Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1

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(2008) 6 Supreme Court Cases 1 : 2008 SCC OnLine SC 662
(BEFORE K.G. BALAKRISHNAN, C.J. AND DR ARIJIT PASAYAT, C.K. THAKKER, R.V. RAVEENDRAN AND
DALVEER BHANDARI, JJ.)
ASHOKA KUMAR THAKUR . . Petitioner;

Versus
UNION OF INDIA AND OTHERS . . Respondents.
Writ Petitions (C) No. 265 of 2006 with Nos. 269, 598 of 2006, 29, 35, 53, 336, 313,
335, 231, 425 and 428 of 2007, Contempt Petition (C) No. 112 of 2007 in WP (C) No.
265 of 2006, decided on April 10, 2008
A*. Education — Central Educational Institutions (Reservation in Admission) Act, 2006 (5 of

2007) — Ss. 3 and 2(d) & (g) — Reservation of 27% seats for OBCs in State-aided institutions
defined as “Central Educational Institutions” in S. 2(d) and not any other private unaided
institutions — Validity of — Held (per curiam), the said reservation is valid subject to the
definition of “Other Backward Classes” in S. 2(g) of Act 5 of 2007 being clarified as follows : if
the determination of “Other Backward Classes” by the Central Government is with reference to a
caste, it shall exclude the “creamy layer” among such caste
B*. Constitution of India — Arts. 14, 15 and 16 — Constitution (Ninety-third Amendment) Act,
2005 — Insertion of Art. 15(5) — Validity of — Held (per curiam), Art. 15(5) is valid to the extent
that it permits reservation for socially and educationally backward classes in State or State-aided
educational institutions subject to the exclusion of the “creamy layer” from the OBCs
— Further (per Balakrishnan, C.J. and Bhandari, J.; Pasayat and Thakker, JJ. and Raveendran,
J. expressing no opinion), exclusion of minority educational institutions from the purview of Art.
15(5) is also validçç
— However (per Balakrishnan, C.J. and Pasayat and Thakker, JJ. and Raveendran, J.),
question of validity of the inclusion of private unaided institutions within the purview of Art. 15(5)
left open for a later occasion — Per Bhandari, J., said inclusion of private unaided institutions is in
violation of the basic structure of the Constitution and hence invalid
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GUIDE TO SALIENT POINTS IN THE HEADNOTE

I. Main rulings of law on validity of Ninety-third Constitution Amendment i.e. Art. 15(5), and
impugned Act 5 of 2007
Shortnotes A and B ……………………… p. 1
II. Effect of Caste-based Reservation on society in the short and long term
Shortnotes C and D …………………… pp. 3, 4
III. Role of elementary education in eradicating caste and rendering reservation unnecessary—
Implementation of Art. 21-A
Shortnotes G, H, I and J ………………….. pp. 10-12
IV. Criteria for identification of OBCs/SEBCs using caste, and purely economic criteria—Permissibility
and extent
Shortnotes L and N …………………. pp. 19, 26
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V. Absence of time-limit for expiry of reservation under Act 5 of 2007
Shortnote O ………………………… p. 31
VI. Exclusion of creamy layer from OBCs/SEBCs, and from SCs & STs
Shortnotes P, Q, R, S, T and YE ……………. pp. 35, 36 and 52
VII. Parameters for identification of creamy layer
Shortnote W ………………………… p. 43
VIII. Standard to determine educational backwardness : Graduates if “backward”
Shortnotes X and Y ……………………… p. 45
IX. Validity of quantum of reservation provided under Act 5 of 2007
Shortnotes YA and YB …………………… p. 48
X. Cut-off marks for Reserved Category candidates
Shortnote YC ……………………….. p. 50
XI. Reversion of unfilled reserved seats to General Category
Shortnote YD ………………………. p. 50
XII. Art. 15(5) if violates Basic Structure of the Constitution
Shortnotes YF, YM, YO, YP and YU ……………….. pp. 53, 60, 63, 64, 68
XIII. Arts. 15(5) & (4)—If contradictory, and exclusion of minority institutions if violative of Art. 14
Shortnote YV ………………………. p. 68
XIV. Art. 15(5) if inserted in violation of Art. 368(2) proviso
Shortnote YX ………………………. p. 71
XV. Applicability of US case law on Race-based Affirmative Action in Indian context
Shortnote YY ……………………….. p. 72
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C. Constitution of India — Preamble and Arts. 14, 15 & 16 and 19 and 25, 26 & 27 and 368 —
Goal of casteless society — If envisaged by the Constitution — Affirmative action — Permissible
scope — Limits imposed by basic structure of Constitution — Role of education in eradicating
caste# — Reservation based on caste (in tertiary education) as a mode for affirmative action —
Efficacy and justifiability of — Violation of ethos of secularism, if any — Effect of (such)
reservation on society in the short and long term — Affirmative action if to be extended in favour
of the economically backward, irrespective of caste§ — Scope of judicial review
— Per Balakrishnan, C.J., 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 the duty of State to promote positive measures to remove barriers of inequality —
Reservations provide that extra advantage to persons who, without such support, can forever
dream of university education, without ever being able to realise it — This advantage is necessary
— However, the fact remains that any reservation or preference shall not lead to reverse
discrimination
— Per Pasayat and Thakker, JJ., the ultimate objective of the Constitution is to see that no
person gets discriminated against because of his caste — Hence, it cannot be said that the
ultimate objective is not a casteless society — Affirmative action is nothing but a crucial
component of social justice in the constitutional dispensation — But at the same time it has to be
kept in view that affirmative action does not infringe the principles of equality and/or
unreasonably restrain or restrict other fundamental freedoms and that it does not violate the
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basic structure of the Constitution — It needs no emphasis that individual rights are superior to
the social rights — All fundamental rights are to be read together — Classification on the basis of
castes in the long run has the tendency of inherently becoming pernicious — Therefore, the test
of reasonableness has to apply — When the object is elimination of castes and not perpetuation
thereof, to achieve the goal of a casteless society and a society free from discrimination based on
caste, judicial review within permissible limits is not ruled out — Fact of no exclusion from the list
of OBCs, noted — If reservation does not work, then alternative methods can be adopted —
Social empowerment cannot be and is certainly not a measure for only socially and educationally
backward classes — It also has to be for the socially and economically backward classes — A
balance in this respect is crucial
— Per Raveendran, J., to have a casteless society will be the realisation of a noble dream —
The Constitution does not specifically prescribe a casteless society nor tries to abolish caste —
But by barring discrimination in the name of caste and by providing for affirmative action the
Constitution seeks to remove the difference in status on the basis of caste — When the
differences in status among castes are removed, all castes will become equal — That will be the
beginning for a casteless egalitarian society — The immediate effect of caste-based reservation
has been rather unfortunate — Post reservation, there is a tendency even among the “forward”
to seek the
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“backward” tag — When more and more people aspire for “backwardness” instead of “forwardness” the
country itself stagnates — If there is no review of caste-based reservation, the country will become a caste
divided society permanently — Instead of developing a united society with diversity, we will end up as a
fractured society forever suspicious of each other — While affirmative action is a road to equality, care
should be taken that the road does not become a rut in which the vehicle of progress gets entrenched and
stuck — Reservation is a temporary crutch and should not become a permanent liability
— Per Bhandari, J., our constitutional goal is to establish a casteless and classless society —
The original Framers of the Constitution did not intend to provide caste-based reservation in
education to the backward classes — In inserting Art. 15(4) by the First Constitutional
Amendment, Members of the First Parliament deviated from their own goal set in the Constituent
Assembly — Art. 15(4) strengthens, rather than weakening casteism — Indra Sawhney case,
1992 Supp (3) SCC 217, upheld this decision of the First Parliament and has bound this Bench —
Caste matters and will continue to matter as long as society is divided along caste lines —
Implementation of Act 5 of 2007, instead of leading to a casteless India, would lead to a caste-
ridden society — However, no right of action arises out of the goal to promote a casteless society,
but is founded in secularism — Caste-based quotas are State-sponsored discrimination against
those who are not deemed socially and educationally backward classes (SEBCs) since caste is a
by-product of religion — Though affirmative action is allowed, there a point at which it violates
secularism — Reservation based on caste strengthens communalism — Reservation sends the
wrong message as everybody is keen to get the benefit of backward class status — Non-SEBCs
naturally seek SEBC status so that they may capture SEBC benefits — Upper castes, denied a
seat, harbour ill will against lower castes who gain admission (whether it was by merit or not) —
These feelings are the basis for discriminatory action in social life
D. Constitution of India — Arts. 14, 15 and 16 — Reservation in education — Negative effects
on the beneficiaries of reservation — Per Bhandari, J., reservation may lead to negative
discriminatory action inasmuch as General Category candidates might look down upon or question
the qualifications of SC/ST/OBC professionals : though the individual may have earned admission
on merit alone, others may presume that reservation was a factor — Further, given that
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reserved category students gain admission with lower marks, it stands to reason that they would
exhibit less confidence in their studies when pitted against the General Category — Research on
this issue conducted in the US shows that reservation impedes academic achievement by
undermining reserved category students' confidence — Thus, reservation produces consequences
that may outweigh its supposed benefits
E. Constitution of India — Preamble and Arts. 14, 15, 16, 25 to 30, 51-A(e) & 325 and 368 —
Secularism — Inherence of, in basic structure of the Constitution, re-emphasised — Reclarified
that Constitution (Forty-second Amendment) by inserting “secularism” into the Preamble, only
made explicit what was already implicit (per Bhandari, J.)
F. Constitution of India — Preamble, Pt. III and Arts. 14, 19 & 21 — Primacy of individual
rights over social rights — Per Pasayat and Thakker,
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JJ., it needs no emphasis that individual rights are superior to the social rights — Civil and Human Rights
The Constitution (Ninety-third Amendment) Act, 2005 and the enactment of the Central Educational
Institutions (Reservation in Admission) Act, 2006 (5 of 2007) (“Act 5 of 2007”) giving reservation to
Other Backward Classes (OBCs), Scheduled Castes (SCs) and Scheduled Tribes (STs) were impugned in
these writ petitions.
Article 15(5) as inserted by the Constitution (Ninety-third Amendment) Act, 2005 reads as follows:
“15(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 insofar 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.”
Section 3 of Act 5 of 2007 provided for reservation of 15% seats for Scheduled Castes, 7½% seats for
Scheduled Tribes and 27% for Other Backward Classes in only such State-aided institutions which were
defined as “Central Educational Institutions” in Section 2(d) and not any other private unaided institutions.
The percentage of reservation to various groups such as Scheduled Castes, Scheduled Tribes and Other
Backward Classes was with reference to the annual permitted strength of the Central Educational
Institutions. Section 5 of the Act mandated a proportionate increase of seats in the Central Educational
Institutions over three years to provide for the abovesaid reservation.
Though the reservation in favour of SCs and STs was not opposed by the petitioners, the reservation of
27% in favour of Other Backward Classes/Socially and Educationally Backward Classes was strongly
opposed by various writ petitioners in these cases.
Unanimously upholding the reservation in favour of OBCs subject to the exclusion of the “creamy
layer”, the Supreme Court
Held :
Per Balakrishnan, C.J.
Per Balakrishnan, C.J.
Reservation for admission in educational institutions or for public employment has been a matter of
challenge in various litigations in the Supreme Court as well as in the High Courts. Diverse opinions have
been expressed in regard to the need for reservation. Though several grounds have been raised to oppose
any form of reservation, few in independent India have voiced disagreement with the proposition that the
disadvantaged sections of the population deserve and need “special help”. But there has been considerable
disagreement as to which category of disadvantaged sections deserve such help, about the form this help
ought to take and about the efficacy and propriety of what the Government has done in this regard.
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(Para 1)
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. In the context of education, any measure
that promotes the sharing of knowledge, information and
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ideas, and encourages and improves learning, among India's vastly diverse classes deserves
encouragement. To cope with the modern world and its complexities and turbulent problems, education is
a must and it cannot remain cloistered for the benefit of a privileged few. Reservations provide that extra
advantage to those persons who, without such support, can forever only dream of university education,
without ever being able to realise it. This advantage is necessary. However, the fact remains that any
reservation or preference shall not lead to reverse discrimination.
(Paras 6 and 9)
IInd Constituent Assembly Debates, 317 (Wednesday, 22-1-1947); Vth Constituent Assembly Debates, 2
(Thursday, 14-8-1947); XIth Constituent Assembly Debates, 979 (Friday, 25-11-1949); Lauterpacht :
An International Bill of the Rights of the Man (New York, Columbia University Press, 1945); Universal
Declaration of Human Rights, Preamble, G.A. Res. 217-A, UN GAOR, 3rd Session, Part 1, at 71, UN Doc
A/810 (1948); Lyndon B. Johnson : Harvard University Commencement Address, To Fulfill These
Rights, 4-6-1965; Justice Ruth Bader Ginsburg at the 51st Cardozo Memorial Lecture in 1999, referred
to
Arjun Sen Gupta Report on “Conditions of Work and Promotion of Livelihood in the Unorganised
Sector” (July 2007), cited
Per Pasayat and Thakker, JJ.

The respondents submit that while the Constitution really does not think of a casteless society, it
prohibits untouchability in the background of Article 17. It has to be noted that both in Articles 15 and 16
the stress is on non-discrimination on the ground of caste. The Preamble of the Constitution also throws
light on this aspect. Ultimately, if the social status of a man goes in the higher direction because of his
education, the difference in status gets obliterated. Education is a great leveller. In that sense, the ultimate
object is that every Indian citizen could have the social status which is not inferior to another and that
would be obliteration of the difference in status. The ultimate objective is to see that no person gets
discriminated against because of his caste. If that be so, it would not be right to say that the ultimate
objective is not a casteless society.
(Para 238)
As has been conceded, affirmative action is not under challenge. Affirmative action is nothing but a
crucial component of social justice in the constitutional dispensation but at the same time it has to be kept
in view that the same does not infringe the principles of equality of which it is a part and/or unreasonably
restrains or restricts other fundamental freedoms and that it does not violate the basic structure of the
Constitution.
(Para 325)
Classification on the basis of castes in the long run has tendency of inherently becoming pernicious.
Therefore, the test of reasonableness has to apply. When the object is elimination of castes and not
perpetuation to achieve the goal of casteless society and a society free from discrimination of caste,
judicial review within the permissible limits is not ruled out. But at the same time compelling State interest
can be considered while assessing backwardness.
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(Para 328)
The ultimate object is to bring those who are disadvantaged to a level where they no longer continue to
be disadvantaged. It needs no emphasis that individual rights are superior to the social rights. All
fundamental rights are to be read together. The inequalities are to be removed. Yet the fact that there has
been no exclusion from the list of OBCs raises a doubt about the real concern to remove inequality. The
ultimate objective is to bring people to a particular level so that there can be equality of opportunity. In that
context, one has to keep in view the
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justice and redress principles. There should not be mere equality in law but equality in fact.
(Paras 278 and 279)

Per Pasayat and Thakker, JJ.
The necessary ingredients of equality essentially involve equalisation of unequals. Linked with this
question the problem posed by the petitioners is whether reservation is the only way to equalise unequals?
There are several methods and modes. If reservation really does not work as contended by the
petitioners, then the alternative methods can be adopted. It is the stand of the respondents that not only
reservations but other incentives like free lodging and boarding facilities have been provided in some
States.
(Para 280)
Social empowerment cannot be and is certainly not a measure for only socially and educationally
backward classes. It also has to be for the socially and economically backward classes. Unless this balance,
which is very delicate, is maintained the system inevitably will develop a crack and this crack may after a
certain point of time be difficult to be joined. Instead of lightening the society from castes or classes it will
be overburdened and a point of time may come when we shall not be able to bear the burden any further.
Timely steps in this regard will save the Indian society and democracy from a catastrophe of collapse
because of something which the Constitution wants to obliterate.
(Para 319)
Per Raveendran, J.
Caste has divided this country for ages. It has hampered its growth. To have a casteless society will be
the realisation of a noble dream. To start with, the effect of reservation may appear to perpetuate caste.
The immediate effect of caste-based reservation has been rather unfortunate. In the pre-reservation era
people wanted to get rid of the backward tag—either social or economical. But post reservation, there is a
tendency even among those who are considered as “forward”, to seek the “backward” tag, in the hope of
enjoying the benefits of reservations. When more and more people aspire for “backwardness” instead of
“forwardness” the country itself stagnates. Reservation as an affirmative action is required only for a
limited period to bring forward the socially and educationally backward classes by giving them a gentle
supportive push. But if there is no review after a reasonable period and if reservation is continued, the
country will become a caste divided society permanently. Instead of developing a united society with
diversity, we will end up as a fractured society forever suspicious of each other. While affirmative
discrimination is a road to equality, care should be taken that the road does not become a rut in which the
vehicle of progress gets entrenched and stuck. Any provision for reservation is a temporary crutch. Such
crutch by unnecessary prolonged use, should not become a permanent liability. It is significant that the
Constitution does not specifically prescribe a casteless society nor tries to abolish caste. But by barring
discrimination in the name of caste and by providing for affirmative action the Constitution seeks to
remove the difference in status on the basis of caste. When the differences in status among castes are
removed, all castes will become equal. That will be a beginning for a casteless egalitarian society.
(Para 666)
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Per Bhandari, J.
On careful analysis of the Constituent Assembly and the Parliamentary Debates, one thing is crystal
clear : our leaders have always and unanimously proclaimed with one voice that our constitutional goal is
to establish a casteless and classless society. It is our bounden duty and obligation to examine the
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validity of the Ninety-third Constitution Amendment in the background of the Preamble and the ultimate
goal that runs through the pages of the Constitution. If we permit this impugned legislation to be
implemented, instead of a casteless and classless India, we would be left with a caste-ridden society.
(Paras 364, 365 and 368)

The original Framers of the Constitution did not intend to provide caste-based reservation in education
to the backward classes. Soon after the Constitution was adopted, the very same Framers acted quickly
to permit reservation for SC/ST/SEBCs in education by adding Article 15(4), vide the First Amendment, to
the Constitution. In doing so, they deviated from their own goal—the casteless society would have to wait.
The First Parliament, by enacting Article 15(4), deviated from the original Framers' intent. They passed an
amendment that strengthens, rather than weakening casteism. In Indra Sawhney case, 1992 Supp (3)
SCC 217, the Supreme Court upheld this decision and bound us to a certain degree on this point. Indra
Sawhney case has tied our hands. Caste matters and will continue to matter as long as we divide society
along caste lines. Caste-based discrimination remains. Violence between castes occurs. Caste politics rages
on. Where casteism is present, the goal of achieving a casteless society must never be forgotten. Any
legislation to the contrary should be discarded.
(Paras 557, 562 to 568, 574 and 605)
Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC
385, followed
Per Bhandari, J.
The intention of Article 15 is to prohibit discrimination against citizens. This intention was only qualified
for women and children. In fact, the original Framers rejected an amendment that would have watered
down the prohibition in Article 15 against discrimination. A Member of the Constituent Assembly, Prof. K.T.
Shah sought special protection for SC/STs. Prof. Shah effectively wanted the equivalent to Articles 15(4)
and 15(5) in the Constitution but did not get it. His amendment was negated. Dr. Ambedkar disagreed with
Prof. Shah on the limited ground that it would have given States the green light to segregate SC/STs from
General Category students. Dr. Ambedkar was concerned that special provisions would lead to negative
discriminatory action in the guise of affirmative action. Whether or not this would have happened is unclear,
but his concern seems well placed. A similar problem arises today, when the general category looks down
upon or questions the qualifications of SC/ST/OBC professionals : though the individual may have earned
admission on marks alone, others may presume that reservation was a factor. Such a belief, regardless of
veracity, cannot bode well for the career prospects of SC/ST/SEBCs.
(Paras 569 to 571)
In sum, by limiting Article 15(3) to women and children and rejecting an amendment equivalent to
Article 15(4), the original Framers' intent was clear : no special provisions for backward classes
(SEBC/SC/STs) in education were to dilute Article 15(1)'s prohibition against discrimination based on caste.
(Paras 573 and 574)
Constituent Assembly Debates, Vol. 7, pp. 650, 655-56, 661 and 664 dated 29-11-1948 and p. 681
dated 30-11-1948; Vol. 8, 1949, pp. 936-41; Vol. 9, pp. 645, 663-64 dated 24-8-1949 and p. 702
dated 26-8-1949; Granville Austin : Indian Constitution : Cornerstone of a Nation, pp. 26, 27, fn. 5, and
p. 323, 1st Edn., 1972; Parliamentary Debates on 13-6-1951 and 29-5-1951 respectively, referred to
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In the instant case, the Union of India argued that Article 15(4), inserted by the First Amendment to the
Constitution, reflects the intent of the original Framers because it was passed by the same Members that
drafted the original Constitution. In the Parliamentary Debates in 1951, Prime Minister Nehru argued in
favour of amending the Constitution. He and other Members of the First Parliament, as distinguished from
the original Framers who had drafted the original Constitution, did not hide their disapproval of Champakam
Dorairajan, 1951 SCC 351 : AIR 1951 SC 226. Article 15(4) was introduced to overturn that judgment. To
justify Article 15(4), which represented a dramatic departure from equality as envisaged in Articles 15(2),
(3) and 29(2), Nehru said that Article 15(4) would give effect to “what … was really intended or should be
intended”. Yet, the original Framers, as explained above, had no intention of providing special provisions for
SC/STs in education (and a fortiori if not for them, nor for SEBCs). What “should be intended” is a far cry
from what they specifically enacted and specifically rejected. It follows that Article 15(4) deviated from the
original Framers' original intent.
(Para 574)
To be clear, there is no claim arising out of the goal to promote a casteless society. No right of action
exists. The right of action is found in secularism. Though not explicitly found in the unamended Constitution,
the original Framers made it clear that India was to be a secular democracy. Discrimination based on
religion is prohibited by Articles 14, 15(1) and 15(2), 16(1) and 16(2), 29(2) and 325. The original
Framers went out of their way to ensure that minorities would be able to maintain their identity. Articles 25
to 30 may be referred to. With rights come responsibilities. One of them is found at Article 51-A(e). Relying
on these provisions, S.R. Bommai, (1994) 3 SCC 1, declared secularism “… a constitutional goal and a
basic feature of the Constitution. Any step inconsistent with this constitutional policy is, in plain words,
unconstitutional”. The Court reasoned that the original Framers adopted Articles 25, 26 and 27 so as to
further secularism. Secularism was very much embedded in their constitutional philosophy. This is relevant
today because quotas are State-sponsored discrimination against those who are not deemed SEBCs—
caste being a by-product of religion. Though affirmative action is allowed, there is a point at which it
violates secularism. Finally, it is noted that the Forty-second Amendment, which formally inserted
secularism into the Preamble, merely made explicit what was already implicit.
(Paras 603 and 604)
S.R. Bommai v. Union of India, (1994) 3 SCC 1, relied on
Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225; Indira Nehru Gandhi v. Raj Narain, 1975 Supp
SCC 1 : AIR 1975 SC 2299 : (1976) 2 SCR 347, referred to
The use of caste to identify SEBCs runs afoul of the casteless/classless society, in violation of
secularism. It is said that if reservation in education is to stay, it should adhere to a basic tenet of
secularism : it should not take caste into account. Reservation based on caste strengthens communalism.
Reservation sends the wrong message. Everybody is keen to get the benefit of backward class status. Non
-SEBCs naturally seek SEBC status so that they may capture SEBC benefits. Upper castes, denied a seat,
harbour ill will against lower castes who gain admission (whether it was by merit or not). These feelings are
the basis for discriminatory action in social life.
(Paras 637, 371 and 576)
Discrimination is not the only problem exacerbated by reservation. Given that reserved category
students gain admission with lower marks, it also stands to reason that they would exhibit less confidence
in their studies when pitted against the General Category. In her work on the unintended consequences of
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preferential treatment for minorities in college admissions in the United States, Marie Gryphon, a policy
analyst for the Cato Institute (Washington, D.C.), writes that recent research shows that reservation
impedes academic achievement by undermining reserved category students' confidence. That preferences
harm students' self-images, and this harm has practical costs in terms of grades and graduation rates. The
point is that reservation produces consequences that may outweigh its supposed benefits.
(Para 577)
The Affirmative Action Myth, Executive Summary, No. 540, 6-4-2005, pp. 9-10, relied on
One of the prominent advocates of reservation later realised that the policy did more harm than good.
Prime Minister Nehru wrote the following letter to Chief Ministers on 27-6-1961:“I have referred above to
efficiency and to our getting out of our traditional ruts. This necessitates our getting out of the old habit of
reservations and particular privileges being given to this caste or that group. The recent meeting we held
here, at which the Chief Ministers were present, to consider national integration, laid down that help should
be given on economic considerations and not on caste. It is true that we are tied up with certain rules and
conventions about helping Scheduled Castes and Tribes. They deserve help but, even so, I dislike any kind
of reservation, more particularly in service. I react strongly against anything which leads to inefficiency and
second-rate standards. I want my country to be a first-class country in everything. The moment we
encourage the second rate, we are lost. The only real way to help a backward group is to give
opportunities for good education. This includes technical education, which is becoming more and more
important. Everything else is provision of some kind of crutches which do not add to the strength or health
of the body. We have made recently two decisions which are very important : one is, universal free
elementary education, that is the base; and the second is scholarships on a very wide scale at every grade
of education to bright boys and girls, and this applies not merely to literary education, but, much more so,
to technical, scientific and medical training. I lay stress on bright and able boys and girls. I have no doubt
that there is a vast reservoir of potential talent in this country if only we can give it opportunity.”
(Para 585)
G. Constitution of India — Arts. 21-A, 45, 46 & 51-A(k) and Art. 15(5) — Importance and vital
significance of the fundamental right under Art. 21-A to the Nation's progress — Effectuation of
right to free and compulsory education under Art. 21-A — Necessity of — Role of
primary/secondary education in eradicating caste and rendering reservation unnecessary
— Primary/secondary education and special provisions for socially and educationally backward
classes in higher education — Balancing of priorities and expenditure between — Discretion open
to Government in respect of — Financial constraints as an excuse — Non-availability of — Extent
of judicial intervention permissible
— Held (per Bhandari, J.; Pasayat and Thakker, JJ. impliedly in concurrence), the root cause of
social and educational backwardness is poverty — Reservation sends the wrong message as
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 Art. 21-A — We must provide educational opportunities from day one — Only then
will the 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 most important fundamental right
may be
Page: 11
Art. 21-A, since without Art. 21-A the other fundamental rights are effectively rendered meaningless —
63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
Education stands above other rights, as one's ability to enforce one's fundamental rights flows from one's
education — Education should be compulsory because in essence a citizen is only free when he can make a
meaningful challenge to his fellow citizens' or Government's attempt to curtail his natural freedom —
Without education a citizen may never come to know of his other rights — Nor would a citizen have the
resources to adequately enforce them without education — This is ultimately why the judiciary must
oversee Government spending on free and compulsory education
— The State is under a mandatory obligation to implement Art. 21-A on a priority basis —
There is no corresponding constitutional right to higher education — An inversion in priorities
between higher and primary/secondary education would make compliance with Art. 21-A
extremely difficult — Spending on higher at the expense of primary/secondary education raises
the spectre of conflict with Art. 21-A — According to HRD Annual Reports read with the Union of
India Budget 2008-2009, roughly seven times as much is spent on individual college students
than the individual primary or secondary student — In a country where only 18% of those in the
relevant age group make it to higher education, this state of affairs is unacceptable — Statistics
showing the dismal state of affairs with regard to availability of educational opportunities and the
quality of education being imparted, discussed in detail — Our priorities have to be changed and
the State has to place much greater emphasis on allocating more funds for primary and
secondary education — Time and again, the Supreme Court has observed that the State cannot
avoid its constitutional obligation on the ground of financial liabilities — Though the power of the
public purse is vested in Parliament, nevertheless it remains within the judiciary's scope to
ensure that the fundamental right under Art. 21-A is upheld — Supreme Court will not ignore the
Art. 21-A right to education, when a dearth of quality schooling puts it in jeopardy
— Held (per Pasayat and Thakker, JJ.), though the Government has a large area of discretion
in choosing priorities, the fundamental stress has to be on primary and secondary education so
that a proper foundation for higher education can be effectively laid — It is not merely the
existence of schemes but the effective implementation thereof that is important — Better
coordination between the funds provider and utiliser is necessary — Lastly, financial constraint
cannot be a ground to deny fundamental rights — Education — Rights and Entitlements —
Fundamental right to education
H. Constitution of India — Art. 21-A — Total compliance with — What is — Necessity of
providing quality education — Held (per Bhandari, J.; Pasayat and Thakker, JJ. impliedly in
concurrence), total compliance with Art. 21-A means that good quality education is imparted and
all children aged six to fourteen regularly attend schools — Art. 21-A's reference to “education”
must mean something — Implied within “education” is the idea that it will be quality education —
Current performance indicates that much improvement needs to be made before “education” can
be qualified with “quality” — The ultimate goals to be achieved under Art. 21-A would be (1)
keeping children in school, (2) ensuring that they learn how to think critically, and (3) ensuring
that they learn skills that will help them secure gainful
Page: 12
employment — Statistics showing dismal state of affairs with regard to availability of educational
opportunities and the quality of education being imparted, discussed in detail — Contribution of Sarva
Shiksha Abhiyan noted — Education — Rights and Entitlements
I. Constitution of India — Arts. 21-A, 45, 46 and 51-A(k) — Provision of compulsory education
under Art. 21-A — Persons responsible for ensuring that children attend school — Per Bhandari,
J., Art. 21-A read with Art. 51-A(k) distributes the obligation of ensuring that children regularly
attend school between parents, the State and potential employers of children — Role and efficacy
63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
155 (1987) 1 SCC 362 : (1987) 2 ATC 502
156 (1997) 3 SCC 261 : 1997 SCC (L&S) 577
157
Islamic Academy of Education v. State of Karnataka, (2003) 6 SCC 697
158 AIR 1957 SC 699
159 St. Stephen's College v. University of Delhi, (1992) 1 SCC 558
160 Waman Rao v. Union of India, (1981) 2 SCC 362
161 (1996) 6 SCC 580 : 1996 SCC (L&S) 1480
o* Ed. : Para 535 corrected vide Official Corrigendum No. F.3/Ed.B.J./41/2008 dated 6-6-2008.
162
68 L Ed 686 : 264 US 286 (1923)
163 65 L Ed 2d 902 : 448 US 448 (1980)
164
500 US 352 (1991)
165 50 L Ed 2d 450 : 429 US 252 (1977)
166
48 L Ed 2d 597 : 426 US 229 (1976)
167 30 L Ed 220 : 118 US 356 (1885)
p* Ed. : All five-Judges rendered opinions in K.C. Vasanth Kumar case, 1985 Supp SCC 714
168 AIR 1959 SC 1318 : (1960) 1 SCR 426
q* Ed. : Paras 601 and 602 corrected vide Official Corrigendum No. F.3/Ed.B.J./41/2008 dated 6-6-2008.
169
S.R. Bommai v. Union of India, (1994) 3 SCC 1
170 Ahmedabad St. Xavier's College Society v. State of Gujarat, (1974) 1 SCC 717 : (1975) 1 SCR 173
r* Ed. : Para 629 corrected vide Official Corrigendum No. F.3/Ed.B.J./41/2008 dated 6-6-2008.
s* Ed. : Para 663 corrected vide Official Corrigendum No. F.3/Ed.B.J./34/2008 dated 23-4-2008.
t*
This Order has been signed by all the five Hon'ble Judges constituting the Constitution Bench.
u* Ed. : Para 371 corrected vide Official Corrigendum No. F.3\Ed.B.J.\53\2011 dated 18-10-2011.
Disclaimer: While every effort is made to avoid any mistake or omission, this casenote/ headnote/ judgment/ act/ rule/ regulation/ circular/ notification is
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Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1

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Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1

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SCC Online Web Edition, © 2024 EBC Publishing Pvt. Ltd.

Page 1 Thursday, March 21, 2024

(2008) 6 Supreme Court Cases 1 : 2008 SCC OnLine SC 662

ASHOKA KUMAR THAKUR . . Petitioner;

A*. Education — Central Educational Institutions (Reservation in Admission) Act, 2006 (5 of

GUIDE TO SALIENT POINTS IN THE HEADNOTE

Per Pasayat and Thakker, JJ.

(Paras 278 and 279)

(Paras 364, 365 and 368)

S.R. Bommai v. Union of India, (1994) 3 SCC 1, relied on

156 (1997) 3 SCC 261 : 1997 SCC (L&S) 577

158 AIR 1957 SC 699

159 St. Stephen's College v. University of Delhi, (1992) 1 SCC 558

160 Waman Rao v. Union of India, (1981) 2 SCC 362

161 (1996) 6 SCC 580 : 1996 SCC (L&S) 1480

163 65 L Ed 2d 902 : 448 US 448 (1980)

165 50 L Ed 2d 450 : 429 US 252 (1977)

167 30 L Ed 220 : 118 US 356 (1885)

168 AIR 1959 SC 1318 : (1960) 1 SCR 426

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