NATIONAL UNIVERSITY OF STUDY AND

RESEARCH IN LAW, RANCHI

Continuous
Assessment
Test - V
CASE ANALYSIS

Submitted To: Dr. K. Shyamla

Submitted By: Rashi
Semester: II A
Roll No.: 527

IN THE SUPREME COURT OF INDIA

CASE :
Ashoka Kumar Thakur v. Union of India (UOI) and Others.
CITATION :
(2008) 6 SCC 1
HONORABLE JUDGES :
K.G. Balakrishnan, C.J., Dr. Arijit Pasayat, C.K. Thakker, Dalveer Bhandari and R.V.
Raveendran, JJ.
INTRODUCTION :
The transitions of the law of reservation were duly set and demarcated in the case of
Indira Sawhney v. Union of India1. The majority judgment upheld the provision of
reservations to the Other Backward Classes (OBCs) to the extent of 27% in central
government services and illustrates the fact that caste is indeed an institution in Indian
society. The present case, i.e., the case of Ashoka Kumar Thakur v. Union of India has
opened up the issue of reservation and all the related questions involved with the same for
consideration. In the present case, the Constitution Ninety-Third Amendment Act, 2005
and the Central Educational Institutions (Reservation in Admission) Act, 2006 were under
constitutional scrutiny. It is pertinent to note that clause (5) of Article 15 was introduced
by the Constitution Ninety-Third amendment act, 2005. This move of the Central
Government was met with extreme opposition from certain quarters, especially the nonOBC community.
FACTS :
In April 2006, the government decided to reserve nearly 27% of seats for students
from the OBC segment in higher educational institutes of India. This would have
reduced the seats for a general, unreserved candidate to about 50%, after taking into
account other reserved seats.

AIR 1993 SC 477

 The Indian parliament passed a bill to bring out an amendment in the constitution in
this regard.
The petitioner, Ashoka Kumar Thakur filed a PIL challenging the conclusion of the
Mandal Commission that about 52% of the total population of India belonged to
Other Backward Classes classification.

ISSUES :
The issues been raised in the present case;
1.

Whether the Ninety-Third Amendment Act, 2005 against the basic structure
doctrine?

2.

Whether the method adopted to define and calculate the population figure of OBCs,
inappropriate?

3.

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

4.

Whether the benefit of reservation can be extended to the creamy layer?

5.

Whether the Act 5 of 2007 constitutionally invalid in view of definition of Backward

class and whether the identification of such Backward class based on caste is
constitutionally valid?

6.

At what point is a student no longer educationally backward and thus, no longer

eligible for special provisions under Article 15(5)?

7.

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

reservation?

8.

Whether the use of caste to identify SEBCs run afoul of the casteless/classless
society, in violation of secularism?

9.

Are the standards of review laid down by the US Supreme Court applicable to our
review of affirmative action under Article 15(5) and similar provisions?

10. Whether delegation of power to the Union Government to determine as to who shall
be the backward class is constitutionally valid?

ARGUMENTS :
PETITIONERS SIDE :The petitioner argued on various grounds;
1.

That the Constitution Ninety-Third Amendment Act, 2005 is against the basic
structure of the Constitution.

2.

That the Constitution Ninety-Third Amendment Act, 2005 and the Central
Educational Institutions (Reservation in Admission) Act, 2006 does identification of
OBCs merely on the basis of caste.

3.

That Article 15(5) could be construed as an exception to Article 15(1) and affirmative
action, if excessive, is bound to result in reverse discrimination.

4.

That referring to various decisions of the U.S. Supreme Court contended that this
kind of legislation, i.e., the impugned act attempting affirmative action is to be
treated as suspect legislation and it has to undergo the tests of strict scrutiny and
compelling state necessity.

5.

That Articles 15(4) and 15(5) are mutually exclusive with the former concerning
admissions to aided institutions and latter to unaided institutions.

6.

That the reservation of 27% for the backward classes in the educational institutions
does not prescribe any time limit and this is opposed to the equality principle,
through Act 5 of 2007.

7.

That the admission to educational institutions should be based purely on merit and to
allow a State to prefer a student with lesser merit is ex-facie discriminatory and thus,
violative of the rule of equality.

8.

That Article 15(5) does not protect the validity of the Act and the provision of the Act
for preferential admission solely on the basis of caste would violate Article 29(2) of
the Constitution.

9.

That the Article 15(5) introduced by the said Amendment is notwithstanding with the
provisions of Article 19(1)(g).

10. That the concept of creamy layer is applicable to Articles 15 and 16 and nonexclusion of creamy layer in the Act is illegal.
11. That there is a lack of criteria for fixing SEBCs or OBCs and this case is being taken
to excite vote-banks.

12. That the historic discrimination is not a valid criteria for determining the
beneficiaries and the correct approach is to look at the continuing wrong and that the
quotas should not be a punishment for the non-reserved resulting in reverse
discrimination.
13. That the doctrine of severability does not apply and therefore, Act 5 of 2007 is
unconstitutional and void to the extent that it does not provide exclusion of creamy
layer from the SEBCs.
14. That the OBCs are already educationally forward and no reservation in higher
education is justified, relying on the literacy rate of age groups as quoted in the
Sachar Committee Report.
15. That the impugned amendment excludes the application of Article 19(1)(g), whereas
the institutions governed by Article 26 and the minority institutions governed by
Article 30(1) have been left out. This is discriminatory and illegal and no justification
for this differential treatment was given.
16. That the mandate of Article 45 has not been complied with by the government and
therefore, there is clear violation of Article 20 of the Constitution.
17. That the impugned amendment alters the supremacy of the Constitution and there
was only limited constituent power to amend Article 368.
18. That the Act 5 of 2007 does not provide the manner on which the identification of
OBC is to be made and so is subject to judicial review on the ground of
unreasonableness.
19. That there are no traditional occupations now. The identification of castes as a class
to justify the same as being occupations on a presumption that the persons belonging
to a particular caste continue to follow a particular occupation especially in the
present constitution scheme is fallacious.
RESPONDENTS SIDE :The respondents argued on various grounds;
1.

That the contentions of the petitioners challenging the Ninety-Third Constitutional

Amendment and the Act 5 of 2007 are without any merit and liable to be dismissed,
as affirmative action is needed for promoting educational and economic status of the

weaker sections.
2.

That the Fundamental Rights and Directive Principles are both complementary and
supplementary to each other.

3.

That special provision for advancement of any socially and economically backward
citizens may be made by determining the socially and educationally backward
classes on the basis of caste.

4.

That the exemption of minority educational institutions in Article 15(5) was done to
conform with the Constitutional mandate of additional protection for minorities
under Article 30.

5.

That Article 15(5) does not override Article 15(4). They have to be read together as
they are supplementary to each other.

6.

That Article 15(5) does not interfere with the executive power of the State and there
is no violation of the proviso of Article 368. Article 15(5) does not seek to make any
change in Article 162.

7.

That Article 15(5) does not abrogate the fundamental right enshrined under Article
19(1)(g). Constitutional amendments giving effect to Directive Principles would not
offend the basic structure of the Constitution in any way.

8.

That the Right to Equality is not merely a formal right and affirmative action, though
apparently discriminatory, is calculated to produce equality on a broader basis.

9.

The plea of the petitioners that the Parliament itself should have determined OBCs
and that Act 5 of 2007 suffers from lack of guidelines, is not tenable. The backward
classes of citizens have to be identified on the materials and evidence and therefore,
the Parliament necessarily has to leave it to the Executive.

10. That merely because no time limit is fixed, Act 5 of 2007 cannot be rendered invalid.
The Parliament has got the power to review periodically and either make
modifications in the Act or repeal the Act.
11. That the quantum of reservation provided under the Act is valid. The ratio of
population is a relevant consideration in fixing the quantum of reservation and the
total quantum of reservation of all the backward classes does not exceed 50%.
12. That the contention of petitioners that special provisions can only be made upto 10+2
stage is untenable. Otherwise, it would result in higher education being the privilege

of higher classes only and it would be a distortion of the concept of social

advancement.
13. That the Equality of opportunity of education is a must for every citizen and the
doctrine of creamy layer is inapplicable and inappropriate in this context.
14. That the contention that the amendment has a vote-catching mechanism is
inappropriate.
15. That the American doctrine of strict scrutiny cannot be applied to the affirmative
action envisaged under Article 15(5). The impugned action is not ex-facie
discriminatory and, therefore, it cannot be classified as suspect legislation.
16. That the plea that reservation under Article 15(5) with reference to Article 29(2)
would render Article 15(5) constitutionally violative, is incorrect. Article 29(2) does
not apply if provision is made for backward classes when the basis for classification
is not solely on the grounds of religion, race, caste, language or any of them.
17. That the judicial review ideas of suspect classification, strict scrutiny, narrow
tailoring and compelling state interest are measures propounded by the U.S.
Supreme Court and are inapplicable in India.
18. That the creamy layer principle shall not be invoked for the purpose of Article 15(5).
One and only goal of the reservation policy under clauses 4&5 of Article 15 is to
bring about equality among various castes.
19. That the link between caste and its occupation is an unbreakable bondage. A
backward caste continues to be socially identified with his traditional occupation
whether he carries it or not.
20. That the identification of backward classes has been done on the basis of criteria
evolved by the State Commissions on social, education and economic parameters and
not been done on the basis of 1931 Census data.
21. That the Constitution Amendment under the impugned Act in favour of the backward
classes is an unprecedented leap taking the higher education in the country forward,
without depriving a single seat to the forward castes.

JUDGMENT :
RATIO DECIDENDI :The bench of five judges in majority held that;
1.

The principle of creamy layer is applied not as a general principle of reservation

but for the purpose of identifying the socially and economically backward class.

2.

The Ninety-Third Constitutional Amendment Act, 2005 is not violative of the basic
structure doctrine as far as it is concerned with reservations in aided institutions.

3.

Legislation cannot be challenged simply on the ground of unreasonableness because

that by itself does not constitute a ground.

4.

Validity of a constitutional amendment and the validity of plenary legislation have to

be decided purely as a questions of constitutional law.

5.

Establishment and running of an educational institution falls under the right to

occupation and right to select students on the basis of merit is an essential feature of
the right to establish and run an unaided institution, reservation is an unreasonable
restriction that infringes this right by destroying the autonomy and essence of an
unaided institution.

6.

For the benefit of the Ninety-Third Amendment, the recipients should be

educationally backward as per the text of the Article 15(5) of the constitution.

7.

Once a candidate graduates from a university, is said to be educationally forward and

is ineligible for special benefits under Article 15(5) of the Constitution for post
graduate and further studies.

8.

If reservation in education is to stay, it should adhere to a basic tenet of secularism,

i.e., not taking caste into account.

OBITER DICTA :1.

Justice Bhandari was of the opinion that the Constitution (Ninety-Third Amendment)
Act, 2005 is not constitutionally valid so far as the private unaided educational
institutions are concerned.

2.

Article 15(5) is rejected on the ground that it renders Article 15(4) inoperative.

3.

The question is left open whether members belonging to OBCs who get selected in
the open competition field on the basis of their own merit should be counted against

the 27% quota reserved for the OBCs.

4.

Review of Act 5 of 2007 should be made as to the need for continuance of

reservation at the end of five years.

5.

The Ninety-Third Amendment Act, 2005 would be ultra vires and invalid if the
creamy layer is not excluded.

6.

No opinion with regard to the applicability of exclusion of creamy layer to the SCs
and STs.

7.

Imposing reservation on unaided institutions violates the basic structure by stripping

citizens of their fundamental right under Article 19(1)(g).

CONCLUSION :
The Ninety-Third Constitutional Amendment Act, 2005 and the Act 5 of 2007 is valid as
far as the reservations in aided educational institutions are concerned. The question
whether the said acts are valid as far as the reservation in private unaided educational
institutions is concerned, is still questionable. Nevertheless, making caste as the sole basis
for the reservations in aided educational institutions is still not reasonable. Backwardness
under Article 15(4) must be both social and educational. It is true that to attain an
egalitarian society, we have to urgently remove socio-economic inequalities. And,
reservation is one starting step through which the backward classes of the society could
be given recognition. But, it should be cautioned that the Government should not proceed
on the basis that once a class is considered as a backward class, it will be continue to be
backward class for all times. There should be proper identification of Other Backward
Classes. Stress has to be on primary and secondary education so that proper foundation
for higher education can be effectively laid down.
We tries to avoid caste but, we find it difficult to ignore caste in the present prevailing
conditions. Social backwardness is not today due to the particular profession of a person,
but we cannot escape caste in considering social backwardness in India. The inevitable
conclusion is that the impugned Statute can be operative only after excluding the creamy
layer from identifiable OBCs. There has to be periodic review of the classes who can be
covered by the Statute.