'Reservation Sends The Wrong Message'

FULL TEXT: FOR THE RECORD
'ReservationSends The Wrong Message'
'Everybody is keen to get the benefit of backward class status. If we want toreally help the socially, educationally and economically backward classes, weneed to earnestly focus on implementing Article 21A,' says the dissentingjudgement, directing the government to set a time limit.
DALVEER BHANDARI

• Creamy Layer

  • Arguments of the Union of India in regard to the creamy layer
  • The reasons for which the creamy layer should be excluded
  • Including the creamy layer means unequals are treated as equals inviolation of the right to equality under Articles 14, 15 and 16.
  • If you belong to the creamy layer, you are not SEBC
  • Creamy Layer Inclusion Robs the Poor and Gives to the Rich
  • Whether the Creamy Layer exists outside India?
  • Severing the Creamy Layer
  • Identification of Creamy Layer

• Applying Article 21A to the Reservation Act

  • Historical Perspective on Compulsory Education
  • Empirical data indicating that compulsory education has a positive effect
  • Opposition to Compulsory Education
  • Conclusion on Free and Compulsory Education

• Does the 93rd Amendment violatethe Basic Structure of the Constitution by imposing reservation on unaidedinstitutions?
• The Casteless and Classless Society versus Caste-based Reservation:
• Are Articles 15(4) and 15(5) mutually contradictory, such that 15(5) isunconstitutional?
• Does Article 15(5)'s exemption of minority institutions from thepurview of reservation violate Article 14 of the Constitution?
• Are the standards of review laid down by the U.S. Supreme Courtapplicable to our review of affirmative action under Article 15(5) and similar provisions?
• With respect to OBC identification, was the Reservation Act'sdelegation of power to the Union Government excessive?
• Is the impugned legislation invalid as it fails to set a time-limit forcaste-based reservation?
• At what point is a student no longer Educationally Backward and thusno longer eligible for special provisions under 15(5)?
• Would it bereasonable to balance OBC reservation with societal interests by instituting OBCcut-off marks that are slightly lower than that of the general category?
• Summary of Findings

CASE NO.: Writ Petition (civil) 265 of 2006
PETITIONER: Ashoka Kumar Thakur
RESPONDENT: Union of India & Others
DATE OF JUDGMENT: 10/04/2008
BENCH: Dalveer Bhandari
JUDGMENT: J U D G M E N T

WRIT PETITION (CIVIL) NO.265 OF 2006 WITH Writ Petition (Civil) Nos.269 AND598 of 2006, Writ Petition (Civil) Nos.29, 35, 53, 336, 313, 335, 231, 425, 428of 2007 AND Contempt Petition (C) No.112 of 2007 in Writ Petition (C) No.265 of2006. * * * * *

Dalveer Bhandari, J.

1. The 93rd Amendment to the Constitution directly or indirectly affectsmillions of citizens of this country. It has been challenged in a number of writpetitions. This Court heard these petitions intermittently over the course ofseveral months. Appearing on behalf of petitioners and respondents, thecountry's finest legal minds assisted us.

2. The fundamental question that arises in these writ petitions is: WhetherArticle 15(5), inserted by the 93rd Amendment, is consistent with the otherprovisions of the Constitution or whether its impact runs contrary to theConstitutional aim of achieving a casteless and classless society?

3. On behalf of the petitioners, Senior Advocate Mr. F.S. Nariman, eloquentlyargued that if Article 15(5) is permitted to remain in force, then, instead ofachieving the goal of a casteless and classless society, India would beconverted into a caste- ridden society. The country would forever remain dividedon caste lines. The Government has sought to repudiate this argument.Petitioners' argument, however, echoes the grave concern of our Constitution'soriginal Framers.

4. On careful analysis of the Constituent Assembly and the ParliamentaryDebates, one thing is crystal clear: our leaders have always and unanimouslyproclaimed with one voice that our constitutional goal is to establish acasteless and classless society. Mahatma Gandhi said: "The caste system aswe know is an anachronism. It must go if both Hinduism and India are to live andgrow from day to day." The first Prime Minister, Pt. Jawahar Lal Nehru,said that "no one should be left in any doubt that the future IndianSociety was to be casteless and classless". Dr. B. R. Ambedkar called caste"anti-national".

5. After almost four decades of independence, while participating in theParliamentary Debate on the Mandal issue, then Prime Minister Shri Rajiv Gandhion 6th September, 1990 again reiterated the same sentiments: "I think,nobody in this House will say that the removal of casteism is not part of thenational goal, therefore, it would be in the larger interest of the nation toget rid of the castes as early as possible". It is our bounden duty andobligation to examine the validity of the 93rd Amendment in the background ofthe Preamble and the ultimate goal that runs through the pages of theConstitution.

6. To attain an egalitarian society, we have to urgently removesocio-economic inequalities. All learned counsel for the petitioners assertedthat we must deliver the benefits of reservation to only those who reallydeserve it. This can only be done if we remove the creamy layer. Learned counselfor the Union of India and other respondents opposed this assertion. Theprinciple of creamy layer emanates from the broad doctrine of equality itself.Unless the creamy layer is removed from admissions and service reservation, thebenefits would not reach the group in whose name the impugned legislation waspassed -- the poorest of the poor. Therefore, including the creamy layerwould be inherently unjust.

7. Creamy layer exclusion, however, is just one of the many issues raised bythe parties. I need to examine various facets of this case in order to decidethe validity of the 93rd Amendment and the Central Educational Institutions(Reservation in Admission) Bill, 2006 (passed as Act 5 of 2007) (hereinaftercalled the "Reservation Act"). I shall focus my analysis on thefollowing issues:

1

• A. Whether the creamy layer be excluded from the 93rd Amendment (Reservation Act)?
• B. What are the parameters for creamy layer exclusion?
• C. Is creamy layer exclusion applicable to SC/ST?

2. Can the Fundamental Right under Article 21A be accomplished without great emphasis on primary education?

3. Does the 93rd Amendment violate the Basic Structure of the Constitution by imposing reservation on unaided institutions?

4. Whether the use of caste to identify SEBCs runs afoul of the casteless/classless society, in violation of Secularism.

5. Are Articles 15(4) and 15(5) mutually contradictory, such that 15(5) is unconstitutional?

6. Does Article 15(5)'s exemption of minority institutions from the purview of reservation violate Article 14 of the Constitution?

7. Are the standards of review laid down by the U.S. Supreme Court applicable to our review of affirmative action under Art 15(5) and similar provisions?

8. With respect to OBC identification, was the Reservation Act's delegation of power to the Union Government excessive?

9. Is the impugned legislation invalid as it fails to set a time-limit for caste-based reservation?

10. At what point is a student no longer Educationally Backward and thus no longer eligible for special provisions under 15(5)?

11. Would it be reasonable to balance OBC reservation with societal interests by instituting OBC cut-off marks that are slightly lower than that of the general category?

8. I have carefully examined the pleadings and written submissions submittedat length. Admittedly, the provisions of the Constitution and the Preamble leadto the irresistible conclusion that the Nation has always wanted to achieve acasteless and classless society. If we permit this impugned legislation to beimplemented, I am afraid, instead of a casteless and classless India, we wouldbe left with a caste-ridden society.

9. The first place where caste can be eradicated is the classroom. It allstarts with education. In other words, if you belong to a lower caste but arewell qualified, hardly anyone would care about your caste. Free and compulsoryeducation is now a fundamental right under Article 21A. The State is duty boundto implement this Article on a priority basis. There has been grave laxity inits implementation. This laxity adversely affects almost every walk of life. Inmy opinion, nothing is more important for the Union of India than to implementthis critical Article.

10. I direct the Union of India to set a time-limit within which this Articleis going to be completely implemented. This time- limit must be set within sixmonths. In case the Union of India fails to fix the time-limit, then perhapsthis work will also have to be done by the Court.

11. The Union of India should appreciate in proper prospective that the rootcause of social and educational backwardness is poverty. All efforts have to bemade to eradicate this fundamental problem. Unless the creamy layer is removed,the benefit would not reach those who are in need. Reservation sends the wrongmessage. Everybody is keen to get the benefit of backward class status. If wewant to really help the socially, educationally and economically backwardclasses, we need to earnestly focus on implementing Article 21A. We must provideeducational opportunity from day one. Only then will the casteless/classlesssociety be within our grasp. Once children are of college-going age, it is toolate for reservation to have much of an effect. The problem with the ReservationAct is that most of the beneficiaries will belong to the creamy layer, a groupfor which no benefits are necessary. Only non-creamy layer OBCs can avail ofreservations in college admissions, and once they graduate from college theyshould no longer be eligible for post- graduate reservation. 27% is the upperlimit for OBC reservation. The Government need not always provide the maximumlimit. Reasonable cut off marks should be set so that standards of excellencegreatly effect. The unfilled seats should revert to the general category.

12. These issues first arise out of the text of the impugned Amendment.Reservation for Socially and Educationally Backward Classes of Citizens (SEBCs)was introduced by the 93rd Amendment. Article 15(5) states: "Nothing inthis article or in sub-clause (g) of clause (1) of article 19 shall prevent theState from making any special provision, by law, for the advancement of anysocially and educationally backward classes of citizens or for the ScheduledCastes or the Scheduled Tribes in so far as such special provisions relate totheir admission to educational institutions including private educationalinstitutions, whether aided or unaided by the State, other than minorityeducational institutions referred to in clause (1) of article 30."

Excluding the Creamy Layer from receiving special benefits:

13. Affirmative action is employed to eliminate substantive social andeconomic inequality by providing opportunities to those who may not otherwisegain admission or employment. Articles 14, 15 and 16 allow for affirmativeaction. To promote Article 14 egalitarian equality, the State may classifycitizens into groups, giving preferential treatment to one over another. When itclassifies, the State must keep those who are unequal out of the same batch toachieve constitutional goal of egalitarian society.

Arguments of the Union of India in regard to the creamy layer:

14. Mr. G.E. Vahanvati, learned Solicitor General and Mr K. Parasaran, SeniorAdvocate appearing for the Government contend that creamy layer exclusion is abad policy. They argue that if you exclude the creamy layer, there would be ashortage of candidates who can afford to pay for higher education. This argumentharms rather than helps the Government. It cannot be seriously disputed thatmost of the college-going OBCs belong to the creamy layer for whom reservationsare unnecessary; they have the money to attend good schools, tuitions andcoaching courses for entrance exams. Naturally, these advantages result inhigher test scores vis-`-vis the non-creamy layer OBCs. The result is thatcreamy OBCs would fill the bulk of the OBC quota, leaving the non-creamy nobetter off than before. If the creamy get most of the benefit, why havereservations in the first place? Learned Senior Counsel for petitioners, Mr.Harish Salve, is justified in arguing that before carrying out ConstitutionalAmendments the Union of India must clearly target its beneficiaries. He rightlysubmitted that we should not make law first and thereafter target the law'sbeneficiaries. Failure to exclude the creamy layer is but one example of thisproblem.

15. The Government further submitted that the creamy layer should be includedto ensure that enough qualified candidates fill 27% of the seats reserved toOBCs. The Oversight Committee disagreed. The Committee relied on data fromKarnataka to disprove the contention that seats go unfilled when the creamy isexcluded: "... the apprehension that seats will not be filled up if thecreamy layer is excluded has been comprehensively shown to be unfounded."[See: Oversight Committee, Vol. 1, Sept. 2006, p. 69, para 1.7.] We shall laterreview the Oversight Committee opinion in greater detail.

The reasons for which the creamy layer should be excluded:

16. At the outset, I note that the Parliament rejected the Hindi version ofthe Reservation Act. The Hindi version of the Reservation Act would haveexpressly excluded the creamy layer. [See: Prof. Rasa Singh Rawat's comments inthe Parliamentary Debate on the Reservation Act, 14 December 2006]

17. The Parliament eventually passed the English version in which the creamylayer is not mentioned, making its intention clear. It wanted to include thecreamy layer. For all practical purposes, it did so. Therefore, I will treat itas included. Counsel for the Union of India argued that it is stilltheoretically possible for the executive to exclude the creamy layer. Much ispossible in theory. Given the executive's failure to take action since the timethe Act was passed, I find this argument unavailing.

18. With the Parliament's intention in view, I will deal in some detail withthe reasons as to why the creamy layer should be excluded from reservation. I doso because I want to emphasize that the creamy layer must never be included inany affirmative action legislation. It also becomes imperative to gather theoriginal Framers' and the Framers' intention. At the outset, we recognise adistinction between the original Framers and the Framers, i.e., Members of theFirst Parliament. Members of the Constituent Assembly and the First Parliamentwere one in the same. But the distinction is necessary to the extent that theFirst Parliament deviated from its constitutional philosophy. By examining thedebate on Article 15(4), I may ascertain whether the Framers wanted to excludethe creamy layer.

19. The First Parliament believed that "economic" was included inthe "social" portion of "socially and educationallybackward." Prime Minister Nehru said as much: "One of the mainamendments or ideas put forward is in regard to the addition of the word"economical". Frankly, the argument put forward, with slightvariation, I would accept, but my difficult is this that when we chose thoseparticular words there, "for the advancement of any socially andeducationally backward classes", we chose them because they occur inarticle 340 and we wanted to bring them bodily from there. Otherwise I wouldhave had not the slightest objection to add "economically". But if Iadded "economically" I would at the same time not make it a kind ofcumulative thing but would say that a person who is lacking in any of thesethings should be helped. "Socially" is a much wider word includingmany things and certainly including economically. Therefore, I felt that"socially and educationally" really cover the ground and at the sametime you bring out a phrase used in another part of the Constitution in aslightly similar context." (See: the Parliamentary Debates on FirstAmendment Bill, 1 June 1951, p. 9830.)

Had it not been for a desire to achieve symmetry in drafting,"economically" would have been included. Had this been done, thecreamy layer would have been excluded ab initio.

20. In the 15(4) debate, Shri M.A. Ayyangar's wanted to add"economic" to ensure that the rich SEBCs would not receive specialprovisions. "I thought "economic" might be added so that rich menmay not take advantage of this provision. In my part of the country there arethe Nattukkottai Chettiars who do not care to have English education, but theyare the richest of the lot -- should there be special reservation forthem?" (See: The Parliamentary Debates on First Amendment Bill, 1 June1951, p. 9817.) (emphasis added).

This hesitation aside, Shri M.A. Ayyangar was satisfied that the term"economic" was included in the term "social." The Framerswere worried about creamy layer inclusion, albeit under a different name. Theywanted to ensure that the "richest of the [backward] lot" would notbenefit from special provisions. With their sentiment on our side, we are evenmore confident that we should strike out in the direction that strikes down lawsthat include the creamy layer.

Including the creamy layer means unequals are treated as equals inviolation of the right to equality under Articles 14, 15 and 16.

21. In the present case, Dr. Rajeev Dhavan, the learned Senior Counsel andMr. S.K. Jain, the learned counsel vehemently argued on behalf of petitionersthat it is precisely because equality is at issue that the creamy layer must beremoved. The creamy layer has been the subject matter of a number of celebratedjudgments of this Court. In a seven Judge Bench in State of Kerala & Anotherv. N. M. Thomas & Others (1976) 2 SCC 310, Justice Mathew, in his concurringjudgment, dealt with the right to equality in the following words: "66. Theguarantee of equality before the law or the equal opportunity in matters ofemployment is a guarantee of something more than what is required by formalequality. It implies differential treatment of persons who are unequal.Egalitarian principle has therefore enhanced the growing belief that Governmenthas an affirmative duty to eliminate inequalities and to provide opportunitiesfor the exercise of human rights and claims. ...." (emphasisadded)

22. In Indra Sawhney & Others v. Union of India & Others (1992) Supp(3) SCC 217, (hereinafter referred to as Sawhney I), this Court has aptlyobserved that reservation is given to backward classes until they cease to bebackward, and not indefinitely. This Court in para 520 (Sawant, J.) has statedas under: "Society does not remain static. The industrialisation and theurbanisation which necessarily followed in its wake, the advance on political,social and economic fronts made particularly after the commencement of theConstitution, the social reform movements of the last several decades, thespread of education and the advantages of the special provisions includingreservations secured so far, have all undoubtedly seen at least some individualsand families in the backward classes, however small in number, gainingsufficient means to develop their capacities to compete with others in everyfield. That is an undeniable fact. Legally, therefore, they are not entitled tobe any longer called as part of the backward classes whatever their originalbirthmark. It can further hardly be argued that once a backward class, always abackward class. That would defeat the very purpose of the special provisionsmade in the Constitution for the advancement of the backward classes, and forenabling them to come to the level of and to compete with the forward classes,as equal citizens." (emphasis supplied).

23. For our purposes, creamy layer OBCs and non-creamy layer OBCs are notequals when it comes to moving up the socio- economic ladder by means ofeducational opportunity. Failing to remove the creamy layer treats creamy layerOBCs and non- creamy layer OBCs as equals. In the same paragraph, Justice Sawantstated that "... to rank [the creamy layer] with the rest of the backwardclasses would ... amount to treating the unequals equally..." violatingthe equality provisions of the Constitution.

24. According to the Kerala Legislature, there was no creamy layer in Kerala.The legislation was challenged in Indra Sawhney v. Union of India & Others(2000) 1 SCC 168, (hereinafter referred to as Sawhney II). The Court struck thetwo provisions that barred creamy layer exclusion, concluding that non-inclusionof the creamy-layer and inclusion of forward castes in reservation violates theright to equality under Article 14 and the basic structure.

25. In Sawhney II at para 65, the Court had gone to the extent of observingthat not even the Parliament, by constitutional amendment, could dismantle thebasic structure by including the creamy layer in reservation: "What we meanto say is that the Parliament and the legislature in this country cannottransgress the basic feature of the Constitution, namely, the principle ofequality enshrined in Article 14 of which Article 16(1) is a facet. Whether thecreamy layer is not excluded or whether forward castes get included in the listof backward classes, the position will be the same, namely, that there will be abreach 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 thelist of backward classes will, therefore, be totally illegal. Such an illegalityoffending the root of the Constitution of India cannot be allowed to beperpetuated even by constitutional amendment."

26. By definition, the creamy and non-creamy are unequal when it comes toschooling. Relative to their non-creamy counterparts, the creamy have a distinctadvantage in gaining admission. While the creamy and non-creamy are given equalopportunity to gain admission in the reserved category, this equality exists inname only. Will the OBC daughter of a Minister, IAS officer or affluent businessowner attend better schools than her non-creamy counterpart? Yes. Will she go toprivate tuitions unaffordable to her non-creamy counterpart? Certainly. Andwhere will she cram for the all-decisive entrance exams? In a coaching center?Of course. Will she come home from school to find a family member waiting?Probably. And when she seeks help from her parents, are they educated and ableto give superior assistance with schoolwork? Most likely.

27. I take judicial notice of these anecdotes, for they flesh out a simplefact: she has all the resources that her non-creamy counterpart lacks. It is nosurprise that she will outperform the non-creamy. On average, her lot will takethe reserved seats.

28. I cannot consider the OBC Minister's daughter and the non- creamy OBC asequals in terms of their chances at earning a university seat; nor can I allowthem to be treated equally. To lump them in the same category is an unreasonableclassification. Putting them in head-to-head competition for the same seatsviolates the right to equality in Articles 14, 15 and 16.

29. In its conclusion at para 122, M. Nagaraj & Others v. Union of India& Others (2006) 8 SCC 212, a Constitution Bench of this Court while dealingwith Article 16(4A) and 16(4B) with regard to SC and ST observed as under:-"We reiterate that the ceiling limit of 50%, the concept of creamy layerand the compelling reasons, namely, backwardness, inadequacy of representationand overall administrative efficiency are all constitutional requirementswithout which the structure of equality of opportunity in Article 16 wouldcollapse."

It was contended that Nagraj is obiter in regard to creamy layer exclusion.According to Nagraj, reservation in promotion for SC/ST is contingent onexclusion of the creamy layer. (paras 122, 123 and 124). The contention of theUnion of India cannot be accepted. The discussion regarding creamy layer is farfrom obiter in Nagraj. If the State fails to exclude the SC/ST creamy layer, thereservation must fall. Placing this contingency in the conclusion makes thediscussion of creamy layer part of the ratio.

30. In sum, creamy layer inclusion violates the right to equality. That is,non-exclusion of creamy layer and inclusion of forward castes in reservationviolates the right to equality in Articles 14, 15 and 16 as well as the basicstructure of the Constitution.

If you belong to the creamy layer, you are notSEBC

31. One of the prominent questions raised in the writ petitions is whethercreamy layer OBCs should be considered socially and educationally backward underthe provisions of Article 15(5). While interpreting this provision, a basicsyllogism must govern our decision. If you belong to the creamy layer, you aresocially advanced and cannot be given the benefit of reservation. (See: SawhneyI).

32. Once one is socially advanced, he cannot be socially and educationallybackward. He who is socially forward is likely to be educationally forward aswell. If either condition (social or educational) goes unmet, one cannot qualifyfor the benefit of reservation as SEBC. Being socially advanced, the creamylayer is not socially backward pursuant to Articles 15(4) and 15(5) of theConstitution.

33. Even the text of Articles 15(4) and 15(5) provides for creamy layerexclusion. In this sense, one could say that the term "creamy layer"is synonymous with "non-SEBC".

34. Similar interpretation is given to "backward classes" underArticle 16(4). The Parliament could not reasonably make reservation fornon-backwards. Such a Bill on the face of it would violate the Constitution. InSawhney I, the Government of India issued an O.M. on 13 August 1990, reserving27% of Government posts to SEBCs. Writing for the majority, at para 792 of page724, Justice Reddy explained that the creamy layer was not SEBC. "The veryconcept of a class denotes a number of persons having certain common traitswhich distinguish them from the others. In a backward class under Clause (4) ofArticle 16, if the connecting link is the social backwardness, it should broadlybe the same in a given class. If some of the members are far too advancedsocially (which in the context, necessarily means economically and, may alsomean educationally) the connecting thread between them and the remaining classsnaps. They would be misfits in the class. After excluding them alone, would theclass be a compact class. In fact, such exclusion benefits the trulybackward"

Even though the O.M. was silent on the issue of creamy layer, Justice Reddyexcluded the creamy layer at para 859(3)(d). The O.M. could not go into effectuntil the creamy layer was excluded. [para 861(b)]. Exclusion was only in regardto OBC; SC/ST were not touched. (para 792). In Sawhney I, the entire discussionwas confined only to Other Backward Classes. Similarly, in the instant case, theentire discussion was confined only to Other Backward Classes. Therefore, Iexpress no opinion with regard to the applicability of exclusion of creamy layerto the Scheduled Castes and Scheduled Tribes.

Creamy Layer OBCs are not educationally backward

35. In addition to social backwardness, the text of 15(5) demands thatrecipients are also educationally backward. Even though the creamy layer'sstatus as socially advanced is sufficient to disqualify them for preferentialtreatment, the creamy layer from any community is usually educated and will wantthe same for its children. They know that education is the key to success. Formost, it made them. People belonging to this group do not require reservation.

Creamy Layer Inclusion Robs the Poor and Gives to theRich:

36. In a number of judgments, the view has been taken that the creamy layer'sinclusion takes from the poor and gives to the rich.

37. Our Courts in following cases had taken the same view. [See: N.M Thomas(supra), para 124 (seven-Judge Bench); K.C. Vasanth Kumar & Another v. Stateof Karnataka, 1985 (Supp) SCC 714, paras 2, 24 and 28 (five-Judge Bench);Sawhney I., paras 520, 793 and 859(3)(d) (nine-Judge Bench); Ashoka Kumar Thakurv. State of Bihar & Others (1995) 5 SCC 403, paras 3, 17 and 18 (two-JudgeBench); Sawhney II, paras 8-10, 27, 48 and 65-66 (three-Judge Bench); Nagaraj(supra), paras, 120-124 (five-Judge Bench); Nair Service Society v. State ofKerala, (2007) 4 SCC 1; paras 31 and 49-54 (two-Judge Bench)].

38. In Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India& Others (1981) 1 SCC 246, Justice Iyer had this to say about the creamylayer:

"92. ... Maybe, some of the forward lines of the backward classes have the best of both the worlds and their electoral muscle qua caste scares away even radical parties from talking secularism to them. We are not concerned with that dubious brand. In the long run, the recipe for backwardness is not creating a vested interest in backward castes but liquidation of handicaps, social and economic, by constructive projects. All this is in another street and we need not walk that way now.

94. ...Nor does the specious plea that because a few harijans are better off, therefore, the bulk at the bottom deserves no jack-up provisions merit scrutiny. A swallow does not make a summer. Maybe, the State may, when social conditions warrant, justifiably restrict harijan benefits to the harijans among the harijans and forbid the higher harijans from robbing the lowlier brethren."

39. Creamy layer inclusion was not enough to strike an entire provision inthis case. He suggests that creamy layer exclusion is an issue to be dealt withat a later time. "98. The argument that there are rich and influentialharijans who rob all the privileges leaving the serf-level sufferers assuppressed as ever. The Administration may well innovate and classify to weedout the creamy layer of SCs/STs but the court cannot force the State in thatbehalf."

Thus, Justice Iyer does not mandate creamy layer exclusion; rather, he leavesthe question to the State.

40. Apart from judicial pronouncements, the Oversight Committee suggestedthat failure to exclude the creamy layer would lead to unfair results. TheCommittee was cautious to reach a conclusion.

41. In its Report, it stated that "... the decision taken was to leavethe matter to the Government of India, keeping in mind the fact that the 'creamylayer' is not covered in the Reservation Act, 2006." (See: OversightCommittee, Vol. 1, p. 33 and 4.2.)

42. Before "leaving" the matter to the Government, the Committeenevertheless made its recommendation: "In case it is decided not to excludethe 'creamy layer', the poorest among the OBCs will be placed at adisadvantage." (emphasis added). (See: Oversight Committee at Appendix I inits Report at p. 70, para 1.13). At page 69 of Vol. I of its Report, theCommittee offered data to support this conclusion: "1.6: Appendix-2examines in detail the status of the socio-economic development of OBCs inrespect of such parameters as relate to poverty, health, education,unemployment, workforce participation, land ownership etc. The analysis of theNSS data clearly brings out that inclusion of the creamy layer will result inreserved seats getting pre-empted by the OBCs from the top two deciles at thecost of the poorer income deciles of the OBCs. Thus almost all rural OBCs aswell as Urban OBCs from the Northern, Central and Eastern regions of India willbe deprived of the intended benefits of reservation. [emphasis added]

1.7: On the other hand, it was argued that if the creamy layer of OBCs is denied access to reservation in education pari-passau with the principle applied in the case of employment, the reserved seats may not get filled up, again defeating the purpose of bringing in reservation for the OBCs. In a case study from Karnataka (included in Annexure X), it has been clearly shown that the OBC quotas have been utilized without any compromise with academic excellence in a situation where the creamy layer has been excluded. The apprehension that seats will not be filled up if the creamy layer is excluded has been comprehensively shown to be unfounded. The case study shows that the performance of students from below the creamy layer is outstanding and much better than general category students."

43. The Committee could have played it safe. Despite some opposition, theCommittee included its opinion on the matter. And that opinion is unequivocal:the creamy must be excluded.

44. What is allegedly for the poor goes to the rich. Is that reasonable?Trumpeted by the Parliament as a "boost to the morale of thedowntrodden" and " in the right direction of ensuring socialjustice to other backward classes " and "ensuring social justiceto those weaker sections ", Article 15(5) dupes those who actuallyneed preferential treatment. (See: Prof. Basudeb Barman, M.P., the ParliamentaryDebates, p. 531, December 21, 2005; Prof. M. Ramadass, M.P., at p. 510; and ShriC.K. Chandrappan, M.P., at p. 494 respectively). For the poorest of the poor,reservation in college is an empty promise. Few of the financially poor OBCsattend high school, let alone college. Instead of rewarding those that completePlus 2, the 93rd Amendment (Art 15(5)) poses another barrier: they will have tocompete with the creamy layer for reserved seats.

45. As explained, the poor lack the resources to compete with the creamy, who"snatch away" those seats. {N. M. Thomas (supra), para 124 (Iyer,J.)}. With the creamy excluded, poor OBCs would compete with poor OBCs  theplaying field levelled. As it stands, the Amendment and Act serve one purpose:they provide a windfall of seats to the rich and powerful amongst the OBCs. Itis unreasonable to classify rich and poor OBCs as a single entity. As noted,this violates the Article 14 right to equality.

46. Unless the creamy layer is removed, OBCs cannot exercise their grouprights. The Union of India and other respondents argued that creamy layerexclusion is wrong because the text of the 93rd Amendment bestows a benefit on"classes", not individuals. While it is a group right, the group mustcontain only those individuals that belong to the group. I first take the entirelot of creamy and non creamy layer OBCs. I then remove the creamy layer on anindividual basis based on their income, property holdings, occupation, etc. Whatis left is a group that meets constitutional muster. It is a group right thatmust also belong to individuals, if the right is to have any meaning. If one OBCcandidate is denied special provisions that he should have received by law, itis not the group's responsibility to bring a claim. He would be the one to doso. He has a right of action to challenge the ruling that excluded him from thespecial provisions afforded to OBCs. In this sense, he has an individual right.Group and individual rights need not be mutually exclusive. In this case, it isnot one or the other but both that apply to the impugned legislation.

Whether the Creamy Layer exists outsideIndia?:

47. An interesting question arises: does the concept of creamy layer existoutside India? A 2003 study carried out in the United States suggests that itdoes. The study by William Bowen, former president of Princeton University,found that when you look at students with the same Scholastic Aptitude Test(SAT) scores, certain groups have a better chance of being admitted to college."The New Affirmative Action," by David Leonhardt, New York Times, 30September 2007, p. 3. All things being equal, one's chance of gaining admissionis augmented by belonging to one of the preferred groups. Individuals belongingto these groups are given preferential treatment over those who do not.

48. The study demonstrated that Black, Latino and Native- Americans with thesame SAT scores as White or Asian students had a 28% better chance than theWhite or Asian students at gaining admission; those whose parents attended thecollege had a 20% advantage over those whose parents did not; and the poorreceived no advantage whatsoever over the rich. (See: New York Times article, p.3.)

49. The statistics indicate that the failure to exclude the creamy layerultimately leads to a situation in which deserving students are excluded. Whenwe revert to the Indian scenario, as long as the Government gives handouts tocertain groups, the creamy layer therein will "lap" them up. A schemein which the poor receive no advantage can be remedied by excluding the creamylayer.

50. Even the Mandal Commission, which was established in 1979 with a mandateto identify the socially and educationally backward, admitted that the creamylayer was robbing fellow OBCs of reservation. In reference to Tamil Nadu, itsaid: "In actual operation, the benefits of reservation have gone primarilyto the relatively more advanced castes amongst the notified backwardclasses." (See: P.37, 8.13 of the Report of the Backward ClassesCommission, First Part, Vols. 1-2, 1980). It also stated that: "it is nodoubt true that the major benefits of reservation.....will be cornered by themore advanced sections....." but reasoned that this was acceptable becausereform is presumably slow and should start with the more advanced of thebackward. (See: Page 62, para 13.7 (recommendations)).

51. In N. M. Thomas & Others case (supra), Krishna Iyer, J. in hisconcurring judgment in para 124 noted that the research conducted by the A.N.Sinha Institute of Social Studies, Patna, had revealed a dual society amongharijans in which a tiny elite gobbles up the benefits.

Severing the Creamy Layer

52. Technically speaking, I am severing the implied inclusion of the creamylayer. It is severable for two reasons. First, a nine- Judge Bench in Sawhney Isevered a similar provision wherein the creamy layer was not expressly included,upholding the rest of the O.M.'s reservation scheme. Second, because theParliament must have known that Sawhney I had excluded the creamy layer, itseems likely that the Parliament also realized that this Court may do the same.A cursory review of the Parliamentary Debates regarding Article 15(5) clearlyreveals that the Parliament discussed the Sawhney I judgment in detail. (See:for example, comments made by Shri Mohan Singh, p.474 and Shri Devendra Prasad,pages 478-479 on 21 December 2005). Had the Parliament insisted on creamy layerinclusion, it could have said as much in the text of 15(5). Instead, theParliament left the text of 15(5) silent on the issue, delegating the issue ofOBC identification to the executive in Section 2(g) of the Reservation Act.

53. The test for severability asks a subjective question: had the Parliamentknown its provision would be struck would it still have passed the rest of thelegislation? (See: R.M.D. Chamarbaugwalla & Another v. Union of India &Another, AIR 1957 SC 628 at page 637 at para 23). It is never easy to say whatthe Parliament would have done had it known that part of its amendment would besevered. Nevertheless, I find it hard to imagine that the Parliament would havesaid, "if the creamy is excluded, the rest of the OBCs should be deniedreservation in education." It seems unlikely that it would have been anall-or- nothing proposition for the Parliament, when the very goal of theimpugned legislation of promoting OBC educational advancement does not depend oncreamy layer inclusion. For these reasons, I sever or exclude the impliedinclusion of the creamy layer.

Identification of Creamy Layer

54. Income as the criterion for creamy layer exclusion is insufficient andruns afoul of Sawhney I. (See: page 724 at para 792). Identification of thecreamy layer has been and should be left to the Government, subject to judicialdirection. For a valid method of creamy layer exclusion, the Government may useits post-Sawhney I criteria as a template. (See: O.M. of 8-9-1993, para2(c)/Column 3, approved by this Court in Ashoka Kumar Thakur (supra), para 10).This schedule is a comprehensive attempt to exclude the creamy layer in whichincome, Government posts, occupation and land holdings are taken into account.

The Office Memorandum is reproduced hereunder:

No. 36012/22/93- Estt (SCT)
Government of India
Ministry of Personnel, Public Grievances & Pension (Department of Personnel & Training)
New Delhi, the 8th September, 1993

OFFICE MEMORANDUM

Subject: Reservation for Other Backward Classes in Civil Posts and Services under the Government of India-- Regarding.

The undersigned is directed to refer to this Department's O.M. No.36012/31/90-Estt(SCT) dated 13th August, 1990 and 25th September, 1991 regarding reservation for Socially and Economically Backward Classes in Civil Posts and Services under the Government of India and to say that following the Supreme Court judgment in Indra Sawhney v. Union of India & Others (Writ Petition (Civil) No.930 of 1990) the Government of India appointed an Expert Committee to recommend the criteria for exclusion of the socially advanced persons/sections from the benefits of reservation for Other Backward Classes in civil posts and services under Government of India.

2. Consequent to the consideration of the Expert Committee's recommendation this Department's Office Memorandum No.36012/31/90-Estt. (SCT), dated 13.8.1990 referred to in para (1) above is hereby modified to provide as follows:-

(a) 27% (Twenty seven percent) of the vacancies in civil posts and services under the Government of India, to be filled through direct recruitment, shall be reserved for the Other Backward Classes. Detailed instructions relating to the procedure to be followed for enforcing reservation will be issued separately.

(b) Candidates belonging to OBCs recruited on the basis of merit in an open competition on the same standards prescribed for the general candidates shall not be adjusted against the reservation quota of 27%.

(c) (i) The aforesaid reservation shall not apply to persons/sections mentioned in column 3 of the Schedule to this Office Memorandum. (ii) The rule of exclusion will not apply to persons working as artisans or engaged in hereditary occupations, callings. A list of such occupations, callings will be issued separately by the Ministry of Welfare.

(d) The OBCs for the purpose of the aforesaid reservation would comprise, in the first phase, the castes and communities which are common to both the lists in the report of the Mandal Commission and the State Government's Lists. A list of such castes and communities is being issued separately by the Ministry of Welfare.

(e) The aforesaid reservation shall take immediate effect. However, this will not apply in vacancies where the recruitment process has already been initiated prior to the issue of this order.

3. Similar instructions in respect of public sector undertakings and financial institutions including public sector banks will be issued by the Department of Public Enterprises and by the Ministry of Finance respectively from the date of this Office Memorandum.

SCHEDULE
Description of Category To whom rule of exclusion will apply.

I. CONSTITUTIONAL POSTS: Son(s) and daughter(s) of

(a) President of India;
(b) Vice President of India;
(c) Judges of the Supreme Court and of the High Courts;
(d) Chairman & Members of UPSC and of the State Public Service Commission; Chief Election Commissioner; Comptroller & Auditor General of India;
(e) Persons holding Constitutional positions of like nature.

II. SERVICE CATEGORY

A. Group A/Class 1 officers of the All India Central and State Services (Direct Recruits) Son(s) and daughter(s) of

(a) parents, both of whom are Class I officers;
(b) parents, either of whom is a Class I officer;
(c) parents, both of whom are Class I officers, but one of them dies or suffers permanent incapacitation.
(d) parents, either of whom is a Class I officer and such parent dies or suffers permanent incapacitation and before such death or such incapacitation has had the benefit of employment in any International Organisation like UN, IMF, World Bank, etc. for a period of not less than 5 years.
(e) parents, both of whom are class I officers die or suffer permanent incapacitation and before such death or such incapacitation of the both, either of them has had the benefit of employment in any International Organisation like UN, IMF, World Bank, etc. for a period of not less than 5 years.
(f) Provided that the rule of exclusion shall not apply in the following cases :-

(a) Sons and daughters of parents either of whom or both of whom are Class-I officers and such parent(s) dies / die or suffer permanent incapacitation.
(b) A lady belonging to OBC category has got married to a Class-I officer, and may herself like to apply for a job.

Group B/Class II officers of the Central & State Services (Direct Recruitment) Son(s) and daughter(s) of

(a) parents both of whom are Class II officers.
(b) parents of whom only the husband is a Class II officer and he gets into Class I at the age of 40 or earlier.
(c) parents, both of whom are Class II officers and one of them dies or suffers permanent incapacitation and either one of them has had the benefit of employment in any International Organisation like UN, IMF, World Bank, etc. for a period of not less than 5 years before such death or permanent incapacitation;
(d) parents, of whom the husband is a Class I officer (direct recruit or pre-forty promoted) and the wife is a Class II officer and the wife dies; or suffers permanent incapacitation; and
(e) parents, of whom the wife is a Class I officer (Direct Recruit or pre-forty promoted) and the husband is a Class II officer and the husband dies or suffers permanent incapacitation.

Provided that the rule of exclusion shall not apply in the following cases: Sons and daughters of

(a) Parents both of whom are Class II officers and one of them dies or suffers permanent incapacitation.
(b) Parents, both of whom are Class II officers and both of them die or suffer permanent incapacitation, even though either of them has had the benefit of employment in any International Organisation like UN, IMF, World Bank, etc. for a period of not less than 5 years before their death or permanent incapacitation.

C. Employees in Public Sector Undertakings etc. The criteria enumerated in A & B above in this Category will apply mutatis mutandi to officers holding equivalent or comparable posts in PSUs, banks, Insurance Organisations, Universities, etc. and also to equivalent or comparable posts and positions under private employment, Pending the evaluation of the posts on equivalent or comparable basis in these institutions, the criteria specified in Category VI below will apply to the officers in these Institutions.

III. ARMED FORCES INCLUDING PARAMILITARY FORCES

(Persons holding civil posts are not included) Son(s) and daughter(s) of parents either or both of whom is or are in the rank of Colonel and above in the Army and to equivalent posts in the Navy and the Air Force and the Para Military Forces;

Provided that:-

(i) if the wife of an Armed Forces Officer is herself in the Armed Forces (i.e., the category under consideration) the rule of exclusion will apply only when she herself has reached the rank of Colonel;

(ii) the services ranks below Colonel of husband and wife shall not be clubbed together:

(iii) if the wife of an officer in the Armed Forces is in civil employment, this will not be taken into account for applying the rule of exclusion unless the falls in the service category under item No.II in which case the criteria and conditions enumerated therein will apply to her independently.

IV. PROFESSIONAL CLASS AND THOSE ENGAGED IN TRADE AND INDUSTRY

(I) Persons engaged in profession as a doctor, lawyer, Chartered Accountant, Income- Tax Consultant, financial or management consultant, dental surgeon, engineer, architect, computer specialist, film artists and other film professional, author, playwright, sports person, sports professional, media professional or any other vocations of like status. Criteria specified against Category VI will apply:

(II) Persons engaged in trade, business and industry: Criteria specified against Category VI will apply:

Explanation:

(i) Where the husband is in some profession and the wife is in a Class II or lower grade employment, the income / wealth test will apply only on the basis of the husband's income.

(ii) If the wife is in any profession and the husband is in employment in a Class II or lower rank post, then the income/wealth criterion will apply only on the basis of the wife's income and the husband's income will not be clubbed with it.

V. PROPERTY OWNERS

A. Agricultural holdings -- Son(s) and daughter(s) of persons belonging to a family (father, mother and minor children) which owns

(a) only irrigated land which is equal to or more than 85% of the statutory ceiling area, or
(b) both irrigated and unirrigated land, as follows:

(i) The rule of exclusion will apply where the pre-condition exists that the irrigated area (having been brought to a single type under a common denominator) 40% or more of the statutory ceiling, limit for irrigated land (this being, calculated by excluding the unirrigated portion). If this pre-condition of not less than 40% exists, then only the area of unirrigated land will be taken into account. This will be done by converting the unirrigated land on the basis of the conversion formula existing, into the irrigated type. The irrigated area so computed from unirrigated land shall be added to the actual area of irrigated land and if after such clubbing together the total area in terms of irrigated land is 80% or more of the statutory ceiling limit for irrigated land, then the rule of exclusion will apply and dis-entitlement will occur.

(ii) The rule of exclusion will not apply if the land holding of a family is exclusively unirrigated.

B. Plantations
(i) Coffee, tea, rubber, etc.
(ii) Mango, citrus, apple plantations etc.

Criteria of income/wealth specified in Category VI below will apply.
Deemed as agricultural holding and hence criteria at A above under this Category will apply.

C. Vacant land and/or buildings in urban areas or urban agglomerations: Criteria specified in Category VI below will apply.

Explanation: Building may be used for residential, industrial or commercial purpose and the like two or more such purposes.

VI. INCOME/WEALTH TEST Son(s) and daughter(s) of

(a) Persons having gross income of Rs.1 lakh or above or possessing wealth above the exemption limit as prescribed in the Wealth Tax Act for a period of three years.

(b) Persons in Categories I, II, III and VA who are not disentitled to the benefit of reservation but have income from other sources of wealth which will bring them within the income/wealth criteria mentioned in (a) above.

Explanation:

(i) Income from salaries or agricultural land shall not be clubbed;
(ii) The income criteria in terms of rupee will be modified taking into account the change in its value every three years. If the situation, however, so demands, the interregnum may be less.

Explanation: Wherever the expression "permanent incapacitation" occur in this schedule, it shall mean incapacitation which results in putting an officer out of service.

-- Smt. Sarita Prasad Joint Secretary to the Government of India."

55. In sum, the schedule excludes the children of those who holdconstitutional posts, e.g., the children of the President of India, SupremeCourt Judges, Chairman and Members of UPSC and others are excluded. Class 1Officers' children are not eligible for OBC perks either. When both parents areClass-II Officers, their children are excluded. The same criteria that apply toClass-I and II officers apply to children of parents who work at high levelswithin the private sector. Agricultural owners are excluded when their irrigatedholdings are more than or equal to 85% of the statutory ceiling. The O.M.further excludes persons having a gross annual income of Rs.2.5 lakh or more.The Government raised the income limit from Rs.1 to Rs.2.5 lakh on 09.03.2004vide O.M. 36033/3/2004.

56. The creamy layer schedule of the O.M. dated 8.9.93, in my opinion, is notcomprehensive. This should be revised periodically - preferably once in every 5years, in order to ensure that creamy layer criteria take changing circumstancesinto account.

57. Apart from the people who have been excluded vide the office memo, I urgethe Government to make it more comprehensive. The Government should considerexcluding the children of sitting and former Members of Parliament (MP) andMembers of Legislative Assemblies (MLA) from special benefits. If constitutionalauthorities have been excluded from benefits because of their status orresources, the same should apply to children of former and sitting MPs and MLAs.I hope the judiciary will not have to involve itself in this matter.

2. Applying Article 21A to the Reservation Act

58. On 18 December 2006, in the Rajya Sabha Debate on the Reservation Act,Member of Parliament and former Governor, Dr. P.C. Alexander summed up whatwould become one of Petitioners' arguments. Should Rs.17,000 crores be spent onimplementing the Reservation Act for higher education when primary/secondaryschooling is in such bad shape? Dr. Alexander stated: "Sir, this spendingRs.17,000 crores or whatever amount is needed for adding seats in theEngineering colleges, IIMs and IITs is reversing our priorities. If you have themoney for education, spend it on schools. Spend it on the rural areas forprimary schools; spend it on the schools, which are poorly starved in the urbanareas. Instead of doing that, you spend it by adding to the numbers because youwant to appease the so-called poorer sections in the higher castes. So, we havetaken care of you and you tell the backward classes we are taking care of all ofyou. This is where we land ourselves in trouble. We have cash resources. Theyshould be spent where priorities are fixed clearly in our eyes and we don't wantto do that."

Spending on higher at the expense of lower education raises the specter ofconflict with Article 21A. By the 86th Amendment, Article 21A was inserted inour Constitution. Article 21A reads as follows: "The State shall providefree and compulsory education to all children of the age of six to fourteenyears in such manner as the State may, by law, determine."

59. Under Article 21A, it is a mandatory obligation of the State to providefree and compulsory education to all children aged six to fourteen. In order toachieve this constitutional mandate, the State has to place much greateremphasis on allocating more funds for primary and secondary education. There isno corresponding constitutional right to higher education. The entire Nation'sprogress virtually depends upon the proper and effective implementation ofArticle 21A.

60. This Court in Unni Krishnan, J.P. & Others v. State of Andhra Pradesh& Others (1993) 1 SCC 645 para 166 held as under: "... right toeducation is implicit in and flows from the right to life guaranteed by Article21. That the right to education has been treated as one of transcendentalimportance in the life of an individual [and] has been recognized not only inthis country since thousands of years, but all over the world.  withouteducation being provided to citizens of this country, the objectives set forthin the Preamble to the Constitution cannot be achieved. The Constitution wouldfail."

This observation encouraged the Parliament to insert Article 21A into theConstitution.

61. In Unni Krishnan (supra), Justice Reddy observed that the quality ofeducation in Government schools was extremely poor and that the schools werewoefully inadequate to the needs of the children. He noted that many countriesspend 6% to 8% of Gross Domestic Product on education. Our expenditure oneducation is just 4% of GDP.

62. Though an improvement over past performance, the overall educationpicture leaves much to be desired. The bad news is really bad. Even where wehave seen improvement, there is still failure. A survey by Pratham, an NGO,fleshes out the acute problems found in rural schools. (See: ASER 2007 Rural Annual Status of Education Report for 2007, published on January 16,2008). The survey covered 16,000 villages. As Pratham indicates, there are anestimated 140 million children in the age group 6 to 14 years in primaryschools. Of these 30 million cannot read, 40 million can recognize a fewalphabets, 40 million can read some words, and 30 million can read paragraphs.Over 55 million of these children will not complete four years of school,eventually adding to the illiterate population of India. The national literacyrate is 65%.

63. 24 districts with more than 50,000 out of school children means we havefailed 24 times over. 71 districts in which there are 60 students per teacher isjust as bad, if not worse. According to Pratham (and in line with the Ministryof HRD's six- month review), the number of out of school children has hoveredaround 7,50,000. [page 6]. Moreover, it goes without saying that children needproper facilities. Today, just 59% of schools can boast of a useable toilet.[page 49].

64. The quality of education is equally troubling. For standards I and II,only 78.3% of students surveyed could recognize letters and read words or morein their own language. [page 47]. In 2006, it was even worse  only 73.1%could do so. It is disheartening to peruse the statistics for standards III toV, where only 66.4% could read Standard I text or more in their own language in2007. [page 47]. As Pratham stated at page 7: "What should be more worryingthough, is the fact that in class 2, only 9 percent children can read the textappropriate to them, and 60 percent cannot even recognise numbers between 10 and99."

65. In the third to fifth standards, 40% of students surveyed could notsubtract. The latest figures indicate that 58.3% children in the fifth standardread at the level appropriate for second Standard students. [page 32]. In both2005 and 2007, only 74.1% of enrolled children were in attendance. [page 49].

66. The learned Solicitor General, Mr Vahanvati, submitted that theGovernment has now placed sufficient emphasis on primary education. In2001-2002, the Government launched Sarva Shiksha Abhiyan (SSA). This nationalprogramme's goal is to universalize elementary education. It supplementsGovernmental spending on education. As the Solicitor General explained, it wasfounded on the idea that education for those between the ages of six to fourteenis a fundamental right. In this way, SSA seeks to fulfill the Government'sobligation under Article 21A to provide free and compulsory education to thisage group. Some of the SSA's accomplishments merit mention.

67. By March 2007, 2,03,577 toilets had been constructed or were underconstruction, covering 87% of the goal; more than six crore free textbooks hadbeen supplied  96% of the goal; 1,93,220 new schools had been completed orwere under construction, i.e., 80% of the desired mark. The learned SolicitorGeneral further provided that enrolment for all districts in 2004- 05 forclasses I-V was 11,82,96,540. In 2005-06, the number increased to 12,46,15,546.A similar increase was seen in Classes VI-VII/VIII: from 3,77,17,490 to4,36,67,786. The total number of teachers increased from 36,67,637 in 2003-04 to46,90,176 in 2005-06.

68. It is the learned Solicitor General's contention that SSA was responsiblefor many of the gains cited above. This includes the improved statistics on thestudent-teacher ratio, out of school children and enrollment rate for girls.

69. While the Government is on the right track with regard to improving theinfrastructure of our system, books and buildings only go so far. They arenecessary but not sufficient for achieving the ultimate goals of (1) keepingchildren in school, (2) ensuring that they learn how to think critically and (3)ensuring that they learn skills that will help them secure gainful employment.The quality of education provided in the majority of primary schools is woeful.That is why I find it necessary to review Government spending on education -- especially at the primary/secondary level.

70. Undoubtedly, the Government has allocated more funds of late foreducation, but we need to have far more allocation of funds and much greateremphasis on free and compulsory education. Anything less would flout Article21A's mandate. According to H.R.D. Annual Reports read with the Union of IndiaBudget 2008-09, we spend roughly seven times as much on the individual collegestudent than the individual primary or secondary student. 

Spending per Student:Comparing that which is spent on each primary/secondary student versus eachhigher education student

* = Estimated number of studentsfor primary/secondary level is taken from 2004-2005 Annual Report, p. 250 at http://www.education.nic.in/AR/AR0607-en.pdf. 

In the same Annual Report,11777296 students were enrolled in higher education in 2004- 2005. Forconsistency's sake, I have used the 2004-2005 estimates. I have found noinformation that suggests that enrolment for one has significantly outpaced theother.

** Government of India, Expenditure Budget Vol. 1, 2008-2009, p. 6, TotalExpenditure of Ministries/Departments (school education/literacy and highereducation have been added).

71. In a country where only 18% of those in the relevant age group make it tohigher education, this is incredible. See NSSO 1999-2000. It is not suggestedthat higher education needs to be neglected or that higher education should notreceive more funds, but there has to be much greater emphasis on the primaryeducation. Our priorities have to be changed. Nothing is really more importantthan to ensure total compliance with Article 21A. How can a sizeable portion ofthe population be precluded from realizing the benefits of development whenalmost everyone acknowledges that the children are our future?

72. Education for children up to the age of fourteen years should be free.This has also been suggested in the recommendations of the Kothari Commission onEducation in 1966. Taking the country's rampant poverty into account, freeeducation up to the age 14 years is absolutely imperative. There is no other wayfor the poor to climb their way out of this predicament.

73. Mr. P.P. Rao, learned Senior Advocate, rightly submitted that when youlack a school building, teachers, books and proper facilities, your schoolingmight be "free" but it is not an "education" in any propersense. Adequate number of schools must be established with proper infrastructurewithout further delay. In order to achieve the constitutional goal of free andcompulsory education, we have to appreciate the reality on the ground. Asizeable section of the country is still so poor that many parents are compelledto send their children to work. The State must carve out innovative policies toensure that parents send their children to school. The Mid-Day Meal Scheme willgo a long way in achieving this goal. But, apart from Mid-Day Meals, theGovernment should provide financial help to extremely poor parents.

74. In addition to free education and/or other financial assistance, theyshould also be given books, uniforms and any other necessary benefits so thatthe object of Article 21A is achieved. Time and again, this Court, in a numberof judgments, has observed that the State cannot avoid its constitutionalobligation on the ground of financial inabilities. (See: Hussainara Khatoon& Others (III) v. Home Secretary, State of Bihar, Patna (1980) 1 SCC 98, 107at para 10).

75. In Vasanth Kumar (supra) at para 150, Justice Venkataramiah suggestedthat the State provide preferential treatment such as tuition, scholarships,free boarding and lodging, etc. According to UNESCO's Education for All, GlobalMonitoring Report (2008) at page 115, at least fourteen countries havecash-transfer programmes that target poor households with school-age children.The largest programme is in Brazil, where 46 million people receive an educationtransfer of up to $44 USD monthly per household in extreme poverty with childrenbelow age 16. According to the Report, the programme has reduced drop-out ratesby up to 75% among beneficiaries in its more recent stage.

76. Such a programme is not foreign to India. According to UNICEF, the Stateof Gujarat put the idea of financial incentives for youth into action:"Figures indicate that the school enrolment drive of the state Governmentsupported by incentives like Vidyalaxmi bond of Rs.1,000 given to each girl whocompletes primary education and 60 kg of wheat for tribal girls attendingschool, has met with significant success. In addition to the various incentivesby the Government, many a corporate houses and community have also come forwardto motivate parents and children by donating school bags, uniforms, stationery,etc. As a result, the drop-out rate has come down from 35.31 % in 1997-1998 to3.24% in 2006-2007 in class 1-5. In girls, this rate has dropped from 38.95% to5.97 in the same time period."

77. In January 2008, Haryana Chief Minister Mr. Bhupinder Singh Hoodaunfurled an incentive scheme for SC students in which students would receive aone-time payment in addition to a monthly stipend for attending school. (See:"Incentives announced to curb dropout rate", The Tribune, 5 Jan.2008). The relevant portion is mentioned hereinbelow: "Secretary,education, Rajan Gupta said a one-time allowance of Rs.740 to Rs.1,450 would begiven to SC students from class I to XII. ...Under the monthly incentive scheme,boys and girls studying in class I to V would be given Rs100 and Rs.150,respectively, per month and boys and girls of class VI to VIII Rs.150 andRs.200. Similarly, boys and girls of class IX to XII would be given Rs.200 andRs.300, respectively, and boys and girls studying science subjects in class XIand XII Rs.300 and Rs.400, respectively.  This monthly incentive to thestudents would be deposited in their bank accounts to maintain transparency inthe scheme, he added."

78. In the name of transparency, students' attendance records could be madeavailable to administrators and parents. Students would be paid to attendschool. They would receive a sum for each day of school that they attended. Ifyou only attend 7 out of 10 school days, you would only receive 70% of thestipend.

79. Ultimately, this is the most important aspect of implementing Article21A, incentives should be provided to parents so that they are persuaded to sendtheir children to school. More than punishment, creative incentive programmeswill go a long way in the implementation of the fundamental right enshrinedunder Article 21A.

Historical Perspective on CompulsoryEducation:

80. Almost two centuries ago, Clause 43 of The Charter Act of 1813 madeeducation a State responsibility. [See: "Free and Compulsory Education:Genesis and Execution of Constitutional Philosophy", Dr. P.L. Mehta andRakhi Poonga, Deep and Deep Publications, New Delhi (1997)]. [pages 42-47]. TheHunter Commission (1882-83) was the first to recommend universal education inIndia. Thereafter, the Patel Bill, 1917 was the first compulsory educationlegislation. It proposed to make education compulsory from ages 6 to 11.

81. The Government of India Act, 1935 provided that "education should bemade free and compulsory for both boys and girls." Free and compulsoryeducation got a further boost when the Zakir Hussain Commission recommended thatthe State should provide it. The 1944 Sargent Report strongly recommended freeand compulsory education for children aged six to fourteen. By 1947, primaryeducation had been made compulsory in 152 urban areas and 4995 rural areas.

82. The State has been making some endeavour to provide free and compulsoryeducation since 1813 in one form or the other. When the original Framersgathered at the Constituent Assembly, their desire to provide free andcompulsory education was well established. The real question in the Debate waswhether the original Framers would make free and compulsory educationjusticiable or not. They oscillated between the options, first placing it in thefundamental rights and later moving it to the directive principles of Statepolicies under Article 45 of the Constitution.

83. Over 50 years later, the Parliament revisited the subject. TheParliamentary debate on Article 21A offers a glimpse into the history ofcompulsory education in other countries. The then Minister of Human ResourceDevelopment, Dr. M.M. Joshi, referred to the speech of Shri Gopal KrishnaGokhale on compulsory education. While debating a bill in the imperiallegislative council in 1911, Shri Gokhale said that in most countries:"....elementary education is both compulsory and free, and in a few, thoughthe principle of compulsion is not strictly enforced or has not been introducedit is either wholly or for the most part gratitutious, in India alone it isneither compulsory nor free. Thus in Great Britain and Ireland, France, Germany,Switzerland, Austria, Hungary, Italy, Belguim, Norway, Sweden, the United Statesof America, Canada, Australia and Japan it is compulsory and free. .... InSpain, Portugal, Greece, Bulgaria, Servia and Rumania, it is free, and intheory, compulsory, though compulsion is not strictly enforced." [Lok SabhaDebates, 28 November, 2001, Vol.20, page 476].

84. In 1948, the United Nations made its own pronouncement on compulsoryeducation. Article 26(1) of the Universal Declaration of Human Rights made freeand compulsory education a lofty if not enforceable goal. While many statesconsider it an authoritative interpretation of the United Nations Charter, theDeclaration is not a treaty and is not intended to be legally binding. Article26(1) states: "Everyone has the right to education. Education shall befree, at least in the elementary and fundamental stages. Elementary educationshall be compulsory. Technical and professional education shall be madegenerally available and higher education shall be equally accessible to all onthe basis of merit."

85. Our original Framers put a similar emphasis on the matter, placing freeand compulsory education in the Directive Principles. The un-amended Article 45provided that: "The State shall endeavour to provide, within a period often years from the commencement of this Constitution, for free and compulsoryeducation for all children until they complete the age of fourteen years."

86. At this juncture, I deem it appropriate to refer to the ParliamentaryDebate on the aspect of free and compulsory education. In the Lok Sabha debateof 28 November 2001 at Vol. 20, Shri M.V.V.S. Murthi, at page 499, stated:

"Unless the Government makes primary education compulsory, no village can develop. If I say what they are doing in Andhra Pradesh, some Members may again cry foul. In Andhra Pradesh, we are having Education Committees. If there are any dropouts, the Committee will go to the village and find out the reason as to why they have dropped out. It is very important."

87. The Report of the Kothari Commission, 1964-1966, headed by Prof. D. S.Kothari, provided important recommendations on compulsory education.Nevertheless, the circumstances of the day compelled it to soften itssuggestions. The Nation was relatively poor and could not afford drasticincreases in education spending. Some excerpts of this report are reproduced asunder: "5.01. But in any given society and at a given time, thedecisions regarding the type, quantity and quality of educational facilitiesdepend partly upon the resources available and partly upon the social andpolitical philosophy of the people. Poor and traditional societies are unable todevelop even a programme of universal primary education. But rich andindustrialized societies provide universal secondary education and expanding andbroad-based programmes of higher and adult education. Feudal and aristocraticsocieties emphasize education for a few. But democratic and socialisticsocieties emphasize mass education and equalization of educationalopportunities. The principal problem to be faced in the development of humanresources, therefore, is precisely this: How can available resources be bestdeployed to secure the most beneficial form of educational development? How mucheducation, of what type or level of quality, should society strive to provideand for whom? 5.03 Increasing the Educational Level of Citizens. In the next twodecades the highest priority must be given to programmes aimed at raising theeducational level of the average citizen. Such programmes are essential ongrounds of social justice, for making democracy viable and for improving theproductivity of the average worker in agriculture and industry. The most crucialof these programmes is to provide, as directed by Article 45 of theConstitution, free and compulsory education of good quality to all children upto the age of 14 years. In view of the immense human and physical resourcesneeded, however, the implementation of this programme will have to be phasedover a period of time." 88. When Article 21A was introduced, some Membersof Parliament argued that financially poor parents who fail to send theirchildren to school should not be punished and that the word"compulsion" in this Article should be understood to apply exclusivelyto the State.

89. Let me examine this argument. The 86th Amendment made three changes tothe Constitution. It added Articles 21A and 51A(k) and amended Article 45. Iturn my focus to Article 51A(k). In addition to rejecting an amendment thatwould have neutered compulsory education, the Parliament made a positivegesture. Though it never passed legislation seeking to implement compulsoryeducation, it had not completely ignored the subject. From Article 51A(k), itbecomes clear that parents would be responsible for sending their children toschool. Article 51A read with 51A(k) is reproduced as under: "It shall bethe duty of every citizen of India  who is a parent or guardian to provideopportunities for education to his child or, as the case may be, ward betweenthe age of six and fourteen years." 90. Just as Article 51A(a) does notpenalize disrespect of the National Flag, Article 51A(k) does not penalizeparents/guardian for failing to send children to school. There is, of course,legislation that gives teeth to Article 51A(a). (See: The Prevention of Insultsto National Honour Act, 1971, Section 3A).

91. Article 51A(k) indicates that it is parents, not the State, who areresponsible for making sure children wake up on time and reach school. Thus,Article 21A read with Article 51A(k) distributes an obligation amongst the Stateand parents: the State is concerned with free education, parents withcompulsory. Notwithstanding parental duty, the State also has a role to play inensuring that compulsory education is feasible  a topic I will cover below.

92. The Central Government has made some effort to fulfill its obligationunder Article 21A with regard to "free education." Sarva ShikshaAbhiyan is one such example. When it comes to "compulsory education,"the Central Government has made no such effort. The Parliament has not passedany legislation. The executive has not issued any order. What we have is apatchwork of different State and Union Territory laws. These States/UTs (andNCR) include: Assam, Andhra Pradesh, Bihar, Chhatisgarh, Goa, Gujarat, Haryana,Himachal Pradesh, Jammu & Kashmir, Karnataka, Kerala, Madhya Pradesh,Maharashtra, Orissa, Punjab, Rajasthan, Sikkim, Tamil Nadu, Uttar Pradesh, WestBengal, Delhi, Andaman & Nicobar Islands.

93. The majority of the States and Union Territories levy very small fines onparents. I note that these laws do not go into effect with one unexcusedabsence. Notice is given to the parents, giving them time to remedy the problem.Of course, enforcement is almost always a different story.

94. In contrast to the relatively light aforementioned sentences, theCompulsory Education Bill, 2006 introduced in the Rajya Sabha would provide sixmonths imprisonment as a penalty for those who preclude children from going toschool. If this Bill becomes law, Section 7 would dictate the following:"If any person including parents of children prevents any boy or girl childfrom going to school or causes hindrance or obstruction in any way, he shall bepunishable with imprisonment, which may extend to six months."

95. It seems that the Bill simultaneously targets employers and parents.Employers would be punished when they hire a child to work too much or duringschool hours. Similarly, parents would also be punished for allowing this tohappen. The Bill would also provide for scholarships, free hostel facilities andother incentives, "whenever necessary" and "as may beprescribed".

96. In Bandhua Mukti Morcha v. Union of India & Others, (1997) 10 SCC 549at page 557 at para 11, the Court explained why education should be compulsory.In essence, a citizen is only free when he can make a meaningful challenge tohis fellow citizens or Government's attempt to curtail his natural freedom. Forthis to happen, he needs a certain degree of education. This is why Article 21Amay be the most important fundamental right. Without it, a citizen may nevercome to know of his other rights; nor would he have the resources to adequatelyenforce them. The relevant passage at para 11 reads as under:- "A freeeducated citizen could meaningfully exercise his political rights, dischargesocial responsibilities satisfactorily and develop a spirit of tolerance andreform. Therefore, education is compulsory. Primary education to the children,in particular, to the child from poor, weaker sections, Dalits and Tribes andminorities is mandatory. The basic education and employment-oriented vocationaleducation should be imparted so as to empower the children within these segmentsof the society to retrieve them from poverty and, thus, develop basic abilities to live a meaningful life  Compulsory education, therefore, to thesechildren is one of the principal means and primary duty of the State forstability of the democracy, social integration and to eliminate socialtensions."

97. In contrast to Article 51A(k), State and Union Territory laws andParliamentary intent with regard to Article 21A, the Court in Mukti Morcha wasinclined to suggest, not hold, that the State was exclusively responsible forcompulsory education. It went on to reaffirm M.C. Mehta v. State of Tamil Nadu& Others (child labour matter) (1996) 6 SCC 756. In that case, the Courttook up the issue of child labour in hazardous fields when it learnt of anaccident in a cracker factory in Sivakasi.

98. The said case at para 28 identified poverty as the root cause of childlabour: "Of the aforesaid causes, it seems to us that ... poverty is basicreason which compels parents of a child, despite their unwillingness, to get itemployed. The Survey Report of the Ministry of Labour (supra) had also statedso. Otherwise, no parents, specially no mother, would like that a tender-agedchild should toil in a factory in a difficult condition, instead of its enjoyingits childhood at home under the paternal gaze."

99. In other words, parents send children to work because parents have noother choice. Food comes first. If the State does not provide extra income so asto remove the incentive to send children to work, it is wasting its time on meregesture. The Court in para 29 concluded that action must be taken: "It maybe that [child labour] would be taken care of to some extent by insisting oncompulsory education. Indeed, Neera [Burns] thinks that if there is at all ablueprint for tackling the problem of child labour, it is education. Even if itwere to be so, the child of a poor parent would not receive education, if perforce it has to earn to make the family meet both the ends. Therefore, unlessthe family is assured of income aliunde, problem of child labour would hardlyget solved; and it is this vital question which has remained almost unattended.We are, however, of the view that till an alternative income is assured to thefamily, the question of abolition of child labour would really remainwill-o'-the-wisp." (emphasis added).

100. It is interesting to note that compulsory education has been introducedin one form or the other in various countries. From the historical experience ofthese nations, we learn that the legislation pertaining to compulsory educationhas played an important role in improving educational outcomes.

Compulsory education's roots in the United States

101. Compulsory education has had a long history outside of India. In 1852,the State of Massachusetts enacted the first compulsory attendance law in theUnited States; though compulsory education laws existed much earlier in manystates, the first dating back to 1642 in Massachusetts. "Were CompulsoryAttendance and Child Labor Laws Effective? (See: An analysis from 1915 to1939." (2001) at p. 2. Prof. Adriana Lleras-Muney of Princeton University.)

Reasons from abroad for implementing compulsory education:

102. Prof. Lleras-Muney explains that those who advocated for compulsoryeducation believed that universal education was necessary to promote democracyand guarantee a common American culture. (Page 11). Given the influx ofimmigrants, some of whom came from undemocratic countries, many supporters oflegislation viewed compulsory education as an instrument for assimilation.

103. Other reasons cited by compulsory education proponents in the UnitedStates included the reduction of crime, racism and inequality. Prof. Oreopoulosof the University of Toronto cites to sources that make it appear as though thereasons for adopting compulsory education in Canada mirrored those cited in theUnited States: the emphasis was on good citizenship and economic development:"Archibald Macallum, an Ontario teacher, summarized the latter argumentvigorously in an 1875 report favouring the introduction of compulsory schoolingin Canada: 'Society has suffered so cruelly from ignorance, that its riddance isa matter of necessity, and by the universal diffusion of knowledge alone canignorance and crime be banished from our midst; in no other way can the bestinterests of society be conserved and improved than by this one remedy  thecompulsory enforcement of this great boon  the right of every Canadianchild to receive that education that will make him a good, loyal subject,prepared to serve his country in the various social functions which he may becalled on to fill during his life; and prepare him, through grace, for the lifeto come' (Annual Report of the Ontario Teachers' Association, 1875, as cited inPrentice and Houston 1975, 1756). (See: The Canadian Journal of Economics,Vol. 39, No.1, February (2006) "The compelling effects of compulsoryschooling: the evidence from Canada," Prof. Oreopoulos, at page 23)."

Empirical data indicating that compulsory education has a positiveeffect:

104. Prof. Oreopoulos provides data that show the fruits of imposingeducation on citizens. Crime may be lowered, health improved and civic activityincreased. Compulsory education may also lead to a substantial increase inincome for individuals. Moreover, compulsory education, if it does not cause,may at least contribute to an increase in bilingualism and employment and areduction in poverty. The relevant portion is reproduced hereunder: "(Page24). Other papers find evidence of social returns, but for non-pecuniaryoutcomes. Lochner and Moretti (2002), for example, find that compulsoryschooling lowers crime, while Lleras-Muney (2002) finds a correlation withimproved health. In studies of the United States and United Kingdom, Dee (2003)and Milligan, Moretti, and Oreopoulos (2003) estimate that tighter restrictionson leaving school early correspond to increased levels of civic activity (likevoting and discussing politics).  My analysis suggests that studentscompelled to complete an extra grade of school have historically experienced anaverage increase of 915% in annual income.

(Page 48). I find that the introduction of tighter provincial restrictions on leaving school between 1920 and 1990 raised average grade attainment and incomes. Students compelled to attend an extra year of school experienced an average increase in annual income of about 12%. I also find that compulsory schooling is associated with significant benefits in terms of other socio-economic outcome measures ranging from bilingualism, employment, and poverty status. These results hold up against many specifications checks and are entirely consistent with previous studies."

105. In addition to increased income, Prof. Lleras-Muney found that legallyrequiring a child to attend school for one more year increased educationalattainment by roughly five percentage points. (Page 8). Educational attainmentrefers to time spent in school. 7 Example of compulsory education statutes

106. The causes of low enrolment, high drop-out rates and frequent truancy inthe U.S. and India differ, but the consequences thereof do not. In either case,citizens who lack education are at an extreme disadvantage. In India, povertyhas been identified as the ultimate cause of lackluster enrolment and attendancerates. Children are compelled to work. In developed countries like the UnitedStates or Canada, children rarely fail to attend school because of economicconstraints. Instead, a number of different factors may contribute to truancy.High school students may drop out " because they detest school, lackmotivation, or anticipate little reward from graduation." (See: TheCanadian Journal of Economics, "The compelling effects of compulsoryschooling: the evidence from Canada," Prof. Oreopoulos, p. 23, (quotingfrom Eckstein, Zvi, and Kenneth I. Wolpin (1999) "Why youths drop out ofhigh school: the impact of preferences, opportunities, and abilities,"Econometrica 67, 1295 339).

107. As I detail below, students and parents in the United States often facethe same fines when students fail to attend school. Fines for students make moresense when low self-control is the reason for which they fail to attend school.At the same time, punishing Indian students who have no choice but to work wouldmake no sense. Such a punishment should not be borrowed from the United States.

108. In many jurisdictions in the United States, the attendance officer isresponsible for enforcing compulsory attendance laws for his area or school.Given the overwhelming problem of sub- par enrolment and attendance in India, wedoubt that one school official could sufficiently do the work of inspectingplaces of employment for children who have violated attendance laws. 109.Indeed, existing legislation in India already envisages the employment ofattendance officers. The Delhi Primary Education Act, 1960, Sec. 7. Yet, thereis nothing to suggest that these employees have adequately dealt with truancy.As mentioned, this is, in part, due to the economic conditions in which manyparents find themselves. Financial assistance or incentives must be given. Onlythen, may the Government actively enforce compulsory attendance legislation.110. We must also remember that it is not only the child who fails to attend butalso the child who fails to enroll that has violated an attendance law. 111.Before taking issue with State/Union Territory compulsory education statutes, Inote that education has traditionally been reserved for the States. Only in1976, vide the 42nd Amendment of the Constitution, did education become a partof Concurrent List of Schedule 7. In its 165th Report, the Law Commission ofIndia has also recommended enactment of Central Legislation in this respect.Putting education in the Concurrent List turns out to be a positive development,given the States' failure to provide effective legislation.

112. The States' laws fail on two accounts. First, they are too lenient tohave a deterrent effect. Second, the legislation is not adequately enforced, inpart, because it does not require police officers to do the job. If we analyzethe legislation passed by different States, another conclusion becomes obvious:no State has provided for an adequate punishment whose effect would be to detercitizens from committing a violation.

113. It is necessary to reproduce some of the various compulsory educationlaws of the States. 114. Under Section 7 of The Tamil Nadu Compulsory ElementaryEducation Act, 1994: "Every parent or guardian of a child of school age whofails to discharge his duty under section 4 [duty of parent to cause child toattend elementary school] shall be punishable with fine which may extend to onehundred rupees."

115. Section 18(1) of The Delhi Primary Education Act, 1960 states: "Ifany parent fails to comply with an attendance order passed under Section 13, heshall be punishable with fine not exceeding two rupees, and, in the case ofcontinuing contravention, with an additional fine not exceeding fifty naye paisefor every day during which such contravention continues after conviction for thefirst of such contraventions. Provided that the amount of fine payable by anyone person in respect of any child in any one year shall not exceed fiftyrupees."

116. Analysis of these State laws reveals that they are weak in character andperhaps have never been implemented. If we compare these laws with their sisterstatutes in United States, we realize that the U.S. laws are far stronger. 117.In Wisconsin, parents who fail to send their children to school may have to paya fine of not more than $500 or face imprisonment for not more than 30 days orboth. [Wisconsin Statute Sections 118.15(1)(a) and 118.15(5)(a)1.a]. For asecond or subsequent offense, they may face a fine of not more than $1,000 orimprisonment for not more than 90 days or both. [Wisconsin Statute Sections118.15(1)(a) and 118.15(5)(a)1.b]. Alternatively, they may be sentenced toperform community service. [Wisconsin Statute Sections 118.15(1)(a) and118.15(5)(a)2] . Unlike Wisconsin, Tamil Nadu and Delhi's laws have no teeth.

118. The other main problem is implementation of these laws. Neither theState Governments nor their police agencies are at all serious aboutimplementing these compulsory laws. There are hardly any cases where even fineshave been imposed. Some form of compulsory education has been on the statutebooks since 1917. We have seen Western countries enforce these laws. MostWestern countries enjoy almost universal literacy while 35% of our population isilliterate. While a robust financial incentive programme may not have beenpossible in 1917, it is today. If we wish to develop further, we must educateeach and every citizen aged six to fourteen.

119. In order to give effect to the constitutional right under Article 21A,it is imperative that the Central Government pass suitable legislation. The fineshould be suitably increased. Imprisonment should be a sentencing option aswell. The current patchwork of State/UT legislation on compulsory education isinsufficient. Small monetary fines do not go far enough to ensure theimplementation of Article 21A.

120. A disclaimer is attached to these recommendations. The recommendationsfor the enforcement of compulsory education are contingent upon theimplementation of a financial incentive program that would make education viablefor the poor. The carrot must come before the stick. If there is no financialincentive program in place, the Government cannot expect the poorest of the poorto send their children to school.

121. The Parliament should criminally penalize those parents who receivefinancial benefits and, despite such payments, send their children to work andpenalize those employers who preclude children from attending school orcompleting homework. It has become necessary that the Government set a realistictarget within which it must fully implement Article 21A regarding free andcompulsory education for the entire country. The Government should suitablyrevise budget allocations for education. The priorities have to be setcorrectly. The most important fundamental right may be Article 21A, which, inthe larger interest of the nation, must be fully implemented. Without Article21A, the other fundamental rights are effectively rendered meaningless.Education stands above other rights, as one's ability to enforce one'sfundamental rights flows from one's education. This is ultimately why thejudiciary must oversee Government spending on free and compulsory education.

122. At the same time, spending is an area in which the judiciary must notoverstep its constitutional mandate. The power of the purse is found in Part V,Chapter II of the Constitution, which is dedicated to the Parliament. (See:Articles 109 and 117 for "Money Bills.") Nevertheless, it remainswithin the judiciary's scope to ensure that the fundamental right under Article21A of Part III is upheld. In M.C. Mehta v. Union of India (vehicular pollution)(1998) 6 SCC 63, this Court did not ignore the Article 21 right to life whendeadly levels of pollution put the right at stake. Nor will this Court ignorethe Article 21A right to education, when a dearth of quality schooling put it injeopardy. The Government's education programmes and expenditures, wanting inmany respects, are an improvement over past performance. They nearly fall shortof the constitutional mark. Lackluster performance in primary/secondary schoolsis caused in part because Government places college students on a higherpedestal. Money will not solve all our education woes, but a correction ofpriorities in step with the Constitution's mandate will go a long way.

Opposition to Compulsory Education

123. "Compulsory" connotes enforcement. The Parliament rejected anamendment that would have saved parents from penal penalties. If education werenot compulsory, who checks in with parents who have sent their children to work?If no authorities inquire, the message is clear: We, the State, do not care ifyour child goes to school. Taking the opposing view, Shri G.M. Banatwalla wantedto make sure parents were not punished: "...this word 'compulsion' needsto be properly defined. The word, 'compulsion' is not to be related to thestudent or the parents. Parents cannot be penalized for being too poor to sendtheir children to school. The word, 'compulsion' has to be understood inrelation to the State and the obligation of the State to provide for freeeducation. p. 523." (See: The Parliamentary Debates on Article 21A, p. 523,28 November 2001 at Vol. 20, No. 6-10) 124. The Parliament had the opportunityto accept such a definition of "compulsory." But they chose otherwise.Amendment number four, moved by Shri G.M. Banatwalla at p. 548, stated that:"Provided that in making any law to provide for free and compulsoryeducation under this article, the State shall not (b) enforce any penalsanctions on a parent or guardian."

125. Of paramount importance, this Amendment was "negatived." [Seep. 548]. Those who wanted a safe-haven from penal sanction for parents lost.From this vote, we know that the Parliament intended to allow for futurelegislation that would impose penal sanctions for violations of legislationunder Article 21A.

Conclusion on Free and Compulsory Education

126. Given that so many children drop out of, or are absent from, schoolbefore they turn fourteen, "free education" alone cannot solve theproblem. The current patchwork of laws on compulsory education is insufficient.Monetary fines do not go far enough to ensure that Article 21A is upheld.

127. A carrot-and-stick approach appears to be the best way to implementArticle 21A. Financial incentive programmes have worked well in other countries.We should follow their lead. Once that is done, the Government should strictlyenforce effective compulsory education laws. Such a policy is bound to pay off.

In sum, the Central Government should enact legislation that:

(a) provides low-income parents/guardians with financial incentives such that they may afford to send their children to school;

(b) criminally penalizes those who receive financial incentives and despite such payment send their children to work;

(c) penalizes employers who preclude children from attending school or completing homework;

(d) the penalty should include imprisonment; the aforementioned Bill would serve as an example. The State is obligated under Article 21A to implement free and compulsory education in toto;

(e) Until we have achieved the object of free and compulsory education, the Government should continue to increase the education budget;

(f) the Parliament should set a deadline by which time free and compulsory education will have reached every child. This must be done within six months.

128. With regard to (a), the state cannot cite budgetary constraints or lackof resources as an excuse for failing to provide financial assistance/incentivesto poor parents. See Hussainara Khatoon (supra), at page 107, para 10. 129.Article 21A's reference to "education" must mean something. Thisconclusion is bolstered by the Parliament's Statement of Objects and Reasons forArticle 21A: "The Constitution of India in a Directive Principle containedin article 45, has made a provision for free and compulsory education for allchildren up to the age of fourteen years within ten years of promulgation of theConstitution. We could not achieve this goal even after 50 years of adoption ofthis provision. The task of providing education to all children in this agegroup gained momentum after the National Policy of Education (NPE) was announcedin 1986. The Government of India, in partnership with the State Governments, hasmade strenuous efforts to fulfill this mandate and, though significantimprovements were seen in various educational indicators, the ultimate goal ofproviding universal and quality education still remains unfulfilled. In order tofulfill this goal, it is felt that an explicit provision should be made in thePart relating to Fundamental Rights of the Constitution.

1. With a view to making right to free and compulsory education a fundamental right, the Constitution (Eighty-third Amendment) Bill, 1997 was introduced in the Parliament to insert a new article, namely, article 21A conferring on all children in the age group of 6 to 14 years the right to free and compulsory education. The said Bill was scrutinized by the Parliament Standing Committee on Human Resource Development and the subject was also dealt with in its 165th Report by the Law Commission of India.

2. After taking into consideration the report of the Law Commission of India and the recommendations of the Standing Committee of the Parliament, the proposed amendments in Part III, Part IV and Part IVA of the Constitution are being made which are as follows 

3. The Bill seeks to achieve the above objects"

130. The Article seeks to usher in "the ultimate goal of providinguniversal and quality education." (emphasis supplied). Implied within"education" is the idea that it will be quality in nature. Currentperformance indicates that much improvement needs to be made before we qualify"education" with "quality." Of course, for children who areout school, even the best education would be irrelevant. It goes without sayingthat all children aged six to fourteen must attend school and education must bequality in nature. Only upon accomplishing both of these goals, can we say thatwe have achieved total compliance with Article 21A.

131. Though progress has been made, the Parliament's observation upon passingArt 21A still applies: the goal of providing universal and quality education"... still remains unfulfilled." 

3. Does the 93rd Amendment violatethe Basic Structure of the Constitution by imposing reservation on unaidedinstitutions?

132. Imposing reservation on unaided institutions violates the basicstructure by obliterating citizens' 19(1)(g) right to carry on an occupation.Unaided entities, whether they are educational institutions or privatecorporations, cannot be regulated out of existence when they are providing apublic service like education. That is what reservation would do. That is anunreasonable restriction. When you do not take a single paisa of public money,you cannot be subjected to such restriction. The 93rd Amendment's reference tounaided institutions must be severed.

133. No unaided institution filed a writ petition in this case. Had eitherthis Court or respondents had an objection, they could have raised it at anytime during the proceedings. We listened to the parties for months. We receivedvoluminous written submissions from the parties, yet no objection was made withregard to the fact that no unaided institution had filed a writ petition. Whilewe would usually implead a party if we felt their presence was necessary to theresolution of the dispute, the facts of this case are peculiar. The best lawyersin the country argued the case for both sides, and a brief from an unaidedinstitution would not have added much if anything to the substance of thearguments. The Government will likely target unaided institutions in the future.At that time, this Court will have to go through this entire exercise de novo todetermine if unaided institutions should be subject to reservation. Such anexercise would unnecessarily cause further delay. The fate of lakhs of studentsand thousands of institutions would remain up in the air. (See: Minerva MillsLtd. & Others v. Union of India & Others (1980) 3 SCC 625). Therefore,looking to the extraordinary facts, I have decided to proceed with this aspectof the matter in the larger public interest.

134. Amendments by their very nature are often enabling provisions. If theyclear the way for future legislation that would in fact violate the basicstructure, the Court need not wait for a potential violation to become an actualone. It can strike the entire amendment ab initio. The question of potentialwidth was resolved in Minerva Mills (supra), paras 38-39. The Court acknowledgedthat it generally does not anticipate constitutional issues before they arise,but it held that circumstances required it to act before unconstitutionalprovisions could be passed under the authority of an unconstitutional amendment.

"38. But, we find it difficult to uphold the preliminary objection because, the question raised by the petitioners as regards constitutionality of Sections 4 and 55 of the 42nd Amendment is not an academic or a hypothetical question. The 42nd Amendment is there for anyone to see and by its Sections 4 and 55 amendments have been made to Articles 31-C and 368 of the Constitution. An order has been passed against the petitioners under Section 18-A of the Industries (Development and Regulation) Act, 1951, by which the petitioners are aggrieved."

"39. Besides there are two other relevant considerations which must be taken into account while dealing with the preliminary objection. There is no constitutional or statutory inhibition against the decision of questions before they actually arise for consideration. In view of the importance of the question raised and in view of the fact that the question has been raised in many a petition, it is expedient in the interest of justice to settle the true position. Secondly, what we are dealing with is not an ordinary law which may or may not be passed so that it could be said that our jurisdiction is being invoked on the hypothetical consideration that a law may be passed in future which will injure the rights of the petitioners. We are dealing with a constitutional amendment which has been brought into operation which, of its own force, permits the violation of certain freedoms through laws passed for certain purposes. We, therefore, overrule the preliminary objection and proceed to determine the point raised by the petitioners." [emphasis added]

There is not one precise definition of the width test, however. The test asksif an amendment is so wide that in effect (actual or potential), it goes beyondthe Parliament's amending power. Kesavananda, paras 531-532: "But that thereal consequences can be taken into account while judging the width of the poweris settled. The Court cannot ignore the consequences to which a particularconstruction can lead " To make such a determination, it follows thatthe Court should ask whether an amendment infringes constitutional limitationsas opposed to those evolved from mere common law. (See: Nagaraj, para 103).

135. As a preliminary matter, I turn to the cases by which the basicstructure doctrine has been established. It has been stated that, "Kesavanandahad propounded the doctrine, the Indira Gandhi Election case had upheld it, andMinerva engraved it on stone." (See: Granville Austin, "Working aDemocratic Constitution", at page 506].

136. Kesavananda and its progeny provide that an amendment to theConstitution must not alter the Constitution's basic structure. To reach aconclusion regarding a basic structure challenge, I employ the following generalstandard: an amendment alters the basic structure if its actual or potentialeffect would be to damage a facet of the basic structure to such an extent thatthe facet's original identity is compromised.

137. To determine if legislation infringes constitutional limitations and isthus invalid, we use the two-step effect test (also known as the impact orrights test). Step One requires us to first ask if legislation affects a facetof the basic structure.

If it does, then at Step Two we ask if the effect on the facet of thestructure is to such an extent that the facet's original identity has beenaltered. Applying the effect test is another way of saying that the form of anamendment is irrelevant; it is the consequence thereof that matters. (See:Kesavanda at para 532 and I.R. Coelho v. State of Tamilnadu (2007) 2 SCC 1 atConclusion (ii) at page 111).

138. The terms "abridge" and "abrogate" have beenemployed by this Court to distinguish between acceptable and unacceptablelegislation. Whether legislation abridges or abrogates is a question of degree.Using these terms is another way of asking whether the legislation had such aneffect that it changed the basic structure of the Constitution. If legislationmerely abridges the basic structure, the structure's identity remains. Thelegislation is upheld. In this sense, the Parliament may take away or destroyfundamental rights by amending the Constitution, provided that the basicstructure is not altered.

139. If it abrogates the basic structure, the structure and thus theConstitution lose their identities. The legislation must be struck down. This isdetermined on a case-by-case basis by applying the effect test (impact/rightstests). (See: Coehlo). I further note that a total deprivation of fundamentalrights, even in one limited area, may amount to an abrogation of the basicstructure. (See: Minerva Mills, para 59). 7 Step One: Does Article 15(5) affecta facet of the basic structure?

140. In the instant case, Article 15(5) expressly precludes the applicationof Article 19(1)(g). Whenever reservations are implemented under Article 15(5),citizens are stripped of their fundamental rights under Article 19(1)(g). Byexcluding Article 19(1)(g), Article 15(5) obviously affects Article 19(1)(g), afacet of the basic structure of the Constitution. Step One is therefore cleared.What is more, Article 19(1)(g) belongs to the Golden Triangle  Articles 14,19 and 21 are the three fundamental rights that stand above the rest. Writingfor the majority in Minerva Mills, Justice Chandrachud provides an eloquentjustification for shielding the Golden Triangle from attack. To achieve a moreegalitarian society, individual liberty must be protected: "Para 74 ofMinerva Mills: Three Articles of our Constitution, and only three, stand betweenthe heaven of freedom into which Tagore wanted his country to awake and theabyss of unrestrained power. They are Articles 14, 19 and 21. Article 31C hasremoved two sides of that golden triangle which affords to the people of thiscountry an assurance that the promise held forth by the Preamble will beperformed by ushering an egalitarian era through the discipline of fundamentalrights, that is, without emasculation of the rights to liberty and equalitywhich alone can help preserve the dignity of the individual."

141. The Golden Triangle's significance becomes clear when we consider thatGovernment may suspend Article 14 and 19 rights in order to implement anemergency. (See: Articles 358 and 359) (prior to the 44th Amendment, all PartIII rights could be curtailed during emergency; this Amendment precludes theState from denying Articles 20 and 21 to citizens during emergency). In a sense,democracy is only restored when the Triangle is returned to the citizens.Without the Triangle, democracy is impossible: "para 63 Every State isgoal-oriented and claims to strive for securing the welfare of its people. Thedistinction between the different forms of Government consists in that a realdemocracy will endeavour to achieve its objectives through the discipline offundamental freedoms like those conferred by Articles 14 and 19. Those are themost elementary freedoms without which a free democracy is impossible and whichmust therefore be preserved at all costs. Besides, as observed by Brandies, J.,the need to protect liberty is the greatest when Government's purposes arebeneficent. If the discipline of Article 14 is withdrawn and if immunity fromthe operation of that article is conferred, not only on laws passed by theParliament but on laws passed by the State Legislatures also, the politicalpressures exercised by numerically large groups can tear the country asunder byleaving it to the legislature to pick and choose favoured areas and favouriteclasses for preferential treatment."

142. United States Supreme Court Justice Brandeis' word of caution isrelevant to today's dispute wherein the Government trumpets reservation inhigher education as an answer to our age-old problems of poverty and caste. Atfirst blush, it sounds as if reservation in higher education would help thebackward help themselves. The road out of poverty is paved with education.However, the "devil is the details." With elementary freedom on theline, I must carefully scrutinize those details.

143. The right to freedom under Article 19 has been long recognized as anatural and inalienable right that belongs to all citizens. Indeed, what wouldIndependence mean without it? Chief Justice Sikri cites the following passage inKesavananda at para 300: "That article (Article 19) enumerates certainfreedoms under the caption "right to freedom" and deals with thosegreat and basic rights which are recognised and guaranteed as the natural rightsinherent in the status of a citizen of a free country." (Per PatanjaliSastri, C.J., in State of West Bengal v. Subodh Gopal Bose [1954] S.C.R. 587,596)."

144. With fundamental rights in jeopardy, I shall review the cases in whichthe basic structure doctrine has been implemented to invalidate constitutionalamendments. By looking at these cases synoptically, we get a sense as to howmuch damage the basic structure can withstand before crumbling. In Kesavananda,the second part of Article 31C precluded courts from reviewing whether a lawunder Article 39(b) or (c) promoted the policy for which it was enacted. Thisviolated the basic structure. Article 31C was introduced by the 25th Amendment.

145. In Indira Nehru Gandhi v. Raj Narain & Another (1975) Supp SCC 1,the Court struck Article 329A(4) as violative of the basic structure. Thisprovision appropriated the Court's power to adjudicate election laws,encroaching on the judiciary in violation of separation of powers. See JusticeMatthew's opinion at para 325. It was introduced by the 39th Amendment. InMinerva Mills, the Court held sections 4 and 55 of the 42nd Amendment inviolation of the basic structure. Section 4 sought to expand 31C such that alllaws giving effect to Directive Principles, not just those intended to promoteArticle 39(b) or (c), would be immune to an Article 14 or 19 challenge. Section55 would have barred judicial review of constitutional amendments.

146. In P. Sambamurthy v. State of A.P. (1987) 1 SCC 362, the Courtinvalidated Article 371-D(5), finding that the Parliament had violated the ruleof law and consequently the basic structure, by removing judicial review fromthe High Court and placing it in the hands of one of the parties  the StateGovernment. In L. Chandra Kumar v. Union of India (1997) 3 SCC 261, the Courtheld that Articles 323A-2D and 323B-3D violated the basic structure in that theyremoved judicial review of the High Courts and Supreme Court under Articles226/227 and 32, respectively. These articles were introduced by the 42ndAmendment to empower the Parliament or the State Legislatures to establishTribunals for various substantive areas of law: tax, labour, criminal, etc.

147. Two broad themes surface from these cases. When judicial review isbarred, democracy evaporates. And when Fundamental Rights are at stake, theymust be harmonized with, not made subject to, the Directive Principles. Sections4 and 55 of the 42nd Amendment were especially egregious violations of the basicstructure. Had Section 4 been upheld, citizens' fundamental rights would havebeen at the mercy of one organ of Government. "If Governments always couldbe trusted, there would have been no need for Fundamental rights." MrPalkhivala in oral arguments in Kesavananda, quoting from the learned Mr H.M.Seervai, who was opposing counsel in that case. Mr Palkhivala was reading fromSeervai, H.M., "Fundamental Rights: A Basic Issue," published in threeinstallments in the Times of India, 14, 15, 16 February 1955. (See: GranvilleAustin at pages 263-264 in "Working a Democratic Constitution")

148. Government cannot be trusted; that is precisely why we divide its powersinto separate organs. If it could be trusted, there would be no need forco-equal branches in which power is shared. Separation of powers is an axiom ofdemocracy.

149. Had Section 55 of the 42nd Amendment been upheld, the basic structure ofthe Constitution could have been destroyed by a single slash. Futureconstitutional amendments would not have been reviewed. The impugned Amendmentlooks rather mild in comparison to the damage that would have been wrought bythe 42nd Amendment. The impugned legislation limits one fundamental right in onelimited circumstance. Yet an amendment need not be as invidious as the 42ndAmendment for us to invalidate it. If the standard were that high, amendmentscould destroy the basic structure or the essence of the Constitution by athousand slashes.

150. Since Kesavananda's time, many amendments have been passed and manychallenges under the basic structure have been made. This Court has used cautionand has refrained from using the doctrine, even when it may have been justified.For example, there were grounds for striking the entire 10th Schedule asviolative of the basic structure in Kihoto Hollohan v Zachillhu & Others1992 Supp (2) SCC 651. Rather than resort to the basic structure, this Courtmade a narrow ruling on procedural grounds. (See: S.P. Sathe, Judicial Activismin India: Transgressing Borders and Enforcing Limits, 2nd Edn., 2002 (OxfordUniversity Press) pages 92-93). The Court upheld the 10th Schedule, onlysevering a paragraph from the same. I agree that an abundance of caution oughtto be taken before employing the basic structure doctrine. The violation musttruly abrogate the basic structure. Anything short of this standard must beupheld  the will of the people, through their elected representatives,heard.

151. Before making such a determination, it is prudent to briefly revisit therulings of two landmark cases: P.A. Inamdar & Others v. State of Maharashtra& Others, (2005) 6 SCC 537; T.M.A. Pai Foundation & Others v. State ofKarnataka & Others (2002) 8 SCC 481. In Inamdar (supra), paras 26-27(seven-Judge Bench), unaided (minority and non-minority) professionalinstitutions filed petitions to determine, inter alia, whether the State couldimpose quotas on unaided (minority and non-minority) institutions. A seven-JudgeBench was constituted such that Islamic Academy's clarification of Pai could bereviewed. Islamic Academy was a five-Judge Bench. Given that Pai was aneleven-Judge Bench, Inamdar could clarify but not overrule Pai.

152. At para 124, Inamdar held that the State cannot impose quotas on unaided(minority and non-minority) institutions. To do so would nationalize seats,contrary to Pai. (See: Inamdar at para 125). In dictum, Pai suggested that theState could compel unaided institutions to admit a reasonable percentage ofstudents via reservation. (Pai, para 68). Inamdar clarified this point, statingthat Pai should be read to mean that the State and unaided institutions mayenter into consensual agreement regarding reservation. (See: Inamdar at para126). Unaided institutions (minority and non-minority) can admit as they choose,provided their process is fair, transparent, non- exploitative and merit-based.Inamdar stated: "124: So far as appropriation of quota by the State andenforcement of its reservation policy is concerned, we do not see much ofdifference between non- minority and minority unaided educational institutions.We find great force in the submission made on behalf of the petitioners that theStates have no power to insist on seat sharing in the unaided privateprofessional educational institutions by fixing a quota of seats between themanagement and the State. The State cannot insist on private educationalinstitutions which receive no aid from the State to implement State's policy onreservation for granting admission on lesser percentage of marks, i.e. on anycriterion except merit. 125. As per our understanding, neither in the judgmentof Pai Foundation nor in the Constitution Bench decision in Kerala EducationBill, which was approved by Pai Foundation, there is anything which would allowthe State to regulate or control admissions in the unaided professionaleducational institutions so as to compel them to give up a share of theavailable seats to the candidates chosen by the State, as if it was filling theseats available to be filled up at its discretion in such private institutions.This would amount to nationalization of seats which has been specificallydisapproved in Pai Foundation. Such imposition of quota of State seats orenforcing reservation policy of the State on available seats in unaidedprofessional institutions are acts constituting serious encroachment on theright and autonomy of private professional educational institutions.

Such appropriation of seats can also not be held to be a regulatory measurein the interest of minority within the meaning of Article 30(1) or a reasonablerestriction within the meaning of Article 19(6) of the Constitution. Merelybecause the resources of the State in providing professional education arelimited, private educational institutions, which intend to provide betterprofessional education, cannot be forced by the State to make admissionsavailable on the basis of reservation policy to less meritorious candidate.Unaided institutions, as they are not deriving any aid from State funds, canhave their own admissions if fair, transparent, non-exploitative and based onmerit."

To the extent that Islamic Academy had approved of quotas in unaidedinstitutions, a scheme in which the States could fix quota for seat sharingbetween management and the State, Islamic was overruled. [Inamdar at para 130]

153. In T.M.A. Pai Foundation (supra) para 2 (eleven- Judge Bench), privateeducational institutions, aided and unaided, filed writ petitions to challengeregulations that impeded their rights. They wanted to establish and administereducational institutions, unfettered by Government interference. [para 2].Reading Article 29(2) and 30(1) harmoniously, the six-Justice majority held that(1) unaided institutions could admit students free of Government interference,as long as their admission process was transparent and merit-based; (2) minorityaided institutions may still admit their own students, contingent upon admittinga reasonable number of non-minority students per the percentage provided by theState Government.

154. For our purposes, it is important to note that education falls withinthe meaning of "occupation" under 19(1)(g). This is so because a largenumber of persons are employed as teachers and administrative staff. For them,education is an occupation. Pai stated: "20: "Article 19(1)(g) employsfour expressions, viz., profession, occupation, trade and business. Their fieldsmay overlap, but each of them does have a content of its own. Education is perse regarded as an activity that is charitable in nature [See The State of Bombayv. R.M.D. Chamarbaugwala, -- Education has so far not been regarded as a tradeor business where profit is the motive. Even if there is any doubt about whethereducation is a profession or not, it does appear that education will fall withinthe meaning of the expression "occupation". Article 19(1)(g) uses thefour expressions so as to cover all activities of a citizen in respect of whichincome or profit is generated, and which can consequently be regulated underArticle 19(6).

25 The establishment and running of an educational institution where a large number of persons are employed as teachers or administrative staff, and an activity is carried on that results in the imparting of knowledge to the students, must necessarily be regarded as an occupation, even if there is no element of profit generation. It is difficult to comprehended that education, per se, will not fall under any of the four expressions in Article 19(1)(g). "Occupation" would be an activity of a person undertaken as a means of livelihood or a mission in life. ..." [emphasis added]

155. Stripping private unaided institutions of their right to select studentswould be unreasonable: "para 40: Any system of student selection would beunreasonable if it deprives the private unaided institution of the right ofrational selection, which it devised for itself, subject to the minimumqualification that may be prescribed and to some system of computing theequivalence between different kinds of qualifications, like a common entrancetest. Such a system of selection can involve both written and oral tests forselection, based on principle of fairness."

156. Like Article 15(5) in the instant case, Unni Krishnan effectivelynationalized education. Pai overturned Unni Krishnan. (See: para 45). "38:The scheme in Unni Krishnan's case has the effect of nationalizing education inrespect of important features, viz., the right of a private unaided institutionto give admission and to fix the fee. By framing this scheme, which has led tothe State Governments legislating in conformity with the scheme the privateinstitutions are undistinguishable from the Government institutions; curtailingall the essential features of the right of administration of a private unaidededucational institution can neither be called fair or reasonable."

157. Pai traces the autonomy of institutions back to Chitralekha andRajendran. The proposition is simple: he who funds or runs the institution holdsthe power to select students. The State cannot ask these institutions to abridgethis right in exchange for affiliation/recognition. The relevant paragraphs arereproduced hereunder: "36: The private unaided educational institutionsimpart education, and that cannot be the reason to take away their choice inmatters, inter alia, of selection of students and fixation of fees. Affiliationand recognition has to be available to every institution that fulfills theconditions for grant of such affiliation and recognition. The privateinstitutions are right in submitting that it is not open to the Court to insistthat statutory authorities should impose the terms of the scheme as a conditionfor grant of affiliation or recognition; this completely destroys theinstitutional autonomy and the very objective of establishment of theinstitution.

42. In R. Chitralekha and Anr. v. State of Mysore and Ors.[citation omitted], while considering the validity of a viva-voce test for admission to a Government medical college, it was observed at page 380 that colleges run by the Government, having regard to financial commitments and other relevant considerations, would only admit a specific number of students. It had devised a method for screening the applicants for admission. While upholding the order so issued, it was observed that "once it is conceded, and it is not disputed before us, that the State Government can run medical and engineering colleges, it cannot be denied the power to admit such qualified students as pass the reasonable tests laid down by it. This is a power which every private owner of a College will have, and the Government which runs its own Colleges cannot be denied that power." (italics added by Pai; underscore is mine).

43. Again, in Minor P. Rajendran v. State of Madras and Ors  , it was observed at page 795 that "so far as admission is concerned, it has to be made by those who are in control of the Colleges, and in this case the Government, because the medical colleges are Government colleges affiliated to the University. In these circumstances, the Government was entitled to frame rules for admission to medical colleges controlled by it subject to the rules of the university as to eligibility and qualifications." The aforesaid observations clearly underscore the right of the colleges to frame rules for admission and to admit students. The only requirement or control is that the rules for admission must be subject to the rules of the university as to eligibility and qualifications. The Court did not say that the university could provide the manner in which the students were to be selected.

61. In the case of unaided private schools, maximum autonomy has to be with the management with regard to administration, including the right of appointment, disciplinary powers, admission of students and the fees to be charged."

158. Unaided institutions may admit students of their choice, subject to anobjective and rational procedure of selection. They might admit a smallpercentage of students belonging to the weaker sections of the society bygranting those sections freeships or scholarships, if not granted by theGovernment. [See: Pai at para 53]. Given a transparent and reasonable selectionprocess, it is up to the institution to define "merit" according toits own values. Pai stated: "65. The reputation of an educationalinstitution is established by the quality of its faculty and students, and theeducational and other facilities that the colleges has to offer. The privateeducational institutions have a personality of their own, and in order tomaintain their atmosphere and traditions, it is but necessary that they musthave the right to choose and select the students who can be admitted to theircourses of studies. If is for this reason that in the St. Stephen's Collegecase, this Court upheld the scheme whereby a cut-off percentage was fixed foradmission, after which the students were interviewed and thereafter selected.While an educational institution cannot grant admission on its whims andfancies, and must follow some identifiable or reasonable methodology ofadmitting the students, any scheme, rule or regulation that does not give theinstitution the right to reject candidates who might otherwise be qualifiedaccording to say their performance in an entrance test, would be an unreasonablerestriction under Article 19(6), though appropriate guidelines/modalities can beprescribed for holding the entrance test a fair manner. Even when students arerequired to be selected on the basis of merit, the ultimate decision to grantadmission to the students who have otherwise qualified for the grant ofadmission must be left with the educational institution concerned. However, whenthe institution rejects such students, such rejection must not be whimsical orfor extraneous reasons."

159. The Court distinguishes between reasonable and unreasonable regulationsby asking which functions lie at the heart of an institution's autonomy.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. "55. But the essence of a privateeducational institution is the autonomy that the institution must have in itsmanagement and administration. There, necessarily, has to be a difference in theadministration of private unaided institutions and the Government-aidedinstitutions. Whereas in the latter case, the Government will have greater sayin the administration, including admissions and fixing of fees, in the case ofprivate unaided institutions, maximum autonomy in the day-to-day administrationhas to be with the private unaided institutions. Bureaucratic or Governmentalinterference in the administration of such an institution will undermine itsindependence. While an educational institution is not a business, in order toexamine the degree of independence that can be given to a recognized educationalinstitution, like any private entity that does not seek aid or assistance fromthe Government, and that exists by virtue of the funds generated by it,including its loans or borrowings, it is important to note that the essentialingredients of the management of the private institution include the recruitingstudents and staff, and the quantum of fee that is to be charged."

160. The same argument was framed in similar terms in St. Stephen's Collegev. University of Delhi, 1992 (1) SCC 558. In that case, the Court distinguishedregulations based on whether they directly or indirectly affected management.Those that indirectly affected management were reasonable; those that directlyaffected the management of the institution were not. [Pai at para 125].

161. In St. Stephen's, this Court referred to the earlier decisions, and withregard to Article 30(1) observed at page 596, paragraph 54, as follows:"... But the standards of education are not a part of the management assuch. The standard concerns the body politic and is governed by considerationsof the advancement of the country and its people. Such regulations do not beardirectly upon management although they may indirectly affect it. The State,therefore has the right to regulate the standard of education and alliedmatters."

162. Once a private institution (non-minority) takes aid, it is subject to(1) reservation and (2) regulation of administration and maintenance of theinstitution. Pai stated: "71: "While giving aid to professionalinstitutions, it would be permissible for the authority giving aid to prescribeby rules or regulations, the conditions on the basis of which admission will begranted to different aided colleges by virtue of merit, coupled with thereservation policy of the state. --

72: "Once aid is granted to a private professional educational institution, the Government or the state agency, as a condition of the grant of aid, can put fetters on the freedom in the matter of administration and management of the institution. The state, which gives aid to an educational institution, can impose such conditions as are necessary for the proper maintenance of the high standards of education as the financial burden is shared by the state. --"

163. I now query if the Parliament may subject Article 19(1)(g) to Article15(5), when this Court has held that reservation in unaided institutions is anunreasonable restriction that cannot be saved by Article 19(6).

164. I answer this question in the affirmative. The structure of ourConstitution permits fundamental rights, and even the Golden Triangle ofArticles 14, 19 and 21, to be abridged in limited circumstances. To say thatsubjecting Articles 19(1)(g) to 15(5) violates the basic structure per se is toignore the examples in which the most fundamental of rights is limited. Article16(4) expressly limits the right to formal equality in 16(1), a specific facetof Article 14. In this light, Article 16(4) impliedly limits the general rightto formal equality in Article 14. The right to equality is expressed in thenegative in 15(1): the State shall not discriminate based on religion, race,caste, etc. In other words, the State shall treat citizens of differentreligions, races and castes equally. Like Article 16(4), Article 15(4) limits15(1) -- another facet of Article 14 formal equality -- such that egalitarianequality may be pursued. Generally speaking, Articles 15(3) and (4) and 16(4)allow the State to impose affirmative action programs on the public sector. Suchprovisions necessarily limit the right to formal equality. If the right toequality, considered by some as a basic postulate of the Constitution, has beenlimited, a fortiori Article 19(1)(g) can be too.

165. Along these lines, I could turn to Articles 31A, 31B and 31C for furthersupport. Those Articles exclude challenges under Articles 14 and 19. Inagreement with Dr. Dhavan's submission, I decline to rely on Articles 31A, 31Band 31C for support. As explained in Minerva Mills, the Court had previouslyupheld Article 31A out of concern for stare decisis. The Court never approved ofthe exclusion of Articles 14 and 19 on a principled basis. Nor did it make aruling as to whether the exclusion violated the basic structure. (See: para71-72 of Minerva Mills. See also para 43 of Waman Rao, (1981) 2 SCC 362).

166. A basic structure challenge becomes an issue of institutionalcompetence. Is it for the legislature to decide what is a reasonable restrictionunder 19(1)(g) read with 19(6)? Or is it for the judiciary? It is wellestablished that the Parliament, expressing the will of the people, may enactamendments to overrule a judgment of this Court. The First Parliament addedArticle 15(4) to the Constitution to overrule State of Madras v. ChampakamDorairajan, AIR 1951 SC 226. Other examples include the 77th Amendment, whichoverruled Sawhney I by adding Article 16(4-A); the 81st Amendment furtheroverruled Sawhney I by adding Art 16 (4-B); the 82nd Amendment overruled S.Vinod Kumar & Another v. Union of India & Another (1996) 6 SCC 580 byamending Article 335; and the 85th Amendment overruled Virpal Singh Chauhann andAjit Singh I by amending Article 16(4-A), (1995) 6 SCC 684 and (1996) 2 SCC 715,respectively. Nevertheless, the duty to interpret the content of our fundamentalrights has been left to the Courts. "The important point to be noted isthat the content of a right is defined by the Courts. The final word on thecontent of the right is of this Court." (Nagaraj at para 21). (emphasisadded). While the Parliament may amend the Constitution, it cannot alter theConstitution's basic structure. (See: Kesavananda, Indira Nehru Gandhi (ElectionCase), Minerva Mills, Sambamurthy, L. Chandra Kumar and Coelho).

Step Two: Does Article 15(5) affect Article 19(1)(g) to such an extentthat Article 19(1)(g)'s original identity has been altered?

167. In other words, does Art 15(5) in effect merely abridge or completelyabrogate Article 19(1)(g). If the former, 15(5) stands. If the latter, it falls.As noted above, Coelho directs me to apply the impact/rights test to determinewhether the basic structure has been violated. [See Coehlo at Conclusion (ii) atpage 111]. Thus, my query is whether to consider the impact on the entireconstitutional framework, or to examine the effect on citizens engaged inunaided education as an occupation. I think it is the latter. I am not concernedhere with those engaged in education in aided institutions. One is naturallysubject to greater regulation when one relies on Government funding. (See: Pai/Inamdar).Individual liberty and freedom, as protected by the Golden Triangle, must carrygreater weight for those who set off on their own and refuse Government money.168. This brings me to the question as to how large I should draw the circlewhen I ask who is affected by reservation in unaided institutions. JusticeChandrachud provides that "[a] total deprivation of fundamental rights,even in a limited area, can amount to abrogation of fundamental right just as apartial deprivation in every area can." (See: Minerva Mills, para 59).

169. Freedom under Article 19 belongs to individual citizens. Article19(1)(g) provides that "all citizens shall have the right to practice anyprofession, or to carry on any occupation, trade or business." Thereference to "all citizens" means that each and every individualcitizen possesses Article 19 rights. For the impugned legislation to fall, itneed not touch every sphere of society. If even one individual's freedom hasbeen curtailed, this Court is duty bound to entertain his or her claim. It is heor she who possesses the Article 19(1)(g) right to carry on an occupation.

170. If 15(5) were implemented, the educator in unaided institutions wouldstill have students to educate. I use "educator" in the broadest senseof the term and include teachers, professors, lecturers, faculty, staff,administrators and those who finance institutions. Without one of theaforementioned, the institution cannot function properly.

171. Though affected by reservation, the educator still has a job. Hisoccupation remains intact. Students will come. Classes will commence. Marks willbe distributed. The greatest impact on the educator is that neither he nor hisinstitution will choose whom to teach.

172. Almost half of the time (49.5%), the State would decide for them.Selecting students or employees goes to the heart of an organization's autonomy.The essence of an unaided educational institution is the freedom to manage itsaffairs, according to Pai at paragraph 55. That is, "... the essentialingredients of the management of the private institution include the recruiting[of] students and staff  ." The same argument was framed in similarterms (at para 54) in St. Stephen's College (regulations imposing standards ofeducation upheld, because they " do not bear directly upon managementalthough they may indirectly affect it ..."). This Court has stated in Paias clarified by Inamdar that subjecting unaided institutions is an unreasonablerestriction. As noted, Article 19(6) provides no safe haven for reservations.

173. The Government-imposed selection of students in turn has wide-rangingconsequences for unaided institutions and their educators. I am required toexamine the effect of the impugned Amendment. At least four problems will likelyarise:

(1) academic standards suffer;

(2) attracting and retaining good faculty becomes more difficult;

(3) the incentive to establish a first rate unaided institution is diminished;

(4) and ultimately the global reputation of our unaided institutions is severely compromised.

174. First, once the State tells them whom to teach, standards of excellencewill suffer. This is because those institutions will no longer be able to admitthe highest-scoring students. As good as some of our institutions are, they donot teach blank slates. The best universities are the best, in part, becausethey attract the best students. The same can be said for almost anyorganization. In the case of higher education, the universities that admit thebest will likely churn out the best. The precise extent to which the universitymade the best so good cannot be qualified. The point is that universities alonecannot produce qualified job candidates. Forced to admit students with lowermarks, the university's final product will not be as strong. Once the creamy isexcluded, cut-off marks would likely drop considerably in order to fill the 27%quota for non creamy layer OBCs. When the creamy layer is not removed, as in thecase of Tamil Nadu, the difference in cut off marks for the general and backwardcategories may be insignificant. (See para 408 of Sawhney I). Of course, theextent to which standards of excellence would suffer would vary by institution.As I mention below, I urge the Government to set OBC cut off marks no lower than10 marks below that of the general category. This is only a recommendation,however. It may never be adopted.

175. Second, reservations weaken the incentive to establish unaidedinstitutions: if the State usurps the right to select students, would one stillspend the time and money to establish an unaided institution? The question isall the more relevant today. Counsel for petitioners posit that tomorrow'sknowledge economy requires a well-educated populace. "Well-educated"does not imply a string of degrees from less than taxing institutions. Rather,it means that one will possess the skills, knowledge and creativity to competeglobally. Our unaided institutions must remain places where these traits arerefined.

176. Third, those inclined to teach the brightest students have even less ofa reason to leave private sector jobs for the teaching profession or to join theprofession in the first place. "Brightest" would come with anasterisk. They would be the brightest available under the Government'sreservation scheme. These potential teachers may ask themselves: how will Iteach a class in which half the students are advanced relative to the otherhalf? In many institutions, the shortage of top-rate faculty will only getworse. Fourth, reservations may have a negative impact on students seekingemployment in the burgeoning knowledge economy. Recruiters have begun to trickleinto campuses. They hail from domestic as well as international entities, andthey too may take note of reservations in unaided institutions. The effect oneducators, from the top down, would be felt. For them, little more than asemblance of occupation would remain.

177. Given the dramatic effect that reservations would have on educators, theunaided institutions in which they teach and, consequently, society as a whole,Article 19(1)(g) has been more than abridged. When education is effectivelynationalized, freedom stands obliterated. The identity of the Constitution isaltered when unreasonable restrictions make a fundamental right meaningless. The93rd Amendment's imposition of reservation on unaided institutions has abrogatedArticle 19(1)(g), a basic feature of the Constitution, in violation of ourConstitution's basic structure. Therefore, I sever the 93rd Amendment'sreference to "unaided" institutions as ultra vires of theConstitution.

178. The case law on severability asks the following question: had theParliament known its provision would be severed would it still have passed therest of the legislation? (See: R.M.D. Chamarbaugwalla (supra)).

179. At page 943 of R.M.D. Chamarbaugwalla (supra), the Court relied in parton The State of Bombay & Another v. F.N. Balsara (1951) SCR 682, where thequestion at issue was whether the Bombay Prohibition Act was valid: Sections 12and 13 of the Act imposed restrictions on the possession, consumption and saleof liquor, which had been defined in s. 2(24) of the Act as including "(a)spirits of wine, methylated spirits, wine, beer, toddy and all liquidsconsisting of or containing alcohol, and (b) any other intoxicating substancewhich the Provincial Government may, by notification in the Official Gazette,declare to be liquor for the purposes of this Act". Certain medicinal andtoilet preparations had been declared liquor by notification issued by theGovernment under s. 2(24)(b). The Act was attacked in its entirety as violativeof the rights protected by Art. 19(1)(f). But this Court held that the impugnedprovisions were unreasonable and therefore void in so far as medicinal andtoilet preparations were concerned, but valid as to the rest. Then, thecontention was raised that "as the law purports to authorise the impositionof a restriction on a fundamental right in language wide enough to coverrestrictions both within and without the limits of constitutionally permissiblelegislative action affecting such right, it is not possible to uphold it even sofar as it may be applied within the constitutional limits, as it is notseverable". In rejecting this contention, the Court observed:

'These items being thus treated separately by the legislature itself and being severable, and it is not being contended, in view of the directive principles of State policy regarding prohibition, that the restrictions imposed upon the right to possess or sell or buy or consume or use those categories of properties are unreasonable, the impugned sections must be held valid so far as these categories are concerned.'

This decision is clear authority that the principle of severability is applicable even when Act's invalidity arises by reason of its contravention of constitutional limitations."

180. At page 944, the court in R.M.D. Chamarbaugwalla sought guidance fromAmerican case law on severability: "In discussing the effect of aseverability clause, Brandies, J. observed in Dorchy v. State of Kansas (1924)264 US 286 that it "provides a rule of construction, which may sometimesaid in determining that intent. But it is an aid merely; not an inexorablecommand". The weight to be attached to a classification of subjects made inthe statute itself cannot, in our opinion, be greater than that of aseverability clause."

181. The court in R.M.D Chambarbaugwalla went on to cite Patanjali Sastri,C.J., in The State of Bombay & Another v. The United Motors (India) Ltd.& Others (1953) SCR 1069: "dealing with the contention that a lawauthorizing the imposition of a tax on sales must be declared to be wholly voidbecause it was bad in part as transgressing constitutional limits observed:

'It is a sound rule to extend severability to include separability in enforcement in such cases, and we are of opinion that the principle should be applied in dealing with taxing statutes in this country.'"

182. Here, I believe the Parliament would have gone forward without unaidedinstitutions. While some Members of Parliament sought to overrule Pai andInamdar, the Parliament's actions speak louder than its words. Once it hadpassed Article 15(5), it limited itself to imposing greater reservations onaided institutions. Had unaided institutions been the Parliament's priority, itcould have included them in the Reservation Act. It seems that the Parliament'sintent is to pass as much reservation as possible. That would explain why it hasgone forward with 27% reservation for OBCs without confirming that at least 27%of the population is OBC. For these reasons, I conclude that had the Parliamentknown that unaided institutions were going to be severed, it would havenevertheless carried out its reservation scheme for aided institutions.

4. The Casteless and Classless Society versus Caste-based Reservation:

183. The caste system is peculiar to this country. Perhaps the entire societyhas been divided on the basis of caste. This social problem can be compared tosome extent with that of American society. In the U.S., the problem of racialdiscrimination has existed for centuries. The cases of affirmative actiondecided in the United States are relevant. They show us how that society hasdealt with the problem of racial discrimination. At the outset, I would like tomake it clear that decisions of foreign countries are not binding on Indiancourts. Indian Courts have not adopted American standards of review. But thejudgments delivered by U.S. courts on affirmative action have great persuasivevalue and they may provide broad guidelines as to how we should tackle ourprevailing condition. A large number of English laws have been inherited byIndia and America. English and American cases are frequently cited by ourcourts. We need to keep our window open and permit the light of knowledge toenter from any source. In this light, I shall refer to some US decisions.

Affirmative Action cases and standards of review from the United States:

184. In 1978, Regents of the University of California v. Bakke put an end toreservation ("quotas") in education (reserving 16 out of 100 seats forminorities in medical school deemed unconstitutional). (438 U.S. 265). JusticePowell's concurring judgment is considered the key opinion in the case.

185. Justice Powell concluded that diversity was a compelling State interestthat could withstand strict scrutiny. Relying on Bakke, the court laterreaffirmed preferential treatment in college admissions as a means to ensurediversity in the classroom  racial diversity being just one among manytypes of diversity ("overcoming personal adversity and familyhardship" was another form of diversity), (See: Grutter v. Bollinger, 539U. S. 306, 338 (2003)). The Grutter Case insisted that universities make anindividualized evaluation of a student seeking admission, rather than one thatmechanically accepted or rejected students on the basis of race. (Grutter at337). Such an evaluation would ensure that race was only considered as one typeof diversity, rather than a pretext for achieving racial balance. Quotas couldnot be covertly installed in the name of diversity. This reasoning led the courtto strike down an admission scheme that automatically assigned more points tominority students than to residents of the State or to athletes, for example. (Gratzv. Bollinger, 539 U.S. 244, 270).

186. Justice O'Conner for the majority in Grutter came to a very significantconclusion. She suggested that there was time limit on preferential treatmentfor certain races as a means of promoting diversity. Justice O'Connor stated:"we expect that 25 years from now, the use of racial preferences will nolonger be necessary to further the interest approved today."

187. In Parents Involved in Community Schools v. Seattle School District No.1et al, reported in 168 Lawyers Ed. 2d 508 & 517 (2007), school districtsused a student's race to assign that student to a particular school within thedistrict. In Seattle, this was done to achieve racial balance amongst thedistrict's schools. One school should not be overwhelmingly white, another allnon-white. Unlike the system approved in Grutter, race was not just one amongmany types of diversity that was considered by the district in assigningstudents. Seattle at 525. Instead, it was, at times, the decisive factor. Thecourt held the programmes unconstitutional. Chief Justice Roberts summed up theplurality's view on racial classifications: "the way to stop discriminationon the basis of race is to stop discriminating on the basis of race."

188. This was far from a complete victory for the plurality. In hisconcurring opinion, Justice Kennedy found the programmes unconstitutional.However, he would not go so far as to treat all racial balancing as per seunconstitutional. He considered the plurality opinion to represent "an all-too-unyielding insistence that race cannot be a factor in instances,when, in [his] view, it may be taken into account." (Seattle at 565).

189. Justice Kennedy found that schools have a compelling interest to preventracial isolation or achieve a diverse student population. (Seattle at 572). LikeJustice Powell's concurring opinion in Bakke, Justice Kennedy's concurringopinion leaves the door open for further use of racial classification forso-called benign purposes in school admissions.

190. More important than any one case are the standards by which the courtscrutinized discriminatory legislation. Of course, Indian courts have notaccepted the principles of narrow tailoring and strict scrutiny. Nevertheless,we should seek guidance from any corner and permit the light from any quarter.

191. Whenever legislation is challenged as unconstitutional, courts must askthemselves how much deference they will give to the legislature. The answer isthat it depends on the nature of the impugned legislation. The United StatesSupreme Court has evolved three standards of review for Government action thattreats different people differently. The first is the rational basis standard.When the classification is rationally related to any legitimate Governmentpurpose, the court defers to the State and upholds the classification. This isthe most deferential of the three standards. The second standard is intermediatescrutiny, which is less deferential to Government. Here, the court asks whetherthe classification is substantially related to any important Government purpose.The third and highest level of review is known as strict scrutiny, whereby thecourt requires that the classification are narrowly tailored to a compellingstate interest. Strict scrutiny test is the least deferential to Government.

192. Of the classifications on which there is case law, the one that mostclosely resembles caste is race. This is because both are immutable traits. Theyare used by the powerful, or those seeking power, to justify oppression. Racismand casteism have long haunted both Nations. In the United States, race raisesred flags. It is often, though not always, reviewed under strict scrutiny:"Government action dividing people by race is inherently suspect becausesuch classifications promote 'notions of racial inferiority and lead to apolitics of racial hostility,' (Croson at 102 L. Ed. 2d 854) and "racialclassifications are simply too pernicious to permit any but the most exactconnection between the justification and the classification." (Gratz v.Bollinger, 539 U.S. 244, 270 (quoting J. Stevens' dissent in Fullilove v.Klutznick, 448 U.S. 448, 537)).

193. Legislation whose text does not classify based on race is consideredfacially neutral. When facially neutral legislation has a disproportionateimpact on a particular race, American courts ask whether it was passed with anintention to discriminate. If no intention is found, the rational basis testapplies. [See: Hernandez v New York, 500 U.S. 352 (1991) (quoting from ArlingtonHeights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264-265(1977)]: "A court addressing this issue must keep in mind the fundamentalprinciple that "official action will not be held unconstitutional solelybecause it results in a racially disproportionate impact. . . . Proof ofracially discriminatory intent or purpose is required to show a violation of theEqual Protection Clause."

See also Washington v. Davis, 426 U.S. 229, 239 (1976). The exception to thisrule is Yick Wo v. Hopkins, 118 U.S. 356 (1886), where extreme disproportionateimpact warranted greater scrutiny. Where there is disproportionate impact anddiscriminatory intention, then even facially neutral legislation triggers strictscrutiny. However, in this framework, affirmative action classifies on the faceof legislation and automatically gets strict scrutiny treatment. 194. As I haveobserved, American courts carefully review racial classifications. Given thatthe 93rd Amendment on its face discriminates against general category students,we should give it careful scrutiny. The Article 14 right to formal equalitydeserves as much. If 49.5% caste-based reservation was upheld in Sawhney I forGovernment employment, it follows that 49.5% caste-based reservation ispermitted in aided educational institutions. While I compelled by Sawhney I tohold that the impugned legislation passes careful scrutiny with respect toreservation in aided institutions, its implementation is contingent upon thedirections given in this opinion.

The Framers' ultimate goal: the Classless and Casteless society:

195. Did the original Framers intend to provide caste-based reservation ineducation to the lower classes? No, the original Framers did not. Soon after theConstitution was adopted, the very same Framers acted quickly to permitreservation for SC/ST/SEBCs in education by adding Art 15(4), vide the FirstAmendment, to the Constitution. In doing so, they deviated from their own goal the casteless society would have to wait. In Sawhney I, the Court upheldthis decision and bound us to a certain degree on this point. I have no choicebut to uphold the impugned legislation by which the Government may stillidentify SEBCs, in part, by using caste.

196. Caste-based reservation was initially a temporary measure that was toonly last for ten years. The original Framers considered caste-based reservationa necessary evil. Thus, they limited it in time. Extending this time limit hasonly exacerbated casteism.

197. The Parliamentary Debates clearly reflect that the ultimate aim ofreservation was a casteless and classless society for India. To this end,reservation should only be given for a specific period of time. If thesereservations or benefits have to continue perpetually, then the basic goal ofachieving casteless and classless society would never be accomplished.

198. The need for caste-based reservation has "worn out" over time.Evidence for the proposition that caste is no longer a valid determinant ofone's ability to move up in society is strong. More than the way society judgesyou based on caste, the relevant question is whether caste precludes you fromrising. If caste doesn't, then what does? The answer is simple: money.

199. Income is a much better determinant of educational achievement thancaste. The table below was derived from the Reproductive Child and HealthSurvey, 2002-2004 (600,000 households surveyed). Average years of schooling: SCOBC Upper caste Hindu Poorest Rural Quintile 1.6 1.7 2.2 Richest Rural Quintile5.1 5.5 6.1

For the upper caste, caste barely helps. These numbers indicate that it isone's income, not caste, that makes a real difference in determining how muchschooling one completes. Therefore, if income be the bar to education, economiccriteria should be the means by which we identify beneficiaries of specialprovisions under Article 15(5). 7 No original intent to provide caste-basedquotas in education:

200. As drafters, the original Framers were prolific. They made ourConstitution the world's longest  removing as many doubts as possible andin that way limiting the Court's role. The Constitution contains a number ofArticles that reserve seats for various groups. The original Framers, however,imposed various limitations on reservation. These limitations provide insightinto the original Framers' compromise between formal and substantial/egalitarianequality.

201. Reservation is only provided for certain groups (SC, ST and backwardclasses) in certain areas of the public sector. (See: Article 16(4) (reservationof posts in Government service for backward classes), Article 330 (reservationof seats for SC and ST in the Lok Sabha) and Article 332 (reservation of seatsfor SC and ST in Legislative Assemblies of the States)).

202. Dr Ambedkar stated that "the report of the Minorities Committeeprovided that all minorities should have two benefits or privileges, namelyrepresentation in the legislatures and representation in the services."(emphasis added) (See: CAD, 26 August 1949, vol. 9, p. 702). Given thislimitation, we must take extra caution when reviewing the constitutionality ofadding additional benefits.

203. Article 334 fixed a 10-year time limit on the legislative reservationsprovided in Articles 330 and 332. In the discussion regarding draft Article 292,Sardar Hukam Singh said, "we are accepting this reservation of seats [inlegislative bodies] as an unavoidable evil for the present, thought it is onlyfor the Scheduled Castes and scheduled tribes." (See: p. 645, ConstituentAssembly Debates, Vol. 9, 24 August 1949).

204. Shri Singh's comment sums up the limitations on legislative reservation.OBC/SEBCs were excluded, and reservations were limited in time. Unlike thelegislative reservations, Article 16(4) contains no fixed time limit. It does,however, preclude the State from making reservations in Government service ifthe backward classes are adequately represented. The idea is that, at some pointin time, the backward classes would no longer need reservations.

205. In discussing draft Article 10 (Article 16(4) of the Constitution),Pandit Hirday Nath Kunzru stated: "We are all aware that when the Report ofthe Minorities Committee was considered by the House, the entire House wasanxious that reservations of whatever kind should be done away with as quicklyas possible.  whatever protection might be considered necessary now, shouldbe granted temporarily only, so that the population of the county might becomefully integrated, and no community or class might be tempted to claim specialadvantage for itself." (CAD Vol.7 dated 30th November 1948, p. 681)"(emphasis supplied)

Instead of moving to remove reservations, the Parliament has gone the otherway by extending time limits and adding beneficiaries. Article 15(5) is just thelatest example.

206. While the original Framers went out of their way to put SC/ST in theParliament and State Assemblies and SC/ST/backward classes in Governmentservice, they did not reserve a single classroom seat. Instead, Article 29(2)prohibited caste-based discrimination in admissions, and Article 15(2)prohibited caste-based discrimination in general. Education was to remainreservation-free.

 207. When preferential treatment was given in regard to education, itwas limited to educational grants. There was no question of doling outreservations for special groups. Article 337 provided educational grants toAnglo-Indian schools for the benefit of that community. In the spirit ofconciliation, the original Framers allowed the grants that were already going tothose schools to continue for 10 years. (See: p 936-941 of Constituent AssemblyDebates, Vol. 8 1949).

208. Rather than advocate for reservation, the original Framers preferredfree/compulsory education and scholarships. In the debate on Draft Article 294,Shri Brajeshwar Prasad stated that reservation in legislative bodies would failto uplift SC/ST. Instead, he suggested that: "it should be laid downclearly in express terms that ... free education shall be imparted to them. ...[and] for the tribals and Harijans provision must be made in the constitutionthat free agricultural lands should be given to them. If we cannot give any oneof these, I am quite clear in my own mind that by giving them a few seats hereand there, their economic condition and their educational level will in no waybe improved. (CAD, Vol. 9, 24 August 1948, pages 663-664)" (emphasissupplied)

209. Shri Prasad's comments are relevant because he recognizes the limitedeffect of reservation. Rather than reserve seats for a few, he advocated forfree education for all.

210. In the debate regarding Article 15 of the Constitution, Syed Abdur Roufsummed up the essence of the provision: "The intention of this article isto prohibit discrimination against citizens." (See: p. 650 of CAD, Vol.7,29 Nov 1948). This intention was only qualified for women and children. In fact,the original Framers rejected an amendment that would have watered down Article15's prohibition against discrimination. Prof. K. T. Shah sought specialprotection for SC/ST. He wanted to ensure that Article 15 would allow SC/ST tobenefit from affirmative action. To this end, he introduced an amendment thatwould have altered 15(3) to read as follows: "Nothing in this article shallprevent the State from making any special provision for women and children orfor the Scheduled Castes or backward tribes, for their advantage, safeguard orbetterment." (Shah amendment in italics). Prof. Shah proposed theamendment: " so that any special discrimination in favour of them maynot be regarded as violating the basic principles of equality for all classes ofcitizens in the country. They need and must be given for some time to come atany rate, special treatment in regard to education, in regard to opportunity foremployment, and in many other cases where their present inequality, the presentbackwardness is only a hindrance to the rapid development of the country. equality is not to be equality of name only or on paper only, but equality offact. [pages 655-656 CAD, Vol. 7, 29 November 1948]." (emphasis supplied)

211. Relevant to the instant case, he explains that his amendment would allowthe State to provide SC/ST special treatment in regard to education. In otherwords, Prof. Shah effectively wanted the equivalent to 15(4) and 15(5) but didnot get it. His amendment was negated. (p. 664 of Constituent Assembly Debates,Vol. 7, 29 November, 1948).

212. Dr. Ambedkar disagreed with Prof. Shah on the limited ground that itwould have given States the green light to segregate SC/ST from general categorystudents: "The object which all of us have in mind is that the ScheduledCastes and Scheduled tribes should not be segregated from the general public.For instance, none of us, I think, would like that a separate school should beestablished for the Scheduled Castes  If these words are added, it willprobably give a handle for a State to say, 'Well, we are making specialprovision for the Scheduled Castes.' To my mind they can safely say so by takingshelter under the article if it is amended in the manner the Professor wantsit." [page 661, CAD, Vol. 7, 29 November 1948].

213. Dr Ambedkar did not reject the Shah amendment because it would haveallowed the States to implement affirmative action for SC/ST in education. Hewas concerned that special provisions would lead to negative discriminatoryaction in the guise of affirmative action. Whether or not this would havehappened is unclear, but his concern seems well placed. A similar problem arisestoday, when the general category looks down upon or questions the qualificationsof SC/ST/OBC professionals. Though the individual may have earned admission onmarks alone, others may presume that reservation was a factor. Such a belief,regardless of veracity, cannot bode well for the career prospects of SC/ST/SEBCs.Irrespective of the reason for which the Shah amendment was rejected, theoriginal Framers contemplated special provisions for SC/ST that would haveincluded education. At the end of the day, they decided that only women andchildren should benefit from discriminatory provisions.

214. Article 15(4) and the Shah amendment only differ in that Article 15(4)provides special provisions to SC/ST and SEBC, while Shah only gave the same toSC/ST. Of course, if the original Framers rejected special provisions for SC/ST,they would have done the same with respect to SEBC/SC/ST. In sum, by limitingArticle 15(3) to women and children and rejecting an amendment equivalent toArticle 15(4), the original Framers' intent was clear: no special provisions forbackward classes (SEBC/SC/ST) in education were to dilute Article 15(1)'sprohibition against discrimination based on caste.

215. In the instant case, the Union of India argued that Article 15(4), theFirst Amendment to the Constitution, reflects the intent of the original Framersbecause it was passed by the same members that drafted the originalConstitution. In the Parliamentary debates in 1951, Prime Minister Nehru arguedin favour amending the Constitution. He and other Framers, as distinguished fromthe original Framers who had drafted the original Constitution, did not hidetheir disapproval of Champakam Dorairajan (supra). Article 15(4) was to overturnthat judgment. To justify Article 15(4), which represented a dramatic departurefrom equality as envisaged in Articles 15(2), (3) and 29(2), Pandit Nehru saidthat Article 15(4) would give effect to "what  was really intended orshould be intended." Yet, the original Framers, as explained above, had nointention of providing special provisions for SC/ST in education (and a fortioriif not for them, nor for SEBC). What "should be intended" is a far cryfrom what they specifically enacted and specifically rejected. It follows thatArticle 15(4) deviated from the original Framers' original intent.

Limitations on Reservation must be seen in the light of providing acasteless society:

216. Seeking to remove the blight created by caste, the original Framers weresocial reformers. "The social revolution meant 'to get (India) out of themedievalism based on birth, religion, custom, and community and reconstruct hersocial structure on modern foundations of law, individual merit, and seculareducation'." (See: Granville Austin, Indian Constitution: Cornerstone of aNation at page 26, 1st Ed, 1972, Oxford University press: (quoting from: K.Santhanam (an Assembly member) in Magazine Section, The Hindustan Times NewDelhi, 8 September 1946).

217. India's first President Rajendra Prasad assured the Nation that theassembly and the Government's aim was to "end poverty and squalor ... toabolish distinction and exploitation and to ensure decent conditions ofliving". [Cornerstone at page 27, fn. 5 (quoting from Prasad in CAD V, I,2)]. The original Framers took steps to abolish caste-based distinction. Forexample, they outlawed untouchability in Article 17, promised all equaltreatment before the law in Article 14, prohibited discrimination based on castein 15(1) and 29(2) and selected joint over separate electorates. The legislativereservations for SC/ST were an exception to overarching goal of creating acasteless society; that is why they were set to expire in 1960. With respect toelectorates, Granville Austin explains: "Desiring above all to promotenational unity, members of the Constitutional Assembly rejected these devices bysubstituting direct elections for indirect in lower houses, by rejectingseparate electorates in favour of joint electorates and by abolishing except for Scheduled Castes and Tribes  reserved seats. The Assemblybelieved, in Jenning's words, that 'to recognize communal claims . . . is tostrengthen communalism'. [see: Austin, p. 323 of Cornerstone.]" (emphasisadded) The same can be said today. Reservation based on caste strengthenscommunalism. Non-SEBCs naturally seek SEBC status so that they may capture SEBCbenefits. Upper castes, denied a seat, harbor ill will against lower castes whogain admission (whether it was by merit or not).

218. These feelings are the basis for discriminatory action. On 16 September2006, The Hindu reported: "While medical students at the All IndiaInstitute of Medical Sciences (AIIMS) have complained of caste discrimination,now doctors from the reserved category at the Guru Teg Bahadur Hospital (GTBH)too have written about 'biased attitude towards reserved category juniorresidents'."

219. Discrimination is not the only problem exacerbated by reservation. Giventhat reserved category students gain admission with lower marks, it also standsto reason that they would exhibit less confidence in their studies when pittedagainst the general category. In her work on the unintended consequences ofpreferential treatment for minorities in college admissions in the UnitedStates, Marie Gryphon, a policy analyst for the Cato Institute (Washington,D.C.), writes: "...recent research shows that affirmative action impedesacademic achievement by undermining minority students' confidence. ..

Preferences harm students' self-images, and this harm has practical costs interms of grades and graduation rates. Both studies build on earlier work byStanford University sociologist Claude Steele, who coined the term"stereotype threat" to refer to the decline in performance suffered bymembers of groups who become afraid of confirming negative group stereotypes.Steele tested his theory by giving standardized exams to groups of white andAfrican- American undergraduates at Stanford University.

Testers told some groups that the exam evaluated psychological factorsrelated to testing, and that it was not a measure of ability. They told othergroups that the exam measured their intellectual abilities, and in someinstances had them indicate their race on the exam. The African-Americanstudents who had been implicitly "threatened" with the stereotype ofminority academic inferiority did markedly worse on the exam than black studentsin the other groups. 

Even minority students who do not need preferences respond to an environmentcharacterized by the relative academic weakness of minorities by worrying aboutconfirming a negative stereotype. [Researchers] also determined thatvulnerability to Claude Steel's stereotype threat is related to lower gradesearned by minority students." (See: p. 9-10 (internal citations omitted),Executive Summary, No. 540, April 6, 2005, "The Affirmative ActionMyth.")

The point is that affirmative action produces consequences that may outweighits supposed benefits.

220. To rid ourselves of reservation and its unintended consequences likecasteism, we must focus our efforts on strengthening education at the primaryand secondary level. Only then will we achieve the casteless/classless societythe original Framers envisaged. And only then will there be reason to scrapreservation altogether.

221. In his speeches to the Parliament regarding 15(4), Prime Minister Nehrucould not have been clearer: "After all the whole purpose of theConstitution, as proclaimed in the Directive Principles is to move towards whatI may say a casteless and classless society"  and in an attempt toachieve an egalitarian society, " we want to put an end to all thoseinfinite divisions that have arisen in our social life; I am referring to thecaste system and other religious divisions, call them by whatever name youlike." (emphasis added). [Parliamentary Debates on 13 June, 1951 and 29May, 1951 respectively]. 7 If reservation is allowed, then how can a castelesssociety still be realized?

222. This raises the issue of how beneficiaries of special provisions are tobe classified. As mentioned above, Mr Salve and other learned counsel forpetitioners pleaded that the Government cannot go forward with the ReservationAct when it has yet to identify its beneficiaries.

No one can say with certainty what percentage of the population is OBC, yetthe Government is content with giving OBCs 27% of the seats in universities. Wedo not know what proportion of the population is OBC because the census does notcount OBCs. It has been Central Government policy practically since Independenceto avoid the question. Eminent American Professor Mark Galanter writes that theabsence of caste data was the deliberate policy of Sardar Patel, the HomeMinister until 1950. Mr. Patel rejected caste tabulation as a device to confirmthe British theory that India was a caste-ridden country and as an expedient"to meet the needs of administrative measures dependent on castedivision" (See: Professor Marc Galanter, (1978) "Who are the OBCs?"An Introduction to a Constitutional Puzzle. 13 Economic and Political Weekly1812 at page 1824 at footnote 78 (quoting from Mr. Patel's 1950 address to thecensus conference).

Taking an OBC census is horrifying because it encourages Government to enactpolicy on the basis of caste. Doing so only furthers the caste- divide, contraryto our constitutional aim. This has been recognized since 1950. If the CentralGovernments have consistently rejected an OBC census because it would promotecasteism, how can this Central Government make reservation on the same ground?

It is one thing to ask a citizen his caste, it is even worse to grant orreject his college application on that ground. The Government is between a rockand a hard place. The only way out is to use exclusively economic criteria. Thiswould negate the need for a caste-based census while ensuring that reservationgo to the poor, the group for which the Reservation Act was purportedly passed.The Parliament eventually settled on enabling States to provide provisions for"socially and educationally backward classes." Article 15(4). ThisCourt has interpreted "backward classes" to include caste as one ofthe criteria of classification under Article 16(4). Sahwney I, para 859(3)(b).In other words, caste falls under class according to Sawheny I, para 859(3)(a).7 Economic criteria allows for reservation on grounds other than caste:

223. Despite the goal of a casteless society, the Parliament allowed forcaste-based reservation and, consequently, caste- based discrimination.Ultimately, they subjected Articles 29(2) and Article 15 to Article 15(4). Dr.Ambedkar saw no choice but to discriminate based on caste, stating that "ifyou make a reservation in favour of what are called backward classes which arenothing else but collection of certain castes, those who are excluded arepersons who belong to certain castes. Therefore, in the circumstances of thiscountry, it is impossible to avoid reservation without excluding some people whohave got a caste."

224. In draft article 10, Dr. Ambedkar tried to reconcile the view of thosewho were in favour of equality of opportunity with the demand of certaincommunities who remained neglected and who wanted to have a share in theadministration. In doing so, he was clear that the concept of equality, which isthe very basis of democracy, should not be violated. Part of his compromisemeant that reservation had to remain reasonable. Explaining his views on thematter, he said: "Supposing, for instance, we were to concede in full thedemand of those communities who have not been so far employed in the publicservices to the fullest extent, what would really happen is, we shall becompletely destroying the first proposition upon which we are all agreed,namely, that there shall be an equality of opportunity. Let me give anillustration. Supposing, for instance, reservations were made for a community ora collection of communities, the total of which came to something like 70 percent of the total posts under the State and only 30 per cent are retained as theunreserved. Could anybody say that the reservation of 30 per cent as open togeneral competition would be satisfactory from the point of view of givingeffect to the first principle, namely, that there shall be equality ofopportunity? It cannot be in my judgment. Therefore the seats to be reserved, ifreservation is to be consistent with sub-clause (1) of Article 10, must beconfined to a minority of seats. (see CAD, Vol.7, 30th November, 1948 pp701-02)."

225. On 17th November, 1949, the Constituent Assembly began the third readingof the Constitution Bill. While replying to the debate, Dr. Ambedkar stated:"This anxiety is deepened by the realization of the fact that in additionto our old enemies in the form of castes and creeds we are going to have manypolitical parties with diverse and opposing political creeds. Will Indians placethe country above their creed or will they place creed above country? I do notknow. But this much is certain that if the parties place creed above country,our independence will be put in jeopardy a second time and probably be lostforever. This eventuality we must all resolutely guard against. We must bedetermined to defend our independence with the last drop of our blood. (See: CADon 25th November, 1949 pp 977-978)" (emphasis supplied).

226. Exhibiting tunnel vision, our First Parliament failed to look beyondcaste. Another option was available, an option that adhered to the originalFramers' ideals. Contrary to Dr Ambedkar's view, it was possible to providereservation to backward classes without discriminating based on caste. Economiccriteria target the poorest of the poor, irrespective of caste. As noted, thesecriteria also simultaneously remove the creamy layer.

227. One of the other prominent advocates of reservation later realised thatthe policy did more harm than good. Prime Minister Nehru wrote the followingletter to the Chief Ministers on June 27th, 1961: 

"I have referred above toefficiency and to our getting out of our traditional ruts. This necessitates ourgetting out of the old habit of reservations and particular privileges beinggiven to this caste or that group. The recent meeting we held here, at which thechief ministers were present, to consider national integration, laid down thathelp should be given on economic considerations and not on caste. It is truethat we are tied up with certain rules and conventions about helping ScheduledCastes and Tribes. They deserve help but, even so, I dislike any kind ofreservation, more particularly in service. I react strongly against anythingwhich leads to inefficiency and second-rate standards. I want my country to be afirst class country in everything. The moment we encourage the second-rate, weare lost.

The only real way to help a backward group is to give opportunities for goodeducation. This includes technical education, which is becoming more and moreimportant. Everything else is provision of some kind of crutches which do notadd to the strength or health of the body. We have made recently two decisionswhich are very important: one is, universal free elementary education, that isthe base; and the second is scholarships on a very wide scale at every grade ofeducation to bright boys and girls, and this applies not merely to literaryeducation, but, much more so, to technical, scientific and medical training. Ilay stress on bright and able boys and girls. I have no doubt that there is avast reservoir of potential talent in this country if only we can give itopportunity.

But if we go in for reservations on communal and caste basis, we swamp thebright and able people and remain second-rate or third-rate. I am grieved tolearn of how far this business of reservation has gone based on communalconsideration. It has amazed me to learn that even promotions are basedsometimes on communal and caste considerations. This way lies not only folly,but disaster. Let's help the backward groups by all means, but never at the costof efficiency. How are we going to build our public sector or indeed any sectorwith second-rate people?"

Upon expiry of the time limit, the criteria for identifying OBCs shouldonly be economic in nature because our ultimate aim is to establish a castelessand classless society

228. I am not the first to propose economic criteria as the exclusive meansof identifying SEBCs. In Vasanth Kumar's case, counsel sought an opinion fromthe Court regarding reservations in employment and education for SC/STs and OBCs.The opinion would guide the Karnataka Government in implementing reservation. [para1]. It serves our purposes to review their thorough analysis of theidentification issue.

229. The Court in Vasanth Kumar observed as under:

"24. ... No one is left in any doubt that the future Indian Society was to be casteless and classless. Pandit Jawaharlal Nehru the first Prime Minister of India said that Mahatma Gandhi has shaken the foundations of caste and the masses have been powerfully affected. But an even greater power than Gandhi is at work, the conditions of modern life ... and it seems at last this hoary and tenacious ralic of past times must die. (Discovery of India by Pandit Nehru, Ch VI, p 234) Mahatma Gandhi, the Father of the Nation said, "The caste system as we know is an anachronism. It must go if both Hinduism and India are to live and grow from day to day". In its onward march towards realising the constitutional goal, every attempt has to be made to destroy caste stratification. Article 38(2) enjoins the State to strive to minimise the inequality in income and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations. Article 46 enjoins duty to promote with special care the educational and economic interests of the weaker sections of the people, and in particular, of the Scheduled Castes and Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation. Continued retention of the division of the society into various castes simultaneously introduces inequality of status. And this inequality in status is largely responsible for retaining inequality in facilities and opportunities, ultimately resulting in bringing into existence an economically depressed class far transcending caste structure and caste barrier. The society therefore, was to be classless casteless society. In order to set up such a society, steps have to be taken to weaken and progressively eliminate caste structure. Unfortunately, the movement is in the reverse gear. Caste stratification has become more rigid to some extent, and where concessions and preferred treatment schemes are introduced for economically disadvantaged classes, identifiable by caste label, the caste structure unfortunately received a fresh lease of life. In fact there is a mad rush for being recognised as belonging to a caste which by its nomenclature would be included in the list of socially and educationally backward classes. ... Rane Commission took note of the fact that there was an organised effort for being considered socially and educationally backward castes. Rane Commission recalled the observations in Balaji case [(1963) Supp (1) SCR 439] that "Social backwardness is on the ultimate analysis the result of poverty to a very large extent".  The Commission came to an irrefutable conclusion that amongst certain castes and communities or class of people, only lower income groups amongst them are socially and educationally backward. ..."

230. In this judgment, this Court further observed that if State patronagefor preferred treatment accepts caste as the only insignia for determiningsocial and educational backwardness, the danger looms large that this approachalone would legitimize and perpetuate the caste system. Caste-based reservationdoes not go well with our secular character as enshrined in the Preamble to theConstitution.

231. That said, the majority in Sawhney I later sided with Justice ChinnappaReddy's view: caste can be a factor in identifying SEBCs. This view should nothold the day forever. Eventually, the words of Justice Desai should be revived.

232. Justice Desai wanted to achieve two goals with one fell swoop of thepen. Had his opinion prevailed (1) the creamy layer would have been removedensuring that the truly deserving get the benefit and (2) the casteless societywould have been furthered. To these ends, he would have applied economiccriteria to remove the creamy layer and simultaneously rid reservation of caste.233. He explained that poverty is the bane of Indian society. Given rampantpoverty, it comes as no surprise that " the bank balance, the propertyholding and the money power determine the social status of the individual andguarantee the opportunities to rise to the top echelon." [Vasanth Kumar atpara 27]. As a result, the way "wealth is acquired has lostsignificance." And "upper caste does not enjoy the status or respect any more even in rural areas what to speak of highly westernised urbansociety." Finally, his Lordship recognized that creamy layer exclusion isinherently linked with identification based on economic criteria, i.e.,"occupation, income and land holdings": "30.  If economiccriterion for compensatory discrimination or affirmative action is accepted, itwould strike at the root cause of social and educational backwardness, andsimultaneously take a vital step in the direction of destruction of castestructure which in turn would advance the secular character of the Nation. Thisapproach seeks to translate into reality the twin constitutional goals: one, tostrike at the perpetuation of the caste stratification of the Indian Society soas to arrest progressive movement and to take a firm step towards establishing acasteless society; and two, to progressively eliminate poverty by giving anopportunity to the disadvantaged sections of the society to raise their positionand be part of the mainstream of life which means eradication of poverty."

234. Economic criteria must include occupation and land holdings becauseincome alone is insufficient. To decrease the likelihood that the undeservingevade identification, it is wise to employ more than one criterion.

235. In Vasanth Kumar, Justice Chinnappa Reddy departs from Justice Desai'suse of economic criteria as the sole means of identification. Nevertheless, herecognizes that " ... attainment of economic equality is the final andonly solution to the besetting problems." In Justice Chinnappa Reddy'sopinion, it is easier to classify based on caste than economic criteria:"80: Class poverty, not individual poverty, is therefore the primary test.Other ancillary tests are the way of life, the standard of living, the place inthe social hierarchy, the habits and customs, etc. etc. Despite individualexceptions, it may be possible and easy to identify socially backwardness withreference to caste, with reference to residence, with reference to occupation orsome other dominant feature. Notwithstanding our antipathy to caste and sub-regionalism, these are facts of life which cannot be wished away. If theyreflect poverty which is the primary source of social and educationalbackwardness, they must be recognised for what they are along with other lessprimary sources."

It all depends on how one defines "class." Once economic criteriaremove the relatively wealthy families (from all castes and communities), a"class" will remain. This "class" is known as "thepoor." The class would share the same characteristic, irrespective ofcaste. They would all lack money.

236. In a number of judgments, this Court has spelt out our constitutionalphilosophy regarding caste. On numerous occasions, this Court has proclaimedthat the cherished goal of the Nation is to realise a casteless society. In ShriV. V. Giri v. Dippala Suri Dora & Others (1960) 1 SCR 426 at 442, the Courtobserved as under:- "..The history of social reform for the lastcentury and more has shown how difficult it is to break or even to relax therigour of the inflexible and exclusive character of the caste system. It is tobe hoped that this position will change, and in course of time the cherishedideal of casteless society truly based on social equality will be attained underthe powerful impact of the doctrine of social justice and equality proclaimed bythe Constitution and sought to be implemented by the relevant statutes and as aresult of the spread of secular education and the growth of a rational outlookand of proper sense of social values; but at present it would be unrealistic andutopian to ignore the difficulties which a member of the depressed tribe orcaste has to face in claiming a higher status amongst his co-religionists. It isin the light of this background that the alternative plea of the appellant mustbe considered."

237. In N M. Thomas (supra), a seven Judge Bench observed as under:"This consummation is accomplished only when the utterly depressed groupscan claim a fair share in public life and economic activity, includingemployment under the State, or when a classless and casteless society blossomsas a result of positive State action."

238. In his dissenting opinion, in Sawhney I Justice Kuldip Singh observed asunder:

"339. Secularism is the basic feature of the Indian Constitution. It envisages a cohesive, unified and casteless society. ... The prohibition on the ground of caste is total, the mandate is that never again in this country caste shall raise its head. Even access to shops on the ground of caste is prohibited. The progress of India has been from casteism and egalitarianism from feudalism to freedom.

340. The caste system which has been put in the grave by the framers of the Constitution is trying to raise its ugly head in various forms. Caste poses a serious threat to the secularism and as a consequence to the integrity of the country. Those who do not learn from the events of history are doomed to suffer again."

239. In Akhil Bhartiya Soshit Karamchari Sangh (Railway) (supra), it wasobserved as under:: "14. These forces nurtured the roots of ourconstitutional values among which must be found the fighting faith in acasteless society, not by obliterating the label but by advancement of thebackward 

240. Returning to Vasanth Kumar, one of Justice Reddy's arguments deals withthe level of effort required to identify the poor compared to the effortexpended on identifying caste. In the current context, a number of factors,including economic, are measured to determine SEBC status. (See: the NationalCommission of Backward Classes' Guidelines for considerations of Requests forinclusion and complaints of under-inclusion in the Central List of OtherBackward Classes).

241. The National Commission for Backward Classes aside, I have set out toeventually install a system that only takes cognizance of economic criteria.Using purely economic criteria would lighten the identification load, asascertaining caste would no longer be required. Respondents and others level acommon criticism against the exclusive use of economic criteria. Most of thecountry is poor.

242. Thus, too many people would be eligible for the benefit. This is only aproblem if you hand out reservations based on the group's proportion of thetotal population. Such a reservation would be excessively unreasonable and wouldlikely violate the Balaji cap of 50% [see M.R. Balaji & Ors. v. State ofMysore [(1963) Supp (1) SCR 439]. If economic reservation were limited to areasonable number, it could be upheld.

243. In addition to the problem of extending the benefit to too many, Reddy,J. cannot contemplate the idea of bestowing reservation on an economically poorBrahmin. "The idea that poor Brahmins may also be eligible for the benefitsof Articles 15(4) and 16(4) is too grotesque even to be considered." Hesays that they are not "socially backward", thus they should notreceive the benefit. But can one call a Brahmin sweeper, poor by occupation,socially forward? To do so would be a stretch.

244. The majority in Sawhney I reiterates Justice Chinnappa Reddy's messagein Vasanth Kumar. They rejected the sole use of economic criteria to exclude thecreamy layer, deeming it to be just one measure of advancement. Justice JeevanReddy qualified that sentiment to an extent. If income were extremely high, itcould be the sole factor. In such a case, income alone would ensure that onewere socially forward. Justice Jeevan Reddy was convinced that caste matteredmore than money  especially in rural areas. He makes his point by way ofexample at para 792: "A member of backward class, say a member of carpentercaste, goes to Middle East and works there as a carpenter. If you take hisannual income in rupees, it would be fairly high from the Indian standard. Is heto be excluded from the Backward Class? Are his children in India to be deprivedof the benefit of Article 16(4)?"

245. Unless the carpenter became a factory owner, where his income would be areflection of his status, Justice Reddy would answer his own question in thenegative. This is where we part ways. Today, the NRI carpenter's children willhave likely attended the best schools, tuitions and coaching classes that moneycan buy. These children do not need special provisions. That is why I amremoving the creamy layer, calling for a time- limit on caste-based reservationand urging the Government to use exclusively economic criteria to identify OBCswho may avail of special provisions.

246. The United States Supreme Court has taken a similar position with regardto setting a time-limit on race-based affirmative action. As mentioned above,Justice Sandra Day O'Connor opined that there may be a time-limit to promotingdiversity via preferential treatment for certain races: "We expect that 25years from now, the use of racial preferences will no longer be necessary tofurther the interest approved today." (See: Grutter at 343).

247. In our context, one need not look past the Parliament's affinity withextending time-limits on reservation to see that only the judiciary can put astop to caste-based reservation. Article 334 originally said that reservationfor SC/ST/Anglo-Indians in the Lok Sabha and State Legislative Assemblies wouldexpire on the Constitution's tenth birthday. The Parliament later substituted"ten" for "thirty years" vide the 45th Amendment. When thatwas to expire, the Parliament extended it for another ten years vide the 62ndAmendment. When that was to expire, it extended it for another ten years videthe 79th Amendment. History has shown that it is not politically feasible forthe Parliament to say "no" to reservation  especially when casteis involved.

248. Nevertheless, I have noted that Sawhney I rejects purely economiccriteria (occupation/income/property holdings/or similar measures of economicpower) with respect to classification under 16(4). [para 859, 4(a)]. Sawhney I'snine- Judge holding precludes us from striking the impugned legislation to theextent that it has not yet ruled out the use of caste-based criteria foridentifying SEBC status. It also precludes us from forcing the Government towean itself off caste-based reservation by a certain date. In order to achieve acasteless and classless society, after a lapse of ten years, special preferenceor reservation should be granted only on the basis of economic criteria as longas grave disparity and inequality persist.

Secularism is Part of the Basic Structure

249. To be clear, there is no claim arising out of the goal to promote acasteless society. No right of action exists. The right of action is found insecularism. Though not explicitly found in the un-amended Constitution, theoriginal Framers made it clear that India was to be a secular democracy.Discrimination based on religion is prohibited by Articles 14, 15(1) and 15(2),16(1) and 16(2), 29(2) and 325. The original Framers went out of their way toensure that minorities would be able to maintain their identity. (See: Articles28, 29 and 30). Article 27 precludes the state from adopting a state religion,whereas Article 25 grants citizens the right to profess, practice and propagatereligion. With rights come responsibilities. One of them is found at Article51A(3), which instructs citizens " to promote harmony and spirit ofbrotherhood amongst all people  transcending religious diversities."

250. Relying on these provisions, Bommai (1994) 3 SCC 1 at para 304 declaredsecularism ".a constitutional goal and a basic feature of theConstitution as affirmed in Kesavananda Bharati and Indira N. Gandhi v. RajNarain. Any step inconsistent with this constitutional policy is, in plainwords, unconstitutional." The Court reasoned that the original Framersadopted Articles 25, 26 and 27 so as to further secularism. (See: Bommai at para28 (Ahmadi, J.)). Secularism was very much embedded in their constitutionalphilosophy. [para 29]. During the Constituent Assembly Debates, PanditLaxmikantha Mitra stated (as quoted at para 28 of Bommai): "By secularState, as I understand it, it is meant that the State is not going to make anydiscrimination whatsoever on the ground of religion or community against anyperson professing any particular form of religious faith.  no citizen will have any preferential treatment  simply on the ground that heprofessed a particular form of religion."

This is relevant today because quotas are state-sponsored discriminationagainst those who are not deemed SEBCs - caste being a by-product of religion.Though affirmative action is allowed, there is a point at which it violatessecularism. Finally, I note that the 42nd Amendment, which formally insertedsecularism into the Preamble, merely made what was already implicit explicit.(See Bommai at para 29).

Conclusion on the Casteless Society

251. In conclusion, the First Parliament, by enacting Article 15(5), deviatedfrom the original Framers' intent. They passed an amendment that strengthens,rather than weakens casteism. If caste-based quotas in education are to stay,they should adhere to a basic tenet of secularism: they should not take casteinto account. Instead, exclusively economic criteria should be used. For aperiod of ten years, other factors such as income, occupation and propertyholdings etc. including caste, may be taken into consideration and thereafteronly economic criteria should prevail. Sawhney I has tied our hands. Inevertheless believe that caste matters and will continue to matter as long aswe divide society along caste-lines. Caste-based discrimination remains.Violence between castes occurs. Caste politics rages on. Where casteism ispresent, the goal of achieving a casteless society must never be forgotten. Anylegislation to the contrary should be discarded.

5. Are Articles 15(4) and 15(5) mutually contradictory, such that 15(5) isunconstitutional?

252. While contradictory, I am able to read them harmoniously. Learned seniorcounsel for petitioners, Mr. K.K. Venugopal, argued that Articles 15(5) and15(4) are inconsistent to the extent that 15(5) exempts minority institutionsfrom reservation and 15(4) incorporates aided minority institutions in thereservation scheme. Because both provisions contain "non- obstanteclauses", they render each other void. He further submitted that the Courtis in the position of having to choose between them in regard to thisinconsistency. He provided three tests of statutory interpretation that give usguidance in resolving such a conflict.

253. First, if the Court cannot harmonize the two provisions, it mustinvalidate the one that completely destroys the other's purpose. Sarwan Singh& Another v. Kasturi Lal (1977) 1 SCC 750, pages 760-761, at para 20). Inthe instant case, one of the express purposes of 15(5) was to exempt minorityinstitutions and thus avoid conflict with Article 30(1). This is found in thetext of Article 15(5) itself.

254. With nothing in the text of 15(4) to guide us, we turn to its Statementof Objects and Reasons: "The Act also amplifies Article 15(3) soas to ensure that any special provisions that the State may make for theeducational, economic or social advancement of any backward class citizens maynot be challenged on the ground of being discriminatory. "

255. Thus, Article 15(4) was not passed with an express intention to includeminority institutions; nor did it arise out of a case in which minorityinstitutions were a party. Then again, it was open to the First Parliament toexclude minority institutions from the beginning. Articles 15(4) and 15(5)'spurposes do not necessarily conflict. I find the first test inconclusive andthus turn to the other ones. The second test asks which provision came intoeffect at a later date (i.e., was "later in time?")? That which islater shall prevail. Here, 15(5) was enacted later in time. In J.K. CottonSpinning and Weaving Mills Co. Ltd. v. State of Uttar Pradesh & Others AIR1961 SC 1170 at page 1174, para 9, I find the third test; it provides that thespecific clause must trump the general. Article 15(5) is specific in that itrefers to special provisions that relate to admission in educationalinstitutions, whereas 15(4) makes no such reference to the type of entity atwhich special provisions are to be enjoyed.

256. Because 15(5) is later in time and specific to the question presented,it must neutralize 15(4) in regard to reservation in education. Mr K. Parasaran,learned senior counsel for the respondents, correctly pointed out thatconstitutional articles are to be read harmoniously, not in isolation. (See: T.M.A. Pai (supra) at page 582, para 148). Our interpretation is harmoniousbecause Article 15(4) still applies to other areas in which reservation may bepassed.

6. Does Article 15(5)'s exemption of minority institutions from thepurview of reservation violate Article 14 of the Constitution?

257. Given the inherent tension between Articles 29(2) and 30(1), I find thatthe overriding constitutional goal of realizing a casteless/classless societyshould serve as a tie-breaker. We will take a step in the wrong direction if wesubject minority institutions (even those that are aided) to reservation.

258. Minority aided institutions were subject to a limited form ofreservation. In order to preserve the minority character of the institution,reservation could only be imposed to a reasonable extent. Minority aidedinstitutions could select their own students, contingent upon admitting areasonable number of non-minority students per the percentage provided by theState Government. This conclusion was derived from two conflictingconstitutional articles. Of course, I am only concerned with minority aidedinstitutions because I have already determined that the State shall not imposereservation on unaided institutions (minority or non-minority).

259. Article 30(1) provides that "all minorities, whether based onreligion or language, shall have the right to establish and administereducational institutions of their choice." Article 29(2) states that"no citizen shall be denied admission into any educational institutionmaintained by the State or receiving aid out of State funds on grounds only ofreligion, race, caste, language or any of them."

260. In other words, 30(1) by itself would allow minority aided institutionsto reject all non-minority candidates, and 29(2) by itself would preclude thesame as discrimination based solely on religion. Yet neither provision exists byitself. Rather than disturb the Constitution, this Court struck a compromise anddiluted each provision in order to uphold both. Reading Articles 30(1) and 29(2)harmoniously, Kerala Education Bill provided that once minority institutionsreceive aid, a sprinkling of outsiders must be admitted.

261. "Sprinkling" ensured that the minority character of theinstitution would not be lost. In regard to the "sprinkled" seats,minority institutions cannot discriminate based on religion in violation ofArticle 29(2). At the same time, if the State compelled aided minorityinstitutions to take too many non-minority students, the institution would be"minority" in name only. But what does "too many" mean? Can"sprinkling" be quantified? Clearing up the ambiguity, St. Stephen'sheld that minority institutions must make 50% of their seats available tooutsiders and that admission for the other 50% (its own community) must be doneon merit. Pai later rejected the rigidity attached to this fixed percentage.Along these lines, Pai returned to a more flexible standard, one akin to"sprinkling" in Kerala Education Bill: the moment a minorityinstitution takes aid, it has to admit non-minority students to a reasonableextent, whereby the character of the institution was maintained and yetcitizens' Article 29(2) rights were not subverted. (Also see: Pai at para 149).

Thus, two admission pools were created for aided minority institutions:minority and non-minority. In the minority pool, merit was to be observed. Fromthe non-minority pool, reservations for the weaker sections may be made whilethe remaining seats, if any, would be distributed based on merit to non-minoritystudents. " It would be open to the state authorities to insist onallocating a certain percentage of seats to those belonging to weaker sectionsof society, from amongst the non-minority seats." [Pai at para 152].

262. With regard to the percentage of reservation, the State Governments wereto determine the percentage of non-minority seats according to the needs of thatState. As a compliment to reservation, aided minority institutions were alsosubject to regulation of administration and management. Pai declared at para 72as noted above that: "Once aid is granted to a private professionaleducational institution, the Government or the state agency, as a condition ofthe grant of aid, can put fetters on the freedom in the matter of administrationand management of the institution. The state, which gives aid to an educationalinstitution, can impose such conditions as are necessary for the propermaintenance of the high standards of education as the financial burden is sharedby the state. ..."

263. In addition to the general power to impose conditions that seek tomaintain high standards or "excellence in education," the State couldimplement the same under a related but different rationale. That is, saidregulations could be upheld in the name of national interest. [Pai at para 107].Yet the Government could not destroy the minority character of an institution. [para107]. Nor could it obliterate the establishment or administration of a minorityinstitution. [para 107]. A balance was to be struck between (a) maintainingacademic quality and (b) preserving the minority right to establish/administereducational institutions. Regulations that embraced these two objectives wereconsidered reasonable. [Pai at para 122].

264. A question of great import is whether Article 30 was designed to putminorities on equal or higher footing than non- minorities. This question playedout in detail in a debate between Khare, C.J. and Justice Sinha in IslamicAcademy. Writing for the majority, Chief Justice Khare takes issue with Pai. TheChief Justice says that Pai has wrongly categorized minority rights as equal tothose of the non-minority. He has a point. Minorities can establish andadminister institutions for their communities per Article 30; non-minoritiescannot. His Lordship observed: (para 9 page 723) "We do not read theseparagraphs to mean that non- minority educational institutions would have thesame rights as those conferred on minority educational institutions by Article30 of the Constitution of India. Non-minority educational institutions do nothave the protection of Article 30. Thus, in certain matters they cannot and donot stand on a similar footing as minority educational institutions. Even thoughthe principle behind Article 30 is to ensure that the minorities are protectedand are given an equal treatment yet the special right given under Article 30does give them certain advantages"

Relying on St. Xavier's case (1975) 1 SCR 173, Pai concluded that the objectof Article 30 was to ensure minorities of equal treatment and nothing more.

265. It was observed in St. Xaviers College case, at page 192, that "thewhole object of conferring the right on minorities under Article 30 is to ensurethat there will be equality between the majority and the minority. If theminorities do not have such special protection, they will be deniedequality." The minority institutions must be allowed to do what thenon-minority institutions are permitted to do. [Pai at para 138].

266. In contrast to the majority in Islamic, Justice Sinha concludes thatArticle 30(1) raises minorities to an equal platform and no higher. Relevantportion is reproduced hereinbelow: "The statement of law contained in paras138 and 139 is absolutely clear and unambiguous and no exception can be takenthereto. The doubt, if any, that the minorities have a higher right in terms ofArticle 30(1) of the Constitution of India may be dispelled in clearest termsinasmuch as the right of the minorities and non-minorities is equal. Onlycertain additional protection has been conferred under Article 30(1) of the'Constitution of India to bring the minorities on the same platform as that ofnon-minorities as regards the right to establish and administer an educationalinstitution for the purpose of imparting education to members of their owncommunity whether based on religion or language. [see: Islamic Academy at para105]."

267. Justice Sinha considers it constitutionally immoral to discriminateagainst non-minorities in the guise of protecting the constitutional rights ofminorities. [See: Islamic Academy at para 118]. Even in the face of Articlesthat provide preferential treatment to minority or weaker sections, e.g., 30(1),15(4) and 16(4), the right to equality must mean something.

268. Justice Khare, as he then was, concludes that original Framers conferredArticle 30(1) on minorities in order to instill in them a sense of confidenceand security. [Pai at page 615 at para 229]. Their right to establish andadminister educational institutions could not be usurped by mere legislation.Khare, J. stated at para 229 p.615:- "Thus, while maintaining the rule ofnon- discrimination envisaged by Article 29(2), the minorities should have alsoright to give preference to the students of their own community in the matter ofadmission in their own institution. Otherwise, there would be no meaningfulpurpose of Article 30(1) in the Constitution. True, the receipt of State aidmakes it obligatory on the minority educational institution to keep theinstitution open to non-minority students without discrimination on thespecified grounds. But, to hold that the receipt of State aid completelydisentitles the management of minority educational institutions from admittingstudents of their community to any extent will be to denude the essence ofArticle 30 of the Constitution. It is, therefore, necessary that the minority begiven preferential rights to admit students of their own community in their owninstitutions in a reasonable measure otherwise there would be no meaningfulpurpose of Article 30 in the Constitution."

269. Minorities possess one right or privilege that non-minorities do not:establishing and administering institutions for their community. The right toadmit your own students in aided minority institutions was subject to admittinga reasonable number of outsiders. In the instant case, aided minorityinstitutions stand to benefit from the Reservation Act: instead of having toadmit a reasonable number of outsiders they would be exempted from reservation.However, their non-minority counterparts would not. Does this elevate theirstatus? While it does to a certain extent, however, we must also keep ourconstitutional goal and philosophy in mind. Given the ultimate goal offurthering a classless/casteless society, there is no need to go out on a limband rewrite them into the Amendment. Such a ruling would subject even moreinstitutions to caste-based reservation. This would be a step back for theNation, furthering the caste divide. I refuse to go in that direction.

7) Are the standards of review laid down by the U.S. Supreme Courtapplicable to our review of affirmative action under Article 15(5) and similarprovisions?

270. As noted above, U.S. law is, of course, not binding but does have greatpersuasive value. This is because their problem of race is akin to our problemof caste. Where others have reviewed similar issues in great detail, it behoovesus to learn from their mistakes as well as accomplishments.

Mr. R. Venkataraman, former President of India in a foreword to a book ofeminent constitutional expert Dr. L.M. Singhvi "Democracy And Rule of Law :Foundation And Frontiers", has aptly observed which reads as under:

"Society progresses only by exchange of thoughts and ideas. Imagine whata sorry state the world would have been in had not thoughts and ideas spread toall corners of the globe. Throughout history, philosophers, reformers, thinkers,and scholars have recorded their thoughts, regardless of whether they wereaccepted or not in their times, and thus contributed towards progress ofhumankind. India was the first to encapsulate this seminal global thought. TheRig Veda says: Ano bhadrah Krtavo yantu Viswatah (Let noble thought come to usfrom every side.")

8) With respect to OBC identification, was the Reservation Act'sdelegation of power to the Union Government excessive?

271. It is not an excessive delegation. I agree with the Chief Justice'sreasoning at para 185 of his judgment.

9) Is the impugned legislation invalid as it fails to set a time-limit forcaste-based reservation?

272. It is not invalid because it fails to set a time-limit. Given theParliament's history of extending time-limits on other reservation schemes,there is much force to the argument that the Parliament will forever continue toextend reservations. As noted above, it is consistent with our constitutionalgoal of achieving a classless/casteless society that a time-limit be set. But Iam bound by Sawhney I and believe that only a larger bench could make such aruling. A larger bench could certainly hold that only economic criteria could beused to identify SEBCs and that it should be done by a certain date.

10) At what point is a student no longer Educationally Backward and thusno longer eligible for special provisions under 15(5)?

273. Once a candidate graduates from a university, he must be considerededucationally forward. Senior counsel for petitioners, Mr. P.P. Rao, contendedthat those who have completed Plus 2 should be considered educationally forward.In other words, they would no longer be eligible for reservation in universityor post-graduate studies. There is some force in this argument where only 18% inthe relevant age-group have completed Plus 2. From this vantage point, thismeans that they are educationally elite. But the answer to most questions in lawis not so simple. The answer often depends on the circumstances surrounding theissue. In the marketplace, a candidate who has completed higher secondaryeducation cannot be considered "forward". The real value of the highersecondary degree is that it is a prerequisite for college admissions. Thegeneral quality of education imparted upto Plus 2 is of extremely indifferentquality and apart from that, today some entry-level Government positions onlyaccept college graduates. One is educationally backward until the candidate hasgraduated from a university. Once he has, he shall no longer enjoy the benefitsof reservation. He is then deemed educationally forward. For admission intoMaster's programmes, such as, Master of Engineering, Master of Laws, Master ofArts etc., none will be a fortiori eligible for special benefits for admissioninto post graduation or any further studies thereafter. 

11. Would it bereasonable to balance OBC reservation with societal interests by instituting OBCcut-off marks that are slightly lower than that of the general category? 

274.Balaji (supra) concluded that reservation must be reasonable. The OversightCommittee has made a recommendation that will ensure the same. At page 34 of Volume I of itsReport, the Oversight Committee recommended that institutions of excellence settheir own cut off marks such that quality is not completely compromised. Cutoffs or admission thresholds as suggested by the Oversight Committee arereproduced:

"4.4.2 The Committee recognizes that those institutions of higher learning which have established a global reputation (e.g. IITs, IIMs, IISc, AIIMS and other such exceptional quality institutions), can only maintain that if the highest quality in both faculty and students is ensured. Therefore, the committee recommends that the threshold for admission should be determined by the respective institutions alone, as is done today, so that the level of its excellence is not compromised at all.

4.4.3 As regards 'cut-offs' in institutions other than those mentioned in para 7, these may be placed somewhere midway between those for SC/ST and the unreserved category, carefully, calibrated so that the principles of both equity and excellence can be maintained.

4.4.4 The Committee strongly feels that the students who currently tend to get excluded must be given every single opportunity to raise their own levels of attainment, so that they can reach their true potential. The Government should invest heavily in creating powerful, well designed and executed remedial preparatory measures to achieve this objective fully."

275. Standards of excellence however should not be limited to the best aidedinstitutions. The Nation requires that its citizens have access to qualityeducation. Society as a whole stands to benefit from a rational reservationscheme.

276. Finding 68% reservation in educational institutions excessive, Balaji atpages 470-471 (supra) admonished States that reservation must be reasonable andbalanced against other societal interests. States have " to takereasonable and even generous steps to help the advancement of weaker elements;the extent of the problem must be weighted, the requirements of the community atlarge must be borne in mind and a formula must be evolved which would strike areasonable balance between the several relevant considerations." To strikesuch a balance, Balaji slashed the impugned reservation from 68 to less than50%.

277. Balaji thus serves as an example in which this Court sought to ensurethat reservation would remain reasonable. We heed this example. There should beno case in which the gap of cut off marks between OBC and general categorystudents is too large. To preclude such a situation, cut off marks for OBCsshould be set no lower than 10 marks below the general category.

278. To this end, the Government shall set up a committee to look into thequestion of setting the OBC cut off at nor more than 10 marks below that of thegeneral category. Under such a scheme, whenever the non-creamy layer OBCs failto fill the 27% reservation, the remaining seats would revert to generalcategory students.

SUMMARY OF FINDINGS

1A. Whether the creamy layer be excluded from the 93rd Amendment(Reservation Act)?

Yes, it must. The 93rd amendment would be ultra vires and invalid if thecreamy layer is not excluded. See paras 22, 25, 27, 30, 34, 35, 43, 44.

1B. What are the parameters for creamy layer exclusion?

For a valid method of creamy layer exclusion, the Government may use itspost-Sawhney I criteria as a template. (See: Office Memorandum dated 8-9-1993,para 2(c)/Column 3). I urge the Government to periodically revise the O.M. sothat changing circumstances can be taken into consideration while keeping ourconstitutional goal in view.

I further urge the Government to exclude the children of former and presentMembers of the Parliament and Members of Legislative Assemblies and the said O.M.be amended accordingly.

See paras 55-57.

1C. Is creamy layer exclusion applicable to SC/ST?

In Indra Sawhney-I, creamy layer exclusion was only in regard to OBC. JusticeReddy speaking for the majority at para 792 stated that "this discussion isconfined to Other Backward Classes only and has no relevance in the case ofScheduled Tribes and Scheduled Castes". Similarly, in the instant case, theentire discussion was confined only to Other Backward Classes. Therefore, Iexpress no opinion with regard to the applicability of exclusion of creamy layerto the Scheduled Castes and Scheduled Tribes. See para 34.

2. Can the Fundamental Right under Article 21A be accomplished withoutgreat emphasis on primary education?

No, it cannot.

An inversion in priorities between higher and primary/secondary educationwould make compliance with Article 21A extremely difficult. It is not suggestedthat higher education needs no encouragement or that higher education should notreceive more funds, but there has to be much greater emphasis on primaryeducation. Our priorities have to be changed. Nothing is really more importantthan to ensure total compliance of Article 21A. Total compliance means goodquality education is imparted and all children aged six to fourteen regularlyattend schools. I urge the Government to implement the following:

The current patchwork of laws on compulsory education is insufficient.Monetary fines do not go far enough to ensure that Article 21A is implemented.The Central Government should enact legislation that:

(a) provides low-income parents/guardians with financial incentives such thatthey may afford to send their children to schools;

(b) criminally penalizes those who receive financial incentives and despitesuch payment send their children to work;

(c) penalizes employers who preclude children from attending schools;

(d) the penalty should include imprisonment; the aforementioned Bill wouldserve as an example. The State is obligated under Article 21A to implement freeand compulsory education in toto.

(e) until we have accomplished for children from six to fourteen years theobject of free and compulsory education, the Government should continue toincrease the education budget and make earnest efforts to ensure that childrengo to schools and receive quality education;

(f) The Parliament should fix a deadline by which time free and compulsoryeducation will have reached every child. This must be done within six months, asthe right to free and compulsory education is perhaps the most important of allthe fundamental rights. For without education, it becomes extremely difficult toexercise other fundamental rights.

See paras 126-131.

3. Does the 93rd Amendment violate the Basic Structure of the Constitutionby imposing reservation on unaided institutions?

Yes, it does. Imposing reservation on unaided institutions violates the BasicStructure by stripping citizens of their fundamental right under Article19(1)(g) to carry on an occupation. T.M.A. Pai and Inamdar affirmed that theestablishment and running of an educational institution falls under the right toan occupation. The right to select students on the basis of merit is anessential feature of the right to establish and run an unaided institution.Reservation is an unreasonable restriction that infringes this right bydestroying the autonomy and essence of an unaided institution. The effect of the93rd Amendment is such that Article 19 is abrogated, leaving the Basic Structurealtered. To restore the Basic Structure, I sever the 93rd Amendment's referenceto "unaided" institutions.

See paras 132-182.

4. Whether the use of caste to identify SEBCs runs afoul of thecasteless/classless society, in violation of Secularism.

Sawhney I compels me to conclude that use of caste is valid. It is said thatif reservation in education is to stay, it should adhere to a basic tenet ofSecularism: it should not take caste into account. As long as caste is acriterion, we will never achieve a casteless society. Exclusively economiccriteria should be used. I urge the Government that for a period of ten yearscaste and other factors such as occupation/income/property holdings or similarmeasures of economic power may be taken into consideration and thereafter onlyeconomic criteria should prevail; otherwise we would not be able to achieve ourconstitutional goal of casteless and classless India.

See paras 194, 195, 231, 248, 251.

5. Are Articles 15(4) and 15(5) mutually contradictory, such that 15(5) isunconstitutional?

I am able to read them harmoniously. See paras 252-256.

6. Does Article 15(5)'s exemption of minority institutions from thepurview of reservation violate Article 14 of the Constitution?

Given the inherent tension between Articles 29(2) and 30(1), I find that theoverriding constitutional goal of realizing a casteless/classless society shouldserve as a tie-breaker. We will take a step in the wrong direction if minorityinstitutions (even those that are aided) are subject to reservation. See paras268-269.

7) Are the standards of review laid down by the U.S. Supreme Courtapplicable to our review of affirmative action under Art 15(5) and similarprovisions?

The principles enunciated by the American Supreme Court, such as,"Suspect Legislation" "Narrow Tailoring" "StrictScrutiny" and "Compelling State necessity" are not strictlyapplicable for challenging the impugned legislation.

Cases decided by other countries are not binding but do have great persuasivevalue. Let the path to our constitutional goals be enlightened by experience,learning, knowledge and wisdom from any quarter. In the words of Rigveda, letnoble thoughts come to us from every side. See para 183.

8) With respect to OBC identification, was the Reservation Act'sdelegation of power to the Union Government excessive?

It is not an excessive delegation. With respect to this issue, I agree withthe reasoning of the Chief Justice in his judgment.

9) Is the impugned legislation invalid as it fails to set a time-limit forcaste-based reservation?

It is not invalid because it fails to set a time-limit. See para 272.

10) At what point is a student no longer Educationally Backward and thusno longer eligible for special provisions under 15(5)?

Once a candidate graduates from a university, the said candidate iseducationally forward and is ineligible for special benefits under Article 15(5)of the Constitution for post graduate and any further studies thereafter.

See para 273.

11. Would it be reasonable to balance OBC reservation with societalinterests by instituting OBC cut-off marks that are slightly lower than that ofthe general category?

It is reasonable to balance reservation with other societal interests. Tomaintain standards of excellence, cut off marks for OBCs should be set not morethan 10 marks out of 100 below that of the general category. See paras 274-278.

These Writ Petitions and Contempt Petition are accordingly disposed of. Inthe facts and circumstances, the parties are to bear their own costs.