ASHOKA KUMAR THAKUR versus UNION OF INDIA & ORS

Citation: [2008] 4 S.C.R. 1 · Decided: 10-04-2008 · Supreme Court of India · Bench: K.G. BALAKRISHNAN · Disposal: Disposed off

Cited by 23 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

.. 
(2008] 4 S.C.R. 1 
, ASHOKA KUMAR THAKUR 
v. 
UNION OF INDIA & ORS .. 
(Writ Petition (Civil) No. 265 of 2006) 
. APRIL 10, 2008 · 
(K.G. BALAKRISHNAN, C.J. AND DR .. ARIJIT PASAYAT; 
C.K. THAKKER, R.V. RAVEENDRAN & DALVEER 
BHANDARI, JJ,) 
A 
.B 
. Constitution (Ninety Third Amendment) Act, 20051 c 
Central Educational Institutions (Reservation in ·Admission) .. 
Act, 2005 (Act 5 of 2007): 
Whether violative ol the "basic· structure" of the 
Constitution in. so far as it relates fo the state maintained 
, · institutions and aided educational institutions - Held not D 
violative - However, in so far as "private unaided" educational 
institutions are concerned, the question left open to .be decided 
.. in appropriate case. 
Constitutional validity in view of definition of "backwaid E 
·class" - Whether identification of such "backward class" based 
on "caste" is constitutionally valid - ·Held; Valid. 
Constitutional validity of since the Amending Act does 
not prescribe any time limit for its operation and no periodical 
review is contemplated - Held, valid, but a periodical review F 
can qe made at the end of every ~ years . . 
· . · Whether the quantum of reservation provided in the Act . 
is valid and whether 27% of seats for SEBC was· required to 
be made - Held valid - Parliament must be deemed to have 
. taken into consideration all relevant circumstances while fixing G 
the 27% reservation. 
Articles 15( 4) and 15(5) - Held not mutually contradictory. 
.. 
Articles 14 and 15(5) - Exclusion ofminority educational 
1 
H 
2 
SUPREME COURT REPORTS 
[2008] 4 S.C.R. 
A institutions from Article 15(5) - Not violative of Article 14. 
Article 15 and s.2(g) of the Act 5 of 2007 - Creamy layer 
- Creamy fayer is to be excluded from SEBS - Parameters 
for determining the "creamy layer' group - Applicability of the 
0. M. dated 8. 9. 1993 - Applicability of "creamy layer principle" 
B to SC/ST - Held not applicable. 
Article 15(5) -
Principles of reservation or other 
affirmative action -Applicability of principles laid down by U.S. 
Supreme Court - Held not applicable. 
C 
Other Backward Classes- Determination of- Delegation 
of power to Union Government - Held, constitutionally valid. 
Educationally backward class - Prescribing benchmark 
of matriculation or 10+2 rejected. 
D 
Articles 162 and 368 - Constitution 93rd Amendment 
E 
dof)s not affect the executive power of the State - Hence 
procedure prescribed under proviso to Article 368(2) not 
required to be followed. 
Words & Phrases: 
"Basic structure of the constitution", "backward class", 
"caste", "creamy layer", 
"su~pect legislation", "strict scrutiny", 
"compelling state necessity" - Meaning of. 
The validity of the Constitution (Ninety Third) 
F Amendment Act, 2005 was challenged in the Writ Petitions 
before the Constitution Bench on being referred to it by a 
Division Bench, on various grounds. 
On the basis of the diverse contentions raised, the 
G following questions were formulated: 
H 
1. Whether the Ninety~Third Amendment of the 
Constitution is against the " basic structure" of the 
Constitution? 
2. Whether Articles 15(4) and 15(5) are mutually 
' 
I 
ASHOKA KUMAR THAKUR v. UNION OF !NOIA & ORS. 
3 
contradictory, hence Article 15(5) is to be held ultra vires? A 
3. Whether exclusion of minority educational 
institutions from Article 15(5) is violative of Article 14 of 
Constitution? 
4. Whether the Constitutional Amendment followed 
B 
the procedure prescribed under Article 368 of the 
Constitution? 
5. Whether the Act 5 of 2007 is constitutionally invalid 
in view of definition of "Backward Class" and whether 
the identification of such "Backward Class" based on c 
"caste" is constitutionally valid? 
6. Whether "Creamy Layer" is to be excluded from 
SEBCs? 
7. What should be the para-meters for determining D 
the "creamy _layer" group? 
8. Whether the "creamy layer" principle is applicable 
to Scheduled Tribes and Scheduled Castes? 
9. Whether the principles laid down by the United E 
States Supreme Court for affirmative action such as 
"suspect legislation", "strict scrutiny" and "compelling 
State necessity" are applicable to principles of reservation 
or other affirmative· action contemplated under Article 
15(5) of the Constitution? 
F 
r 
10. Whether delegation of power to the Union 
Government to determine as to who shall be the backward 
class is constitutionally valid? 
11. Whether the Act is invalid as there is no time limit 
prescribed 

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