Dr. Justice A. K. Rajan, L L D.
1) The concept and extent of the doctrine of ‘equality before law and equal protection of laws’ were known to the world long before the Universal declaration of Human Rights and the commencement of Constitution of India. This concept means and includes, not only the ‘legal equality’ and ‘equality in fact’, that is the ‘resultant outcome’. When the outcome of the law, made for the purpose of the ensuring equality, does not achieve its object, the law needs to be changed in such a manner to achieve the object.
Reservations for all sections were made from 1927:
2) Even during the British Rule, under the Government of India Act 1919, the Government of Madras, the largest Provincial Government of British India, made such laws for ensuring equality within the province. As early as 1927, the Government issued Orders for reservation of Government posts and seats in the educational institutions were distributed in certain proportions to all the communities, [Communal G.O.1927]. Since the outcome was found not satisfactory, to ensure the desired results that G.O was modified in 1947, so that the benefit reached the ‘backward class Hindus’.
History of Backward -class commissions:
3) The story (history) of appointment of the two commissions under Article 340 [Kaka Kalelkar Commission and Mandal Commission] were traced fully by Hon’ble Justice Jeevan Reddy of the Supreme Court, in the famous ‘Mandal commission’(Indira Sawhney vs U O I) case.
Excerpts from Mandal Judgment:
4) Justice Jeevan Reddy and three other Hon’ble judges in the Mandal commission case held as follows:
“‘Liberty, equality and fraternity’ was the battle cry of the French Revolution. It is also the motto of our Constitution, with the concept of ‘Justice-Social Economic and Political’ – the sum-total of modern political thought – super-added to it. Equality has been and is the single greatest craving of all human beings at all points of time. It has inspired many a great thinker and philosopher. All religious and political schools of thought swear by it, including the Hindu religious thought, if one looks to it ignoring the later crudities and distortions. Liberty of thought, expression, belief, faith and worship has equally been an abiding faith with all human beings, and at all times in this country in particular. Fraternity assuring the dignity of the individual has a special relevance in the Indian context, as this Judgment will illustrate in due course”.
“The significance attached by the founding fathers to the right to equality is evident not only from the fact that they employed both the expressions ‘equality before the law’ and ‘equal protection of the laws’ in Article 14 but proceeded further to state the same rule in positive and affirmative terms in Articles 15 to 18”. Through Article 15 they declared in positive terms that the state shall not discriminate against any citizen on the grounds only of religion, race, caste, sex, place of birth or any of them. With a view to eradicate certain prevalent undesirable practices it was declared in Clause (2) of Article 15 that no citizen shall on the grounds only of religion, race, caste, sex, place of birth or any of them be subject to any disability, liability, restriction or ………
5) About Article 16 the learned judges said as hereunder:
“In as much as public employment always gave a certain status and power – it has always been the repository of State power – besides the means of livelihood, special care was taken to declare equality of opportunity in the matter of public employment by Article 16. Clause (1) expressly declares that in the matter of public employment or appointment to any office under the state, citizens of this country shall have equal opportunity while Clause (2) declares that no citizen shall be discriminated in the said matter on the grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them. At the same time, care was taken to declare in Clause (4) that nothing in the said Article shall prevent the state from making any provision for reservation of appointments or posts in favour of any backward class of citizen which in the opinion of the state is not adequately represented in the services under the state.
Reservation not made for the Backward Classes:
The constitution while making reservation under Article 16, for the ‘Backward classes’, only Scheduled castes and the Scheduled Tribes, were defined in clauses (24) and (25) in Article 366. Though the term ‘Backward Classes’, included the scheduled castes and the scheduled tribes, the term ‘Backward Classes’ was not defined in Article 366. Further. though being aware of the fact that Madras Province was implementing reservation for all sections including the Backward Classes, right from 1927 both in employment and in admission to educational institutions, and that reservations were also made by many of the princely States, including Mysore, in the constitution no reservation was provided for the backward classes, because the term was not defined.
Commission to examine the conditions of ‘SEBC’:
On the other hand, it included Article 340, for appointment of a commission ‘to investigate the conditions of ‘socially and educationally backward classes’ [SEBC] and to make recommendations as to the steps that should be taken to remove such difficulties and to improve their condition’. But yet the term ‘socially and educationally backward classes’ was left undefined.
SEBC not defined even when Article 15(4) was inserted in the constitution:
Even when the 1st Amendment inserted Clause (4) in Article 15, to enable reservation for the SEBC, the term ‘socially and educationally backward classes’ was not defined. That appear to be the reason for not providing reservation for the SEBC by the Union of India.
Kaka Kalelkar Commission for ‘identifying’ OBC:
As per Article 340, the Government of India appointed the 1st Backward Class (BC) Commission under Kaka Kalelkar. The Hon’ble Supreme Court traces the developments in this direction, in the Mandal Judgment as follows
“As matter of fact, in some of the southern States, reservations in favour of O.B.Cs. were in vogue since quite a number of years prior to the Constitution. There was a demand for similar reservations at the center. In response to this demand and also in realisation of its obligation to provide for such reservations in favour of backward sections of the society, the Central Government appointed a Backward Class Commission under Article 340 of the Constitution on January 29, 1953. The Commission, popularly known as Kaka Kalelkar Commission, was required “to investigate the conditions of socially and educationally backward classes within the territory of India and the difficulties under which they labour and to make recommendations as to the steps that should be taken by the Union or any State to remove difficulties and to improve their conditions”. The Commission submitted its report on March 30, 1955. According to it, the relevant factors to consider while classifying backward classes would be their traditional occupation and profession, the percentage of literacy or the general educational advancement made by them; the estimated population of the community and the distribution of the various communities throughout the state or their concentration in certain areas. The commission was also of the opinion that the social position which a community occupies in the caste hierarchy would also have to be considered as well as its representation in Government service or in the Industrial sphere. According to the Commission, the causes of educational backwardness amongst the educationally and backward communities were (i) traditional apathy for education on account of social and environmental conditions or occupational handicaps: (ii) poverty and lack of educational institutions in rural areas and (iii) living in inaccessible areas. The Chairman of the commission, Kaka Kalelkar, however, had second thoughts after signing the report. In the enclosing letter addressed to the President he virtually pleaded for the rejection of the report on the ground that the reservations and other remedies recommended on the basis of caste would not be in the interest of society and country. He opined that the principle of caste should be eschewed altogether. Then alone, he said, would it be possible to help the extremely poor and deserving members of all the communities. At the same time, he added, preference ought to be given to those who come from traditionally neglected social classes”. [emphasis supplied] “The report made by the Commission was considered by the Central Government, which apparently was not satisfied with the approach adopted by the Commission in determining the criteria for identifying the backward classes under Article 15(4). The Memorandum of action appended to the Report of the Commission while placing it on the table of the Parliament [as required by Clause (3) of Article 340] on September 3, 1956, pointed out that the caste system is the greatest hindrance in the way of our progress to egalitarian society and that in such a situation recognition of certain specified castes as backward may serve to maintain and perpetuate the existing distinctions on the basis of caste. The Memorandum also found fault with certain tests adopted by the Commission for identifying the backward classes. It expressed the opinion that a more systematic and elaborate basis has to be evolved for identifying backward classes. Be that as it may, the Report was never discussed by the Parliament”.
“No meaningful action was taken after 1956 either for constituting another Commission or for evolving a better criteria. Ultimately, on August 14, 1961, the Central Government wrote to all the State Governments stating inter alia that “while the State Governments have the discretion to choose their own criteria for defining backwardness, in the view of the Government of India it would be better to apply economic tests than to go by caste.” The letter stated further, rather inexplicably, that “even if the Central Government were to specify under Article 338(3) certain groups of people as belonging to ‘other backward classes’, it will still be open to every State Government to draw up its own lists for the purposes of Articles 15 and 16. As, therefore, the State Governments may adhere to their own lists, any All-India list drawn up by the Central Government would have no practical utility.” Various State Governments thereupon appointed Commissions for identifying backward classes and issued orders identifying the socially and educationally backward classes and reserving certain percentage of posts in their favour. So far as the Central services are concerned, no reservations were ever made in favour of other backward classes though made in favour of Scheduled Castes and Scheduled Tribes”.
The Second Backward Classes commission–[ ‘Mandal Commission’]:
10.The Hon’ble Judges then referred to the appointment of Mandal Commission and its development as follows:“By an Order made by the President of India, in the year 1979, under Article 340 of the Constitution, a Backward Class Commission was appointed to investigate the conditions of socially and educationally backward classes within the territory of India, which Commission is popularly known as Mandal Commission. The terms of reference of the Commission were:
(i) to determine the criteria for defining the socially and educationally backward classes; (ii)……………….
Contents of the Report:
11) The judges referred to the contents of the Mandal Report thus:
“Chapter-VII deals with ‘Social justice. Constitution and the law’. It refers to the relevant provisions of the Constitution, to the decision in M.R. Balaji and Ors. v. State of Mysore [1963] Suppl. 1 S.C.R. 439 and various subsequent decisions of this Court and discusses the principles flowing from the said decisions. It notes that the subsequent decisions of this Court in C.A. Rajendran v. Union of India ; State of Andhra Pradesh and Ors. v. P. Sugar and State of Andhra Pradesh and Ors. v. U.S.V. Balram etc. show a marked shift from the original position taken in Balaji on several important points. In particular, it refers to the observations in Rajendran to effect that “caste is also a class of citizens and if the class as a whole is socially and educationally backward, reservation can be made in favour of such a caste on the ground that it was socially and educationally backward class of citizens within the meaning of Article 15(4)”. It refers to the statement in A. Peeriakaruppan etc. v. State of Tamil Nadu , to the effect that “a caste has always been recognised as a class”.
12) The Supreme Court refers to the case study made and the findings given by the commission as follows:
“Chapter-VIII deals with ‘North-South Comparison of other Backward Classes Welfare’. It is a case study of provisions in force in two Southern States namely Tamil Nadu and Karnataka and the two Northern States, Bihar and Uttar Pradesh. The conclusions drawn from the discussion are stated in para 8.45 in the following words:
“In view of the foregoing account, the reasons for much stronger reaction in the North than South to reservations, etc. for other Backward Classes may be summarised as below:-
(1) Tamil Nadu and Karnataka had a long history of Backward Classes movements and various measures for their welfare were taken in a phased manner. In Uttar Pradesh and Bihar such measures did not mark the culmination of a mass movement.
(2) In the South “the forward communities have been divided either by the classification schemes or politically or both…. In Bihar and U.P. the G.Os. have not divided the forward castes.
(3) In the South, clashes between Scheduled Castes and Backward peasant castes have been rather mild. In the North these cleavages have been much sharper, often resulting in acts of violence. This has further weakened the backward classes solidarity in the North.
(4) in the non-Sanskritic South, the basic Varna cleavage was between Brahmins and non-Brahmins and Brahmins constituted only about 3 per cent of the population. In the Sanskritic North, there was no sharp cleavage between the forward castes and together they constituted nearly 20 per cent of the population. In view of this the higher castes in U.P. and Bihar were in a stronger position to mobilise opposition to backward class movement.
(5) Owing to the longer history and better organisation of Other Backward castes in the South, they were able to acquire considerable political clout. Despite the lead given by the Yadavas and other peasant castes, a unified and strong OBC movement has not emerged in the North so far.
(6) The traditions of semi-feudalism in Uttar Pradesh and Bihar have enabled the forward castes to keep tight control over smaller backward castes and prevent them from joining the mainstream of backward classes movement. This is not so in the south.
(7) “The economies of Tamil Nadu and Karnataka have been expanding relatively faster. The private tertiary sector appears to be growing. It can shelter many forward caste youths. Also, they are prepared to migrate outside the State. The private tertiary sectors in Bihar and U.P. are stagnant. The forward caste youths in these two States have to depend heavily on Government jobs. Driven to desperation, they have reacted violently”.
Steps taken on the Report of the Mandal commission:
13) “The Report of the Mandal Commission was laid before each House of Parliament and discussed on two occasions – once in 1982 and again in the year 1983. The proceedings of the Lok Sabha placed before us contain the statement of Sri R. Venkataraman, the then Minister for Defence and Home Affairs. He expressed the view that “the debate has cut across party lines and a number of people on this side have supported the recommendations of the Mandal Commission. A large number of people on the other side have also supported it. If one goes through the entire debate one will be impressed with a fairly unanimous desire on the part of all sections of the House to find a satisfactory solution to this social evil of backwardness of Scheduled Castes/Scheduled Tribes etc. which is a festering sore in our body politic,” The Hon’ble Minister then proceeded to state,” the Members generally said that the recommendations should be accepted. Some Members said that it should be accepted in toto. Some Members have said that it should be accepted with certain reservations. Some Members said, there should be other criteria than only social and educational backwardness. But all these are ideas which Government will take into account. The problem that confronts Government today is to arrive at a satisfactory definition of backward classes and bring about an acceptance of the same by all the state concerned.” The Hon’ble Minister referred to certain difficulties the Government was facing in implementing the recommendations of the Commission on account of the large number of castes identified and on account of the variance in the State lists and the Mandal Commission lists and stated that consultation with various departments and State Governments was in progress in this behalf. He stated that a meeting of the Chief Ministers would be convened shortly to take decisions in the matter”. [emphasis supplied]
14) “The Report was again discussed in the year 1983. The then Hon’ble Minister for Home Sri P.C. Sethi, while replying to the debate stated: “While referring to the Commission whose report has been discussed today, I would like to remind the House that although this Commission had been appointed by our predecessor Government, we now desire to continue with this Commission and implement its recommendations.”
Recommendations were implemented only in 1990 by V. P. Singh:
15) Inspite of the fact that the Government of India took a decision to implement the recommendations of the Mandal Commission in 1983, for seven long years that was not done. Only when V. P Singh became the Prime Minister of India, in 1990, an Office Memorandum was issued to implement the recommendation w.r.t. central government employment. Another Office Memorandum was issued in 1991, after Narasimha Rao became the Prime Minister. Both the memoranda were challenged before the Supreme Court in a batch of writ petitions. The Supreme Court during the arguments, recorded the developments as follows:
“At the inception of arguments, counsel for both sides put their heads together and framed eight questions arising for our discussion. They read as follows
(1) ……………………………
(II) What would be the content of the phrase Backward Class in Article 16(4) of the Constitution and whether caste by itself could constitute a class and whether economic criterion by itself could identify a class for Article 16(4) and whether backward Classes in Article 16(4) would include the Article 46 as well”?[ emphasis supplied]
(III) ……………………to (VIII).
BC in 16(4) and SEBC in15(4) are not same:
In the judgment, after considering the arguments and elaborate discussions over all the points raised, the judges concluded in paragraph 121 (122) as follows:
“(e) It is not correct to say that the backward class of citizens contemplated in Article 16(4) is the same as the socially and educationally backward classes referred to in Article 15(4). It is much wider. The accent in Article 16(4) is on social backwardness. Of course, social, educational and economic backwardness are closely inter-twined in the Indian context. (Para 85)” [ emphasis supplied]
The concept of ‘creamy layer’ invented by the Supreme Court:
17) On the basis of arguments advanced by the parties before the Supreme court, the Court came out with its own opinion as follows:
“In our opinion, …………. The very concept of a class denotes a number of persons having certain common traits which distinguish them from the others. In a backward class under Clause (4) of Article 16, if the connecting link is the social backwardness, it should broadly be the same in a given class. If some of the members are far too advanced socially (which in the context, necessarily means economically and, may also mean educationally) the connecting thread between them and the remaining class snaps. They would be misfits in the class. After excluding them alone, would the class be a compact class. ………………. While we agree that Clause (4) aims at group backwardness, we feel that exclusion of such socially advanced members will make the ‘class’ a truly backward class and would more appropriately serve the purpose and object of Clause (4). (This discussion is confined to Other Backward Classes only and has no relevance in the case of Scheduled Tribes and Scheduled Castes)”.
“Keeping in mind all these considerations, we direct the Government of India to specify the basis of exclusion – whether on the basis of income, extent of holding or otherwise – of ‘creamy layer’. This shall be done as early as possible, but not exceeding four months. On such specification persons falling within the net of exclusionary rule shall cease to be the members of the Other Backward Classes (covered by the expression ‘backward class of citizens’) for the purpose of Article 16(4). The impugned Office Memorandums dated 13th August, 1990 and 25th September, 1991 shall be implemented subject only to such specification and exclusion of socially advanced persons from the backward classes contemplated by the said O.M. In other words, after the expiry of four months from today, the implementation of the said O.M. shall be subject to the exclusion of the ‘creamy layer’ in accordance with the criteria to be specified by the Government of India and not otherwise”. [ para 86]
Summary of conclusions: 18. The Hon’ble judges finally summarised their conclusions in paragraph 88A thus:
“(a) a caste can be an(?) quite often is a social class in India. If it is backward socially, it would be a backward class for the purposes of Article 16(4). Among non-Hindus, there are several occupational groups, sects and denominations, which for historical reasons are socially backward. They too represent backward social collectives for the purposes of Article 16(4).
(b) Neither the Constitution nor the law prescribe the procedure or method of identification of backward classes. Nor is it possible or advisable for the court to lay down any such procedure or method. It must be left to the authority appointed to identify. If can adopt such method/procedure as it thinks convenient and so long as its survey covers the entire populace, no objection can be taken to it. Identification of the backward classes can certainly be down (done) with reference to castes among, and along with, other groups, classes and sections of people. One can start the process with the castes, wherever they are found, apply the criteria (evolved for determining backwardness) and find out whether it satisfies the criteria. If it does – what emerges is a “backward class of citizens” within the meaning of and for the purposes of Article 16(4). Similar process can be adopted in the case of other occupational groups, communities and classes, so as to cover the entire populace. The central idea and overall objective should be to consider all available groups, sections and classes in society. Since caste represents an existing, identifiable social group/class encompassing an overwhelming majority of the country’s population, one can well begin with it and then go to other groups, sections and classes.
(c) It is not necessary for a class to be designated as a backward class that it is situated similarly to the Scheduled Castes/Scheduled Tribes,
(d) ‘Creamy layer’ can be, and must be, excluded.
(e) It is not correct to say that the backward class contemplated by Article 16(4) is limited to the socially and educationally backward classes referred to in Article 15(4) and Article 340. It is much wider. The test or requirement of social and educational backwardness cannot be applied to Scheduled Castes and Scheduled Tribes, who indubitably fall within the expression “backward class of citizens.” The accent in Article 16(4) appears to be on social backwardness. Of course, social, educational and economic backwardness are closely inter-twined in the Indian context. The classes contemplated by Article 16(4) may be wider than those contemplated by Article 15(4)”.(sub- paragraphs and emphasis supplied).
“Creamy layer exclusion is a bad policy”
Union of India enacted Central Educational Institutions (Reservation in Admissions) Act {Act 5 of 2007]. Section 2(g) of the act defined “backward classes” without exclusion of ‘creamy layer’. The Act made reservation in admissions, to OBC and SC/ST, in central educational institutions. That was challenged, by a PIL, in Ashoka Kumar Thakur Vs UOI-[AIR 2008 SC(Supp)1].In that case Justice Dalvir Bhandari, in his separate judgment, records that G.E Vahanvathi, the Solicitor General and K Parasaran, the Counsel representing the Govt. of India, stated that exclusion of creamy layer is a bad policy. Yet, K. G. Balakrishnan CJI has held in paragraph 155, as follows:
“155. As noticed earlier, “backward class” defined in section 2(g) does not exclude “creamy layer”. Therefore, we make it clear that backward class as defined in section 2(g)of Act5 of 2007 must be deemed to have been such backward class by applying the principle of exclusion of “creamy layer”. The other four judges also endorsed the same.
‘Creamy layer’ not applicable to SC&ST:
The concept of ‘creamy layer’ was limited only to OBCs. That was not extended to the SC & ST. That was because, the SC and ST had been clearly defined in clauses (24) and (25) of Article 366. The Supreme Court in the case of Ashoka Kumar Thakur Vs union of India [AIR 2008 SC (Supp) 1] has given the reason for not applying the creamy layer concept to SC/ST as follows:
“161. So far, this Court has not applied the “creamy layer” principle to the general principle of equality for the purpose of reservation. The “creamy layer” so far has been applied only to identify the backward class, as it required certain parameters to determine the backward classes.”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.
Ray, CJ., in an earlier decisions, stated that “Scheduled Castes and Scheduled Tribes are not a caste within the ordinary meaning of caste”. And they are so identified by virtue of the Notification issued by the President of India under Articles 341 and 342 of the Constitution. The President may, after consultation with the Governor, by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which for the purpose of the Constitution shall be deemed to be Scheduled Castes or Scheduled Tribes.
Once the Notification is issued, they are deemed to be the members of Scheduled Castes or Scheduled Tribes, whichever is applicable. …………………………….The President of India is the sole repository of the power to specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of the Constitution be deemed to be Scheduled Castes. The Constitution (Scheduled Castes) Order, 1950 made in terms of Article341(1) is exhaustive. The object of Articles 341 and 342 is to provide for grant of protection to the backward class of citizens who are specified in the Scheduled Castes Order and Scheduled Tribes Order having regard to the economic and education backwardness wherefrom they suffer. Any legislation which would bring them out of the purview thereof or tinker with the order issued by the President of India would be unconstitutional. (sub- paragraphs and emphasis supplied).
Moreover, right from the beginning, the Scheduled Castes and Scheduled Tribes were treated as a separate category and nobody ever disputed identification of such classes. So long as “creamy layer” is not applied as one of the principles of equality, it cannot be applied to Scheduled Castes and Scheduled Tribes. So far, it is applied only to identify the socially and educationally backward classes. We make it clear that for the purpose of reservation, the principles of “creamy layer” are not applicable for Scheduled Castes and Scheduled Tribes.”
Presidential Notification is final:
The above passage of the judgment of the Supreme Court makes it abundantly clear that when the definition of SC,ST and SEBC has been determined by the Presidential Notification a finality is reached on the contents and meaning of the ‘Scheduled Caste’ and the ‘Scheduled Tribes’ and Socially and Educationally Backward Classes. There is no room for any further enquiry by any court. That is because of the following reasons:
1.SEBC are so identified by virtue of the Notification issued by the President of India under Article 342A of the Constitution.
2.Once Notification is issued, they are deemed to be the members of the Socially and Educationally Backward Classes.
The President of India (or the Governor of a State as may be), is the sole repository of the power to specify the classes which shall for the purposes of the Constitution to be deemed to be ‘socially and educationally backward classes’.
Any order by any other authority, including the constitution courts which would bring them out of the purview thereof or tinker with orders issued by the President of India (or the Governor of a State, as the case may be)would be unconstitutional.
Absence of definition was the reason for the catena of cases:
Thus it is clear, that absence of definition of the term or phrase ‘socially and educationally backward class of citizens’ in Article 366, was the sole reason for the conception or invention of the concept of creamy layer by the Supreme Court. Undoubtedly, the only reason for the entire case law, built up over the past 70 years, before the various High Courts and the Supreme Court, was that the term ‘socially and educationally backward classes’ [SEBC] was neither made by a Presidential Notification nor it was specifically defined in the constitution. Only the absence of such a definition necessitated the various interpretation given by the courts over the period of 70 years. Had there been a specific definition of the term ‘Socially and Educationally Backward Classes of citizens’ and / or a Presidential Notification, there would not have been any reason to burden the courts, right from Balaji in 1960 to Ashoka Kumar Thakur in 2008. Also, there would not have arisen any necessity for filing innumerable cases and advancing ingenious arguments by the lawyers and the hair-splitting analysis and innovative conclusions by the judges of the constitution courts.
Creamy layer was invented and applied under Article 142:
22.The concept of ‘creamy layer’ became part of the Indian Constitutional Law, since the Supreme Court, while exercising the powers conferred on it by the Constitution under Article 142, invented and applied it to OBC. But, any such decree or order, made under Article 142, shall be enforceable only until provision in that behalf is so made by the President. The concept was enforceable until a definition of the term ‘Socially and educationally Backward Classes’ remained undefined either by law or by the constitution. In case the term SEBC is defined, when a provision is so made by the President on the subject matter, the decree or order made by the SC under Article 142 (the concept of creamy layer) would become unenforceable.
‘SEBC’ defined by the 105 Constitution amendment Act:
Presently, by the 105th Amendment to the Constitution, the term ‘socially and educationally backward classes’ has been defined under Clause (26C)in Article 366as follows:
‘(26C) “socially and educationally backward classes” mean any backward classes as are so deemed under article 342A for the purpose of Central Government or the State or Union Territory, as the case may be”.
In article 342A, the following Explanation has been added: “Explanation:- For the purposes of clauses (1) and(2),the expression “Central List” means the list of socially and educationally backward classes prepared and maintained by and for the Central Government”.
Further the following new clause(3) has been added to Article 342A.“(3).Notwithstanding anything contained in clauses (1) and (2), every State or Union territory may by law, prepare and maintain, for its own purposes, a list of socially and educationally backward classes, entries in which may be different from the Central List”.
24.Thatis, after the 105th Amendment Act:
‘Both the Central Government and the State Governments, may maintain separate lists of ‘socially and educationally backward classes, for their own purposes’.
Content and meaning of the term ‘socially and educationally backward classes’ is now specifically defined, as so deemed under article 342A.
Absence of definition -cause for invention of ‘creamy layer’ under Art. 142:
In the Mandal Commission batch of cases, known as Indira Sawhney Vs Union of India, the Hon’ble Supreme Court was under a constraint to find out the meaning and content of the term ‘socially and educationally backward classes of citizens’, since “Neither the constitution nor the law prescribe the procedure or method of identification of backward classes”. Only under such difficult circumstances the Hon’ble Supreme Court ventured to define the SEBC. Then the Supreme Court exercising the power under Article 142 identified the SEBC. Under those circumstances, the Hon’ble Supreme Court, ruled, that the ‘creamy layer’ should be excluded. As provided in Article 142 itself, such an order, made under Article 142, would be enforceable only “until provision in that behalf is so made in such manner as the President by order prescribe”. Therefore, once the President makes an order defining SEBC, or it has been provided under the constitution, the order passed under Article 142, defining SEBC, has ceased to exist.
After insertion of 366 (26C)– ‘creamy layer’ Abrogated:
Therefore, after the constitution 105thAmendment Act has come into force on 18-8-2021,wherein the definition for SEBC has been given in article 366(26C), the earlier definition made by an order, made by the Supreme Court under Article 142, that the creamy layer should be excluded to be considered as SEBC ceases to exist. That is, the definition of SEBC, given by the Supreme Court, by the order passed under Article 142, cannot anymore be applied to determine SEBC. At present, the definition of OBC is found in the constitution itself. That prescribes the method of identifying the SEBC. Therefore, once the President had issued Notification specifying the SEBC for the Central List,( and the Governor in case of the States)there remains nothing to be done by any authority, including the courts, to identify the SEBC. All authorities are bound to accept that definition and act accordingly. Therefore, after the coming into force of the Constitution 105th amendment, there is no scope, for any authority, to determine the meaning of the term SEBCin any other manner. That is, no person among the OBC can be excluded as part of ‘creamy layer’ among the OBC after 18-8-2021.
Different interpretation cannot be given:
27.Therefore, the ‘creamy layer’, in OBC, cannot be excluded anymore. All that were stated in paragraphs 161 to 163 ,by CJI K. G. Balakrishnan along with Justice Ravindran and Justice Arijith Pasayath, in Asoka Kumar Thakur Vs UOI, referred above, w.r.t. Scheduled castes and Scheduled Tribes , would squarely apply to the SEBC also, after the 105th amendment. That is because:
1.SEBC are so identified by virtue of the Notification issued by the President of India under Article 342A of the Constitution.
2.Once Notification is issued, they are deemed to be the members of the Socially and Educationally Backward Classes.
The President of India (or the Governor of a State as may be), is the sole repository of the power to specify the classes which shall for the purposes of the Constitution to be deemed to be ‘socially and educationally backward classes’.
Any order by any other authority, including the constitution courts which would bring them out of the purview thereof or tinker with orders issued by the President of India (or the Governor of a State, as the case may be) would be unconstitutional.
Inasmuch as the terms SC, ST and SEBC are all defined, respectively, in clauses (24), (25) and (26C)of Article 366,there cannot be a different interpretation, between SC /ST on the one hand and SEBC on the other hand.
Conclusion– ‘Creamy – layer’ abrogated:
Thus, Concept of creamy layer in OBC, invented by the Supreme Court in the judgment of Indra Sawhney case, has been abrogated by the 105th Amendment to the Constitution. The term ’socially and educationally backward classes’ has been defined in Article 366(26C) of the Constitution itself. Therefore, the doubt or ambiguity, relating to the meaning of term SEBC has been cleared by the Constitution, once for all. That has put an end to all real or invented or imaginary doubts and controversies, repeatedly raised by some vested interests, before the Constitution Courts, right from 1950 till 2021. That is, after 18-8-2021, the SEBC means all those who are comprised within the Lists, without any exclusion, maintained by either by the Union Government or by any State government, as the case maybe. Now the concept of creamy layer, conceived and applied by the Hon’ble Supreme Court has been abrogated by the Constitution 105th Amendment Act. The ‘thorny path’ the OBC traversed all these 70 long years has ended.