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Indra Sawhney V Union of India
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Brief

AIR 1993 SC 477 : (1992) Supp 2 SCR 954
Court – Supreme Court of India
Date of Decision – 16 November 1992
Judges – MH Kania, CJ MN Venkatachaliah, S Ratnavel Pandian, Dr.TK Thommen, AM Ahmadi, Kuldip Singh, PB Sawant, RM Sahai and BP Jeevan Reddy, JJ

Introduction

The reservation system should be a system out of respect for all individuals and a reward should be granted to the deserving one’s. This case is popularly known as the Mandal Commission case. The idea of reservation in India is of reserving seats for the scheduled castes, scheduled tribes and the other backward classes in government jobs, educational facilities and other fields as they do not have the footing to get themselves into these fields on their own. The government’s sole motive was to uplift these weaker sections and give them a stepping stone towards better opportunities and to reduce the massive gap between them and the general category, in order for them to lead a decent life.

In the past, the other backward classes, scheduled castes and scheduled tribes were treated in a barbaric manner and were labelled as untouchables because of this treatment they were unable to grow as they were not given any opportunities, hence reservation was needed for their upliftment in the society. Article 16 of the Constitution of India states, Equality of opportunity in matters of public employment, there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the state.

Reservation is a highly sensitive topic for the people of India, as it has and is still witnessing differentiation in the educational and employment sectors which are not founded on the open competition and merit but on rank, class, economic status and social status.

Facts

The idea of providing reservation to the backward classes (BCs) was introduced years before India’s independence in the areas comprising the presidencies and princely states south of the Vindhyas. In sight of Article 16(4) of the Constitution and in reaction to the demands made for reservation and other needed benefits for the backward classes in the other parts of India and in the centre the government of India appointed a Backward Classes Commission under Article 340 of the Constitution on 29th January 1953, which was popularly known as the Kaka Kalelkar commission.

The commissions mission was to survey the conditions of the socially and educationally backward classes and analyse the difficulties under which they laboured, after surveying and analysing recommendations were to be made as to the necessary steps which needed to be taken by the union or any state to eliminate the difficulties in order to uplift their conditions. The Kaka kalelkar commission submitted its report on the 30th of March 1955. It was contemplated upon by the government for over half decade but then it was rejected in 1961.

The government of India appointed the second backward classes commission which was popularly known as the Mandal Commission on the 1st January 1979 to survey the conditions of the socially and educationally backward classes and to make recommendations for the criteria to define these classes of citizens and the necessary steps which need to be taken for their advancement and to examine the desirability or otherwise making provisions for the reservation of appointments or posts in the favour of such backward classes who are not adequately represented in the public services and posts in connection to the affairs of the union or any state. The Mandal Commission submitted its report on 31st December 1980.

In 1989 the Congress Party was defeated in the parliamentary elections and the Janta Dal came to power and decided to implement the Mandal Commission report as it was promised, the government of India which was lead by Prime Minister V.P Singh issued the Office Memoranda (O.M) on 13 August 1990 which reserved 27% of seats for the backward classes in the government services on the basis of the recommendations of the Mandal Commission. A writ petition was filed on behalf of the Supreme Court Bar Association challenging the validity of the office memoranda and for staying its operation. A five judge bench stayed the operation of the office memoranda till the final disposal of the case.

Unfortunately, the Janta Government again collapsed in 1991 and the Congress Party came to power at the centre in 1991. The Congress Government issued another office memoranda on 25th September 1991 but made two new changes in the office memoranda of the Janta Dal. The Congress Government inserted two changes I) Introduced the economic criterion in granting reservation by giving preference to the poorer sections of the socially and educationally backward classes in the 27% quota. II) another 10% reservation for other socially and educationally backward classes (SEBCs) and economically backward sections of higher castes. The economic criterion mentioned was to be specified separately, the five judges bench referred the matter to a special Constitution Bench of nine judges who issued a notice to the government to show cause the criteria upon which the government has proposed to implement 27% reservation and adjudicate on the complex constitutional questions involving the interpretation of Article 16.

Issues

  • the scope and extent of Article 16(4) of the Constitution.
  • The validity of the Mandal Commission.
  • Whether the Article 16(4) which has been inserted is an independent section.
  • Whether the backward classes in Article 16(4) and SEBCs in Article 15(4) similar or not.
  • Who all will be eligible to make laws regarding Article 16(4).
  • Whether the classification of backward classes will be on caste system or economic basis.
  • Whether the classification involves the basis of backward classes or more backward classes and is this valid.

Judgement

The judgement of the Indra Sawhney case was given on 16 November 1992, by a nine judge bench of the Supreme Court of India with the majority of 6:3. The provisions for the reservation of appointments or posts in favour of the backward classes of citizens which was contemplated upon by Article 16(4) cannot only be made by the parliament and legislature but also by the executive in respect of the central and state services and also by the local bodies and other authorities in regard with the Article 12 of the Indian Constitution. There is reasonable safeguard against the misuse of Article 16(4) in the provision itself, the misuse by the political executives of the power stated under Article 16(4).

Any determination of backwardness is neither a subjective exercise nor a matter of subjective satisfaction but the exercise is of an objective one. There are certain objectives such as social and other criteria which have to be satisfied before any group or class of citizen which could be treated as backward. If the executives include for security reasons any groups or classes not satisfying the relevant criteria prescribed then it would amount to be a clear case of fraud on the powers authorised. The reservations for the backward classes can only be made under Article 16 clause (4) since they have been taken out from the classes for which reservation can be made under Article 16(1).

Therefore, Article 16(4) is exhaustive of all the reservations that can be made for the backward classes as such but is not exhaustive of reservations that can be made for classes other than the backward classes under Article 16(1). Hence, no reservation can be made under Article 16(4) for classes other than the backward classes is implicit in that article and hence they have to look for their reservations in Article 16(1).

Principle

The Supreme Court while delivering the majority judgement has laid down the following principles. The court has held that the backward class of citizens in Article 16(4) can be identified on the basis of their caste and not only on the economic basis. A caste is a social class in India and if it is backward socially then it would be considered as a backward class. Nevertheless caste alone cannot be taken into consideration for the purpose of identification of backward classes. Occupation, groups, classes and sections of people or classes among non-Hindus, Muslim, Christian’s etc and if they are socially backward they are entitled to reservation.

The question as to is Article 16(4) an exception to Article 16(1), Article 16(4) is not an exception to Article 16(1) but it is an independent clause. The court has said that reservation can be made under Article 16(1) on the basis of reasonable classification, the court further mentioned that Article 16(4) is exhaustive on the subject matter of reservation in favour of backward classes and reservation for the other classes can be made under Article 16(1). The backward classes mentioned in Article 16(4) are not similar to those socially and educationally backward in Article 15(4).

There will be no reservation in promotions and reservation shall not exceed 50%. Creamy layer “socially advanced persons” can be and must be excluded from the backward classes. Article 16(4) permits classification of backward classes into backward and more backward classes. Backward class of citizens cannot be identified only and exclusively with reference to economic criteria. The aim of Article 16(4) is not aimed towards economic upliftment or alleviation of poverty. Mainly the social and educational as well as economic backwardness has to be taken into consideration.

The court has observed that Article 16(4) speaks of adequate representation and not of the proportionate representation, the rule of 50% is applicable to reservation proper only and not to exemptions, concessions or relaxation which are provided to the backward classes. The court also held that carry forward rule “to carry forward the unfilled vacancies in the next year” is valid provided it should not result in the breach of 50% rule.

Analysis

The controversy related to reservation has been debatable for decades and it still is a hot debatable topic as well as a sensitive subject matter, as opinions related to reservation differs from person to person. While some are at the beneficial end and some are at the non-beneficial end. The Indra Sawhney v Union Of India is a landmark case, the Supreme Court has admirably explained the scope of Article 16(4) by stating that Article 16(4) is not an exception to Article 16(1) but is an independent clause and is exhaustive on the subject of reservation in favour of backward classes.

The question as to does the 50% limit on reservations mentioned in the Indra Sawhney case hold any good now, the Maharashtra Government in 2018 passed the Socially and Educationally Backward Classes Act, 2018. Under which the law sought to introduce 16% reservation for the Marathas in the state services and higher education which took the total reservation beyond 50% limit, the State of Maharashtra has questioned the outcome of the judgement of Indra Sawhney as they rely on Article 145(5) of the Constitution which requires for every judgement to must have the concurrence of a majority. On these grounds it was argued that the nine judge bench had not delivered a majority and a minority on the 50% rule.

The three judges have been categorical in stating the 50% rule, Thommen J said the number of seats reserved must at all times remain well below 50% and according to Kuldip Singh J under no circumstances should the reservation go beyond 50% and Sahai J stated that reservations of any manner cannot cross 50% limit. Justice Jeevan Reddy’s judgement was written on behalf of himself and other three judges Kania CJI, Ahmadi and Venkatachaliah JJ. It was held that the 50% rule applies but however there’s might be extraordinary situations where it could be exceeded, it was noted that particularly communities that were outside the national mainstream and have special circumstances peculiar to them.

The parliament passed the 103rd Constitutional Amendment Act in 2019 which provides for a maximum of 10% of reservation for the economically weaker section in addition to the already existing reservations and this once again casted a doubt on 50% rule since the parliament might have intended to change it. The interpretation and the validity of the amendment is still pending before the court and the outcome of it is likely to affect or be affected by the decision taken by the bench. The court is left with an immensely difficult job of interpreting a complex judgement and possibly recasting the reservation regime in India. The importance of the case cannot be understated as a five judge bench but the most it can do is refer it to a much larger bench, well the litigious path to upsetting Indra Sawhney judgement is still long.

There are quite some cases related to the matter of reservation some of those cases are M.R Balaji V State of Mysore in this case the state of Mysore had issued an order under Article 15(4) declaring all the communities except for the Brahmin community as socially and educationally backward, reserving 75% seats in all educational facilities in favour of socially and educationally backward classes (SEBCs) and the schedule tribes and the schedule castes. The validity of the order was questioned before the Apex Court of India, the five judge bench while striking down the said order expressed that Article 15(4) is a exception to Article 15(1) and Article 29(2). Hence for the purpose of Article 15(4) backwardness must be on both the grounds of social and educational aspect and the reservations which are made under Article 15(4) must be reasonable, it should not be of such nature as to prevail over or to nullify the main rule of equality stated in Clause (1). The further categorisation of backward classes into backward and more backward is not validated by Article 15(4) of the Constitution.

Another well known case is of State of Madras V Smt. Champakan Dorairajan in this very case an Government Order was issued by the State of Madras in which apportioned seats in the engineering and medical colleges on the basis of caste, this was challenged before the Apex Court of India. A special bench of seven judges heard the issue and J.S.R Das held that ineligibility constructed by the government order whereby a Brahmin who was generally eligible was rendered ineligible because of caste was repugnant to Article 15 and Article 16. In accordance to the Supreme Court’s order the parliament interfered and amended Article 15 by inserting Clause (4) by way of the Constitution First Amendment Act, 1951 which authorised the state to make special provisions for the advancement of the Socially and Educationally backward classes of citizens (SEBCs).

The outcome of the Indra Sawhney judgement overruled the General Manager Southern Railway V Rangachari as well as Akhil Bhartiya Soshit Karmachari Sangh (railway) V Union of India verdicts which said that reservations could be made in promotions as well as appointments but the Indra Sawhney V Union Of India’s judgement held that reservations cannot be applied in matters of promotions. Providing reservations has its own advantages as well as disadvantages, the advantages of having reservation system are as follows. Equal representation, the purpose of reservation was to uplift the suppressed and providing equal representation would increase the number of people from backward classes to be able to participate in the decision making procedures which will give them equal footing in the society.

Providing equal opportunities to the deserving candidates, being given equal opportunities many people from the backward sections have been able to achieve higher positions and services in the public sector as well as some private facilities. Implementation of justice and human rights, people from the backward classes have always faced discrimination and due to reservation they are encouraged to fight for justice whenever any of their rights are violated. Promoting economic balance in the society, dues the reservations provided it has slowed down the forward becoming richer and backward becoming poorer. Historical injustice, the backward castes have been victims of caste based discrimination hence providing caste based reservation is necessary because of historical negligence, mistreatment caused to them.

Every coin has two sides just like that there are disadvantages attached to reservation as well some of the disadvantages are as follows. Encouraging casteism, reservations are a breeding force of caste based society instead of eliminating it. The benefit of the privileged only, the ones primarily benefiting from reservation are from the creamy layer or the dominant classes in backward castes because of which the marginalised section still remains marginalised. Opposing meritocracy, the outcome of reservation is that it is resulting in the degradation of the quality of students and employees enrolled in different institutions because the undeserving candidates get the opportunities. Social unrest, reservation have and still continue to cause social unrest and in the past it caused great unrest during the Mandal Commission in 1990.

Conclusion

In conclusion I would like to say that I am not against reservation but my mind is on a 50-50 footing. It has been 30 years since the Indra Sawhney case judgement, during that time it was the need of the hour as certain classes of people were being suppressed due to their castes and as we are well aware that in India caste system has always been an massive issue as it has played an important role in discriminating people and excluding them from their rights. As we are well aware that scheduled caste, scheduled tribes and other backward classes were given the treatment of being untouchables because of which they were never able to uplift themselves and develop in any manner and always had to be at the bottom of the ladder.

Even though reservation has been granted to scheduled caste, scheduled tribes and other backward classes they still in the 20th century face caste based discrimination but on the other hand they have successfully uplifted themselves in the society, reservation has done them wonders since the inception of it. Even though reservation has done some good, it has done more bad as it has created a toxic environment of discrimination as many excellent deserving students have lost their rightful places in institutions they dreamed of being and worked hard to get there but just because of reservation they were not given their rightful place, this type of discrimination has created a bitter mindset and environment in educational institutions and will keep leading towards unwanted discrimination.

It has been 30 years since the Indra Sawhney judgement, it is high time that this very judgement is overruled by a larger bench and gives equal treatment to all, though the idea being the Mandal Commission was to give equal treatment it has in a way failed to do so as reservation to certain classes is provided and the one’s who do not have any kind of reservation are suffering immensely to get into good education institutions and also many government officials have worked for decades but are not promoted as even promotions are reserved, these officials are not being given their rightful places as they are hardworking.

The purpose was to uplift and create an environment of equality but the environment has been turned into a toxic environment while some work hard to pass entrance exams to get prestigious institutions but unfortunately they are not given a seat simply because it is already reserved for another who might not even be deserving, this is the reason why many deserving hardworking students leave India and settle in another country, we are driving out our own countries talent. If this very talent stays in India, the country will be able to achieve great heights but unfortunately other countries have valued these great talented students and have given them their rightful places and opportunities. If this continues to happen India will keep loosing excellently talented people.

Everyone should be given the same opportunities and a level playing field, either remove the system of reservation or provide equal reservations to everyone so no one is left out. Reservation must only be given to the one’s who genuinely need it and is deserving as many are simply taking advantage of having been given reservation to them. It is absurd that some people from these classes have taken the fact of having reservation for granted and act ignorant, they make no effort to study or to get better opportunities for themselves instead they just want opportunities to be handed over to them on a silver platter. Many do not even use the benefit of reservation but cry out loud for being at the bottom of the ladder. When something is implemented to bring in positive changes it also holds the power to bring in evil

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