Ashok Kumar Thakur V/S Union Of India & Ors.

The concept of ‘Creamy Layer’ is applied just to identify socially and economically backward classes.

Case name:	Ashok Kumar Thakur V/S Union Of India & Ors.
Case number:	Writ Petition (Civil) No.-265 of 2006
Court:	The Supreme Court of India
Bench:	JUSTICE ARIJIT PASAYAT, JUSTICE C.K THACKER
Decided on:	APRIL 10, 2008
Relevant Act/Sections:	Article 14, 15, 15}5} of constitution of India, 1950 Ninety third amendment act of the Constitution, Section 3 of Central Education Institution Act 2006

BRIEF FACTS AND PROCEDURAL HISTORY:
In April 2006, the government chose to hold about 27% of seats for students from the OBC category in higher educational institutions in the country. This would have diminished the seats for a general, open contender to about half (subsequent to considering other saved seats). The parliament passed a bill to draw out an amendment to the constitution in this regard. Ashok Kumar Thakur petitioned to test the legitimacy of the amendments.
The Supreme Court of India in a reply to a PIL did not stay the amendment, however, gave notice to the government. The government which had confronted solid enemy of reservation fights on its turn expressed that the reservation policy would not be actualised until a bill (The Central Educational Institutions (Reservation in Admission) Bill, 2006) presented in the parliament in August 2006, for this reason, turns into a law. The bill was later passed by the parliament.
The Supreme Court stayed the operation of admission to clinical and professional institutions for OBC’s under the 27% quota category for the year 2007-2008 and coordinated that all cases (including this one) ought to be listed for the third week of August for the last hearing. The Court held that the 1931 census couldn’t be a determinative factor for distinguishing OBCs to give reservation. In any case, it explained that the advantage of reservation for the Scheduled Castes and Scheduled Tribes couldn’t be retained and the Centre can proceed with the recognisable proof cycle to decide the retrogressive classes.

In 2006, Parliament enacted the Constitution (Ninety-Third Amendment) Act, 2005 to put the private unaided educational institutions under the ambit of reservation policy of the state and promote the educational interest of the weaker section of society. This amendment widened the scope for the state to make special provisions. Clause 4 to Article 15 was added by the Constitution (First Amendment) Act, 1951, in this clause educational advancement was mentioned but the term “admission to the educational institutions” was not included.
The constitutional legitimacy of the Constitution (Ninety-Third Amendment) Act, 2005 was also challenged.

ISSUE BEFORE THE COURT:
Whether the Ninety-Third Amendment of Indian Constitution violates the basic structure of the Indian Constitution?
Whether the Delegation done through section 2(g) of the Central Educational Institutions (reservation in admission) Act is excessive in nature and does not provide for any guidelines for interpretation?
Whether Creamy layer should be excluded while determining Socially & Educationally Backward classes with regard to section 2(g) of Central Educational Institutions (reservation in admission) Act?

RATIO OF THE COURT:
On the first issue of violation of basic structure, the bench observed that none of the single unaided private educational institutions filed a petition challenging that the ninety-third amendment act violates basic structure of the constitution. The court does not want to enter into the question of whether the ninety-third amendment act violates the “basic structure” of the constitution with respect to the unaided private education al institutions. Court left this open for another appropriate case. The court only dealt with the question of constitutionality of the ninety-third amendment act with respect to the State maintained institution and aided educational institutions. For this purpose the Court relied on the judgment in the case of Kesvananda Bharati v Union of India, wherein the court held that every provision in the constitution can be amended as far as the result of the amendment does not disturb the basic structure. The court also held that in this case the principle of equality cannot be defined by one definition, rather it is a multi-pronged concept. The court stated that principle of equality is very essential for any human society and this principle is stated in Articles 14, 15, and 46 of the constitution and is considered to be the element of “basic structure” of the constitution. It may be subject to the amendment but it can be configured in a certain way in which this change must be limited within the border of principle and also cannot disturb the larger purpose behind the principle. After considering the above reasoning the court held that if the constitutional amendment has abridged or altered any provision it can be considered as the violation of “basic structure” of the constitution, it was also held that the constitution is able to adapt itself with the changing dimension of human society. Hence, the plea regarding unconstitutionality of ninety-third amendment to the constitution could not be accepted.
On the issue of excessive delegation of power, the Court concluded that “backward class” is not a new word or a new concept, it is mentioned in the constitution multiple times and there is a national as well as state commissions in the country with their primary objective to deal with the affairs of backward classes. These commissions have already laid down relevant guidelines. The court also stated that if any undeserving Caste or group or a person is included in the socially and economically backward class, it is totally open to anyone to challenge this inclusion through judicial review. Therefore, it is not proper to say it is excessive delegation to the union of India or it has been given wide powers and hence the challenge of the central educational institution fails on the ground of excessive delegation of power.
On the question of accounting for creamy layer in the process, it was noted that if the principle of the “creamy layer” is not applied in the process of determining the backward class then this exercise of identification is solely based on “Caste”. The court held that the creamy layer is introduced for the purpose of excluding some sections of a particular caste which are economically advanced or educationally forward. Creamy layer is excluded so that there can be a proper identification of socially and economically backward classes. The court held that non-exclusion of the creamy layer from SEBCs may violate Article 15(1) of the Constitution. However the court also held that the creamy layer is not applicable for the Scheduled Caste (SCs) and Scheduled Tribes (STs) because SC and ST are separate categories and also the concept of creamy layer is not applicable in the principle of equality. The concept is applied just to identify socially and economically backward classes.

LAW POINTS HELD AND IMPORTANT DIRECTIONS GIVEN BY THE COURT:-
The Constitution (Ninety-Third Amendment) Act, 2005 doesn’t violate the “basic structure” of the Constitution so far as it relates to the state maintained institutions and aided educational institutions. The question of whether the Constitution (Ninety-Third Amendment) Act, 2005 would be constitutionally legitimate or not so far as “private unaided” educational institutions are concerned, was left open to be chosen in a suitable case.
“Creamy layer” standard is one of the parameters to recognise backward classes. In this manner, chiefly, the “Creamy layer” standard can’t be applied to STs and SCs, as SCs and STs are discrete classes.
Ideally, there ought to be an audit following ten years to observe the difference in conditions.
Simple graduation (not specialised graduation) or expert regarded to be educationally forward.
Rule of the prohibition of Creamy layer applicable to OBC’s.
The Central Government will analyse regarding the allure of fixing a cut off marks in regard to the candidates from Other Backward Classes (OBCs)to offset reservation with other societal interests and to keep up norms of excellence. This would guarantee quality and merit would not suffer. On the off chance that any seats stay empty in the wake of embracing such standards, they will be topped off by candidates from general categories
A Notification ought to be given by the Union of India in regard to the determination of backward classes. This should be possible simply after the prohibition of the Creamy layer for which necessary data must be gotten by the Central Government from the State Governments and Union Territories. Such Notification is open to challenge on the ground of unfair prohibition or incorporation. Standards must be fixed keeping in view the unconventional highlights in various States and Union Territories. There must be appropriate identification of Other Backward Classes (OBCs.) For recognising in backward classes, the Commission set up as per the headings of this Court in Indra Sawhney needs to work all the more viably and not simply choose applications for consideration or prohibition of castes.
The Parliament should fix a cutoff time by which time free and obligatory education will reach to every kid. This must be done inside a half year, as the right to free and mandatory education is the most significant of the apparent multitude of fundamental rights (Art.21 A). Without education, it turns out to be extremely hard to exercise other fundamental rights.
On the off chance that material appears to the Central Government that the Institution has the right to be included for the Schedule (institutions which are barred from reservations) of The Central Educational Institutions (Reservation in Admission) Act, 2006 (No. 5 of 2007), the Central Government must take a proper choice based on materials set and on analysing the concerned issues with regards to whether Institution has the right to be included in the Schedule of the said Act about as given in Sec 4 of the said Act.
Held that the determination of SEBCs is not done exclusively on the basis of caste alone and subsequently, the identification of SEBCs is not violative of Article 15(1) of the Constitution.

DECISION HELD BY COURT:
In this case the judgment was given by JUSTICE ARIJIT PASAYAT that the Hon’ble Supreme court held that the Ninety-third amendment to the Indian Constitution does not violate the basic structure and there was no excessive delegation under section 2 (g) of Central Educational Institutions (reservation in admission) Act. Further, the court held that creamy layer was to be accounted for while providing reservations to the OBC’s but cannot be taken into account in case of SC’s & ST’s.

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