Ashoka Kumar Thakur Vs. Union of India & Others [2008] INSC 615 (10 April 2008)

Dalveer Bhandari

WRIT PETITION (CIVIL) NO.265 OF 2006 WITH Writ Petition (Civil) Nos.269 AND 598 of 2006, Writ Petition (Civil) Nos.29, 35, 53, 336, 313, 335, 231, 425, 428 of 2007 AND Contempt Petition (C) No.112 of 2007 in Writ Petition (C) No.265 of 2006.

* * * * * Dalveer Bhandari, J.

1. The 93rd Amendment to the Constitution directly or indirectly affects millions of citizens of this country. It has been challenged in a number of writ petitions. This Court heard these petitions intermittently over the course of several months.

Appearing on behalf of petitioners and respondents, the country's finest legal minds assisted us.

2. The fundamental question that arises in these writ petitions is: Whether Article 15(5), inserted by the 93rd Amendment, is consistent with the other provisions of the Constitution or whether its impact runs contrary to the Constitutional aim of achieving a casteless and classless society? 3. On behalf of the petitioners, Senior Advocate Mr. F.S.

Nariman, eloquently argued that if Article 15(5) is permitted to remain in force, then, instead of achieving the goal of a casteless and classless society, India would be converted into a caste- ridden society. The country would forever remain divided on caste lines. The Government has sought to repudiate this argument. Petitioners' argument, however, echoes the grave concern of our Constitution's original Framers.

4. On careful analysis of the Constituent Assembly and the Parliamentary Debates, one thing is crystal clear: our leaders have always and unanimously proclaimed with one voice that our constitutional goal is to establish a casteless and classless society. Mahatma Gandhi 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." The first Prime Minister, Pt.

Jawahar Lal Nehru, said that "no one should be left in any doubt that the future Indian Society was to be casteless and classless".

Dr. B. R. Ambedkar called caste "anti-national".

5. After almost four decades of independence, while participating in the Parliamentary Debate on the Mandal issue, then Prime Minister Shri Rajiv Gandhi on 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 the national goal, therefore, it would be in the larger interest of the nation to get rid of the castes as early as possible". It is our bounden duty and obligation to examine the validity of the 93rd Amendment in the background of the Preamble and the ultimate goal that runs through the pages of the Constitution.

6. To attain an egalitarian society, we have to urgently remove socio-economic inequalities. All learned counsel for the petitioners asserted that we must deliver the benefits of reservation to only those who really deserve it. This can only be done if we remove the creamy layer. Learned counsel for the Union of India and other respondents opposed this assertion.

The principle of creamy layer emanates from the broad doctrine of equality itself. Unless the creamy layer is removed from admissions and service reservation, the benefits would not reach the group in whose name the impugned legislation was passed the poorest of the poor. Therefore, including the creamy layer would be inherently unjust.

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

1A. Whether the creamy layer be excluded from the 93rd Amendment (Reservation Act)? 1B. What are the parameters for creamy layer exclusion? 1C. 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 submitted at length. Admittedly, the provisions of the Constitution and the Preamble lead to the irresistible conclusion that the Nation has always wanted to achieve a casteless and classless society. If we permit this impugned legislation to be implemented, I am afraid, instead of a casteless and classless India, we would be left with a caste-ridden society.

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

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

11. The Union of India should appreciate in proper prospective that the root cause of social and educational backwardness is poverty. All efforts have to be made to eradicate this fundamental problem. Unless the creamy layer is removed, the benefit would not reach those who are in need. Reservation sends the wrong message. Everybody is keen to get the benefit of backward class status. If we want to really help the socially, educationally and economically backward classes, we need to earnestly focus on implementing Article 21A. We must provide educational opportunity from day one. Only then will the casteless/classless society be within our grasp. Once children are of college-going age, it is too late for reservation to have much of an effect. The problem with the Reservation Act is that most of the beneficiaries will belong to the creamy layer, a group for which no benefits are necessary. Only non-creamy layer OBCs can avail of reservations in college admissions, and once they graduate from college they should no longer be eligible for post- graduate reservation. 27% is the upper limit for OBC reservation. The Government need not always provide the maximum limit. Reasonable cut off marks should be set so that standards of excellence greatly 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 in this article or in sub-clause (g) of clause (1) of article 19 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 minority educational 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 and economic inequality by providing opportunities to those who may not otherwise gain admission or employment.

Articles 14, 15 and 16 allow for affirmative action. To promote Article 14 egalitarian equality, the State may classify citizens into groups, giving preferential treatment to one over another. When it classifies, the State must keep those who are unequal out of the same batch to achieve 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, Senior Advocate appearing for the Government contend that creamy layer exclusion is a bad policy. They argue that if you exclude the creamy layer, there would be a shortage of candidates who can afford to pay for higher education. This argument harms rather than helps the Government. It cannot be seriously disputed that most of the college-going OBCs belong to the creamy layer for whom reservations are unnecessary; they have the money to attend good schools, tuitions and coaching courses for entrance exams. Naturally, these advantages result in higher test scores vis-`-vis the non-creamy layer OBCs. The result is that creamy OBCs would fill the bulk of the OBC quota, leaving the non-creamy no better off than before. If the creamy get most of the benefit, why have reservations in the first place? Learned Senior Counsel for petitioners, Mr. Harish Salve, is justified in arguing that before carrying out Constitutional Amendments the Union of India must clearly target its beneficiaries. He rightly submitted that we should not make law first and thereafter target the law's beneficiaries. Failure to exclude the creamy layer is but one example of this problem.

15. The Government further submitted that the creamy layer should be included to ensure that enough qualified candidates fill 27% of the seats reserved to OBCs. The Oversight Committee disagreed. The Committee relied on data from Karnataka to disprove the contention that seats go unfilled when the creamy is excluded: " the apprehension that seats will not be filled up if the creamy layer is excluded has been comprehensively shown to be unfounded." [See: Oversight Committee, Vol. 1, Sept. 2006, p.

69, para 1.7.] We shall later review 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 of the Reservation Act. The Hindi version of the Reservation Act would have expressly excluded the creamy layer.

[See: Prof. Rasa Singh Rawat's comments in the Parliamentary Debate on the Reservation Act, 14 December 2006]

17. The Parliament eventually passed the English version in which the creamy layer is not mentioned, making its intention clear. It wanted to include the creamy layer. For all practical purposes, it did so. Therefore, I will treat it as included.

Counsel for the Union of India argued that it is still theoretically possible for the executive to exclude the creamy layer. Much is possible in theory. Given the executive's failure to take action since the time the Act was passed, I find this argument unavailing.

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

19. The First Parliament believed that "economic" was included in the "social" portion of "socially and educationally backward."

Prime Minister Nehru said as much:

"One of the main amendments or ideas put forward is in regard to the addition of the word "economical".

Frankly, the argument put forward, with slight variation, I would accept, but my difficult is this that when we chose those particular words there, "for the advancement of any socially and educationally backward classes", we chose them because they occur in article 340 and we wanted to bring them bodily from there. Otherwise I would have had not the slightest objection to add "economically". But if I added "economically" I would at the same time not make it a kind of cumulative thing but would say that a person who is lacking in any of these things should be helped. "Socially" is a much wider word including many things and certainly including economically.

Therefore, I felt that "socially and educationally" really cover the ground and at the same time you bring out a phrase used in another part of the Constitution in a slightly similar context." (See: the Parliamentary Debates on First Amendment 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, the creamy 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 special provisions.

"I thought "economic" might be added so that rich men may not take advantage of this provision. In my part of the country there are the Nattukkottai Chettiars who do not care to have English education, but they are the richest of the lot should there be special reservation for them?" (See: The Parliamentary Debates on First Amendment Bill, 1 June 1951, p.

9817.) (emphasis added).

This hesitation aside, Shri M.A. Ayyangar was satisfied that the term "economic" was included in the term "social." The Framers were worried about creamy layer inclusion, albeit under a different name. They wanted to ensure that the "richest of the [backward] lot" would not benefit from special provisions. With their sentiment on our side, we are even more confident that we should strike out in the direction that strikes down laws that include the creamy layer.

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

21. In the present case, Dr. Rajeev Dhavan, the learned Senior Counsel and Mr. S.K. Jain, the learned counsel vehemently argued on behalf of petitioners that it is precisely because equality is at issue that the creamy layer must be removed. The creamy layer has been the subject matter of a number of celebrated judgments of this Court. In a seven Judge Bench in State of Kerala & Another v. N. M. Thomas & Others (1976) 2 SCC 310, Justice Mathew, in his concurring judgment, dealt with the right to equality in the following words:

"66. The guarantee of equality before the law or the equal opportunity in matters of employment is a guarantee of something more than what is required by formal equality. It implies differential treatment of persons who are unequal. Egalitarian principle has therefore enhanced the growing belief that Government has an affirmative duty to eliminate inequalities and to provide opportunities for the exercise of human rights and claims. "

(emphasis added)

22. In Indra Sawhney & Others v. Union of India & Others (1992) Supp (3) SCC 217, (hereinafter referred to as Sawhney I), this Court has aptly observed that reservation is given to backward classes until they cease to be backward, and not indefinitely. This Court in para 520 (Sawant, J.) has stated as under:

"Society does not remain static. The industrialisation and the urbanisation which necessarily followed in its wake, the advance on political, social and economic fronts made particularly after the commencement of the Constitution, the social reform movements of the last several decades, the spread of education and the advantages of the special provisions including reservations secured so far, have all undoubtedly seen at least some individuals and families in the backward classes, however small in number, gaining sufficient means to develop their capacities to compete with others in every field. That is an undeniable fact. Legally, therefore, they are not entitled to be any longer called as part of the backward classes whatever their original birthmark. It can further hardly be argued that once a backward class, always a backward class. That would defeat the very purpose of the special provisions made in the Constitution for the advancement of the backward classes, and for enabling 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 not equals when it comes to moving up the socio- economic ladder by means of educational opportunity. Failing to remove the creamy layer treats creamy layer OBCs and non- creamy layer OBCs as equals. In the same paragraph, Justice Sawant stated that " to rank [the creamy layer] with the rest of the backward classes would amount to treating the unequals equally..." violating the 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 the two provisions that barred creamy layer exclusion, concluding that non-inclusion of the creamy-layer and inclusion of forward castes in reservation violates the right to equality under Article 14 and the basic structure.

25. In Sawhney II at para 65, the Court had gone to the extent of observing that not even the Parliament, by constitutional amendment, could dismantle the basic structure by including the creamy layer in reservation:

"What we mean to say is that the Parliament and the legislature in this country cannot transgress the basic feature of the Constitution, namely, the principle of equality enshrined in Article 14 of which Article 16(1) is a facet. Whether the creamy layer is not excluded or whether forward castes get included in the list of backward classes, the position will be the same, namely, that there will be a breach not only of Article 14 but of the basic structure of the Constitution. The non-exclusion of the creamy layer or the inclusion of forward castes in the list of backward classes will, therefore, be totally illegal. Such an illegality offending the root of the Constitution of India cannot be allowed to be perpetuated even by constitutional amendment."

26. By definition, the creamy and non-creamy are unequal when it comes to schooling. Relative to their non-creamy counterparts, the creamy have a distinct advantage in gaining admission. While the creamy and non-creamy are given equal opportunity to gain admission in the reserved category, this equality exists in name only. Will the OBC daughter of a Minister, IAS officer or affluent business owner attend better schools than her non-creamy counterpart? Yes. Will she go to private tuitions unaffordable to her non-creamy counterpart? Certainly. And where 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 able to give superior assistance with schoolwork? Most likely.

27. I take judicial notice of these anecdotes, for they flesh out a simple fact: she has all the resources that her non-creamy counterpart lacks. It is no surprise that she will outperform the non-creamy. On average, her lot will take the reserved seats.

28. I cannot consider the OBC Minister's daughter and the non- creamy OBC as equals in terms of their chances at earning a university seat; nor can I allow them to be treated equally. To lump them in the same category is an unreasonable classification. Putting them in head-to-head competition for the same seats violates 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 dealing with 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 layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse."

It was contended that Nagraj is obiter in regard to creamy layer exclusion. According to Nagraj, reservation in promotion for SC/ST is contingent on exclusion of the creamy layer. (paras 122, 123 and 124). The contention of the Union of India cannot be accepted. The discussion regarding creamy layer is far from obiter in Nagraj. If the State fails to exclude the SC/ST creamy layer, the reservation must fall. Placing this contingency in the conclusion makes the discussion 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 reservation violates the right to equality in Articles 14, 15 and 16 as well as the basic structure of the Constitution.

? If you belong to the creamy layer, you are not SEBC.

31. One of the prominent questions raised in the writ petitions is whether creamy layer OBCs should be considered socially and educationally backward under the provisions of Article 15(5).

While interpreting this provision, a basic syllogism must govern our decision. If you belong to the creamy layer, you are socially advanced and cannot be given the benefit of reservation. (See:

Sawhney I).

32. Once one is socially advanced, he cannot be socially and educationally backward. He who is socially forward is likely to be educationally forward as well. If either condition (social or educational) goes unmet, one cannot qualify for the benefit of reservation as SEBC. Being socially advanced, the creamy layer is not socially backward pursuant to Articles 15(4) and 15(5) of the Constitution.

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

34. Similar interpretation is given to "backward classes" under Article 16(4). The Parliament could not reasonably make reservation for non-backwards. Such a Bill on the face of it would violate the Constitution. In Sawhney I, the Government of India issued an O.M. on 13 August 1990, reserving 27% of Government posts to SEBCs. Writing for the majority, at para 792 of page 724, Justice Reddy explained that the creamy layer was not SEBC.

"The very concept of a class denotes a number of persons having certain common traits which distinguish them from the others. In a backward class under Clause (4) of Article 16, if the connecting link is the social backwardness, it should broadly be the same in a given class. If some of the members are far too advanced socially (which in the context, necessarily means economically and, may also mean educationally) the connecting thread between them and the remaining class snaps. They would be misfits in the class. After excluding them alone, would the class be a compact class. In fact, such exclusion benefits the truly backward"

Even though the O.M. was silent on the issue of creamy layer, Justice Reddy excluded the creamy layer at para 859(3)(d). The O.M. could not go into effect until the creamy layer was excluded. [para 861(b)]. Exclusion was only in regard to OBC;

SC/ST were not touched. (para 792). In Sawhney I, the entire discussion was confined only to Other Backward Classes.

Similarly, in the instant case, the entire discussion was confined only to Other Backward Classes. Therefore, I express no opinion with regard to the applicability of exclusion of creamy layer to 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 that recipients are also educationally backward. Even though the creamy layer's status as socially advanced is sufficient to disqualify them for preferential treatment, the creamy layer from any community is usually educated and will want the same for its children. They know that education is the key to success. For most, it made them. People belonging to this group do not require reservation.

7 Creamy Layer Inclusion Robs the Poor and Gives to the Rich:

36. In a number of judgments, the view has been taken that the creamy layer's inclusion 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. State of 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 Thakur v. State of Bihar & Others (1995) 5 SCC 403, paras 3, 17 and 18 (two-Judge Bench); 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 of Kerala, (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 creamy layer:

"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 in this case. He suggests that creamy layer exclusion is an issue to be dealt with at a later time.

"98. The argument that there are rich and influential harijans who rob all the privileges leaving the serf-level sufferers as suppressed as ever. The Administration may well innovate and classify to weed out the creamy layer of SCs/STs but the court cannot force the State in that behalf."

Thus, Justice Iyer does not mandate creamy layer exclusion;

rather, he leaves the question to the State.

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

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

42. Before "leaving" the matter to the Government, the Committee nevertheless made its recommendation: "In case it is decided not to exclude the 'creamy layer', the poorest among the OBCs will be placed at a disadvantage." (emphasis added). (See:

Oversight Committee at Appendix I in its Report at p. 70, para 1.13). At page 69 of Vol. I of its Report, the Committee offered data to support this conclusion:

"1.6: Appendix-2 examines in detail the status of the socio-economic development of OBCs in respect of such parameters as relate to poverty, health, education, unemployment, workforce participation, land ownership etc. The analysis of the NSS data clearly brings out that inclusion of the creamy layer will result in reserved seats getting pre-empted by the OBCs from the top two deciles at the cost of the poorer income deciles of the OBCs. Thus almost all rural OBCs as well as Urban OBCs from the Northern, Central and Eastern regions of India will be 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, the Committee 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 the downtrodden" and " in the right direction of ensuring social justice to other backward classes " and "ensuring social justice to those weaker sections ", Article 15(5) dupes those who actually need preferential treatment. (See: Prof.

Basudeb Barman, M.P., the Parliamentary Debates, p. 531, December 21, 2005; Prof. M. Ramadass, M.P., at p. 510; and Shri C.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 OBCs attend high school, let alone college. Instead of rewarding those that complete Plus 2, the 93rd Amendment (Art 15(5)) poses another barrier: they will have to compete 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 the playing 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. It is 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 group rights. The Union of India and other respondents argued that creamy layer exclusion is wrong because the text of the 93rd Amendment bestows a benefit on "classes", not individuals. While it is a group right, the group must contain only those individuals that belong to the group. I first take the entire lot of creamy and non creamy layer OBCs. I then remove the creamy layer on an individual basis based on their income, property holdings, occupation, etc. What is left is a group that meets constitutional muster. It is a group right that must also belong to individuals, if the right is to have any meaning. If one OBC candidate is denied special provisions that he should have received by law, it is not the group's responsibility to bring a claim. He would be the one to do so. He has a right of action to challenge the ruling that excluded him from the special 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 is not one or the other but both that apply to the impugned legislation.

7 Whether the Creamy Layer exists outside India?:

47. An interesting question arises: does the concept of creamy layer exist outside India? A 2003 study carried out in the United States suggests that it does. 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, 30 September 2007, p. 3. All things being equal, one's chance of gaining admission is augmented by belonging to one of the preferred groups. Individuals belonging to these groups are given preferential treatment over those who do not.

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

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

50. Even the Mandal Commission, which was established in 1979 with a mandate to identify the socially and educationally backward, admitted that the creamy layer was robbing fellow OBCs of reservation. In reference to Tamil Nadu, it said: "In actual operation, the benefits of reservation have gone primarily to the relatively more advanced castes amongst the notified backward classes." (See: P.37, 8.13 of the Report of the Backward Classes Commission, First Part, Vols. 1-2, 1980). It also stated that: "it is no doubt true that the major benefits of reservation..will be cornered by the more advanced sections.." but reasoned that this was acceptable because reform is presumably slow and should start with the more advanced of the backward. (See: Page 62, para 13.7 (recommendations)).

51. In N. M. Thomas & Others case (supra), Krishna Iyer, J.

in his concurring judgment in para 124 noted that the research conducted by the A.N. Sinha Institute of Social Studies, Patna, had revealed a dual society among harijans in which a tiny elite gobbles up the benefits.

7 Severing the Creamy Layer

52. Technically speaking, I am severing the implied inclusion of the creamy layer. It is severable for two reasons. First, a nine- Judge Bench in Sawhney I severed a similar provision wherein the creamy layer was not expressly included, upholding the rest of the O.M.'s reservation scheme. Second, because the Parliament must have known that Sawhney I had excluded the creamy layer, it seems likely that the Parliament also realized that this Court may do the same. A cursory review of the Parliamentary Debates regarding Article 15(5) clearly reveals 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 layer inclusion, it could have said as much in the text of 15(5). Instead, the Parliament left the text of 15(5) silent on the issue, delegating the issue of OBC identification to the executive in Section 2(g) of the Reservation Act.

53. The test for severability asks a subjective question: had the Parliament known its provision would be struck would it still have passed the rest of the legislation? (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 what the Parliament would have done had it known that part of its amendment would be severed. Nevertheless, I find it hard to imagine that the Parliament would have said, "if the creamy is excluded, the rest of the OBCs should be denied reservation in education." It seems unlikely that it would have been an all-or- nothing proposition for the Parliament, when the very goal of the impugned legislation of promoting OBC educational advancement does not depend on creamy layer inclusion. For these reasons, I sever or exclude the implied inclusion of the creamy layer.

7 Identification of Creamy Layer

54. Income as the criterion for creamy layer exclusion is insufficient and runs afoul of Sawhney I. (See: page 724 at para 792). Identification of the creamy layer has been and should be left to the Government, subject to judicial direction. For a valid method of creamy layer exclusion, the Government may use its post-Sawhney I criteria as a template. (See: O.M. of 8-9-1993, para 2(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 which income, 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.

CONSTITUTIONAL POSTS Son(s) and daughter(s) of (a) President of India;

(b) Vice President of India;

(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;

(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 ENGANGED 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:

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.

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 hold constitutional posts, e.g., the children of the Preside