INDRA SAWHNEY & OTHERS v. UNION OF INDIA

INTRODUCTION

The case of “Indra Sawhney V. Union of India” is a Landmark case with the view of reservation for backward classes in India. When Constitution has framed by the framers of the constitution with the intention to provide equal opportunity to all made the provision of reservation for backward classes is inserted in Article 16 of the Constitution of India. The case mainly talks about the right to equality which includes Articles 14 to 18 of the Indian Constitution. The Constitution has recognized social and educational backwardness but it does not recognize economic backwardness. The genesis of the case was the Second Backward Classes Commission which submitted its report recommending 27% of reservations for OBCs and 22.5% for SC and STs. It demanded a reservation of 10% for economically backward classes. These recommendations of the Mandal Commission were viewed as a political weapon for political parties to grab the votes in the name of reservation. On 16^th November 1992, the Supreme Court upheld that caste is the important determinant of Backwardness; it should be taken into consideration. In this case, the Court made the provision for separate reservation of OBC (other backward classes) in public employment but excluded those who are from backward classes but are economically and socially ahead of others of their category or Caste. The total reservation should not exceed more than 50% in any condition and the reservation of OBC would be 27%. The judgment was passed with the ratio of 6:3. The judges in opposition were Justice T.K Thommen, Kuldip Singh, and R. M. Sahai. 

PRIMARY DETAILS OF THE CASE

BRIEF FACTS OF THE CASE

Parties

The parties involved were Indra Sawhney who is Newspaper Editor of Delhi as the petitioner and the Union of India as the respondent.

Facts

A landmark case on the issue of reservation is Indra Sawhney v. Union of India, 1993. In the year 1979, the second Backward Classes Commission was formed under Article 340 of the Constitution named “Mandal Commission”. The main motive of the Commission was to investigate the socially and educationally backward classes in India. One of the major recommendations made by the Commission was that, besides the Scheduled Castes (SCs) and Scheduled Tribes (STs), for Other Backward Classes (OBCs) 27% of government jobs should be reserved so that the overall reservation for SC, ST, and OBCs amounts to 50%. But after that Janta party got collapsed and the recommendation of the Mandal Commission was not implemented. Thereafter, the Congress party came into power. The Congress government came with a newly modified memorandum which stated that an additional 10% reservation would be provided to economically backward classes not covered in any reservation scheme. This led to an increase in reservation limits by up to 37%. But this action was challenged in Supreme Court and the recommendation was not implemented. In 1989, when Janta dal regained power, it tried to implement the recommendation of the Mandal commission made in the second backward classes’ commission. But the government action was challenged before the Supreme Court by way of a writ petition, stating that it is an infringement of the fundamental rights of an individual. The five-judge bench referred the matter to a nine-judge bench to finally settle the matter.

ISSUES INVOLVED IN THE CASE

1. Whether the classification made for reservation would be based on caste or economic condition of an individual?
2. Whether Article 16(4) is an exception to Article 16(1) or not?

• Can reservations for the post in State services; could exceed more than 50%?

1. Whether the Classification made under the Backward class as Backward Class and Most Backward Class is valid or not?
2. Would reservation be restricted to the initial appointment to the post or would be extendable to promotions as well?

ARGUMENTS INVOLVED IN THE CASE

Petitioner

On behalf of the petitioner, arguments were made by the senior counsel, Mr. N.A. Palkhiwala, Mr. K.K. Venugopal, Smt. Shyamala Pappu and Mr. P.P. Rao.

1. The idea of the reservation is provoking the evil idea of the caste system in Indian society. It will divide society in two- forward and backward – and will lead to conflict and hatred among the people of the country. If everyone is not provided with equal opportunity then it would be disastrous for the development of a country and is a hindrance to the goal of the welfare state. It further added that providing reservations based on caste would violate the constitutional guarantee of equality of opportunity for all. It would be an infringement of the fundamental right of an individual.
2. The 1931 census report can never be a base for identifying ‘backward classes in India. Therefore, again a new survey must be conducted throughout the country and a fresh list needs to be created of OBCs (other backward classes) based on the current census. For creating this report a new commission must be formed under Article 340(1) of the Indian Constitution.
3. Thirdly, Caste is not a reliable indicator of backwardness. Other criteria such as educational, social, and economic factors should be given importance more than caste, as these factors have a direct consequence on the status of a person.
4. The petitioner stated that the Mandal commission is trying to rewrite the constitution, as it buried all the ideals of equality and tried to make its constitution and that if these recommendations are implemented then the efficiency of administration would come to a grinding halt. It would affect the efficiency of public administration

Defendant

1. The respondent argued that reservation merely provides the means for backward classes to uplift themselves. It is provided to protect them from social injustice and all forms of exploitation. They also stated that the reports are the continuation of the reports of the first minorities’ commission which also recommended affirmative action to ameliorate the condition of weaker and backward classes.
2. The petitioner’s claim that the report was based upon the census report of 1931 is false and baseless. The other backward classes mentioned in the report are identified based on the countrywide socio-educational field survey and census report of 1961. The commission only gains an idea of community-wise population figures from the census record of 1931.
3. The respondent argued that the commission has deeply gone through the social, educational, and economic backwardness of various classes and laid down various propositions and tests, and then only, it had submitted a report of classes who are needed to be treated as ‘other Backward classes. The classes which need support and affirmative action to ameliorate their position are classified as OBCs.
4. On the claim of the petitioner that the Mandal commission is trying to rewrite the constitution, the respondent argued that the commission has not rewritten the constitution. The question of rewriting the constitution doesn’t even arise as the commission has prepared all its report under the authority of notification issued by the president.

LEGAL ASPECTS INVOLVED

This case mainly consists of Articles 15, 16, 18, and Article 340 of the Indian constitution. Article 15(4) of the Indian Constitution talks about providing special protection to the social and economically backward classes. The Court held that nothing should prevent the state to create special provisions for women, children, and backward classes. They should be provided reservations so that they can come forward.

Article 16(1) states that equal opportunity should be provided to all citizens without any discrimination based on religion, caste, colour, sex, and creed.  At the same time, Article 16(4) states that nothing shall prevent the state to make special provisions in the favour of backward classes. Here Articles 16(1) and 16(4) are contradicting each other. But it was held that Article 16(4) is not an exception to Article 16(1), rather it is an aiding clause and extension of Article 16(1) only.

Article 340(1) of the Indian Constitution stated that the President can appoint a commission to investigate backward classes in the country. At first, the commission appointed the first backward classes commission known as the ‘kaka Kalelkar Commission’. The second backward classes commission was known as the ‘Mandal Commission’. These commissions work under the authority of the president.

JUDGEMENT IN BRIEF

RATIO DECIDENDI

1. Basis of Classification for reservation

The court held that the reservation cannot be solely based on economic backwardness regardless of the social injustice and discrimination faced by the backward classes over the ages, as it doesn’t do justice to the constitution of India. Social, educational and economic backwardness are closely interrelated. For the identification of backward classes, caste can be a criterion but it shall not be the sole criterion for reservation. There are several occupations, sects, and denominations that are socially backward. Backward Classes of a citizen in Article 16(4) can be identified based on the caste system and not only on an economic basis.

1. Article 16(4) is an extension of Article 16(1)

State of Kerala and Anr. V. N.M. Thomas, the court held that Article 16(4) is not an exception to article 16(1) rather it is only an extension of it; stating the principle inherent in the main provision itself. The court further said that Article 16(4) is an aiding clause to help backward classes to reach the level of equality. The provisions made by the government under this clause would not be regarded as an exception and infringement of fundamental rights because when everyone would be on the same level then only healthy competition could be created.

• Not more than 50% reservation

Supreme Court held that reservations cannot be increased by more than 50%. It could only be increased during extraordinary circumstances and the reason for exceeding the limit should be valid and be justified. For determining the extent of reservation, overall numerical strength and representation in administration services and different grades are considered.

1. Further classification of backward classes

Yes, the backward classes can further be classified into more backward and less backward classes. The Supreme Court has given the power to the State government to classify the classes. However, classes should be classified based on social backwardness and not only on economic and educational backwardness. It further said that if the advanced section of the backward classes are so advanced that they can compete with other higher classes then they should no longer be termed as backward classes and should be denied reservation under Article 16(4).

1. A reservation only in the appointment

 No, the reservation would not apply to promotion in services, reservation in promotion is unconstitutional and doesn’t do justice to the services. The promotion should be based on the merit of a person, his capacities, and abilities.  Reservation would only be applicable in the initial appointment. Court further said that there should be direct recruitment of the reserved classes at all level and all grades in services.

OBITER DICTA

16. On the point of providing reservation to backward classes in Article 16, the court said that “In as much as public employment always gave a certain status and power – it has always been the repository of State power – besides the means of livelihood, special care was taken to declare equality of opportunity in the matter of public employment by Article 16. Clause (1) expressly declares that in the matter of public employment or appointment to any office under the state, citizens of this country shall have equal opportunity.”
17. The court further said that nothing should prevent state governments and parliament to make special provisions for women, children, and other backward classes in India. Court also said that reservation shall only apply to the appointment but once they get into service they have to compete with others and earn promotions like others.

CONCLUSION

In Indra Sawhney v. Union of India, Supreme Court has to deal with many complex questions which would decide the future welfare and stability of Indian society. Supreme Court has very efficiently dealt with the situation taking into consideration the reservation of backward classes with that of the society. It has opted for the best way to solve the dispute. It further clarified a lot of provisions of Indian Constitutions and laid down how those provisions would be applicable. This ruling aims at ensuring that the benefit of reservation reaches the proper and the weakest section of the backward class. On the question of the validity of Articles 16(1) and 16(4), the court referred to the case of Venkataraman V. State of Madras held that the Reservation of posts for backward classes cannot be regarded as unconstitutional. Court further said that reservation of reserved classes cannot be increased to more than 50% of total seats. It could only be increased in exceptional cases and where there is reasonable justification for extending such reservation. The Court in this case introduced a new concept of a creamy layer, all those sections of the society that is capable of being economically developed were removed from reservation criteria. The main focus was the development of backward classes of society. Court further said that reservation is not a static principle, it is dynamic. The section of the society that takes advantage of the reservation and gets developed because of it, will then gradually be removed from the reservation. Finally, No section will remain underprivileged in the country and no more reservations would be required in our country.

The Court also overruled the T. Devadasan v. Union of India which ruled out the ‘carry forward’ rule which states that the reserved posts for backward classes remaining unfilled in a year may be carried forward to the next year.  After the Indra Sawhney case, two constitutional amendments have been incorporated in Article 16(4) to somewhat neutralize the impact of the pronouncement of the Supreme Court. These two amendments were the 77^th constitutional amendment, in which power was given to the state to make provisions for the reservation of SCs and STs in a promotion. By amending the constitution, parliament has made changes to the decision of the Supreme Court which held that reservation does not apply to the promotion. Another amendment made was the 81^st constitutional amendment; under this amendment Article 16(4B) was added. It states that nothing in this article shall prevent the state from considering any unfilled vacancies of the year which were reserved for being filled the next year.

However, the decision of the court was opposed and criticized and led to many protests within the country. The critique said that “reservation takes away the seat of a more meritorious candidate, who is more capable than that of the candidate whose seat is reserved. Which kind of equality is this?” but reservation is now a fact of life and it will be ruling norm for years to come. Society may find it very difficult to shed the reservation rule shortly. But the court’s opinion has checked the system of reservation from running riots and has mitigated some of its evils. Caste can be one of the factors, but not the sole factor to access backwardness. If we look from a different perspective it can even be said that due to reservation the demon of casteism is growing. The lack of equal opportunity for all, as the reservation is not providing an opportunity to all showcase their talent or to have equal access to resources and has led to degradation of the quality. It has been seen that many politicians have tried to dilute the decision of this case for their political profit and have amended certain provisions of this case. Basically, in India reservation is more than becoming a social issue, it has become a political issue from which politician tries to make vote- banks.

Author(s) Name: Gunjan Khandelwal (University Five Year Law College, Rajasthan University)