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In the Ashok Kumar Thakur v Union of India case, the court went on to discuss the status of the reservation system in India. Our constitution laid down the basis for a classless and equal society. Action like reservation has been taken by Constitution and Government to solve the problem of inequality in society. The diversity of India is unique from other countries in the world
- Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
(5) Nothing in this Article or in sub-clause (g) of clause (1) of Article shall prevent the state from making any special provision, by law, for the advancement of any socially and educationally backward class of citizens or for the Scheduled Castes or 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.
Citation: (2008) 6 SCC 1
Judges: Dr. Arijit Pasayat, C.K. Thakker
In 2006, the Government reserved 27% of the seats for students from the OBC segment in institutes of higher learning in India. The Indian Parliament passed a bill to bring out an amendment in the Constitution in this regard.
This was challenged by Ashok Kumar Thakur on the grounds that this was against the “basic structure” of the Constitution and that it abridged the principle of equality under Article 14 read with Article 15 of the Constitution.
The said Amendment along with the Central Educational Institutions (Reservation in Admission) Act, 2006 (enactment Act 5 of 2007) was further sought to be challenged on the grounds that the Union of India had failed in performing its Constitutional and Legal duties towards the citizenry and that this would have wide ramifications and ultimately result in dividing the Country on a caste basis.
- Whether the 93rd Amendment of the Constitution is against the “basic structure” of the Constitution?
- Whether act 5 of 2007 is constitutionally valid in view of the definition of “Backward Class” and whether the identification of such “backward class” based on “caste” is constitutionally valid?
- Whether the creamy layer is to be excluded from the Socially Economically Backward Classes?
- It was argued by petitioners that the provisions of the Act are facially violative of Article 14 and it could be justified only 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.
- The validity of the Constitution was further seriously challenged by arguing that the amendment is destructive of the basic structure of the Constitution.
- The petitioners contended that caste cannot be the sole criterion for determining the socially and educationally backward classes under Articles 15(4) and 15(5) of the Constitution and the test for Article 15(5) has to be “operation-cum-income” where caste may or may not be one of the may considerations having a nebulous weightage, and alternatively without conceding if caste at all is taken as one of the many considerations then it can be those castes which satisfy the tests of similarity with SC and ST.
- The petitioners contended that the admission to educational institutions should be based purely on merit and to allow a state to prefer a student with lesser merit over a student who would have otherwise got admission, is ex facie discriminatory.
- The respondents contended that the contentions of the petitioners challenging the Constitution (Ninety-Third Amendment) and Act 5 of 2007 are without any merit and are liable to be dismissed.
- It was further contended that on a harmonious reading of the preamble, Part III and Part IV, it is manifest that there is a constitutional promise to the weaker sections/SEBCs and this solemn duty has to be fulfilled.
- It further strongly contended that the validity of the Constitutional Amendment and the validity of plenary legislation have to be decided purely on the basis of Constitutional Law and the contention that the Amendment was a vote-catching mechanism is inappropriate
- The Court that The Constitution (Ninety-third Amendment) Act,2005 is to be examined in the position as laid down in the Kesavanada Bharati case. “the Judgment in Kesavanada Bharati case clearly indicates what is the basic structure of the constitution. The Court also took note of the fact that the majority in Kesavanada Bharati did not hold that all facets of Article 14 would form a part of the Basic Structure.
The Court further went on to say that when a Constitutional Provision is interpreted, the cardinal rule is to look at the Preamble to the Constitution as the guiding star and the Directive Principles of State Policy as the “book of interpretation”.
Therefore the Court held that the Ninety-third Amendment to the Constitution does not violate the “basic structure” of the Constitution so far as it relates to the State maintained institutions and aided educational institutions.
- The Court held that the Determination of the SEBCs is done not solely based on caste and hence, the identification of SEBCs is not violative of Article 15(1) of the Constitution. Therefore, Act 5 of 2007 is not invalid for this reason.
- The Court held that the creamy layer is to be excluded from the SEBCs.
- The Court held that for the purpose of reservation, the principles of “creamy layer” are not applicable to the SCs and STs.
- The Court further held that it is not futile to contend whether Parliament was not aware of the statistical details of the population of this country and, therefore, that 27% reservation provided in the Act is not illegal.
To answer the question as to whether it violated the Basic Structure the Chief Justice referred back to Kesavanada Bharati and distinguished between the concept of abstract equality and specific equality. It is to be understood, an amendment that seeks to damage or destroy the concept itself is void.
The Court further stated, “The larger principles of equality as stated in Articles 14, 15 and 16 may be understood as an element of the “Basic Structure” of the Constitution and may not be subject to Amendment, although, these, provisions, intend to configure these rights in a particular way, maybe changed within the constraints of the broader principle.
The variability of changing conditions may necessitate the modifications in the structure and design of these rights, but the transient characters of formal arrangements must reflect the larger purpose and principles that are the continuous and unalterable thread of Constitutional identity.” It can be understood that what is important is the level of abstraction at which an amendment address and modifies equality.
From an analysis of Nagaraj and other cases, it can be understood that only an Amendment that brings about a state of affairs that could not be reasonably covered by any conception of equality, would fall foul of the basic structure. In this case, Article 15(5) was at best a “moderate abridgement or alteration” of the principle of equality, the basic structure challenge failed.
 . R. Chitralekha v. State of Mysore [ AIR 1964 SC 1823]
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