CAT CASE ANALYSIS

ASHOK KUMAR THAKUR v. UNION OF INDIA

(2008) 6 SCC 1

SUBMITTED BY- SUBMITTED TO-

Rahul Ranjan Dr. K. Syamala

Semester- II Assistant Professor
Sec- A Roll- 643 Constitutional Law-I

NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW,

RANCHI
INTRODUCTION

In the case of A.K. Thakur v. Union of India1, the Constitution 93rd amendment Act, 2005 and
the Central Educational institutions (Reservation in Admission) Act, 2006 were under
constitutional scrutiny. “Reservations” for underprivileged persons in public institutions is one of
the policies devised by the Indian Legislature to espouse the cause of the disadvantaged. In the
year of 2007, the UPA led government introduced an additional 27% reservation
for “Other Backward Classes” in educational institutions. The said move was met with some
severe criticism from certain quarters of the society especially from the student community. The
analysis seeks to explain the need to preserve the policy of reservations but makes it clear that
the same must be done subject to certain limitations.

FACTS

Ashok Kumar Thakur v. Union of India petition challenged the basis of the Mandal
Commission's conclusion that OBCs constituted 52 per cent of the total population. The National
Sample Survey Organization had estimated it as 32 per cent and the National Family Health
Survey 29.8 per cent.

In April 2006, the then government of India decided to reserve nearly 27% of seats for students
from the OBC segment in institutes of higher learning in India. This decision would have
reduced the seats for a general, unreserved candidate to about 50%. The Indian parliament passed
a bill to bring out an amendment in the Constitution of India in this regard. Ashok Kumar Thakur
challenged the validity of the amendments.

The Supreme Court of India in response to the PIL refused to stay the constitutional amendment
but issued a notice to the government. The government which had faced strong anti reservation
protests on its turn stated that the reservation policy would not be implemented until a bill (The
Central Educational Institutions (Reservation in Admission) Bill, 2006) introduced in the
Parliament in the month of August 2006 for this purpose becomes a law. The bill was later
approved by the Parliament of India.

The Supreme Court, as an interim measure, stayed the operation of admission to medical and
professional institutions for OBC's under the 27% quota category for the year 2007-2008 and

1
(2008) 6 SCC 1

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directed that all cases (including this one) should be listed for the third week of August for the
final hearing and disposal on the issue. The Court held that the 1931 census could not be a
determinative factor for identifying OBCs for the purpose of providing reservation. However, it
clarified that the benefit of reservation for the Scheduled Castes and Scheduled Tribes could not
be withheld and the Centre can go ahead with the identification process to determine the
backward classes.

On 10 April 2008, the Supreme Court of India upheld the Government's 27% OBC quotas in
Government funded institutions. The Court categorically reiterated its prior stand that "Creamy
Layer" should be excluded from the ambit of reservation policy and private institutions are also
not to be included in. The verdict produced mixed reactions. Several criteria to identify creamy
layer has been recommended, which are as follows:[1]

Those with family income above Rs 250,000 a year should be in creamy layer, and excluded
from the reservation quota. Also, children of doctors, engineers, chartered accountants, actors,
consultants, media professionals, writers, bureaucrats, defence officers of colonel and equivalent
rank or higher, high court and Supreme Court judges, all central and state government Class A
and B officials. The court has requested Parliament to exclude MPs’ and MLAs’ children, too.

ISSUES
Basically there were ten issues raised in the case by the petitioners, among which the most
important were:
Was there any violation of Basic Structure Doctrine because of 93rd Amendment?
Whether Articles 15(4) and 15(5) are mutually contradictory, hence Article 15(5) is to be held
ultra vires?
Whether exclusion of minority educational institutions from Article 15(5) is violative of Article
14 of Constitution?
Whether "Creamy Layer" is to be excluded from SEBCs?
 IMPORTANT POINT FROM THE CASE
Following were the points given by K.G. BALAKRISHNAN, C.J.I. in the judgment of Ashok
Kumar Thakur v. Union of India case:
Diverse opinions have been expressed in regard to the need for reservation disadvantaged
sections of the population deserve and need “special help”.

ASHOK KUMAR THAKUR v. UNION OF INDIA Page 3

Pandit Jawaharlal Nehru, who presided over the Congress Expert Committee emphasized before
the Constituent Assembly that the removal of socio-economic inequalities was the highest
priority. He believed that only this could make India a casteless and classless society, without
which the Constitution will become useless and purposeless.
Regarding equality, Dr. Ambedkar stated in the Constituent Assembly:
“…We must begin by acknowledging the fact that there is complete absence of two things in
Indian Society. One of these is equality. On the social plane, we have in India a society based on
the principle of graded inequality which means elevation for some and degradation for others.
On the economic plane, we have a society in which there are some who have immense wealth as
against many who live in abject poverty.”
 Reservation is one of the many tools that are used to preserve and promote the essence of
equality, so that disadvantaged groups can be brought to the forefront of civil life. It is
also the duty of the State to promote positive measures to remove barriers of inequality
and enable diverse communities to enjoy the freedoms and share the benefits guaranteed
by the Constitution. Reservations provide that extra advantage to those persons who,
without such support, can forever only dream of university, education, without ever being
able to realize it.
 The Parliament introduced Article 15(5) by The Constitution (Ninety-Third Amendment)
Act, 2005 to enable the State to make such provision for the advancement of SC, ST and
Socially and Educationally Backward Classes (SEBC) of citizens in relation to a specific
subject, namely, admission to educational institutions including private educational
institutions whether aided or unaided by the State notwithstanding the provisions of
Article 19(1) (g).
 In the Statement of Objects and Reasons of the Constitution (Ninety-Third Amendment)
Act, 2005 it has been stated that :-
“At present, the number of seats available in aided or State maintained
institutions, particularly in respect of professional education, is limited in comparison to
those in private unaided institutions. To promote the educational advancement of the
socially and educationally backward classes of citizens, i.e., the OBCs orthe Scheduled
Castes ad Scheduled Tribes in matters of admission of students belonging to these

ASHOK KUMAR THAKUR v. UNION OF INDIA Page 4

 categories in unaided educational institutions other than the minority educational
institutions referred to Clause (1) of Article 30 of the Constitution, it is proposed to
amplify Article 15. The new Clause (5) shall enable the Parliament as well as the State
Legislatures to make appropriate laws for the purposes mentioned above.”
Concept Creamy Layer
Several criteria to identify creamy layer has been recommended, which are as follows:
1. Those with family income above ₹ 250,000 a year should be in creamy layer, and
excluded from the reservation quota.
2. Children of doctors, engineers, chartered accountants, actors, consultants, media
professionals, writers, bureaucrats, defense officers of colonel and equivalent rank or
higher, high court and Supreme Court judges, all central and state government Class A
and B officials. Children of MPs’ and MLAs’ too, should also be included in creamy
layer.
 ARGUMENTS OF PETITIONER

It was contended by learned Senior Counsel, Mr.Harish Salve, who confined his arguments to
the constitutionality of the provisions of the Act, especially Sub-clause (3) of Section 3 of the
Act which deals with the reservation to the extent of 27% of the total number of seats for the
"socially and educationally backward classes of citizens". It was further argued that Article 15(5)
does not protect the validity of the Act and that the provision in the Act for preferential
admission solely on the basis of caste would violate Article 29(2) of the Constitution, as has been
laid down in The State of Madras v. Srimathi Champakam Dorairajan2.

The learned Senior Counsel particularly referred to various decisions of the Supreme Court of
the United States and contended that this kind of legislation, that is, the impugned Act,
attempting affirmative action is to be treated as "suspect legislation" and it has to undergo the
tests of "strict scrutiny" and "compelling state necessity". Finally, the learned Counsel argued
that non-exclusion of creamy layer is per se illegal and contrary to what has been laid down by
this Court in Indra Sawhney v. Union of India and Ors.3

2
1951 SCR 525
3
1992 Supp (3) SCC 215.

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It was contended that the creamy layer principle is applicable to OBCs and also to SCs and STs.
It was argued that historic discrimination is not a valid criteria for determining the beneficiaries
of affirmative action and the correct approach is to look at the continuing wrong and not past
discrimination and that the quotas should not be a punishment for the non-reserved category
resulting in reverse discrimination. It was argued that the balance between what was referred to
as the "Golden Triangle" in Minerva Mills Ltd. and Ors. v. Union of India and Ors. 4 has been
totally nullified by the Ninety-Third Amendment. It was argued that the legislative declarations
of facts are not beyond judicial scrutiny and the court can tear the veil to decide the real nature of
the statute and decide the constitutional validity. It was argued that the Act 5 of 2007 is subject
to judicial review on the ground that its unreasonable and clear criteria have not been laid down
to identify OBCs and there was no compelling necessity other than political patronage.

The petitioner's learned Counsel also challenged the quantum of reservations provided under the
Act 5 of 2007. Any determination of the extent of reservation without considering the future
impact of the reservation would be unjust, arbitrary and unreasonable. Caste based reservation
would not be in the larger interest of the national unity and integrity. Reservation in the form of
quota is illegal and if some classes are to be given some benefit and to be equalized with the
general category they could be awarded some additional marks like it is being given to the
women candidates seeking admission in colleges. The benefits and privileges which are given to
SCs/STs should not be extended to OBCs. The members of the OBC communities are capable of
competing with the general category candidates and the increase in seats would entail a
corresponding increase in infrastructure, and it is submitted that an increase in infrastructure
would, therefore, to be financed through tax collections and, therefore, every member of the
public (including the general category) is entitled to be considered for admission in the said
increase. The learned Counsel also strongly objected to "caste" being taken as a means of
classification and identification of SEBCs and OBCs. It is contended that it is in complete
derogation of provisions of Article 15(1) and, according to the petitioner's learned Counsel,
many of the castes which have been included in SEBCs are really not SEBCs and thus past
historical discrimination is entirely irrelevant for conferment of benefits in the present times. It
was also contended that there are no traditional occupations now. It is submitted that the

4
[1981] 1 SCR 206

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identification of castes as a "class" to justify the same as being occupations on a presumption that
the persons belonging to a particular caste continue to follow a particular occupation especially
in the present constitutional scheme which gives freedom to choose any business, occupation or
profession is entirely fallacious.

Shri Ashoka Kumar Thakur, who appeared in person, supported all the contentions raised by
various learned Counsel and urged that the Ninety-Third Constitution Amendment as well as the
Act 5 of 2007 are unconstitutional and they are liable to be struck down.

ARGUMENTS OF RESPONDENT

On behalf of the respondents, several Senior Counsel appeared and contended that the
contentions of the petitioners challenging the Ninety-Third Constitutional Amendment and the
Act 5 of 2007 are without any merit and are liable to be dismissed. The contentions raised by the
petitioners' Counsel were refuted by the respondents' Counsel by raising the plea that affirmative
action is needed for promoting educational and economic interest of weaker section of society. It
was argued that when constitutional provisions are interpreted, it has to be borne in mind that the
interpretation is such as to further the object of their incorporation and they cannot be interpreted
in a manner that renders another provision redundant.

As regards exemption of minority educational institutions in Article 15(5), it was contended that
this was done to conform with the Constitutional mandate of additional protection for minorities
under Article 30. It was argued that Article 15(5) does not override Article 15(4). They have to
be read together as supplementary to each other and Article 15(5) being an additional provision,
there is no conflict between Article 15(4) and Article 15(5). Article 15(4), 15(5), 29(2), 30(1),
and 30(2) all together constitute a Code in relation to admission to educational institutions. They
have to be harmoniously construed in the light of the Preamble and Part IV of the Constitution. It
was also contended that the Article 15(5) does not interfere with the executive power of the State
and there is no violation of the proviso to Article 368.

The learned Senior Counsel also contended that the contention of the Petitioners that special
provisions can only be made up to 10+2 stage is untenable. If this plea is accepted, it would
result in higher education being the privilege of the higher classes only and it would be a
distortion of the concept of social advancement of the downtrodden and the negation of the goal

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envisaged by the Preamble. It was strongly contended by the learned Senior Counsel Shri
Parasaran that the validity of the constitutional amendment and the validity of plenary legislation
have to be decided purely on the basis of constitutional law.

JUDGEMENT

On 10th April 2008, the Supreme Court upheld the Government's 27% OBC quotas in
Government funded institutions. The Court categorically reiterated its prior stand that "Creamy
Layer" should be excluded from the ambit of reservation policy and private institutions are also
not to be included in.
 The Court also held that the 1931 census could not be a determinative factor for
identifying OBCs for the purpose of providing reservation. However, it clarified that the
benefit of reservation for the SC and ST could not be withheld and the Centre can go
ahead with the identification process to determine the backward classes.
 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.
 Preferably there should be a review after ten years to take note of the change of
circumstances.
 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) to balance
reservation with other societal interests and to maintain standards of excellence. 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.
 The determination of SEBC (Socially and educationally Backward Classes) is done not
solely based on caste and hence, the identification of SEBCs is not violative of Article
15(1) of the Constitution.
CONCLUSION

Ashok Kumar Thakur case is not about whether quotas should continue. It was not about
quotas v. merit. Affirmative action for the disadvantaged classes is a constitutional mandate; The

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only question is who gets them.. This judgment had created more cobwebs than it had cleared.
Ascertaining the ratio itself was an exercise in and of itself.
The most fatal flaw of this judgment is that it deepens the institution of caste based on an
improper understanding of the text and the context of the Supreme Court ruling in Indra
Sawhney. Indra Sawhney does not permanently embed caste as a starting point for identifying
backward classes. Indra Sawhney only blessed caste, it did not mandate it. The judgment
confuses “backward class” under Article 15(5) (and 15(4)) and Article 16(4). Under 15(5) (and
15(4)), numerical majority is irrelevant. A section of the society can comprise 70% of the
population and still be backward. But under Article 16(4), a section of the society must not only
be backward, but must also be “inadequately represented.” It is only in Article 16(4) that
population and its representation in state services acquires significance and not under Article
15(4) and Article 15(5). the judgment messed up judicial review standard in affirmative action
by dumping strict scrutiny. India never had complete strict scrutiny, but only partial strict
scrutiny. Dumping the entire strict scrutiny standard is like dumping the baby with bath water.
And the court only confused the existing standard. Justice Balakrishnan mentioned, but did not
flesh out the alternative “ex facie unreasonable” standard. Instead, he did the unthinkable by
putting the burden on petitioners to show that the backward classes do not constitute 27%.
Although that’s an irrelevant question because of reasons pointed above, the burden is always on
the state to justify affirmative action and not the petitioners. That was the holding in Indra
Sawhney and in the cases before that.
The only achievement of this judgment was its strong emphasis on creamy layer, but it confused
this area by lack of clarity on educational creamy layer. Mr. Venkatesan in his blogs said that
Chief Justice has clarified that there was no such ruling. The Chief Justice has no power to issue
such a clarification. Only a Supreme Court bench can issue such a clarification. Once a judge
delivers a judgment, he does not have the power to issue a clarification. (unless there is a review
petition or another bench interprets that judgment). Thus it can be inferred that there were more
flaws in the judgement than the doubts cleared. There still has a long path to walk upon for the
Indian Judiciary in order to reach a leveL of cent percent clean and clear judgements in
Constitutional amendment cases as there has been a long list of cases regarding the legality and
constitutionality of reservation laws and Supreme Court has come a long way from the approach

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in M.R. Bali v. State of Mysore5, where it struck down a law mandating 68% reservation,
questioning the findings of the Nagan Gowda Committee Report. Subsequently, in the cases of
Indra Sawhney v. Union of India6; M. Nagaraj v. Union of India7and most recently in Indian
Medical Association v. Union of India8; the Court has been far more liberal with reservation
legislation/constitutional amendment.
In the new set of case law, the Courts have given the executive a near-free reign, saying that as
long as the reservation is not founded on a palpably erroneous/biased policy, is based on certain
relevant fact-finding reports of Commissions/Committees and seeks to serve the larger ideal of
social justice, the Court would be reluctant to interfere with the policy of the Executive.

5
AIR 1963 SC 649
6
AIR 1993 SC 477
7
(2006 (8) SCC 212)
8
AIR 2011 SC 2365

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