Case commentary on Indira Sawhney v
Union of India
Case Name: Indra
Sawhney vs Union of India and Others 1992
Citation: AIR
1993 SC 477
Bench: M
Kania, M Venkatachaliah, SR Pandian, T Ahmadi, K Singh, P Sawant, R Sahai, T.K.
Thommen, B.J Reddy
Court: Supreme
Court of India
Articles Referred:
Article 15(4): Nothing in this article
or clause (2) of Article 29 shall prevent the State from making any special
provision for the advancement of any socially and educationally backward
classes of citizens or the Scheduled Castes and the Scheduled Tribes.
Article 16 (1): There shall be equality
of opportunity for all citizens in matters relating to employment or
appointment to any office under the State.
Article 16(4): Nothing in this article
shall prevent the State from making any provision for the reservation of
appointments or posts in favour of any backward class of citizens which, in the
opinion of the State, is not adequately represented in the services under the
State.
Article 340(1): The President may by
order appoint a Commission consisting of such persons as he thinks fit 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 such difficulties and to improve their condition and as to
the grants that should be made for the purpose by the Union or any State and
the conditions subject to which such grants should be made, and the order
appointing such Commission shall define the procedure to be followed by the
Commission.
Facts of the case:
·
The Mandal Commission was established on
1st January 1979 by the Janata Government, led by Prime Minister Sri
Morarji Desai, following Article 340 of the Constitution, to investigate the
conditions of the socially and educationally backward classes. This was the
second Commission appointed – the first backward classes Commission known as –
Kaka Kallelkar’s Commission was set up on January 29, 1953, which submitted its
report in March 1955 and listed out 2399 castes as socially and educationally
backward, but eventually got rejected by the Central Government. The second
Commission was under the chairmanship of Sri. BP Mandal to investigate the
socially and educationally backward classes within the territory of India and
recommend steps to be taken by the government for its advancement including
necessary provisions which were required to be made for them for their
upliftment and to provide them equal status.
·
The Commission submitted its report in December
1980, identifying approximately 3743 castes as socially and educationally
backward classes. One of the Commission’s major recommendations was that, in
addition to the Scheduled Castes (SCs) and Scheduled Tribes (STs), 27 per cent
of government jobs be reserved for Other Backward Classes (OBCs), who account
for nearly 52 per cent of the population, bringing the total reservation for
SCs, STs, and OBCs to 50 per cent.
·
While the Commission submitted the report, due to
internal disruption between the party the Janata government collapsed and thus,
it couldn’t implement the recommendations made by the Commission. Following
that, the Indira Gandhi led Congress government, came to power at the centre
but even she failed to implement the recommendations by the Mandal Commission,
and later Congress didn’t come into power due to their defeat in the general
elections of 1989.
·
Finally, after the end of the reign of Gandhi’s,
the Janata Dal came back into power and decided to implement the long-overdue
recommendations of the Commission. Following that, Prime Minister V.P. Singh
issued an office memorandum on August 13, 1990, reserving 27 per cent of seats
for the socially and economically backward classes.
·
However, there were violent protests across the
country for three months, resulting in injuries and property damage. Indian
youth took to the streets to protest this decision.
·
The Bar Association of the Supreme Court filed a
writ petition in October 1990 challenging the validity of the government’s
office of memorandum.
·
Later, the Janata Party collapsed once more, and P.
V. Narasimha Rao took office, introducing 2 new improvements by giving priority
to the poorer sections of the Social and Educationally Backward classes from
that 27 per cent, as well as introducing 10 per cent reservations (that is
complete 37% (27% 10%)) to the Educationally Backward classes of the
Higher caste people.
·
The case was decided by a 5-judge bench. They
issued a stay order until the case was finally resolved on October 1, 1990. The
5 judge’s bench referred this matter to the 9 judge’s bench, who issued a
notice to the government to show cause the criteria upon which the government
proposed to reserve 27 per cent of the seats for them.
·
Eventually, the constitutionality of the memorandum
was called into question by the Supreme Court in a series of writ petitions. A
bench of nine judges deliberated on the constitutional validity of the
memorandum.
Issues of the case:
The following were the issues raised in
the court:
1. Whether
Article 16(4) is an exception for Article 16(1) and would be thorough of the
privilege to reservation of posts in administrations under the State?
2. What
would be the content of the phrase “Backward Class” in Article 16(4) of the
Constitution? Moreover, can caste itself could make a class or economical
criterion itself shall identify a class under Article 16(4). Whether or not
“Backward classes” would also include “weaker sections” as mentioned in Article
16(4) and Article 46?
3. What
if a financial or economic criterion could not define “backward class” under
Article 16(4) on its own? Furthermore, is reserving positions in any State’s
services solely on economic criteria covered by Article 16(1) of the Indian
Constitution?
4. Can
the extent of reservation of posts in the services under the State under
Article 16(4) or, if permitted under Article 16(1) and 16(4) together, exceed
50 % of the posts in a cadre or Service under the State or exceed 50% of
appointments in a cadre or service in any particular year? Can such extent of
reservation be determined without determining the shortcoming of representation
of each class in the different categories and grades of Services under the
State?
5. Does
Article 16(4) permit the classification of “Backward Classes” into Backward
Classes and Most Backward Classes, or does it permit classification among them
based on economic or other considerations?
6. Would
make “any provision” under Article 16(4) for reservation “by the State”
necessarily must be by law made by the legislatures of the State or by-law made
by Parliament? Or could such provisions be made by executive order?
7. Will
the extent of judicial review be limited or restricted regarding the
identification of Backward Classes and the percentage of reservations made for
such classes, to a perverse identification or an unreasonable percentage?
8. Would
reservation of appointments or posts “in favour of any Backward Class” be
restricted to the initial appointment to the post or would it extend to
promotions as well?
9. Whether
the matter should be sent back to the Five-Judge Bench?
Petitioner’s Argument:
The following arguments were made on
behalf of the petitioner by learned senior counsel, Mr N.A. Palkhiwala, Mr K.K.
Venugopal, Smt. Shyamala Pappu, and Mr P.P. Rao, who was assisted by a battery
of lawyers appearing for the petitioners:
1. The
petitioners argued that the Mandal Commission’s recommendations were indirectly
provoking the evil idea of the Caste System, which is seen as antithetical to
the idea of secularism. According to them, this would’ve been dangerous and
disastrous for the rapid development of Indian society on the path to the
welfare state. They also contended that the Commission’s identification of
SEBCs based on caste was strange and devoid of force, let alone exposing
hollowness. As a result, the Oms provided on the strength of the report, which
is entirely based on the caste criterion, violated Article 16(2).
2. Next,
the current report was based on the 1931 census and could never serve as a
correct basis for identifying the “backward class,” and thus a new Commission
was required to be appointed under Article 340(1) of the Constitution to
conduct a new wide survey throughout the length and breadth of the country and
submit a new list of OBCs (other backward classes) based on the current day
census. They said that the report of the Commission was based on an old census
and thus fresh conduct of census was required to identify the up-to-date list
of OBC’s.
3. Further,
the report was not solely based on caste criteria; three other factors were
also considered, namely social, educational, and economic backwardness, with a
greater emphasis – and rightly so – placed on social backwardness as “having a
direct consequence of caste status.”
4. They
also stated that if the Commission’s recommendations were implemented, the
sub-standard would replace the standard, and power will shift from meritocracy
to mediocrity. Meaning, if the recommendations were implemented, the power of
getting hired, would shift from that based on merit to one based on an average
model which would render to be not very efficient.
5. The
petitioners emphasised the ‘Equal protection’ clause, which forbids the state
from making unreasonable discrimination in providing preferences and facilities
to any segment of its population. They also emphasised the effect of such
recommendations on candidates with merit seeking public employment, claiming
that such recommendations would demoralise such candidates.
Arguments made on behalf of the
respondent – Govt. of India:
1. The
respondents argued that if the above argument was accepted, it will invalidate
the SEBCs’ just claim to benefit from Article 16(4), which is a fundamental
right. They also argued that the petitioner’s claim that the report that was
based on the 1931 census was false and baseless because a thorough examination
of the report revealed that the 1931 census had nothing to do with the
identification of OBCs.
2. It
was also argued that the reference to the 1931 census was incorrect. They
claimed that the Commission’s position was stated explicitly in Chapter XII of
its Report. However, the Registrar General of India introduced systemic
caste-based population bifurcation in 1881 and discontinued it in 1931. They
went on to say that the commission only used the 1931 census report to get an
idea of community-wide population figures from the census records of 1931, and
then grouped them into broad caste clusters and religious groups.
3. These
collectivise were then classified into five categories: (i) Scheduled Castes
and Scheduled Tribes; (ii) Non-Hindu Communities, Religious Groups, etc.; (iii)
Forward Hindu Castes and Communities; (iv) Backward Hindu Castes and
Communities; and (v) Backward Non-Hindu Communities.
4. Further,
the respondent’s claimed that the commission only after deeply considering the
social, educational, and economic backwardness of various propositions and
tests laid down by the court, had submitted its report. The recommendations
that were made in the 2nd report after a long gap between the first one
and the second one, were supportive of affirmative action programmes holding
the members of the historically disadvantaged groups for centuries to catch up
with the standards of competition that were set up by the now well-advanced
society.
5. The
respondents emphasised that the report intended to reserve 52 per cent of all
Central Government posts for OBCs based on their population ratio. However, due
to legal constraints, a reservation of 27 per cent was recommended.
Nonetheless, the number of OBCs was nearly twice as large.
6. The
respondents, on being questioned by the petitioner’s regarding the sub-standard
replacement of replacing the standard, and demoralization of the meritorious
candidates appearing for the public employment, replied by retorting those to
be false and based upon a false assumption. This was because the very object of
Article 16(4) was to ensure equality of opportunity in matters of public
employment and give satisfactory representation to those who had been placed in
a very discontent position for ages on account of sociological reasons.
7. The
respondents argued that there was no question of rewriting the Constitution
because the commission had acted only under the authority of the notification
issued by the President.
Court’s commentary on the issues:
Issue 1: Whether or not Article 16(4)
is an exception to Article 16(1)?
In this regard, the court determined
that Article 16(4) was not an exception to Article 16(1), but rather an
extension of Article 16(1). The Court reiterated its earlier position in Thomas
that Article 16(1) permits classification to achieve the equality of
opportunity guaranteed by Article 16(1) itself. Article 14 is a subset of
Article 16(1). Article 16 allows for reasonable classification in the same way
that Article 14 does. Classification may include the reservation of seats or the
filling of vacancies, depending on the situation. In other words, appointments
and/or posts can be reserved in favour of a class under Article 16(1).
Article 16(4) is not an exception to
Article 16(1), but rather an example of classification that is implied and
permitted by Article 16(1). Even without Article 16(4), the State could have
designated a “backward class of citizens” for special treatment in the form of
reserved posts/appointments in government services. Article 16(4) simply states
the case in specific terms, removing all doubt.
Article 16(4) lists all the provisions
that can be made in favour of the underprivileged classes in terms of
employment. Outside of Article 16(4), no reservations can be made in favour of
backward classes, though this may not be thorough of the concept of
reservation.
Clause 16(1) allows for reservations
for other classes based on reasonable classification, effectively overturning
the decision in Balaji v. State of Mysore. If reservations are made for
backward classes under both Clauses (4) and (1), “the vacancies available for
free competition as well as reserved categories would be correspondingly
whittled down, which is not a reasonable thing to do.”
Issue 2: Whether the classification is
based on economics or caste?
This case described the extent to which
Article 16(4) may be invoked, and it also served as a watershed moment for
reservation of the people of the Backward class. The court correctly pointed
out that, by definition, Article 16(4) could not be applied to economically
backward people unless a proper methodology was devised to determine the
insufficient representation of such economically backward people among the
higher castes.
The court also held that reservations
could not be made solely because of economic backwardness, with no regard for
historical discrimination, and that there was no justification for this in the
Indian Constitution. The Court also ruled that the total number of reserved
seats could not exceed 50%. Most of the judges ruled that neither the Indian
Constitution nor any existing law established a procedure for determining the
Backward Classes. Furthermore, the courts were unable to determine the same, so
it had been left to the authority in question.
Article 16(4) focuses on social
backwardness. The Court concluded from a review of the previous case-law in the
area that the judicial opinions emphasised the integral connection between
caste, occupation, poverty, and social backwardness.
In the Indian context, social,
educational, and economic backwardness were all intertwined. In terms of
identifying backward classes, caste may be used as a criterion because caste is
frequently used as a social class in India. However, caste could not be used as
the sole criterion for reservation. Reservation was being made under
Article16(4) in favour of a backward class rather than a caste. Once a caste
meets the criteria for backwardness, it is considered a backward class for
Article 16(4).
Reddy, J., has observed in this
connection:
“……. the classification is not based on
the caste but on the ground that that caste is found to be a backward class not
adequately represented in the services of the State.”
Issue 3: Is it true that the Backward
Classes in Article 16(4) are the same as the Socially and Educationally
Backward Classes in Article 15(4)?
The government has the authority to
declare which classes among the various designated OBCs are more backwards and
to assign reserved vacancies/posts among ‘backwards’ and more ‘backwards’.
The Court rejected the Narasimha Rao
Government’s reservation of 10% of posts in favour of “other economically
backward sections of the people who are not covered by any existing schemes of
reservations.” A category like this could not be related to Article 16 (4). It
may be related to Article 16 if at all. Nonetheless, the Court could not uphold
it.
The reservation of 10% of open
competition candidates based on income/property ownership meant that those who
are above the drawing line are prohibited from those 10% seats. It is not
allowed to exclude a citizen from regard for appointment to any state office
solely based on his income or property ownership. Any such restriction would be
contradictory to Article 16’s guarantee of equal opportunity.
Issue 3:
The Court ruled that the reservation
rule did not apply to promotions. Reservation is permitted under Article 16(4)
only at the point of entry into the State service, i.e., only at the early
stage of direct recruitment and not at the following promotional stage. As a
result, the Court overruled Rangachari v. The General Manager, which had held
the field for the previous thirty years. To diminish the negative impact of the
new ruling, the Court directed that it would be operative only prospectively
and that reservations provided in promotions would be extended for five years.
About the creamy layer:
The Court made an important
recommendation: the “creamy layer,” or the socially advanced members of a
backward class. These should be excluded from the benefit of reservation. Such
segregation would benefit the truly disadvantaged people and, as a result,
would better serve the purpose of Article 16 (4). According to Reddy, J., the
basis of exclusion should not be solely economic, unless, of course, “economic
advancement is so high that it necessarily means social advancement.”
There are, however, some positions
whose occupants can be labelled as “socially advanced” without further
investigation. Thus, when a member of a defined backward class joins the IAS,
IPS, or any other All India Service, his social holding improves; he is no
longer socially disadvantaged. His children are given every opportunity to
reach their full potential. They are not hampered in the race of life. His
salary is also above the poverty line. In such a case, it is only natural that
his children are denied the benefit of reservation. Because granting them the
benefit of the reservation may withdraw other disadvantaged members of that
backward class of that benefit.
The Court overruled the
Devadasan case, which ruled out the ‘carry forward’ rule, by stating that
reserved posts that remain unfilled in one year may be carried forward to the
following year, subject to the overall limit that total reservation in any one
year should not exceed 50%.
Final Judgement by the court:
The 9 Judge Bench of the Supreme Court
of India conveyed the landmark judgment on the issue of reservation to the
OBCs. The Hon’ble Supreme Court of India had altogether inspected each
conceivable inquiry. The 6:3 ratio decided the following:
·
Backward class civilians, as defined in Article
16(4), can be recognised based on caste rather than economic status.
·
Article 16(4) of the Indian Constitution is not an
exception to Article 16(1). It simply removes the classification of society.
Article 16(1) allows reservations to be made for any part other than those
mentioned in Article 16 (4).
·
The backward classes mentioned in Article 16(4)
were not as socially and educationally deprived as those mentioned in Article
15 (4).
·
Article 16(4) provides for an order of in deprived
classes into backward and even more in deprived classes.
·
Those who have a place in the creamy layer should
not be included in the deprived classes and should not be eligible for the
deprived classes’ benefits.
·
The preservation of society’s classes will not
exceed half.
·
Furthermore, no reservations will be made for
promotions.
·
An executive order can be used to initiate the
reservation process.
·
A legal body will be established to handle
complaints and concerns.
·
A majority concluded that there is no compelling
reason to express an opinion on the accuracy or sufficiency of the Mandal
Commission’s work.
Constitutional Amendments:
1. The
77th Amendment of the Constitution in 1995: This amendment added a new clause
under Article 16, i.e., Article 16(4 – A). Which gives the State the authority
to make a provision for reservation in the matter of promotion to any class or
classes of posts in the State’s service in favour of the SC & ST?
2. The
Constitution was amended for the 77th time in 2000, and a new clause (4 – B)
was added to Article 16. This amendment established that reservations for SC,
ST, and BC may exceed 50 per cent if there are backlog vacancies that could not
be filled in previous years due to a lack of qualified candidates.
3. The
77th Amendment to the Constitution was enacted in 2001, and it replaced the
words “in the matter of promotion to any classes” with “in the matter of
promotion with consequential seniority, to any classes.”
These types of acts on behalf of the
government indicate that the ruling party manipulated the decision made in this
case to gain large vote banks by limiting its effect.
Concluding Remarks:
This case paved the way to be one of
the most solid judgements in deciding reservations in the country, regarding
OBC’s. The recommendations laid down by the Mandal Commission were looked
erroneous in several different ways. In this case, the Supreme Court addressed
several complex but critical issues affecting the future welfare and stability
of Indian society. The Supreme Court issued a very thoughtful, creative, and
exhaustive opinion on various aspects of the reservation issue. It created a
platform for debate between the general category and the reserved category
individuals of India. People began questioning the reservation policies that
were put forth by the commission and decided to challenge them.
Reservation in government services is
essentially anti-meritocracy (not favoured by merit) because when a candidate
is appointed to a reserved post, a more meritorious candidate is unavoidably
excluded. However, reservation is now a fact of life and will continue to be
the norm for many years to come. Soon, society may find it difficult to abandon
the reservation rule. Although the backward classes of India are still a long way
from finding equal representation, making the reservation’s reach an extremely
high percentage seems to be disregarding the individuals who work on their
merit to achieve a position.
In the nearly three decades since this
landmark ruling, anti-reservation voices have gained power, but lawmakers
should remember the duties the framers entrusted to them through the
Constitution. The reservation phenomenon has certainly aided in the uplift of
the underprivileged, but there is still a long way to go before all historical
wrongs are righted.
References:
1. Case
analysis: Indra Sawhney v. Union of India (1993) Legal Bites – Law And Beyond, https://www.legalbites.in/case-analysis-indra-sawhney-india-1993/#_ftn4
(last visited Oct 8, 2021)
2.
Case summary: Indra Sawhney etc. vs. Union of India
and others 1992 LawLex.Org, https://lawlex.org/lex-bulletin/case-summary-indra-sawhney-etc-vs-union-of-india-and-others-1992/26399#_ftn7
(last visited Oct 8, 2021)
3. Indra
Sawhney & Others Vs. Union of India Indra Sawhney & others Vs.
Union of India, http://www.legalservicesindia.com/article/1457/Indra-Sawhney-&-Others-Vs.Union-of-India.html
(last visited Oct 8, 2021)
4. Indra
Sawhney vs Union of India (1992) – important SC judgements for UPSC BYJUS, https://byjus.com/free-ias-prep/indra-sawhney-case-1992-sc-judgements/
(last visited Oct 8, 2021)
5. Indra
Sawhney Etc. ETC vs Union of India and others, etchttps://indiankanoon.org/doc/1363234/
(last visited Oct 8, 2021)
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