TaxTMI 
TaxTMI 
2008 (4) TMI 775
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....educational institutions and aided educational institutions; and that the question whether Article 15(5) would be unconstitutional on the ground that it violates the basic structure of the Constitution by imposing reservation in respect of private unaided educational institutions is left open. I have indicated an additional reason for rejecting the challenge to Article 15(5) on the ground that it renders Article 15(4) inoperative/ineffective . B. Validity of Central Educational Institutions (Reservation in Admissions) Act, 2006 Act No.5 of 2007: I agree with the learned Chief Justice and Pasayat J. that (i) identification of other backward classes solely on the basis of caste will be unconstitutional; (ii) failure to exclude the 'creamy layer' from the benefits of reservation would render the reservation for other backward classes under Act 5 of 2007 unconstitutional; and (iii) Act 5 of 2007 providing for reservation for other backward classes will however be valid if the definition of 'other backward classes' is clarified to the effect that if the identification of other backward classes is with reference to any caste considered as socially and economically backward, 'cre....
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....ccess to shops, public restaurants, hotels and places of public entertainment, or the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public. Clauses (3) to (5) enable the State to make special provisions in specified areas. While clause (3) is a part of the Article as originally framed, Clause (4) was added by Constitution (First Amendment) Act, 1951. Clause (5) was added by Constitution (Ninety-third Amendment) Act, 2005. Each of these three enabling provisions operate independent of each other. The opening words 'Nothing in this article' occurring in each of these clauses (3), (4) and (5) obviously refer to clauses (1) and (2) of Art. 15 and not to the other enabling clauses. Clauses (3), (4) and (5) of Article 15 are not to be read as being in conflict with each other, or prevailing over each other, but are to be read harmoniously. The need for exclusion of creamy layer. 4. Section 3 of Act 5 of 2007 mandates reservation of seats in central educational institutions for other backward classes to an extent of 27%. The term 'other backward classes' is defined as meanin....
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....r aided or unaided by the State, other than the minority educational institutions referred to in Article 30(1). It is submitted that as clause (5) of Article 15 does not override or exclude Article 29(2), any law made in exercise of power under Article 15(5) will be subject to Article 29(2), and consequently there cannot be any affirmative action by way of reservation on the ground of caste alone. 6. It is submitted on behalf of the petitioners that the object of the Constitution is to achieve an egalitarian society and any attempt to divide the citizens or the society on the ground of race, religion or caste should be straightaway rejected. It is further submitted that the Constitution nowhere recognizes or refers to 'caste' (except Scheduled Castes and Tribes) as a criterion for conferment of any right or benefit; that both clauses (4) and (5) of Article 15 refer to 'socially and educationally backward classes' and not 'socially and educationally backward castes'; that Constitution has always referred to caste in a negative sense, that is to prohibit any discrimination or affirmative action on the basis of 'caste' - [Vide Article 15(1) and (2), 16(2) and 29(2)]; and that when ....
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.... to the cases starting from Balaji to Rajendran. It reiterated the principle stated in Rajendran that if a caste as a whole is socially and educationally backward, reservation can be made in favour of such a caste on the ground that it is a socially and educationally backward class of citizens within the meaning of Article 15(4). It also cautioned that the Government should not proceed on the basis that once a class is considered as a backward class, it will continue to be backward class for all times. Vasanth Kumar (supra) held that only a caste comparable to the Scheduled Castes and Scheduled Tribes in the matter of backwardness, could be considered to be a socially and educationally backward class in favour of which reservation could be made on the basis of caste. Vasanth Kumar therefore, reiterated Balaji. 9. What requires to be noticed is neither Rajendran nor Periakaruppam nor Vasanth Kumar really departed from or diluted the principle laid down in Balaji. On the other hand, the principle laid down in Balaji was reiterated. Rajendran and Periakaruppam only show that in extreme cases where it is found that the caste under consideration was, as a whole, socially and educatio....
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.... done with reference to castes among, and along with, other occupational groups, classes and sections of people. 11. The Court however made it clear that a caste can be the starting point for determining a 'backward class of citizens' as it represents an existing, identifiable social group/class; and that if a caste should be designated as 'a backward class' then the creamy layer from such caste should be excluded. This Court observed : "In a backward class under clause (4) of Article 16, if the connecting link is the social backwardness, it should broadly be the same in a given class. If some of the members are far too advanced socially (which in the context, necessarily means economically and, may also mean educationally) the connecting thread between them and the remaining class snaps. They would be misfits in the class. After excluding them alone, would the class be a compact class. .. While we agree that clause (4) aims at group backwardness, we feel that exclusion of such socially advanced members will make the 'class' a truly backward class and would more appropriately serve the purpose and object of clause (4)" 12. It is thus seen that Indra Sawhney certai....