Authored by: Vikash Kumar
Date of Judgement: 10 April, 2008
Citation: Writ Petition (civil) 265 of 2006
Bench: Dr. Arijit Pasayat, C.K. Thakker
Court: Supreme Court of India
Introduction
The court discussed how the Indian reservation system is similar to the affirmative action system in the United States. Our constitution says that we should be equal and we should all have the same rights and opportunities. An important part of the Constitution is Chapter 5 of the Constitution of India. In this chapter, the government of India has taken some actions to help people who are economically disadvantaged. India is unique from other countries in the world because it has a lot of different types of people.
Facts
In 2006, Indian government set aside 27% of the seats in colleges and universities to students from the OBC segment of society. The Indian Parliament passed a law to make an amendment in the Constitution in this area. This was challenged by Ashok Kumar Thakur on the grounds that this was against the "fundamental structure" of the Constitution and that he abbreviated the principle of equality under Article 14 readable with Article 15 of the Constitution. This amendment with the Central Educational Institutions (Reservation in Admission) Act, 2006 (enactment Act 5 of 2007) was challenged on the grounds that the Union of India had failed in its duties towards the citizenry.
Issues
· 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?
Arguments of Petitioner
1. The petitioner argued that the provisions of the bill violated Article 14 on the surface, and its legitimacy can only be proved on the basis of compelling national necessity. The degree of compulsion that is needed to prove that something is necessary for society is greater than what is needed to prove that something is necessary for the economy.
2. The Constitution is very important to us. It has rules that are very important to us. If the rules are changed, then it is wrong. It is wrong to change the rules of the Constitution.
3. The petitioners argued that caste cannot be the only criterion to determine who is socially and educationally backward under Article 15(4) and 15(5) of the Constitution, and the test for Article 15(5) includes “operation-cum-income” where caste might or might not be one of the considerations having a nebulous weightage, and alternatively, caste can’t be considered at all when the test is similarity with SC and ST.
4. The petitioners said that admission to educational institutions should be based only on merit and it is unfair for a state to prefer a student with lesser merit over a student who would otherwise be admitted.
Arguments of Respondent
1. The petitioners said that the response from respondents who say that the petitioners' arguments against the Constitution and Act 5 of 2007 are not valid and should be thrown away.
2. The preamble of the Indian Constitution says there is a promise to the weaker sections/SEBCs and they need to be taken care of.
3. It said that the validity of the Constitutional Amendment and the validity of plenary legislation have to be decided purely on the basis of Constitutional Law. But it also said that the vote-catching mechanism is inappropriate.
Judgement
1. 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 is the Court that confirmed that the Constitution is India's supreme law. "The decision in the Kesabana da Barati case clearly shows what the basic structure of the Constitution is. The Court also took note of the fact that the majority in Kesavanada Bharati did not hold that all aspects of Article 14 would form a part of the Basic Structure.
The court further stated that when the constitutional provisions are interpreted, the basic rule is to consider the preamble to the constitution as a guide and the directive principle of national policy as an "book of interpretation". So the court said that the Ninety-third Amendment to the Constitution does not violate the basic structure of the Constitution as it relates to the state maintained institutions and educational institutions.
2. The court decided that the SEBCs are not just based on caste, so this is not against the Constitution. Therefore, Act No. 5 of 2007 was not invalidated because of this.
3. The court held that the cream layer should be excluded from SEBC.
4. The court ruled that, for purposes of disclaimer, the cream-layer principles did not apply to SC and ST.
5. The Supreme Court ruled it is not futile to argue whether Parliament was not aware of the statistical details of the population of this country and, therefore, that 27% of reservation provided in the Act is not illegal.
Analysis
To answer the question of whether this violates the Basic Structure, the Chief Justice of the Supreme Court consulted Keshavanada Bharati and distinguished between the concept of abstract equality and concrete equality. If someone tries to change or destroy the idea of the amendment, the amendment is invalid.
The Court said that the principles of equality, like Article 14 and Article 15, may be understood as part of the "Basic Structure" of the Constitution and can't be changed, but these rights can be changed within the constraints of the broader principle. The variance of changing circumstances may necessitate modifications in the structure and design of these rights, but the temporary features 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 the mod manipulates and modifies equality.
The Indian constitution is different from other constitutions in that it has a concept of "equality". In this case, Article 15(5) was at best a “moderate abridgement or alteration” of the principle of equality, the basic structure challenge failed.
Conclusion
The judiciary has played an important role in strengthening our constitution values and democratic principle since independence. This Ashoka Kumar Thakur case is one of the examples. The idea of a society without social classes, where no one is better than anyone else, was a dream of the founding fathers of our Constitution. Our country has been divided by caste for a long time. The welfare system has not only harmed society socially but also economically. Some people would like to be included in the Scheduled Caste, Scheduled Tribes, and Other Backward Caste lists. Reservation is the policy of the Indian government which is used to give preference to Dalits, women, and lower caste men. Reservation is a means of raising the weaker part of society for a period of time. If the reservation becomes permanent, it creates a caste-based society permanently. There is no mention of trying to abolish the caste system in our constitution. The Indian Constitution prohibits any kind of discrimination on the basis of caste. The Constitution seeks to make all citizens equal in our country.
In the Ashoka Kumar Thakur case, it is clear that the identification of Scheduled Castes or Other Backward Classes can not be solely based on the “caste”. Article 15(4) is important because it only speaks of classes, not about the caste. If Article 15(4) was inserted in the constitution with the purpose of considering “caste” as one of the elements of social and educationally backwardness, it would be mentioned in the Article. The purpose of the constitution is to help in the development of back-country people and put social interest above individual interests or groups that are advanced, both socially and educationally.
This ruling helps to clear up any doubt about whether socially and economically disadvantaged castes are recognized by the Indian government. The petitioners considered that this was nothing more than an excessive delegation to the union government. This matters if the discussion. There are both national and state commissions in place to deal with the affairs of Scheduled Castes or Scheduled Tribes. India, with its large variety of people and regions, has different customs and traditions for each region. It is difficult to have a single list of SEBCs or OBCs for all the regions or states. There are many factors that play an important role in determining whether someone is of the upper, middle, or lower caste in that particular state. To solve this problem, both state and national commissions must work together to come up with a number of lists for every state.
The union government must delegate some powers to the state government so that they may come up with a completely different solution to solve the problem. If someone thinks something is wrong, they are free to seek judicial review from the court. There are many cases that deal with reservation or caste or any other related matter but one question arises, that is how can a casteless society be achieved with the existence of caste-based reservation. Because the castes are not the starting point for determining the Other Backward Classes, the government must determine how to classify them. At this point in time, no one can be completely sure about the percentage of OBCs or SEBCs in the population of India and this raises the question of how the government decides the percentage of reservation especially in public employment for all the states. It is difficult because we have to analyze the representation of a group of people in the services in order to fix the percentage of reservation and it is a very difficult job because as I mentioned before, the diversity of our country.
The Constitution of the United States lays out the rules and regulations that govern society. If you make a reservation, the problem may be solved. India's unique diversity is one of its most distinguishing features among countries in the world. We should not adopt any measures which worked in the past for other countries and may not work in India. India has a constitution that is different from the constitutions of other countries. The Indian constitution provides for a society based on the principle of equality. To live in harmony and reach higher goals, we need to get rid of social evils and praise the idea of our constitution-makers.
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