Case CommentaryConstitutional Law

Indra Sawhney and Ors Vs. Union of India


Author: S. Aditya, 2nd Semester LL.M. (Corporate Law) at Hidayatullah National Law University, Raipur.

Introduction

The provision for reservation under Article 16(4) can be made by parliament, state legislature, central or state executive, local bodies and other authorities as provided under Article 12 of Constitution of India. The scope and extent of Article 16(4) of the Constitution of India is exhaustive in nature because of the parliamentary language employed in the provision and excludes any reservation other than the reservation for backward classes from its ambit. The reservation other than the above said reservation  to the Other Backward Classes (OBCs) must be granted under Article 16(1) and enforcement of such reservation is expressly beyond the scope of Article 16(4) of the Constitution of India. Reservations must not exceed 50% in total. The Supreme Court upheld the carried forward rule. The reservation in promotion is constitutionally impermissible.

Essential details of the Case

Case Citation: AIR 1993 SC 477

Petitioner(s): Indra Sawhney and Ors

Respondent(s): Union of India (UOI) and Ors.

Concerned Statues and Provisions: Article 16 of the Constitution of India

Bench:  M Kania (C.J.), M Venkatachaliah, S R Pandian, T Ahmadi, K Singh, P Sawant, R Sahai, B J Reddy

Date of Judgment: November 16, 1992

Present Status: 77th, 81st & 85th Constitutional Amendments introduced by parliament diluted the intent of the Judgment.

Facts of the Case

In the year 1979, the Government of India had constituted the Mandal Commission which had taken into consideration the Socially and Educationally Backward Classes (SEBC) and submitted its report with various recommendations, to the president in accordance with Article 340 of the Constitution of India.

The Commission identified 3743 castes under the category of SEBC, and recommended 27% reservation in the government jobs for their upliftment.  Until the year 1989, almost no action was taken on the report submitted by the Mandal Commission[1]. The newly elected Janta government to fulfil its manifesto, issued an Office Memorandum (O.M.) to implement the recommendations suggested by the Mandal Commission, but even before these implementations could be put into action, a violent protest against the above said reservation was carried out across India against the government[2]. This was followed by the writ petition filed by the Supreme Court Bar Association which had challenged the validity of the office memorandum before the constitutional bench of the Supreme Court which stayed the implementation of the office memorandum till the disposal of the case.

In subsequence to the above said stay granted by the constitutional bench it so happened that the Janta government collapsed and a new government headed by P. V. Narasimha Rao got elected. This newly formed government issued another Office Memorandum in pursuance to the Mandal committee report and further introduced economic criterion to grant reservations. The poorer sections of Socially and Educationally Backward Classes (SEBC) were to be granted preference in the 27% quota, Furthermore, this office memorandum also proposed another 10% reservation for economically backward classes who were not covered in the previously existing schemes of reservations.

The Supreme Court’s Constitutional bench referred this matter to the Nine Judge bench of the Supreme Court and also issued a notice demanding explanation pertaining to the criteria upon which 27% reservation was reached.

Issues of the Case

Following issues were framed:

  • Whether Article 16(4) is an exception to Article 16(1) and whether such reservations would be applicable in the posts of state services?
  • What does the phrase “backward class” mean as provided under Article 16(4). Does caste by itself constitute a class and whether economic criterion could successfully identify a class for Article 16(4)?
  • If economic criteria based reservation would be covered under Article 16(1)?
  • Whether the reservation to a post in services in state under Article 16(4) could exceed 50% of the post in the cadre or service under the state?
  • Can there be further classification in the backward class on the basis of economic or other consideration i.e. Backward Classes (BC) and More Backward Classes (MBC)?
  • Does the enactment of “any provision” as provided under Article 16(4) for granting reservation, must be mandatorily passed by the Parliament or the state legislature? or could be enacted by the executive order as well?
  • Is the judiciary bound to only review Backward classes and the percentage quantum of reservations made for such classes?
  • Should the reservation in appointment of posts for the backward classes be just restricted to the appointment or should also extend to the promotions as well?

Arguments from Petitioners

  • The Petitioners contended that the reservation so granted under the garb of Article 16(4) is antithetical to the Article 16(1).
  • The Petitioners contended that caste should not be a basis for identification of the backward classes as it shall encourage the persistence of the evil caste system.
  • The Petitioners contended that the reservation must not be granted for the matters of promotion.

Arguments from Respondent

  • The Respondent contended that the reservation so granted under Article 16(4) was in fact a practical extension of the principle of equality enshrined under Article 16(1).
  • The Respondent contended that a collective oppression is faced by various castes which makes them unequal, therefore reservation must be granted based upon caste and economic standards.
  • The Respondent contended that reservation must not be limited to a fixed cap which may hamper the upliftment of the backward classes.
  • The Respondent contended that the grant of reservation must be endowed upon the individuals of backward classes without any discrimination, therefore classification must not be done amongst the backward classes.
  • The Respondent contended that reservation must be granted in the matters of promotion given the fact that the backward class were not granted the management positions.

Judgment Held

There were claims that the state was not allowed to provide reservations to the backward classes under the garb of Article 16(4), because then this shall become antithetical to the Article 16(1) of the Constitution. It was also argued by the petitioners that such reservation made under the Mandal Commission report would further drag the evils of the caste system which would violate Article 16(2). The respondent contended that the constitution guarantees equality for all classes of people irrespective of their religion and therefore the reservation so recommended was legal and valid. The Supreme Court while analysing this first issue came to a conclusion that Article 16(4) is not antithetical to the Article 16(1) rather it is an intrinsic part of the latter, even if such a provision was absent, the state would have power to provide reservations. This provision just grants the power upon the state expressly.

In the matter pertaining to the equal protection clause as contented by the petitioner, it was stated that caste should not be a basis for identification of the backward classes and further stated that these kinds of reservation would lead to meritocracy being replaced by mediocrity. The respondents in this issue stated that the state should provide equal opportunities to those placed unequally and therefore reservation is a mere extension to the principle of equality. The Supreme Court while interpreting Article 16(4) propounded that identification of backward classes of citizens could be carried out both on the basis of caste and on the basis of economic status.

In the matter pertaining to the classification of the backward classes into backward classes and more backward classes, the same was vehemently opposed by the respondent stating that the grant of reservation must be endowed upon the individuals of backward classes without any discrimination (not based upon the caste). The petitioner in this matter also maintained the same stand that reservation must not be granted based upon the caste since it shall further encourage the evils of caste system and  throw the society again into the shackles of backward and upper classes. The Supreme Court while taking into consideration the cases of those people who belongs to backward class because of their caste and now have achieved better status socially, politically or economically or if the parents of such words have achieved higher services then the reservation must not be applied to such candidates to prevent monopolization of upliftment efforts. The Supreme Court further went on to exclude the creamy layer OBCs by propounding that the exclusion of the economically strengthened section would be in line with the social purpose of the constitution. The Supreme Court further allowed the classification of Backward Classes (BC) into backward classes and more backward classes. It held that this classification would be necessary since backward classes which are more advanced than more backward classes would take away all the seats.

Taking into consideration the nature of reservation granted to the backward classes under Article 16(4), it was propounded by the Supreme Court that the reservation so provided must not exceed 50% of the total number of vacancies issued in the Cadre. Therefore the Supreme Court balanced the interest of the Socially and Educationally Backward Classes (SEBC) with the interest of people of general category for government employment.

The petitioner had argued against the power of the executive to issue the  office memorandum under Article 16(4) Stating that only the parliament or state legislature had the power to issue such a reservation. The respondent contented that even the executive could have issued a direction under Article 16(4) for the upliftment of the society. The Supreme Court while analysing the appropriate authority to issue a provision, contemplated the powers of Article 16(4). It propounded that it could have been made by the executive wing of the union or the state or “any other authority” as defined under Article 12 of the Constitution of India.

Furthermore,  while looking into the question whether reservation should be granted while taking into consideration the promotion, the Supreme Court propounded that once the advantage and the disadvantage were made equal and brought under a single class, then extending any further benefits to either one of the individuals during the phase of promotion shall amount to inequality i.e. treating equals unequally.

Critical Analysis

This was one of the landmark judgments based on reservation, where the court perceived a balance between the interest of the vulnerable class of people and the general people for the matter of government employment.  The impact of this judgement however was diluted by various political parties for their vote bank politics. The parliament of India by enacting 77th constitutional amendment[3] inserted a new Article 16(4)(A) Granting powers to the state to make provisions for reservations in the matter of promotion in the state services for the scheduled castes and scheduled tribes. Furthermore, by the 81st constitutional amendment[4] Article 16(4)(B) Provided the reservation to exceed the limit of 50% if the  vacancies were not filled up due to the non availability of eligible candidates. Thereafter under the 85th constitutional amendment,[5] the consequential seniority was to be awarded to the SC and ST candidates who could not avail this reservation based promotions because of the instant case.

The Supreme Court in Nagraj versus UOI (2006)[6] upheld the validity of the amended Article 16(4)(A) but imposed the burden upon the government to prove that the SC and ST community was educationally backward, meagrely represented in bureaucracy, and the reservation so granted to the SC & ST community shall not affect the overall efficiency of the system. These conditions must be proved by the government by producing quantifiable data for the same and in the absence of proof any reservations granted over and above the cap of 50% shall be deemed unconstitutional.


References

[1] BP Mandal, National Commission for Backward Classes (1980), http://www.ncbc.nic.in/User_Panel/UserView.aspx?TypeID=1161 (last visited Jun 21, 2021).

[2] Santosh Singh, Sunday Story: Mandal Commission report, 25 years later The Indian Express (2015), https://indianexpress.com/article/india/india-others/sunday-story-mandal-commission-report-25-years-later/ (last visited Jun 21, 2021).

[3] GOI, THE CONSTITUTION (SEVENTY-SEVENTH AMENDMENT) ACT, 1995: Legislative Department: Ministry of Law and Justice: GoI Legislative Department | Ministry of Law and Justice | GoI (1995), https://legislative.gov.in/constitution-seventy-seventh-amendment-act-1995 (last visited Jun 21, 2021).

[4] GOI, THE CONSTITUTION (EIGHTY FIRST AMENDMENT) ACT, 2000: Legislative Department: Ministry of Law and Justice: GoI Legislative Department | Ministry of Law and Justice | GoI (2000), https://legislative.gov.in/constitution-eighty-first-amendment-act (last visited Jun 21, 2021).

[5] GOI, THE CONSTITUTION (EIGHTY-FIFTH AMENDMENT) ACT, 2001: Legislative Department: Ministry of Law and Justice: GoI Legislative Department | Ministry of Law and Justice | GoI (2001), https://legislative.gov.in/constitution-eighty-fifth-amendment-act-2001 (last visited Jun 21, 2021).

[6] M.Nagaraj v Union of India, AIR 2007 SC 71.

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