Holding

The Court stayed the operation of Section 6 of the Act for OBCs, holding that the reservation cannot be implemented without a proper, data‑based determination of backwardness and exclusion of the creamy layer, while allowing the SC/ST provisions to continue.

Summary

The petitioners challenged the Central Educational Institutions (Reservation in Admission) Act, 2006, specifically the 27% reservation for Other Backward Classes (OBCs) under Section 6, arguing that the Act was based on unreliable data, ignored the creamy‑layer principle, and violated Articles 14, 15(4), 15(5) and 16(4) of the Constitution. The Union of India contended that reservation is a constitutionally permissible affirmative action and that the Act does not breach the basic structure. The Court examined the need for a periodic, data‑driven identification of socially and educationally backward classes and the applicability of the creamy‑layer concept to Article 15(5). It held that while the Act’s reservation scheme for SC/ST could proceed, the operation of Section 6 for OBCs must be kept on hold pending a proper determination of backwardness and exclusion of the creamy layer. Consequently, the interim application was disposed of by staying only the OBC component of the reservation, without affecting the SC/ST provisions, and the matter was listed for final hearing.

Issues considered

The constitutionality of Section 6 of the Central Educational Institutions (Reservation in Admission) Act, 2006 providing 27% reservation for OBCs in central educational institutions
Whether the creamy‑layer principle applies to reservations under Article 15(5) as it does under Article 16(4)
Whether the data and methodology used to identify OBCs and the 27% figure are constitutionally valid
Whether the reservation scheme violates the equality provisions of Articles 14, 15(4), 15(5) and 16(4) of the Constitution
Whether the Act exceeds the 50% ceiling on total reservations

Legislation cited

Central Educational Institutions (Reservation in Admission) Act, 2006s. 2(g), s. 3(iii), s. 5(1)(2), s. 6
National Commission for Backward Classes Act, 1993s. 11

Subjects

reservationOBCcreamy layeraffirmative actionequalityArticle 14Article 15(4)Article 15(5)Article 16(4)Section 6Central Educational Institutions Actstayinterim relief

Judgment

'!- ASHOKA KUMAR THAKUR A
v.
UNION OF INDIA AND ORS

MARCH 29, 2007

[DR. ARIJIT PASAYAT AND LOKESHWAR SINGH PANTA, JJ.] B

,....
; Central Educational Institutions (Reservation in Admission) Act, 2006:

Section 6-other backward c/asses-27% reservation in the educational
institutions-To be enforced from May 2007-Held, the operation of the Act c
so far as it relates to Section 6 thereoffor the OBCs category only to be kept
,. on hold.

The policy of27% reservation for the Other Backward Classes (in short
the 'OBCs') contained in the Central Educational Institutions (Reservation
in Admission) Act, 2006 (in short the 'Act') is the subject matter of challenge
D
~ in the instant the writ petitions. The primary ground of challenge is that the
_J

Union of India has failed in performing the constitutional and legal duties
toward the citizenry and its resultant effect. Consequently the Act shall have
the effect and wide ramifications and ultimately it shall have the result in
dividing the country on caste basis. It would lead to chaos, confusion, and E
anarchy which would have destructive impact on the peaceful atmosphere in
the educational and other institutions and would seriously affect social and
communal harmony. The constitutional guarantee of equality and equal
opportunity shall be seriously prejudiced. It has been highlighted that on the
;. basis of unfounded and unsupportable data about the number of OBCs in the
country the Act has been enacted. Though there is a specific provision in F
-,.--
Section llofthe National Commission for Backward Classes Act, 1993 for a
periodic revision of the lists, same has not been done, and on the contrary
additions are being made. The rational of27% having been arrived at on the
mythical figure that the OBCs are 52% in the country and even the ratio of
27% reservation for the students belonging to other backward classes in G
the educational institutions is to be funded and controlled by the Central
Government. The same is to be enforced from May 2007. It is highlighted
y that after 1931 census there has never been any caste-wise enumeration or
tabulation which in essence corrodes the credibility of the claim of 52%

493 H
+
494 SUPREME COURT REPORTS [2007] 4 S.C.R.

A population of other backward classes. It is pointed out that in terms of Section
2(g), 3(iii), Sections 5(1)(2) and 6 of the Act, 27% seats are being reserved
for other backward classes out of only permitted strength. The expression
"Other Backward Classes" means the class or classes of citizens who are
socially or educationally backward and are so determined by the Central
Government There has never been any determination on any acceptable basis.
B The parameters provided in the Backward Classes Act have not been kept in
view. Without supportable data the introduction of a Statute which would have
the effect of disturbing the harmony in the society was avoidable. Though it
has been provided that increase in the number of seats can be done in a
staggered manner that is really of no consequence. The stand that number of
C seats available for the general categories remains unaffected is really not a
solution as in essence unequals are treated as equals. The very concept of
equality enshrined in Article 14 of the Constitution of India, 1950 (in short
the 'Constitution') is directly affected. Prayer has, therefore, been made to
declare certain provisions in the Act to be unconstitutional. By way of the
-
instant Interlocutory application, a prayer has been made to grant interim
D protection pending final disposal of the writ petitions.
~
It was contended by the appellants that the statute in question has lost ;.._
sight of the social catastrophe it is likely to unleash. Not only would the
products be intellectual pigmies as compared to normal intellectual sound
E students presently passing out. It has been emphasized that what may have
been relevant eight decades back cannot hold good in the present scenario.
There has to be indepth analysis to find out the number of socially and
educationally backward class of citizens. It is further contended that the
concept of socially and educationally backward classes in Article 15(4) stand
on a different footing from Article 16(4) and consequentially Article 15(5) is
F different from Article 16(4). Further contention is that in any event the ~
concept of creamy layer which has been completely kept out of consideration -{
in the Statute has great relevance and effect. The criteria of Article 16(4)
and the lists under the Backward Classes Act can at the most provide a rough
and ready rule for the purpose of Articles 15(4) and 15(5) but that does not in
any way take care of the requirements of Section 11 of the Backward Classes
G Act. There is no report subsequent to 3.2.2005 by the National Commission
for the Backward Classes. Therefore, it is highlighted that the whole exercise
has been done in great hurry without any justifiable reason. Since there is
no data base after 1931 census, what the Government could have done is to ·)'
find out a definite data base and then take such action as is permissible in
H law. It has been pointed out that the Act itself specifically requires a
ASHOKA KUMAR THAKUR v. U.0.1. 495
determination of socially and educationally backward classes to be made by A
t-- the Central Government, as is clear from a bare reading of Section 2(g). That
has not been done for the purposes of the Act and by referring to the lists
meant for cases covered by Article 16(4) the requirements have not been met,
,_
there cannot be any basis for contending that the "creamy layer concept"
attached to Article 16(4) has no relevance for Articles 15(4) and 15(5). It is
pointed out that the intention of the Parliament does not appear to be that any
B
existing list under Article 16(4) should be treated as the foundation for
Section 2(g) of the Act. The determination should be made "in futuro" and

-:-
-·y
not by adopting any past determination by the National Commission for the
purposes of Article 15(5). The "special provision of law" under Article 15(5)
is the Act which provides that OBCs must be so determined for the purposes c
of the Act by the Central Government. There has been no separate
determination. In fact, the baseless figure of 27% cannot be pressed into

-- service for introducing a Statute which has such wide ramifications. No
methodology has been laid down for determining the socially and educationally
backward classes because castes alone should not be made the basis for
D
identification. The figure of 27% is an imaginary figure with no rational.
The non exclusion of "creamy layer" has also affected the validity of the
'* Statute. It was further contended that the policy of reservation for employment
__,;.__
and education should be necessarily reviewed. It was noted in that case that a
time has come to review the criterion for identifying socially and educationally
backward classes ignoring the caste label. Identification is an imperative E
requirement and cannot be by-passed on any ipsi-dixi referring to out-dated
data based on 1931 census. The object of advancement of socially and
educationally backward classes undisputedly brings in the concept of creamy
layer. If the char~cter of an institution of super speciality of national
importance is permitted to be affected in the manner sought to be done it would
.J. be counter productive. That would affect quality of education. Another question F
which has been emphasized on behalf of the petitioners is that the policy of
r reservation cannot be and should not be intended to be permanent or perpetuate
backwardness.

On the other hand, it was contended on behalf of the respondents that
reservation whether in employment or in education is not violative of the basic
G
structure or equality code. Various provisions in the Constitution
acknowledge that reservation is an integral part of the principle of equality
where inequality exists. There is nothing wrong nr unconstitutional in
~ specifying in terms of units of castes, those who have been identified as
"Socially and Educationally Backward Classes" on the basis of criteria of H
1-
496 SUPREME COURT REPORTS [2007] 4 S.C.R.

A social and educational backwardness. Reservation is not anti merit. In the
absence of caste data after 1931, there was no alternative but to project the
J;,
population proportion of social and educational backward classes and other
backward classes from the next best source i.e. !atest available census of 1931.
It was further contended that reservation policy is not dis-integrative and is
not against the unity and integrity of the nation. On the contrary, according
B to him, reservation policy is a means of integrating the society disintegrated
over the centuries by the age old caste system. It was sutmitted that the lists
of OBCs identified on the basis of social and educational backwardness have
been determined. 1-
--..; -:
c there However, it was fairly accepted by the counsel for the respondent that
is need for periodical identification of the backward citizens and for
this purpose the need for survey of entire population on the basis of an
acceptable mechanism. What may have been relevant in 1931 census may have
some relevance but cannot be the determinative factor, the backwardness has
to be based on objective factors whereas inadequacy has to factually exist It
D was also submitted that the number of seats available for the general category
is not affected and exercise was not intended to be Jndertaken immediately
and the increase would be staggered over a period of 3 years. ...
.).._

Allowing the interlocutory application, the Court

E HELD 1.1. It remains to be examined as to whether a different form of
preferential treatment other than quotas could be employed as at some stage
an affirmative action concept can be focused in this direction also. Though it
is submitted that the number of seats available for the general category is
not affected, but that is really no answer to the broader issue.
[Para 32) [SH-BJ
F ~

Dr. Pradeep Jain and Ors. v. Union of India and Ors., [1984) 3 SCC
~·
654; Grutter v. Bollinger, 539 US 306 and Regents of University of California
v. Allan Bakke, 438 US265, referred to

G 1.2. The creamy layer rule is a necessary bargain between the competing
ends of caste based reservations and the principle of secularism. It is a part
of constitutional scheme. Therefore the~e cases have to be examined in detail
as to whether the stand of respondent that creamy layer rule is applicable to
only Article 16(4) and not Article 15(5) is based on any sound foundation. -,.
That is more so because the lists relatable to Article 16(4) form the ,
H foundational base for Article 15(5). [Paras 34 and 35) [513-E-FJ
~
ASHOKA KUMAR THAKUR v. U.0.1. 497

,... Indra Sawhney v. Union of India and Ors., (1992) Supp. 3 SCC 217; M
Nagaraj and Ors. v. Union of India and Ors., {2006] 8 SCC 2 I 2; Nair Service
A
Society v. State of Kera/a (Writ Petition (Civil) No. 598 of 2000 etc. decided
by S. C. on 23.02.2007; Janki Prasad Parimoo v. State of J & K, (1973] 1
'L
SCC 420; K. C. Vasanth Kumar and Anr. v. State ofKarnataka, (1985) Supp
SCC 714; Minor P. Rajendra v. State of Madras and Ors., (1968) 2 SCR 786;
State ofA. P. v. US. V. Bairam, (1972) 1SCC660; Indra Sawhney (II) (2000)
B
1 SCC 168; Plessy v. Ferguson, 163 US 537 and Brown v. Board of Education,
347 US 483; referred to.
-
r 1.3. It would be desirable to keep on hold the operation of the Act so far
as it relates to Section 6 thereof for the OBCs category only. The operation
of the Statute, particularly, Section 6 so far as the Scheduled Castes and
c
Scheduled Tribes candidates are concerned is not stayed. It would be
/
permissible for the respondent to initiate or continue process, if any, for
determining on a broad based foundation "Other Backward Classes",
notwithstanding pendency of the cases before this Court and without prejudice
to the issues involved. (Para 36) (513-G; 514-A) D

...;. CNIL ORIGINAL JURISDICTION
I
~
'
I.A. No. 13.

In Writ Petition (Civil) No. 265 of2006. E
WITH

WP (Civil) Nos. 269/2006, 598/2006, 35/2007 and 29/2007.

Gopal Subramanium, ASG., J.S. Attri, AAG., Aruneshwar Gupta, AAG.,
F
"
~
F.S. Nariman, P.P. Rao, Vivek K. Tankha, V. Kanakraj, Indu Malhotra, Gopal
Shgankamarayanan, Shilpa Gupta, Subhash Sharma, Sushil Kumar Jain H.D.
Thanvi, Sarad Singhania, Puneet Jain, Christi Jain, Ratna Kaul, Pooja Dhar,
Prashant Kumar, T. Srinivasa Murthy, Satyakam, Abhishek Tiwari, Sushma
Suri, Dr. Kailash Chand, A. Mariarputham, Aruna Mathur (for Mis. Arputham,
Aruna & Co.) Prashant Bhushan, M.L. Lhoty, Paban K. Sharma, Poonam G
Lahoty, Himanshu Shekhar, Janaranjan Das, Swetaketu Mishra, V.G. Pragasam,
S. Vallinayagan, S. Prabu Ramasubramanian, Naveen Kumar Singh, Shashwat
Gupta, Shikha Tandon, Vishwajit Singh, Gopal Singh. Rituraj Biswas, Anukul
r Raj, Sunita Sharma D.S. Mahra, Arun K. Sinha, G. Prakash, Beena Prakash,
Atul Jha, Dharmendra Kumar Sinha, T.V. George, Riku Sarma (for Mis. Corporate
H
-t ,..
498 SUPREME COURT REPORTS [2007) 4 S.C.R.

A Law Group), S.S. Shinde, V.N. Raghupathy, S. Wasim A. Qadri, K.H. Nobin
Singh, S. Biswajit Meitei, David Rao, Mukesh Kumar, Mukul Sood, Sudarshan
Singh Rawat, A.K Sinha, D.P. Singh, Sanjay Jain, Ranjan Mukherjee, S.C.
Ghosh, Ritu Raj, Anil Shrivastava, U. Hazarika, Satya Mitra, Sumita Hazarika,
Nishakant Pandey, Gopal Singh, K.N. Madhusoodhannan, R. Sathish, A.
B Subhashini, 8.8. Singh and Kumar Rajesh Singh for the appearing parties and
Ashok Kumar Thakur, Petitioner-in-person.

The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT, J. In this I.A. prayer has been made to grant
C interim protection pending final disposal of the writ petitions.

In the writ petitions the policy of27% reservation for the Other Backward
Classes.(in short the 'OBCs') contained in the Central Educational Institutions
(Reservation in Admission) Act, 2006 (in short the 'Act') is the subject matter
of challenge. The primary ground of challenge i.s that the Union of India has
failed in performing the constitutional and legal duties toward the citizenry
and its resultant effect. Consequentially the Act shall have the effect and
wide ramifications and ultimately it shall have the result in dividing the
country on caste basis. It would lead to chaos, confusion, and anarchy which
would have destructive impact on the peaceful atmosphere in the educational
and other institutions and would seriously affect social and communal
E harmony. The constitutional guarantee of equality and equal opportunity
shall be seriously prejudiced. It has been contended that a time has come
to replace the "vote bank" scenario with "talent bank". The statute in question,
it is contended, has lost sight of the social catastrophe it is likely to unleash.
Not only the products would be intellectual pigmies as compared to normal
F intellectual sound students presently passing out. It has been highlighted
that on the basis of unfounded and unsupportable data about the number of
OBCs in the country the Act has been enacted. It has been pointed out that
this Court in Indra Sawhney v. Union of India and Ors., [1992] Supp. 3 SCC
217 had recognised the concept of "creamy layer" amongst the advanced
OBCs to be kept out of preferential treatment. The population data of 52%
G projected by the Manda! Commission was not actually given the seal of
acceptance. In any event, this Court in its judgment dated 16.11.1992 directed
the Government to constitute a permanent body by 15th March, 1993 for
examining and recommending for inclusion or exc!usion in the lists of backward
classes of citizens. The National Commission for Backward Classes Act, 1993
H (in short the 'Backward Classes Act') defines. 'backward classes" to mean
ASH OKA KUMAR THAKUR v. U.O.l. [PASA YAT, J.] 499

).. such backward classes of citizens other than the Scheduled Castes and A
Scheduled Tribes as may be specified by the Central Government in the lists.
In terms of Section 2(c) of the Act "lists" mean lists prepared by the
Government of India from time to time for the purpose of making provision
for the reservation of appointments or posts in favour of backward classes
of citizens which in the opinion of the Government are not adequately
represented in the services under the Government of India and any legal or B
other authority within the territory of India or under the control of the

- ,,,.
Government of India. Though there is a specific provision in Section 11 of
the Backward Classes Act for a periodic revision of the lists, same has not
been done, and on the contrary additions are being made. The rational of 27%
having been arrived at on the mythical figure that the OBCs are 52% in the c
country and even the ratio of 27% reservation for the students belonging to
other backward classes in the educational institutions is to be funded and
controlled by the Central Government. The same is to be enforcer! from May
2007. It is highlighted that after 1931 census there has never been any caste-
wise enumeration or tabulation which in essence corrodes the credibility of
the claim of 52% population of other backward classes . D
....;.
_,L
It is pointed out that in terms of Section 2(g), 3(iii), Sections 5(1)(2) and
6 of the Act, 27% seats are being reserved for other backward classes out
of only permitted strength. The expression "Other Backward Classes" means
the class or classes of citizens who are socially or educationally backward and
E
are so determined by the Central Government. There has never been any
determination on any acceptable basis. The parameters provided in the
Backward Classes Act have not been kept in view. Without supportable data
the introduction of a Statute which would have the effect of disturbing the

-
harmony in the society was avoidable. Though it has been provided that
increase in the number of seats can be done in a staggered manner, that is F
,.. really of no consequence. The stand that number of seats available for the
general categories remains unaffected is really not a solution as in essence
unequals are treated as equals. The very concept of equality enshrined in
Article 14 of the Constitution of India, 1950 (in short the 'Constitution') is
directly affected.
G
Reference is made to the figures provided by the National Samples
Survey of India and the National Health and Family Survey (Government of
India's own Departments) which clearly establish the hollowness of the claim
-r
about OBCs being 52% of the population. The source for the enactment of
the Act was the 93rd amendment to the Constitution which has come into H
~-
500 SUPREME COURT REPORTS (2007] 4 S.C.R.

A force w.e.f. 20.1.2006 by insertion of Clause (5) in Article 15 of the Constitution.
'
-",

Prayer has been made to declare certain provisions in the Act to be
;
unconstitutional. ,)

The effect of the judgments in M Nagaraj and Ors. v. Union of India
B and Ors., [2006] 8 SCC 212 and Nair Service Society v. State of Kera/a (Writ
Petition (Civil) No. 598 of 2000 etc. decided on 23.02.2007) has not been
considered. It has been emphasized that what may have been relevant eight

c
decades back cannot hold good in the present scenario. There has to be
indepth analysis to find out the number of socially and educationally backward
class of citizens. The concept of Backward class citizens js dealt with in para
786 of Indra Sawhney 's case (supra). It is pointed out that in the immediately
-
._

succeeding paragraph i.e. Paragraph 787 the position has been clarified. In
that paragraph reference has also been made at page 720 that certain classes
which may not qualify for Article 15(4) may qualify for Article 16(4). Reference
is made to Janki Prasad Parimoo v. State of J & K [1973] 1 SCC 420 to
D contend that it is social and educational backwardness of a class which is
material for the purposes of Articles 16(4). It does not have determinative
relevance for the purposes of Articles 15(4) and 15(5). Further reference is .....
_.::...
also made to the concluding para 859 in Indra Sawhney 's case (supra) where
it has been said in category (3)(c) that it is not correct to say that backward
class of citizens contemplated in Article 16(4) is the same as the socially and
E educationally backward classes referred to in Article 15(4). It is much wider.
Therefore, it is submitted that the concept of socially and educationally
backward classes in Article 15(4) stand on a different footing from Article
16(4) and consequentially Article 15(5) is different from Article 16(4).

F
It has been highlighted that in any event the concept of creamy layer ·-.,.
which has been completely kept out of consideration in the Statute has great ~

relevance and effect. The criteria of Article 16(4) and the lists under the ~

Backward Classes Act can at the most provide a rough and ready rule for the
purpose of Articles 15(4) and 15(5) but that does not in any way take care
of the requirements of Section 11 of the Backward Classes Act. There is no
G report subsequent to 3.2.2005 by the National Commission for the Backward
Classes. Therefore, it is highlighted that the whole exercise has been done in
great hurry without any justifiable reason. Since there is no data base after
1931 census, what the Government could have done is to find out a definite
data base and then take such action as is permissible in law. Even otherwise, y

the Office Memorandum bearing No.36012/31/90-Est.(Scn dated 13.8.1990 on
H
ASHOKA KUMAR THAKUR v. U.O.l. [PASA YAT, J.] 501
which great emphasis has been laid by learned Additional Solicitor General A
for the respondent-Union of India, does not take note of another O.M.No.36012/
22/93-Estt.(SCT) dated 8.9.1993 which expressly states as follows:

"(d) The OBCs for the purpose of the aforesaid reservation would
comprise, in the first phase, the castes and communities which are
common to both the lists in the report of the Mandal Commission and B
the State Governments' Lists. A list of such castes and communities
is being issued separately by the Ministry of Welfare."

It has been pointed out that the Act itself specifically requires a determination
of socially and educationally backward classes to be made by the Central
Government, as is clear from a bare reading of Section 2(g). That has not been C
done for the purposes of the Act and by referring to the lists meant for cases
covered by Article 16(4) the requirements have not been met, there cannot
be any basis for contending that the "creamy layer concept" attached to
Article 16(4) has no relevance for Articles 15(4) and 15(5). It is pointed out
that the intention of the Parliament does not appear to be that any existing D
list under Article 16(4) should be treated as the foundation for Section 2(g)
of the Act. The determination should be made "in futuro" and not by adopting
any past determination by the National Commission for the purposes of
Article 15(5). The "special provision of law" under Article 15(5) is the Act
which provides that OBCs must be so determined for the purposes of the Act
by the Central Government (underlined for emphasis). There has been no E
separate determination.

In essence, it is submitted that the baseless figure of 27% cannot be
pressed into service for introducing a Statute which has such wide
ramifications. No methodology has been laid down for determining the socially F
and educationally backward classes because castes alone should not be made
' the basis for identification even though there appears to be some casual
observations in Indra Sawhney 's case (supra) as contended by learned
Additional Solicitor General that castes can be synonyms with class. That is
not the correct approach. It was only stated that castes may be the starting
point for identifying the backward class, but it can not definitely be the sole G
basis.

The figure of 27% it is emphasized is an imaginary figure with no
rational. The non exclusion of "creamy layer" has also affected the validity
of the Statute.
H
--t-
502 SUPREME COURT REPORTS [2007] 4 S.C.R.

A In addition to these aspects highlighted by Mr. F.S. Nariman, Senior
Advocate, Mr. P.P. Rao, Senior Advocate, Mr. M.L. Lahoti, Advocate, Mr.
Sushi! Kr. Jain, Advocate, Mr. V. Tankha, Senior Advocate, Mr. Ashoka Kr.
Thakur and Dr. Mirta!, who appear in person, have more or less highlighted
to similar effect.

B Mr. P.P. Rao, Senior Advocate, with reference to certain observations in
Indra Sawhney 's case (supra} has submitted that inclusion of castes in the
lists of backward classes cannot be mechanic and cannot be done without
adequate relevant data. "'·

C The following reports have also been referred to highlight as to how
figures arrived at by the Union are erroneous.

"(a) The National Sample Survey Organisation survey of 1999-2000
which shows that the present educational level is directly proportionate
to his/her economic condition. (pp. 14-15 para 7.21, 7.22 and 7.23)

D (b) Section 11 of the National Commission for Backward Classes Act,
1993 which says "The Central Government may at any time, and shall,
at the expiration of ten years from the coming into force of this Act
and every succeeding period of ten years thereafter, undertake revision
of the lists with a view to excluding from such lists those classes who
have ceased to be backward classes or for including in such lists new
E
backward classes.

(c) Standing Committee on Social Justice and Empowerment Chaired
by Sumitra Mahajan 2005-2006 (pp 18-22 - Copy of the Report is
Annexure P-11 in Vol.II at pp.142-217).
F (d) 186th Report of the Parliamentary Standing Committee of Human
Resources Development submitted to the Parliament on 1-12-2006 (pp.
22-23 paras 8.8 to 8.13). The Report is Annexure P-Ill in Vol.II at
pp.218-227).

(e) Annual Report of National Commission for Backward Classes dt.
G 3-2-2005. (Para 8.14 at pp 25-26). The Report is Annexure P-IV in Vol.II
at pp. 228-317.

(f) Report of the Oversight Committee constituted under the Orders
of the Prime Minister on 27-5-2006 (pp. 29-30 para 8.19 to 8.21). The -.... -
Report is Annexure P-V in Vol.II at pp 318-353."
H
ASHOKAKUMAR THAKUR v. U.0.1. [PASAYAT,J.] 503
It is pointed out that Office Memoranda of 1990 and 1991 referred to in A
Indra Sawhney's case (supra) cannot hold the field forever. It is pointed out
that ifthat continues to be so, Section 11 of the Backward Classes Act would
be rendered nugatory. The revision of the lists was called for after expiration
of the period of l 0 years. The non-revision renders the acceptability of the
figures doubtful and basisless.
B
In Mandal Commission's Report it was inter-alia observed as follows:

> "On the basis of the Commission's Report-popularly known as Mandal
r
Commission's Report -(for short 'the Report'), two Office Memoranda
- one dated August 13, 1990 and the other amended one dated
September 25, 1991 were issued by the Government of India. We are C
reproducing those Memoranda hereunder for proper understanding
and appreciation of the significance of these two OMs and the
distinctions appearing between them:
"No. 36012/31190-Estt. (SCT)
Government of India D
Ministry of Personnel, Public Grievances & Pensions
(Deptt. of Personnel & Training)
OFFICE MEMORANDUM
New Delhi, the 13th August, 1990
Subject: Recommendation of the Second Backward Classes Commission E
(Mandal Report)- Reservation for Socially and Educationally Backward
Classes in Services under the Government of India.

In a multiple undulating society like ours, early achievement of
the objective of social justice as enshrined in the Constitution is
a must. The second Backward Classes Commission called the F
Manda! Commission was established by the then Government
with this purpose in view, which submitted its report to the
Government of India on 31.12. 1980.

2. Government have carefully considered the report and the
recommendations of the Commission in the present context responding G
the benefits to be extenqed to the socially and educationally backward
classes as opined by the Commission and are of the clear view that
at the outset certain weightage has to be provided to such classes in
the services of the Union and their Public Undertakings. Accordingly
orders are issued as follows:
H
~··

504 SUPREME COURT REPORTS [2007] 4 S.C.R.

A (i) 27 per cent of the vacancies in civil posts and services under the
Government of India shall be reserved for SEBC.
(ii) The aforesaid reservation shall apply to vacancies to be filled by
direct recruitment. Detailed instructions relating to the procedure
to be followed for enforcing reservation will be issued separately.
B (ili) Candidates belonging to SEBC recruited on the basis of merit in
an open competition on the same standards prescribed for the
general candidates shall not be adjusted against the reservation
quota of 27 per cent.
(iv) The SEBC would comprise in the first phase the castes and
c communities which are common to both, the list in the report of
the Mandal Commission and the State Governments' lists. A list
of such castes/communities is being issued separately.
(v) The aforesaid reservation shall take effect from 7.8.1990. However,
this will not apply to vacancies where the recruitment process
D has already been initiated prior to the issue of these orders.

Similar instructions in respect of public sector undertakings and
financial institutions including public sector banks will be issued by
the Department of Public Enterprises and Ministry of Finance
respectively.
E
Sd/.

(Smt Krishna Singh)

Joint Secretary to the Govt. of India"
•
F
AMENDED MEMORANDUM:
"No. 36012/31190-Estt. (SCT)
Government of India
Ministry of Personnel, Public Grievances & Pensions
(Deptt.of Personnel & Training)
G OFFICE MEMORANDUM
New Delhi, the 25th September 1991
Subject: Recommendation of the Second Backward Classes v
Commission (Manda! Report) - Reservation for Socially and
H
ASHOKA KUMAR THAKUR v. U.0.1. [PASA YAT, J.] 505

Educationally Backward Classes in Services under the Government A
of India.

The undersigned is directed to invite the attention to 0.M. of ever
.'
number dated the 13th August 1990, on the above sections of the
SEBCs to receive the benefits of reservation on a preferential b~is
and to provide reservation for other economically backward sections B
of the people not covered by any of the existing schemes of reservation,
Government have decided to amend the said Memorandum with
immediate effect as follows:

2. (i) Within the 27 per cent of the vacancies in civil posts and
services under the Government of India reserved for SEBCs, preference C
shall be given to candidates belonging to the poorer sections of the
SEBCs. In case sufficient number of such candidates are not available,
unfilled vacancies shall be filled by the other SEBC candidates.

(ii) 10 per cent of the vacancies in civil posts and services under the
Government of India shall be reserved for other economically backward D
sections of the people who are not covered by any of the existing
schemes of reservation.

(iii) The criteria for determining the poorer sections of the SEBCs or
the other economically backward sections of the people who are not
covered by any of the existing schemes of reservations are being E
issued separately.

3. The O.M. of even number dated the 13th August 1990, shall be
deemed to have been amended to the extent specified above.

Sd/ F
(A.K. Harit)

Dy. Secretary to the Govt. of India"

The expression deployed in both the OMs, "Socially and Educationally G
Backward Classes" is on the strength of the Report of the Commission,
though no such expression is used in Article 16(4) whereunder the
reservation or appointments or posts in favour of any backward class
of citizens is to be made. This expression is used as an explanatory
one to the words 'backward class' occurring in Article 16(4). Articles
16(4) and 340(1) were embodied in the Constitution even at the initial H
506 SUPREME COURT REPORTS [2007] 4 S.C.R.

A stage; but Article 15(4) containing the same expression as in Article --.:c.
340(1) was subsequently added by the Constitution (First Amendment)
Act of 1951 to override the decision of this Court in State of Madras
v. Smt Champakam Dorairajan, [1951] SCR 525)" \

According to Mr. M.L. Lahoti, the Act specifically overlooks the mandate
B of Article 340 of the Constitution. According to him also the specific directions
given by this Court in Indra Sawhney's case (supra) have been dis-regarded.
Specific reference in this context is made to Section 11 of the Backward

c
Classes Act. It is submitted that Article 340 provides that the condition of
socially and educationally backward classes is to be investigated imperatively.
Reference is also made to K.C. Vasanth Kumar and Anr. v. State ofKarnataka,
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'

[1985] Supp SCC 714 to submit that the policy of reservation for employment
and education should be necessarily reviewed. It was noted in that case that
a time has come to review the criterion for identifying socially and educationally
backward classes ignoring the caste label. Identification is an imperat:ve
requirement and cannot be by-passed on any ipsi-dixi referring to out-dated
D data based on 1931 census. The object of advancement of socially and
educationally backward classes undisputedly brings in the concept of creamy
layer. Certain institutions are basically super specialty institutions e.g. All ...
.)..._
India Institute of Medical Science (AIIMS). If the character of an institution
of super specialty of national importance is permitted td be affected in the
manner sought to be done it would be counted productive. That would affect
E quality of education.

About the Manda! Commission's report, it has been pointed out by Dr.
Mittal who appears in person that survey conducted selected 0.15 of the total
villages population and 7% of the district blocks. There is nothing to suggest
F as to on what basis the particular village or particular district was selected.
~
The Commission itself distributed two groups (a) intermediate OBC and (b)
depressed OBC, which were equi-distributed. It has been emphasized that the -f
Manda! Commission while arriving at the figure of 52% population of OBC
had added 8.6% population of other non Hindu communities. Thus, non
Hindu communities formed 17% of the total OBC population. The management
G of social backwardness, it is submitted, has to be dynamic which means that
the various measures to be adopted as a remedy have to be time bound and
reviewable.
~·
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·y-
In response, Mr. Gopal Subramanium, learned ASG appearing for the
Union has submitted that all the issues that are being raised have been
H
ASHOKA KUMAR THAKUR v. U.0.1. [PASA YAT, J.] 507

).. appropriately dealt with in Indra Sawhney 's case (supra) and long earlier in A
Minor P. Rajendra v. State of Madras and Ors., [1968] 2 SCR 786. It is
submitted that reservation whether in employment or in education is not
violative of the basic structure or equality code. Various provisions in the
Constitution acknowledge that reservation is an integral part of the principle
of equality where inequality exists. There is nothing wrong or unconstitutional B
in specifying in terms of units of castes, those who have been identified as
"Socially and Educationally Backward Classes" on the basis of criteria of
social and educational backwardness. Reservation is not anti merit. In the

.... , . absence of caste data after 1931, there was no alternative but to project the
population proportion of social and educational backward classes and other
backward classes from the next best source i.e. latest available census of 1931. C
The identification and listing of such classes by Mandal Commission has
nothing to do with the census of 193 I but was based on multiple approach
in the contemporary context only and not in the context of 1931.

Determination or classification as to which class belongs to social and
educational backward class or other backward class as made by the Government D
of India is valid and the Backward Classes Commission has a statutory
function of examining as to which class included in the list is not really
backward. Reservation policy is not dis-integrative and is not against the
unity and integrity of the nation. On the contrary, according to him, reservation
policy is a means of integrating the society disintegrated over the centuries E
by the age old caste system. It is submitted that the lists of OBCs identified
on the basis of social and educational backwardness have been determined.
The Ministry of Welfare (now named as Ministry of Social Justice &
Empowerment) is in charge of the subject. There are State-wise lists. Once
issued, these lists continue to be in force and are binding for any or all
purposes, subject to modifications, deletions, additions from time to time in F
accordance with the Backward Classes Act and in the light of decision in
Indra Sawhney's case (supra).

The lists of Scheduled Castes and Scheduled Tribes categories covered
by Clause (h) and (i) of Section 2 have already been notified in the past, and
are subject to changes in accordance with Articles 341 and 342 of the G
Constitution.

The fact that there has been centuries long historical oppreGsion in
relation to Scheduled Castes and Scheduled Tribes and Socially and
Educationally Backward Classes and Other Backward Classes, has been H
508 SUPREME COURT REPORTS (2007) 4 S.C.R.

A recognized by this Court in Indra Sawhney 's case (supra).

Reference is also made to the decision of this Court in State of A.P. v.
U.S. V. Bairam, [ 1972] I SCC 660 which was referred to in Indra Sawhney 's
case (supra).

B The contentions, as noted above, have not only focused on legal issues
but also on factors of great social relevance. The issues need deeper
consideration in the background of their legal and social importance. The only
question is whether it would be desirable to stay process of implementation
of the Act and, if so, to what extent. -
. ...:
C There i~ no dispute and in fact it was fairly accepted by learned
Additional Solicitor General that there is need for periodical identification of
the backward citizens and for this purpose the need for survey of entire
population on the basis of an acceptable mechanism. What may have been
relevant in 1931 census may have some relevance but cannot be the
D determinative factor. As was observed by this Court in Nagaraj 's case (supra)
backwardness has to be based on. objective factors whereas inadequacy has
to factually· exist.

Even in Indra Sawhney (II) [2000] 1 SCC 168 at Para 9 it was held as
follows:
E
"9. Inclusion of castes in the list of backward classes cannot be
mechanical and cannot be done without adequate relevant data. Nor
can it be done for extraneous reasons. Care should be taken that the
forward castes do not get included in the backward castes' list. In
Indra Sawhney' Pandian, J. observed (SCC p. 408, para 174) that
F before a conclusion is drawn that a caste is backward or is inadequately
represented in the services,
"the existence of circumstances relevant to the formation of
opinions is a sine qua non. If the opinion suffers from the vice
of non-application of mind or formulation of collateral grounds or
G beyond the scope of statute, or irrelevant and extraneous material,
then that opinion is challengeable".

Sawant, J. (see para 539 of SCC) too pointed out the need for proper
application of mind to the facts and circumstances, the field, the post
and the extent of existing representation and the need to balance
H representation. On behalf of himself and three others, Jeevan Reddy,
ASHOKAKUMAR THAKUR v. U.0.1. [PASAYAT,J.] 509

J. pointed out (para 798 SCC) that opinion in regard to backwardness A
and inadequate representation must be based on relevant material.
The scope of judicial scrutiny even with regard to matters relating to
subjective satisfaction are governed by the principles stated in Barium
Chemicals Ltd. v. Company Law Board, AIR ( 1967) SC 295. Likewise,
periodic examination of a backward class could lead to its exclusion
if it ceases to be socially backward or if it is adequately represented B
in the services. Once backward, always backward is not acceptable.
In any case, the "creamy layer" has no place in the reservation
system."

The concept of creamy layer cannot prima facie be considered to be C
irrelevant. It has also to be noted that 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
then to claim we are more backward than you. This truth was recognized as
unhappy and disturbing situation and such situation was noted by this Court
as a stark reality in Indra Sawhney 's case (supra). D

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According to some jurists, equality as a fundamental substantive norm
is a characteristic feature of many democratic Constitutions. In societies that
are diverse or in societies where certain groups of people were subjected to
discrimination in the past subscription to the norm of equality necessitates
an element of affirmative action. That may be the underlying object of Article E
15. In India the "Varna" system of the early Vedic period was distorted and
became a rigid and hierarchical caste system which resulted in lower castes
being socially oppressed and economically exploited. Whatever be the truth
in this plea, in the late 19th and early 20th century social reform movements
started. An eminent jurist has noted that the equality provisions in the Indian F
Constitution were intended to be a pro-active means of social engineering and
it is against this backdrop that the jurisprudence of reservations has developed
in the Indian context. By contrast, the scenario in United States and South
Africa can be looked at. The Constitution of US is older in point of time than
that of Indian or South African Constitution. When it was initially adopted
there was no mention of equality. The institution of slavery was legally G
sanctioned. It was only after the Civil War that the Thirteenth and fourteenth
amendments to the Constitution were enacted. The institution of slavery was
abolished and "equal protection clause" came to be enacted.

The "separate but equal doctrine" was sanctified by the decision of US H
510 SUPREME COURT REPORTS [2007] 4 S.C.R.
-
A Supreme Court in Plessy v. Ferguson, 163 US 537). But the fonnal equality was --"
established in US after the decision in Brown v. Board of Education (347 US
483) and the Civil Rights Act, 1964. It is to be noted that in both the United
States and South Africa, the past discrimination was along racial lines.

This Court has in several instances focused on the question as to
B whether Articles 15(4) and 16(4) are a facet of equality or a derogation from
it

Equality of opportunity is not simply a matter of legal equality. Its ....
---.. ....
existence depends not merely on the absence of disabilities but on the
presence of abilities. Where, therefore, there is inequality in fact, legal equality
c always tends to accentuate it. (See Dr. Pradeep Jain and Ors. v. Union of
India and Ors., [1984] 3 SCC 654).

In Indra Sawhney's case (supra) it appears that underlying principles
which have been identified are the identification of class, which was held to
D .
be affirmative by using castes as a proxy. The State was Constitutionally
empowered to enact affirmative action measures for backward classes.

Differentiation or classifications for special preference must not ·be
-)...

unduly unfair for the persons left out of the favoured groups.

There is another question which has been emphasized by learned counsel
E
for the petitioners is that the policy of reservation cannot be and should not
be intended to be permanent or perpetuate backwardness.

In a very significant judgment in Grutter v. Bollinger 539 US 306 the
US Supreme Court upheld the law school admission programme because it
F found "compelling state interest in diversity" in higher education. Referring 4
to an earlier judgment in Regents of University of California v. Allan Bakke,
-""('
(438 US265) the US Supreme Court by majority held that the school's interest
in obtaining a "critical mass" of minority students was indeed a "tailored
use". Majority opinion was to the effect that race conscious admissions
policies must be limited in time and that with the efflux of time the use of racial
G preferences would no longer be necessary.

According to South African Constitution the right in the Bill of Rights
may be limited so Jong as the limitation is "justifiable in an open and democratic ·y
c
society based on human dignity, equality and freedom". The justifiability of
the limitation must be assessed by evaluating the nature of the right, the
H
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ASHOKA KUMAR THAKUR v. U.0.1. [PASA YAT, J.] 511
....
,_ nature and extent of the limitation, the importance of the purpose of the
limitation, the relation between the limitation and the purpose and less
A
restrictive means to achieve the purpose.

It remains to be examined as to whether a different form of preferential
treatment other than quotas could be employed as at some stage an affirmative
action concept can be focused in this direction also. Though it is submitted B
that the number of seats available for the general category is not affected, but
that is really no answer to the broader issue.
~

~-- If there is possibility of increase in seats in the absence of reservation
it could have gone to the general category. If the stand of learned Additional
Solicitor General is accepted that the exercise was not intended to be undertaken
c
immediately and the increase would be staggered over a period of 3 years it
could not be explained as to why a firm data base could not be evolved first,
so that the exercise could be undertaken thereafter. By increasing the number
of seats for the purpose of reservation unequals are treated as equals. The
stand of learned Additional Solicitor General is that imperfection may be there D
in the data but so far as the existing modalities are concerned there is no

_ -
_,,
difficulty in adopting the same.

Another important factor which needs to be noted is the concept of
'Creamy layer''.
E
In M Nagaraj 's case (supra) it was inter-alia held as follows:

"123. However, in this case, as stated above, the main issue
con"erns the "extent ofreservation". In this regard the State concerned
will have to show in each case the existence of the compelling reasons,
;. namely, backwardness, inadequacy of representation and overall F
administrative efficiency before making provisions for reservation. As
-r- stated above, the impugned provision is an enabling provision. The
State is not bound to make reservation for SCs/STs in matters of
promotions. However, if they wish to exercise their discretion and
make such provision, the State has to collect quantifiable data showing
backwardness of the class and inadequacy of representation of that G
class in public employment in addition to compliance with Article 335.
It is made clear that even if the State has compelling reasons, as
stated above, the State will have to see that its reservation provision
~ ..
y
does not lead to excessiveness so as to breach the ceiling limit of 50%
or obliterate the creamy layer or extend the reservation indefinitely." H
512 SUPREME COURT REPORTS [2007] 4 S.C.R.

A In Nair Service Society's case (supra) it was noted as follows:

"36. Recently, a Constitution Bench of this Court in M. Nagaraj
and Ors. v. Union of India and Ors. has reaffirmed the importance of
the creamy layer principle in the scheme of equality under the
Constitution. This Court held that the creamy layer principle was on
B of the important limits on State pov1er under the Equality Clause
enshrined under Articles 14 and 16 and any violation of dilution of
the same would render the State action invalid. More precisely this
Court held:

"As stated above, the boundaries of the width of the power,
c namely, the ceiling-limit of 50% (the numerical benchmark), the
principle of creamy layer, the compelling reasons, namely,
backwardness, _inadequacy of representation and the overall
administrative efficiency are not obliterated by the impugned
amendments. At the appropriate time, we have to consider the
law as enacted by various States providing for reservation if
D
challenged. _At that time we have to see whether limitations on
the exercise of power are violated. The State is free to exercise
its discretion of providing for reservation subject to limitation,
namely, that there must exist compelling reasons of backwardness, ·
inadequacy of representation in a class of post(s) keeping in
E mind the overall administrative efficiency. It is made clear that
even if the State has reasons to make reservation, as stated
above, ifthe impugned law violates any of the above substantive
limits on the width of the power the same would be liable to be
set aside".

F 3 7. This Court reiterated the limit on State power imposed by the
creamy layer rule and the invalidity of any State action in violation of
the same by concluding as follows:

"We ~eiterate that the ceiling-limit of 50%, the concept of creamy
layer and the compelliQg reasons, namely, backwardness,
G inadequacy of representation and overall administrative efficiency
are all consti!Utional requirements· without which the structure of
equality of opportunity in Article 16 would collapse. However, in
this case, as stated, the main issue concerns the "extent of
reservation". In this regard the concerned State will have to show
in each case the existence of the compelling reasons, namely,
H
1
ASHOKAKUMAR THAKUR v. U.0.1. [PASAYAT,J.] 513

r backwardness, inadequacy of representation and overall A
administrative efficiency before making provision for reservation.
As stated above, the impugned provision is an enabling provision.
The State is not bound to make reservation for SC/ST in matter
of promotions. However if they wish to exercise their discretion
and make such provision, the State has to collect quantifiable
data showing backwardness of the class and inadequacy of
B
representation of that class in public employment in addition to
,. compliance of Article 335. It is made clear that even ifthe State

- .r has compelling reasons, as stated above, the State will have to
see that its reservation provision does not lead to excessiveness
so as to breach the ceiling-limit of 50% or obliterate the creamy
layer or extend the reservation indefinitely".
c
38. This Court rational~zed the creamy layer rule as a necessary bargain
between the competing ends of caste based reservations and the
principle of secularism. The Court opined:

"In Indra Sawhney this Court has, therefore, accepted caste as
D
..... determinant of backwardness and yet it has struck a balance with
A the principle of secularism which is the basic feature of the
Constituti<?n by bringing in the concept of creamy layer".

This Court, thus, has categorically laid down the law that determination
of creamy layer is a part of the constitutional scheme."
E

.... It, therefore, needs no reiteration that the creamy layer rule is a necessary
bargain between the competing ends of caste based reservations and the
principle of secularism. It is a part of constitutional scheme. Therefore these
cases have to be examined in detail as to whether the stand of Union of India
~
F
that creamy layer rule is applicable to only Article 16(4) and not Article 1S(5)
'r is based on any sound foundation. That is more so because the lists relatable
to Article 16(4) form the foundational base for Article 15(5).

In the background of what has been explained above, it would be
desirable to keep in hold the operation of the Act so far as it relates to Section G
6 thereof for the OBCs category only. We make it clear that we are not staying
operation of the Statute, particularly, Section 6 so far as the Scheduled Castes
and Scheduled Tribes candidates are concerned. It would be permissible for
1 ~ the respondent-Union of India to initiate or continue process, if any, for
determining on a broad based foundation "Other Backward Classes"
H
514 SUPREME COURT REPORTS [2007) 4 S.C.R.

A notwithstanding pendency of the cases before this Court and without prejudice
to the issues involved.

The writ petitions be listed in the 3rd week of August, 2007 for final
hearing. I.A. is accordingly disposed of.

B B.K. Writ petitions disposed of.

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