INDRA SAWHNEY & OTHERS Vs. UNION OF INDIA

 


INDRA SAWHNEY & OTHERS Vs. UNION OF INDIA

 

FACTS

1.     The commission for backward classes was formed on 29 January 1953 known as Kaka Kalelkar  Commission by a President order under article 340[2] of the constitution. The report of this commission was submitted on March 30, 1955. The Commission recommended factors such as traditional occupation and profession, percentage of literacy and general education advancement, estimated population and distribution throught the State. have to be taken into consideration for classifying a community or a group of people as a backward class.

2.     The second commission for backward classes was setup om January 1,1979 headed by the then PM Morarji Desai. The commission was formed under the chairmanship of Shri B.P. Mandal to determine the criteria for socially and educationally backward classes (SEBCs) and to examine the desirability of providing for reservation in public services and posts in favor of such backward classes. The report was submitted on 31December. 1980 and it relied almost exclusively on caste as the main criterion for reservation in government jobs and the report recommended for a reservation of 27% quota for other backward classes.

3.     In 1989 PM V.P Singh issues an Office Memorandum (OM) dated August 23,1990 and implemented Mandal Commission’s recommendation of 27% for OBC’s in public services and additional reservation of 10% vacancies for other economically backward sections of the people who were not covered under any existing scheme of reservation.

4.     The issuance of this office memorandum led to widespread protests, self-immolations and damage to public and private property especially by the youth. Writ petitions were filed as PIL in the supreme court questioning the said Memorandum.

5.     A three-judge bench of the Supreme Court comprising justice Ranganath Misra,C.J. and K.N. Singh and M.H. Kania, JJ.  reviewed its order of Septem 11, 1990.The situation not having improved, a petition on behalf of the SC Bar Association was moved and a five-judge bench of the SC stayed by its order dated October 1,1990, the operation of the OM dated August 13, 1990 till final adjudication. The process of identifying of caste for recognizing the SEBCs was to continue

6.     The constitutionality of this OM was also challenged and the nine-judge bench heard the matter arising out of the challenge to OM of August 13,1990 tagged a on the new writ petition. The bench declined to vacate the earlier stay for implementation the memorandum as the economic criteria was not fixed.

7.     Despite several adjournments the Central Government failed to evolve the economic criteria contemplated in the OM of Septem 25,1991. The enforcement of the OMs remained stayed.

 

 

ISSUES RAISED

1.     (a)Whether the ‘provision’ contemplated by the article 16(a) must necessarily be made by legislative wing of State?

            (b) If the answer to Clause (a) is in the negative, whether an executive order making such provision is enforceable without incorporating it into a rule made under the proviso to article 309?

2.     a) What does the expression 'backward class of citizens' in Article 16(4) means?
(b) Whether backward classes can be identified on the basis and with reference to caste alone?
(c) Whether a class, to be designated as a backward class, should be situated similarly to the Scheduled Castes/Scheduled Tribes.?
(d) Whether the 'means' test can be applied in the course of identification of backward classes? And if the answer is yes, whether providing such a test is obligatory?

3.       (a) Whether the backward classes can be identified only and exclusively with reference to economic criteria?
(b) Whether criteria like occupation-cum-income without reference to caste altogether, can be evolved for identifying the backward classes?

 

CONTENTION

PETITIONER’S COMPLAINT

The petitioner's attorneys, including the learned SENIORCOUNCEL, Mr. N.A. Palkhiwala, Mr. K.K. Venugopal, Smt. Shyamala Pappu, and Mr. P.P. Rao, presented the following arguments on his behalf:-

 

I. To start, the MONDAL COMMISSION's proposals are subtly encouraging the terrible CASTE SYSTEM, which is nothing more than seen as opposed to the idea of secularism. They claimed it would be risky and terrible for the swift advancement of Indian society as a whole as it marches toward the establishment of the welfare state. They said that the Commission's identification of SEBCs based on the caste system is absurd and devoid of substance, let alone exposing hollowness. As a result, the OMs issued on the basis of the Mandal Report, which is solely based on the caste criterion, violate Article 16. (2).

II. Second, the report is not solely based on caste criteria; three other factors are 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."

III. Third, the current Report based on the 1931 census can never serve as a correct basis for identifying the "backward class," and thus a new Commission under Article 340(1) of the Constitution is required to be appointed to conduct a new wide survey across the country and submit a new list of OBCs (other backward classes).

IV. Fourth, if the Commission's recommendations are implemented, the substandard will replace the standard, and power will shift from meritocracy to mediocrity.

V. Fifth, it will result in demoralization and discontent, cleaving the nation into two - forward and backward - and opening up new vistas for internecine conflict and fissiparous forces, as well as making backwardness a vested interest.

RESPONDENT’S COMPLAINT

I. First, if the above argument is accepted, it will negate the SEBCs' just claim to benefit from Article 16(4), which is a fundamental right.

II. Second, the petitioner's claim that this report was completely based on the census report made on the 1931 report is completely false and baseless because a perusal of the Report itself indicates that the 1931 census has no connection with the identification of OBCs. However, they are only identifiedon the basis of the country-wide socio-educational field survey and the 1961 census report, particularly for the identification of primitive tribes, aboriginal tribes, hill tribes, forest tribes, and indigenous tribes.

III,Third, the Commission cannot be said to have ignored this factual position and found fault with for relying on 1931 census. In fact, the Commission explicitly states this position in Chapter XII of its Report. However, the Registrar General of India introduced caste-based population enumeration in 1881 and discontinued it in 1931. As a result, figures for caste-based population after 1931 are unavailable.

IV. Fourth, the commission only went through the 1931 census report with the intention of gaining an idea of community-wise population figures from the 1931 census records and then grouping them into broad caste-clusters and religious groups. These collectivities were later subdivided into five major categories, namely Scheduled Castes and Scheduled Tribes; Non-Hindu Communities, Religious Groups, etc.; Forward Hindu Castes and Communities; Backward Hindu Castes and Communities; and Backward Non-Hindu Communities In this regard, the RESPONDENT cited the "BALARAM CASE," in which the Court considered the census report from 1931.

 

RATIONALE

In the Indra Sawhney case, the Court stated unequivocally that the Commission's advice/opinion must ordinarily be binding on the Government and that the recommendations can be overruled/ignored only for strong and compelling reasons that must be documented in writing. The National Commission for Backward Classes Act was enacted in 1993 on the basis of the jurisprudence developed from the Indra Sawhney case.

 

The Act states that the Commission shall examine requests for inclusion and tender advice to the central government, which shall ordinarily be binding upon it, to provide statutory legitimacy to the precedent set in Indra Sawhney. To emphasize the Commission's authority even further, the act contains no specific provision allowing the central government to override the recommendation.

 

DEFECTS OF LAW

I. Article 16 Clause (4) is not an exception to Clause (1). It merely carves out a segment of society, namely the backward class of citizens for whom service reservations may be maintained. In terms of reservations of posts in the services for the underprivileged class of citizens, the aforementioned clause is exhaustive. It is not an exhaustive list of all possible reservations for services. Clause (1) of that Article allows for the retention of reserved positions in the services for other segments of society.

II. The socially backward class of citizens referred to in Article 16(4) is the class of citizens whose educational and economic backwardness is due to their social backwardness. A caste may constitute a class by itself. To constitute a backward class, the caste in question must be socially backward, and its educational and economic backwardness must be due to its social backwardness. The economic criterion cannot identify a class as backward unless the class's economic backwardness is due to its social backwardness. The weaker sections referred to in Article 46 are a genus, and the backward class of citizens referred to in Article 16(4) are a species. Article 16(4) refers to backward classes, which are part of the society's weaker sections, and reservations in services are only provided for the backward classes who are not adequately represented in the services, not for all the society's weaker sections (4).

III. No reservations of posts in state services may be maintained solely on the basis of economic criteria, either under Article 16(4) or under Article 16(5). (1).

INFERENCE

The decision in this case undoubtedly established a workable and reasonable solution to the reservation issue. Nonetheless, politicians are still attempting to dilute the impact of the decision in this case in order to gain political advantage. Three constitutional amendments were enacted as a result.

1. The Constitution 77th Amendment in 1995: This amendment inserted a new clause under Article 16, i.e., Article 16. (4 - A). Which empowers the state to make a provision for reservation of promotion to any class or classes of posts in the state service in favor of the SC and ST?

2. The Constitution 77thAmendment in 2000: - by this amendment a new clause (4 – B) was inserted under Article 16. By this amendment it was fixed that reservation can exceed above 50% reservation for SC, ST & BC if backlog vacancies which could not be filled up in the previous years due to the non-availability of eligible candidates.

3. The Constitution 77th Amendment in 2001: - by this amendment the word “in the matter of promotion to any classes” were substituted by the words “in the matter of promotion with consequential seniority, to any classes”

These types of acts on behalf of the GOVT. clearly indicates that with intention to gain huge vote banks by curtailing its effect the ruling party manipulately by passed the decision made in this case.

 

CITATIONS

1.     AIR 1993 SC 477

2.       https://www.lawctopus.com/academike/equality-opportunity-public-employment/

3.     Indra Sawhney & Others Vs.Union of India (legalservicesindia.com)

4.     https://swarajyamag.com/politics/the-grounds-of-affirmarive-action

5.     https://ezproxy.svkm.ac.in:2090/Members/BrowseResult.aspx

6.       https://www.westlawasia.com



 

 

 

 

 

 

 

 

 

 

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