Judgment Summary III

Full text of the judgement by Justice Dalveer Bahndari can be found here

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.