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Critical analysis of Ashok Kumar Thakur v.

Union of India Case.


Introduction
THE CONSTITUTION (NINETY-THIRD AMENDMENT) ACT, 2005 amended Art. 15 after clause (4),
the following clause was inserted:
"(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from
making any special provision, by law, for the advancement of any socially and educationally backward
classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions
relate to their admission to educational institutions including private educational institutions, whether
aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of
article 30.".
It is laid down in article 46, as a directive principle of State policy, that the State shall promote with
special care the educational and economic interests of the weaker sections of the people and protect them
from social injustice. To promote the educational advancement of the socially and educationally backward
classes of citizens or of the Scheduled Castes and Scheduled Tribes in matters of admission of students
belonging to these categories in unaided educational institutions, other than the minority educational
institutions referred to in clause (1) of article 30 of the Constitution.

Ashoka Kumar Thakur vs 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.

Facts of the case

In April 2006, Indian parliament passed a bill to bring out an amendment in the constitution
regarding reservation of about 27% for OBC in colleges and universities, leaving nearly 50%
seats for general cast(27% reservation for OBC + reservations for women , handicap etc. )

Ashok Kumar Thakur challenged the validity of this constitutional amendment.

Due to lot of anti-reservation protests, the Supreme Court, stayed the operation of admission to medical
and professional institutions for OBC's under the 27% quota category for the year 2007-2008 and directed
that all cases (including this one) should be listed in August for final hearing and disposal.

Judgment
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.

Important point from the case


Following where 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.

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 or the Scheduled Castes ad Scheduled Tribes in
matters of admission of students belonging to these 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. 8

It was contended by Shri Harish Salve, learned Senior Counsel, 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.
According to him, the admission to educational institutions should be based purely on
merit and to allow the State to prefer a student with lesser merit over those who would have
otherwise got admission, is ex facie discriminatory. It is submitted that all obviously
discriminatory laws are violative of the rule of equality and it is for the State to maintain the
principles of equality and to establish the need for such laws as well as their validity. 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 Vs. Srimathi Champakam
Dorairajan.

It was argued that the provisions of the Act are facially violative of Article 14 and it could only be
justified on the basis of compelling State necessity. A greater degree of compulsion is necessary
to establish a compelling State necessity than what is ordinarily required to be shown in the case
of economic legislation.

Article 15(5) makes an exception for the minority institutions covered under Article 30 and therefore
treats them differently from other private institutions. The Central Education Institution (Reservation in
Admission) Act, 2007 which has been enacted in purported exercise of the said powers, is in excess of the
said powers. Since the target beneficiaries of Article 15(5) have not been identified with a necessary
degree of specificity, the Act 5 of 2007 is illegal. There ought to be a quantitative correlation between the
benefits conferred and the extent of the problem sought to be remedied, the correlation being
reasonable and not proportionate. The Act 5 of 2007 does not provide on the manner or the principles
which the identification of OBC is to be made. Therefore, it lacks the necessary nexus with the ultimate
objects sought to be achieved.

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.
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 in MR Bali v. State of Mysore (AIR 1963 SC 649),
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 India (AIR 1993 SC 477
the Mandal case); Ashok Kumar Thakur v. Union of India (2008 (6) SCC 1), M. Nagaraj v. Union of
India (2006 (8) SCC 212) and most recently in Indian Medical Association v. Union of India; 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.
Submitted by:Kshitij Mishra

A8121512027
BBA LLB 4th sem

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