Introduction

Basis of the Constitutional Challenge

It was the contention of the Petitioners that the reservation policy which was intended as a means of social engineering had now become a measure of reparation. The petitioners inter alia alleged that the Constitution (Ninety-Third Amendment) Act, 2005 was against the “basic structure” of the Constitution and that it abridged the principle of equality guaranteed and protected under Article 14 read with Article 15 of the Constitution. The said Amendment Act along with the Central Educational Institutions (Reservation in Admission) Act, 2006 (enactment Act 5 of 2007) was further sought to be challenged on the ground that identification of OBC was made on the basis of caste. Interestingly the legislation was also sought to be challenged on the ground of being a “part of the vote catching mechanism” and therefore as being unreasonable.

Landmark Judgment of the Supreme Court of India deciding the above issues

In 2008, a constitution bench of the Supreme Court of India (“the Supreme Court”) in Ashoka Kumar Thakur v. Union of Indiaconclusively adjudicated on the abovementioned issues and held the Constitution (Ninety-third Amendment) Act, 2005 as well as the enactment Act 5 of 2007 to be constitutional, but yet the issue is far from settled. New writ petitions are being filed in various High courts across the country and various High Courts have been interpreting the said judgment of the Supreme Court variously.

Fundamental questions which need to be addressed

Let us discuss the fundamental constitution questions arising from the above matters with special reference to the challenges faced by the policy of reservations in India. The fundamental constitutional issues to be discussed may be classified as follows:

What is the basic structure of the Constitution?

One must start the discussion with by referring to the Landmark judgment of the Supreme Court in the case of Keshavananda Bharati v. State of Kerela. The Supreme Court observed that the basic structure of the Constitution is not a vague concept. The elements of the basic structure are indicated in the preamble of the Constitution and translated in its various provisions. The edifice of the Constitution is built upon and stands on several props, remove any of them, the Constitution collapses. If the historical background, the Preamble, the entire scheme of the Constitution, the relevant provisions thereof including Article 368 are kept in mind there can be no difficulty in discerning that the following can be regarded as the basic elements of the Constitutional structure.

The constituents of the basic structure of our Constitution can be only illustrative (i) The supremacy of the Constitution. (ii) Republican and Democratic form of Government and sovereignty of the country.(iii) Secular and federal character of the Constitution.(iv) Demarcation of power between the legislature, the executive and the judiciary.(v) The dignity of the individual (secured by the various freedoms and basic rights in Part III and the mandate to build a welfare State contained in Part IV).(vi) The unity and the integrity of the nation. In addition, the following may also be referred to as the basic elements of the constitution (1) Sovereign Democratic Republic; (2) Justice, social, economic and political; (3) Liberty of thought, expression, belief, faith and worship; (4) Equality of status and of opportunity. Each one of these is important and collectively they assure a way of life to the people of India which the Constitution guarantees.

To withdraw any of the above elements the structure will not survive and it will not be the same Constitution, nor can the Constitution maintain its identity, if something quite different is substituted in its place, which the sovereign will of the people alone can do. In this case, the Supreme Court further held that it should only be the Constituent Assembly which is empowered either to amend the basic features of the Constitution and the said power cannot be conferred on the Parliament. Although much of the credit for the evolution of the “basic structure doctrine” goes to the decision of the Supreme Court in the Kesavananda Bharthi  case, contrary to popular belief, the seeds of the said doctrine were sown by J. Mudholkar in the case of Sajjan Singh v. State of Rajasthan. It was J. Mudholkar who for the first time coined the term “basic features of the constitution”. In the case of Sajjan Singh he observed:

“We may also have to bear in mind the fact that ours is a written Constitution. The Constituent Assembly which was the repository of sovereignty could well have created a sovereign Parliament on the British model. But instead it enacted a written Constitution, created three organs of State, made the union executive responsible to Parliament and the State executives to the State legislatures; erected a federal structure and distributed legislative power between Parliament and the State legislatures; recognised certain rights as fundamental and provided for their enforcement; prescribed forms of oaths of office or affirmations which require those who subscribe to them to owe true allegiance to the Constitution and further require the members of the Union Judiciary and of the higher judiciary in the States, to uphold the Constitution. Above all, it formulated a solemn and dignified preamble which appears to be an epitome of the basic features of the Constitution. Can it not be said that these are indicia of the intention of the Constituent Assembly to give a permanency to the basic features of the Constitution?”

In 2007, the Supreme Court in the case of I.R. Coelho (Dead) By LRs. v. State of Tamil Nadu and Orsbuilt upon another doctrine, the “golden triangle doctrine” and the “rights test” to supplement the basic structure doctrine. In this case the Supreme Court only reiterated what was held in the case of Waman Rao and Ors. v. Union of India, but diffused the rigidity and to a certain extent even the efficacy of the basic structure doctrine. The Supreme Court in this case referred to various observations made in earlier cases to justify that the fundamental rights were a part of the basic structure of the constitution. It relied heavily on certain observations of Justice H..R. Khanna made in the case of Indira Gandhi v. Raj Narain wherein he had observed

“There was a controversy during the course of arguments on the point as to whether I have laid down in my judgment in Kesavananda Bharati's case that fundamental rights are not a part of the basic structure of the Constitution. As this controversy cropped up a number of times, it seems apposite that before I conclude I should deal with the contention advanced by learned Solicitor General that according to my judgment in that case no fundamental right is part of the basic structure of the Constitution. I find it difficult to read anything in that judgment to justify such a conclusion. What has been laid down in that judgment is that no article of the Constitution is immune from the amendatory process because of the fact that it relates to a fundamental right and is contained in Part III of the Constitution....”

Thus, the basic structure of the Indian Constitution has been well defined by the Indian Judiciary.           

Can Caste be the basis for determination of OBC?

The history of reservations in India can be traced back to the cases of State of Madras v. Srimathi Champakam Dorairajan and Venkatraman v. State of Madras. In these cases the Indian Supreme Court held that any legislation and/or executive order prescribing reservations on the basis of caste were unconstitutional. Soon after the said two decisions the Parliament intervened and in exercise of its constituent power amended Article 15 by inserting Clause (4) which states that “Nothing in this article or in Clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.” It is also profitable to note that the said amendment was brought about by the very same constituent assembly which drafted the Indian Constitution.  Then came up the issue of the ceiling on reservation which was dealt by the Court in the M.R. Balaji v. State of Mysore wherein it was held that under no circumstances can the reservation exceed 50%. Meanwhile, the issue regarding the determination of socially and educationally backward classes was always of grave concern. Article 15(4) does not define ‘backward classes’.

In Balaji, it was said that ‘caste’ may be a relevant factor, but not the sole criteria nor the dominant criteria for determination of backward class.  In that case, the order of reservation was declared bad as it was based solely on caste without regard to other relevant factors. In Janki Prasad Parimoo v. State of J & K, it was held that poverty alone cannot be the test of backwardness as large sections of population in India are backward and thus the whole object of reservation would be frustrated. In Chitralekha v. State of Mysore, an order saying that a family whose income was less than Rs. 1200 per year and followed such occupation as agriculture, petty business, inferior services, crafts, etc would be treated as backward, was declared valid though caste as a criteria was totally ignored for the purpose. It was held that identification of backward classes on the basis of occupation-cum-income, without reference to caste is not bad and would not offend Art. 15(4).

In the course of time, judicial view underwent considerable change and more importance was given to ‘caste’ as a factor to assess backwardness. In P. Ranjendran v. State of Madras it was held that though ‘caste’ cannot be the sole criteria, it should not be forgotten that caste is also a class of citizens and if the caste as a whole is socially and educationally backward, reservation can be made in favour of such caste. In S.V. Balaram v. State of Andhra Pradesh, a list of backward class based solely on caste with material proving that those castes were socially and educationally backward, was held to be valid. But in State of Andhra Pradesh v. P.Sagar, a list of backward class based solely on caste without any material showing that the entire caste is backward, was quashed as violative of Article 15(4). In K.S. Jayasree v. State of Kerela, a person belonging to the backward class but family income exceeding Rs. 10000, was denied the benefit of reservation as it was held that caste could not be treated as the sole or dominant test for the purpose and poverty too had too be taken into account. It was held that neither poverty nor caste can be sole factors for determining backwardness. Caste and poverty are both relevant factors for determination of backwardness.

In Jagdish Negi v. State of Uttar Pradesh, it was made clear that no class of citizens can be perpetually treated as socially and educationally backward and the State is entitled to review the situation from time to time. In Indra Sawhney v. Union of India, the Court observed that the policy of reservation has to be operated year wise and there cannot be any such policy in perpetuity. Further it also held that Art. 15(4) does not mean percentage of reservation should be in proportion to the percentage of population of the backward classes to the total population and that it was the State’s discretion to keep reservation at reasonable level by taking into consideration at all legitimate claims and relevant factors. In Ashok Kumar Thakur v. Union of India, Justice Balakrishnan, CJ, did not lay down any new principle for determination of backward classes, but followed the principle as was laid down in earlier judgments. The question dealt was whether the list formulated by the National Commission for the Backward Classes and the State Commission of Backward Classes has considered all relevant factors and criteria apart from caste for determination of backwardness.

Various commissions had held public hearings at various places for determination of backward classes. National Commission held 236 public hearing before it finalized the list. National Commission recommended 297 requests for inclusion and at the same time rejected 288 requests for the inclusion in the final list. The Commission had taken into consideration detailed data with regard to social, educational and economic criteria. It had also looked into whether there had been any improvement or deterioration in the condition of the caste or community (mentioned in the final list) during the past 20 years. Thus Justice Balakrishnan, in his judgment held that identification of OBC’s was not done solely based on caste. Other Parameters were followed in identifying the backward class. Thus Act 5 of 2007 is not invalid for such purpose. Justice Dalweer Bhandari, in his dissenting opinion raised various important points. He stated that the ultimate goal of the Constitution is to have a casteless society and determining backwardness on the basis of caste would instead give a fresh lease of life to caste system in India. He propounded that economy should be the sole criteria for determining backwardness and that any proposed affirmative action must be time bound.

The authors most respectfully wish to differ from the opinion of Hon’ble Justice Dalveer Bhandari. We agree with the majority opinion of Justice KG Balakrishnan that caste ought to be considered as a major criterion for determination of backwardness. Caste system has been prevalent in India since time immemorial. Every individual belongs to some caste or the other. The backwardness of people in India can be traced to the caste they belonged to. Every caste is associated with a particular occupation. That relation could not be severed. An example cited was in the case by learned Counsel Ravivarma Kumar, appearing for the Union of India, that throughout the country in 6.5 lakh villages, it is the barber communities and the barber communities alone, which carry on the traditional occupation of hair cuttings and no other community has taken up the said occupation. Though it may be said that people have deviated from that occupation and became doctors, engineers, lawyers, etc, but these people form a very small number. This caste-occupation nexus exists till date in the India. Thus the whole caste on the basis of the occupation they follow could be called backward.

Thus caste as a criterion cannot totally be ignored. As far as people belonging to these castes, but economically and educationally well off, are concerned, they would fall within the creamy layer (discussed in the next sub section) and would thus be denied the benefit of reservation. Thus no person would be wrongfully granted the benefits of reservation. As far as the goal of forming a casteless society is concerned, it is not reasonable to expect to achieve such goal in the immediate future. Till such time, affirmative action needs to be adopted for the advancement of castes which are backward. When it is felt that these castes have become sufficiently advanced, then caste as a criteria for backwardness can be disposed off. However, we concur with Justice Bhandari on the view that time limit needs to be propounded for caste-based reservation.

What is the basis for exclusion of the creamy layer from the ambit of reservations?

This was by far the most important issue before the Supreme Court in -Ashok Kumar Thakur v. Union of India. The Hindi version of the Reservation Act which had excluded creamy layer from the ambit of reservation was rejected by the Parliament and the English version of the Reservation Act which did not exclude creamy layer from the benefit of reservation, was accepted. Thus the intention of the Parliament was clear that they wanted to include creamy layer for the purpose of reservation. The term ‘creamy layer’ in simple words means the elite from the lowest caste. Popular perception is that this term was first coined in Indra Sawhney v. Union of India.

Contrary to popular belief, the said term was first coined by Justice Krishna Iyer, in State of Kerela v. N.M. Thomas, wherein he observed that ‘benefits of the reservation shall be snatched away by the top creamy layer of the backward class, thus leaving the weakest among the weak and leaving the fortunate layers to consume the whole cake’. This term was cited again by Justice Krishna Iyer in Akhil Bhartiya Soshit Karamchari Sangh v. Union of India and by Justice Chinnapa Reddy in K.C. Vasanth Kumar v. State of Karnatakaraising similar concerns. The roots of this concept can however be traced back to the case of K.S. Jayashree v. State of Kerela wherein the people belonging to backward class, but whose family income exceeds Rs. 10000, were denied the benefit of reservation.

However, in Indra Sawhney v. Union of India the Supreme Court dealt with “creamy layer” at length. That case dealt with reservation of backward classes in case of public employment. Justice Jeevan Reddy stated that ‘creamy layer’ can be, and must be excluded from the purview of reservation. He emphasized that upon a member of a backward class, reaching an advanced social level or status, would no longer belong to the backward class and would have to be weeded out. After excluding the creamy layer alone, would the class be a compact class and such exclusion would benefit the truly backward. The Supreme Court had observed that ‘the backward class under Art. 16(4) means the class which has no element of creamy layer in it. It is mandatory under Art. 16(4) that the state must identify the creamy layer in a backward class and thereafter excluding the creamy layer extend the benefit of reservation to the ‘class’ which remains after such exclusion.’

In Ashok Kumar Thakur v. State of Bihar, unreasonable conditions were prescribed to identify the creamy layer. Unlike in Indra Sawhney case wherein it was stated that children of any IAS or IPS officer would be denied the benefit of reservation, in Ashok Kumar Thakur v. State of Bihar an additional condition was laid down that the IAS or IPS officer should also be earning a minimum salary of Rs. 10000 per month, which condition was quashed as discriminatory. In Indra Sawhney v. Union of India (II), also known as the Kerala creamy layer case, the Kerela Legislature passed an Act declaring that there would be no creamy layer in the State of Kerela. The Supreme Court in this case further explained the rationale underlying the rule of exclusion of creamy layer. As the creamy layer is not entitled to the benefits of reservation, non-exclusion thereof would be discriminatory and violative of Articles 14 and 16. Thus the Act was declared unconstitutional.

The above cases were with respect to the exclusion of creamy layer from reservation in public employment. The issue of exclusion of creamy layer from reservation in educational institutions was dealt with in Ashok Kumar Thakur v. Union of India. The main contention raised by counsels appearing for the Respondents regarding inclusion of creamy layer for the purposes of reservation centered on the idea that the objective of reservation under Article 15 and Article 16 is different. The contention was that reservation under Article 15 is not a poverty alleviation programme nor is it a programme to eradicate unemployment and nor is it a programme to educate all the backward classes. It is to bring about equality among different castes. Therefore it was contended that if the lower castes are deprived of the facilities and opportunities in the name of the creamy layer, then it will be counter productive and would frustrate the very object of reservation, namely to achieve equality in status, facilities and opportunities.

Chief Justice K.G. Balakrishnan, addressing the aforesaid contention said that the people belonging to the backward caste, but being economically advanced do not require the protection of reservation. He stated that the creamy layer principle is introduced merely to exclude a section of a particular caste on the ground that they are economically advanced and educationally forward and unless they are excluded, there cannot be proper identification of backward class. If creamy layer is not excluded, then that would mean that identification of OBCs would be solely on basis of caste and thus violative of Article 15(1) and 16(1). Moreover reservation of OBCs under Article 15 is designed to provide opportunities in education thereby raising educational, social and economic levels of those who are lagging behind.

By excluding those who have already attained economic well being or educational advancement, the special benefits provided under these clauses cannot be further extended to them and if done so, it would be unreasonable, discriminatory or arbitrary, resulting in reverse discrimination. Thus, if the creamy layer is not excluded, the identification of OBC will not be complete such non-exclusion of 'creamy layer' may not be in accordance with Article 15(1) of the Constitution. The word ‘social’ under Article 15(4) and 15(5) is much wider and also includes ‘economically.  Former Prime Minister of Indian Mr. Jawaharlal Nehru said that ‘economic’ was included in the ‘social’ portion of ‘social and educationally backward’. Only ‘social and educationally backward’ was added under Article 15 so as to maintain symmetry with Article 340 also. Had it not been for a desire to achieve symmetry in drafting, ‘economically’ would have been included. Had this been done, the creamy layer would have been excluded ab initio. Thus the objective of the founding fathers is very clear that they intended to exclude creamy layer from the benefits of reservation.

The persons included in the creamy layer are already advanced and can be compared to the so called forward section of the society. They can be treated as equals with the forward section of the society. Thus the contention that exclusion of creamy layer would not bring about equality as those people would remain backward, is not well founded. Instead inclusion of creamy layer would mean unequal persons being treated as equal thus being violative of Article 14, 15 and 16. Another important issue with regard to the creamy layer controversy is whether the restrictions imposed on the creamy layer would apply in case of Schedule Caste and Schedule Tribes also. The Supreme Court held that ‘creamy layer’ is a parameter to identify backward class. Therefore this principle cannot apply to SCs and STs as they are separate classes by themselves.

The authors most respectfully differ from the said view of the hon’ble Court. The Court seems to have assumed that there is no creamy layer from amongst the persons belonging to SCs and STs. The whole purpose of reservation is to see to it that backward classes advance forward. For over 58 years, reservations have been given to SCs and STs and it would be expected that certain sections of SCs and STs would have advanced or will advance forward (socially and economically). The same logic and the same rationale as it applies to OBCs, should also apply to SCs and STs with respect to exclusion of creamy layer. It was observed in M. Nagraj v. Union of India, that creamy layer from SCs and STs also needs to be excluded. The Supreme Court seems to have overlooked the said observation.

Can legislation in India be challenged only the ground that it is unreasonable?

“Unreasonably Constitutional”, as ironic as it may sound, a Constitution Bench of the Supreme Court of India headed by the Hon’ble Chief Justice of India has, in the case of Ashok Kumar Thakur v. Union of Indiainter alia held that a legislation with adequate legislative competence cannot be challenged simply on the ground of unreasonableness because that by itself does not constitute a ground for challenge. Lack of intelligible differential and/or reasonable classification has been held to be the only grounds for challenging legislation if the Legislature is otherwise competent to legislate on the subject. In the said Judgment, the Supreme Court further went on to hold that the doctrines of “Strict Scrutiny”, “Compelling Evidence” and “Suspect Legislation” followed by the American Judiciary have no application to Indian Constitutional Law. Certain prior judgements of the Supreme Court of India which had explicitly laid down that a legislation/ Statute can be constitutionally challenged on the basis of it being unreasonable were not referred to or distinguished from by the Supreme court in the said case. The fundamental constitutional question involved is whether the ratio laid down by the Supreme Court militates against the essence of the Articles 14, 19 and 21 of the Constitution of India and consequently whether it impliedly overrules the “Golden Triangle Doctrine” as propounded by the Supreme Court in the case of Minerva Mills v. Union of India.