{"id":250128,"date":"1999-12-13T00:00:00","date_gmt":"1999-12-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/indira-sawhney-vs-union-of-india-and-ors-on-13-december-1999"},"modified":"2018-10-14T14:16:17","modified_gmt":"2018-10-14T08:46:17","slug":"indira-sawhney-vs-union-of-india-and-ors-on-13-december-1999","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/indira-sawhney-vs-union-of-india-and-ors-on-13-december-1999","title":{"rendered":"Indira Sawhney vs Union Of India And Ors on 13 December, 1999"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Indira Sawhney vs Union Of India And Ors on 13 December, 1999<\/div>\n
Author: M J Rao<\/div>\n
Bench: D.P.Wadhwa, M.J.Rao, M.B.Shah<\/div>\n
           PETITIONER:\nINDIRA SAWHNEY\n\n\tVs.\n\nRESPONDENT:\nUNION OF INDIA AND ORS.\n\nDATE OF JUDGMENT:\t13\/12\/1999\n\nBENCH:\nD.P.Wadhwa, M.J.Rao, M.B.Shah\n\n\n\n\nJUDGMENT:\n<\/pre>\n
      M.  JAGANNADHA RAO,J.\n<\/p>\n
      The  cases in this batch raise common issues  relating
\nto  the identification of ‘creamy layer’ among the  Backward
\nClasses in the State of Kerala and the implementation of the
\nlaw  declared  and directions issued in Indira\tSawhney\t Vs.
\nUnion  of  India ( 1992 (Suppl) 3, SCC 217).  The  State  of
\nKerala\ttook  time for implementation of the  directions  in
\nIndira\tSawhney\t for  appointment of a\tCommission  for\t the
\npurpose\t of identifying the creamy layer in the State but it
\nfailed\tto  appoint  a\tCommission or to  proceed  with\t the
\nimplementation.\t  Indira  Sawhney was decided in 1992.\t For
\nmore  than three years the State of Kerala did not implement
\nthe  judgment.\tThis Court by its order dated 10.7.1995 held
\n(  in IAs.  35, 36 filed by the State for extension of\ttime
\netc.)  that  the State of Kerala, represented by  its  Chief
\nSecretary  was\tguilty\tof  contempt   but  gave  a  further
\nopportunity to the state to purge the contempt and adjourned
\nthe  matter  to\t 11.9.1995.  It was made clear that  if\t the
\ndirections  of this Court were not complied with, the  Chief
\nSecretary  would ‘run the risk of being sentenced’.   Having
\nsought\ttime  for years to appoint a Commission, the  Kerala
\nLegislature then suddenly came forward with the Kerala State
\nBackward  Classes ( Reservation of Appointments or Posts  in
\nthe  Services under the State) Act<\/a>, 1995 which, in section 3<\/a>
\ndeclared  that “having regard to known facts in existence in
\nthe  State  of Kerala, that there are no  socially  advanced
\nsections  in any Backward Classes who have acquired capacity
\nto  compete  with  forward classes” and\t that  the  Backward
\nclasses\t in  the State were not “adequately represented”  in
\nthe  services under the State and they would continue to  be
\nentitled  to  reservation under Clause (4) of Article 16<\/a>  of
\nthe Constitution.  The provisions of Section 4<\/a> continued the
\nexisting  system  of reservation which was in force  as\t per
\nRules  made  in\t 1958 and Section 6<\/a> was\t incorporated  as  a
\nvalidating section with retrospective effect.  On the ground
\nthat  the provisions of this Act of 1995 were discriminatory
\nand violative of Articles 14 and 16 of the Constitution, WP.
\n699  of\t 1995 was filed by the Nair service Society,  Kerala
\nwhile  W.P.   727  of 1995 was filed by one  K.\t  Ramaswamy,
\nbelonging  to  the Elavami Community of Kerala\t(a  Backward
\nCommunity)  to\tdeclare\t the  provisions   of  the  Act\t  as
\nunconstitutional  and violative of Articles 14 and 16 of the
\nConstitution  of India.\t Some IAs were filed by\t interveners
\nto  support  one or other of the rival groups.\tThe Act<\/a>\t was
\npassed\ton  2.9.95 but was given retrospective\teffect\tfrom
\n2.10.1992.\n<\/p>\n
      As the State Government failed to appoint a Commission
\nas  directed in Indira Sawhney, this Court, by an  elaborate
\norder  dated  4.11.96 deemed it necessary to appoint a\tHigh
\nLevel\tCommittee  to  gather\tthe  necessary\t information
\nregarding  ‘creamy  layer’ and requested the Chief  Justice,
\nKerala\tHigh  Court, to appoint a retired Judge of the\tHigh
\nCourt  to be the Chairman of the High Level Committee.\t The
\nChairman  of  the Committee, it was held, could\t induct\t not
\nmore  than  4 persons as members from various walks of\tlife
\n“to  identify the creamy layer among the designated backward
\nclasses”  in the State of Kerala in the light of the  ruling
\nof  this  Court in Indira Sawhney and forward its report  to
\nthe  Supreme Court within three months.\t This Court directed
\nthe  State  Government to extend co-operation to  the  above
\nCommittee.   This Court also directed that the O.M.  of\t the
\nGovernment  of\tIndia dated 8.9.93 ( Ministry  of  Personnel
\nPublic Grievances and Pensions) where the Central Government
\nlaid down guidelines for identification of the creamy layer,
\nbe  placed  before  the High Level Committee  “for  use\t and
\nguidance”  in identifying the ‘creamy layer’ among the other
\nBackward Classes in the State of Kerala.\n<\/p>\n
      Accordingly,  the\t Chief Justice of the High Court  of
\nKerala\tnominated  Sri Justice K.J.  Joseph, as Chairman  of
\nthe  High  Level  Committee.   The   other  members  of\t the
\nCommittee  were Sri O.C.  Vincent, IAS, Sri K.P.   Mohammed,
\nAdv.,  Sri  K.\t Aravindaksha  Menon,  Retd.   District\t and
\nSessions Judge and Sri K.  Asokan, Retd.  Director of Public
\nRelations.  The said Committee, after a public notification,
\nreceived evidence and gave opportunity of hearing to various
\nindividuals,  communities  etc.\t  and submitted\t its  report
\ndated 4.8.97 to this Court identifying the “creamy layer” in
\nthe   Backward\tClasses\t of   Kerala   State.\t Thereafter,
\nobjections  were  filed in this Court by various parties  to
\nthe  said report and that is how the matter has come  before
\nus.\n<\/p>\n
      We  do  not  propose just now to\tdecide\tthe  further
\ncourse\tof  action in the suo motu contempt  proceedings  in
\nwhich the State of Kerala represented by its Chief Secretary
\nwas  held guilty of contempt and was given time to purge the
\ncontempt.   We make it clear that that issue is kept pending
\nand  matter  will  be processed later, on the basis  of\t the
\njudgment in this case and the directions which we propose to
\nissue at the end of this judgment.\n<\/p>\n
      We  have\theard  arguments of Sri\t Gopal\tSubramaniam,
\nlearned\t senior\t counsel  as  Amicus   Curiae  and  of\t Sri
\nK.K.Venugopal, learned senior counsel who contended that the
\nKerala\tAct  16\/95  was unconstitutional  and  violative  of
\nArticles  14,  16(1)  and  16(4).  We  heard  Sri  P.Krishna
\nMoorthi,  learned senior counsel for the State of Kerala and
\nSri  Rajeev  Dhawan,  learned senior counsel  for  the\tSNDP
\nYogam, Sri A.N.\t Rajan Babu, Sri EMS Anam, Ms.\tLilly Thomas
\nand  Sri V.J.  Francis and others who contended that the Act
\nwas  a\tvalid  piece  of   legislation.\t  Sri  K.N.   Raval,
\nAdditional  Solicitor  General\tstated\t that  the   Central
\nGovernment stood by the O.M.  already issued.\n<\/p>\n
      The  issues  which presently arise before\t this  Court
\nare, as follows:\n<\/p>\n
      (1)  What\t is  the  law  declared\t and  what  are\t the
\ndirections  given  in  Indira Sawhney in regard\t to  “creamy
\nlayer” in the context of Articles 14 and 16?\n<\/p>\n
      (2)  Can\tthe declaration of law in regard to  “creamy
\nlayer”\tin  the\t context  of Articles 14 and  16  in  Indira
\nSawhney\t and  in  other\t rulings be  undone  by\t the  Kerala
\nLegislature  by a retrospective validating law containing  a
\nstatutory declaration whose effect is to say that no “creamy
\nlayer”\texists\tin  the\t State\tof  Kerala?   (3)  Are\t the
\nprovisions  of\tsections  3,  4 and 6 of  the  Kerala  State
\nBackward  Classes ( Reservation of Appointments or Posts  in
\nthe  Services) Act<\/a> ( Act No.16\/95) violative of Articles  14
\nand  16\t of  the  Constitution of India?   (4)\tWhether\t the
\nviolation of Article 14(<\/a>and Article 16<\/a>)<\/a> amounts to violation
\nof the basic structure of the Constitution of India?\n<\/p>\n
      (5)  If  the provisions of sections 3, 4 and 6 of\t the
\nKerala\tAct  16\/95 are to be struck down, is the  Report  of
\nHigh  Level  Committee headed by Justice K.J.  Joseph to  be
\naccepted  and are there any valid objections to the  report?
\n(6) If sections 3, 4 and 6 of the Kerala Act 16\/95 are to be
\nstruck\tdown and the High Level Committee Report of  Justice
\nK.J.   Joseph is accepted, what further directions are to be
\nissued to the State of Kerala?\n<\/p>\n
      POINT 1:\tOur Constitution is wedded to the concept of
\nequality  and  equality is a basic feature.   Under  Article
\n15(2<\/a>),\tthere  is  a  prohibition   that  State\t shall\t not
\ndiscriminate  against  any  citizen on the grounds  only  of
\nreligion,  race,  caste,  sex and place of birth or  any  of
\nthem.\tIt  is\tequally\t true that ours\t is  a\tcaste-ridden
\nsociety.   Still,  it  is a constitutional  mandate  not  to
\ndiscriminate on the basis of caste alone.  Provisions can be
\nmade  for  the\tupliftment  of\tsocially  and  educationally
\nbackward  classes,  scheduled castes or scheduled tribes  or
\nfor  women and children.  Article 16(4)<\/a> empowers the  States
\nfor  making any provision for reservation in appointments or
\nposts  in favour of any backward class of citizens which, in
\nthe  opinion of the State, is not adequately represented  in
\nthe  services  under the State.\t Reservation is\t permissible\n<\/p>\n
(i)  in favour of any backward class of citizens;  and\t(ii)
\nif  it\tis not adequately represented in services under\t the
\nState.\t Caste\tonly  cannot be the basis  for\treservation.
\nReservation  can  be  for  a backward  class  citizen  of  a
\nparticular  caste.  Therefore,from that caste, creamy  layer
\nand  non-backward class of citizens are to be excluded.\t  If
\nthe caste is to be taken into consideration then for finding
\nout  socially and economically backward class, creamy  layer
\nof  the\t caste is to be eliminated for granting\t benefit  of
\nreservation,  because that creamy layer cannot be termed  as
\nsocially  and  economically backward.  These  questions\t are
\nexhaustively  dealt with by a nine Judge Bench of this Court
\nin  Indira Sawhney vs.\tUnion of India<\/a> [1992 Suppl.  (3) SCC
\n217],  and  it\thas been specially held\t that  `only  caste’
\ncannot be the basis for reservation.\n<\/p>\n
      Inclusion\t of  castes in the list of Backward  classes
\ncannot\tbe  mechanical and cannot be done  without  adequate
\nrelevant  data.\t Nor can it be done for extraneous  reasons.
\nCare  should  be  taken that the forward castes do  not\t get
\nincluded  in  the backward castes list.\t In Indira  Sawhney,
\nPandian,  J.   observed\t (para\t174   SCC)  that  before   a
\nconclusion  is\tdrawn  that  a\t caste\tis  backward  or  is
\ninadequately  represented in the services, “the existence of
\ncircumstances  relevant\t to the formation of opinions  is  a
\nsine  qua non.\tIf the opinion suffers from the vice of non-
\napplication  of mind or formulation of collateral grounds or
\nbeyond\tthe  scope  of\tthe   statute,\tor  irrelevant\t and
\nextraneous  material,  then the opinion\t is  challengeable”.
\nSawant, J.(see para 539 of SCC) too pointed out the need for
\nproper\tapplication of mind to the facts and  circumstances,
\nthe   field,   the  post  and\tthe   extent   of   existing
\nrepresentation\tand the need to balance representation.\t  On
\nbehalf\tof himself and three others, Jeevan Reddy J  pointed
\nout  ( para 798 SCC) that opinion in regard to\tbackwardness
\nand  inadequate\t representation\t must be based\ton  relevant
\nmaterial.   The scope of judicial scrutiny even with  regard
\nto  matters relating to subjective satisfaction are governed
\nby  the\t principles stated in Barium Chemicals Vs.   Company
\nLaw  Board  (  1966 Supple.  SCR 311).\t Likewise,  periodic
\nexamination  of a Backward class could lead to its exclusion
\nif  it ceases to be socially backward or if it is adequately
\nrepresented in the services.  Once backward, always backward
\nis  not acceptable.  In any case, the ‘creamy layer’ has  no
\nplace in the reservation system.\n<\/p>\n
      If  forward  classes are mechanically included in\t the
\nlist  of  backward  classes  or if the\tcreamy\tlayer  among
\nbackward  classes  is  not excluded, then  the\tbenefits  of
\nreservation  will  not reach the really backward  among\t the
\nbackward classes.  Most of the benefits will then be knocked
\naway  by the forward castes and the creamy layer.  That will
\nleave  the truly backward, backward for ever.  Jeevan Reddy,
\nJ.   while delivering the majority judgment, interalia, held
\nas under:\n<\/p>\n
      “If  the\treal  object  is   to  discover\t and  locate
\nbackwardness,  and if such backwardness is found in a caste,
\nit  can be treated as backward;\t if it is found in any other
\ngroup,\tsection\t or  class,  they  too\tcan  be\t treated  as
\nbackward.   (See  Page\t717 para 783).\tReservation  is\t not
\nbeing  made  under clause (4) in favour of a `caste’  but  a
\nbackward  class.   Once\t a caste satisfies the\tcriteria  of
\nbackwardness,  it becomes a backward class for the  purposes
\nof Article 16(4).”<\/a> [See Page 718 Para 784].\n<\/p>\n
      In paragraph 796, Jeevan Reddy, J.  has summarised the
\ndiscussion under Question No.3 and, inter alia, as under:\n<\/p>\n
      “A  caste can be and quite often is a social class  in
\nIndia.\t If it is backward socially, it would be a  backward
\nclass for the purposes of Article 16(4).<\/a>\n<\/p>\n
      Identification  of the backward classes can  certainly
\nbe done with reference to castes among, and alongwith, other
\ngroups,\t classes  and  sections of people.   One  can  start
\nprocess\t with the castes, wherever they are found, apply the
\ncriteria (evolved for determining backwardness) and find out
\nwhether\t it  satisfies\tthe  criteria.\tIf it  does  –\twhat
\nemerges is a “backward class of citizens” within the meaning
\nof  and for the purposes of Article 16(4).<\/a>  Similar  process
\ncan  be\t adopted in the case of other  occupational  groups,
\ncommunities and classes, so as to cover the entire populace.
\nThe central idea and overall objective should be to consider
\nall  available\tgroups,\t sections and  classes\tin  society.
\nSince  caste  represents  an existing,\tidentifiable  social
\ngroup  class  encompassing an overwhelming majority  of\t the
\ncountry’s population, one can well begin with it and then go
\nto other groups, sections and classes.”\n<\/p>\n
      Court  further considered in Paragraph 800 and held as
\nunder:\n<\/p>\n
      “…..while  answering  Question\t3(b), we  said\tthat
\nidentification\t of  backward  classes\t can  be  done\twith
\nreference  to  castes along with other occupational  groups,
\ncommunities  and  classes.  We did not say that that is\t the
\nonly  permissible method.  Indeed, there may be some  groups
\nor  classes in whose case caste may not be relevant to\tall.
\nFor    example,\t    agricultural     labourers,\t   rickshaw-
\npullers\/drivers,  street-hawkers etc.  may well qualify\t for
\nbeing designated as Backward Classes.”\n<\/p>\n
      We  shall\t next  proceed to the question\trelating  to
\n‘creamy\t layer’.   In  Indira Sawhney, on  the\tquestion  of
\nexclusion of `creamy layer’ from the Backward Classes, there
\nwas  agreement among eight out of the nine learned Judges of
\nthis  Court.   There  were five separate Judgments  in\tthis
\nbehalf\twhich  required the “creamy layer” to be  identified
\nand  excluded.\t The  judgment\tof  Jeevan  Reddy,  J.\t was
\nrendered  for  himself and on behalf of three other  learned
\nJudges,\t Kania,\t CJ and M.N.Venkatachaliah, A.M.Ahmadi,\t JJ.
\n(as they then were).  The said judgment laid emphasis on the
\nrelevance of caste and also stated that upon a member of the
\nbackward  class\t reaching  an\t“advanced  social  level  or
\nstatus”, he would no longer belong to the backward class and
\nwould  have to be weeded out.  Similar views were  expressed
\nby  Sawant, Thommen, Kuldip Singh, and Sahai, JJ.  in  their
\nseparate  judgments.   It will be necessary to refer to\t and
\nsummarise  briefly  the principles laid down in\t these\tfive
\nseparate  judgments  for  that would provide the  basis\t for
\ndecision on points 2 to 5.  While considering the concept of
\n`means-test’  or `creamy layer’, which signifies  imposition
\nof an income limit, for the purpose of excluding the persons
\n(from  the  backward class) whose income is above  the\tsaid
\nlimit,\tin  paragraph 791, the Court has noted that  counsel
\nfor  the  States  of  Bihar, Tamil Nadu,  Kerala  and  other
\ncounsel\t  for\trespondents  strongly\topposed\t  any\tsuch
\ndistinction and submitted that once a class is identified as
\na  backward  class  after  applying  the  relevant  criteria
\nincluding  the economic one, it is not permissible to  apply
\nthe  economic criteria once again and sub-divide a  backward
\nclass into two sub-categories.\tThe Court negatived the said
\ncontention  by holding that exclusion of such (creamy layer)
\nsocially  advanced  members  will make the `class’  a  truly
\nbackward  class\t and  would  more  appropriately  serve\t the
\npurpose and object of clause (4).\n<\/p>\n
      Jeevan  Reddy, J.\t dealt with the ‘creamy layer’ under
\nquestion 3(d) (para 790, 792, 793 of SCC) and under question
\n10  (para  843,\t 844).\t This  is  what\t the  learned  Judge
\ndeclared:  There are sections among the backward classes who
\nare  highly  advanced, socially and educationally  and\tthey
\nconstitute  the\t forward section of that  community.   These
\nadvanced  sections do not belong to the true backward class.
\nThey  are  “as\tforward as any other forward  class  member”
\n(para  790).   “If some of the members are far too  advanced
\nsocially   (which   in\tthe    context\t necessarily   means
\neconomically   and  may\t also\tmean   educationally),\t the
\nconnecting  thread  between  them and  the  remaining  class
\nsnaps.\tThey would be misfits in the class” (para 792).\t The
\nlearned Judge said:\n<\/p>\n
      “After  excluding\t them  alone, would the class  be  a
\ncompact\t class.\t In fact, such exclusion benefits the  truly
\nbackward”\n<\/p>\n
      A\t line  has  to\tbe drawn, said\tthe  learned  Judge,
\nbetween\t the  forward  in the backward and the rest  of\t the
\nbackward but it is to be ensured that what is given with one
\nhand is not taken away by the other.  The basis of exclusion
\nof  the\t “creamy layer” must not be merely economic,  unless
\neconomic  advancement  is so high that it necessarily  means
\nsocial\tadvancement, such as where a member becomes owner of
\na  factory and is himself able to give employment to others.
\nIn  such  a  case,  his income is a measure  of\t his  social
\nstatus.\t  In  the case of agriculturists, the line is to  be
\ndrawn  with  reference\tto the\tagricultural  land  holding.
\nWhile  fixing  income as a measure, the limit is not  to  be
\nsuch as to result in taking away with one hand what is given
\nwith  the  other.  The income limit must be such as to\tmean
\nand  signify  social  advancement.   There  are\t again\tsome
\noffices\t in  various walks of life – the occupants of  which
\ncan  be\t treated  as  socially\tadvanced,  “without  further
\ninquiry”,  such\t as  IAS and IPS officers or others  in\t All
\nIndia  Services.  In the case of these persons, their social
\nstatus\tin  society  rises quite high and the person  is  no
\nlonger\tsocially  disadvantaged.   Their children  get\tfull
\nopportunity  to realise their potential.  They are in no way
\nhandicapped  in the race of life.  Their income is also such
\nthat  they are above want.  It is but logical that  children
\nof  such persons are not given the benefits of\treservation.
\nIf  the\t categories  or\t sections above\t mentioned  are\t not
\nexcluded,  the\ttruly disadvantaged members of the  backward
\nclass  to which they belong will be deprived of the benefits
\nof  reservation.   The\tCentral\t Government  is,  therefore,
\ndirected  (para\t 793)  to identify and\tnotify\tthe  “creamy
\nlayer”\twithin four months and after such notification,\t the
\n‘creamy layer’ within the backward class shall “cease” to be
\ncovered\t by  the reservations under Article  16(4).<\/a>   Jeevan
\nReddy,\tJ.   finally  directed (see question  10)  that\t the
\nexclusion of the creamy layer must be on the basis of social
\nadvancement and not on the basis of economic interest alone.
\nIncome\tor the extent of property holding of a person is  to
\nbe  taken  as a measure of social advancement – and on\tthat
\nbasis  – the ‘creamy layer’ within a given caste,  community
\nor  occupational  group is to be excluded to arrive  at\t the
\ntrue  backward\tclass.\t There is to be constituted  a\tbody
\nwhich can go into these questions (para 847) as follows:\n<\/p>\n
      “We  direct  that such a body be constituted  both  at
\nCentral\t level\tand  at the level of the State\twithin\tfour
\nmonths\tfrom  today  ……..There   should  be\t a  periodic
\nrevision  of these lists to exclude those who have ceased to
\nbe backward or for inclusion of new classes, as the case may
\nbe.”\n<\/p>\n
      The  creamy  layer ( see para 859, sub para 3(d))\t can
\nbe,  and must be excluded.  Creamy layer has to be  excluded
\nand  `economic criteria’ are to be adopted as an indicium or
\nmeasure\t of social advancement.\t (Para 860, sub para 5)\t The
\nsocially  advanced persons must be excluded.(para 861  (b)).
\nThat  is  how  Jeevan Reddy, J.\t  summarised  the  position.
\nSawant,J.  too accepted (para 553 of SCC) that “atleast some
\nindividuals  and families in the backward classes,-  however
\nsmall\tin  number,-  gain   sufficient\t means\tto   develop
\n“capacities to compete” with others in every field.  That is
\nan  undeniable fact.  Social advancement is to be judged  by
\nthe  `capacity to compete’ with forward castes, achieved  by
\nthe  members or sections of the backward classes.   Legally,
\ntherefore,  these persons or sections who reached that level
\nare  not  entitled  any longer to be called as part  of\t the
\nbackward  class\t whatever their original birthmark.   Taking
\nout these “forwards” from the “backwards” is `obligatory’ as
\nthese  persons have crossed the Rubicon (para 553-554).\t  On
\nthe  crucial  question as to what is meant by  “capacity  to
\ncompete”,  the learned Judge explained (para 522) that if  a
\nperson\tmoves from Class IV service to Class III, that is no
\nindication  that  he  has  reached such a  stage  of  social
\nadvancement  but if the person has successfully competed for
\n“higher\t level posts” or atleast “near those levels”, he has
\nreached such a state.  Thommen,J.  (para 287, 295, 296, 323)
\nobserved  that\tif some members in a backward class  acquire
\nthe  necessary\tfinancial strength to raise themselves,\t the
\nConstitution  does  not\t extend to them\t the  protection  of
\nreservation.   The  creamy layer has to be “weeded out”\t and
\nexcluded,  if  it  has attained\t a  “certain  pre-determined
\neconomic  level”.  Kuldip Singh, J.  (para 385) referred  to
\nthe “affluent” section of the backward class.  Comparatively
\n“such  persons” in the backward class – though they may\t not
\nhave acquired a higher level of education – are able to move
\nin the society without being discriminated socially”.  These
\npersons practice discrimination against others in that group
\nwho  are  comparatively less rich.  It must be ensured\tthat
\nthese  persons\tdo not “chew up” the benefits meant for\t the
\ntrue  backward class.  “Economic ceiling” is to be fixed  to
\ncut  off these persons from the benefits of reservation.  In
\nthe  result, the “means test” is imperative to skim off\t the
\n“affluent”  sections of backward classes.  Sahai, J.   (para\n<\/p>\n
629) observed that the individuals among the collectivity or
\nthe  group  who\t may  have achieved  a\t“social\t status”  or
\n“economic  affluence”, are disentitled to claim reservation.
\nCandidates  who apply for selection must be made to disclose
\nthe  annual income of their parents which if it is beyond  a
\nlevel,\tthey  cannot be allowed to claim to be part  of\t the
\nbackward  class.  What is to be the limit must be decided by
\nthe State.  Income apart, provision is to be made that wards
\nof  those  backward classes of persons who have\t achieved  a
\nparticular  status in society be it political or economic or
\nif   their  parents  are  in   higher  services\t then\tsuch
\nindividuals  must be precluded from availing the benefits of
\nreservation.   Exclusion of “creamy layer” achieves a social
\npurpose.  Any legislative or executive action to remove such
\npersons\t   individually\t  or\t collectively\tcannot\t  be
\nconstitutionally invalid.\n<\/p>\n
      As  appears from the judgments of six out of the eight
\nJudges,\t viz.  Jeevan Reddy ( for himself and three others),
\nSawant\tand  Sahai  JJ.- ( i.e.\t six learned Judges  out  of
\nnine) -, they specifically refer to those in higher services
\nlike  IAS,  IPS\t and  All India Services or  near  about  as
\npersons\t  who\thave  reached  a  higher  level\t of   social
\nadvancement  and economic status and therefore as a mater of
\nlaw, such persons are declared not entitled to be treated as
\nbackward.   They are to be treated as creamy layer  “without
\nfurther\t inquiry”.   Likewise, persons living in  sufficient
\naffluence  who are able to provide employment to others\t are
\nto  be\ttreated as having reached a higher social status  on
\naccount\t of  their  affluence,\tand  therefore\toutside\t the
\nbackward class.\t Those holding higher levels of agricultural
\nland  holdings\tor  getting income from property,  beyond  a
\nlimit, have to be excluded from the backward classes.  This,
\nin  our\t opinion, is a judicial “declaration” made  by\tthis
\nCourt.\tThe submission of Sri Rajeev Dhawan for the S.N.D.P.
\nYogam  that  the  above\t  separate  judgments  contain\tmere
\nillustrations  and  do\tnot contain any declaration  of\t law
\ncannot,\t in  our opinion, be accepted.\tCounsel also  relied
\nupon observations in the judgment of Jeevan Reddy,J.  to the
\neffect\tthat in such a big country as ours, norms may differ
\nfrom  State to State or from region to region.\tIn our view,
\nthose  observations  do not detract from the declaration  of
\nlaw  that the above sections belong to the creamy layer\t and
\nhence are to be kept outside the backward class.  We may add
\nthat some more categories of persons who can be said to have
\ngone  outside the creamy layer are those “broad\t categories”
\nenumerated  in\tthe notification of the\t Central  Government
\ndated  8.9.93 pursuant to Indira Sawhney and the said  broad
\ncategorisation\thas  been  accepted by this Court  in  Ashok
\nKumar  Thakur  Vs.  State of Bihar and Ors.  [1995  (5)\t SCC
\n403]  as  valid.  With respect, we are in  entire  agreement
\nwith the principles laid down in Ashok Kumar Thakur.  We may
\npoint  out that the identification of creamy layer in  every
\nbackward  class is in fact based upon horizontal division of
\nevery  section\tof the backward class into creamy  layer  or
\nnon-creamy  layer.  For example, if there are a dozen  named
\nbackward  classes  and\teach have particular  percentage  of
\nquota in the reservation, they can be arranged in a vertical
\ndistribution  one  after the other (see para 812  of  Indira
\nSawhney referring to vertical and horizontal divisions), and
\nthe  separate and the aggregate quota meant for them can  be
\nspelled\t out.\tBut in each of these named backward  classes
\nlisted\tone  below  the other, it is not difficult  to\tmake
\nhorizontal   divisions\t of    those\tbelonging   to\t (i)
\nconstitutional\toffices\t (ii)\tparticular  services,  (iii)
\nprofessions  (iv)  industry and trade (v) particular  income
\nlevel  and  (vi)  particular holding of\t property  etc.\t  to
\nsegregate  the creamy and non-creamy layers in each vertical
\nsub-classification  of\tbackward  class\t and  say  that\t the
\nchildren  of such persons in these horizontal  sub-divisions
\nof  the backward classes will be creamy layer and  therefore
\noutside\t the  backward\tclasses.  This is  not\ta  difficult
\nexercise.   It\tis  also  important to notice  that  such  a
\nhorizontal  division based on such norms will be  applicable
\nnot  only to those in the Backward Classes presently falling
\nunder  the norm but the norms or limits so set would also be
\napplicable  to those reaching that level in the future.\t May
\nbe,  as stated in the notification of the Central Government
\ndated  8.9.93 issued pursuant to Indira Sawhney, the  income
\nlevels\tmay  have to be reasonably upgraded periodically  to
\nset off inflation.  Subject to such a reasonable revision in
\nthe norms, if any, periodically, the norms whether laid down
\nby  the\t Central  Government or the State  Governments\tmust
\napply  not  only for the immediate present but also for\t the
\nfuture.\t  This, in our view, was the declaration of law made
\nin  Indira Sawhney and in Ashok Kumar Thakur in relation  to
\nidentification and exclusion of creamy layer.  So far as the
\ndirections  in\tIndira Sawhney are concerned, they are\tthat
\nthe  Central  and  State Governments are obliged  to  create
\nseparate  bodies which will identify the creamy layer in the
\nbackward  classes  within a time frame.\t Point 1 is  decided
\naccordingly.   POINT 2 and 3:  These two points are  crucial
\nto the case.  Under these points, we shall now deal with the
\nvalidity  of  the  Kerala Act (Act  16\/95).   (i)Equals\t and
\nunequals,  twin\t aspects:   As\tthe ‘creamy  layer’  in\t the
\nbackward  class\t is to be treated “on par” with the  forward
\nclasses\t and is not entitled to benefits of reservation,  it
\nis obvious that if the ‘creamy layer’ is not excluded, there
\nwill  be  discrimination  and violation of Articles  14\t and
\n16(1)  inasmuch\t as  equals (forwards and  creamy  layer  of
\nbackward  classes)  cannot  be\ttreated\t unequally.   Again,
\nnon-exclusion  of  creamy  layer will also be  violative  of
\nArticles  14,  16(1) and 16(4) of the Constitution of  India
\nsince  unequals\t (the  creamy layer) cannot  be\t treated  as
\nequals\tthat  is to say, equal to the rest of  the  backward
\nclass.\t  These\t  twin\taspects\t   of\tdiscrimination\t are
\nspecifically  elucidated in the judgment of Sawant J,  where
\nthe learned Judge stated as follows:  (para 520)<\/p>\n
      “……..to  continue  to\t confer upon  such  advanced
\nsections  ….special  benefits,  would amount\tto  treating
\nequals unequally ….Secondly, to rank them with the rest of
\nthe  backward  classes would …amount to treating  unequals
\nequally”.\n<\/p>\n
      Thus,  any executive or legislative action refusing to
\nexclude\t the  creamy layer from the benefits of\t reservation
\nwill  be  violative  of Articles 14 and 16(1)  and  also  of
\nArticle 16(4).<\/a>\tWe shall examine the validity of sections 3<\/a>,
\n4<\/a> and 6<\/a> in the light of the above principle.\n<\/p>\n
      (ii)Validation:\n<\/p>\n
      The  question  of validation arises in the context  of
\nsection\t 6<\/a> of the Act.\tIt is true that whenever legislative
\nor  executive  action is declared as being violative of\t the
\nprovisions  of\tPart  III of the Constitution,\tit  will  be
\npermissible  for the Executive or Legislature to remove\t the
\ndefect\twhich is the cause for discrimination  prospectively
\nand  which  defect has been pointed out by the\tCourt.\t The
\ndefect\tcan  be removed retrospectively too  by\t legislative
\naction\tand the previous actions can also be validated.\t But
\nwhere  there is a mere validation with retrospective effect,
\nwithout\t  the  defect  being   legislatively  removed\twith
\nretrospective  effect, the legislative action will amount to
\noverruling  the judgment of the courts by way of legislative
\nfiat  and will be invalid as being contrary to the  doctrine
\nof separation of powers.\n<\/p>\n
      In  the context of the law laid down in Indira Sawhney
\nand  in\t Ashok Kumar Thakur if the legislature of any  State
\ndoes  not take steps to remove the defect or to\t effectively
\nand  realistically remove the defect to exclude the  ‘creamy
\nlayer’\tfrom  the  backward  classes then  the\tbenefits  of
\nreservations  which are invalidly continued in favour of the
\n‘creamy\t layer’\t cannot\t be declared  retrospectively  valid
\nmerely\tby a legislative declaration that such creamy  layer
\nis  absent as done by section 3 of the Kerala Act.  Nor\t can
\nit be done by means of the validating provision contained in
\nsection 6<\/a> of that Act.\tThe creamy layer principle laid down
\nin Indira Sawhney, cannot be ignored as done by section 6<\/a> of
\nthe  said Act.\tWe shall elaborate these aspects later.\t  If
\nunder  the  guise of elimination of the ‘creamy layer’,\t the
\nlegislature  makes  a  law  which  is  not  indeed  a\ttrue
\nelimination  but  is seen by the Court to be a\tmere  cloak,
\nthen  the  Court will necessarily strike down such a law  as
\nviolative  of  principle  of  separation of  powers  and  of
\nArticles 14, 16(1) and Article 16(4).<\/a>\n<\/p>\n
      (iii)Ashok  Kumar\t Thakur\t –  a  case  of\t unrealistic
\nelimination  but  Central  Government’s O.M.   dated  8.9.93
\napproved:   Such a case of unrealistic elimination of creamy
\nlayer came up before this Court from Bihar and Uttar Pradesh
\nand  we\t shall\trefer to the same.  This happened  in  Ashok
\nKumar  Thakur  Vs.  State of Bihar and Ors.  [1995  (5)\t SCC
\n403],  already\treferred  to.  There the position  was\tthat
\nunrealistically\t high  levels of income or holding or  other
\nconditions  were prescribed by the Legislatures of Bihar and
\nUttar  Pradesh\tunder the Bihar Reservation of vacancies  in
\nPosts  and Services (Amendment) Ordinance, 1995 ( 5 of 1995)
\nand  Schedule II read with Section 3(b) of the U.P.   Public
\nServices  Reservation  for  Schedules Castes  and  Scheduled
\nTribes and other Backward Classes Act<\/a>, 1994 ( Act 4 of 1994)
\nrespectively.\tIn that case, so far as Bihar was concerned,
\nSchedule  III (except clause I), of the Bihar Ordinance\t and
\nso  far\t as UP was concerned, Schedule II read with  Section
\n3(b)<\/a>  of the U.P.  Act were therefore quashed by this Court,
\non the ground of discrimination.\n<\/p>\n
      While  dealing with these Acts, this Court referred to
\nthe  fact that pursuant to Indira Sawhney the Government  of
\nIndia  had appointed a Commission presided over by a retired
\nJudge  of  the High Court of Patna and on the basis  of\t the
\nReport of the Commission, it had issued an office Memorandum
\ndated\t8.9.93\tdesignating  (A)   Children  of\t holders  of
\nConstitutional\tposts  like (a) President of India (b)\tVice
\nPresident of India, (c) Judges of the Supreme Court and High
\nCourts,\t (d)  Chairman and Members of UPSC and State  Public
\nService Commission, Chief Election Commissioner, Comptroller
\nand   Auditor-General\tof  India,   (e)   Persons   holding
\nconstitutional\t positions   of\t  like\tnature,\t  (B)Service
\ncategory:  children of (a) parents, Group A\/Class I officers
\nof  All\t India Central Services and State Services (  direct
\nrecruits)  where  both\tor one of the parents  are  Class  I
\nofficers,  subject to certain conditions;  children of Group
\nB\/Class\t II  officers  of the Central and State\t Services  (
\ndirect\t recruitment),\t subject  to   certain\t conditions;
\nchildren  of employees of Public Sector Undertakings, Banks,
\nInsurance   Organisations,   Universities   etc.    and\t  in
\ncomparable  posts  and positions under\tprivate\t employment;
\nchildren  of  members  of  Armed  Forces  and  Para-Military
\nForces;\t  (C)Professional  Category:  children of  those  in
\nprofessional  class  or those engaged in Trade and  Industry
\nbeyond\ta  particular  income limit;  (D)Property  owners  (
\nagricultural   holdings),   Plantations,   Vacant  land\t  or
\nbuildings  in  Urban areas or urban  agglomerations  holding
\nproperty  beyond a particular extent – as being outside\t the
\nBackward  Classes.  In respect of the above, Para VI of\t the
\nSchedule  to  the O.M.\tdated 8.9.93 gave the  gross  annual
\nincome\tlimits of rupees 1 lakh and above, subject to upward
\nmodification of the limits every 3 years etc.  Various other
\nconditions  were also imposed.\tCare was taken by the O.M to
\nsee  that none from the creamy layer could escape the net of
\nexclusion  from the Backward Classes.  This Court, in  Ashok
\nKumar  Thakur  after  referring\t to  the  above\t guidelines,
\nobserved  that\tthe  criteria fixed in the  O.M.   were\t “in
\nconformity  with  the law laid down by this Court in  Mandal
\ncase”  and that the Court had no hesitation in approving the
\nsaid  criteria\tas  being reasonable.  In the light  of\t the
\ncriteria  so approved, this Court considered the validity of
\nthe  Bihar  and\t U.P.\tLegislations   and  held  that\t the
\nunreasonably  high limits or other norms fixed by the  Bihar
\nand U.P.  Legislatures were “contrary to the guidelines laid
\ndown  by this Court in Mandal Case” as they would not result
\nin  the elimination of the creamy layer.  It was pointed out
\nthat  the  conditions laid down by the States of  Bihar\t and
\nU.P.   had no “nexus” with the object sought to be achieved.
\nSince  the conditions were not severable, the criteria\tlaid
\ndown  in  each\tof the legislations as a whole\twere  struck
\ndown.  The Court held:\t( see para 17)<\/p>\n
      “The  Backward  class  under Article 16(4)<\/a>  means\t the
\nclass  which has no element of ‘creamy layer’ in it.  It  is
\nmandatory under Article 16(4) – as<\/a> interpreted by this Court\n<\/p>\n
–  that\t the  State must identify the ‘creamy  layer’  in  a
\nbackward  class\t and  thereafter, by excluding\tthe  ‘creamy
\nlayer’\textend the benefit of reservation to the class which
\nremains after such exclusion.”\n<\/p>\n
      The  Court observed that the States of Bihar and Uttar
\nPradesh had acted in a wholly arbitrary fashion and in utter
\nviolation of the law laid down in Mandal case.\tHowever, the
\nprinciple of prospective overruling was invoked.  The States
\nwere  directed\tto lay down fresh criteria and till then  it
\nwas  directed  that  the criteria laid down in\tthe  Central
\nGovernment”s  O.M.  dated 8.9.93 were to apply in Bihar\t and
\nUttar  Pradesh.\t  We are in entire agreement with the  views
\nexpressed  in  Ashok Kumar Thakur.  (iv)The Validity of\t the
\nKerala Act:\n<\/p>\n
      We  shall now take up the question as to the  validity
\nof  the\t law enacted by the Kerala Legislature.\t It will  be
\nseen  that  the\t Kerala\t  Legislature  followed\t a  somewhat
\ndifferent  route  to allow the creamy layer to\tcontinue  to
\nunlawfully  enjoy  the\tbenefits of  reservation  meant\t for
\nbackward   classes.   We  shall\t  refer\t initially  to\t the
\nprovisions  contained in the six sections of the Kerala\t Act
\n16\/95.\n<\/p>\n
      “(1)  Short  title, extent and commencement- (i)\tThis
\nAct<\/a>  may  be  called  the   Kerala  State  Backward  Classes
\n(Reservation  of appointments or posts in the service  under
\nthe State) Act<\/a>, 1995.\n<\/p>\n
      (ii) It extends to the whole of the State of Kerala.\n<\/p>\n
      (iii)  Section  5<\/a> of this Act shall be deemed to\thave
\ncome  into  force  on the 12th day of March,  1993  and\t the
\nremaining  provisions  of this Act shall be deemed  to\thave
\ncome into force on the 2nd day of October, 1992.\n<\/p>\n
      (2)  Definitions:-  In  this Act, unless\tthe  context
\notherwise requires, –\n<\/p>\n
      (a)  Commission means the Kerala State Commission\t for
\nBackward  Classes constituted under Section 3 of the  Kerala
\nState  Commission  for\tBackward Classes Act<\/a>,  1993  (11  of
\n1993).\n<\/p>\n
      (b)  Backward  Classes means such Backward Classes  of
\ncitizens  (  other  than   Scheduled  castes  and  Scheduled
\ntribes),  as specified by the Government from time to  time,
\nand  included  in List III of the Schedule to Part I of\t the
\nKerala\tState  and Subordinate Services Rules,\t1958  framed
\nunder Article 309<\/a> of the Constitution..\n<\/p>\n
      (c) Government’s means the Government of Kerala.\n<\/p>\n
      (d) ‘State’ means the State of Kerala.\n<\/p>\n
      (3)  Declaration:\t  -It  is  hereby  declared,  having
\nregard to known facts in existence in the State —\n<\/p>\n
      (a)  that\t there are no socially advanced sections  in
\nany  Backward Classes who have acquired capacity to  compete
\nwith forward classes;  and<\/p>\n
      (b)  that the Backward Classes in the State are  still
\nnot  adequately represented in the services under the  State
\nand they continue to be entitled to reservation under clause
\n(4) of Article 16<\/a> of the Constitution.\n<\/p>\n
      (4)  Reservation\tof  appointments  or  posts  in\t the
\nservices under the State:\n<\/p>\n
      Notwithstanding  anything\t contained in any law or  in
\nany  judgment,\tdecree\tor  order  of  any  court  or  other
\nauthority  having  regard  to  the  social  and\t educational
\nbackwardness of the Backward Classes of citizens, the system
\nof  reservations as in force on the date of commencement  of
\nthis  Act, as laid down in rules 14 to 17 of Part II of\t the
\nKerala\tstate  and  Subordinate\t Services  Rules,  1958,  in
\nappointments  and posts in the services under the State\t for
\nthe Backward Classes of citizens shall continue as such, for
\nthe present.\n<\/p>\n
      (5)  Additional  function\t of  the  Commission  –\t The
\nCommission  shall,  in\taddition to  the  functions  already
\nconferred  under  the Kerala State Commission  for  Backward
\nClasses\t Act<\/a>, 1993 ( 11 of 1993) evaluate from time to\ttime
\nthe  degree  of\t backwardness of the Backward  Classes,\t and
\nshall  submit periodical reports to the Legislative Assembly
\nof the State.\n<\/p>\n
      (6) Validation – Notwithstanding anything contained in
\nany  judgment,\tdecree\tor  order  of  any  court  or  other
\nauthority  the\treservation of appointments or posts in\t the
\nservices  under\t the  State  for  the  Backward\t Classes  of
\ncitizens  made, on the basis of the system of reservation as
\nlaid  down in rules 14 to 17 of Part II of the Kerala  State
\nand  Subordinate  Services  Rules,   1958,  shall,  for\t all
\npurpose,  be  deemed to be and to have always  been  validly
\nmade,  in accordance with law, as if this Act had been force
\nat all material times when such reservations had been made”.\n<\/p>\n
      (v)Events\t leading to the passing of the Kerala Act of
\n1995:\tIt  will be useful to note the background of  events
\nwhich  led to the passing of the above Act.  (Some of  these
\nevents\tare  set  out in the long Preamble to  the  Act)  On
\naccount of the inaction of the State of Kerala – in spite of
\nextensions  of\ttime  in implementing Indira  Sawhney  –  in
\nappointing  a Commission to identify the creamy layer,\tthis
\nCourt  felt  “vexed” and issued contempt notice on  20.3.95.
\nPursuant  to  that  notice on 10.7.95, the State  of  Kerala
\nfiled  an  affidavit stating that it had already passed\t the
\nKerala\tAct  11\/93 on 17.4.93 appointing a Commission  which
\ncould go into this issue but that the said Commission stated
\nthat  it  had  no jurisdiction to go into  the\tquestion  of
\n‘creamy\t layer’\t as per the provisions in that Act of  1993.
\nThe affidavit then stated that the matter was referred again
\nto  the\t Commission  on 13.10.93, a meeting  took  place  on
\n10.5.94,  that the Commission again refused to identify\t the
\ncreamy\tlayer,\tthat a Bill was then contemplated  to  amend
\nKerala\tAct 11\/93 to confer powers on the said Commission to
\ngo  into this issue as well, that in the meantime, the State
\nconstituted  the Justice Khalid Committee on 8.7.95.  In our
\nopinion,  these\t events were set out in the above  affidavit
\nfiled  by  the\tChief Secretary only to ward off  any  penal
\naction\tfor  contempt of this Court.  The above\t explanation
\nwas  naturally\tfound to be wholly unsatisfactory  and\tthis
\nCourt  held,  in its order dated 10.7.95, that the State  of
\nKerala\trepresented  by\t its Chief Secretary  had  acted  in
\n“wilful\t disobedience” of the orders of this Court and\tthat
\nit had committed contempt of Court.  This Court granted time
\ntill  11.9.95 to the State of Kerala to purge itself of\t the
\ncontempt.   It appears that there was then a Cabinet meeting
\non 13.7.95, that thereafter it was decided on 14.7.95 that a
\nStanding  Committee  should  go into the question  but\tthat
\ninstead,  it  was  suddenly  decided  on  27.7.95  that\t the
\n“existing  system be continued”.  Then Act<\/a> 16\/95 was  passed
\non  31.8.95  to\t give  effect to  that\tdecision.   The\t Act<\/a>
\nreceived  the  assent of the Governor on 2.9.95\t and  became
\neffective  retrospectively  from  2.10.1992,  thus  allowing
\nexisting  reservations\tto  continue with  full\t force.\t  In
\neffect\tno  creamy layer was identified.  As per  sub-clause\n<\/p>\n
(a)  of Section 3<\/a> of the Act it was declared that in view of
\n“known\tfacts”,\t the  Legislature was of the view  that\t “no
\nsection of any backward class in the State of Kerala who had
\nacquired capacity “to compete with forward classes”.  As per
\nclause\t(b),  it was stated that Backward Classes  were\t not
\nstill  adequately represented in the public services of\t the
\nState.\tSection 4<\/a>, therefore, continued the 1958 scenario of
\nBackward  Classes  without  excluding the creamy  layer\t and
\nsection 6<\/a> spoke of retrospective validation.\n<\/p>\n
      (vi)  Legislative declaration of facts is amenable  to
\nscrutiny by Court:\n<\/p>\n
      Before  we go into the validity of sub-clause (a)\t and\n<\/p>\n
(b)  of\t section  3<\/a>,  it is necessary to  find\tout  if\t the
\nlegislative declaration of “known facts” in section 3<\/a> of the
\nAct is amenable to judicial scrutiny.\n<\/p>\n
      It  is  now  fairly  well\t settled,  that\t legislative
\ndeclarations  of  facts are not beyond judicial scrutiny  in
\nthe  Constitutional  context  of  Articles 14  and  16.\t  In
\nKeshavananda  Bharati  Vs.   State of Kerala [1973  (4)\t SCC
\n225],  the  question arose – in the context  of\t legislative
\ndeclarations made for purposes of Article 31-C –<\/a> whether the
\ncourt  was  precluded from lifting the veil,  examining\t the
\nfacts  and holding such legislative declarations as invalid.
\nThe  said issue was dealt with in various judgments in\tthat
\ncase,  e.g.   Judgments\t of  Ray, J.  (\t as  he\t then  was),
\nPalekar,  Khanna,  Mathew,  Dwivedi,JJ,\t and  Beg,  J.\t and
\nChandrachud,  J.   (as they then were ) (see summary at\t PP.
\n304-L to O in SCC).  The learned Judges held that the Courts
\ncould  lift the veil and examine the position in spite of  a
\nlegislative   declaration.   Ray,  J.\t (as  he  then\twas)
\nobserved:\n<\/p>\n
      “The Court can tear the veil to decide the real nature
\nof the statute if the facts and circumstances warrant such a
\ncourse”…..”a\t conclusive   declaration   would   not\t  be
\npermissible so as to defeat a fundamental right”.\n<\/p>\n
      Palekar, J.  said that if the legislation was merely a
\npretence  and the object was discrimination, the validity of
\nthe  statute could be examined by the Court  notwithstanding
\nthe  declaration  made\tby the Legislature and\tthe  learned
\nJudge  referred to Charles Russell vs.\tThe Queen [(1882)  7
\nAC  829]  and  to Attorney General vs.\t Queen\tInswane\t Co.
\n[(1878)\t 3  AC 1090].  Khanna,J.  held that the\t declaration
\ncould  not preclude judicial scrutiny.\tMathew,J.  held that
\ndeclarations were amenable to judicial scrutiny.  If the law
\nwas passed only ‘ostensibly’ but was in truth and substance,
\none  for accomplishing an unauthorised object, the Court, it
\nwas  held, would be entitled to tear the veil.\tBeg,J.(as he
\nthen was) held that the declaration by the legislature would
\nnot preclude a judicial examination.  Dwivedi, J.  said that
\nthe  Courts  retain  the power in spite of Article  31-C<\/a>  to
\ndetermine  the correctness of the declaration.\tChandrachud,
\nJ.   (as he then was) held that the declaration could not be
\nutilised  as  a cloak to evade the law and  the\t declaration
\nwould not preclude the jurisdiction of the Courts to examine
\nthe  facts.  This being the legal position, this Court could
\ncertainly  examine  whether  the  so  called  “known  facts”
\nreferred to in section 3<\/a> were indeed non-existent.\n<\/p>\n
      (vii)Sub-clause  (a)  of\tSection 3<\/a>:  Did\t the  Kerala
\nLegislature  have any facts before it to say in effect\tthat
\nthere  was  no\tcreamy layer?  Sub-clause (a) of  section  3<\/a>
\nstates\tthat according to “known facts” the backward classes
\nin  the\t State were not having the capacity to compete\twith
\nforward classes i.e.  in effect, there is no creamy layer in
\nthe Kerala State.\n<\/p>\n
      But Aldous Huxley said:\n<\/p>\n
      “Facts do not cease to exist because they are ignored”\n<\/p>\n
      (A Note on Dogmas)<\/p>\n
      The words in sub-clause (a) of section 3<\/a> are obviously
\ndrawn  from  the judgment of Sawant, J.\t in  Indira  Sawhney
\nwhich  refers to “capacity to compete with forward classes”.
\nWe shall, therefore, have to examine whether the legislative
\ndeclaration  in\t section  3<\/a>  of the Act that  there  is,  in
\neffect,\t no creamy layer in the State of Kerala is one\tmade
\nby  ignoring  facts which do exist.  We shall now  refer  to
\nvarious\t facts\tand circumstances as they exist to  disprove
\nthe statement made in section 3<\/a> of the Act:\n<\/p>\n
      (a)  The\tKerala State initially requested this  Court
\nfor  extension\tof time to appoint a Commission to  identify
\nthe  creamy  layer.   It,  in\tfact,  created\ta  statutory
\nCommission  by\tKerala\tAct 11 of 1993 and  asked  the\tsaid
\nCommission  constituted under that Act to go into the  above
\nquestion.   The\t Commission, it is true, refused to go\tinto
\nthis question stating that it had no jurisdiction to go into
\nthe  said question under that Act.  (b) Again, even as\tlate
\nas 8.7.95, the State of Kerala did feel the need to identify
\nthe   ‘creamy  layer’  and  it\tappointed   Justice   Khalid
\nCommittee.   But  within three weeks, suddenly\ton  27.7.95,
\nthere  was a volte face and it was decided “to continue\t the
\nexisting  system”  of reservations with full  force  without
\nexcluding the creamy layer.  It is obvious and is not denied
\nthat between 8.7.95 and 27.7.95, the State gathered no fresh
\nmaterial  to  compel  the State to abandon the idea  and  to
\nsuddenly  turn around and declare that there was, in effect,
\nno  ‘creamy layer’ in the State of Kerala.  (c) Further,  in
\nthe  affidavit dated 16.7.1995 filed by the Chief  Secretary
\nof  Kerala  in\tthis Court – a few days before the  Act\t was
\npassed\ton  31.8.1995  – it was more or less  admitted\tthat
\nthere was a “creamy layer” among the backward classes in the
\nState\tof  Kerala.   The   following  paragraph  from\tthat
\naffidavit is significant:\n<\/p>\n
      “Reservation  in\tappointments for the public  service
\nfor  socially and educationally backward classes has been in
\noperation in this State for the last about 40 years, and all
\nmembers\t of the other Backward Classes, irrespective of\t the
\nfact whether individuals among them are socially advanced_or
\nnot, are enjoying the benefit.”\n<\/p>\n
      The   underlined\twords,\tin   our  view,\t contain  an
\nadmission  as  to  the existence of a creamy layer,  to\t the
\nknowledge  of  the State Government.  (d) In  addition,\t the
\ndoubts,\t if  any,  in  this behalf are set at  rest  by\t the
\nfindings contained in the Report of the High Level Committee
\nheaded\tby Justice K.J.\t Joseph (to which we shall refer  in
\ndetail\tunder points 4 and 5).\tThat Report shows that there
\nis  a  creamy layer in the Backward Classes of the State  of
\nKerala and it is not difficult to identify the same.\n<\/p>\n
      (e)  We may again point out that, as a matter of\tlaw,
\nit  is\tclear that six out of nine Judges in Indira  Sawhney
\nmade  a judicial declaration as stated under Point 1, as  to
\nthe  class of persons who would belong to the creamy  layer.
\nThis  declaration  of  law  made by this  Court\t is  clearly
\napplicable  to\tthe  State  of\t Kerala\t also.\t The  Kerala
\nLegislature  cannot,  in our opinion, refuse to accept\tthis
\ndeclaration  of\t law  nor  can it declare  anything  to\t the
\ncontrary.\n<\/p>\n
      In  the  judgment\t of  six learned  Judges  in  Indira
\nSawhney,  as stated earlier, there is a specific declaration
\nof  law\t that the children of IAS, IPS and other  All  India
\nServices  in the Backward Classes are creamy layer and\tthis
\nis  true “without further inquiry”.  These persons are to be
\ndeemed, in law and, in fact, to have reached such a level of
\nsocial advancement that they cease to belong to the backward
\nclass.\t The  judgment\talso refers to a  classification  of
\n“affluent”  sections identified by way of income or property
\nholding.\n<\/p>\n
      (f)  Further,  in Ashok Kumar Thakur it was held as  a
\nmatter of law that certain broad categories mentioned in the
\nO.M.   of  the\tCentral Govt.  dated 8.9.93  belong  to\t the
\ncreamy\tlayer.\tThere was no answer from the State of Kerala
\nas to why the same categories as mentioned in Indira Sawhney
\nor  those mentioned in the O.M., as approved in Ashok  Kumar
\nThakur could not be declared as creamy layer, subject to any
\nrealistic  modification of the income or holding levels,  if
\nneed  be.   It was not the case of the State before us\tthat
\nthese  categories, which form the vertical divisions of\t the
\nbackward  classes,(as  pointed out under point 1) were\tnon-
\nexistent  so far as Kerala State was concerned.\t It was\t not
\nalso  its  case\t that such a class of persons would  not  be
\nexistent in future in the Backward Classes of the State.\n<\/p>\n
      If  the  Kerala Government and the Kerala\t Legislature
\nmeant  in  their declaration in sub-clause (a) of section  3<\/a>
\nthat there was, in effect, no ‘creamy layer’ in the State of
\nKerala,\t among the notified Backward classes, then they must
\ngo  to the length of stating that there was none who had  so
\nfar  been  recruited to the aforementioned services of\tIAS,
\nIPS etc.  or none had come within broad categories listed in
\nthe   Central  Government’s  O.M.    dated  8.9.93  (\ti.e.
\nconstitutional\t  functionaries,       service\t  personnel,
\nprofessions,  men  in  business\t  and  industry\t or  holding
\nagriculture or urban land of those levels or near about), in
\nthe   Kerala  State.   In  fact\t  when\tthis  question\t was
\nspecifically  put  across to the learned senior counsel\t for
\nthe  State and to learned senior counsel for the SNDP  Yogam
\nand  others, there was no answer and they could not deny the
\nexistence  of  the  above  horizontal  divisions  among\t the
\nbackward   classes  in\tKerala.\t   (g)\tFurther,  the  broad
\ncategories and norms ( of parents belonging to the All India
\nServices  etc.\tor reaching a level of income or holding  ),
\nreferred  to above, are valid not merely for the present but
\nfor  the future also.  As and when, any particular member of
\nthe  Backward  Classes\tgets entry to IAS or  IPS  etc.,  or
\nreaches\t the  prescribed  reasonable   level  of  income  of
\nholding, their children will have to be treated as belonging
\nto  creamy layer.  May be, certain income levels have to  be
\nperiodically upgraded to keep pace with inflation.\n<\/p>\n
      Surely,  the  Kerala Legislature cannot prophesy\tthat
\nnone  from the Backward Classes in the State will ever enter
\nthese  services or reach these economic levels, in the\tnear
\nor distant future.  It appears to us therefore, from what we
\nhave  stated  above in sub paras (a) to (g) that the  Kerala
\nAct  had  shut its eyes to realities and facts and  it\tcame
\nforward\t with  a declaration in sub-clause (a) of Section  3<\/a>
\nwhich,\tperhaps, it was mistakenly believed was not amenable
\nto judicial scrutiny.  Unfortunately, the law is otherwise.\n<\/p>\n
      In  view\tof the facts and circumstances, referred  to
\nabove,\twe  hold that the declaration in sub-clause  (a)  of
\nsection\t 3<\/a>  made by the legislature has no factual basis  in
\nspite  of the use of the words `known facts’.  The facts and
\ncircumstances,\ton the other hand, indicate to the contrary.
\nIn  our\t opinion,  the declaration is a mere  cloak  and  is
\nunrelated to facts in existence.  The declaration in section
\n3<\/a>  (a) is, in addition, contrary to the principles laid down
\nby  this Court in Indira Sawhney and in Ashok Kumar  Thakur.
\nIt  is, therefore, violative of Articles 14 and 16(1) of the
\nConstitution  of  India.   Sub-clause (a) of section  3<\/a>\t is,
\ntherefore, declared unconstitutional.\n<\/p>\n
      (viii)  Sub-clause  (b)  of   section  3<\/a>:\t  Inadequate
\nrepresentation:\t  Section  3(b)<\/a>\t mixes\t up  two   different
\nconcepts:\n<\/p>\n
      Sub-clause  (b)  of section 3<\/a> states that there is  no
\nadequate  representation  of  the backward  classes  in\t the
\nservices  of the State of Kerala.  This is given as a reason
\nfor not excluding the creamy layer.  In our view, the Kerala
\nAct  has mixed up two different concepts in this  sub-clause\n<\/p>\n
(b)  of\t section 3<\/a>.  Article 16(4<\/a>), it will be seen,  is  an
\nenabling  provision  which  permits  the  State\t to  provide
\nreservation  for Backward Classes if, in the opinion of\t the
\nState,\tsuch  reservation is felt necessary and if there  is
\ninadequate  representation.   Ajit  Singh II vs.   State  of
\nPunjab\t[1999 (7) SCC 209].  Lack of adequate representation
\nof  a  particular  backward  class   may  be  a\t factor\t for
\nconsideration  by the State for providing reservation.\tBut,
\nthe said factor cannot be the sole ground for continuance of
\nthe  creamy layer in that backward class.  The first step no
\ndoubt  is the identification of the backward class which  is
\ninadequately  represented.  But there is a second step\talso
\nand  that  is the elimination of the creamy layer  from\t the
\nBackward Class.\t The second step cannot be mixed up with the
\nfirst  step  nor  can  it be  forgotten.   An  argument\t was
\nadvanced  by Sri Rajeev Dhawan that once the Backward  Class
\nwas identified by taking into account the economic criteria,
\nit  was\t not  permissible to take that factor  into  account
\nagain  a  second time for purpose of identifying the  creamy
\nlayer.\t This contention, in our view, is no longer open  as
\nit  was specifically rejected by Jeevan Reddy, J.  in Indira
\nSawhney\t (see  para  791  of SCC) and was  accepted  by\t the
\nmajority.  (ix)Inadequate representation of Backward Classes
\nand efficiency of administration:\n<\/p>\n
      The more important submission of Sri Rajeev Dhawan and
\nother  counsel,\t however is, that it may happen that if\t the
\ncreamy\tlayer  is eliminated at the second  stage  mentioned
\nabove,\tthere  may  be practically no representation  for  a
\nparticular backward class in the public services because the
\nremaining  members i.e.\t the non-creamy layer, may not\thave
\nrisen  to  the\tlevel or standard necessary to\tqualify\t for
\nentrance  into\tthe  service, even  within  the\t reservation
\nquota.\tWe are unable to agree with this contention.  Now if
\nthe  creamy  layer in such a class has reached a very  large
\npercentage  so\tas  to leave only a small part of  the\tnon-
\ncreamy\tlayer  of the concerned backward class to avail\t the
\nbenefit of reservation, then the situation may indeed be one
\nwhere  the  backward class concerned may itself have  to  be
\ndenotified.  Assuming that the percentage of creamy layer is
\nnot  large enough in such a backward class but is small, and
\nif  it\tis  the case that after elimination  of\t the  creamy
\nlayer,\tthe  standard  of  the\t non-creamy  layer  is\t not
\nsufficient  to\tenable its members to enter public  services
\neven  within  the reservation quota, then a larger and\tmore
\nfundamental issue arises.\n<\/p>\n
      The  question is whether assuming that once the creamy
\nlayer is excluded from backward classes the non-creamy layer
\nin  that  backward  class  is not able\tto  secure  adequate
\nrepresentation\teven  within the quota, in  public  services
\nbecause its members are not reaching the prescribed level of
\nqualification  or standards for recruitment, – can that be a
\nground for non-exclusion of the creamy layer as contended by
\nthe State?\n<\/p>\n
      It  is  true  there  is  no  specific   constitutional
\nprovision  in  relation\t to  the  need\tfor  maintenance  of
\n`efficiency  of\t administration’ so far as backward  classes
\nare  concerned (such as the special provision in Article 335<\/a>
\nin  the\t case of Schedule castes and Schedule Tribes).\t But
\nsuch  a principle of efficiency of administration is, in our
\nopinion, equally paramount and is implied in Articles 14 and
\n16  of the Constitution even so far as backward classes\t are
\nconcerned.   In Indira Sawhney, Sawant J pointed out (\tpara
\n434  of\t SCC)  that  while  Article  16(4)<\/a>  is\tan  enabling
\nprovision,  Article  335<\/a> is in mandatory language.   Further
\nthough\tthere is no specific provision in regard to Backward
\nClasses,  the  same  principle\tunderlying  Article  335<\/a>  is
\napplicable  to\tBackward classes.  Sawant, J.  stated  (para
\n434 of SCC):\n<\/p>\n
      “It   cannot,  however,  be   doubted  that  the\tsame
\nconsiderations\twill have to prevail while making provisions
\nfor reservations in favour of backward classes under Article
\n16(4).<\/a>\t To hold otherwise would not only be irrational\t but
\ndiscriminatory between two classes of backward citizens”\n<\/p>\n
      i.e.   Scheduled\tCastes\/Scheduled  Tribes  and  other
\nBackward  Classes.  The mere inadequate representation of  a
\nparticular  backward  class in public services flowing as  a
\nconsequence  of\t exclusion  of creamy layer is\tnot  legally
\nsufficient  to provide or continue reservation to the creamy
\nlayer.\t Reservation  even for Backward classes can be\tmade
\nonly  if  it  will  not\t undermine  the\t efficiency  of\t the
\nadministration\tin the particular department.  In our  view,
\nthe  Constitution  has\tnot   envisaged\t that\tinadequately
\nrepresented  backward  classes\tare to be placed on  a\tmore
\nfavourable  footing  than inadequately represented  Schedule
\nCastes\/Tribes  for  that would offend Article 14<\/a> as  between
\ntwo  sets of Backward Classes – namely the Scheduled  Castes
\nand  the Other Backward Classes as pointed out by Sawant  J.
\nIn  our\t opinion,  the qualifications, standard\t and  talent
\nnecessary  for Backward Classes cannot be relaxed or reduced
\nto   a\t level\t which\tmay   affect   the   efficiency\t  of
\nadministration.\n<\/p>\n
      In  Ajit\tSingh II vs.  State of Punjab [1999 (7)\t SCC
\n209],  it was decided recently by the Constitution Bench  as
\nfollows:  (p.233):\n<\/p>\n
      “It  is  necessary  to see that the rule\tof  adequate
\nrepresentation\tin  Article 16(4)<\/a> for the  Backward  Classes
\nadministration……Thus,    in\t  the\t  matter   of\t due
\nrepresentation\tin  services for  Backward  Classes,…….,
\nmaintenance  of efficiency in administration is of paramount
\nimportance.”\n<\/p>\n
      The  constitutional  principle that equals  cannot  be
\ntreated\t unequally  and unequals cannot be  treated  equally
\nbased\ton   Articles\t14   and   16(1)   overrides   other
\nconsiderations.\t  In  fact, in Indira Sawhney,\tthe  Supreme
\nCourt  itself declared that in certain departments, there is
\nto be no reservation whatever even for backward classes.\n<\/p>\n
      Thus,  assuming  that, when creamy layer is  excluded,
\nthere  will be inadequate representation of certain Backward
\nclasses\t in services, that cannot be a valid reason for\t the
\ncontinued  inclusion  of  the creamy layer in  the  Backward
\nClass, after Indira Sawhney.  For all the aforesaid reasons,
\nsub-clause  (b)\t of  section 3<\/a> does not\t provide  any  valid
\nanswer for not eliminating the creamy layer and must also be
\nheld  to  be unconstitutional and violative of Articles\t 14,
\n16(1)  and 16(4) of the Constitution.  Thus, sub-clause\t (a)
\nand  (b)  of section 3<\/a> are both\t declared  unconstitutional.\n<\/p>\n
(x)Section 4<\/a>:\n<\/p>\n
      We  next\tcome  to  section 4<\/a> of the  Act.   The\tnon-
\nobstante  clause  in Section 4<\/a> is obviously intended to\t get
\nover  Indira  Sawhney and Ashok Kumar Thakur.\tThe  crucial
\nwords  of the section are:  “having regard to the social and
\neducational  backwardness  of the backward classes”  in\t the
\nState  of  Kerala  –  as  in   force  on  the  date  of\t the
\ncommencement  of the Act ( i.e.\t 2.10.1992).  Now, “backward
\nclasses”  have been defined in the Act as those referred  to
\nin  section  2(b)<\/a> of the Act.  That definition in  its\tturn
\ntakes  us  to  the enumeration of Backward Classes  made  in
\n1958in\tList  III of Schedule to part I of the Kerala  State
\nand  Subordinate  Services  Rules,  1958  framed  under\t the
\nproviso to Article 309<\/a> of the Constitution.  In other words,
\nsection\t 4<\/a>  provides for the continuance of reservation\t for
\nthe  backward  classes\tas they stood in 1958  ignoring\t the
\ndirectives  of\tthis  Court in 1992 in\tIndira\tSawhney\t for
\nexclusion of ‘creamy layer’.\n<\/p>\n
      If indeed such continuance, as specified in section 4<\/a>,
\nof  these Backward Classes together with the creamy layer as
\nwas  in\t existence  in 1958 is based  upon  the\t Legislative
\ndeclaration  in section 3<\/a>, – then once section 3<\/a> is declared
\nunconstitutional, section 4<\/a> too falls to the ground.  If, on
\nthe other hand, we assume that section 3<\/a> is not the basis of
\nsection\t 4<\/a>, then the continuance of the 1958 scenario or the
\npre-Indira  Sawhney  position,\teven as late  as  1995\twhen
\nSection\t 4<\/a>  was\t enacted,  – will  amount  to  ignoring\t the
\nsubsequent  judgments  of  this\t  Court\t in  Indira  Sawhney
\nrendered  in  1992  and Ashok Kumar Thakur in  1995  to\t the
\neffect that creamy layer is necessarily to be eliminated.\n<\/p>\n
      The  non-obstante clause in section 4<\/a> too cannot\tcome
\nto  the\t rescue of the State.  As already stated,  the\tsaid
\nclause\tcannot override the judgments of this court based on
\nArticles 14, 16(1) and 16(4) if the defect is not removed by
\nthe   legislation.   Neither  Parliament   nor\t the   State
\nLegislature  can make any law to continue reservation to the
\ncreamy\tlayer inasmuch as the above judgments of this  Court
\nare  based  on Articles 14 and 16(1) of the Constitution  of
\nIndia,\tand  no\t law can obviously be made to  override\t the
\nprovisions of Articles 14 and 16(1).\n<\/p>\n
      Thus,  for the aforesaid reasons, section 4<\/a> of the Act
\nalong\twith   the    non-obstante    clause   is   declared
\nunconstitutional  and  violative  of the judgments  of\tthis
\nCourt  and also violative of Articles 14, 16(1) and 16(4) of
\nthe  Constitution of India.  (xi)Section 6<\/a>:  We then come to
\nsection\t 6<\/a>  of\tthe  Act   which  deals\t with  retrospective
\nvalidation.   This section again starts with a\tnon-obstante
\nclause.\t  Obviously, the Kerala Legislature is having Indira
\nSawhney and Ashok Kumar Thakur in its mind, when it inserted
\nthe  non-obstante clause.  Once section 3<\/a> of the Act is held
\nunconstitutional,  the\tposition  is  that  the\t legislative
\ndeclaration as to non-existence of creamy layer goes and the
\nexistence  of creamy layer becomes a staring reality.\tThat
\nwill  mean  that under the Act of 1995, the Legislature\t has
\nnot  eliminated\t the  defect.\tNor can section\t 4<\/a>  in\tthis
\nconnection  be\tof any help because that provision has\talso
\nbeen  declared as unconstitutional.  Section 6<\/a> cannot  stand
\nalone  once sections 3<\/a> and 4<\/a> are declared  unconstitutional.
\nAs  long as the creamy layer is not excluded and the  defect
\ncontinues,  any\t validation  – without\telimination  of\t the
\ndefect which is the basic cause of unconstitutionality – is,
\nas  already stated, ineffective and will be invalid.   Thus,
\nsection\t 6<\/a>  is\talso unconstitutional.\t For  the  aforesaid
\nreasons, we declare under Points 2 and 3 that the provisions
\nof  sections 3<\/a>, 4<\/a> and 6<\/a> of the Act are unconstitutional\t and
\nviolative  of  Articles 14, 16(1) and 16(4) and of  the\t law
\nlaid  down  by this Court.  But with a view to\trelieve\t any
\nhardship, we propose to issue certain directions under Point
\n4  and 5.  Our decision on points 2 and 3 will be subject to
\nwhat we propose to direct under point 5 and 6.\tPoints 2 and
\n3 are decided accordingly.\n<\/p>\n
      Point  4:\t Article 14:(<\/a>and Article 16<\/a> which is a facet
\nof it)<\/a> is part of the basic structure of the Constitution of
\nIndia:\n<\/p>\n
      The  preamble to the Constitution of India  emphasises
\nthe  principle of equality as basic to our constitution.  In
\nKeshavananda  Bharati  vs.   State of Kerala<\/a> [1973  (4)\t SCC
\n225], it was ruled that even constitutional amendments which
\noffended  the  basic structure of the Constitution would  be
\nultra vires the basic structure.  Sikri, CJ.  laid stress on
\nthe  basic  features  enumerated  in  the  preamble  to\t the
\nConstitution  and said that there were other basic  features
\ntoo  which could be gathered from the Constitutional  scheme
\n(para 506 A of SCC).  Equality was one of the basic features
\nreferred to in the Preamble to our Constitution.  Shelat and
\nGrover,\t JJ.  also referred to the basic rights referred  to
\nin  the\t Preamble.  They specifically referred\tto  equality
\n(para  520  and\t 535A of SCC).\tHegde &\t Shelat,  JJ.\talso
\nreferred  to the Preamble (paras 648, 652).  Ray, J.  (as he
\nthen was) also did so (para 886).  Jaganmohan Reddy, J.\t too
\nreferred  to  the Preamble and the equality  doctrine  (para
\n1159).\t Khanna,  J.   accepted this position  (para  1471).
\nMathew,\t J.   referred to equality as a\t basic\tfeature(para
\n1621).\t Dwivedi, J.(para 1882, 1883) and Chandrachud, J.(as
\nhe  then was) (see para 2086) accepted this position.\tWhat
\nwe  mean  to say is that Parliament and the legislatures  in
\nthis  Country  cannot  transgress the basic feature  of\t the
\nConstitution, namely, the principle of equality enshrined in
\nArticle\t 14<\/a>  of\t which Article 16(1)<\/a> is\t a  facet.   Whether
\ncreamy\tlayer is not excluded or whether forward castes\t get
\nincluded  in the list of backward classes, the position will
\nbe the same, namely, that there will be a breach not only of
\nArticle\t 14<\/a> but of the basic structure of the  Constitution.
\nThe  non-exclusion  of the creamy layer or the inclusion  of
\nforward\t castes\t in  the  list\tof  backward  classes  will,
\ntherefore, be totally illegal.\tSuch an illegality offending
\nthe  root of the Constitution of India cannot be allowed  to
\nbe perpetuated even by Constitutional amendment.  The Kerala
\nLegislature  is,  therefore, least competent  to  perpetuate
\nsuch an illegal discrimination.\t What even Parliament cannot
\ndo,  the Kerala Legislature cannot achieve.   Unfortunately,
\nin the decision making process which enables the forwards to
\nget  into the list of backward classes or which enables\t the
\ncreamy layer to grab the benefits of reservation, it appears
\nto  us\tthat the voice of the really backwards, namely,\t the
\nvoice of the non-creamy layer, is nowhere heard.  Else there
\nis  no reason why the State should decide not to exclude the
\n‘creamy\t layer’.  Point 4 is decided accordingly.  Points  5
\nand 6:\n<\/p>\n
      We  have\talready referred to the circumstances  under
\nwhich  this  Court  was compelled to appoint  a\t High  Level
\nCommittee  presided  over  by Justice  K.J.Joseph,  for\t the
\npurpose\t of  identifying the ‘creamy layer, in the  Backward
\nClasses\t in  the State of Kerala.  The Report is a  detailed
\none  and  runs\tinto  114   pages.   The  Committee  invited
\nsuggestions  and representations from the public as well  as
\nfrom  the organisations representing the Backward Classes by
\nnewspaper  publications\t in  December 1996, in\tEnglish\t and
\nMalayalam.   The  Committee  also gave personal\t hearing  to
\nvarious\t individuals, bodies and organisations.\t It received
\n596  representations  \/ suggestions till 15.1.97 by the\t due
\ndate  and  177 representations after the due date.  Most  of
\nthe  parties  before  us  had represented  before  the\tsaid
\nCommittee.    The  State  of  Kerala   did  not\t  file\t any
\nrepresentation\tbefore\tthe High Level Committee,  though  a
\nrequest\t  was  made  on\t 13.1.97  to  permit  it   to\tgive
\nsuggestions.   The State Government placed the report of the
\nsubject’s  Committee before the High Level Committee and the
\nsaid  Committee\t went into the provisions of the Bill  which
\nled  to\t the  1995  Act.    The\t Subjects-committee  of\t the
\nLegislature and other Committees and the organisations which
\ncontended  that\t there was no creamy layer in  the  Backward
\nClasses\t in  the State relied mostly upon section 3<\/a>  of\t the
\n1995  Act.   Organisations which contended that there was  a
\ncreamy\tlayer  pointed\tout  that the  declaration  made  in
\nsection 3<\/a> of the Act was contrary to existing facts and that
\nthe  Government\t and the Legislature had no material  before
\nthem  to declare that there was no creamy layer in the State
\nof  Kerala  nor\t to  say that “no section  of  any  Backward
\nClasses\t reached  a  successful level  of  competition\twith
\nforward classes”.\n<\/p>\n
      We  shall\t initially  refer to part I  of\t the  report
\nbriefly.  The High Level Committee summarised Indira Sawhney
\nin  detail  in\tpara  22 and 22A  (i)  and  22(A)(ii)  which
\nsummary,   we  may  state,   correctly\treflects  the  legal
\nposition.   The facts relating to representation of OBCs  in
\nvarious\t departments were considered in para 22 B(i) to para
\n22  B(ii).   In para 22B(xiii) it was stated that  from\t the
\nranked\t lists\tpublished  by\tthe  Kerala  Public  Service
\nCommission it was clear that:\n<\/p>\n
      “there are sufficient qualified candidates applied for
\nappointment  in\t Public Services and included in the  ranked
\nlists  from  among  the Other Backward\tCommunities  in\t the
\nState”.\n<\/p>\n
      It  was noticed from the records of the Public Service
\nCommission that the statutory quota of 40% for OBCs – out of
\na  total  number  of  68,  893\tadvised\t by  Public  Service
\nCommission  during  1991-96,  – came to 27, 557,  while\t the
\nactual\tnumber of Backward Class candidates advised was more
\nthat  40% i.e.\t29, 346.  The High Level Committee  referred
\nto  the Economic Review, published by the Kerala Government.
\nIt then held that:\n<\/p>\n
      “even  if\t the statutory reservation in favour of\t any
\nbackward   class  is  not  satisfied   or  there   is\tover
\nrepresentation,\t the  same will not be a  justification\t for
\ngiving\tthe  benefit of reservation under Article  16(4)<\/a>  in
\nfavour of the affluent part of the Other Backward Classes”.\n<\/p>\n
      This  view of the Committee is in full conformity with
\nwhat  we  have\tstated under Points 2 and 3 in\trelation  to
\nvalidity  of  sub-clause (b) of section 3<\/a>.  Para 22C (i)  to\n<\/p>\n
(ix)  deals with various facts and contentions and concludes
\nby  saying  that  the apprehension that if creamy  layer  is
\nexcluded,  there will not be adequate representation, is not
\nfactually correct.\n<\/p>\n
      In  para\t22(D)  (iii), this  was\t reiterated,  having
\nregard to the fact that in 1991, literacy in Kerala was 91%.
\nIn  1996, it was almost 100%.  There were 6728 Lower Primary
\nSchools,  2964 Upper Primary Schools and 2573 High  Schools.
\nIn  1995-96  21.98 lakh students enrolled in  Lower  Primary
\nSections,  18.12  lakh in Upper Primary Sections  and  16<\/a>.16
\nlakhs in High Schools sections – in all 56.27 lakhs.  During
\nthis  period, 17,250 were in vocational schools in  1995-96.
\nThere  were again, 211 colleges in Kerala in 1996.  In 1996,
\n92,304\tboys and 1.17 lakh girls were studying in pre-degree
\nand  48,635 boys and 79,638 girls in degree classes and 2954
\nboys and 8206 girls in P.G.  classes.  According to the High
\nLevel  Committee  all these groups in schools  and  colleges
\ncontained   backward  classes\tcandidates.   Statistics  in
\nEngineering  and  Medical  Colleges and\t Nursing  were\talso
\ngiven.\n<\/p>\n
      Thereafter,  the\tCommittee  referred to\tthe  Central
\nGovernment’s O.M.  dated 8.9.93 in para 22F (i) and to Ashok
\nKumar  Thakur.\tIn para 22F (v), it was said that as in\t the
\nsaid  O.M,  so\tin Kerala, the rule of exclusion  of  creamy
\nlayer  was not to be applied to Artisans or those engaged in
\nhereditary  occupations,  callings like potters,  washermen,
\nbarbers\t etc.  The list of such occupations prepared by\t the
\nKerala\tArtisans Development Corporation Ltd.  was accepted.
\nPersons\t traditionally\tengaged in fishing  operations\twere
\nalso  excluded in para 22F (vii).  The Committee referred in
\npara 28 to various principles settled in Indira Sawhney.\n<\/p>\n
      The  Committee  considered the O.M.  dated  8.9.93  as
\ndirected  by  this Court in its order.\tThe  Committee\theld
\nthat  increase\tin  cost of living index between  1992\twhen
\nIndira\tSawhney was decided and the position in 1996 was  to
\nbe  kept  in mind.  There was an increase of 39.06%  in\t the
\nindex  it was stated.  The increase in consumer price  index
\nwas also considered and it was held in paras 30, 31, 32 that
\nthe  income  level set in the Central Government’s O.M.\t  of
\n8.9.93\twas to be modified upwards from one lakh to  Rs.1.50
\nlakhs gross income.  Para 33 dealt with the minimum scale of
\nRs.3000-5000 of group A officers\/Grade I and of Rs.2500-4000
\nof Group B.  It was observed that the minimum in Central and
\nState  Governments  in the All India Services  category\t was
\nRs.2200-4000.\t The  revision\tproposed  in  the  5th\t Pay
\nCommission  was\t far above these scales.  Paras 3, 4  and  5
\ndealt  with  agricultural  income   and\t productivity.\t The
\nCommittee  computed  these  figures  on the  basis  of\tdata
\nfurnished.  Para 36 dealt with professionals, those in Trade
\nand Business and Industry.  On that basis, the criteria were
\nfixed following the method adopted by the Central Government
\nin  its O.M.  Annexure IX(a), IX(d), (IX(e), (X(f), IX(g) of
\nthe  Report give data relating to the over-representation of
\nEzhava\/Thiyya,\tNadar, Converted Christians, Viswakarma\t and
\nDheevan\t Communities  in   various  Government\tDepartments.
\nAnnexure  IX(i) deals with departments where there is  over-
\nrepresentation\tof  some  of the  Backward  Classes.   Other
\nAnnexures  deal\t with  departments   where  there  is  under
\nrepresentation.\n<\/p>\n
      We  finally  come\t to Part II of the Report  which  is
\nimportant  and\tit  deals  with\t  the  criteria\t fixed\t for
\nidentifying  the  ‘creamy  layer’ in the  Backward  classes.
\nThis runs into 17 pages.  Pages 1 to 4 deal with guidelines,
\nAnnexure  A  deals  with list of OBC, Annexures B and  C  to
\nArtisan\/persons\t of  hereditary\t occupations  excluded\tfrom
\ncreamy\tlayer.\t Annexure D deals with\tfishermen  Community
\nsimilarly  excluded.  Annexure E prescribes the certificate.
\nSchedule at pages 13-17 deals with the prescribed norms.\n<\/p>\n
      So  far as the guidelines are concerned, reference  is
\nmade  to the list of OBCs in the 1958 Service Rules, and  to
\nthe  40%, reservation for OBCs.\t It was stated rightly\tthat
\nthose OBCs coming up on merit basis were to be excluded from
\n40%.   The  exclusion  of  creamy  layer  was  to  apply  in
\nGovernment  and\t public\t sector,  Government  companies\t and
\nautonomous  Bodies  etc.   In the Schedule at  Pages  13-17,
\nwhich  is  the\tcrucial\t provision, the\t method\t adopted  is
\nsimilar\t to  that  in the Central Government”s\tO.M.   dated
\n8.9.93.\t  First,  Constitutional  posts.  are  referred\t to.
\nThese include among others Judges of the High Court, Supreme
\nCourt,\tChief  Ministers, Council of Ministers etc.,  Former
\nChief  Ministers  and former Council of Ministers  as  well.
\nThese  in all, are in 19 categories.  Then comes the Service
\ncategory,  and the Central pattern is followed, referring to
\n“Parents both or either” being in Group I and Group B posts;
\nreference is made to those in Armed forces and Para Military
\nforces\tat various higher levels;  Professional Classes\t and
\nTrade and Industry were then referred to as follows:\n<\/p>\n
      “persons\tcoming\twithin\t wealth\/means\/income   group
\nprescribed in category VI, apart from their social status as
\nprescribed in the respective professions”.\n<\/p>\n
      and  contain  sub-categories  in\tparas  (i)  t  (vi).
\nIncome level is fixed at Rs.1.50 lakhs gross for individuals
\nand  Rs.20  lakhs  for\tcompany\t  and  trusts  in  an  year.
\nSocieties  and Chief Executives\/Chair persons of Cooperative
\nSocieties  are\talso  included, income of society  fixed  at
\nRs.20  lakhs  per  annum.  Category 5  deals  with  property
\nowners\t-(A)  Agriculture holding of 5 hectares or more\t for
\ncardamom  or  coconut plantation\/cultivation and 4  hectares
\nfor  persons\/family  having rubber or coffee plantation\t (B)
\nrefer  to vacant land as in category VI.  ‘Family’  includes
\nhusband\t and  wife and minor children.\tBuildings  could  be
\nresidential,  industrial or commercial in use etc.  Para  VI
\ndeals with wealth or income from as follows:\n<\/p>\n
      “person\/persons  having gross annual income of Rs.1.50
\nlakhs  or  above  or possessing wealth above  the  exemption
\nlimit  as prescribed in the Wealth Tax Act<\/a> for a period of 3
\nconsecutive years;\n<\/p>\n
      Explanation:   The  income criteria in terms of  rupee
\nwill  be  modified\/amended suitably taking into account\t the
\nchange<\/p>\n
      in the value of money,every three years”.\n<\/p>\n
      We  are of the view that these guidelines and criteria
\nare  on the same lines as those in the Central\tGovernment’s
\nO.M.  dated 8.9.93 which were accepted in Ashok Kumar Thakur
\nas  reasonable.\t In fact, there is now an upward increase of
\nincome\tto  Rs.1.50  lakhs.  Having regard  to\tAshok  Kumar
\nThakur, we are clearly of the view that the above guidelines
\nand  criteria  fixed  by the Justice  Joseph  Committee\t are
\nreasonable  so far as the State of Kerala is concerned.\t  In
\nfact,  in the affidavit dated 16.1.1998 filed by the  Kerala
\nState through its Chief Secretary, it was stated merely that
\nthere  were  a\tfew  mistakes, namely,\tthat  there  was  an
\nomission  of 5 communities viz.\t Kumbarans, Muslim, Thachar,
\nBoyan  of Malabar District, Malayan – throughout the  State,
\nexcept\tMalabar\t and  of  10  Sub-castes  viz.\t  Peroorkada
\nChetties,  Sadu Chetties, Manai Chetties (Chetty Community),
\nValan,\tNulayan, Paniakkal, Mukaya, Bobi Mukayan, Mukaveeran
\n&  Valinjiar  (Dheevara Community), in the list prepared  by
\nthe Committee.\tIn our view, these would have to be included
\nin  the\t list  of  Backward Classes  in\t addition  to  those
\nmentioned  in  the Report of the High Level Committee.\t The
\nguidelines  &  criteria\t fixed\tby the\tCommittee  would  be
\napplicable  to\tthese communities and sub-castes  also.\t  We
\ndirect\taccordingly.  We have heard submissions on behalf of
\nthe  various  communities\/interveners and looked into  their
\nobjections to the Committee’s Report.  Our attention was not
\ninvited\t during\t arguments  to\tanything  in  particular  on
\nlaw\/facts which would fault the Committee’s Report.  Counsel
\nvirtually conceded that no material was placed in any of the
\nobjections  filed  in this Court to the guidelines\/norms  in
\nthe  Report except to say that the Kerala Act of 1995 was  a
\ncomplete answer to the points raised in the Report in favour
\nidentification of the creamy layer.  Some have raised points
\nwhich  are already covered by what we have said under Points
\n1,2  and  3.   In fact, we may make it very  clear  that  no
\nobjection  of  any  substance was placed before\t us  by\t any
\ncounsel to contend that the guidelines or norms fixed by the
\nHigh  Level  Committee\twere  wrong.  Arguments\t of  a\tvery
\ngeneral\t nature\t saying\t that  creamy  layer  ought  not  be
\nexcluded,  were advanced.  We, therefore, hold that there is
\nnothing\t in the objections filed the parties which  requires
\nto be specifically dealt with.\tIn the result, we accept the
\nJustice\t Joseph\t Committee’s Report in toto subject  to\t the
\naddition of communities and sub-castes as pointed out in the
\naffidavit of the State dated 16.1.98, referred to above.\n<\/p>\n
      The next question is as to the further directions that
\nwe  have  to  give:   When the State  was  found  guilty  of
\ndeliberately  violating\t orders of this court and the  order
\nwas  kept  in  abeyance and  subsequently,  legislation\t was
\npassed\tby-passing  all norms of reasonableness,  should  we
\nallow  the  State  to go scot-free or should we\t punish\t the
\nperhaps innocent candidates who between the date of judgment
\nin Indira Sawhney and today had got appointments even though
\nthey  belonged\tto  the creamy layer?  Is there\t no  way  of
\npunishing  those  who  are guilty of wilful  disobedience  –
\napart  from the Chief Secretary?  For the present, we do not
\nwish to go into this question.\n<\/p>\n
      It  will\tbe seen that this Court has stated, as\tlong
\nback  as in 1992 that it is imperative to exclude the creamy
\nlayer  in  the\tBackward  classes   from  the  benefits\t  of
\nreservation.   The Kerala Government has been already  found
\nto  have deliberately violated the directions of this  Court
\nin  that judgment and held guilty of contempt of Court.\t The
\nquestion  of  imposing\tsentence  and, if so,  on  whom\t was
\npending\t when the impugned legislation was passed in 1995 by
\nthe  State of Kerala.  The legislation unfortunately  served
\ndual  purposes\t– one to ward off temporarily  any  sentence
\nbeing  passed in the contempt proceedings and the other\t for
\ndeliberately  putting off the exclusion of creamy layer till
\nthis  Court  could deal with the validity of the  Act.\t Now
\nthat  the provisions of sections 3<\/a>, 4<\/a> and 6<\/a> of the Act\thave
\nbeen  struck down, it is no longer permissible to allow\t the
\nState  of Kerala to continue to violate the mandate of\tthis
\nCourt  nor can this Court allow the State to help the creamy
\nlayer  to reap the benefits of its non-exclusion.  Is it not
\nnecessary  to see that the benefits trickle down atleast now
\nto  the\t non-creamy  layer of the Backward classes  in\tthat
\nState  at least from today?  We, therefore propose to  adopt
\nthe  principle\tof  prospective overruling and we  think  it
\nappropriate  to put the recommendations in the Report  dated
\n4.8.97\tof the High Level Committee presided over by Justice
\nK.J.Joseph  (with  the\taddition  of  the  communities\t and
\nsub-castes mentioned in the affidavit of the Chief Secretary
\ndated  16.1.1998)  into\t immediate   operation\tfrom   today
\nprospectively,\tas stated below.  We apply the principle  of
\nprospective  overruling,  as  done in Ashok  Kumar  Thakur’s
\ncase,  keeping\tthe  suo motu contempt\tcase  pending.\t We,
\ntherefore,  direct  as\tfollows:   (1) We  direct  that\t the
\nexclusion  of creamy layer as stated in that Report shall be
\napplicable from today, to all cases where appointment orders
\nhave  not been issued to the members of the Backward classes
\nand for all future selections in public service as stated in
\nthe  Report.   (The  five  communities referred\t to  in\t the
\naffidavit of the Chief Secretary dated 16.1.98 shall also be
\ntreated\t as  Backward  subject to the guidelines  and  norms
\nfixed by the Committee).  It will be obligatory to implement
\nthe Report, as so modified, in the Government Departments of
\nKerala\t \/    Organisations\/\tInstitutions\/Public   Sector
\nUndertakings\/Government\t    owned     Companies\/Co-operative
\nSocieties\/Autonomous  Bodies  ,\t as stated  in\tthe  Report,
\nwherever  the principles of reservation embodied in  Article
\n16(4)<\/a>  or Rules 14 to 17 of Part II of the Kerala State\t and
\nsubordinate Service Rules, 1958 are applicable.\t It shall be
\nnecessary  for\tthe  candidates belonging  to  the  Backward
\nClasses\t to file the certificates as envisaged in the Report
\nand  satisfy the employer that he or she does not belong  to
\nthe  creamy layer.  The income limits and property  holdings
\nas  mentioned  in  the Schedule to the said Report  will  be
\napplicable   from   today.   The    exclusion\tof   certain
\noccupations\/communities\t etc.  shall however be as specified
\nin  the\t Report.  Any violation of this direction will\tmake
\nthe  appointment  or  selection made on or after  this\tday,
\nunconstitutional.   It is made clear that any infraction  of
\nthis direction will be treated seriously and this Court will
\nalso  not hesitate to take further fresh action for contempt
\nof  Court, if need be.\t(2) We are of the view that it\twill
\nbe  appropriate to allow the State of Kerala one more chance
\nto  conform  to the Rule of law.  We, therefore, permit\t the
\nState  of  Kerala to make such provision as it may deem\t fit
\nfor  exclusion of creamy layer among the Backward Classes in
\nthe  State of Kerala, in accordance with law and in a manner
\nconsistent with the Constitution, the basic structure of the
\nConstitution,  Articles 14 and 16 and the judgment in Indira
\nSawhney and in Ashok Kumar Thakur and in accordance with the
\nprinciples laid down in the judgment now rendered by us.\n<\/p>\n
      (3)  Once\t such  provision is made  and  published  in
\naccordance  with  law,\tit  shall come into  force  and\t the
\nrecommendations\t of  the  Justice  K.J.Joseph  Committee  as
\naccepted by this Court shall cease to apply.  But as long as
\nthe   State  of\t Kerala\t does\tnot  bring  about  any\tsuch
\nalternative  provisions\t to  exclude the creamy\t layer,\t the
\nrecommendation\tof  the Justice K.J.Joseph  Committee  shall
\noperate\t from today subject to any further directions  which
\nthis Court might give in that behalf.  Any fresh alternative
\nprovision  that\t may be made by the State of Kerala,  it  is
\nneedless  to  say,  will  be subject  to  the  such  further
\ndecision  of  this  Court, in case the validity\t thereof  is
\nquestioned.   (4)  In  the event of  alternative  provisions
\nbeing  made by the State of Kerala either by executive order
\nor  by\tlegislative  or\t by way of  Rules,  no\tCourt  shall
\nentertain  any\tchallenge  thereto, and all  proceedings  in
\nrelation  thereto  shall have to be taken out only  in\tthis
\nCourt.\t Before parting with the case, we may state that the
\nunreasonable  delay on the part of the Kerala Government and
\nthe  discriminatory law made by the Kerala Legislature\thave
\nbeen  in  virtual  defiance of the rule of law and  also  an
\nindefensible  breach  of the equality principle which  is  a
\nbasic  feature\tof the Constitution.  They are also in\topen
\nviolation  of the judgments of this Court which are  binding
\nunder  Article 141<\/a> and the fundamental concept of separation
\nof  powers which has also been held to be a basic feature of
\nthe Constitution.  The State has already been held guilty of
\ncontempt.   This attitude and action of the State of  Kerala
\nhas  unfortunately  resulted in allowing the `creamy  layer’
\namong  the  backward  classes  in the  State  of  Kerala  to
\ncontinue  to  grab the posts in the services in\t government,
\npublic\tsector\tetc, even after Indira Sawhney and get\taway
\nwith the same.\tThe result is that the really backward among
\nthe  backward classes have been deliberately deprived by the
\nState,\t–  of  their legitimate right to these\tposts  which
\nwould  have  otherwise\tobviously gone to them.\t  To  us  it
\nappears\t to  be rather anomalous that while the\t Governments
\ndeclare\t endlessly that they will see to it that benefits of
\nreservations  really reach the needy among the backwards,  –
\nthe  very  action of the Governments both on  the  executive
\nside  and on the legislative side, deliberately refusing  to
\nexclude\t the creamy layer and in indiscriminately  including
\nmore  castes  in the backward classes list are leading to  a
\nserious\t erosion  of the reservation programme.\t The  sudden
\nCabinet\t decision  of the State of Kerala not to  appoint  a
\nCommission  to identify the creamy layer as promised but  to
\npass  the  impugned  law  was  nothing\tbut  an\t attempt  to
\nperpetuate  the creamy layer and allow it to knock away\t the
\nbenefits  of reservation.  Such a decision appears to us  to
\nhave been taken because the real backwards obviously have no
\nvoice in that decision making process.\tUnfortunately today,
\nas  a  matter of political expediency, Governments  tend  to
\nknowingly  violate the Rule of law and the Constitution\t and
\npass  on  the  buck  to\t the   courts  to  strike  down\t the
\nunconstitutional  provisions.  It would then become easy for
\nthe  Government\t to blame the Courts for striking  down\t the
\nunconstitutional  provisions.  The case on hand is a typical
\nillustration  of  such\tan attitude.  In this  context,\t the
\nwords  of  Sir Anthony Mason, Chief Justice of\tAustralia  (
\nquoted\tin  para 684 of Indira Sawhney by Jeevan Reddy,\t J.)
\nare extremely appropriate:\n<\/p>\n
      “There  are  other  reasons, of course  –\t that  cause
\ngovernments  to leave decisions to be made by Courts.\tThey
\nare  of expedient political character.\tThe community may be
\nso  divided  on a particular issue that a  government  feels
\nsafe  course  for it to pursue is to leave the issue  to  be
\nresolved by the Courts, thereby diminishing the risk it will
\nalienate significant sections of the Community.\n<\/p>\n
      and concluded:\n<\/p>\n
      “….my  own  feeling  is that the people\t accept\t the
\nCourts\tas the appropriate means of resolving disputes\twhen
\ngovernments  decide not to attempt to solve the disputes  by
\nthe political process”.\n<\/p>\n
      In  the present case, the State of Kerala did not care
\nif  its\t Chief Secretary was to go behind bars.\t It did\t not
\ncare  if the real backwards were left in the lurch.  It then
\ntook  to legislation inasmuch as it would then be  difficult
\nfor  this Court to hold the legislature in contempt.  It  is
\ndifficult  for us to think that the Kerala Government really
\nbelieved  in the validity of its legislation.  It appears to
\nus  that  it  thought it better to leave it  to\t the  Courts
\nstrike\tdown  the  Act.\t  Years would role  by\tand  in\t the
\ninterregnum  the  creamy  layer could continue to  reap\t the
\nbenefits  of  reservation.   When  Governments\tunreasonably
\nrefuse\tto eliminate creamy layers from the backward classes
\nor  when governments tend to include more and more castes in
\nthe  list  of  Backward Classes without\t adequate  data\t and
\ninquiry,  a stage will be reached soon when the whole system
\nof  reservation\t will become farcical and a negation of\t the
\nconstitutional\tprovisions  relating to\t reservations.\t The
\nresistance of the creamy layer to get out of the lists is as
\nbad  as\t the  clamour  for entry into the  quota  system  of
\nvarious\t castes whose social status does not conform to\t the
\nlaw  decided  by  this\tCourt.\t  We  earnestly\t hope\tthat
\nConstitutional\tprovisions  will  not\tbe  converted\tinto
\ncitadels  for  unjustified  patronage.\t  Krishna  Iyer,  J.
\nwarned\tin Akhil Bhartiya Soshit Karamchari Sangh vs.  Union
\nof India<\/a> [1981 (1) SCC 246] (at 264, para 22):\n<\/p>\n
      “……to\t politicise  this provision  (i.e.   Article
\n16(4)<\/a>  for communal support and Party ends is to subvert the
\nsolemn undertaking of Article 16(1).”<\/a>\n<\/p>\n
      The  IAs\t35,  36 in W.P.\t 930\/1990  are\tdisposed  of
\naccordingly.   W.P.(C) Nos.699\/95 and 727\/95 are allowed  to
\nthe  extent  indicated\tabove.\t IAs  8\t and  9\t in  W.P.(C)
\nNo.699\/1995  also stand disposed of.  However, the suo\tmoto
\ncontempt case started earlier shall be listed after a period
\nof  three  months.  We thank the learned Amicus\t Curiae\t Sri
\nGopal Subramaniam for his valuable assistance.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Indira Sawhney vs Union Of India And Ors on 13 December, 1999 Author: M J Rao Bench: D.P.Wadhwa, M.J.Rao, M.B.Shah PETITIONER: INDIRA SAWHNEY Vs. RESPONDENT: UNION OF INDIA AND ORS. DATE OF JUDGMENT: 13\/12\/1999 BENCH: D.P.Wadhwa, M.J.Rao, M.B.Shah JUDGMENT: M. JAGANNADHA RAO,J. The cases in this batch raise common issues relating […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-250128","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nIndira Sawhney vs Union Of India And Ors on 13 December, 1999 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/indira-sawhney-vs-union-of-india-and-ors-on-13-december-1999\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Indira Sawhney vs Union Of India And Ors on 13 December, 1999 - 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