ASHOKA KUMAR THAKUR v. UNION OF INDIA & Ors.

Judgment

1.1 The provisions of the Constitutio11 and the D Preamble lead to the irresistible conclusion that the Nation has always wanted to achieve a casteless and classless society. If the impugned legislation is permitted to be implemented, instead of a casteless and classless India, we would be left with a caste-ridden society. [para 8] E [337-B-C]

1.2 Free and compulsory education is now a fundamental right under Article 21A. The State is duty bound to implement this Article on a priority basis. There has been grave laxity in its implementation. This laxity adversely affects almost every walk of life. Nothing is more important for the Union of India than to implement this critical Article. It is directed that the Union of India to set a time limit within which this Article is going to be completely implemented. This time limit must be set within six months. In case the Union of India fails to fix the time limit, then perhaps this work will also have to be done by the Court. [paras 9 and 1 O] [337-D-F] F .G

1.3. The Union of India should appreciate in proper H ' I ~ ' - + t 42 SUPREME COURT REPORTS [2008] 4 S.C.R. A prospective that the root cause of social and educational backwardness is poverty. All efforts have to be made to eradicate this fundamental problem. Unless the creamy layer is removed, the benefit would not reach those who are in need. Reservation sends the wrong message. B Everybody is keen to get the benefit of backward class status. If we want to really help the socially, educationally and economically backward classes, we need to earnestly focus on implementing Article 21A. We must provide educationa~ opportunity from day one. Only then will the c casteless/classless society be within our grasp. Once children are of college-going age, it is too late for reservation to have much of an effect. The problem with the Reservation Act is that most of the beneficiaries will belong to the creamy layer, a group for which no benefits are necessary. Only non-creamy layer OBCs can avail of reservations in college admissions, and once they graduate from college they should no longer be eligible for post-graduate reservation. 27% is the upper limit for OBC reservation. The Government need not always provide the maximum limit. Reasonable cut off marks should be set so that standards of excellence greatly effect. The unfilled seats should revert to the general category. [para 11] (337-G-H; 338-A-C] D E

1.4 Affirmative action is employed to eliminate F substantive social and economic inequality by providing opportunities to those who may not otherwise gain admission or employment. Articles 14, 15 and 16 allow for affirmative action. To promote "Article 14 egalitarian equality, the State may classify citizens into groups, giving preferential treatment to one over another. When it classifies, the State must keep those who are unequal out of the same batch to achieve constitutional goal of egalitarian society. [para 13] [338-G-H; 339-A] G

1.5 Creamy layer inclusion violates the right to H equality. That is, non-exclusion of creamy layer and ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 43 inclusion of forward castes in reservation violates the A right to equality in Articles 14, 15 and 16 as well as the basic structure of the Constitution. [para 30] [345-G] · State of Kera/a and Anr v. N. M. Thomas and Ors. (1976) 2 SCC 310; Indra Sawhney and Ors. v. Union of India and Ors. 1992 Supp (3) SCC 217; Indra Sawhney v. Union of India B and Ors. (2000) 1 SCC-168; M. Nagaraj and Ors. v. Union of India and Ors. (2006) 8 SCC 212 - referred to.

2.1 Once one is socially advanced, he cannot be socially and educationally backward. He who is socially C forward is likely to be educationally forward as well. If either condition (social or educational) goes unmet, one cannot qualify for the benefit of reservation as SEBC. Being socially advanced, the creamy layer is not socially backward pursuant to Articles 15(4) and 15(5) of the Constitution. Even the text of Articles 15(4) and 15(5) D provides for creamy layer exclusion. In this sense, one could say that the term "creamy layer" is synonymous with "non-SEBC". [paras 32 and 33] [346-C-D]

2.2 In Sawhney I, the entire discussion was confined E only to Other Backward Classes. Similarly, in the instant case, the entire discussion was confined only to Other Backward Classes. Therefore, no opinion is expressed with regard to the applicability of exclusion of creamy layer to the Scheduled Castes and Scheduled Tribes. F [para 34] [347-B-C] Indra Sawhney and Ors. v. Union of India and Ors. 1992 Supp (3) SCC 217 - referred to.

2.3 In addition to social backwardness, the text of Article 15(5) demands that recipients are also G educationally backward. Even though the creamy layer's status as socially advanced is sufficient to disqualify them for preferential treatment, the creamy layer from any community is usually educated and will want the same for its children. They know that education is the key to H -' 44 SUPREME COURT REPORTS [2008) 4 S.C.R. A success. For most, it made them. People belonging to this group do not require reservation. [para 35] [347-D-E] C

2.4 Unless the creamy layer is removed, OBCs cannot exercise their group rights. The Union of India and other respondents argued that creamy layer exclusion is wrong B because the text of the 93rd Amendment bestows a benefit on "classes", not individuals. While it is a group right, the group must contain only those individuals that belong to the group. First take the entire lot of creamy and non creamy layer OBCs, then remove the creamy layer on an individual basis based on their income, property holdings, occupation, etc. What is left is a group that meets constitutional muster. It is a group right that must also belong to individuals, if the right is to have any meaning. If one OBC candidate is denied benefit of the special D provisions that he should have received by law, it is not the group's responsibility to bring a claim. He would be the one to do so. He has a right of action to challenge the ruling that excluded him from the special provisions afforded to OBCs. In this sense, he has an individual right. E Group and individual rights need not be mutually exclusive. In this case, it is not one or the other but both that apply to the impugned legislation. [para 46] [350-H; 351-A-D] . ' .

2.5 As long as the Government gives handouts to F certain groups, the creamy layer therein will "lap" them up. A scheme in which the poor receive no advantage can be remedied by excluding the creamy layer. [para 49] [352-B] -\ Ashoka Kumar Thakur v. State of Bihar and Ors. (1995) G 5 SCC 403; Nair Service Society v. State of Kera/a, (2007) 4 SCC 1 ; Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India and Ors. (1981) 1 SCC 246 - referred to.

3.1 The test for severability asks a subjective question: had the Parliament known its provision would H be struck would it still have passed the rest of the ,_ ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 45 legislation? It is never easy to say what the Parliament. A • would have done had it known that part of its amendment wou Id be severed. Nevertheless, it is hard to imagine that the Parliament would have said, "if the creamy is excluded, the rest of the OBCs should be denied reservation in education." It seems unlikely that it B would have been an all-or-nothing proposition for the Parliament, when the very goal of the impugned legislation of promoting OBC educational advancement does not depend on creamy layer inclusion. For these reasons, the implied inclusion of the creamy layer is severed or excluded. [para 53] (353-C-F] c

3.2 The creamy layer schedule of the O.M. dated 8.9.93, is not comprehensive: This should be revised periodically - preferably once in every 5 years, in order to ensure that creamy layer criteria take changing D .circumstances into account. [para 56] [365-A]

3.3 Apart from the people who have been excluded vide the office memo, the Government is urged to make it more comprehensive. The Government should consider excluding the children of sitting and former Members of . Parliament (MP) and Members of Legislative Assemblies (MLA) from special benefits. If constitutional authorities have been excluded from benefits because of their status or resources, the same should apply to children of former and sitting MPs and MLAs. It is hoped the F judiciary will not have to involve itself in this matter. [para 57] [365-8-C] E Indra Sawhney and Ors. v. Union of India and Ors. (1992) Supp (3) SCC 217; Ashoka Kumar Thakur v. State of Bihar and Ors. (1995) 5 SCC 403; R.M.D. Chamarbaugwal/a and Anr v. Union of India and Anr. AIR 1957 SC 628 - referred to. G 1 ~ f ~

4.1 Ultimately, the most important aspect of implementing Article 21A is that incentives should be provided to parents so that they are persuaded to send H 46 SUPREME COURT REPORTS [2008] 4 S.C.R. A

their children to school. More than punishment, creative in.centive programmes will go a long way in the implementation of the fundamental right enshrined under Article 21A. [para 79) [373-B]

4.2 It is interesting to note that compulsory education B has been introduced in one form or the other in various countries. From the historical experience of these nations, we learn that the legislation pe:-taining to compulsory education has played an important role in improving educational outcomes. [para 100) (380-0) c 0 E

4.3 The States' laws fail on two accounts. First, they are too lenient to have a deterrent effect. Second, the legislation is not adequately enforced, in part, because it (ioes not require police officers to do the job. If one analyzes the legislation passed by different States, another conclusion becomes obvious: no State has provided for an adequate punishment whose effect would be to deter citizens from committing a violation. [para 112) (384-D-E]

4.4 Analysis of these State laws reveals that they are weak in character and perhaps have never been implemented. If these laws are compared with their sister statutes in United States, one realizes that the U.S. laws are far stronger. [para 116] (385-C) F

4.5 The Government's education programmes and expenditures, wanting in many respects, are an improvement over past performa11ce. They nearly fall short of the constitutional mark. Lackluster performance in primary/secondary schools is caused in part because G Government places college students on a higher pedestal. Money will not solve all our education woes, but a correction of priorities will go a long way in achieving the Constitutional mandate. [para 122] (387-B-C]

4.6 Given that so many children drop out of, or are H absent from, school before they turn fourteen, "free '- 11 \ , ( ... ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS. 47 education" alone c.annot solve the problem. The current A patchwork of laws on compulsory education is insufficient. Monetary fines do not go far enough to ensure that Article 21A is upheld. A carrot-and-stick approach appears to be the best way to implement Article 21A. Financial incentive programmes have worked well in B other countries. We should follow their lead. Once that is done, the Government should strictly enforce effective compulsory education laws. Such a policy is bound to pay off. The Central Government should enact legislation that: c (a) provides low-income parents/guardians with financial incentives such that they may afford to send their children to sc;hool; (b) criminally penalizes those who receive financial incentives and despite such payment send their children to work; 0 (c) penalizes employers who preclude children from attending school or completing homework; E (d) the penalty should include imprisonment; the aforementioned Bill would serve as an example. The State is obligated under Article 21A to implement free and compulsory education in to to; F (e) · Until we have achieved the object of free and compulsory education, the Government should continue to increase the education budget; (f) the Parliament should set a deadline by which G time free and compulsory education will have reached every child. This must be done within six months. [paras 126 and 127] (388-D-H; 389-A-C] H 48 SUPREME COURT REPORTS [2008] 4 S.C.R. A Unni Krishnan, J.P and Ors. v. State of Andhra Pradesh and Ors. (1993) 1 SCC 645; Hussainara Khatoon and Ors.(///) v. Home Secretary, State of Bihar, Patna (1980) 1 SCC 98; Bandhua Mukti Morcha v. Union of India and Ors. (1997) 10 SCC 549; M. C. Mehta v. State of Tamil Nadu and Ors. (child B labour matter) (1996) 6 SCC 756; MC. Mehta v. Union of India (vehicular pollution) (1998) 6 SCC 63 - referred to. Kothari Commission Report 1964-1966 - referred to. +

5.1 The terms "abridge" and "abrogate" have been c employed by this Court to distinguish between acceptable and unacceptable legislation. Whether legislation abridges or abrogates is a question of degree. Using these terms is another way of asking whether the legislation had such an effect that it changed the basic structure of the Constitution. If legislation merely abridges the basic structure, the structure's identity remains. The legislation is upheld. In this sense, the Parliament may take away or destroy fundamental rights by amending the Constitution, provided that the basic structure is not altered. [para 138] [394-A-B] E 0

5.2 If it abrogates the basic structure, the structure and thus the Constitution lose their identities. The legislation must be struck down. This is determined on a case-by-case basis by applying the effect test (impact/ F rights tests). A total deprivation of fundamental rights, even in one limited area, may amount to an abrogation of the basic structure. [para 139] [394-C-D]