This article is written by Tarun Dogne and further edited by Priyanka Jain. The article is an exhaustive analysis of the case of Ashoka Kumar Thakur vs. Union of India (2008). The facts of the case, its background, the arguments advanced by both parties, as well as the judgement and the rationale behind the same, have been discussed, while referring to the relevant legal provisions and precedents. This case dealt with the issue of reservation in educational institutions, with respect to the Constitution (Ninety-third) Amendment Act, 2005 and the Central Education Institutions (Reservation in Admissions) Act, 2006.

Introduction

In India, there are many underprivileged people, particularly classes or groups of people who, in the past, were given the tag of an inferior caste or a low status. These groups do not hold equal status in society. Since independence, every government has committed to eradicating this social inequality from our society. India has a long history of being a caste-based society and with time, it seems to have become more rigid in nature. The founding father of our Constitution, B.R. Ambedkar wished for a casteless and classless society in India. Article 15  (prohibition of discrimination on grounds of religion, race, caste, sex or place of birth) and Article 46 of the Constitution (promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections)  are the main reflections of this particular idea. 

In India, there are separate departments in the state government to overlook the welfare policies for Scheduled Castes (SCs), Scheduled Tribes (STs), and Other Backward Classes (OBCs). There also exist several NGOs and Unions that voluntarily promote the welfare of the weaker sections of our society. The Government has also continuously been increasing its expenditure on welfare programs for the same. Our Constitution provides provisions for adequate representation of the weaker sections of the society in the legislature, as well as in services and education.

Reservation is one of the tools for the purpose of upliftment of the weaker section of the society. Initially in India, the benefit of reservation was only limited to the Scheduled Caste (SCs) and Scheduled Tribes (STs) but after the recommendations by the Mandal Commission Report, Other Backward Classes (OBCs) were also included in the scope of reservation. There are differing opinions on reservations in educational institutions and public employment. There have been many protests and various petitions in the Supreme Court as well as in High Courts, both against and in favour of the same. There are various arguments from both sides. Some say reservation may create reverse discrimination, while some argue that it is unfair to isolate certain sections of society from education or any other basic facilities and opportunities.

The case of Ashoka Kumar Thakur vs. Union of India (2008) primarily looked into this issue of whether reservations in educational institutions, for weaker sections of society, are constitutionally valid. This was discussed with respect to the Constitution (Ninety-Third) Amendment Act, 2005 and the Central Educational Institutions (Reservation in Admission) Act, 2006

To learn more about the 93rd Amendment Act, click here.

Background of the case

The Central Educational Institutions (Reservation in Admission) Act, 2006, was passed by the Parliament, post the 93rd Amendment Act. Section 3 of this Act, provides a reservation of 15% for Scheduled Castes, 7.5% for Scheduled Tribes, and 27% for Other Backward Classes in central educational institutions. This Act applies to all aided educational institutions, including minority institutions. The aim of this Act is to achieve social justice by enabling equal opportunities to access higher education. 

In India, state-maintained or aided educational institutions have very limited seats, compared to unaided educational institutions. The Parliament enacted the Constitution (Ninety-Third Amendment) Act, 2005, to bring private, unaided educational institutions under the ambit of the reservation policy of the state and promote the educational interests of the weaker sections of society. This amendment widened the scope of the state’s ability to make special provisions. Article 15(4), added by the  Constitution (First Amendment) Act, 1951, mentioned educational advancement, but the term “admission to the educational institutions” was not included. The 93rd Amendment Act added Article 15(5), which allows the government to make laws for the betterment of SEBCs, SC/STs and OBCs. Such laws shall be applicable to both aided and unaided educational institutions. However, these laws shall not apply to institutions set up by minorities. Under this Article, the term “admission to the educational institution” was mentioned. So by adding clause 5 to Article 15, the Parliament, as well as State Legislatures, were empowered to make appropriate laws regarding reservation.

In 1955, the Kalelkar Commission, also known as the National Commission for Backward Classes, was set up under Article 340 (appointment of a commission to investigate the conditions of backward classes) of the Constitution. One of the objectives of this Commission was to identify the criteria on which identification of OBCs would be possible, but it failed to come up with any satisfactory solution to the problem. 

In 1980, the Mandal Commission was set up and it prepared a list that included 3743 backward classes, after considering factors such as social, economic, and educational backwardness. The Mandal Commission also came up with the recommendation of a reservation. The Commission recommended a 27% reservation of seats in educational institutions and government jobs for OBCs. This recommendation was implemented by the then Prime Minister, V.P. Singh, in 1990. Following this implementation, India witnessed some major protests across the country. People felt that this was not reasonable for two main reasons- first, this implementation would be a step towards a caste-based society, and second, OBCs are not entirely a disadvantaged section of society anymore. 

Details of the case

Name of the case: Ashoka Kumar Thakur vs. Union of India

Petitioner: Ashoka Kumar Thakur 

Respondent : Union of India

Case type: Civil Writ Petition 

Court: Supreme Court of India

Bench: The then Chief Justice of India K. G. Balakrishnan, Justice Arijit Pasayat, Justice C.K. Thakkar, Justice R. V. Raveendran, Justice Dalveer Bhandari

Date of Judgement: 10th April, 2008

Citation: (2008) 6 SCC 1138 

Facts of Ashoka Kumar Thakur vs. Union Of India (2008)

After the passing of the Central Educational Institutions (Reservation in Admission) Act, 2006, many petitions were filed, challenging its provisions. The constitutionality of the 93rd Amendment Act of 2005 was also challenged on various grounds. Initially, a bench of two Judges was set up to hear these writ petitions, but after considering the importance of this matter, all concerned petitions were referred to a constitution bench, hence the present case.

Issues raised

Ashoka Kumar Thakur vs. Union of India (2008) revolved around the validity of the Central Education Institution Act and the 93rd Amendment Act’s incorporation of clause (5) in Article 15. The following were the issues discussed with regard to the same:

• Whether the creamy layer should be excluded from the Reservation Act?
• What are the  different parameters for creamy layer exclusion? 
• Is creamy layer exclusion applicable to SC/STs?
• Can the Fundamental Right under Article 21A be accomplished without great emphasis on primary education? 
• Does the 93rd Amendment violate the basic structure of the Constitution?
• Whether the use of caste to identify SEBCs is in violation of secularism? 
• Whether Articles 15(4) and 15(5) are mutually contradictory, such that 15(5) is unconstitutional? 
• Whether Article 15(5)’s exemption of minority institutions from the purview of reservation violates Article 14 of the Constitution? 
• Whether the standards of review laid down by the U.S. Supreme Court are applicable to our review of affirmative action under Article 15(5) and similar provisions? 
• With respect to OBC identification, was the Reservation Act’s delegation of power to the Union Government excessive? 
• Whether the Central Educational Institutions (Reservation in Admission) Act, 2006, was invalid as it failed to set a time-limit for operation as well as a provision for periodical review? 
• What are the educational standards to be prescribed to identify a class as educationally backward?
• Would it be reasonable to balance OBC reservation with societal interests by instituting OBC cut-off marks that are slightly lower than those of the general category? 

Arguments of the parties

Here are the main arguments rendered by the parties to the dispute.

Petitioners’ arguments

• The petitioners mainly challenged the constitutionality of the 93rd Amendment Act, 2005. They contended that this amendment took away the principle of equality, which was the aim of our Constitution makers. The balance and structure of the Golden Triangle, comprising Articles 14 (equality before law), 19 (protection of certain rights), and 21 (protection of life and personal liberty), had been altered by this Amendment Act
• It was stated that Articles 15(4) and 15(5) are mutually exclusive and Article 15(5) excludes minority institutions, which is a clear deviance from the equality principle. The amendment created inconsistency between Articles 15(4) and 15(5) by taking away the power of the States to make reservations in minority educational institutions. Further, it is also against the goal of secularism, enshrined under the Preamble to the Constitution. Minority institutions are not severable from the purview of Article 15(5). Hence, the entire amendment must be declared invalid.
• Counsel for one of the petitioners, Mr. Harish Salve, contended that admission to educational institutions should be based solely on merit. If any law allows the State to prefer students with lesser merit over those who were more qualified to secure admission, it is ex facie discriminatory. It was further argued that Article 15(5) does not validate the Central Educational Institutions (Reservation in Admission) Act, 2006. Preferential admission solely on the basis of caste violates Article 29(2) of the Constitution, as laid down in the State of Madras vs. Srimathi Champakam Dorairajan (1951). Though Article 15(5) is an exception to Article 15(1), an excessive reservation could turn into reverse discrimination. The learned counsel also asserted that the introduction of this Act was not carried out with the aim of social advancement but was intended for political gain. Provisions of the Act are prima facie violative of Article 14 and the onus is on the State, to prove the need for such a provision. 
• Counsel for the petitioner contended that some members of designated backward classes are highly advanced in every aspect. They are at the top of that backward class. They are as socially, educationally, and financially forward as any other member of the forward class. They reap all the benefits of reservation for that backward class and hinder the progress of those who truly need such benefits. 
• It was argued that if Article 15(5) is permitted to remain in force, then, instead of achieving the goal of a casteless and classless society, India would be converted into a caste-ridden society. The country would forever remain divided on the basis of caste. One of the major points highlighted was that to determine educational backwardness, the level of education attained is considered. If half of the members of any designated backward class have reached the standard level of matriculation, they cannot be considered educationally backward anymore. As this is the yardstick test, the reservation of seats for technical education, higher education or institutes of higher learning is not worthy. Further, it was argued that the Constitution guarantees primary or basic education under Article 21A. So a shift from basic education to higher education is a violation of the constitutional mandate guaranteed in the form of right to education.
• The petitioners were of the view that the 93rd Amendment Act, being “suspect legislation,” should be subjected to “strict scrutiny” as laid down by the United States’ Supreme Court and only by passing this test of “strict scrutiny” could such legislation be put into practice. The legislative declarations of facts are not beyond judicial scrutiny. The Court can decide the real intent of the statute and determine the constitutional validity of the Act. It was argued that the Act is subject to judicial review on the ground that criteria have not been laid down to identify OBCs and there was no compelling necessity other than political reason for vote bank politics.
• There is no rational basis for fixing the percentage of reservation for the Other Backward Classes. This percentage was decided on the basis of a survey that was conducted decades ago. It was pointed out by the petitioners that, in Indra Sawhney vs. Union of India (1992), the Hon’ble Court laid stress on appointment of a commission to identify and determine the criteria for determining social and educational backwardness.
• They also argued that the non exclusion of “creamy layer” was illegal and contrary to what was laid down by this Court in Indra Sawhney vs. Union of India (1992).
• Finally, the petitioners prayed that the 93rd Amendment Act and the Central Educational Institutions (Reservation in Admission) Act, 2006, be declared violative of the basic structure of the Constitution. The mandate of Article 368 (the power of Parliament to amend the Constitution and procedure thereof) was not complied with. Furthermore, the Central Educational Institutions (Reservation in Admission) Act, 2006, suffered from excessive delegation and was unguided.

Respondents’ arguments 

• The respondents stated that the contentions of the petitioners, challenging the 93rd Amendment to the Constitution and the impugned Act, are baseless and without any merit. Affirmative action by the State should be executed to secure the interests of the weaker sections of society. It is important to interpret the constitutional provisions in such a way that all their aspects work together and do not violate any other part of the Constitution.
• It was argued that the exclusion of the creamy layer was a bad policy. This would reduce the number of people who could use the reserved seats. Once the President of India determines the list of Scheduled Castes and Scheduled Tribes, they can be excluded only by any law made by Parliament. As far as OBCs are concerned, the principle of exclusion of creamy layers is applicable only to Article 16(4). It does not apply to Article 15(4) or 15(5), as education stands on a different pedestal.
• It was further submitted that in each State, the identification of backward classes was done on the basis of criteria evolved by the State Commissions, on social, educational, and economic parameters. Each State adopted its own special criteria. 

• The respondents asserted that building a casteless society was not the goal of the Constitution. Even carrying the caste name is a guaranteed right for citizens. The Constitution never tried to abolish the practice of caste and casteism. Every activity in Indian society, from cradle to grave, is carried out on the basis of one’s caste. For instance, every religion or caste has a different crematorium or graveyard for performance of last rites ceremony, etc. By ignoring castes, casteism would not subside. This idea is utopian.
• The learned senior counsel further submitted that there was no excessive delegation because the backward classes of citizens had to be identified on the materials and evidence. Therefore, the Parliament had no option but to leave it to the Executive. 

Judgement in Ashoka Kumar Thakur vs. Union Of India (2008)

The Supreme Court dismissed the writ petitions. The reservation of 27% of the seats in aided educational institutions for Other Backward Classes (OBCs) was upheld. The Constitution (Ninety-Third) Amendment Act, 2005 and the Central Educational Institutions (Reservation in Admission) Act, 2006, were decided to be constitutionally valid.

Furthermore:

• With respect to the reservation provisions, the creamy layer shall be excluded.
• Once every 5 years, the need for continuation of the concerned provisions, shall be checked.
• The Central Government shall determine the cut-offs for OBCs.
• The Union of India shall issue a Notification, for the identification of backward classes. This Notification can be challenged for the exclusion or inclusion of any section of society. 

Rationale behind the judgement

Whether the creamy layer must be excluded from Socially and Educationally Backward Classes (SEBCs)

Determination of SEBCs is not solely based on caste but includes several criteria, such as social and educational backwardness. All castes that face such backwardness have been included under the ambit of SEBCs. Hence, this is not violative of Article 15(1).

Economic factors are crucial in deciding who the benefits of a reservation should apply to. The concept of creamy layer was introduced because in any backward class, there also exist people who are economically advanced and capable of competing with the general community, and hence, do not require reservation. Non-exclusion of the creamy layer would enable these advanced people to take undue advantage. Arguments against the exclusion of the creamy layer state that it would lead to a lack of candidates from SEBCs who would be eligible to occupy the reserved posts in educational institutions. States such as Karnataka, Tamil Nadu and Andhra Pradesh have implemented the categorisation of backward classes into further subgroups to strive for a fair distribution of the benefits of reservation.

The Court was of the view that the exclusion of the creamy layer is essential to upholding the constitutional principle of equality. The purpose of Articles 15(4) and 15(5) is to raise the social and educational levels of disadvantaged groups, and those who reach them will not require such benefits anymore. Hence, exclusion of the creamy layer is required to correctly identify SEBCs and give them the help they truly need.

The parameters for application of the creamy layer 

On the basis of the Supreme Court’s decision in the Indra Sawhney case as well as the recommendations of an Expert Committee, the Government of India issued an Office Memorandum dated 8th September, 1993, which broke down the application of the 27% reservation. The following are the primary provisions laid down by it:

• 27% of the vacancies in civil posts and government services that would be occupied through direct recruitment are reserved for OBCs.
• Certain sections of socially advanced people are excluded from such reservations.
• Artisans or those carrying out hereditary occupations do not fall under the scope of these exclusion rules. 

The Court looked into the criteria behind exclusion of the creamy layer from the reservations for backward classes, as prescribed under Article 15(5). The stringent income-based standards that are utilised to identify the creamy layer do not have to be applied as strictly when dealing with reservations in central educational institutions, as per the Central Educational Institutions (Reservation in Admission) Act, 2006. If this income-based reservation is strictly applied, there could arise a lack of candidates from backward classes, who would be eligible to occupy the reserved seats in central educational institutions. To ensure this, the Union and State governments must establish the necessary guidelines to identify the creamy layer in such situations. “Backward class,”  as under Section 2(g) of the Central Educational Institutions (Reservation in Admission) Act, 2006, includes the principle of exclusion of the creamy layer. Therefore, backward classes must be identified with such an exclusion.

Whether the creamy layer principle is applicable to SC/STs

It was contended that the principle of creamy layer should also be applicable to Scheduled Castes and Scheduled Tribes. The K. C. Vasanth Kumar vs. State of Karnataka (1985) case observed that usually, both reserved and unreserved seats are occupied by the more advanced and fortunate members of a group. The concept of the creamy layer was established to identify the people of backward classes who truly need aid and to make sure that the benefits of reservation reach them. As established in the Indra Sawhney case, it does not apply to SC/STs. It is only applied to identify socially and economically backward classes. Other judgements, such as E.V. Chinnaiah vs. State of Andhra Pradesh and Others (2004), also reiterated the same. Hence, it was held by this Court that the principle of creamy layer would not apply to SC/STs.

Whether the fundamental right under Article 21A can be accomplished without great emphasis on primary education

This Hon’ble Court held that society must earnestly focus on the implementation of Article 21A, which provides for free and compulsory education, from day one. Only then would the dream of a casteless society be fulfilled. Justice Dalveer Bhandari wrote that the classroom is the first place where caste can be eradicated. If a student belongs to a lower-caste, but is well qualified, one would not care about his/her caste. 

He also observed that one of the main causes of social and educational backwardness is poverty. So, the focus should be on eradicating poverty rather than providing reservation. Children of the creamy layer have advantages such as studying in a school, affording coaches, etc., which is a luxury for OBCs of the non-creamy layer. So the students belonging to the creamy layer have a higher chance of out-performing the students belonging to the non-creamy layer. This would create cutthroat competition for non-creamy layers and, hence, violate the right to equality under Articles 14, 15 and 16.

Hence, the purpose of Article 21A cannot be achieved without emphasis on primary education.

Whether the 93rd Amendment Act violates the basic structure of the Constitution 

While deciding on this issue, the Court first specified that since private, unaided institutions were not mentioned in the petition, it would not decide on whether the amendment had any impact on them. The primary argument against this amendment is that it is in violation of the basic structure of the Constitution. The basic structure doctrine came into being in the case of Kesavananda Bharati vs. State of Kerala (1973), wherein it was observed that the Constitution, including the fundamental rights, can be amended, but some basic features, such as- supremacy of the Constitution, democratic form of government, secular character, separation of powers and federal nature, cannot be changed. With respect to the present case, it must be noted that though equality cannot be taken away as a whole, it is multi-faceted and some aspects of it can surely be altered.

On the basis of these observations, the Court decided that the 93rd Amendment Act, as far as aided educational institutions are concerned, did not violate the basic structure of the Constitution.

Whether the use of caste to identify SEBCs is a violation of secularism. 

With reference to the Indra Sawhney case, the Court was of the view that using caste as  a basis for reservation is currently valid. However, it must gradually shift towards an economic standard of classification. After another 10 years, the basis of the reservation must be solely based on financial conditions. 

Whether Articles 15(4) and 15(5) are mutually contradictory, such that 15(5) is unconstitutional

The Court stated that Articles 15(4) and 15(5) enable the State to make special provisions but do not make it mandatory to do so. The case of State of Madras vs. Champakam Dorairajan (1951) led to the introduction of Article 15(4) to permit reservations for SC/STs and SEBCs in aided minority institutions. Post the cases of T.M.A. Pai Foundation and others vs. State of Karnataka and others (2002) and P.A. Inamdar and Ors. vs. State of Maharashtra and Ors. (2005), which held that unaided institutions do not come under the control of the State, Article 15(5) was introduced in order to deal with the autonomy of unaided institutions. 

Articles 15(4) is concerned with aided minority institutions, while Article 15(5) deals with the unaided ones. This shows that they have different aims and do not contradict each other. With the phrase “nothing in this Article,” Article 15(5) acknowledges the prohibitions laid down under Article 15(1) and does not go against Article 15(4). Both of these Articles must be interpreted with reference to the special provisions made under them. The Court also observed that this amendment has not been challenged on these grounds by any educational institution. If the Parliament wished to make Article 15(4) exclusive, it would have deleted it completely.

Hence, the contention that Articles 15(4) and 15(5) are mutually exclusive and contradictory was rejected.

Whether Article 15(5)’s exemption of minority educational institutions from the purview of reservation violates Article 14 of the Constitution 

The Court was of the view that minority institutions receive special treatment under Article 30, which safeguards their right to set up and administer educational institutions. This is in line with the Constitution. The exclusion of minority institutions from Article 15(5) ensures that Article 30 is followed. This implies that the same is not a violation of Article 14.

Articles 15(4) and 15(5) can function together. The argument that the exclusion of minority educational institutions cannot be independent of the remainder of Article 15(5) does not stand. 

Whether the principles of affirmative action or reservation laid down by the U.S. Supreme Court are applicable to that under Article 15(5) of the Constitution of India 

The petitioner was of the opinion that the Central Educational Institutions (Reservation in Admission) Act, 2006, was “suspect legislation” and should be subjected to the “strict scrutiny” test, as seen in the United States, before being passed.

The Court first pointed out that the decisions of the US Supreme Court could not be applied in India since there exists a difference in the constitutional provisions and social conditions of both countries. For example, in Bhikaji Narain Dhakras & Ors. vs. The State of Madhya Pradesh & Anr. (1955) and A.S. Krishna vs. State of Madras (1957), this Court specifically held that the due process clause in the Constitution of the United States of America would not be relevant to India. Similarly, while dealing with the purview of Article 19(1)(g) of the Indian Constitution, the Court in Kameshwar Prasad and Ors. vs. State of Bihar and Anr. (1962) held that even though the US Constitution’s First Amendment prohibits the Congress from making any law that would go against the freedom of speech, it is implied that certain restrictions by the government’s police power are imposed on this freedom. With reference to these instances, this Court was of the view that though there exist similarities with respect to the idea of protection of fundamental rights, the legal and social backgrounds of India and the United States greatly differ, which hence calls for different legal interpretations.

Articles 14 and 18 of the Indian Constitution are structured differently than similar provisions in the US Constitution. These Articles include provisions aimed at the betterment of SEBCs, STs and SCs. Article 38 also calls for social, political and economic justice to reduce inequalities. Earlier, Articles 16(4) and 15(5) were seen as exceptions to the concept of non-discrimination. After multiple varying  judgements on the same, finally, in K. C. Vasanth Kumar vs. State of Karnataka (1985), it was held that the true essence of equality requires treating equals equally and unequals unequally, implying that Articles 16(4) and 15(5) are further explanations and not exceptions.

Article 15(5), which was introduced by the Central Educational Institutions (Reservation in Admission) Act, 2006, must be interpreted with respect to India’s constitutional structure. The Preamble, as well as the directive principles of state policy mandatorily require inequalities and backwardness to be eradicated from society by the State. Fundamental rights and directive principles of state policy, go hand-in-hand to achieve the goals of the Preamble. While fundamental rights were considered to be more important, cases such as the Re. Kerala Education Bill, 1957 and Minerva Mills Ltd. & Ors. vs. Union of India & Ors. (1980) established that the directive principles of state policy are equally necessary for a just society. The Minerva Mills case highlighted that, apart from political rights, a democracy needs social and economic justice as well. Through the directive principles, the State is bound to ensure socio-economic conditions that achieve justice and equality for everyone, and not just a select few sections of society. 

The U.S. has consistently faced the issue of racial discrimination. Their affirmative action programs involved the use of the “strict scrutiny” test. This test further requires “narrow tailoring,”  which encompasses serving specific groups without broadly impacting any other section. The programs are narrowly designed on this basis. The US Supreme Court in Grutter vs. Bollinger (2003), expressed that the Fourteenth Amendment provides protection to individual people and not groups. 

The Supreme Court of India stated that these principles applied in the US cannot be used in India since affirmative action here is completely backed by the Constitution. Laws in the US, which offer different treatment to people on the basis of their race, are strictly scrutinised, to ensure fairness. However, in India, every law is presumed to be valid unless proven otherwise. In Saurabh Chaudhari vs. Union of India (2003), the Supreme Court highlighted that the “strict scrutiny” test would not be applicable in India.

Hence, in the present case, this Court rejected the contention that the law on the classification of OBCs was not clear and that the legislation was questionable. There was no need for “strict scrutiny” and no urgency to challenge the Central Educational Institutions (Reservation in Admission) Act, 2006.

Whether the delegation of power to the Union Government regarding criteria for identification as backward class was constitutionally valid

The petitioners raised a concern about excessive delegation of power to the Union Government to determine the extent of the backward class, without any proper guidelines.

The Court held that “backward class” is not a new concept under the Constitution. For example, Article 340 authorises the President to form a commission to look into the conditions of the educationally and socially backward classes. Articles 15(4) and 16(4) deal with backward classes as well. The Court observed that under the Central Educational Institutions (Reservation in Admission) Act, 2006, the duty of identifying backward classes has been conferred on the Union since the Parliament would not be able to take care of this matter on its own. There are national as well as state commissions dealing with the affairs of backward classes. Guidelines for the same are already laid down, and if any undeserving section has been included under the ambit of backward classes, it can be challenged through judicial review. 

Therefore, the challenge to the Central Educational Institutions (Reservation in Admission) Act, 2006 on the ground that it gave the Union excessive powers of delegation, was dismissed by the Court. 

Whether the Central Educational Institutions (Reservation in Admission) Act, 2006, was invalid, as it failed to set a time-limit for operation as well as a provision for periodical review 

The petitioners argued that the 27% reservation allotted for backward classes had no time limit. This could lead to reverse discrimination, wherein those groups could receive an unfair advantage with the passage of time.

The Court observed that, while this was a valid issue, it was not feasible to set a time limit right from its inception. Over a period of time, depending upon the result of the measures taken and improvements in the status and educational advancement of the backward classes, the matter could always be reviewed. The Act cannot be struck down at its very commencement on the ground that no time limit for its operation has been fixed. 

Hence, it was decided that the Act was not invalid but should be reviewed at regular intervals.

Educational standards are to be prescribed to identify a class as educationally backward 

It was argued that the Central Educational Institutions (Reservation in Admission) Act, 2006, which provides for reservation in higher educational institutions, should not be applicable under Article 15(5). It was stated that the measure of educational backwardness must be limited to matriculation or 10 + 2.

The Court held that earlier, the aim was to improve primary and secondary education. However, in the present times, where there exist several arts, science and other professional colleges as well, this is not sufficient. Hence, on this basis, the petitioner’s contention that the measure of educational backwardness must be limited to matriculation or 10 + 2, was rejected.

Whether the quantum of reservation provided by the Central Educational Institutions (Reservation in Admission) Act, 2006, is valid

The petitioners argued that the Act must be held invalid on the ground that the socially and educationally backward classes do not require reservation.

With reference to the case of State of Rajasthan and Ors. vs. Union of India and Ors. (1977), the Court stated that legislation passed by the Parliament must only be challenged on constitutional grounds, such as whether the Parliament was authorised to pass such a law or if the law infringes upon any fundamental rights. The Court turned down the contention that this law was passed as a political motive and that it is also not an adequate reason to invalidate the law. The 27% reservation decided on by the Act was based on an analysis of detailed information. Several committees also looked into the matter before deciding which classes should be provided with reservation and to what extent. Furthermore, the petitioners failed to provide any evidence supporting their argument that a 27% reservation is not necessary. Therefore, the Court upheld this quantum of reservation and rejected a challenge to the Act on these grounds.

Whether it would be reasonable to balance OBC reservation with societal interests by instituting OBC cut-off marks that are slightly lower than that of the general category

The case of M.R. Balaji and Ors. vs. State of Mysore (1962) stressed that reservations must be reasonable. Institutions such as IITs and IIMs must set their own cut-offs to maintain their high standards. In other institutions, the cut-offs for OBCs must be halfway between those for SC/STs and the unreserved category. To avoid a large variation between the cut-offs for OBCs and the general category, the difference should not be more than 10 marks. Furthermore, it must be noted that if the non-creamy OBCs do not occupy the entirety of the 27% reservation, the remaining seats will go to the general category.

Whether the 93rd Constitutional Amendment followed the procedure laid down under Article 368 of the Constitution of India

Article 368 lays down the procedure for amending the Constitution and also points out that some amendments need a special process. The petitioners were of the view that the 93rd Constitutional Amendment was in violation of the procedure established by Article 368 and, hence, invalid. It was also stated that Article 15(5) intervenes in the executive powers of the State, under Article 162.

The Court pointed out that the powers of the Parliament and the State legislatures to make laws are laid down under Articles 245 to 255 of the Constitution. The Ninety-Third Amendment does not expressly or impliedly take away or interfere with the State’s executive powers. These powers are restricted under a provision of Article 162 by laws made by the Parliament, which is a common principle of the Constitution. Further, education, which was earlier on the State List, was shifted to the Concurrent List by the 42nd Amendment Act. 

On the basis of these observations, the Court decided that the 93rd Amendment does not violate any provision of Article 368.

Critical analysis of Ashoka Kumar Thakur vs. Union Of India (2008)

An important authority in the history of Indian jurisprudence is concerning affirmative action of the State and the right to equality in the most important aspects of education, which is the foundation of the progress of any State or country in the world. The success and development of any nation are the direct consequences of the educational standards of its population and the opportunities it creates. The Hon’ble Supreme Court upheld the constitutional validity of the Central Educational Institutions (Reservation in Admission) Act, 2006, which provided for 27% reservation for Other Backward Classes (OBCs) in educational institutions funded by the centre (“creamy layer” of OBCs was excluded). The creamy layer includes members of OBCs who have good financial and educational status. 

Reservation is nothing but a gentle push to the weaker sections of our society. If reservation is continued for a long period of time, it would create a permanent caste-based society. In our Constitution, there is no mention of the aim of abolishing the caste system from society. However, our Constitution does prohibit any kind of discrimination on the basis of caste (Article 15). The Constitution seeks equal status for all citizens in our country.

The Hon’ble Court focused on the principle that affirmative action by the State, is necessary to address socio-economic injustice towards any of the backward classes. Reservation are a tool to improve social participation in government functions and provide ambience and opportunities for backward families to grow and move ahead. The creamy layer doctrine was discussed to eradicate any sort of favoritism or bias towards any of the backward classes. The Court excluded the creamy layer from availing reservation benefits for OBCs. The creamy layer has achieved enough to cope with the challenges of backwardness. These members can compete equally with the other sections of our society. Reservation should only be granted to those who are disadvantaged.

The Court further highlighted the importance of merit over means. Reservation should not act as a barrier to meritorious students. One should not be disadvantaged because of reservation policies. There should be a balance between merit and backwardness. If merit is compromised, then equality will be violated. The Court struck a balance by excluding the creamy layer from receiving the benefits of reservation policies.

This decision had the consequence of providing exposure in terms of education to different strata of society, which may help in developing a good personality and life. Further, this judgement has fostered a sense of belongingness in the masses and has improved the prospect of achieving a society where every voice is heard and the right to education faces no barrier.

Conclusion

The Ashoka Kumar Thakur vs. Union of India (2008) judgement reiterates the need for balance between affirmative action and merit. The aim is to provide social and educational upliftment. However, caste must not be the primary criteria for the same. A multi-faceted approach must be adopted. Reservation policies must achieve their purposes without violating the basic structure of the Constitution. This is a notable case that clarifies the crucial issues arising out of the concept of reservation.

Frequently Asked Questions (FAQs)

What is the creamy layer?

Creamy layer is the analogy for the more affluent section of any class. Such persons are economically sound and educated. They possess the means to compete equally with the general category of society.

What is the main issue with this judgement?

The main issue was concerning the 27% reservation for Other Backward Classes (OBCs) in educational institutions.

What was challenged in this case?

The Central Education Institution Act and the Constitution (93 Amendments) Act’s incorporation of clause (5) in Article 15 was challenged in this case.

What was the Supreme Court’s verdict in this case?

The Hon’ble Supreme Court decided to reserve 27% of the seats in educational institutions for Other Backward classes, excluding the creamy layer.

Why did the Supreme Court exclude the creamy layer from reservation in educational institutions?

The Hon’ble Supreme Court held that the creamy layer or the economically advantaged section of society, can easily afford tuition fees and other amenities like coaching, etc., which the economically disadvantaged do not have access to.

References

• https://www.deccanherald.com/opinion/reservations-can-help-and-hurt-too-2785772 
• https://realitycheck.wordpress.com/2015/03/22/how-congress-pursued-its-invidious-legislative-agenda-post-win-in-2004-history-of-the-93rd-const-amendment/ 
• https://www.jetir.org/papers/JETIR2105660.pdf 

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