“A CRITICAL STUDY OF ASHOK KUMAR THAKUR Vs.

UNION OF INDIA”

FINAL DRAFT SUBMITTED IN THE FULFILLMENT OF THE COURSE TITLED

CONSTITUTIONAL LAW-I FOR OBTAINING THE DEGREE OF B.B.A. LL.B (Hons.)

PROJECT PROPOSED BY:

NAME: VISHWAN UPADHYAY
ROLL NO.: 1864
SEMESTER: 5TH

SUBMITTED TO:
PROF. Dr. ANIRUDH PRASAD
PROFESSOR of LAW

AUGUST, 2019

CHANAKAYA NATIONAL LAW UNIVERSITY, NYAYA NAGAR,

MITHAPUR, PATNA- 800001
 DECLARATION BY THE CANDIDATE

I hereby declare that the work reported in the B.B.A., LL.B (Hons.) Project Report entitled “A
critical study of Ashok Kumar Thakur vs. Union of India” submitted at Chanakya National Law
University is an authentic record of my work carried out under the supervision of Prof. Dr. Anirudh
Prasad.
I have not submitted this work elsewhere for any other degree or diploma. I am fully responsible
for the contents of my Project Report.

SIGNATURE OF CANDIDATE
NAME OF CANDIDATE-VISHWAN UPADHYAY
CHANAKYA NATIONAL LAW UNIVERSITY, PATNA
 ACKNOWLEDGEMENT

A project is a joint endeavour which is to be accomplished with utmost compassion, diligence and
with support of all. Gratitude is a noble response of one’s soul to kindness or help generously
rendered by another and its acknowledgement is the duty. I am overwhelmed in all humbleness
and gratefulness to acknowledge from the bottom of my heart to all those who have helped me to
put these ideas, well above the level of simplicity and into something concrete effectively and
moreover on time.

I would like to thank my faculty Prof. Dr. Anirudh Prasad whose guidance helped me a lot with
structuring my project. I owe the present accomplishment of my project to my friends, who helped
me immensely with materials throughout the project and without whom I couldn’t have completed
it in the present way.

I would also like to extend my gratitude to my parents and all those unseen hands that helped me
out at every stage of my project.

THANK YOU,

NAME: Vishwan Upadhyay

COURSE: B.B.A., LL.B. (Hons.)
ROLL NO: 1864
SEMESTER: 5TH
  Aims and Objectives

The main aim in this project is to present a critical analysis on the case law, Ashok Kumar Thakur
vs. Union of India.

 Research Methodology

The researcher has followed the doctrinal method of research to make this project. The researcher
has visited the library of Chanakya National Law University to collect relevant research material
from books, articles, law journals, etc. The researcher has also used the source of internet while
making the project.

 Scope and limitations

Limited period of time was the biggest limitation of the study.

 Sources of data

The following secondary sources of data have been used in the project-

1. Cases

2. Books

3. Journals

• Method of Writing:

The method of writing followed in the course of this research paper is primarily analytical.
  Mode of citation:

The researcher has followed a uniform mode of citation throughout the course of this research
paper.

 Hypothesis:

Ashok Kumar Thakur vs. Union of India laid down the yardstick of determination of SEBCs
and the basic structure of the Indian constitution.
 TABLE OF CONTENTS

1. Introduction

2. Ashok Kumar Thakur vs. Union of India

a. Facts

b. Judgements

3. A critical study of Ashok Kumar Thakur vs. Union of India

4. Significance of the case

5. Conclusion

6. Bibliography
 1. INTRODUCTION

Ashok Kumar Thakur v. Union of India is an Indian public interest litigation case challenging the
conclusion of the Mandal commission that about 52% of the Indian population belonged to Other
Backward Classes (OBC) classification.

THE CONSTITUTION (NINETY-THIRD AMENDMENT) ACT, 2005 amended Art. 15 after

clause (4), the following clause was inserted:
"(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State
from making any special provision, by law, for the advancement of any socially and educationally
backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such
special provisions relate to their admission to educational institutions including private educational
institutions, whether aided or unaided by the State, other than the minority educational institutions
referred to in clause (1) of article 30."

It is laid down in article 46, as a directive principle of State policy, that the State shall promote
with special care the educational and economic interests of the weaker sections of the people and
protect them from social injustice. To promote the educational advancement of the socially and
educationally backward classes of citizens or of the Scheduled Castes and Scheduled Tribes in
matters of admission of students belonging to these categories in unaided educational institutions,
other than the minority educational institutions referred to in clause (1) of article 30 of the
Constitution.

Ashok Kumar Thakur vs Union of India petition challenged the basis of the Mandal Commission's
conclusion that OBCs constituted 52 per cent of the total population. The National Sample Survey
Organization had estimated it as 32 per cent and the National Family Health Survey 29.8 per cent.
 2. ASHOK KUMAR THAKUR Vs. UNION OF INDIA

2.1) FACTS OF THE CASE:

In April 2006, the government decided to reserve nearly 27% of seats for students from the OBC
segment in institutes of higher learning in India. This would have reduced the seats for a general,
unreserved candidate to about 50% (after taking into account other reserved seats). The Indian
parliament passed a bill to bring out an amendment in the constitution in this regard. Thakur
challenged the validity of the amendments.

The Supreme Court of India in response to the PIL refused to stay the constitutional amendment
but issued notice to the government. The government which had faced strong anti-reservation
protests on its turn stated that the reservation policy would not be implemented until a bill (The
Central Educational Institutions (Reservation in Admission) Bill, 2006) introduced in the
parliament in August 2006 for this purpose becomes a law. The bill was later approved by the
parliament.

The Supreme Court, as an interim measure, stayed the operation of admission to medical and
professional institutions for OBC's under the 27% quota category for the year 2007-2008 and
directed that all cases (including this one) should be listed for the third week of August for final
hearing and disposal on the issue. The Court held that the 1931 census could not be a determinative
factor for identifying OBCs for the purpose of providing reservation. However, it clarified that the
benefit of reservation for the Scheduled Castes and Scheduled Tribes could not be withheld and
the Centre can go ahead with the identification process to determine the backward classes.

On 10 April 2008, the Supreme Court of India upheld the Government's 27% OBC quotas in
Government funded institutions. The Court categorically reiterated its prior stand that "Creamy
Layer" should be excluded from the ambit of reservation policy and private institutions are also
not to be included in. The verdict produced mixed reactions. Several criteria to identify creamy
layer has been recommended, which are as follows1:

1
New Cutoff for OBCs". The Telegraph. 11 April 2008. Retrieved 2008-04-11.
Those with family income above Rs 250,000 a year should be in creamy layer, and excluded from
the reservation quota. Also, children of doctors, engineers, chartered accountants, actors,
consultants, media professionals, writers, bureaucrats, defense officers of colonel and equivalent
rank or higher, high court and Supreme Court judges, all central and state government Class A and
B officials. The court has requested Parliament to exclude MPs’ and MLAs’ children, too.

2.2) JUDGEMENT:

1. The Constitution (Ninety-Third Amendment) Act, 2005 does not violate the "basic structure" of
the Constitution so far as it relates to the state maintained institutions and aided educational
institutions. Question whether the Constitution (Ninety-Third Amendment) Act, 2005 would be
constitutionally valid or not so far as "private unaided" educational institutions are concerned, is
left open to be decided in an appropriate case.

2. "Creamy layer" principle is one of the parameters to identify backward classes. Therefore,
principally, the "Creamy layer" principle cannot be applied to STs and SCs, as SCs and STs are
separate classes by themselves.

3. Preferably there should be a review after ten years to take note of the change of circumstances.

4. A mere graduation (not technical graduation) or professional deemed to be educationally

forward.

5. Principle of exclusion of Creamy layer applicable to OBC's.

6. The Central Government shall examine as to the desirability of fixing a cut off marks in respect
of the candidates belonging to the Other Backward Classes (OBCs)to balance reservation with
other societal interests and to maintain standards of excellence. This would ensure quality and
merit would not suffer. If any seats remain vacant after adopting such norms they shall be filled
up by candidates from general categories.
7. So far as determination of backward classes is concerned, a Notification should be issued by the
Union of India. This can be done only after exclusion of the Creamy layer for which necessary
data must be obtained by the Central Government from the State Governments and Union
Territories. Such Notification is open to challenge on the ground of wrongful exclusion or
inclusion. Norms must be fixed keeping in view the peculiar features in different States and Union
Territories. There has to be proper identification of Other Backward Classes (OBCs.). For
identifying backward classes, the Commission set up pursuant to the directions of this Court in
Indra Sawhney 1 has to work more effectively and not merely decide applications for inclusion or
exclusion of castes.

8. The Parliament should fix a deadline by which time free and compulsory education will have
reached every child. This must be done within six months, as the right to free and compulsory
education is perhaps the most important of all the fundamental rights (Art.21 A). For without
education, it becomes extremely difficult to exercise other fundamental rights.

9. If material is shown to the Central Government that the Institution deserves to be included in
the Schedule (institutes which are excluded from reservations) of The Central Educational
Institutions (Reservation in Admission) Act, 2006 (No. 5 of 2007), the Central Government must
take an appropriate decision on the basis of materials placed and on examining the concerned
issues as to whether Institution deserves to be included in the Schedule of the said act as provided
in Sec 4 of the said act.

10. Held that the determination of SEBCs is done not solely based on caste and hence, the
identification of SEBCs is not violative of Article 15(1) of the Constitution.
 3. SIGNIFICANCE OF ASHOK KUMAR THAKUR Vs. UNION OF INDIA

The most important issue raised in Ashok Kumar Thakur vs. Union of India is the basis for
exclusion of creamy layer from the ambit of reservations.

The Hindi version of the Reservation Act which had excluded creamy layer from the ambit of
reservation was rejected by the Parliament and the English version of the Reservation Act which
did not exclude creamy layer from the benefit of reservation, was accepted. Thus the intention of
the Parliament was clear that they wanted to include creamy layer for the purpose of reservation.
The term ‘creamy layer’ in simple words means the elite from the lowest caste. Popular perception
is that this term was first coined in Indra Sawhney v. Union of India2.

Contrary to popular belief, the said term was first coined by Justice Krishna Iyer, in State of Kerela
v. N.M. Thomas3, wherein he observed that ‘benefits of the reservation shall be snatched away by
the top creamy layer of the backward class, thus leaving the weakest among the weak and leaving
the fortunate layers to consume the whole cake’. This term was cited again by Justice Krishna Iyer
in Akhil Bhartiya Soshit Karamchari Sangh v. Union of India4. The roots of this concept can
however be traced back to the case of K.S. Jayashree v. State of Kerela5 wherein the people
belonging to backward class, but whose family income exceeds Rs. 10000, were denied the benefit
of reservation.

However, in Indra Sawhney v. Union of India6 the Supreme Court dealt with “creamy layer” at
length. That case dealt with reservation of backward classes in case of public employment. Justice
Jeevan Reddy stated that ‘creamy layer’ can be, and must be excluded from the purview of
reservation. He emphasized that upon a member of a backward class, reaching an advanced social
level or status, would no longer belong to the backward class and would have to be weeded out.
After excluding the creamy layer alone, would the class be a compact class and such exclusion

2
AIR 1993 SC 477 : 1992 Supp (3)SCC 217
3
AIR 1976 S.C. 490
4
AIR 1981 S.C. 298.
5
AIR 1976 SC 2381.
6
AIR 1993 SC 477 : 1992 Supp (3)SCC 217
would benefit the truly backward. The Supreme Court had observed that ‘the backward class under
Art. 16(4) means the class which has no element of creamy layer in it. It is mandatory under Art.
16(4) that the state must identify the creamy layer in a backward class and thereafter excluding the
creamy layer extend the benefit of reservation to the ‘class’ which remains after such exclusion.’

In Ashok Kumar Thakur v. State of Bihar7, unreasonable conditions were prescribed to identify
the creamy layer. Unlike in Indra Sawhney case wherein it was stated that children of any IAS or
IPS officer would be denied the benefit of reservation, in Ashok Kumar Thakur v. State of Bihar
an additional condition was laid down that the IAS or IPS officer should also be earning a
minimum salary of Rs. 10000 per month, which condition was quashed as discriminatory. In Indra
Sawhney v. Union of India (II), also known as the Kerala creamy layer case, the Kerala Legislature
passed an Act declaring that there would be no creamy layer in the State of Kerala. The Supreme
Court in this case further explained the rationale underlying the rule of exclusion of creamy layer.
As the creamy layer is not entitled to the benefits of reservation, non-exclusion thereof would be
discriminatory and violative of Articles 14 and 16. Thus the Act was declared unconstitutional.

The above cases were with respect to the exclusion of creamy layer from reservation in public
employment. The issue of exclusion of creamy layer from reservation in educational institutions
was dealt with in Ashok Kumar Thakur v. Union of India. The main contention raised by counsels
appearing for the Respondents regarding inclusion of creamy layer for the purposes of reservation
centered on the idea that the objective of reservation under Article 15 and Article 16 is different.
The contention was that reservation under Article 15 is not a poverty alleviation programme nor
is it a programme to eradicate unemployment and nor is it a programme to educate all the backward
classes. It is to bring about equality among different castes. Therefore it was contended that if the
lower castes are deprived of the facilities and opportunities in the name of the creamy layer, then
it will be counterproductive and would frustrate the very object of reservation, namely to achieve
equality in status, facilities and opportunities.

Chief Justice K.G. Balakrishnan, addressing the aforesaid contention said that the people
belonging to the backward caste, but being economically advanced do not require the protection

7
1995 5 SCC 403
of reservation. He stated that the creamy layer principle is introduced merely to exclude a section
of a particular caste on the ground that they are economically advanced and educationally forward
and unless they are excluded, there cannot be proper identification of backward class. If creamy
layer is not excluded, then that would mean that identification of OBCs would be solely on basis
of caste and thus violative of Article 15(1) and 16(1). Moreover reservation of OBCs under Article
15 is designed to provide opportunities in education thereby raising educational, social and
economic levels of those who are lagging behind.

By excluding those who have already attained economic wellbeing or educational advancement,
the special benefits provided under these clauses cannot be further extended to them and if done
so, it would be unreasonable, discriminatory or arbitrary, resulting in reverse discrimination. Thus,
if the creamy layer is not excluded, the identification of OBC will not be complete such non-
exclusion of 'creamy layer' may not be in accordance with Article 15(1) of the Constitution. The
word ‘social’ under Article 15(4) and 15(5) is much wider and also includes ‘economically.
Former Prime Minister of Indian Mr. Jawaharlal Nehru said that ‘economic’ was included in the
‘social’ portion of ‘social and educationally backward’. Only ‘social and educationally backward’
was added under Article 15 so as to maintain symmetry with Article 340 also. Had it not been for
a desire to achieve symmetry in drafting, ‘economically’ would have been included. Had this been
done, the creamy layer would have been excluded ab initio. Thus the objective of the founding
fathers is very clear that they intended to exclude creamy layer from the benefits of reservation.

The persons included in the creamy layer are already advanced and can be compared to the so
called forward section of the society. They can be treated as equals with the forward section of the
society. Thus the contention that exclusion of creamy layer would not bring about equality as those
people would remain backward, is not well founded. Instead inclusion of creamy layer would mean
unequal persons being treated as equal thus being violative of Article 14, 15 and 16. Another
important issue with regard to the creamy layer controversy is whether the restrictions imposed on
the creamy layer would apply in case of Schedule Caste and Schedule Tribes also. The Supreme
Court held that ‘creamy layer’ is a parameter to identify backward class. Therefore this principle
cannot apply to SCs and STs as they are separate classes by themselves.
The other significance of this case is the challenging of any legislation only on the ground that it
is unreasonable.

In the case of Ashok Kumar Thakur v. Union of India, inter alia, it was held that a legislation with
adequate legislative competence cannot be challenged simply on the ground of unreasonableness
because that by itself does not constitute a ground for challenge. Lack of intelligible differential
and/or reasonable classification has been held to be the only grounds for challenging legislation if
the Legislature is otherwise competent to legislate on the subject. In the said Judgment, the
Supreme Court further went on to hold that the doctrines of “Strict Scrutiny”, “Compelling
Evidence” and “Suspect Legislation” followed by the American Judiciary have no application to
Indian Constitutional Law. Certain prior judgements of the Supreme Court of India which had
explicitly laid down that a legislation/ Statute can be constitutionally challenged on the basis of it
being unreasonable were not referred to or distinguished from by the Supreme Court in the said
case. The fundamental constitutional question involved is whether the ratio laid down by the
Supreme Court militates against the essence of the Articles 14, 19 and 21 of the Constitution of
India and consequently whether it impliedly overrules the “Golden Triangle Doctrine” as
propounded by the Supreme Court in the case of Minerva Mills v. Union of India.
 4. CONCLUSION

The researcher would like to conclude by that the researcher agrees with the majority opinion of
Justice KG Balakrishnan that caste ought to be considered as a major criterion for determination
of backwardness. Caste system has been prevalent in India since time immemorial. Every
individual belongs to some caste or the other. The backwardness of people in India can be traced
to the caste they belonged to. Every caste is associated with a particular occupation. That relation
could not be severed. An example cited was in the case by learned Counsel Ravivarma Kumar,
appearing for the Union of India, that throughout the country in 6.5 lakh villages, it is the barber
communities and the barber communities alone, which carry on the traditional occupation of hair
cuttings and no other community has taken up the said occupation. Though it may be said that
people have deviated from that occupation and became doctors, engineers, lawyers, etc., but these
people form a very small number. This caste-occupation nexus exists till date in the India. Thus
the whole caste on the basis of the occupation they follow could be called backward.

Thus caste as a criterion cannot totally be ignored. As far as people belonging to these castes, but
economically and educationally well off, are concerned, they would fall within the creamy layer
and would thus be denied the benefit of reservation. Thus no person would be wrongfully granted
the benefits of reservation. As far as the goal of forming a casteless society is concerned, it is not
reasonable to expect to achieve such goal in the immediate future. Till such time, affirmative action
needs to be adopted for the advancement of castes which are backward. When it is felt that these
castes have become sufficiently advanced, then caste as a criteria for backwardness can be
disposed off.

The fact that any legislation cannot transgress on inalienable fundamental rights conferred and/or
declared by the Constitution is the essence of Constitutional Law. Judicial Review has been held
to be a part of the basic structure of the Constitution of India. The question regarding the legal
sustainability and/or viability of the principle laid down by the Indian Supreme Court vide the said
judgment is one of the most important questions posed before Indian Constitutional Lawyers. The
abovementioned judgment may give an impetus to the Executive to add more Legislative Acts to
the 9th Schedule. Today, there are more than 285 statutes which have been added in the 9th
schedule. The said judgment of the Indian Supreme Court may hasten the process of adding more
Legislative Acts to the said 9th Schedule.

The researcher would like to conclude by saying that a periodic review is to be done from time to
time so as to exclude those who have attained the status of socially advanced persons i.e. in the
sense that they have a higher level of income or are economically sounder than others in the caste.
 5. BIBLIOGRAPHY

1) Books:
a) Indian Constitutional Law by M.P Jain (7th Edition)
b) Constitution of India by P.N Shukla
2) Websites:
a) www.indiankanoon.org
b) www.legalservicesindia.com
c) www.indianlawjournal.org