INTRODUCTION

The biggest impending socio legal problem which has divided Indian society into two
halves is reservation for “other backward classes” inter alia on the basis of caste. In 2007, the
Central Government proposed an additional 27% reservation for the “other backward classes”
in educational institutions. Through this special by-lanes have been made for different
categories of students to enter into the universities/colleges, bypassing the rigid eligibility
requirements and/or tests. There are reservations prescribed by the government and there are
reservations created by the educational institutions themselves. Some have been adopted
under the constitutional umbrella, some have been made as a vote catching device, and a few
are introduced to appease the agitators or those who are on “fast unto death”.1
The said move was sought to be justified by the central government as being an
extended policy to achieve the goals under the Directive Principles of State Policy and in
Particular the goals as defined under Article 38 of the Indian Constitution (“the
Constitution”). Reservations which were supposed to be a temporary measure now looks
more or less set for a much longer innings. The constitutional provision which legally
empowered the central government to make special provisions for “other backward classes”
was Article 15(5) of the Constitution. It is pertinent to note that Clause (5) of Article 15 was
originally not a part of the Constitution and was introduced by the Constitution (Ninety Third
Amendment Act, 2005). This move of the central government was met with extreme
opposition from certain quarters of the society and especially the non OBC student
community as a result of which several writ petitions challenging the said Constitution
Amendment came to be filed in various High Courts of India as well as in the Indian
Supreme Court.
In such circumstances, surprisingly, the Supreme Court of India on April 10, 2008, in
its landmark judgment in Ashok Kumar Thakur v. Union of India & others,2 upheld the
government move for initiating 27% OBC quotas in all government funded institutions,
including institutions of higher education. As a result of this, the government is now in a
position to reserve up to 49.5% of the seats in all central universities, prestigious professional
schools, and elite colleges, such as the Indian Institute of Technology (IITs), Indian Institute

1
C.M Jariwala, “Reservation in Admission to Higher Education: Development and Directions”, 42 JILI 205
(2000).
2
(2007) 4 SCC 361.

1
of Management (IIMs), National Institute of Fashion Technology (NIFT) and government
medical colleges etc.

Starting with Thakur, this research paper travels through the mediatory role of the
courts in resolving serious controversies over reservation; and tries to trace the object,
significance and ratio of the Judgment. It examines the effect of the Judgment in the Indian
society by looking into how it affects the quality of education system in India.

THE CASE
Ashoka Kumar Thakur v. Union of India 3 is about the validity of the Central
Educational Institutions (Reservation in Admission) Act, 2006 and the Constitution (Ninety-
third) Amendment Act, 2005 which introduced clause (5) in Article 15.4
The multi-party Parliament with no political party having absolute majority in it passed the
Amendment as well as the Act unanimously. The Act provides for the reservation of 15, 7 1/2
and 27 per cent seats in Central educational institutions for the Scheduled Castes (SCs),
Scheduled Tribes (STs) and Other Backward Classes (OBCs) respectively. Certain
educational institutions such as those in tribal areas covered by Schedule VI to the
Constitution, the institutions of national and strategic importance, minority educational
institutions and programmes or courses at high level of specialization are excluded from the
operation of the Act.
The Act also provides for increase in the number of seats in institutions in which reservation
is made so that the unreserved seats are not less than the seats available in the immediately
preceding year. It further provides that if for academic reasons it is not possible to make the
entire reservation for OBCs in one year it could be done in up to three years. While
reservation for SCs and STs was not questioned, serious questions were raised with respect to
the reservation for OBCs which the Act defines as "the class or classes of citizens who are
socially and educationally backward, and are so determined by the Central Government."
The Statement of Objects and Reasons appended to the Act states that in the light ofArticle
3
Writ Petition (civil) No. 265 of 2006 decided on 10 April 2008. Hereinafter, Thakur. References are to
paragraphs of the judgments of different judges and not to page numbers.
4
Cl. (5) of Art. 15 reads: 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 or 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 the educational institutions, whether aided or unaided by the State, other
than the minority educational institutions referred to in clause (1) of Article 30.

2
46 reservation under the Act was based on Article 15(4) but for excluding minority
institutions from its scope reliance was also placed on Clause (5) of Article 15.
Thakur filed the initial petition in March 2007 against the decision of the Central Government
to implement the Act from the academic session starting that year. A two judge bench of the
Court stayed the Government's move to the extent it applied to OBCs but not in respect of
SCs and STs.3 In view of important questions concerning the interpretation of the
Constitution involved in the petition, it was later referred to a constitution bench of five
judges. The main grounds for the challenge to the Act and the Amendment before the
constitution bench included that:
i. the principle of equality contained among others in Articles 14, 15(1) and 29(2)
required that all admissions to educational institutions must be made on merit;
ii. any reservation is suspect and must be subject to strict scrutiny based on compelling
state necessity;
iii. the Amendment was against the basic structure of the Constitution as it violated the
principle of secularism by giving special favour to the minorities and also disturbed
the balance between various Fundamental Rights (FRs) and between the FRs and the
Directive Principles of State Policy (DPs);
iv. that the determination of OBCs or socially and educationally backward classes
(SEBCs) was not consistent with the Constitution and the "creamy layer" must be
excluded from amongst them;
v. clauses (4) and (5) of article 15 overlapped and conflicted with each other and could
not stand together;
vi. the Act violated the principle of non-delegation of legislative power to the executive
by authorizing the latter to determine the OBCs;
vii. the Act should have provided for a time limit for the operation of reservation;
viii. 27 per cent reservation for OBCs is too high;
ix. no reservation beyond 10 + 2 stage is valid; and
x. the Amendment and the Act were passed by the self-seeking politicians to please the
voters even though they were against the national interest.

On April 10, 2007 the five judges announced their four separate opinions expressing
concurring and conflicting views on several issues. But all of them upheld the Act in its
entirety and rejected all the grounds of challenge stated above subject to the clarification that
in the enumeration of OBCs the "creamy layer" from amongst them must be excluded from
3
the provision for reservation. Exclusion of creamy layer, according to the Court, is an
essential constituent of OBCs if OBCs are determined on caste lines. A group of persons
based on caste is not OBC unless the creamy layer, if any, is removed from it. Exclusion of
creamy layer is an essential requirement of reservation for OBCs. The Court implied this
requirement in the Act and therefore upheld it as such. It also clarified that the creamy layer
concept does not apply to SCs and STs. All the judges also upheld the Amendment as it
applied to the issues in hand. The Amendment applies both to public and private, whether
aided or unaided, educational institutions but the Act applies only to Central Government
institutions. No private aided or unaided educational institution is covered by the Act and no
such institution or any one on their behalf approached the Court to question the Amendment
as it applies to them. Four of the judges, including the Chief Justice, confined their judgments
to the issue in hand and left the determination of the validity of the Amendment with regard
to the private unaided educational institutions for the future to be decided in an appropriate
case, i.e. in which that matter directly arises. One of the judges, Bhandari J, however, went
into the entirety of the Amendment and invalidated that part of it which applied to private
unaided educational institutions. He does not take the issue of private aided institutions,
which implies that he upholds the Amendment in regard to them.5

RATIO OF THE CASE

In A K Thakur, the Constitution (Ninety-Third) Amendment Act, 2005 (hereinafter referred to
as the 2005 Amendment), and the Central Educational Institutions (Reservation in
Admission) Act, 2006 (hereinafter referred to as the CEI Act) were under challenge. The
former, inserted clause (5) in Article 15 of the Constitution, and read as follows:
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
the educational institutions including private educational institutions, whether aided
or unaided by the state, other than the minority educational institutions referred to in
Clause (1) of Article 30.
A careful reading of Article 15(5) makes it clear that it goes beyond the existing special
provisions allowed under Articles 15 and 16 as it allows for special provisions in both state
5
MP Singh' ASHOKA THAKUR v UNION OFINDIA: A DIVIDED VERDICT ON AN UNDIVIDED
SOCIAL JUSTICE MEASURE, 2008 NUJS L. Rev. 193 (2008)

4
and privately managed educational institutions irrespective of whether they received state aid.
However the CEI Act, enacted by Parliament under Article 15(5), sought to enable greater
access to higher education by providing for 27 per cent reservation for “Other Backward
Classes” to central government controlled educational institutions and had no effect on
privately managed education institutions.6 We may understand this exclusion of privately
managed educational institutions by noting that the objects and reasons of the Act clarify that
the purpose of the Act is to fulfil the state’s obligation under Article 46 7 of the Constitution.8
The difference in the scope of application of Article 15(5) and the CEI Act has a significant
bearing on the outcome of the case which will be explored below. In this section we set out to
identify the key arguments before the Court in A K Thakur and conclusions reached by the
several opinions in the case. We begin by presenting the conclusions of the Court on the key
issues before it in a simplified tabular format (Table 1) which serves as a guide for the
discussion in the rest of the section.9

Judge Article Article 15- Identification Creamy Application Period

15- State Unaided of OBCs Layer of Creamy ic
Maintain Institutions Exclusio Layer Revie
ed and n Exclusion w of
aided to SC/ST the
institutio Act
ns
Chief Valid Question Caste can be To be Not Every
Justice- KG expressly left used but not excluded applicable 10
Balakrishnan open solely on the years
basis of caste
Justice Arijit Valid Question Caste can be To be Silent on Every
Pasayat (For expressly left used but not excluded the issue 5
himself and open solely on the thus years
for Justice basis of caste question left

6
For the definition of Central Educational Institution, see Section 2(d), CEI Act.
7
As per Article 46, it is the mandate of the state to promote the educational and economic interests of scheduled
castes, scheduled tribes and other weaker sections of society.
8
Statement of Objects and Reasons, CEI Act.
9
Sudhir Krishnaswamy and Madhav Khosla, Reading A K Thakur vs Union of India: Legal Effect and
Significance, Economic & Political Weekly 53 (19 July 2008).

5
 Thakker) open
Justice D Valid Unconstitutional Caste can be To be Question Silent
Bhandari used but not excluded expressly on the
solely on the left open issue
basis of caste
Justice Valid Question Caste can be To be Silent on Every
Raveendran expressly left used but not excluded the issue 10
open solely on the thus years
basis of caste question left
open

VALIDITY OF ARTICLE 15(5)

The primary ground on which Article 15(5) was challenged was that it violates the basic
structure doctrine.10 Rajeev Dhavan, one of the senior counsels appearing for the
petitioners, argued that the use of “notwithstanding” in Articles 15(3), 15(4) and 15(5) could
not be construed as “notwithstanding the declaration of equality principle”. Hence, it was
argued that the 2005 Amendment introducing Article 15(5) damages and destroys the
equality principle which is a basic feature of the Constitution. 11 A further ground for
challenge was that Article 15(5) directly conflicts with Article 15(4) as both Articles exclude
the remaining provisions of Article 15. Whereas Article 15(4) excludes Article 15 and Article
29(2), Article 15(5) excludes Article 15 and Article 19(1) (g). 12 Hence, it was argued that
Article 15(5) could not be read in conformity with the principles in Articles 14 and 15, and
thus violated the basic feature of the equality. Observing that a Constitutional amendment
which “moderately abridges or alters the equality principle or the principles under Article
19(1)(g)”,13 Chief Justice Balakrishnan concluded that Article 15(5), insofar as it dealt with
state maintained and aided institutions, did not violate the basic structure of the Constitution.

10
The basic structure doctrine, propounded by the Supreme Court in Kesavananda vs State of Kerala (1973) 4
Supreme Court Cases 225, places substantive and procedural limits on the amending process provided in the
Constitution. For an authoritative account of the ratio in Kesavananda, see R Dhavan, Supreme Court and
ParliamentarySovereignty (Sterling Publishers, New Delhi, 1976). For a brief overview of why the Article 15(5)
survives the basic structure challenge, see S Krishnaswamy, ‘In Defence of Larger Interests’, The Telegraph,
January 31, 2006.
11
A K Thakur, note 1 at paragraphs 28, 30 (Balakrishnan C J).
12
There were other grounds of challenge as well to the validity of Article 15(5). For example, whether the
exclusion of minority educational institutions from Article 15(5) violated Article 14 of Constitution? This paper
has, however, concentrated only on the two principal grounds of challenge, namely those concerning the basic
structure and Article 15(4).
13
A K Thakur, note 1 at paragraph 95 (Balakrishnan CJ).

6
Justice Pasayat, Justice Bhandari and Justice Raveendran all concurred on this issue. This
clarification on the standard of review that a court must apply in basic structure review may
be understood as an elaboration of the “damage or destroy” standard which is central to the
application of basic structure review to all forms of state action. On whether Article 15(5)
was constitutional in light of Article 15(4), the Court noted that both provisions operated in
different fields. The Chief Justice clarified the meaning of “nothing in this Article” in
Article 15(5) by observing that the grounds in Article 15(1) alone would be included in the
phrase, and that it would not exclude Article 15(4). 14 While the Court may agree that Articles
15(4) and 15(5) can be harmoniously construed, they appear divided on this clarification of
the chief justice. In contrast to the chief justice, justice Raveendran held that the phrase
“Nothing in this article” in clauses (3), (4) and (5) of Article 15 referred to both clauses (1)
and (2) of Article 15.15 Justice Pasayat merely stated that both provisions operated in different
fields and was silent on what was excluded by the non-obstante clause at the start of Article
15(5).16 Justice Bhandari observed that as Article 15(5) was specific to admission in
educational institutions, whereas Article 15(4) was general, Article 15(5) would neutralise 15
(4) with respect to reservations in educational institutions.17
This largely textual analysis of these provisions is neither convincing nor is it properly
directed. It remains unconvincing because although the Court held that Article 15(5) did not
negate Article 15(4), there is no clear majority on the scope and ambit of the phrase “Nothing
in this article” in Article 15(5). Further, basic structure review is about compliance with basic
features. Surprisingly counsels and the Court conduct this discussion as if Article 15(5) had
to be in conformity with other textual provisions of the Constitution. As basic structure
review is a model of judicial review which ensures that state action does not damage or
destroy basic features or values in the Constitution of India 1950 but not confined to
particular expressions in the text of the Constitution, the Court seems to be misdirected in its
analysis.
VALIDITY OF 15(5): PRIVATE UNAIDED INSTITUTIONS
In TMA Pai Foundation, an 11-judge bench of the Supreme Court held that a private unaided
educational institution has a fundamental right under Article 19(1)(g) with respect to the
establishment and administration of educational institutions. Disagreements relating to the
ratio of the case led to the constitution of a five-judge bench in Islamic Academy of
14
A K Thakur, note 1 at paragraph 100 (Balakrishnan CJ).
15
A K Thakur, note 1 at paragraph 3 (Raveendran J).
16
A K Thakur, note 1 at paragraph 106 (Pasayat J).
17
A K Thakur, note 1 at paragraph 256 (Bhandari J).

7
Education entrusted with the task of clarifying the judgment in TMA Pai Foundation.18
Subsequently, a seven-judge bench was constituted in P A Inamdar19 to assess the
clarification in Islamic Academy of Education and confirm the Ratio in tma Pai Foundation.20
P A Inamdar made it abundantly clear that the law as per TMA Pai Foundation was that
“neither can the policy of reservation be enforced by the State nor can any quota or
percentage of admissions be carved out to be appropriated by the state in a minority or non-
minority unaided educational institution”.21 Hence, under Article 15(5) the State was enabled
to regulate admission in private unaided institutions, something they were unable to do after
the decision in tma Pai Foundation and the subsequent cases clarifying it.
It is important to note that although the Court in A K Thakur was bound by the decision in
TMA Pai Foundation, the change in the text of Article 15 by the introduction of Article 15(5)
may have altered the constitutional basis of the decision in TMA Pai. While the CEI Act does
not apply to private unaided institutions, Article 15(5) does. However, the majority of the
Court declined to pronounce on whether the application of Article 15(5) to private unaided
institutions violated the basic structure of the Constitution. As no private unaided educational
institution was arrayed as a petitioner in A K Thakur, four out of five judges found that a
decision on this issue was unnecessary and would be properly made when appropriate parties
were before it.22 Justice Bhandari, however, chose to delve into the issue. In an elaborate
justification for doing so, he acknowledged that no unaided institution had filed a petition.
Yet he noted that as the best counsels in the country had appeared in the case he concluded
that a brief from an unaided institution would have contributed little to the arguments already
before the Court. Since the question of unaided institutions was likely to arise in the future, it
was best, according to justice Bhandari, to resolve it now rather than go through the “entire
exercise de novo”.23 In light of these “extraordinary facts”,24
Justice Bhandari examined the validity of Article 15(5) with respect to private unaided
institutions and held that an imposition of reservation of this sort would violate Article 19(1)
(g) and thus the basic structure doctrine, he severed the 2005 Amendment’s reference to
unaided institutions.25 Two important issues arise out of justice Bhandari’s minority opinion.

18
Islamic Academy of Education vs State of Karnataka (2003) 6 SCC 697 at paragraph 1 (Khare CJ).
19
(2005) 6 SCC 537
20
P A Inamdar vs State of Maharashtra (2005) 6 SCC 537 at paragraphs 1-5 (Lahoti C J).
21
P A Inamdar, note 25 at paragraph 132 (Lahoti CJ).
22
A K Thakur, note 1 at paragraph 79 (Balakrishnan CJ), paragraph 138 (Pasayat J), paragraph 1 (Raveendran).
23
A K Thakur, note 1 at paragraph 133 (Bhandari J).
24
A K Thakur, note 1 at paragraph 133 (Bhandari J).
25
A K Thakur, note 1 at paragraph 278 (Bhandari J).

8
First, is the majority’s decision to avoid pronouncing on the application to private unaided
educational institutions a political move? Secondly, does justice Bhandari’s conclusions on
the validity of Article 15(5) as it applies to private unaided institutions a correct application
of the basic structure doctrine?
While some commentators have expressed surprise at the majority’s approach, 26 generally
courts may legitimately limit their decision to resolving particular disputes before them. 27
However, the state action being challenged in this case is the amendment introducing Article
15(5) and the CEI Act. As the constitutionality of Article 15(5) is under review, the Court is
called upon to pronounce on the scope of its application to private unaided educational
institutions. To that extent, this is a proper issue for the Court to decide in A K Thakur.
Moreover, the Supreme Court is often guilty of going beyond the issues in dispute in a
particular case, and clubbing similar cases in a manner, that allows it to pronounce on
constitutional issues generally and not confine itself to the facts of the case before it. In the
light of this track record and the nature of legal challenge before it, the refusal to address the
full scope of Article 15(5) is defensible only if it initiates a new rule of court discipline which
will be followed in all cases hereafter.28
Justice Bhandari’s application of basic structure review to the scope of Article 15(5) does not
bind any future bench that will be called upon to decide this question. However, as it is the
first view expressed by the Court on the question, it is likely that the Court will look to affirm
or distinguish this view in future cases. Basic structure review is a form of judicial review
where the Court reviews any form of state action and enquires into whether this state action
damages or destroys a basic feature of the constitution. However, Justice Bhandari’s analysis
in A K Thakur finds that Article 15(5) would violate Article 19(1)(g) which guarantees to all
citizens the right to carry out any business or profession. It is not clear from the opinion, the
extent to which Article 19(1)(g) has a bearing on the basic features of the Constitution and
why Article 15(5) must comply with Article 19(1)(g) to be upheld by the Court. We had
noted earlier that the Supreme Court has held in tma Pai that Article 19(1)(g) prevents the
state from creating reservation quotas in private unaided educational institutions. However,

26
See for example, P B Mehta, note 2.
27
As the current chief justice of the US, John G Roberts Jr, noted at a lecture at Georgetown University: “If it is
not necessary to decide more to a case, then in my view it is necessary not to decide more to a case”. See the
Associated Press, ‘Chief Justice Says His Goal Is More Consensus on Court’, New York Times, May 22, 2006,
online: ht tp://www.ny t imes .com/2006/05 /22/ washington/22justice.html?_r=2&adxnnl=1&ore
f=slogin&adxnnlx=1209212360-aRLFEhAU6vrfQ 5McNy1ZPA&oref=slogin.
28
Another noteworthy instance of judicial discipline in this case was the Court’s decision not to comment and
present views on the relevant parliamentary debates. See A K Thakur, note 1 at paragraph 10 (Pasayat J).

9
this proposition of law would need to be revised in the light of the introduction of Article
15(5).
Hence, in order to hold reservation quotas in private unaided educational institutions
unconstitutional the Court will need to find a new constitutional basis for this proposition:
one that rests on the basic features of the Constitution such as equality. Hence, it seems that
justice Bhandari’s conclusion on the constitutional validity of Article 15(5) as it applies to
private unaided educational institutions is not supported by adequate reasons and it will fall to
a future bench of the Supreme Court to revisit this question.

IDENTIFICATION OF OBCS
In A K Thakur, the CEI Act was challenged, inter alia, on the ground that caste was the sole
basis for the determination of social and economic backwardness. Article 15(5) allows the
state to make special provisions for two kinds of groups: SC and ST groups and “socially and
educationally backward classes”. Section 2(g) of the CEI Act29 defines OBCs as “the class or
classes of citizens who are socially and educationally backward, and are so determined by the
central government”. The identification of these OBCs has been carried out by the state under
the provisions of Article 15(4) and Article 16(4) of the Constitution.
On the issue of identification of OBCs, the Court in A K Thakur is bound by the holding in
Indra Sawhney that caste could not be the sole determinant of backwardness, although it
could be used as a starting point for determining backwardness. 30 In light of this binding
precedent, the Court had no option but to unanimously hold that caste could not be the sole
determinant of backwardness.31 Evaluating lists prepared by the National Commission for the
Backward Classes and the State Commission for Backward Classes, the chief justice held that
various criteria and indicators framed by the Mandal Commission had been taken into
account, and social, educational and economic criteria have been considered. Consequently,
the list of social and educationally backward classes (SEBCs) has not used caste as the sole
criteria, and as caste was one of several factors considered, and therefore Article 15(1) has
not been violated.32
Despite the unanimity on this issue, differing views on the importance of caste as a criterion
provides us an interesting insight into the perspective of the judges on the bench. Whereas the

29
S. 2(g)-"Other Backward Classes" means the class or classes of citizens who are socially and educationally
backward, and are so determined by the Central Government
30
A K Thakur, note 1 at paragraph 12 (Raveendran J), paragraph 129 (Pasayat J).
31
A K Thakur, note 1 at paragraph 1 (Raveendran J).
32
A K Thakur, note 1, pp 140-142 (Balakrishnan CJ).

10
chief justice seemed to support the holding in Indra Sawhney and observed that “caste plays
an important role in determining the backwardness of the individual”, 33 Justice Bhandari
lamented the limited freedom he was provided on this issue: “Sawhney I has tied our hands…
Sawhney I compels me to conclude that use of caste is valid…Exclusively economic criteria
should be used. I urge the government that for a period of 10 years caste and other factors
such as occupation/income/property holdings or similar measures of economic power may be
taken into consideration and thereafter only economic criteria should prevail.” 34 While these
views of the bench have no impact on the ratio of the case, they may constitute a fault line
along which the future judgments in the identification of OBCs may develop.
We conclude the discussion on the identification of OBCs with the observations regarding the
review of OBC lists by the Court and executive branch of government. Although Indra
Sawhney was binding on the use of caste as a means of identification of OBC, it did not
authoritatively decide on the question of the extent to which the executive, or the Court,
should review these lists. Despite the view of some commentators who have regarded the
periodic review of the legislation a significant step through which the Court has sought to
refine the government policy,35 the ratio in A K Thakur relating to the review of the CEI Act,
and thus of the classes covered under it, remains unclear. While justice Pasayat calls for a
review every five years, the chief justice and justice Raveendran call for a review every 10
years, and justice Bhandari expresses no view on the issue. While it may be argued that a
majority of the Court approve the review of the CEI Act, it is unlikely that a future court will
impose such a review by issuing a mandamus in such cases.

CREAMY LAYER EXCLUSION

The exclusion of the “creamy layer” among the groups identified as OBC has been an
important issue in Indian reservation policy since Indra Sawhney. Both Article 15(5) and the
CEI Act are silent on the issue of the exclusion of the creamy layer and it was argued that this
was not an essential constitutional requirement. However, the Court concluded that it is
bound by the decision in Indra Sawhney and as chief justice Balakrishnan noted, “the
majority in Indra Sawhney’s case upheld the exclusion of ‘creamy layer’ for the purpose of
reservation in Article 16(4). Therefore, we are bound (by) the larger bench decision of this
Court in Indra Sawhney’s case, and it cannot be said that the ‘creamy layer’ principle cannot

33
A K Thakur, note 1 at paragraph 123 (Balakrishnan CJ).
34
A K Thakur, note 1 at paragraphs 251, 278, (Bhandari J).
35
See for example, P B Mehta, note 2.

11
be applied for identifying SEBCs.”36 Despite unanimity on this issue, the Court was divided
on the parameters to be used in excluding the creamy layer. The Chief Justice and Justice
Raveendran concurred that the office memorandum issued by the government of India,
ministry of personnel, public grievances and pensions (department of personnel and training)
on September 8, 1993 could be applied (it may be used).37 The chief justice further noted that
the union and the state governments should issue appropriate guidelines to identify the
“creamy layer”.38 Justice Bhandari, on the other hand, held that although the identification of
the creamy layer should be left to the government, the aforementioned office memorandum
was not comprehensive and ought to be periodically revised. 39 Justice Pasayat remained silent
on the issue. Thus, while the chief justice and justice Raveendran seem to be satisfied with a
set of criteria which results in a thin creamy layer, justice Bhandari clearly favours a set of
criteria that would result in a much thicker creamy layer. However, regardless of individual
views on how the creamy layer must be identified, all four opinions thought it best to defer to
the government on this issue and provide no strict guidelines.

APPLICATION OF CREAMY LAYER EXCLUSION TO SC/ST

Article 15(5) and the CEI Act identify the beneficiaries of affirmative action to include SC
and ST communities and the socially and educationally backward classes. A K Thakur dealt
with the identification of these beneficiaries and the Court was confronted with the issue of
whether the principle of creamy layer exclusion would be applicable to SC/ST reservation. In
Indra Sawhney, the Supreme Court examined the issue of creamy layer exclusion and held it
applicable specifically to OBCs. However in M Nagaraj, a five-judge bench of the Supreme
Court, dealing with the power of the state to make reservations in promotions, extended the
scope of creamy layer exclusion to reservations for another set of beneficiaries: namely,
SC/STs under Article 16(4).40 In A K Thakur, the Court could not overrule Nagaraj but could
have restricted its scope of application to the field of public employment. In A K Thakur the
Court could have explored whether Indra Sawhney is the last word on the exclusion of
creamy layer to OBCs and SC/STs, and therefore to conclude that M Nagaraj was per
incuriam Indra Sawhney.

36
A K Thakur, note 1 at paragraph 150 (Balakrishnan C J), paragraphs 61, 138 (Pasayat J), paragraph 30
(Bhandari J).
37
A K Thakur, note 1 at paragraph 193 (Balakrishnan CJ), paragraph 1 (Raveendran J).
38
A K Thakur, note 1 at paragraph 154 (Balakrishnan CJ).
39
A K Thakur, note 1, paragraphs 54-56 (Bhandari J).
40
M Nagaraj vs Union of India (2006) 8 SCC 212, at paragraphs 121-123 (Kapadia J).

12
The Chief Justice expressed the view that creamy layer exclusion was not a general principle
of equality but only one used to identify backward classes and could not be applied to
SC/STs.41 The remaining judges on the bench decided to play safe and did not enter into this
potential controversy. While justice Bhandari expressly refused to enter into the question, 42
justice Pasayat and justice Raveendran were both silent on this point. 43 In any event, as the
applicability of creamy layer exclusion to SC/STs was unnecessary to decide the
constitutionality of Article 15(5) and the CEI Act, any view on this point would arguably
have been regarded as obiter.

THE SIGNIFICANCE OF A K THAKUR

In the section above we noted that A K Thakur is a judgment of great legal significance
insofar as it upholds the extension of reservation quotas into new arenas, but this significance
does not arise from any radical departure from the Court’s previous doctrine or positions on
these subjects. To the extent that two judges call for periodic review of the CEI Act every 10
years, two judges call for a review every five years, and one judge is silent on the issue, 44 the
decision may give rise to litigation which may alter the present doctrine of the Court in the
future. Moreover, as the majority maintains silence on the applicability of creamy layer
exclusion to SC/STs, the A K Thakur judgment is as significant for its omissions. In the rest
of this section, we highlight significant analytical themes in A K Thakur and propose
alternative frameworks of doctrine and policy which will allow the Court to go beyond its
present moorings in affirmative action policy. The first issue we turn to is the assumption of
the equivalence at the policy, doctrinal and moral level of affirmative action in education and
public employment in affirmative action cases including A K Thakur. While the Court
increasingly calls for carefully structured and empirically justifiable affirmative action policy
in education and public employment, the trend of equating provisions of Articles 15 and 16
which began with Srimathi Champakam Dorairajan, and has also continued till today.45
This doctrinal approach prevents the Court and executive to consider affirmative action in
different fields in a disaggregated fashion. Any method of identification of beneficiaries

41
A K Thakur, note 1 at paragraph 161 (Balakrishnan CJ).
42
A K Thakur, note 1 at paragraph 34 (Bhandari J).
43
Although justice Pasayat did note that the instant case did not concern SC/STs. See A K Thakur, note 1 at
paragraph 59 (Pasayat J).
44
A K Thakur, note 1 at paragraph 187 (Balakrishnan CJ), paragraph 138 (Pasayat J), paragraph 1 (Raveendran
J).
45
State of Madras vs Srimathi Champakam Dorairajan, AIR 1951, SC, 226.

13
which uses groups46 as the unit of identification is bound to suffer from problems of over-
inclusion and under-inclusion when assessed at the individual level. While policy
mechanisms to identify beneficiaries may never fully satisfy rigorous empirical scrutiny,
being sensitive to the differences in the OBC and SEBC categories will be very useful. As the
legislature and executive extend the scope of affirmative action to scanty prized resources
such as private unaided educational institutions, the Court must exert greater scrutiny over the
manner in which beneficiaries are identified. It is for this reason that the manner of
identification of groups becomes particularly important. There are sufficient textual reasons
to consider Articles 15(3), 15(4) and 15(5) and Article 16(4) to operate in different fields.
Articles 15(3) and 15(4) allow the state to make special provisions in any field though they
have been used largely in the context of education. Article 15(5) and Article 16(4) are
specifically focused on higher education and public employment respectively. There are
different moral and policy justifications for affirmative action in these different fields. While
in some cases affirmative action may be used to achieve equality of opportunity, in other
cases it may be driven by considerations for diversity or social inclusion. 47 Justifications such
as diversity may go a long way in supporting affirmative action in education, but find limited
place in the arguments for affirmative action in public employment. Moreover, Article 353
which deals with efficiency of public administration holds relevance for assessing affirmative
action in public employment but has no relationship with education. Similarly, Articles 29(2),
21A, and 30 are important while examining affirmative action in education, but have no
connection with public employment.
The lumping of the social policy considerations in the labour market with the education
sector prevents the tailoring of appropriate policy mechanisms to achieve stated outcomes. If
the Court is keen to increase the standard of review over affirmative action policy to show
that it achieves professed outcomes, then it is critical to develop different doctrines under
these different articles of the Constitution. By engaging with distinct justifications for
affirmative action in both public employment and education, the Court would give itself
opportunities to develop new doctrine for each sphere. So far as the argument above on the
justification for affirmative action in different sectors is successful, it follows that the
beneficiaries for each sector may be distinct. While the clauses of Article 15 seek to benefit
46
In this context, it may be useful to refer to the relationship between groups, the equal protection clause, and
the anti-discrimination principle. See OM Fiss, ‘Groups and the Equal Protection Clause’, (1976) 5, Philosophy
and Public Affairs 107.
47
For a further study of the goals of anti-discrimination laws, see H Collins, ‘Social Inclusion: A Better
Approach to Equality Issues?’, Transnational Law and Contemporary Problems (2005) 14, pp 908-17. See also
H Collins, ‘Discrimination, Equality, and Social Inclusion’, Modern Law Review (2003), 66, p 16.

14
the SC/STs as well as “socially and educationally” backward classes, Article 16 seeks to
benefit SC/STs and “Other Backward Classes”.
Hence, the constitutional text supports the view that these two categories of beneficiaries may
indeed be different and by using this distinction the government may identify affirmative
action beneficiaries in a manner that pays due attention to the policy objectives that are
sought to be met. Moreover the criterion of access to these valuable and scarce public
resources may be moulded through relevant principles of merit 48 and any other contending
principles so that the category of beneficiaries identified would be appropriate for the
affirmative action measure. In order to avoid the blurring of the OBC and SEBC categories,
the Court must give greater meaning to the phrases employed in Articles 15(3), 15(4), 15(5)
and 16(4) and see these as distinct categories. This does not mean that these new categories
of beneficiaries should exclude caste as a criterion: they should take caste into consideration
but may allocate different weights to it.49
Another distinction between categories of beneficiaries that is important to emphasise is
between OBCs and SEBCs on the one hand and SC/STs on the other. The moral case for
SC/ST reservation was made at the height of India’s freedom struggle during the Communal
Award in 1932 and the subsequent Poona Pact, 50 and entrenched in the Constitution of India
1950. While the argument for SC/ST reservation is often seen as being constitutionally
unassailable, the argument for OBC and SEBC reservation is viewed with more suspicion.
For this reason, there are strategic reasons to conflate the two categories and much of the
political and legal discourse around these categories without distinguishing between them.
For example, the identity of groups to be included in the OBC and SEBC category was
loosely identified in Indra Sawhney as being those castes which were closest to SC/STs and
were almost accidentally excluded in the initial listing of the SCs and STs. But the practice of
identification adopted by union and state governments suggests that a much larger range of
castes are included among the OBCs. The Court has responded to these problems of OBC and
SEBC beneficiary identification by introducing the creamy layer concept despite some
resistance from the governments. This creamy layer exclusion has been extended to apply to

48
In studying criteria, it is useful to examine the relationship between merit and affirmative action. See, C
McCrudden, ‘Merit Principles’, Oxford Journal of Legal Studies (1998), 18, p 543.
49
Sudhir Krishnaswamy and Madhav Khosla, Reading A K Thakur vs Union of India: Legal Effect and
Significance, Economic & Political Weekly 53 (19 July 2008).
50
The Communal Award regarded “Depressed Classes” as a distinct minority community which were entitled to
separate electorates thereby separating them from the remaining Hindus. Resulting in significant opposition, an
agreement in the form of the Poona Pact was arrived that in which the concept of separate electorates was done
away with while the reservation for Depressed Classes in provincial legislatures was increased. See B Chandra
et al, India’s Struggle for Independence, Penguin Books, New Delhi, 1988, pp 290-91.

15
the SC/ST category of beneficiaries with little or no argument. Hence, it is critical to treat
these two categories of beneficiaries distinctly in terms of the moral and constitutional
justification and the appropriate policy design in order to create an effective affirmative
action policy which meets its stated outcomes. 51
A greater engagement with the political and moral justification for OBC reservation may
require more than the judicial scrutiny of groups included under the OBC category. The
judiciary may also be concerned with the manner and form of affirmative action adopted for
these beneficiaries. Hence, while both OBCs and SC/ STs both may require affirmative
action measures, these may not require quotas in every instance. One needs to more closely
calibrate the intrusiveness of affirmative action measures chosen and the moral justifications
for the same. If SC/STs have the strongest moral case for quotas in reservation, then OBCs
have, at present, a relevant case for affirmative action which could use other mechanisms
such as a system of institutionalised preferences falling short of quotas.
There is no moral, political or legal necessity to insist on the equivalence of SC/ST and OBC
affirmative action policy. Hence, there is an urgent need to revisit the design of affirmative
action policy which responds to the moral and policy arguments for each of these
beneficiaries. Moreover, this distinction between SCs and STs and the OBCs categories is
essential when we consider the scope of the creamy layer exclusion. Creamy layer exclusion
is an attempt to reconcile beneficiary identification at group levels and individual based class
criteria in order to enhance the accuracy of the beneficiary identification. The Court is also
concerned with ensuring that the negative impact of a quota-based reservation on similarly
situated individuals. Unfortunately, the metaphor of “creamy layer” is not backed by good
social scientific evidence. While the Court and advocates of creamy layer exclusion rightly
insist on a high degree of social scientific evidence to be used for the identification of OBCs,
there is not similar enquiry into the existence of a creamy layer. 52
In A K Thakur and other cases, the Court has expressed some scepticism about the use of
government orders used to identify the creamy layer. However, the Court has not insisted that
government must develop a multi-criteria index, such as the one proposed by Deshpande and
Yadav,53 which offers a far more sophisticated policy design that merits serious
consideration.
51
Sudhir Krishnaswamy and Madhav Khosla, Reading A K Thakur vs Union of India: Legal Effect and
Significance, Economic & Political Weekly 53 (19 July 2008).
52
Mehbubul Hassan Laskar, RETHINKING RESERVATION IN HIGHER EDUCATION IN INDIA, ILI
Law Review 25 (2010).
53
S Deshpande and Y Yadav, ‘Redesigning Affirmative Action’, Economic & Political Weekly, (2006), 41, p
2419.

16
We will conclude the discussion in this section by taking note of two developments in A K
Thakur which though not strictly related to affirmative action may have a significant impact
on the development of the doctrine of the Court. In a recent decision of the Court in Anuj
Garg, a two-judge of the Supreme Court applied the strict scrutiny test to Article 14 holding
that “protective discrimination” legislations must be assessed with reference to whether
interferences with personal freedom are (a) justified in principle, and (b) appropriate in
measure.54 This concept of tiers of scrutiny, borrowed from the US, supplements the
rationality test ordinarily employed in Article 14 cases. The “tiers of scrutiny” approach is
relevant to two areas of Court doctrine on equality: the assessment of paternalistic legislation
which seeks to protect discriminated groups but may in fact disadvantage these groups.
Secondly, this approach would be useful for the Court to widen the range of “suspect
classifications” beyond those listed in Articles 15 and 16.
The constitutional cases before various high courts on discrimination on the basis of sexual
orientation and disability would be cases where a strict scrutiny approach would be useful. In
A K Thakur the “tiers of scrutiny” approach was rejected by a majority in the Court, without
any reference to the decision in Anuj Garg. The concern of the Court was that adopting the
“tiers of scrutiny” approach would require the Court to adopt the attitude of the US Supreme
Court and invalidate caste-based affirmative action programmes in all cases. This concern
was misplaced as the US Supreme Court’s rejection of certain race-based affirmative action
programmes rest only in part on the “tiers of scrutiny” approach. The reasoning of the US
Court to a larger extent depends on the adoption of a symmetric anti-discrimination principle
where the Court is likely to strike down any race-based state action as it disables itself from
an enquiry into whether this discrimination is benign or invidious – in other words whether it
imposes benefits or burdens on the black community.
The Indian Constitution in Articles 15(3), 15(4), 15(5) and 16(4) adopts an asymmetric
discrimination principle and expressly allows the state to make special provisions to benefit
specific categories of beneficiaries. To that extent there is no scope for a symmetric
discrimination principle under the Indian Constitution. So it may well be that the court has
lost the opportunity to develop its equality jurisprudence to detriment of issues likely to come
up before the Court in the near future.
Finally, we must take note of some aspects of A K Thakur’s application of the basic structure
doctrine. In the last few years, the Supreme Court has developed this doctrine in a haphazard
and contradictory fashion. In Kuldip Nayar, the Supreme Court ignored previous precedent
54
Anuj Garg vs Hostel Association of India (2008), 3 SCC, at paragraphs 46-52 (Sinha J).

17
and restricted the scope of the basic structure doctrine by holding this inapplicable to statues.
The Court held that the unconstitutionality of a statute could be challenged only on two
grounds: lack of legislative competence, and violation of fundamental rights or any provision
of the Constitution.55 In M Nagaraj, the Court substituted the “damage or destroy” standard
and instituted a new standard of a “width” and “identity” test.56 In Coelho, it was held that the
“rights test and the “essence of right test” are both applicable standards with respect to the
basic structure doctrine.57 While the former “damage or destroy” yardstick examined the
possible erasure of basic features or values from the Constitution, the latter “width” and
“identity” test studies the impact of the impugned measure on the identity of the Constitution
and the fundamental rights in particular. The chief justice in A K Thakur applies the width
and identity test and concludes that while the fundamental rights have been altered by the
constitutional amendment this is in conformity with the Constitution’s basic structure as it
adheres to the broader principle of equality. 58 It is not clear that this rights and impact test is
an advance over the damage or destroy standard developed by the Court in Indira Gandhi vs
Raj Narain59 and Kihoto Hollohan vs Zachilhu.60 While A K Thakur does not elaborate on the
benefits of the new standard of review it does not abandon this standard either. So this
question will be left to a future bench to clarify and it is unfortunate that A K Thakur did not
resolve this important area of judicial doctrine.
There has been an outpouring of editorial and political comment on the A K Thakur decision.
This essay has argued that commentary on the case would benefit from closer analysis of the
judicial opinions in the case to reveal the key holdings of the plurality opinion of the Court.
Further, we have argued that while there is a need to engage with the constitutional text and
the Court’s doctrine, it is essential for us to go beyond present frameworks in which
affirmative action legal discourse is conducted in India. In this essay we have proposed
several methods in which this may be done.
We conclude this essay by pointing out justice Bhandari’s affirmation of the obligation of the
State under Article 21A to provide free and compulsory education to all children from the age
of six to 14 years. Justice Bhandari went even further to direct the union of India to set a
time-limit within six months within which the article would be implemented. 61 It is important
55
Kuldip Nayar vs Union of India (2006), 7 SCC 1 at paragraphs 90-108 (Sabharwal CJ).
56
M Nagaraj vs Union of India, note 44 at paragraphs 101-102 (Kapadia J).
57
I R Coelho vs State of Tamil Nadu (2007), 2 SCC 1 at paragraph 76 (Sabharwal CJ).
58
A K Thakur, note 1 at paragraph 93 (Balakrishnan CJ).
59
1975 Supp (1), SCC 1.
60
AIR 1993 SC 412.
61
A K Thakur, note 1 at paragraph 10 (Bhandari J).

18
to highlight justice Bhandari’s view that compulsory primary education is a complementary,
and often neglected, policy to make affirmative action policy in higher education meaningful.
The commitment of the A K Thakur bench to the pursuit of a wider conception of social
justice may serve as an important corrective to the excessive focus on affirmative action
schemes as the only method of achieving social justice in the political discourse in India.

RESERVATION IN HIGHER EDUCATION- A

CRITIQUE
It is a well-settled principle in law that reservation to a backward class is not a constitutional
mandate. It is the prerogative of the state concerned if it so desires, with an object of
providing opportunity of advancement in the society to certain backward classes which
include the SCs and STs, to reserve certain seats in educational institutions.62
The pivotal role of an activist Supreme Court in shaping India’s affirmative action policies
cannot be gainsaid. With due respect to the Apex Court, I most humbly submit that it has
failed to understand the rationale behind reservation, which was a temporary measure but it
now seems to continue till eternity. It seems that the discretion of the state has been converted
into a right of a particular undefined group of persons. The court has accorded caste-based
classifications such a presumption of constitutionality that it has made them quite
unchallengeable. The Court has given unbridled discretion to the state to determine the
condition that is appropriate to trigger affirmative action for the backward classes. India’s
affirmative action policy, by its very nature, is not susceptible to any pre-fixed termination
date. The national commission that reviewed the working of the Constitution for the past
half-century recommended “that the ultimate aim of affirmative action or reservation should
be to raise the level of capabilities of people of the disadvantaged section and to bring them at
par with other sections of the society.”63 This seems to be an aim in perpetuity.

Even though the makers of the Constitution originally conceived it as a transient reparatory
measure to benefit the historically discriminated backward classes, the reservation system has

62
E.V. Chinnaiah v. State of A.P., AIR 2005 SC 162.
63
Government of India, Report of the National Commission to Review the Working of the Constitution (March
31, 2002); available at http://lawmin.nic.in/ncrwc/finalreport.htm. (popularly known as Venkatachaliah
Commission Report)

19
grown into a sprawling enterprise with its own elaborate infra-structure, programme and
supportive constituents.64
It must be noted that mediocrity over meritocracy cuts at the roots of justice and hurts right to
equality. Any protective push or prop, by way of reservation or classification, must withstand
the test of equality contained in article 14 of the Constitution. Any overgenerous approach to
a section of the beneficiaries, if it has the effect of destroying another’s right to education,
more so, by pushing a mediocre over a meritorious, belies the hopes of our founding fathers
on which they structured the great document of the Constitution and so must fall to the
ground.
Any sort of discrimination or classification, in order to withstand the test of equality
enshrined in article 14, must satisfy the following two conditions:
 The classification must be founded on an intelligible differentia which distinguishes
persons or things grouped together from others left out of the group; and

 The differentia must have a rational relation to the object sought to be achieved.

For the purpose of reservation in higher education, the government has broadly classified the
students into the following two categories-
a) Students belonging to general category; and

b) Students belonging to SC/ST/OBC category.

ARBITRARY PROCEDURE FOR SELECTING SC/ST/OBC - NO

INTELLIGIBLE DIFFERENTIA
I firmly contend that this classification cannot be said to be based on any intelligible
differentia. This classification might have been justified 60 years back when social evils like
‘untouchability’, caste system etc. were greatly practised in India. As a result, people
belonging to these categories were prevented from mixing with common masses and deprived
of all social, economic and political benefits. But now the situation has significantly changed.
The light of education has helped us to abandon many of the evil (non-scientific) practices.
Now, we have been able to abolish untouchability from our society. We have different
statutes to protect the interests of SCs and STs such as the Scheduled Caste and Scheduled
Tribes (Prevention of Atrocities) Act, 1989 etc. We have National Commissions for

64
K.G. Janpillai, “Equality in the affirmative action”, 27 Academy Law Review 48 (2003).

20
Scheduled Caste and Scheduled Tribe65 to look after their well being. Laws have been
enacted prohibiting the entry of non-tribals into tribal areas without permit and separate
provisions are made for the better administration of tribal areas. 66 Article 339(2)67 of the
Constitution empowers the centre to issue directives to any state giving directions as to the
drawing up and execution of schemes for the welfare of the scheduled tribes. Necessary
provisions are also made to meet the costs of the scheme from the Consolidated Fund of
India.68

As a result, the problems or difficulties which they earlier faced have significantly diminished
today. Even the members, who belong to the so called SC/ST category, never use their
identity in any matter. It is only when they have to take certain advantages or benefits; they
disclose their so called caste identity.
According to article 366(24)69, “Scheduled Caste” means such castes, races or tribes or parts
of groups within such castes, races or tribes, as are deemed under article 341 to be scheduled
castes for the purpose of the Constitution. According to article 366(25) 70, “Scheduled Tribes”
means such tribes or tribal communities or parts of or groups within such tribes or tribal
communities as are deemed under article 34271 to be scheduled tribes for the purpose of the
Constitution.

Thus, scheduled castes or scheduled tribes are those communities which are listed as
scheduled castes or scheduled tribes in the Constitution as per the Order of the President
under article 341 and article 342 respectively. But the Constitution does not prescribe any
procedure to determine SC/ST before including them in the list. The lists prepared through
65
These commissions have been set up as National Legal Advisory Body to advise the government on broad
policy issues and level of development of SCs and STs respectively.
66
See schs. V and VI to the Constitution of India.
67
Art. 339 (2) - The executive power of the Union shall extend to the giving of directions to 1 [a State] as to the
drawing up and execution of schemes specified in the direction to be essential for the welfare of the Scheduled
Tribes in the State.
68
46 See art. 275(1) of the Constitution of India.
69
Art. 366(24) - “Scheduled Castes” means such castes, races or tribes or parts of or groups within such castes,
races or tribes as are deemed under article 341 to be Scheduled Castes for the purposes of this Constitution;
70
Art. 366(24) - (25) “Scheduled Tribes” means such tribes or tribal communities or parts of or groups within
such tribes or tribal communities as are deemed under article 342 to be Scheduled Tribes for the purposes of this
Constitution;
71
342. (1) The President may with respect to any State or Union territory], and where it is a State, after
consultation with the Governor, by public notification, specify the tribes or tribal communities or parts of or
groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be
Scheduled Tribes in relation to that State or Union territory, as the case may be.
(2) Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification
issued under clause (1) any tribe or tribal community or part of or group within any tribe or tribal community,
but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent
notification.

21
presidential order are final. It is not open to the court to make any addition or subtraction
from the presidential Order.72 Now the important question is that whether a community listed
as SC/ST sixty years back on the basis of certain criteria still continue to suffer from various
drawbacks and is entitled to the benefits attached to SC/ST.
It may be worthwhile to mention that the Supreme Court in Ajay Kumar Singh v. State of
Bihar73 and in several other cases held, “A class/caste may be backward in present time, but it
may not be so in coming years due to their socialisation with society and job opportunities.
Once a caste is socially and educationally backward community, it cannot remain so for all
times to come. It requires periodical review.”
But, in fact, no concrete steps have so far been taken for periodic revision of their social and
economic conditions. Now, a student becomes an SC/ST only on the basis of a certificate
issued by a competent authority of the government. Many a time, in order to take benefits of
reservation, students manage to get fake SC/ST certificate. This has given rise to the
problems of fake candidates,74 cases of conversions75 to SC from high castes, adoption by a
SC/ST76 etc.

Moreover, many communities in India are agitating to get their communities listed in the
SC/ST list. In this regard, long before Indra Sawhney, in K.C. Basanth Kumar v. State of
Karnataka,77 it was observed that the paradox of the system of reservation is that it has
endangered a spirit of self degeneration among the people. Nowhere else in the world, do
castes, classes or communities queue up for the sake of gaining backward status. Nowhere
else in the world is there „competition‟ to assert backwardness and to claim “we are more
backward than you.”

Even the position is same in respect of OBC. The two commissions appointed so far failed to
lay down specific criteria for determination of OBC. In fact, both the commissions used
“caste” as an important factor to determine backwardness of a class. But it is to be
remembered that the very inquiry of an individual’s caste to determine OBC would amount to
grave breach of the Constitution and harm the unity and integrity of the nation. Such exercise

72
See B. Basavalingappa v. D. Munichinappah, AIR 1965 SC 1269; Virendra v. Union of India, AIR 1992 All
147.
73
(1994) 4 SCC 401.
74
R.K. Shaha v. Medical College, AIR 1976 Cal 347; Ranbir Singh v. State, AIR 1978 P&H 109.
75
J. Das v. State, AIR 1981 Ker 164; Dr. Neelima v. Dean of PG Studies, AIR 1993 AP 229; R. Uma Devi v.
Principal, K.M. College, AIR 1993 AP 38.
76
Khazan Singh v. U.O.I, AIR 1980 Del 60.
77
AIR 1985 SC 1495.

22
would perpetuate and reinforce caste system in India rather than hasten its demise which our
founding fathers had never dreamt of. In this light, it is humbly submitted with the greatest
respect that the court in Indra Sawhney case78 was wholly in error in stating that „caste‟ could
be a factor for identifying the backward classes.

In this regard, eminent jurist Nani Palhkivala commented thus: “The basic structure of the
Constitution envisages a cohesive, unified and casteless society. By breathing new life into
casteism the judgment fractures the nation and disregards the basic structure of the
Constitution. The decision would revitalize casteism, cleave the nation into two- forward and
backward, and open up new vistas for intermecuie conflicts and fissiparous forces, and make
backwardness a vested interest. It will undo whatever has been achieved since independence
towards creating a unified, integrated nation. The majority judgment will revive casteism
which the Constitution empathetically intended to end.”79
In this light, it is most humbly submitted that the judgment in Indra Sawhney, to the extent it
regards caste as an important factor to determine OBC, ought to be reconsidered and the
Court must lay down specific guidelines to determine OBC so as to prevent any sort of
arbitrariness in this regard.

Thus, in the absence of specific criteria or guidelines, the determination of SC/ST/OBC

cannot be justified. It is confusing in nature. It may be done arbitrarily and based on
extraneous and irrelevant grounds. Hence, the classification of students as general and
SC/ST/OBC is not based on any intelligible differentia so as to withstand the test of article 14
of the Constitution.

NO REASONABLE NEXUS WITH THE OBJECT SOUGHT TO BE

ACHIEVED

The basic policy of reservation is to off-set the inequality and removes the manifest
imbalance, the victims of which for bygone generations lag far behind and demand equality
by special preferences and strategies. Thus, the main ground on which reservation is sought
to be justified in India is that the people belonging to the class- SC/ST/OBC were historically
oppressed and denied respect and equal opportunity in Indian society and were thus under-
represented in the nation-building process. Hence, reservation is a way to bring them at par

78
1992 Supp (3) SCC 217.
79
Nani Palkhivala, We the Nations: The Lost Decades 179 (1994).

23
with the general class of the society. Thus, the object sought to be achieved by way of
reservation is the overall upliftment of SC/ST/OBC. It is to be remembered that reservation is
not an end in itself; it is one of the means to achieve equality. The policy of reservation
adopted to achieve that end must, therefore, be consistent with the objective in view.
But, in the present time, it seems that the policy of reservation is being continued without any
object. Even after sixty years of India’s independence, no concrete steps have so far been
taken to determine as to how far the object of reservation has been achieved. The specific
requirement of periodic review as stated in Section 11 of the National Commission for
Backward Classes Act, 1993 and in para 847 of Indra Sawhney case has not been followed,
and as a consequence, the prevailing lists have swelled to include several thousand “castes”
which are treated as „backward classes‟, thereby satisfying the political mandate.
Thus, it is clear that the reservation policy has no reasonable nexus with the object sought to
be achieved. It has become an important tool of politics in the country. The inclusion of any
class/caste has been used as a vote capturing device. There are cases when the party in power,
on the eve of central or state election, included large number of classes in the list of OBC. It
is time that the pressure tactics be avoided otherwise the caste/class strife will put an eclipse
on the philosophy of common brotherhood and the egalitarian society provided in the
Constitution of India.80 The judiciary, being the guardian of the Constitution, must adopt a
beneficial and careful approach in this regard.

ANY SORT OF RESERVATION IN HIGHER EDUCATION IS AGAINST THE

INTERNATIONAL PRINCIPLES
Under article 51 of the Constitution, the Union of India has a duty to take steps to “foster
respect for international law and treaty obligations.” In other words, the state has a
responsibility, so far as possible, to give effect to the provisions of international treaties.
According to article 26 of UDHR, 81 “Everyone has a right to education. Education shall be
free, at least in the elementary and fundamental stages. Elementary education shall be

80
MP Singh' ASHOKA THAKUR v UNION OFINDIA: A DIVIDED VERDICT ON AN UNDIVIDED
SOCIAL JUSTICE MEASURE, 2008 NUJS L. Rev. 193 (2008)
81
The Universal Declaration of Human Rights adopted in 1948.

24
compulsory. Technical and professional education shall be made generally available and
higher education shall be equally accessible to all on the basis of merit.”
According to article 4 of the UNESCO Convention Against Discrimination in Education, 82
“Admission to higher education should be based on merit, capacity, efforts, perseverance and
devotion showed by those seeking to access it, and can take place in a lifelong scheme, at any
time with due recognition of the previously acquired skills.” Thus, the Convention proclaims
that access to higher education should be based on merit and no discrimination shall be
allowed on the grounds of race, gender, language, or religion, or economic, social or cultural
distinction.
According to article 13(2)(b) of International Convention on Social, Economic and Cultural
Rights (ICESCR),83 which deals with secondary education, “Secondary education shall be
made generally available and accessible to all by every appropriate means, and in particular
by the progressive introduction of free education.” The phrase “generally available” signifies
that secondary education is not dependent on a student’s apparent capacity or ability and it
must be made accessible to all.

Article 13(2)(c) of ICESCR deals with the “right to higher education.” It specifically states,
“higher education shall be made equally accessible to all on the basis of capacity.” Thus,
according to article 13(2)(c), higher education is not to be “generally available”, but only
available on the basis of capacity i.e. merit.
Thus, it is clear that the international community has recognized that there shall be no
compromise with merit and higher education shall be accessible to all only and only on the
basis of merit. India, having ratified these conventions, has a positive moral obligation to
follow this international norm. But, alas! India is still continuing, rather perpetuating the age
old reservation policy without any fixed object. It is time to rethink over the policy.

RESERVATION HAMPERS QUALITY EDUCATION

It is also a fact that reservation of any kind hampers the quality of higher education. Through
reservation, we may simply create a pass for the reserved category students to enter institutes
of higher learning and professional excellence. But it is really very shocking that the majority
of such students fail to cope up with the standard of education required at such level. This
becomes clear from the fact that in the last ten years or so, in the courses like IITs etc, more
than 90% SC/ST/OBC students are either dropped out or were declared failed in the first year
82
Adopted in 1960.
83
Adopted in 1966.

25
or in the second year. In many cases, they simply failed to acquire the benchmark required to
sit in the examination.84 Thus, the reservation made by the central government/state
government has become redundant as these students fail to acquire the minimum benchmark.
As a result of this, the reserved seats in higher courses are lying vacant. Had these seats been
given to really meritorious eligible candidates, we would have got bundles of expert
professionals who could be the real treasure of our country. This also clearly shows the
violation of right to education of the students belonging to general category who, in spite of
their merit and eligibility, fail to get seats in the institutes of higher education only because of
the fact that they belong to general category.85

TWO MAJOR DEMERITS OF RESERVATION

Apart from various other demerits, I would like to mention the two most significant demerits
of the reservation policy:
i. Reservation hampers the intellectual development of backward classes: The general
mode of selection observed in colleges/universities is either the marks scored by the
students in the last examination or their marks in an entrance examination conducted
by the colleges/universities. But, in keeping with the reservation policy, the
colleges/universities demarcate different qualification levels or “cut-off marks.” The
backward classes have lower cut-off marks as compared to general category students.
But the reduction of cut-off marks only hampers the development of backward classes
themselves. It reduces the competitive spirit in them. By doing it, the government
seems to tell them that they can just sit back and score just the required minimum,
because for them, caste and not marks, is the ticket to enter the colleges/universities of
their choice. In this regard, Professor Paramananda Singh says, “What is needed today
is that the state should divert more and more of its resources to increase the overall
competitiveness of the beneficiaries rather than stick to „reservation‟ as the only best
means to promote equality.”86 Reservation may have been theoretically aiming at
equality, but in practice, it is far from the very idea of equality. Rather, it enhances
inequality among the different classes in the society and is against the philosophy of
“common brotherhood.”

84
See Avinash Singh Bagri & Othrs. v. Registrar, IIT Delhi & Anr., 2009(11) SCALE 535.
85
Rakesh Basant and Gitanjali Sen, Who Participates in Higher Education in India? Rethinking the Role of
Affirmative Action, , W.P. No. 2009-11-01 (November 2009).
86
Paramananda Singh, “Promoting equality through reservations: A critique of judicial policy and political
practice”, 20 DLR 46 (1998).

26
 ii. Reservation hampers progress: Reservation was undertaken with an additional goal in
mind- that of trying to aid progress of society by pulling up even the weakest sections
of the society.
But this seems to be a myth. One obvious reason is that even after so many years of its
implementation, there is hardly any significant progress. This may be because most of the
really backward people are not included in the list of “backward classes” as prepared by the
competent authority and the fairly forward people hang on to the tag of backward so as to
avail various facilities. Such faulty procedure is an obstacle in the uniform progress of the
nation.
Another important reason as to why reservation hampers progress is that because of
reservation, the really meritorious students lose out in the rat race. This not only hampers
progress but also procures great loss for the nation. In fact, really meritorious and talented
students are the assets of the nation who must be given all types of support to blossom fully
and serve the nation. But the reservation policy simply kicks 50% of the really meritorious
students belonging to general category out of the race. This fuels the problem of brain-drain
as the really meritorious students go abroad simply because of the lack of seats for their caste
or community in the institutes of higher learning. In fact, the reservation policy only seems
attractive to those who support it but it is of no use to millions of people who are living a very
pathetic life in India, irrespective of caste.87

THE EIGHT FATAL SINS OF ASHOK KUMAR

THAKUR V. UNION OF INDIA
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. 88 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 eight fatal
flaws listed below:

87
Rakesh Basant and Gitanjali Sen, Who Participates in Higher Education in India? Rethinking the Role of
Affirmative Action, , W.P. No. 2009-11-01 (November 2009).
88
Mehbubul Hassan Laskar, RETHINKING RESERVATION IN HIGHER EDUCATION IN INDIA, ILI
Law Review 25 (2010).

27
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.89 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. 90 Caste
might have been a legit imitates starting point for identifying backward class in the 1970 and
1980’s 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 BC 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/group felt that it was unfairly excluded or included, it could approach the BC
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. 91 But over the last two decades very little action
has been taken. Caste has become a “one-way 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
gave some broad unenforceable guidelines on investigation. The judges, Justice Balakrishnan
in particular, brushed aside this entire issue by saying that the identification of BC list was
not based solely on caste and therefore it was proper. He equated the power of the Backward
89
ACHARYA DURGA DAS BASU, SHORTER CONSTITUTION OF INDIA, (14TH ED., LEXIS NEXIS BUTTERWORTH
WADHWA NAGPUR).
90
id
91
Professor M.P. Jain, INDIAN CONSTITUIONAL LAW, (6th Edition, LexisNexis Butterworths Wadhwa
Nagpur.)

28
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.92
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 that’s 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
Sawhney93 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. Mr. Venkatesan in his blogs
said that chief justice has clarified that there was no such ruling. The Chief Justice has no
power to issue such a clarification. Only a Supreme Court bench can issue such a
clarification. Once a judge delivers a judgment, he does not have the power to issue a
clarification. (Unless there is a review petition or another bench interprets that judgment)
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 Bharti94 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
92
ACHARYA DURGA DAS BASU, SHORTER CONSTITUTION OF INDIA, (14TH ED., LEXIS NEXIS BUTTERWORTH
WADHWA NAGPUR).
93
1992 Supp (3) SCC 217.
94
Keshavananda Bharti v. State of Kerala, (1973) 4 SCC 225.

29
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 OBC’s 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 T.M.A. Pai 95 and
Inamdar96 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) 97. 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 and other
central government educational institutions even without Article 15(5).
Seventh, the Court deviated from precedent when it declined to hear the constitutional
challenge of affirmative action in unaided educational institutions. The reason – there were
no private institutions before the court. The court could not have thought of a poorer excuse!
This issue came up extensively. The entire point of Article 15(5) was about private unaided
institutions. The court assumed that only private institutions had the right to question caste-
based reservations in Article 15(5). Both the teacher and the students and even the general
public have the right to question an amendment which mandates caste based quotas in private
institutions which do not take support from the state. It is obvious that standing was just an
excuse to defer this issue to a future court.
Surprisingly Justice Balakrishnan – who declined to decide the constitutional validity of
reservations in private colleges since the Act in question only provided reservation in central
government institutions – decided the issue of creamy layer for SC’s and ST. Even that
question was also not in issue since Act was only confined to providing reservation for
OBC’s in central institutions.

95
P.A. Inamdar v. State of Maharashtra, (2005) 6 SCC 537
96
T.M.A. Pai Foundation v. State of Kaenataka, (2002) 8 SCC 481
97
Professor M.P. Jain, INDIAN CONSTITUIONAL LAW, (6th Edition, LexisNexis Butterworths Wadhwa
Nagpur.)

30
Eighth, the judges never considered the issue of proportionality. In India, the affirmative
action discourse has been focused only on quotas. Unlike the United States, the primary
purpose of affirmative action in India is to compensate for past discrimination and not
promote diversity or any other objective. In such a case, the compensation must be
proportional to the deprivation suffered. Quotas stand at the end of the chain. Some forms of
deprivation may not justify even a full quota, but possibly a milder form of affirmative action
in the form of increase in marks or similar measures. Again, this can happen only though an
independent investigation which the judges simply did not focus on.

CONCLUSION AND SUGGESTIONS

The analysis in the section above reveals that the ratio in A K Thakur is a narrow one. First,
that Article 15(5) does not damage or destroy the basic structure of the Constitution, and
secondly that the CEI Act does not damage or destroy the basic structure of the Constitution
or any other provision of the Constitution. The Court reiterates the Indra Sawhney position on
the identification of OBCs and the exclusion of the creamy layer. However, it does not settle
the issue of how the creamy layer would be identified. On both reservations in private
unaided institutions and the application of creamy layer exclusion to SC/ STs, the Court
thought it best to remain silent.
The primary imperative of articles 14 and 15 is equal opportunity for all across the nation to
attain excellence. Excellence cannot be allowed to be compromised by any other
considerations because that would be detrimental to national interest. Therefore, to
sympathize whimsically with the weaker sections by selecting sub-standard candidates, and
that also in the higher level of education, is to punish the society as a whole by denying the
prospect of excellence.
There is no denying the fact that there exist weaker or backward classes in the society which
need special care and attention for their development. In fact, uniform development of society
is not possible without the development of backward classes. But reservation is not the only
means for the development of backward classes and that also in the higher level of education
which aims at quality education.98 But, in the modern time, the determination of the backward
class has itself become a matter of huge controversy. Therefore, first of all, proper procedure
and criteria should be laid down to determine the real backward classes of the society who
98
Rakesh Basant and Gitanjali Sen, Who Participates in Higher Education in India? Rethinking the Role of
Affirmative Action, , W.P. No. 2009-11-01 (November 2009).

31
need special attention. Caste should not be considered as relevant criteria for determination of
backwardness as it is against the constitutional principle. Rather poverty, geographical
location, educational level and occupation may be considered as relevant criteria. A statute in
this regard is the need of the time to avoid arbitrariness and confusion in the determination of
backward classes. The Law Commission of India, the National Commission for Scheduled
Caste and Scheduled Tribe and the National Commission for Backward Classes can
successfully help in framing a statute in this regard.99

Permissible reservation at the lowest or primary rung is a step in the direction of assimilating
the lesser fortunate or backward classes in the mainstream of society by bringing them to the
level of others which they cannot achieve unless protectively pushed. Once that is done the
protection needs to be withdrawn in the own interests of ‘the protected’ so that they develop
strength and feel confident of stepping on higher rungs on their own legs shedding the
crutches. Pushing the protection of reservation beyond the primary level only keep the
cripples, crippled forever.100
Thus, the primary duty of the state is to provide quality primary and secondary education to
all children, especially the children belonging to backward classes. A recent World Bank
study has revealed the poor condition of India’s primary and secondary education. 101 The
report brings to light the poor gross enrolment rate (GER) of students at the secondary level.
The report reveals grim overall GERs for Bihar (21%), Rajasthan (43%), Chhattisgarh (44%),
Uttar Pradesh (49%), and even Haryana and Punjab, which have only about 50% GERs at
lower secondary level and lesser enrolments of 32% and 28% respectively at upper secondary
level. The report further reveals that only 65% of the villages have schools within 5 km
radius as prescribed by the government. In 35% villages, secondary school students have to
commute for more than one hour to attend school. At upper secondary level, only 635
villages have schools in the listed 10 km radius. Even in high-income states like Haryana,
Punjab and Himachal Pradesh, 19, 17 and 5 percent villages, respectively, do not have
accessible secondary schools.102

99
Mehbubul Hassan Laskar, RETHINKING RESERVATION IN HIGHER EDUCATION IN INDIA, ILI
Law Review 25 (2010).
100
D.D. Basu, 2 Commentary on the Constitution of India 1827 (2007).
101
Reported in The Tribune 1, October 8, 2009.
102
Rakesh Basant and Gitanjali Sen, Who Participates in Higher Education in India? Rethinking the Role of
Affirmative Action, , W.P. No. 2009-11-01 (November 2009).

32
The report clearly reveals the poor and deplorable state of India’s primary and secondary
education. Thus, what is needed is not reservation in higher education but accessible and
quality primary and secondary education so that the students belonging to backward classes
can also successfully compete with other students and thereby further enhance their
intellectual capacity.
Moreover, it is to be remembered that backwardness is also closely related to poor economic
condition. Hence, the right approach would be to provide scholarships and other financial
assistance at the higher level of education to the meritorious students belonging to backward
classes rather than forcing reservation.
In order to make the students belonging to backward classes “natural competitors”, coaching
schools and institutes should be established and free coaching should be provided to them. It
is high time that the society should stop underestimating the calibre and talent of the students
belonging to backward classes by providing further reservation.
In fact, reservation can never be a substitute for the upliftment of the weaker sections on the
social and economic plane. Reservation was meaningful at the commencement of the
Constitution as a temporary measure, at a time when the state was required and expected to
promote with special care, the educational and economic interests of the weaker sections of
the people, and in particular the scheduled castes and scheduled tribes. The Constitution did
not envisage non-implementation of the directive principles of the policy set out in articles
41, 45 and 46 even after sixty years and continuing reservation indefinitely. Sixty years is too
long a period to continue reservation without undertaking promotion of the educational and
economic interests of the weaker sections in a time bound manner. Neglecting educational
and economic interests of the backward classes and continuing to provide only reservation is
against the tenor of the Constitution and the judiciary is not powerless to correct this serious
lapse on the part of the state.103

It is really very appreciable and welcome step that the judiciary has frowned upon any type of
reservation in super-specialty courses. In Mohan Bir Singh Chawla v. Punjab University,104
the Supreme Court said that at higher levels of education it would be dangerous to depreciate
merit and excellence. The Court thus declared, “The higher you go in any discipline, lesser
should be the reservation of whatever kind.” 105 It is high time that the judiciary should move a
step further and say “no reservation” in higher education, which is so important for the
103
P.P. Rao, “Right to Equality and Reservation Policy”, 42 JILI page no. 2000. .
104
AIR 1997 SC 788.
105
See also, Preeti Sagar Srivastava (Dr.) v. State of M.P, AIR 1999 SC 2894.

33
greater progress of the nation. Let us allow the right to equal opportunity in education to
bloom for the best eligible students. Let us make the peoples‟ right to education and standard
of education vibrant, striving toward “excellence”, so that the nation constantly rises to the
highest levels of endeavour and achievement.
Before concluding, I remember the words of our late Prime Minister Pt. Jawaharlal Nehru
when he said about 60 years back: “I am grieved to learn of how far this business of
reservation has gone based on communal consideration…. This way lies not folly, but
disaster. Let us help the backward groups by all means, but never at the cost of efficiency.” 106
It is high time that we should rethink over the reservation policy, impartially and objectively,
keeping in mind the changing global scenario and the role that India should play in this
competitive global arena. Let us move towards the right direction…

106
D.D. Basu, 2 Commentary on the Constitution of India 1827 (2007).

34