Indra Sawhney v. Union of India: Case Commentary

This Article is written by Maria Sharwari from Surendranath Law College

Introduction

Indra Sawhney & Others v. Union of India also known as the Mandal verdict was an Indian landmark public interest litigation case delivered by a 9-judge constitution bench. The case got written in stone by the Indian judiciary and is both blessed and cursed, perhaps to eternally witness the dynamic power play and friction of political opportunism, pro-reservation and anti-reservation sentiments in India. This landmark case was the miracle child of Indian judicial pragmatism, conceived at the backdrop of nationwide chaos and violent protests against the implementation of the infamous Mandal Commission Report’s 27 percent quota for the socially and educationally backward classes (SEBCs) in all the central government jobs and public institutions.

Background

The questions regarding reservation in our Constitution has arisen before the Supreme Court multiple times.

In State of Madras v. Smt. Champakan Dorairajan, a Government Order (G.O.) issued by the State of Madras which apportioned seats in engineering and medical colleges on the basis of one’s caste was challenged before the Supreme Court. A Special Bench of seven judges heard the matter. S.R. Das J. held that the ineligibility created by the ‘communal G.O.’ whereby a Brahmin, who was otherwise eligible, was rendered ineligible by virtue of his caste, was repugnant to Article 15 and 16.

Pursuant to Supreme Court’s order in the case, the Parliament intervened and amended Article 15 by inserting Clause (4) by way of the Constitution (First Amendment) Act, 1951 which authorized the State to make special provisions for the advancement of ‘socially and educationally backward classes of citizens’.

In M.R. Balaji and Ors. v. State of Mysore, the State of Mysore issued an order under Article 15(4) of the Constitution declaring all the communities except the Brahmin community as socially and educationally backward and reserving a total of 75 percent seats in Educational Institutions in favor of Socially and Educationally Backward Classes (SEBCs) and Scheduled Castes/ Scheduled Tribes.

The validity of the impugned order was questioned before the Supreme Court. The five judge Bench while striking down the said order, enunciated that Article 15(4) is a proviso or an exception to Article 15(1) and to Article 29(2). For the purpose of Article 15(4), backwardness must be both social and educational. The reservation made under Article 15(4) should be reasonable. It should not be such as to defeat or nullify the main rule of equality contained in Clause (1). The further categorization of backward classes into backward and more backward is not warranted by Article 15(4).

The scope of Article 16 (4) was considered by the Supreme Court in T. Devadasan v. Union of India. The Supreme Court struck down the “carry forward rule”, made by the Government to regulate the appointment of persons of backward classes in government services as unconstitutional on the ground that the power vested in the government cannot be so exercised so as to deny reasonable equality of opportunity in matters of public employment for the members of classes other than backward classes. Clause (4) of Art. 16 is by way of a proviso or an exception to clause (1).

A seven judge bench of Supreme Court in State of Kerala v. N.M. Thomas adopted the lone dissenting opinion of Justice Koka Subba Rao in Devdasan’s case. A governmental order granted provisional promotions to members of Scheduled Castes and Scheduled Tribes who did not have the requisite qualifications to be eligible for such promotion, along with a two years’ grace period for them to gain such qualifications was challenged.

The Court observed that Article 16(1) as a facet of right to equality under Article 14 permits reasonable classification. For making such classification, two criteria were fixed; first, basis of classification must be backwardness and second, the classification must have nexus to the adequacy of representation.

In Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India the circulars issued by the Railway Board favoring Scheduled Castes and Scheduled Tribes promotions etc. in railway services was held valid. Carry forward rule to the extent of 64.4 percent was not considered excessive by Justice V.R. Krishnaiyer, and Justice O Chinnapa Reddy found that the limitation of 50 percent laid in Devadasan’s case was only for guidance and CFR could be extended for 2 to 3 years.

In K.C. Vasanth Kumar v. State of Karnataka, the Supreme Court suggested that the reservations in favor of Scheduled Castes and Scheduled Tribes must be based on the “means test”. For backward classes, two tests should be conjunctively applied for identifying them for the purpose of reservation in employment and education.

One, that they should be comparable to the Scheduled Castes and Scheduled Tribes in the matter of their backwardness; and two, that they should satisfy the means test such as a State Government may lay down in the context of prevailing economic conditions.

Facts of the Case

In this case, the petitioner Indra Sawhney filed writ petition against union of India and others regard reservation in India. The backward class formed 1st commission, Kaka kalel kar commission established in 1953, under 340 constitution of India. The purpose of the commission to investigate the condition of backward class. The report submitted by kaka kalel kar on 30th March 1955; is rejected as it is not satisfied by the commission approach to identify backward class under article 15.

Again 2nd commission appointed, Mandal commission in January 1st, 1979 by janata Dal under ruling pf prime minister Moraji Deasi ruling. In December 1980, the final report submitted by mandal commission to increase the reservation of government quota of 27% from 22.5% reservation of socially and educationally backward class people (schedule caste and scheduled tribes). The mandal commission report was under discussion for long time. Later Narasimha Rao was ruled Congress government in 1991.

He came up with some modifications and introduced new office memorandum which consists 27% reservation for SEBC in civil post and services under government of India and further added 10% reservation for economically challenged section, which are not covered in any reservation schems and issued criteria for economically challenged section seperately. By this action, many people started revolting against it and lot of people lost their life and property. At last supreme court of India came down to balance judicial pragmatism and political opportunism, by consists all petitions regarding the report of Mandal commission in 11 September 1990.

Issues Raised

  • Whether the ‘provision’ contemplated by Article 16(4) must necessarily be made by the legislative wing of the State?
    (b) If the answer to Clause (a) is in the negative, whether an executive order making such a provision is enforceable without incorporating it into a rule made under the proviso to Article 309?
  • Whether Clause (4) of Article 16 is an exception to Clause (1) of Article 16?
    (b) Whether Clause (4) of Article 16 is exhaustive of the special provisions that can be made in favour of ‘backward class of citizens’? Whether it is exhaustive of the special provisions that can be made in favour of all sections, classes or groups?
    (c) Whether reservations can be made under Clause (1) of Article 16 or whether it permits only extending of preferences/concessions?
  • 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?
  • 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?
  • Whether the backward classes can be further categorized into backward and more backward categories?
  • To what extent can the reservation be made?
  • (a)Whether the 50% rule enunciated in Balaji a binding rule or only a rule of caution or rule of prudence?
  • (b)Whether the 50% rule, if any, is confined to reservations made under Clause (4) of Article 16 or whether it takes in all types of reservations that can be provided under Article 16?
  • Further while applying 50% rule, if any, whether a year should be taken as a unit or whether the total strength of the cadre should be looked to?
  • (d)Whether Devadasan was correctly decided?
  • Whether Article 16 permits reservations being provided in the matter of promotions?
  • Whether reservations are anti- meritarian? To what extent are Articles 335, 38(2) and 46 of the Constitution relevant in the matter of construing Article 16?
  • Whether the extent of judicial review is restricted with regard to the identification of Backward Classes and the percentage of reservations made for such classes to a demonstrably perverse identification or a demonstrably unreasonable percentage?
  • Whether the distinction made in the Memorandum between ‘poorer sections’ of the backward classes and others permissible under Article 16?
  • Whether the reservation of 10% of the posts in favor of ‘other economically backward sections of the people who are not covered by any of the existing schemes of the reservations’ made by the Office Memorandum dated 25.9.1991 permissible under Article 16?

Argument Advanced

Argument Made On Behalf Of The Petitioner :-

On behalf of the Petitioner following arguments were made by learned Senior Councel, Mr. N.A. Palkhiwala, Mr. K.K. Venugopal, Smt. Shyamala Pappu and Mr. P.P. Rao assisted by a battery of layers appearing for the petitioners:-

  • Firstly, the recommendations made by the MONDAL COMMISSION are indirectly provoking the evil idea of CASTE SYSTEM which is nothing but considered as against the idea of the secularism. According to themwould be dangerous and disastrous for the rapid development of the Indian society as a whole marching towards the goal of the welfare state. They also contended that the identification of SEBCS by the Commission on the basis of caste system is bizarre and barren of force, much less exposing hollowness. Therefore, the OMs issued on the strength of the Mandal Report which is solely based on the caste criterion arc violative of Article 16(2).
  • Secondly, the report was not solely based upon the caste criteria but three other factors are also considered i.e. social, educational and economic backwardness but giving more importance-rightly too-to the social backwardness as “having a direct consequence of caste status.
  • Thirdly, the present Report based on 1931 census can never serve a correct basis for identifying the ‘backward class. that therefore, a fresh Commission under Article 340(1) of the Constitution is required to be appointed to make a fresh wide survey throughout the length and breadth of the country and submit a new list of OBCS (other backward classes) on the basis of the present day Census.
  • Fourthly, if the recommendations of the Commission are implemented, it would result in the sub-standard replacing the standard and the reins of power passing from meritocracy to mediocrity.
  • Fifthly, it will be in demoralization and discontent and that it would revitalize caste system, and cleave the nation Into two-forward and backward and open up new vistas for internecine conflict and fissiparous forces, and make backwardness a vested interest.
  • Sixthly, the argument that the implementation of the recommendations of the Commission would result in demoralisation of the meritorious candidates appearing for the public employment
  • Seventhly, the ‘Equal protection’ clause prohibits the State from making unreasonable discrimination in providing preferences and facilities for any section of its people.
  • Eighthly, the arguments criticising the Report is that the said Report virtually rewrites the Constitution and in effect buries 50 fathoms deep the ideal of equality and that if the recommendations are given effect to and implemented. the efficiency of administration will come to a grinding halt.

Arguments Made On Behalf Of The Respondent :-

  • Firstly, if the above argument is accepted it will result in negation of the just claim of the SEBCS to avail the benefit of Articles 16(4) which is a fundamental right.
  • Secondly, that the attack which was trough from the petitioner side that this report was totally based upon the census report made on 1931 report is completely false & baseless because A perusal of the Report itself indicates that the 1931 census does not have even a remote connection with the identification of OBCS. But on the other hand, they are identified only on the basis of the country-wide socio-educational field survey and the census report of 1961 particularly for the identification of primitive tribes, aboriginal tribes, hill tribes, forest tribes and indigenous tribes.
  • Thirdly, the Commission cannot be said to have ignored this factual position and found fault with for relying on 1931 census. In fact, this position is made clear by the Commission itself in Chapter XII of its Report. However Systematic caste-wise enumeration of population was introduced by the Registrar General of India in 1881 and discontinued in 1931, In view of this, figures of caste-wise population beyond 1931 are not available.
  • Fourthly, the commission only went through the census report made on 1931 with intention to gain an idea of community-wise population figures from the census records of 1931 and, then grouped them into broad caste-clusters and religious groups. These collectivises were subsequently aggregated under five major heads i.e. (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. In this connection the RESPONDENT cited the example of “BALARAM CASE” where the Court considered the census report made on 1931.
  • Fifthly, the Commission only after deeply considering the social, educational and economic backwardness of various classes of citizens of our country in the light of the various propositions and tests laid down by this Court had submitted its Report enumerating various classes of persons who are to be treated as OBCs.The recommendations made in the present Report after a long lull since the submission of the Report by the First Backward Classes Commission, are supportive of affirmative action programmes holding the members of the historically disadvantaged groups for centuries to catch up with the standards of competition set up by a well advanced society.
  • As a matter of fact, the Report wanted to reserve 52% of all the posts in the Central Government for OBCS commensurate with their ratio in the population. However, in deference to legal limitation it has recommended a reservation of 27% only even though the population of OBCS is almost twice this figure.
  • Pointing out one attack made on behalf of the PETITIONER that if the commission’s report is implemented then it result in the sub-standard replacing the standard& also demoralisation of the meritorious candidates appearing for the public employment is totally false & base ppon false assumption because the very object of Article 16(4) is to ensure equality of opportunity in matters of public employment and give adequate representation to those who have been placed in a very discontent position from time immemorial on account of sociological reasons. Here the Commission through its report recommended the GOVT. to fulfil this target only & nothing else.
  • Though equal protection’ clause prohibits the State from making unreasonable discrimination in providing preferences and facilities for any section of its people, nonetheless it requires the State to afford substantially equal opportunities to those, placed unequally.
  • There is no question of rewriting the Constitution, because the Commission has acted only under the authority of the notification issued by the President.

The Judgment

The landmark Indra Sawhney judgement is a lengthy piece of judgement and for the ease of the readers, the crux of the judgement is summarised as follows:

  • Under Article 16(4), backward classes of citizens can be identified on the basis of caste and not just on an economic basis. Economic criteria cannot be the sole identifying factor for backwardness under article 16(4). Also, in order to prevent the abuse of power, the identifying examination to determine backwardness should be an objective one and not a subjective one.
  • Article 16(4) is an independent clause and not an exception to Article 16(1).
  • Article 16(4) is exhaustive in nature regarding reservations for backward classes only.
  • Article 16(1) permits reasonable classification and reservation for other classes.
  • The socially and educationally backward classes under Article 15(4) are different from the backward classes under Article 16(4).
  • Article 16(4) permits the sub-classification of backward classes into backward and more backward classes.
  • Creamy layers (socially advanced people) can be and must be excluded from backward classes for the purposes of reservation under Article 16(4).
  • Reservations shall not exceed 50 percent and even for the purpose of application of the carry forward rule (by which unfulfilled vacancies are filled in the upcoming year), the 50 percent ceiling should not be breached.
  • There shall be no reservation in promotions.

Case Significance

In the famous Mandal cases (1992), the scope and extent of Article 16(4), which provides for reservation of jobs in favour of backward classes, has been examined thoroughly by the Supreme Court. Though the Court has rejected the additional reservation of 10% for poorer sections of higher castes, it upheld the constitutional validity of 27% reservation for the OBCs with certain conditions, that are:

(a) The advanced sections among the OBCs (the creamy layer) should be excluded from the list of beneficiaries of reservation.

(b) No reservation in promotions; reservation should be confined to initial appointments only. Any existing reservation in promotions can continue for five years only (i.e., upto 1997).

(c) The total reserved quota should not exceed 50% except in some extraordinary situations. This rule should be applied every year.

(d) The ‘carry forward rule’ in case of unfilled (backlog) vacancies is valid. But it should not violate 50% rule.

(e) A permanent statutory body should be established to examine complaints of over-inclusion and under-inclusion in the list of OBCs.

With regard to the above rulings of the Supreme Court, the government has taken the following actions:

(a) Ram Nandan Committee was appointed to identify the creamy layer among the OBCs. It sub- mitted its report in 1993, which was accepted.

(b) National Commission for Backward Classes was established in 1993 by an act of Parliament. It considers inclusions in and exclusions from the lists of castes notified as backward for the purpose of job reservation.

(c) In order to nullify the ruling with regard to reservation in promotions, the 77th Amendment Act was enacted in 1995. It added a new provision in Article 16 that empowers the State to provide for reservation in promotions of any services under the State in favour of the SCs and STs that are not adequately represented in the state services. Again, the 85th Amendment Act of 2001 provides for ‘consequential seniority’ in the case of promotion by virtue of rule of reservation for the government servants belonging to the SCs and STs with retrospective effect from June 1995.

(d) The ruling with regard to backlog vacancies was nullified by the 81st Amendment Act of 2000. It added another new provision in Article 16 that empowers the State to consider the unfilled reserved vacancies of a year as a separate class of vaccancies to be filled up in any succeeding year or years. Such class of vacancies are not to be combined with the vacancies of the year in which they are being filled up to determine the ceiling of 50% reservation on total number of vacancies of that year. In brief, it ends the 50% ceiling on reservation in backlog vacancies.

(e) The 76th Amendment Act of 1994 has placed the Tamil Nadu Reservations Act of 1994 in the Ninth Schedule to protect it from judicial review as it provided for 69 per cent of reservation, far exceeding the 50 per cent ceiling.

Conclusion

By this landmark judgement, court tried best to give solution to many questions arised to the people regarding reservation by reasonable means and it brings and creates a balance between society and rights of backward classes. This reservation helped in uplifting of backward classes and even though many anti reservation voices were started raising their issues regarding it.

References

[1] Indra Sawhney v. Union of India, AIR 1993 SC 477

[2] M Laxmikanth, Indian Polity;(Mc Graw Hill Education, Chennai, Fifth Ed, 2017)

[3] Wikipedia, “Indra Sawhney & Others v. Union of India”; available at: https://en.wikipedia.org/wiki/Indra (Last visited on December 28, 2023)

[4] Rubini Baskaran, “Indra Sawhney v Union of India, AIR 1993 SC 477”; available at: legalvidhiya.com/indra-sawhney (last visited on December, 2023)

[5] IndianKanoon, “Indra Sawhney Etc. Etc vs Union Of India And Others, Etc. … on 16 November, 1992”; available at: https://indiankanoon.org/doc/1363234 (last visited on December 28, 2023)

[6] Sreyansh Chopra, “Case Analysis on Indra Sawhney v. Union of India and Ors”; available at: www.legalserviceindia.com/article-3384 (last visited on December 28, 2023)

[7] Satyaki Deb, “Indra Sawhney v. Union of India and Ors. (1992) : case analysis”; available at: blog.ipleaders.in/indra-sawhney (last visited on December 28, 2023)

[8] Shashank Tyagi, “Case Presentation on Indra Sawhney & Others Vs Union of India”; available at: www.legalservicesindia.com/1457 (last visited on December 28, 2023)

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