Constitution (Ninety Third Amendment) Act, 2005/Central Educational Institutions (Reservation in Admission) Act, 2006 (Act 5 of 2007) :

Whether violative of the "basic structure" of the Constitution in so far as it relates to the state maintained institutions and aided educational institutions - Held not 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 "backward 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 can be made at the end of every 5 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 the 27% reservation.

Articles 15(4) and 15(5) - Held not mutually contradictory.

Articles 14 and 15(5) - Exclusion of minority educational 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 layer is to be excluded from SEBS - Parameters for determining the "creamy layer" group - Applicability of the O. M. dated 8. 9. 1993 - Applicability of "creamy layer principle" 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.

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.

Articles 162 and 368 - Constitution 93rd Amendment does 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", suspect legislation", "strict scrutiny", "compelling state necessity" - Meaning of.

The validity of the Constitution (Ninety Third) 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 following questions were formulated:

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 contradictory, hence Article 15(5) is to be held ultra vires?

3. Whether exclusion of minority educational institutions from Article 15(5) is violative of Article 14 of Constitution?

4. Whether the Constitutional Amendment followed 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 "caste" is constitutionally valid?

6. Whether "Creamy Layer" is to be excluded from SEBCs?

7. What should be the para-meters for determining 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 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?

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 for its operation and no periodical review is contemplated?

12. What shall be the educational standard to be prescribed to find out whether any class is educationally backward?

13. Whether the quantum of reservation provided for in the Act is valid and whether 27% of seats for SEBC was required to be reserved?