Reservation for OBC’s in Educational Institutions - Constitution (Ninety-Third Amendment) Act, 2005 is Constitutionally valid

Constitution 93rd Amendment Act, 2005, is valid and does not violate the "basic structure"

The Supreme Court in this case held that Constitutional Amendment - Ninety-Third Amendment of the Constitution is not against the "basic struc-ture" of the Constitution, it does not violate the "basic structure" of the Con-stitution so far as it relates to the state maintained institutions and aided educational institutions. The question whether the Constitution (Ninety-Third Amendment) Act, 2005 would be constitutionally valid or not so far as "private unaided" educational Institutions are concerned, left open to be decided in an appropriate case. Following was the Judgment By Court

1. The Constitution 93rd Amendment Act, 2005, is valid and does not violate the "basic structure" of the Constitution so far as it relates to the State maintained institutions and aided educational institutions. Question whether the Constitution (Ninety-Third Amendment) Act, 2005 would be constitutionally valid or not so far asir "private unaided" educational institutions is concerned, is not considered and left open to be decided in an ap-propriate case.

2. Justice Bhandari, in his opinion, has, however, considered the issue and has held that the Constitution (Ninety-Third Amendment) Act, 2005, not constitutionally valid sofar as private un-aided educational institutions are concerned.

3. Act 5 of 2007 is constitutionally valid subject to the definition of'uther Backward Classes' in Section 2(g) of the Act 5 of 2007 being c' -ified as follows. If the determination of 'Other Backward Classes' by the Central Government is with reference to a caste, it shall exclude the 'creamy layer' among such caste.

4. Quantum of reservation of 27% of seats to Other Backward Classes in the educational institutions provided in the Act is not illegal.

5. Act 5 of 2007 is not invalid for the reason that there is no time limit prescribed for its operation but majority of the Judges are of the view that the Review should be made as to the need for continuance of reservation at the end of 5 years.

Regarding reservation for Backward Classes the Supreme Court answered the questions as following -

1. Whether the Ninety-Third Amendment of the Constitution is against the "basic structure" of the Constitution?

The Constitution (Ninety-Third Amendment) Act, 2005 does not violate the "basic structure" of the Constitution so far as it relates to the state maintained institutions and aided educational institutions. Question whether the Constitution (Ninety-Third Amendment) Act, 2005 would be constitutionally valid or not so far as "private unaided" educational institutions are concerned, is left open to be decided in an appropriate case.

2. Whether Articles 15(4) and 15(5) are mutually contradictory, hence Article 15(5) is to be held ultra vires?

Article 15(5) is constitutionally valid and Articles 15(4) and 15(5) are not mutually contradictory.

3. Whether exclusion of minority educational institutions from Article 15(5) is violative of Article 14 of the Constitution?

Exclusion of minority educational institutions from Article 15(5) is not violative of Article 14 of the Constitution as the minority educational institu-tions, by themselves, are a separate class and their rights are protected by other constitutional provisions.

4. Whether the Constitutional Amendment followed the procedure prescribed under Article 368 of the Constitution?

The Ninety-Third Amendment of the Constitution does not affect the ex-ecutive power of the State under Article 162 of the Constitution and hence, procedure prescribed under Proviso to Article 368(2) is not required to be followed.

5. Whether the Act 5 of 2007 is constitutionally invalid in view of definition of "Backward Class" and whether the identification of such "Backward Class" based on "caste" is constitutionally valid?

Identification of "backward class" is not done solely based on caste. Other parameters are followed in identifying the backward class. Therefore,Central Educational Institutions (Reservation in Admission) Act, 2006 (Act No. 5 of 2007) is not invalid for this reason.

6. Whether "Creamy Layer" is to be excluded from SEBCs?

"Creamy Layer" is to be excluded from SEBCs. The identification of SEBCs will not be complete and without the exclusion of "creamy layer" such iden-tification may not be valid under Article 15(1) of the Constitution.

7. What should be the para-meters for determining the "creamy layer" group?

The parameters contained in the Office Memorandum issued by the Gov-ernment of India, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) on 08.09.1993 may be applied. And the definition of "Other Backward Classes" under Section 2(g) of the Central Educational Institutions (Reservation in Admission) Act, 2006 (Act No. 5 of 2007) should be deemed to mean class or classes of citizens who are socially and educationally backward, and so determined by the Central Government; and if the determination is with reference to caste, then the backward class shall be after excluding the creamy layer. (Paragraphs 153 and 155)

8. Whether the "creamy layer" principle is applicable to Scheduled Tribes and Scheduled Castes?

"Creamy Layer" principle is not applicable to Scheduled Castes and Scheduled Tribes.

9. Whether the principles laid down by the United States Supreme Court for affirmative action such as "suspect legislation", "strict scrutiny" and "compelling State necessity" are applicable to principles of reservation or other affirmative action contemplated under Article 15(5) of the Constitution?

The principles laid down by the United States Supreme Court such as "suspect legislation", "strict scrutiny" and "compelling State necessity" are not applicable for challenging the validity of Act 5 of 2007 or reservations or other affirmative action contemplated under Article 15(5) of the Constitution. (Paragraphs 184)

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

The delegation of power to the Union Government to determine as to who shall be the "other backward classes" is not excessive delegation. Such delegation is constitutionally valid.

11. Whether the Act is invalid as there is no time limit prescribed for its operation and no periodical review is contemplated?

The Central Educational Institutions (Reservation in Admission) Act, 2006 is not invalid for the reason that there is no time limit prescribed for its op-eration, but a review can be made after a period of 10 years.

12. What shall be the educational standard to be prescribed to find out whether any class is educationally backward?

The contention that educational standard of matriculation or (10+2) should be the benchmark to find out whether any class is educationally backward is rejected.<

13. Whether the quantum of reservation provided for in the Act is valid and whether 27% of seats for SEBC was required to be reserved?

27% of seats for other backward classes is not illegal and the Parliament must be deemed to have taken into consideration all relevant circumstances when fixing the 27% reservation.The Court further held that Central Educa-tional Institutions (Reservation in Admission) Act, 2006 can be operative only after excluding the creamy layer from identifiable OBCs. There has to be periodic review of the classes who can be covered by the Statute. The pe-riodicity should be five years, to strike Constitutional balance there is need for making provision for suitable percentage for socially and economically backward classes in the 27% fixed, to sum up, the conclusions are as follows :-

(1) For implementation of the impugned Statute creamy layer must be excluded.

(2) There must be periodic review as to the desirability of continuing op-eration of the Statute. This shall be done once in every five years.

(3) The Central Government shall examine as to the desirability of fixing a cut off marks in respect of the candidates belonging to the Other Backward Classes (OBCs). By way of illustration it can be indicated that five marks grace can be extended to such candidates below the minimum eligibility marks fixed for general categories of students. This would ensure quality and merit would not suffer. If any seats remain vacant after adopting such norms they shall be filled up by candidates from general categories.

(4) So far as determination of backward classes is concerned, a Notification should be issued by the Union of India. This can be done only after exclusion of the creamy layer for which necessary data must be obtained by the Central Government from the State Governments and Union Territories. Such Notification is open to challenge on the ground of wrongful exclusion or inclusion. Norms must be fixed keeping in view the peculiar features in different States and Union Territories.

(5) There has to be proper identification of Other Backward Classes (OBCs.). For identifying backward classes, the Commission set up pursuant to the directions of this Court in Indra Sawhney No.1 has to work more effectively and not merely decide applications for inclusion or exclusion of castes. While determining backwardness, graduation (not technical graduation) or professional shall be the standard test yardstick for measuring backwardness.

(6) To strike the constitutional balance it is necessary and desirable to ear-mark certain percentage of seats out of permissible limit of 27% for socially and economically backward classes.

(7) In the Constitution for the purposes of both Articles 15 and 16, caste is not synonyms with class and this is clear from the paragraphs 782 and 783 of Indra Sawhney No.1. However, when creamy layer is excluded from the caste, the same becomes an identifiable class for the purpose of Articles 15 and 16.

(8) Stress has to be on primary and secondary education so that proper foundation for higher education can be effectively laid.

(9) So far as the constitutional amendments are concerned :-

(i) Articles 16(1) and 16(4) have to be harmoniously construed. The one is not an exception to the other.

(ii) Articles 15(4) and 15(5) operate in different fields. Article 15(5) does not render Article 15(4) inactive or inoperative.

(10) While interpreting the constitutional provisions, foreign decisions do not have great determinative value. They may provide materials for deciding the question regarding constitutionality. In that sense, the strict scrutiny test is not applicable and indepth scrutiny has to be made to decide the con-stitutionality or otherwise, of a statute.

(11) If material is shown to the Central Government that the Institution deserves to be included in the Schedule, the Central Government must take an appropriate decision on the basis of materials placed and on examining the concerned issues as to whether Institution deserves to be included in the Schedule.

(12) Challenge relating to private un-aided educational institutions has not been examined because no such institution has laid any challenge. It is to be noted that the petitioners have made submissions in the background of Article 19(6) of the Constitution. Since none of the affected institutions have made any challenge we do not propose to consider it necessary to express any opinion or decide on the question.

Ashoka Kumar Thakur v. Union Of India Law Finder Doc Id # 143572