AUTHOR: VIDUSHI GOEL
COURT: THE SUPREME COURT OF INDIA.
CITATION: AIR 1993 SC 477, 1992 Supp 2 SCR 454
PETITIONER: INDRA SAWHNEY AND OTHERS.
RESPONDENT: UNION OF INDIA.
BENCH: THE HON’BLE CHIEF JUSTICE MR.M.H. KANIA, JUSTICE M.N. VENKATACHALIAH, JUSTICE S.R. PANDIAN, JUSTICE T.K. THOMMEN, JUSTICE P.B. SAWANT, JUSTICE B.P. JEEVAN REDDY, JUSTICE A.M. AHMADI, JUSTICE KULDIP SINGH, JUSTICE R.M. SAHAI.
INDRA SAWHNEY V. UNION OF INDIA: The Constitutionality of the reservation is an unending discussion that has been going on in the Supreme Court of India for the longest time. This case came into light when the second backward classes commission was appointed to investigate the socially and economically backward classes. It is a well-known fact that poverty is not peculiar to India and the combination of poverty along with a legitimized caste system makes it worse.
It tends to drag the individual belonging to a particular class or caste into a vicious circle of exploitation thus degrading the dignity of life. The Indian Constitution ensures justice in the Social, Economic, and Political realm thus creating a just and dignified State for all irrespective of caste, creed, and class.
The Prime Minister Morarji Desai who was the head of the Janata Government appointed the second backward class, known as the Mandal Commission under Article 340 of the Indian Constitution. The Mandal Commission was appointed to investigate the position of Socially and Educationally Backward Classes in India and to recommend the procedure to be taken for their advancement including the provision for reservation of seats for them in the Government jobs.
In December 1980, the Commission while submitting the Report has recognized 3743 classes as Socially and Educationally Backward Classes and recommended for reservation of 27% Government jobs for them. The recommendations made by the Commission was that 52% of the population constituted the other Backward Classes besides the Scheduled Castes and Scheduled Tribes.
In the meanwhile, the Janata Government collapsed and the Congress Government came to power. The Mandal Commission Report was not implemented by the Congress Party till 1989. In 1989, the Janata party again came to power at the Centre and decided to implement the Mandal Commission report. On August 7, 1990, then Prime Minister VP Singh has accepted the Mandal Commission Report which recommended a 27% reservation for other backward class candidates at all levels of the services.
On August 13, 1990, the Janata Government issued the Office Memorandum reserving 27% seats for Backward Classes in the Government services. This led to the nationwide protest and anti-reservation movement. The Supreme Court Bar Association filed a writ petition was filed challenging the validity of the Office Memorandum. The Court stayed the operation of the Office Memorandum till the final disposition of the case on October 1, 1990.
On September,1991, The Government issued another Office Memorandum with two special changes that are:
- By introducing the economic criterion in granting reservation by giving preference to the poorer sections of Socially and Educationally Backward Classes in the 27% quota.
- Reserved another 10% vacancies for other Socially and Educationally Backward Classes, economically backward sections of higher class.
The Five Judge Bench referred the matter to the Constitution Bench of Nine Judges in view of the importance of the matter to finally settle the legal position related to reservation.
ARTICLE 14: “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”.
ARTICLE 15(4): “Nothing in this Article shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Caste and the Scheduled Tribe”.
ARTICLE 16(1): “There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State”.
ARTICLE 16(4): “Nothing in this Article shall prevent the State from making any provision for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State”.
ARTICLE 340(1): “The President may by order appoint a Commission consisting of such persons as he thinks fit to investigate the conditions of socially and educationally backward classes within the territory of India and the difficulties under which they labor and to make recommendations as to the steps that should be taken by the Union or any State to remove such difficulties and to improve their condition and as to the grants that should be made for the purpose by the Union or any State and the conditions subject to which such grants should be made, and the order appointing such Commission shall define the procedure to be followed by the Commission”.
- Whether Article 16(4) is an exception to Article 16(1)?
- Whether backward classes can be further divided into backward and more backward classes?
- Whether the classification can be made only on the basis of caste or on economic criteria?
- Whether the legislative order is necessary for implementing reservation or it can be made through executive order only?
- Whether the extent of a reservation exceeds 50%?
- Whether the reservation is restricted to initial appointments or it can be extended to promotions also?
- Whether Backward Classes in article 16(4) related to Socially and Educationally Backward in Article 15(4)?
- Whether the Creamy layer must be excluded from Backward Classes?
The Nine Judge Bench of Supreme Court of India by 6:3 majority gave the Judgements as follows:
- The Court held that Article 16(4) cannot be an exception to Article 16(1), rather it is a part of Article 16(1). It is an occurrence of the classification. Reservation can be made under Article 16(1) on the basis of the reasonable classification.
- The Court while overruling the Balaji v. State of Mysore Case, held that the classification between Backward and more Backward classes is not unconstitutional. However, this classification is necessary to help the more Backward Classes otherwise the advanced sections of the Backward Classes might take all the benefits of reservation.
- The Court held that the backward classes define the caste system and not an economic system. A backward class of citizens cannot be identified only and exclusively with reference to economic criteria and even caste alone cannot be the basis for consideration. The Court struck down the economic criterion for reservation on the ground that Article 16(4) does not mention it.
- Reservation can be made by Executive order under Article 16(4). It needs to be made by Parliament or Legislature.
- The Court observed that the maximum limit of reservation cannot exceed 50%. But in extraordinary situations, it may be relaxed in the favour of people living in remote areas of the State, who because of their conditions need different treatment. The Rule of 50% shall not apply to exemptions or relaxations to Backward Classes under Article 16(4).
- The Majority of Judges in the case observed that the reservation cannot be made in promotion under Article 16(4). The reservation is confined to appointments only. It shall not affect the promotions already made. Such reservations may continue for a period of five years, the authorities will revise, modify, or issue rules relating to the reservation within five years period.
- The Majority held that the Backward Classes in Article 16(4) has a much wider scope than Socially and Educationally Backward Classes under Article 15(4). Article 16(4) does not contain the words “Socially and Educationally” Backward Classes as does Article 15(4) contains.
- The Court held that while identifying the Backward Classes, the socially advanced citizens which is the creamy layer among them should be excluded.
The Supreme Court discussed the scope of Article 16(4) in this case. The constitutionality validity of the “Carry Forward Rule” which was framed by the Government to regulate the appointment of persons of backward classes in Government services was involved. The rule provided that if an adequate number of candidates belonging to the Scheduled Castes and Scheduled Tribes were not available for appointment to the reserved quota.
The Court in this case held that the caste of a citizen cannot be the only test for establishing whether a particular class is the backward class or not. Deprivation, occupation, place of residency may all be relevant elements to be taken into consideration. The Court has put a 50% limit on the reservation and held that Article 16(4) is an exception to Article 16(1). The Court even observed two conditions:
- Firstly, the Backward classes must be both Socially and Educationally Backward.
- Secondly, adequate representation in services under the State.
The Court in this case stated that Article 16(4) is not in the nature of an exception to Article 16(1). It is the facet of Article 16(4) which gives the idea of equality of opportunity with the special reference to an underprivileged and deprived class of citizens. Even without Article 16(4), the State could Reserved posts for Backward Classes.
This landmark Judgment by the Supreme Court rightly answered all the prevalent questions pertinent to the reservation and disregarded many misconceptions arising out of the Mandal Commission and other subsequent provisions for the upliftment of backward classes. Neither the Indian Constitution nor the law prescribes the method of identification of backward classes. Even today’s issue with the caste system is the consequences of our own fault created in the ancient days. To remove this historic injustice, Part III of the Indian Constitution was enacted and implemented.
Article 16(4) empowers the State to make special provisions for the reservation of appointments of posts in favor of any backward class of citizens which in the opinion of the State are not adequately represented in the services under the State. In this case, the evolution of the system of the reservation took many twists and turns, amidst the political motives and the principle of equality, the Supreme Court gave many interpretations of Article 16(4). It can be concluded that the Court was of the view of implementing the reservation policies in order to curb the social evil existing in society.
 AIR 1964 SC 179.
 AIR 1963 SC 649.
 AIR 1976 SC 490.
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