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banks. It was argued that the 27% of reservation under the Act of 2007 was based on criteria which did not exist. It was contended that  the creamy layer principle is applicable to OBCs and also to SCs and STs. It was argued that historic discrimination is not a valid criteria for determining the beneficiaries of affirmative action and the correct approach is to look at the continuing wrong and not past discrimination and that the quotas should not be a punishment for the non-reserved category resulting in reverse discrimination. The learned Senior Counsel contended that the Ninety-Third Amendment is against the basic structure of the Constitution. It was argued that the Doctrine of Equality is adversely affected by giving a wide and untrammeled enabling power to the Union Legislature that may affect the rights of the non-OBCs, SCs and STs. It was argued that the balance between what was referred to as the "Golden Triangle" in Minerva Mills Ltd. & Ors. Vs. Union of India & Ors.13 has been totally nullified by the Ninety-Third Amendment. It was argued that the legislative declarations of facts are not beyond judicial scrutiny and the court can tear the veil to decide the real nature of the statute and decide the constitutional validity. It was argued that the Act 5 of 2007 is subject to judicial review on the ground that its unreasonable and clear criteria have not been laid down to identify OBCs and there was no compelling necessity other than political patronage.

64. On behalf of the respondent/State of Bihar in Writ Petition (Civil) No. 269/2007, learned Senior Counsel Shri Rakesh Dwivedi submitted that the use of non-obstante clauses in Article 15(3), (4) and (5) vis-a-vis Article 15(1) shows that the prohibition against use of only caste as a ground for discrimination qua any citizen is there in so far as making of a special provision for advancement of prescribed categories is concerned. There is no repugnance between 15(4) and 15(5). It was contended that in Kesavananda Bharati's case (supra), it was held that "Part III of the Constitution could be amended subject to the basic structure doctrine". The view which was held in I.C. Golak Nath & Ors. Vs. State of Punjab & Anrs,37 making Article 368 more restrictive, had been overruled in Kesavananda Bharati's case (supra). The Fundamental Rights are not absolute and are designed to suffer reasonable restrictions and classifications.

We feel that such questions could be decided as the main questions that are involved in these petitions are specific regarding Act 5 of 2007, we leave open the question as to whether the Ninety-Third Amendment to the Constitution by which sub-clause (5) was inserted is violative of the basic structure doctrine or not so far as it relates to "private unaided" educational institutions to be decided in other  appropriate cases. We deal only with the question of whether the Ninety-Third Constitutional Amendment is constitutionally valid so far as it relates to the state maintained institutions and aided educational institutions.