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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