Ashok Kumar Thankur Case

7/28/2019 Ashok Kumar Thankur Case

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Topics Covered

Historical background of Reservation

Facts of the present case

Issues before the court Contentions/Arguments of both parties

Judgement Ratio Decidendii


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Historical Background

Reservation in India started with the appointment

of Hunter Commission in 1882 In 1921 Madras Presidency introduced Communal

GO in which 44% seats were reserved for non-brahmins, 16% each for Brahmins, Muslims,

Anglo-Indians and Christians and 8% for SCs

Last in line was the Poona pact and someprovisions of the GOI Act, 1935

In the Pre-independence era reservation was firstgiven in the case of Champakam Dorairajan.

The present case is one of the most recent caseunder reservation (April 10th 2008)


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Facts of the present case

The present case is a PIL challenging the 93rdamendment Act which enabled reservation for

OBC in government as well as private educational

institutions

Also challenged the conclusion of the Mandal

commission that 52% of Indias population is OBC

April 2006, 27% reservation was given

Government responded by saying policy will notbe implemented till the introduction of Central

Educational Institutions (Reservation in Admission

) Bill,2006


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The bill was subsequently passed in the

Parliament

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

It clarified that the benefit of reservation for theSCs and STs could not be withheld and the

Centre can go ahead with the identification process

to determine the backward classes.

The final hearing took place on 10th April 2008 by a

5 judge bench.


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Issues before the Court

Whether the 93rd Amendment Act is violative ofthe Basic structure of the constitution?

Whether the reservation granted to OBCs isarbitrary and ultra vires the provisions ofConstitution?

Whether the method adopted to define andcalculate the population figure of OBCs is

appropriate? Whether the benefit of reservation can be

extended to the creamy-layer?


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Validity of the 93rd amendment

Article 15(5) directly conflictswith Article 15(4) as bothArticles exclude the remainingprovisions of Article 15.

It was argued that theprovisions of the Act arefacially violative of Article 14and it could only be justified onthe basis of compelling Statenecessity

Article 15(5) excludes Article 15and Article 19(1)(g). Hence, it

was argued that Article 15(5)could not be read inconformity with the principles inArticles 14 and 15, and thusviolated the basic feature of theequality

Article 15(5) was specific toadmission in educationalinstitutions, whereas Article15(4) was general, Article15(5) would neutralise 15 (4)with respect to reservations in

educational institutions. On whether Article 15(5) was

constitutional in light of Article19(1)(g), the respondentsargued that both provisionsoperated in different fields

Article 15(5), insofar as it dealtwith state maintained andaided institutions, did notviolate the basic structure ofthe Constitution


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OBC reservation is arbitrary

No acceptable data for fixing27% reservation

Admission should be purely onmerit( violative of Ar 14)

Act not a genuine social

engineering measure but votebank politics and would createpermanent fissures in society

the caste cannot be the solecriteria.

Many of the castes included inSEBCs are not really backwardclasses and some of them wereeven rulers of erstwhile Statesfor a number of years. Thebenefits and privileges whichare given to SCs/STs shouldnot be extended to OBCs.

Obligation on the state tosecure to our people justicesocial, economic and political.

Fundamental Rights andDirective Principles are bothcomplementary andsupplementary to each other.Preamble The said act seeksto implement Ar 46 & 38

Affirmative action is required.The provisions in theConstitution acknowledge that

reservation is an integralpart of the principle ofequality where inequalityexists.


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Method of determination of

OBCs is invalid Foundation for fixing 27%

appears to be the view that52% of the population belongto OBC. There is nosupportable data for thisproposition. Based on the

outdated census of 1931. Moreover, the figures provided

by NSSO & NHFS placed theOBC population at 41% asopposed to the Mandalestimate being 52%.

The Government should notact on the assumption thatonce a caste is consideredbackward, it should continueto be backward for all times

Identification is based on thehistorical atrocities inflicted onthat class, discriminatorypatterns followed against thatclass, disadvantage suffered bythat class and

disempowerment in respectof the powerof the State andpolitical non-representation

It was also argued that since noCommission has fixed thepercentage below 52% and,

therefore, there is nothingwrong in fixing thepercentage at 27%.


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Validity of creamy layer

Extension of reservation benefitsto creamy layer is antithetical tothe very object of advancementof socially and educationallybackward classes

The first contention is based on

the hypothesis that the chances ofadequate number of OBCcandidates filling the entire quotaof 27% would not be possible inthe event of exclusion of creamylayer. If that had been the case,

then the Act should not haveintended to increase thenumber of seats or even for thatsake fixed such a highpercentage for OBCreservation.

The concept of creamy layermay have relevance for thepurpose ofArticle 16(4), butis really inconsequential sofar as Articles 15(4) and15(5) are concerned

In the matter ofeducationthere cannot be anyexclusion on the ground ofcreamy layer. Such exclusionwould only be counterproductive and would retard

the development and progressof the groups and communitiesand their eventual integrationwith the rest of the society.


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JUDGEMENT

The Constitution (Ninety-Third Amendment) Act, 2005 does notviolate the "basic structure" of the Constitution so far as it relates tothe state maintained institutions and aided educational institution

Creamy Layer" principle is one of the parameters to identifybackward classes. Therefore, principally, the "Creamy layer" principlecannot be applied to STs and SCs, as SCs and STs are separate

classes by themselves. Principle of exclusion of Creamy layer applicable to OBC's.

The Central Government shall examine as to the desirability of fixinga cut off marks in respect of the candidates belonging to the OtherBackward Classes (OBCs)to balance reservation with other societalinterests and to maintain standards of excellence.

Held that the determination of SEBCs is done not solely based oncaste and hence, the identification of SEBCs is not violative of Article15(1) of the Constitution.


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JUDGEMENT

So far as determination of backward classes isconcerned, a Notification should be issued by the Unionof India. This can be done only after exclusion ofthe Creamy Layer for which necessary data must beobtained by the Central Government from the State

Governments and Union Territories. Such Notification isopen to challenge on the ground of wrongful exclusion orinclusion. Norms must be fixed keeping in view thepeculiar features in different States and UnionTerritories. There has to be proper identification of Other

Backward Classes (OBCs.). For identifying backwardclasses, the Commission set up pursuant to thedirections of this Court in Indra Sawhney has to workmore effectively and not merely decide applications forinclusion or exclusion of castes.


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Ratio decidendi

"Principle of "creamy layer" is applied not as a generalprinciple of reservation but for the purpose of identifying thesocially and educationally backward class.

"Legislation cannot be challenged simply on the ground ofunreasonableness because that by itself does not constitute aground."

"Validity of a constitutional amendment and the validity ofplenary legislation have to be decided purely as questions ofconstitutional law."

"Once a candidate graduates from a university, is said to be

educationally forward and is ineligible for special benefitsunder Article 15(5) of the Constitution for post graduate andany further studies thereafter."


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"For the benefit of the 93rd Amendment the recipients should beeducationally backward as per the text of the Article 15(5) of the

constitution."

"If reservation in education is to stay, it should adhere to a basictenet of Secularism: it should not take caste into account, as longas caste is a criterion, a casteless society will never be achieved.

"Establishment and running of an educational institution falls

under the right to an occupation and right to select students onthe basis of merit is an essential feature of the right to establishand run an unaided institution, reservation is an unreasonable

restriction that infringes this right by destroying the autonomyand essence of an unaided institution."

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Ashok Kumar Thankur Case