Ashoka Kumar Thakur vs Union Of India And Ors1

-Tapesh Raghav2

Introduction:
The Mandal Commission was established in India in 1979 by the Janata Party government under Prime Minister Morarji Desai with a mandate to "identify the socially or educationally backward. In 1980, the commission's report affirmed the affirmative action practice under Indian law whereby members of lower castes (known as Other Backward Classes (OBC) and Scheduled Castes and Tribes) were given exclusive access to a certain portion of government jobs and slots in public universities, and recommended changes to these quotas, increasing them by 27% to 49.5%. Mobilization on caste lines had followed the political empowerment of ordinary citizens by the constitution of free India that allowed common people to politically assert themselves through the right to vote. Ashoka Kumar Thakur vs Union of India is an Indian public interest litigation case challenging the conclusion of the Mandal Commission that about 52% of the total population of India belonged to Other Backward Classes classification. The National Sample Survey Organization had estimated the OBC segment to be 32 per cent. Earlier, the Parliament had effected an amendment to Art. 15 adding cl.(5)3 which seeks to promote, as part of the policy of protective discrimination, the educational advancement of socially and educationally backward classes of citizens, the SCs and STs through special provisions relating to the admission of students from these categories in all educational institutions. It is to be noted, that the Central Educational Institutions (Reservation in Admission) Act, 2006 is a significant legislative measure in the sense that it is for the first time that the Indian Parliament has recognized a law giving effect to the reservation of seats in educational institutions as an expedient measure of adhering to the constitutional provisions.

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[2007] RD-SC 609 (17 May 2007) Roll no. 141 nd II semester 3 Nothing in this article shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions.

Art. 464 is to be considered in the forefront in this regard as it mandates the State to promote the educational and economic interests of the weaker sections, particularly the SCs and STs, protecting them from social injustice and exploitation.

Facts of the case:

In April 2006, the government decided to reserve nearly 27% of seats for students from the OBC segment in institutes of higher learning in India. This would have reduced the seats for a general, unreserved candidate to about 50% (after taking into account other reserved seats). The Indian parliament passed a bill to bring out an amendment in the constitution in this regard. Thakur challenged the validity of the amendments.

Issues involved:
The Bench, comprising of Justices Arijit Pasayat and Lokeshwar Singh Panta, in its preliminary ruling, addressed the issues not only pertaining to legal aspects, but dealt with social factors also. Some of the issues pertained to: 1. Whether the reservation granted to OBCs is arbitrary and ultra vires the provisions of Constitution? 2. Whether the method adopted to define and calculate the population figure of OBCs is appropriate? 3. Whether the benefit of reservation can be extended to the creamy-layer?

Arguments:
Learned counsel for the petitioners stated that the complex issues relating to the scope and ambit of Article 15(5) of the Constitution and the validity of 93rd Constitution Amendment Act, 2005 are involved. It is pointed out that behind the so called anxiety which is nothing but a facade, to provide better educational facilities for socially and educationally backward classes, the objective is to play a political game and what is commonly accepted as "Vote politics". The objective is not so much for social empowerment as creating a vote bank. In the name of social empowerment, what is intended to be done is to create a caste divide which shall have catastrophic implications. The object is not social empowerment or to extend help to the deprived. If that was really so, the stress should have been on social and economic backwardness. If any class needs protection, it is the socially and economically backward class of people. It is also pointed out that the framers of the Constitution had indicated a specific period for reservation. They had felt that the period is good enough to take care of any injustice
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The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.

they may have been hypothetically meted out to socially and educationally backward castes. But with oblique motives the period is being extended. It was submitted by the learned counsel for the petitioner that the same cannot be the objective of the Constitution. It has also been submitted that there is no scope for reservation in higher education and the Act empowers reservation in educational institutions imparting higher education and that itself is unconstitutional. Further, the basic data for identifying the "backward classes" has not yet been placed before this Court though at the threshold the inadequacy and non-availability of such data was highlighted by this Court. It is submitted that this Court in Jagdish Negi, President, Uttarakhand Jan Morcha and Anr. V. State of U.P. and Anr5 held that the state cannot be bound in perpetuity to treat some classes of citizens for all time as socially and educationally backward classes of citizens. The counter affidavit filed by the Union of India was that in Sanjeev Coke Manufacturing Company v. M/s Bharat Coking Coal Ltd. And Anr6 it was inter-alia held as follows: Shri Ashoke Sen drew pointed attention to the earlier affidavits filed on behalf of Bharat Coking Coal Limited and commented severely on the alleged contradictory reasons given therein for the exclusion of certain coke oven plants from the Coking Coal Mines (Nationalization) Act. But, in the ultimate analysis, we are not really to concern ourselves with the hollowness or the selfcondemnatory nature of the statements made in the affidavits filed by the respondents to justify and sustain the legislation. The deponents of the affidavits filed into court the statements which stated: They do not speak for the Parliament. No one may speak for the Parliament and Parliament is never before the court. After Parliament has said what it intends to say, only the court may say what the Parliament meant to say, none else. Once a statute leaves Parliament House, the Court is the only authentic voice which may echo (interpret) the Parliament. Thus the court will do with reference to the language of the statute and other permissible aids. The executive Government may place before the court their understanding of what Parliament has said or intended to say or what they think was Parliament's object and all the facts and circumstances which in their view led to the legislation. When they do so, they do not speak for Parliament. No Act of Parliament may be struck down because of the understanding or mis-understanding of parliamentary intention by the executive Government or because their (the Government's) spokesmen do not bring out relevant circumstances but indulge in empty and self-defeating affidavits. They do not and they cannot bind Parliament. Validity of legislation is not to be judged merely by affidavits filed on behalf of the State, but by all the relevant circumstances which the Court may ultimately find and more especially by what may be gathered from what the legislature has itself said. We have mentioned the facts as found by us and we do not think that there has been any infringement of the right guaranteed by Article 14.
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(1997 (7) SCC 203) (1983 (1) SCC 147)

Judgment:
1. The Constitution (Ninety-Third Amendment) Act, 2005 does not violate the "basic structure" of the Constitution so far as it relates to the state maintained institutions and aided educational institutions. Question whether the Constitution (Ninety-Third Amendment) Act, 2005 would be constitutionally valid or not so far as "private unaided" educational institutions are concerned, is left open to be decided in an appropriate case. 2. "Creamy layer" principle is one of the parameters to identify backward classes. Therefore, principally, the "Creamy layer" principle cannot be applied to STs and SCs, as SCs and STs are separate classes by themselves. 3. Preferably there should be a review after ten years to take note of the change of circumstances. 4. A mere graduation (not technical graduation) or professional deemed to be educationally forward. 5. Principle of exclusion of Creamy layer applicable to OBC's. 6. The Central Government shall examine as to the desirability of fixing a cut off marks in respect of the candidates belonging to the Other Backward Classes (OBCs) to balance reservation with other societal interests and to maintain standards of excellence. This would ensure quality and merit would not suffer. If any seats remain vacant after adopting such norms they shall be filled up by candidates from general categories. 7. So far as determination of backward classes is concerned, a Notification should be issued by the Union of India. This can be done only after exclusion of the Creamy layer for which necessary data must be obtained by the Central Government from the State Governments and Union Territories. Such Notification is open to challenge on the ground of wrongful exclusion or inclusion. Norms must be fixed keeping in view the peculiar features in different States and Union Territories. There has to be proper identification of Other Backward Classes (OBCs.). For identifying backward classes, the Commission set up pursuant to the directions of this Court in Indra Sawhney vs. Union of India7 has to work more effectively and not merely decide applications for inclusion or exclusion of castes. 8. The Parliament should fix a deadline by which time free and compulsory education will have reached every child. This must be done within six months, as the right to free and compulsory education is perhaps the most important of all the fundamental rights Art.21 (A)8. For without education, it becomes extremely difficult to exercise other fundamental rights. 9. If material is shown to the Central Government that the Institution deserves to be included in the Schedule (institutes which are excluded from reservations) of The Central Educational Institutions (Reservation in Admission) Act, 2006 (No. 5 of 2007), the Central Government must take an appropriate decision on the basis of materials placed and on examining the
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AIR 1993 SC 477 The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.

concerned issues as to whether Institution deserves to be included in the Schedule of the said act as provided in Sec 4 of the said act. 10. Held that the determination of SEBCs is done not solely based on caste and hence, the identification of SEBCs is not violative of Article 15(1) of the Constitution.

Ratio Decdendi:
Creamy Layer is to be excluded from SEBCs. The identification of SEBCs will not be complete and without the exclusion of "creamy layer" such identification may not be valid under Article 15(1) of the Constitution

Obiter Dicta:
The creamy layer principle cannot be applied to SCs and STs, as SCs and STs are separate classes by themselves. Principle of creamy layer is applicable to OBCs.

Conclusion:
Analysis:

This judgment had created more cobwebs than it had cleared. The judgment of Justice Pasayat was very confusing. Ashok Kumar Thakur is not about whether quotas should continue. It was not about quotas v. merit. Affirmative action for the disadvantaged classes is a constitutional mandate. The only question is who gets them. If the program is designed in a manner which undermines equality and reinforces caste (which Ambedkar termed anti-national), it upsets the entire constitutional scheme of promoting equality and the judiciary has to scrutinize it. Unfortunately the judiciary did not live up to its job. The judgment suffers from some fatal flaws listed below. First and the most fatal flaw of this judgment is that it deepens the institution of caste based on an improper understanding of the text and the context of the Supreme Court ruling in Indra Sawhney. Indra Sawhney does not permanently embed caste as a starting point for identifying backward classes. Indra Sawhney only blessed caste, it did not mandate it. Caste might have been a legitimitate starting point for identifying backward class in the 1970 and 1980s when the Backward Class list was prepared, but whether caste is still a proxy for backward class in 2008 can only be decided based on an empirical independent investigation. Not only did Indra Sawhney preclude a more scientific method for identifying backward classes, it mandated it by requiring a periodic independent investigation. The judges had a rare opportunity to go beyond caste by mandating the government to prepare a Backward Class list, which was not based on caste. That would have been consistent with Indra Sawhney and would have taken the politics out of the entire business of affirmative action.

Second, the judgment chants, but does not enforce or substantiate the empirical investigation requirement laid down in Indra Sawhney. Indra Sawhney laid down several requirements regarding a periodic investigation of backward classes to ensure that only the deserving get the benefits. Indra Sawhney contemplated that every ten years the Backward Classes Commission would lay down the criterion for backwardness and based on those criterions, it would identify classes who could be called backward classes. Between each survey period, if any person felt that it was unfairly excluded or included, it could approach the Backward Class Commission which would decide based on the criterion laid down to identify backward classes. A similar process is not contemplated for SC and ST because backward class is a shifting class and not a fixed class like Scheduled Caste and Scheduled Tribes. Backwardness is a relative state of affairs based on the general advancement of the society and therefore the need for a periodic review. But over the last two decades very little action has been taken. Caste has become a oneway ticket to the backward class list. Once a caste is identified, very rarely has it gone out of the list. The BC has not been revised in many states from the seventies. The judgment lost focus on these requirements and instead gives some broad unenforceable guidelines on investigation. The judges, Justice Balakrishnan in particular, brushed aside this entire issue by saying that the identification of Backward Class list was not based solely on caste and therefore it was proper. He equated the power of the Backward Class Commission to decide the function of inclusion and exclusion with the requirement to conduct an independent investigation. They were never meant to be the same. Third, the judgment confuses backward class under Article 15(5) (and 15(4) and Article 16(4). Under 15(5) and 15(4), numerical majority is irrelevant. A section of the society can comprise 70% of the population and still be backward. But under Article 16(4), a section of the society must not only be backward, but must also be inadequately represented. It is only in Article 16(4) that population and its representation in state services acquires significance and not under Article 15(4) and Article 15(5). Fourth, the judgment messed up judicial review standard in affirmative action by dumping strict scrutiny. India never had complete strict scrutiny, but only partial strict scrutiny. Dumping the entire strict scrutiny standard is like dumping the baby with bath water. And the court only confused the existing standard. Justice Balakrishnan mentioned, but did not flesh out the alternative ex facie unreasonable standard. Instead, he did the unthinkable by putting the burden on petitioners to show that the backward classes do not constitute 27%. Although thats an irrelevant question because of reasons pointed above, the burden is always on the state to justify affirmative action and not the petitioners. That was the holding in Indra Sawhney and in the cases before that. Fifth, the only achievement of this judgment was its strong emphasis on creamy layer, but it confused this area by lack of clarity on educational creamy layer.
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The absence of any mentions of this aspect in the final order whether signed by all the judges or not is of no consequence. It has been a settled principle that what matters is the reasoning of the judgment and not the final conclusion. (The SC had ruled that the final conclusion in Kesavananda Bharti vs. State of Kearala and othres9 has no legal significance.) There is a strong justification for creating an educational creamy layer exception. The justification given in Indra Sawhney for creating a creamy layer is because they as members of the class need to share common characteristics and a creamy layer no longer shares those characteristics and therefore the connection ceases with the backward class. The same logic applies to an educational creamy layer. Once a person from a backward class graduates, he is no longer educationally backward. He loses that connection with the rest of the class and he does not share those characteristics. So even though he might come from socially and educationally backward class, he is no longer educationally backward by virtue of his educational attainments. His connection with that class ceases. Sixth, the judgment stamped the poor constitutional advice given to the HRD Ministry by reconciling Article 15 (5) and Article 15(4). Before Article 15(5), reservation for OBCs in state aided institutions could be provided under Article 15(4). Several states used that mechanism. In case of unaided or private institutions, the judgment in P. A. Inamdar and others vs. State of Maharashtra and others10 precluded reservation and admission was to be only on merit. The court said that reservation would be an unreasonable restriction under Article 19(1)(g).The primary purpose of Article 15(5) was only for private institutions. For state institutions, Article 15(4) was already there. Instead of recognizing this simple constitutional history, the judgment went into this elaborate discussion about reconciling Article 15(4) and Article 15(5). There was no such need. The government could have provided reservation in IIT and IIM, NLUs and other central government educational institutions even without Article 15(5).

Bibliography:
1. 2. 3. 4. 5. 6. 7. Sanjeev Coke Manufacturing Company v. M/s Bharat Coking Ltd.....................................................................................................................1983 (1) SCC 147 Indra Sawhney vs. Union of India AIR...................................................................1993 SC 477 Kesavananda Bharti vs. State of Kearala and others...................................1973 (4) SCC (Jour) 1 P. A. Inamdar and others vs. State of Maharashtra and others.......................2005AIR-3226-SC Jain M.P; Constitutional law. Seervai H.M; Constitutional law. Shukla V.N; Constitutional law. Coal

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(1973) 4 SCC (Jour) 1 2005-AIR-3226-SC