SYMBIOSIS LAW SCHOOL, PUNE

1ST INTERNAL ASSESMENT

SUBJECT: CONSTITUTIONAL LAW
TOPIC- AN ANALYSIS BETWEEN RIGHT TO EQUALITY AND THE
CREAMY LAYER

SUBMITTED BY:

NAME: HARSHITA ANAND, VINEET HONMANE

DIVISION: ‘E’

PRN: 19010125480, 19010125401

COURSE: BA.LLB. (2019-2024)

 SYMBIOSIS LAW SCHOOL, PUNE

TABLE OF CONTENTS

INTRODUCTION……………………………………………………………3

RESEARCH:

BACKGROUND OF OBC RESERVATION……………………………….4

CREAMY LAYER…………………………………………………………..5

RESEARCH OBJECTIVES…………………………………………………7

STATEMENT OF PROBLEM………………………………………………8

i. STATE OF KERALA V. N.M. THOMAS…………………………....9

ii. INDIRA SAWHNEY v. U.O.I……………………………………….10

iii. ASHOKA KUMAR THAKUR v. U.O.I…………………………..…11

LITERATURE REVIEW…………………………………………………...13

CONCLUSION&RECOMMENDATIONS…………………………....…...14

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 INTRODUCTION: WHAT IS EQUALITY AND THE CREAMY
LAYER?

India is a democratic country, which means that the rule of land is of the people, by the
people and for the people. India being the largest democracy in the world has many
requirements to be fulfilled to be called a Democracy. In the Preamble of the Constitution of
India, there’s a term called “EQUALITY”. Equality means that the citizens are ensured that
every individual has an equal status and opportunity to make most their lives.

Right to equality in India is given to the citizens by the constitution in India which was given
to the citizens on November 26th 1949. Articles 14 to 18 constitute the right to equality.
However, in constitutions of different countries equality is explained through only one single
article. The makers of the India’s constitution were not satisfied with that kind of
understanding of right to equality. They knew that even though inequality in Indian society
has been noticed since ages and has been central to social reforms from time to time,
widespread social and economic inequalities, often sanctioned by law or public policies and
exercise if public power, supported by religion and other social norms and practices, existed
and flourished. Such inequalities could not be removed, minimized or dealt with a provision
like article 14 alone. Hence, there are express, explicit articles to abolish and prohibit
practices of inequality not only by public powers and state but also by private persons.1

On 26 September, the Supreme Court made a major change in the composition of the caste
reservation, creating the ' creamy layer ' system for the Dalits (Scheduled Castes) and
Adivasis (Scheduled Tribes) quotas. It is a drastic move that strongly divides the opinion.

The "creamy layer" is the fairly small segment of people at the top of the socio-economic
pyramid of the marginalized community. It would include numerous judges of the Supreme
Court, senior officials and military officers above the position of colonel belonging to that

1
M.P. Jain Indian Constitutional Law, Pg.907

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class. The Creamy Layer Test states that an applicant must be below a certain wage limit in
order to make use of quotas in government jobs and educational institutions.2

The creamy layer is analyzed to define and show that the reserves are meant for inclusion, in
truth inequality reeks. There was an effort to rationalize this layer's removal from reservation,
with potential inefficiencies of doing the same.

In comparison to the prohibitions or limitations on the existence of handicaps or barriers by

States in the development and progress of a person, affirmative action envisages positive
steps on the part of the State in order to allow it to grow and move forward. It is envisaged
that the State will not only refrain from discrimination but will vigorously seek to remove
existing discriminatory practices in the private sphere.

BACKGROUND OF OBC RESERVATION

Originally, Article 15 did not include sub-clause (4) and (5). Sub-clause (5) was adopted by
the Constitution Act (93rd amendment) 2005, while sub-clause (4) was inserted by the S.2,
First Amendment Act, 1951, after the Supreme Court in Madras v. Champakam
Dorairajanheld that the state had no power to reserve seats for backward communities to
establish educational institutions. The Court held that those restrictions were in breach of Art.
29(2) and dismissed the claim that the provision of the Directive laid down in Art. 46 laid
down the principle of choice which could legally be integrated into the legislation. Therefore,
by means of this amendment, Article 15(4) has been eligible for Article 29(2), which refers to
a specific provision against discrimination in State supported education. Controversies have
taken place on the question of the selection of beneficiaries and the amount of benefits.
Similarly, Article 16, which prohibits discrimination in relation to government employment,
is provided for in Article 16(4) to allow the State to do so.3

“any provision for the reservation of appointments or posts in favour of any backward class of
citizens which, in the opinion of the State, is not adequately represented in the services under the
State“.

Comparing positions with the United States, government agencies in the United States can
provide constitutional benefits and benefits to groups that depend on income, careers,
education, etc. Although groups defined in a certain area are basically identical to certain

2
https://www.ebc-india.com/lawyer/articles/95v3a2.htm
3
https://asiasociety.org/education/jati-caste-system-india

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minority groups, it seems clear that benefits may not be given for the use of one racial group
and another.

It should be noted that the original draft constitution drafted by the constitutional advisor did
not mention the class of withdrawal. Instead, the term "certain class of citizens" is used,
paragraph 11 (3). However, the drafting committee considers it appropriate to replace the
word "backward class" with the word "particular class", which is regulated in Article 10 (3)
of the draft Constitution, designed by the drafting Committee and Article 16 (4) of the present
constitution which is already included. However, during discussions in the Constituent
Assembly, the use of the word "back" provoked heated debate.4

CREAMY LAYER

On 26 September, the Supreme Court made a major change in the composition of the caste
reservation, creating the ' creamy layer ' system for the Dalits (Scheduled Castes) and
Adivasis (Scheduled Tribes) quotas. It is a drastic move that strongly divides the opinion.

The "creamy layer" is the fairly small segment of people at the top of the socio-economic
pyramid of the marginalized community. It would include numerous judges of the Supreme
Court, senior officials and military officers above the position of colonel belonging to that
class. The Creamy Layer Test states that an applicant must be below a certain wage limit in
order to make use of quotas in government jobs and educational institutions.5

The creamy layer is analysed to define and show that the reserves are meant for inclusion, in
truth inequality reeks. There was an effort to rationalize this layer's removal from reservation,
with potential inefficiencies of doing the same.

Creamy layer applies to people who are financially well-off and belong to Other Backward
Castes (OBCs). The state government is licensed once every three years to raise the ceiling
for maximum income under creamy layer. Excessively high standard for creamy layer
determination has been overturned. As far as the creamy layer of application in SCs is
concerned, the Court has not articulated any opinion, but there appears to be no constitutional
obstacle excluding them from the benefits of Articles 15(4) and 16(4). The Central

4
V.N. Shukla Constitution of India
5
https://shodhganga.inflibnet.ac.in/bitstream/10603/51963/6/06_chapter%201.pdf

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Government has named a commission to formulate initiative for the purpose of equal
distribution of the reservation benefits to various classes of SCs.

During the 1992 Supreme Court judgment Indira Sawhaney v. Union of India, the word
"creamy layer" was first used on the recommendations of the Mandal Commission calling for
27 per cent quotas for “Other Backward Classes” (OBCs) in central and state government
employment. While the Supreme Court stated that the more fortunate among the
marginalized classes did not dominate the reserved groups, the bare bones of requirements for
determining the creamy layer were left to the governments of the State.6

Why was it introduced?

Originally, no income criteria were specified for the Dalits, Adivasis and the Other
Backwards Classes reservations. Neither have Federal or State laws adopted any such seats.
Caste was the sole basis of reservation. It was the Supreme Court that, through its judgment
in the Indira Sawhney case, put the definition of the "creamy layer" into 1993. The court said
placing the "creamy layer" within the framework was consistent with the constitution's basic
structure, as it sketched the principle of equality. "The elimination of such socially
progressive members," it concluded, "would make the ‘class’, a class that is really
backward." The court said placing the "creamy layer" within the framework was consistent
with the constitution's basic structure, as it sketched the principle of equality. However, the
principle extended only to the Other Backward Classes, not to the Dalits and Adivasis, who
are recognized as the most backward communities in the country. The judgment from a five-
judge bench led by Chief Justice Dipak Misra changes the equation, administering the
"creamy layer" test for all caste reservations. The bench asserted in its ruling that being part
of the "creamy layer" allows Dalits and Adivasis to "get out of untouchability or barbarism."
Mirroring earlier decisions, the apex court also argued that excluding the creamy layer would
help the cause of equality as they "grab and retain all the lucrative jobs in the public sector,
leaving the rest of the class as poor as they have always been."7

6
https://en.wikipedia.org/wiki/Court_cases_related_to_reservation_in_India

7
https://thewire.in/rights/supreme-courts-application-of-creamy-layer-to-sc-st-employees-hides-
caste-and-class-bias

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In petition against Mandal Commission, the Supreme Court upheld the quota but ordered that
socially advanced individuals / sections be removed from among the OBCs granting the
definition of creamy layer. Supreme Court stated on the same issue that "Reservation is
needed to encapsulate caste and not to perpetuate it. Reservations have to be used in a limited
sense or casteism will be perpetuated in the world”.8

The First Backward Classes Commission was formed under the chairmanship of Kaka
Kalelkar by a presidential order on 29 January 1953, and published its report on 30 March
1955. It had planned for the entire country a list of 2,399 backward castes or groups, of which
837 were listed as the "most backward". The 2003 National Sample Survey Round indicates
that the number of non-Muslim OBCs may be around 32 per cent, not 50 per cent. Around 4
per cent of Muslim OBCs are. Various organizations have argued that OBC faced no such
discrimination and therefore the 'caste argument' advanced in favour of OBC reservations is
fallacious. If the logic of this assertion is approved, then, on the basis of economic criteria,
the OBCs can claim reservations equal to the poor and underprivileged classes among other
castes, Muslims and other minorities. It's also a fact that in many states the upper OBCs have
become economically powerful and therefore they don't count on economic parameters.9

Various groups have opposed the commission because the upper backward castes like Yadav
and Kurmis, Jats, Thevars, Goundas, Okkaligas and Gujars are infamous for abusing the most
backward castes, and have been called the worst perpetrators of caste atrocities in rural India.
Such castes were well-off economically. The Mandal Commission Report, however,
completely disregarded economic requirements and emphasized only social criteria.
Consequently, the Mandal Commission deliberately tried to defend the interests of the caste
band which were economically and socially more advanced.10

RESEARCH OBJECTIVES

1) To show that Right to Equality is being contradicted by The Creamy Layer.

8
https://thefactfactor.com/facts/law/constitutional_law/mandal-commission-case/1223/

9
https://m.economictimes.com/news/politics-and-nation/supreme-court-to-examine-removing-
creamy-layer-from-scheduled-caste/scheduled-tribe-quotas/articleshow/62577064.cms

10
Backward Class Reservation and Concept of Creamy Layer-Pallavi Gupta

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 2) How the people belonging to the Creamy Layer are exploiting the “actual” weaker
sections of the society.
3) Creamy layer cannot be considered as a reasonable exception to Article 14.

STATEMENT OF PROBLEM

I. Is creamy layer fair in lieu of right to equality?

There exists abundance of misery, injustice, and the systemic removal from cherished wealth,
incentives, and employment of leaders of disadvantaged groups that theory of rights will help
them fight structural inequality. But this hypothesis appears illogical, unsound as well as
unbalanced given its value. Some may even find it unwelcome. With too much politization of
this device's reservation problem and political violence, one has to work very slowly to
accept a right of reservation. It cannot be forgotten that Articles 15(4) and 16(4) have been
put under several restrictions, in particular as regards firm evidence of a strong and valid
definition of the disadvantaged classes. In Mandal the Court specifically held that
commercial quotas are legally unconstitutional. Also, the Court has recommended the
Government not to make reservations in executive positions and advanced areas. For
example, in analytical posts in research and development institutions, in specialities and super
specialties in medicine, engineering and other such fields, no reservations should be made. It
is argued that the notion of equality as a policy matter has to be kept separate from the notion
of equality as a matter of justice. Discrimination results only when religion, race, caste, sex or
place of birth or any of them becomes the basis for disrespect, contempt or prejudice for
treatment differences.[x] Reservations are now in the third generation in India. No specific
data were captured to demonstrate or refute whether reservations had any genuine impact. It
must have profited a large number of underprivileged citizens but to the extent desired, it has
not achieved inclusiveness.11

It is a harrowing feature of the Constitution to describe backward class of citizens using

various expressions. While Article 15(4) and Article 340 use the phrase ' socially and
educationally backward classes' ('SEBCs'), Article 16(4) and Article 46 use the phrase
'backward class of citizens' ('BCs') and 'weaker sections of the population.' Whether these
words bear different meanings in the absence of their statutory interpretations is uncertain.

11
https://www.jstor.org/stable/4415016?seq=1#metadata_info_tab_contents

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The terms, however, are specified–the Schedules Castes (SCs) and the Schedules Tribes
(STs), and it can be said that they constitute a distinct group in view of their extreme
backwardness and the constitutional system. On the professional front, reservations have
encouraged people with dubious capabilities or potential to place themselves in important
positions. Many of those individuals have failed to achieve the level of professional standards
expected for the positions they take. This is apparent from the fact that politicians are now
advocating for reservations in promotions, a process that depends on performance globally. In
the case of Indira Sawhney v. Union of India (the case of the Mandal commission) the court
held that the economic prerequisite alone cannot be the basis of backwardness although it
may be a consideration along with or besides social backwardness. The constitution neither
describes these groups nor lays out any criteria for their determination.12

Vis-à-vis to this particular statement of problem, cases are cited below:

1)State of Kerala vs. N.M. Thomas13

In the above given case, a Government order granted provisional promotions in employment
to members of Schedule Castes and Schedule Tribes who did not have requisite qualification
at that moment to be eligible for such promotion, along with a two-year grace period for them
to gain the required qualification. This order was challenged in this case. It was contended by
the aggrieved party that the said order was void under Article 16 (1) and Article 16 (2) as the
clause inserted by amendment i.e. Article 16 clause (4) was not invoked. So, if Article 16 (4)
did not apply then there is no question of special provision being granted.

Speaking for the majority Chief Justice Ray, thought otherwise, he stated, “The rule of
differentiation is enacting laws differentiating between different persons or things in different
circumstances. The circumstances which govern one set of persons or objects may not
necessarily be the same as those governing another set of persons or objects so that the
question of unequal treatment does not really arise between persons governed by different
conditions and different sets of circumstances”. Consequently, he held, “The rule of equality
within Articles 14 and 16(1) will not be violated by a rule which will ensure equality of
representation in the services for unrepresented classes after satisfying the basic needs of
efficiency of administration.” (Paragraph 37). By this he held that there should be a remedial
12
https://www.lawctopus.com/academike/reservation-2110/

13
 State of Kerala vs. N.M. Thomas (1976) 2 SCC 310; 1976 (1) SCR 906
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action which is included in Article 16 (1) for representation of excluded classes. Adopting a
Group-Subordination Approach, he painstakingly went into the jurisprudence of reservations
and Indian caste history and reasoned that in background of the historical discrimination of
the

Schedule Castes and Schedule Tribes is to be removed by targeting then as a group. This was
said in light that for elimination of castes, they should be targeted. He stated that Article 16
(4) did not form an exception to Article 16(1, moreover, Schedule Castes were not same as
‘Castes’ under Article 16 (2) but were ‘backward classes’ under Article 16 (4). As C.J. Ray
was speaking for three judges including himself, the ratio was that Article 16 (4) does not
operate as exception to Article 16 (1), allowing Government to have limited power which
was prohibited by Article 16(1), but now exists as “one of the methods of achieving equality
embodied in Article 16 (1)”.

2) Indira Sawhney v. Union of India14

The reservation issue has been an overwhelming problem in India for quite a long time. It has
seen times of divergence in the field of education and employment not based on open
competition and merit, but on rank, class edification, money allied, and social foundation. On
the one hand, it has tried to achieve the aim of social equity set around the pre-eminent law
that everyone must obey again, leaving the people of this present world nervous with regard
to the fundamental idea of magnificence and development that this country requires.
According to these lines, the present case is of genuine interest, as it shows, that standing and
other such related indecencies should never be taken as the premise of achieving such a
respectable goal as not only disturbs the essential friendly texture of the general public, but
also creates a redundant gap between meriting and merited.

On January 1, 1979, the government led by PM Sri Morarji Desai appointed the
Constitution's second Backward Classes commission under Article 340 to study the SEBC’s
within the Indian zone and recommend projects for their development.

In December 1980, the commission submitted its report and accepted 3743 stations in
backward classes as socially and instructively and recommended a quota for their 27 percent
government employment. Due to inner disagreements Janta's government falls and Congress
14
Indira Sawhney & Ors v. Union of India. AIR 1993 SC 477: 1992 Supp (3)SCC 217

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party headed by PM Smt. Indira Gandhi came to control at the middle. Until 1989 the
Congress government did not execute the report of the commission.15

In 1989 the Janta Dal triumphed over the Congress party, who again came into control and
issued Office Memoranda to implement the commission report as it promised to the
electorate. In the wake of passing this notice, the nation was plunged into turmoil, and the
country remained shook for three months by a rough hostile to reservation growth that caused
considerable loss of people and properties.

A written request for the consideration of the Supreme Court Bar Association was carried out
on 1 October 1990 questioning the O.M.'s validity, moreover, to stay its task, The tribunal's
five-judge seat remained O.M.'s task until the case's last transfer.Unfortunately, because of
revolts, the Janta government collapsed again, and the Congress party came once more to
regulate the inside led by P.V. Narasimha Rao also issued an O.M. By proposing the financial
standard for granting reservations on 25 September 1991, by giving inclination in the 27
percent quantity to the poorer areas of SEBCs and by saving another 10 percent of incentives
for specific SEBCs monetarily in higher-ranking backward categories.

3)Ashoka Kumar Thakur v. Union of India16

In April 2006, the government decided to reserve nearly 27 percent of seats for students from
the OBC segment in institutes of higher learning in India. This would have limited seats for a
general, unreserved candidate to about 50 percent (because other reserved seats were taken
into account). In this respect, the Indian legislature passed a bill carrying forward an
amendment in the constitution. Thakur contested the amendments ' validity. India's Supreme
Court refused to stay the constitutional amendment in response to the PIL, but granted notice
to the government. The government, which had faced extreme anti-reservation protests on its
turn, announced that the reservation policy would not be enforced until a bill (Central
Educational Institutions (Reservation in Admission) Bill, 2006) passed in the parliament in
August 2006 becomes a statute for this reason. The bill was endorsed later by Parliament.

15
https://corporate.cyrilamarchandblogs.com/2017/11/casteism-much-analysis-indra-sawhney-
part/

16
Ashoka Kumar Thakur v. Union of India 1988 SCR (2) 800 1988SCC(1)
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The Supreme Court, as an interim measure, retained the operation of admission to medical
and professional institutions for OBC's under the 27 percent quota category for the year
2007-2008 and ordered that all cases (including this one) should be listed for the third week
of August for final hearing and disposal on the matter. Nevertheless, it explained that it was
not necessary to withdraw the advantage of reserving for the Scheduled Castes and Scheduled
Tribes and the Centre should continue with the designation process to determine the
backward class. The Supreme Court of India upheld 27 per cent OBC quotas in government-
funded agencies on 10 April 2008. The Court categorically affirmed its prior stance that
"Creamy Layer" should be removed from the reservation policy area and private institutions
should also not be included in the reservation scheme. There were mixed reactions to the
verdict. Several criteria have been recommended for identifying creamy layer which are as
follows Those with family income above Rs. 2,50,000 per year should be in creamy layer and
excluded from the reservation quota. Also, children of doctors, engineers, chartered
accountants, actors, consultants, media professionals, writers, bureaucrats, colonel and
equivalent rank or higher defence officers, high court and Supreme Court judges, all officials
of the Class A and B central and state government. The court has also asked Parliament to
exclude children of MPs and MLAs.

II. Should caste-based reservations be determined according to economic criteria?

Through essence, reservation is a means to end caste-based discrimination which has been a
part of Indian society for centuries. Economic backwardness isn't a cure. For this reason,
there is no reservation for upper caste low-income members. Reservation is supposed to
ensure that backward castes are fairly represented in public services, educational institutions,
and legislatures, and that they get a share of state power –something they have been rejected
across Indian heritage.

Indian politicians have been very consistent all along on deciding caste-only quotas. Once
British Raj designated legislative seats for Dalits under a pact between Mohandas Gandhi and
BR Ambedkar in 1937, it did not state revenue requirements. Neither did the first government
of independent India site such restraints upon the reservation of Dalit and Adivasi.17

17
http://spotlawapp.com/webn/judgementviewe.php?jNo=9100119850508010

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Many commentators have contended that stipulating an economic reservation ceiling
misunderstood how caste functions: Dalits and Adivasis face discrimination, even if they are
well-off or educated. In 2016, his friends and family criticized caste discrimination at the
prestigious university after Dalit scholar Rohith Vemula committed suicide at Hyderabad
Central University. A temple in Bihar was allegedly cleaned in 2014, and washed its idol
after it was visited by Dalit chief minister Jitan Ram Manjhi. Since its establishment Caste-
based quota has been debated in India. With many of the electorate, the idea that people in a
minority community deserve privileges didn't go down well. But the biggest question is
whether caste-based reservation is fair, considering that most of the benefits come from the
creamy layer? Some say that reservation based on revenue would fix India's problems and
turn the demographic tragedy into a demographic dividend. Reservation is a crucial issue for
young Indians.18

LITERATURE REVIEW

The literature review on this research paper titled “AN ANALYSIS BETWEEN RIGHT TO
EQUALITY AND THE CREAMY LAYER”, has been taken from many different books and
scholarly articles. Right to equality gives us a feeling of being equal amongst the equals in
the society and the Creamy Layer contradicts right to equality. This research paper was solely
based to prove the above. The Creamy Layer has been existing since more than 50 years now
and that the people belonging to such layer are taking undue advantage of the reservations
given to the underprivileged. The word “EQUALITY” in the preamble gives a sense of being
same as the other. In many of the research papers it’s been shown that the Creamy Layer is
been present and there are a lot of cases on this particular agenda. Many of these case
judgements are towards the creamy layer when the government should be doing otherwise.
The creamy layer does not abide by Article 14 of the Indian Constitution19 whose basic
definition says that “EQUALITY AMONGST THE EQUALS”. The case of State of Kerala
v. N.M.Thomas introduced the term Creamy Layer to the country for the first time. It was in
this case where it was made an eye opener to the public that the rich and powerful even
though belonging to the lower caste are using the privileges meant for the weak. But an
action was taken in the case of Indira Sawhney v. Union of India, where, the 9 Judge bench

18
https://www.financialexpress.com/opinion/reservation-in-promotion-in-equality-versus-social-
justice-debate-the-principle-of-constitutional-reasonableness-is-being-ignored/1369687/

19
http://legislative.gov.in/sites/default/files/coi-4March2016.pdf

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decisively laid down several landmark propositions such as 50% threshold in reservation, the
bar against reservation in certain types of post, the exclusion of Creamy Layer.

Equality can only be achieved if this Creamy Layer is completely abolished and the
privileges should be given to those weak castes who are economically and socially backward.

CONCLUSION&RECOMMENDATIONS

In conclusion it can be said that in this case the judiciary created groups so as to achieve
individual quality which is enshrined in Article 14 and well as the long-debated issue of
Article 16 clause (1). Justice Mathews went on to say that in order to eliminate groups and
castes, they should be taken into consideration. The biggest drawback of the case of State of
Kerala v. N.M. Thomas was that it went closer towards achieving equality at the expense of
dream and goal of the Father of Indian Constitution, Dr B.R. Ambedkar, which was to create
a Caste-Free society! How far the dream of individual equality can be achieved by creating
groups or sections of society is yet to be seen even after 43 years.

A crucial question relates to the degree of backwardness required to justify reservation in

favour of any backward class in the sense of caste vis-à-vis class issue. In the case of MR
Balaji, five judges unequivocally held that the notion of backwardness was not a relative in
the manner that it must have include any class that was backward in relation to the most
advanced class. The reasoning for accepting under-representation as a definitive
backwardness metric is the notion that members of any community group are obligated by
right to a seat proportional to their ratio to the total population. The Constitution condemns
this notion by making it every citizen's fundamental right not to have another favourite on his
caste or religion ground.

This research paper has all the reasons for why the Creamy Layer must be removed from the
reservation. Reservation was put given to those weaker sections of society who weren’t given
the status of equality due to their status of caste. OBC’s, SC’s and ST’s are the weakest
sections of the society, and they are given reservations in education and job employment. The
creamy layer is that part of this reservation who are economically well off and don’t
necessarily need a reservation as an upliftment in the society. Such reservation should be
restricted from being used for those people who are financially affluent. Legislations should
and must be passed against such reservations and the Creamy Layer mustn’t be ignored.

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In the context of the issue of caste vis-à-vis class, a crucial question relates to the level of
backwardness needed to justify reservations in favor of any backward class. In MR Balaji's
case20, five judges unanimously held that the definition of backwardness was not subjective in
the sense that any class that was backward in comparison to the most advanced class had to
be included in it. The justification for recognizing under-representation as an appropriate
criterion for backwardness is the notion that members of any ethnic group are entitled to a
portion of the seats corresponding to their ratio to the total population. The Constitution
denies this notion by making it a fundamental right of every person not to have any other
choice on the basis of his caste or religion. Jawaharlal Nehru, the first Prime Minister of
India, wrote in a letter to the Chief Ministers dated 27 June 1961, "I do not like any kind of
quotas... if we make reservations on a religious or caste basis, we will drown the brilliant and
capable people and remain second-rate or third-rate not only folly, but catastrophe."

20
Balaji v. State of Mysore, AIR 1963 SC 649

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