or for
women and children. Article 16(4) empowers the States for making any provision
for reservation in appointments or posts in favour of any backward class of
citizens which, in the opinion of the State, is not adequately represented in
the services under the State. Reservation is permissible (i) in favour of any C
backward class of citizens; and (ii) if it is not adequately represented in
services under the State.
Caste only cannot be the basis for reservation. Reservation can be for
a backward class citizen of a particular caste. Therefore,from that caste,
creamy layer and non-backward class of citizens are to be excluded. If the D
caste is to be taken into consideration then for finding out socially and
economically backward class, creamy layer of the caste is to be eliminated for
granting benefit of reservation, because that creamy layer cannot be termed
as socially and economically backward. These questions are exhaustively
dealt with by a nine Judge Bench of this Court in Indira Sawhney v. Union
of India, [ 1992] Suppl. 3 sec 217, and it has been spedally held that 'only E
caste' cannot be the basis for reservation.
Inclusion of castes in the list of Backward classes cannot be mechanical
and cannot be done without adequate relevant data. Nor can it be done for
extraneous reasons. Care should be taken that the forward castes do not get
included in the backward castes list. In Indira Sawhney, Pandian, J. observed F
(para 174 SCC) that before a conclusion is drawn that a caste is backward or
is inadequately represented in the services, "the existence of circumstances
relevant to the formation of opinions is a sine qua non. If the opinion suffers
from the vice of non-application of mind or formulation of collateral grounds
or beyond the scope of the statute, or irrelevant and extraneous material, then G
the opinion is challengeable". Sawant, J. (see para 539 of SCC) too pointed
out the need for proper application of mind to the facts and circumstances,
the field, the post and the extent of existing representation and the need to
balance representation. On behalf of himself and three others, Jeevan Reddy
J. pointed out (para 798 SCC) that opinion in regard to backwardness and
inadequate representation must be based on relevant material. The scope of H
240
SUPREME COURT REPORTS (1999] SUPP. S S.C.R.
A judicial scrutiny even with regard to matters relating to subjective satisfaction
are governed by the principles stated in Barium Chemicals v. Company Law
Board, [ 1966] Supple. SCR 311. Likewise, periodic examination of a Backward
class could lead to its exclusion if it ceases to be socially backward or if it
is adequately represented in the services. Once backward, always backward
is not acceptable. In any case, the 'creamy layer' has no place in the reservation
B system.
If forward classes are mechanically included in the list of backward
classes or if the creamy layer among backward classes is not excluded, then
the benefits of reservation will not reach the really backward among the
backward classes. Most of the benefits will then be knocked away by the
C forward castes and the creamy layer. That will leave the truly backward,
backward for ever. Jeevan Reddy, J. while delivering the majority judgment,
interalia, held as under:
"If the real object is to discover and locate backwardness, and if such
backwardness is found in a caste, it can be treated as backward; if it
D
is found in any other group, section or class, they too can be treated
as backward. (See Page 717 para 783 ). Reservation is not being made
under clause (4) in favour of a 'caste' but a backward class. Once a
caste satisfies the criteria of backwardness, it b(';comes a backward
class for the purposes of Article 16(4)." [See Page 718 Para 784].
E
In paragraph 796, Jeevan Reddy, J. has summarised the discussion
F
G
H
under Question No.3 and, inter alia, as under:
"A caste can be and quite often is a social class in India. If it is
backward socially, it would be a backward class for the purposes of
Article 16(4).
Identification of the backward classes can certainly be done witli
reference to castes among, and alongwith, other groups, classes and
sections of people. One can start process with the castes, wherever
they are found, apply the criteria (evolved for determining
backwardness) and find out whether it satisfies the criteria. If it does
- what emerges is a "backward class of citizens" within the meaning
of and for the purposes of Article 16(4). Similar process can be
adopted in the case of other occupational groups, communities and
classes, so as to cover the entire populace. The central idea and
overall objective should be to consider all available groups, sections
and classes in society. Since caste represents an existing, identifiable
social group class encompassing an overwhelming majority of the
...
INDIRA SAWHNEY v. U.0.1. [M. JAGANNADHA RAO, J.]
241
country's population, one can well begin with it and then go to other A
groups, sections and classes."
Court further considered in Paragraph 800 and held as under:
" ..... while answering Question 3(b), we said that identification of
backward classes can be done with reference to castes along with B
other occupational groups, communities and classes. We did not say
that that is the only permissible method. Indeed, there may be some
groups or classes in whose case caste may not be relevant to all. For
example, agricultural labourers, rickshaw-pullers/drivers, street-hawkers
etc. may well qualify for being designated as Backward Classes."
We shall next proceed to the question relating to 'creamy layer'.
c
In Indira Sawhney, on the question of exclusion of· creamy layer' from
the Backward Classes, there was agreement among eight out of the nine
learned Judges of this Court. There were five separate Judgments in this
behalf which required the "creamy layer" to be identified and excluded.
D
The judgment of Jeevan Reddy, J. was rendered for himself and on
behalf of three other learned Judges, Kania, CJ and M.N. Venkatachaliah,
A.M. Ahmadi, JJ. (as they then were). The said judgment laid emphasis on
the relevance of caste and also stated that upon a member of the backward
class reaching an "advanced social level or status", he would no longer E
belong to the backward class and would have to be weeded out. Similar views
were expressed by Sawant, Thommen, Kuldip Singh, and Sahai, JJ. in their
separate judgments.
It will be necessary to refer to and summarise briefly the principles laid F
down in these five separate judgments for that would provide the basis for
decision on points 2 to 5.
While considering the concept of'means-test' or 'creamy layer', which
signifies imposition of an income limit, for the purpose of excluding the
persons (from the backward class) whose income is above the said limit, in G
paragraph 791, the Court has noted that counsel for the States ofBihar, Tamil
Nadu, Kerala and other counsel for respondents strongly opposed any such
distinction and submitted that once a class is identified as a backward class
after applying the relevant criteria including the economic one, it is not
pennissible to apply the economic criteria once again and sub-divide a backward
class into two sub-categories. The Court negatived the said contention by H
242
SUPREME COURT REPORTS (1999] SUPP. 5 S.C.R.
A holding that exclusion of such (creamy layer) socially advanced members will
make the 'class' a truly backward class and would more appropriately serve
the purpose and object of clause (4).
Jeevan Reddy, J. dealt with the 'creamy layer' under question 3(d)
(paras 790, 792, 793 of SCC) and under question 10 (paras 843, 844). This is
B what the learned Judge declared: There are sections among the backward
classes who are highly advanced, socially and educationally and they
constitute the forward section of that community. These advanced sections
do not belong to the true backward class. They are "as forward as any other
forward class member" (para 790). "If some of the members are far too advanced
C socially (which in the context necessarily means economically and may also
mean educationally), the connecting thread between them and the remaining
class snaps. They would be misfits in the class" (para 792). The learned Judge
said:
"After excluding them alone, would the class be a compact class. In
D fact, such exclusion benefits the truly backward"
A line has to be drawn, said the learned Judge, between the forward
in the backward and the rest of the backward but it is to be ensured that what
is given with one hand is not taken away by the other. The basis of exclusion
of the "creamy layer" must not be merely economic, unless economic
E advancement is so high that it necessarily means social advancement, such
as where a member becomes owner of a factory and is himself able to give
employment to others. In such a case, his income is a measure of his social
status. In the case of agriculturists, the line is to be drawn with reference to
the agricultural land holding. While fixing income as a measure, the limit is
not to be such as to result in taking away with one hand what is given with
F the other. The income limit must be such as to mean and signify social
advancement. There are again some offices in various walks of life - the
occupants of which can be treated as socially advanced, "without further
inquiry", such as IAS and IPS officers or others in All India Services. In the
case of these persons, their social status in society rises quite high and the
G person is no longer socially disadvantaged. Their children get full opportunity
to realise their potential. They are in no way handicapped in the race of life.
Their income is also such that they are above want. It is but logical that ,
children of such persons are not given the benefits of reservation. If the
categories or sections above mentioned are not excluded, the truly
disadvantaged members of the backward class to which they belong will be
H deprived of the benefits of reservation. The Central Government is, therefore,
I
I
' ._
INDIRA SA WHNEY v. U.0.!. [M. JAGANNADHA RAO, J.]
243
directed (para 793) to identify and notify the "creamy layer" within four A
months and after such notification, ·the 'creamy layer' within the backward
class shall "cease" to be covered by the reservations under Article 16(4).
Jeevan Reddy, J. finally directed (see question I 0) that the exclusion of the
creamy layer must be on the basis of social advancement and not on the basis
of economic interest alone. Income or the extent of property holding of a B
person is to be taken as a measure of social advancement - and on that basis
- the 'creamy layer' within a given caste, community or occupational group
is to be excluded to arrive at the true backward class. There is to be constituted
a body which can go into these questions (para 847) as follows:
"We direct that such a body be constituted both at Central level and C
at the level of the State within four months from today ........ There
should be a periodic revision of these lists to exclude those who have
ceased to be backward or for inclusion of new classes, as the case
may be."
The creamy layer (see para 859, sub para 3_(d)) can be, and must be excluded. D
Creamy layer has to be excluded and 'economic criteria' are to be adopted as
an indicium or measure of social advancement. (Para 860, sub para 5). The
socially advanced persons must be excluded. (para 861 (b)). That is how
Jeevan Reddy, J. summarised the position.
Sawant, J. too accepted (para 553 of SCC) that "atleast some individuals E
and families in the backward classes,- however small in number - gain sufficient
means to develop "capacities to compete" with others in every field. That is
an undeniable fact. Social advancement is to be judged by the 'capacity to
compete' with forward castes, achieved by the members or sections of the
backward classes. Legally, therefore, these persons or sections who reached F
that level are not entitled any longer to be called as part of the backward class
whatever their original birthmark. Taking out these "forwards" from the
"backwards" is 'obligatory' as these persons have crossed the Rubicon (para
553-554). On the crucial question as to what is meant by "capacity to compete",
the learned Judge explained (para 522) that if a person moves from Class IV
service to Class III, that is no indication that he has reached such a stage G
of social advancement but if the person has successfully competed for "higher
level posts" or atleast "near those levels", he has reached such a state.
Thomrnen, J. (paras 287, 295, 296, 323) observed that if some members
in a backward class acquire the necessary financial strength to raise
themselves, the Constitution does not extend to them the protection of H
244
SUPREME COURT REPORTS [1999] SUPP. 5 S.C.R.
A reservation. The creamy layer has to be "weeded out" and excluded, if it has ·
attained a "certain pre-determined e.conomic level".
Kuldip Singh, J. (para 385) referred to the "affluent" section of the
backward class. Comparatively "such persons" in the backward class - though
they may not have acquired a higher level of education - are able to move
B in the society without being discriminated socially". These persons practice
'discrimination against others in that group who are comparatively less rich.
It must be ensured that these persons do not "chew up" the benefits meant
for the true backward cfass. "Economic ceiling" is to be fixed to cut off these
persons from the benefits of reservation. In the result, the "means test" is
C imperative to skim off the "affluent" sections of backward classes.
Sahai, J. (para 629) observed that the individuals among the collectivity
or the group who may have achieved a "social status" or "economic affluence",
are disentitled to claim reservation.