Case Analysis: Indra Sawhney v. Union of India (1993)

Case Analysis: Indra Sawhney v. Union of India (1993) | Overview

• Basic Details
• Facts
• Issues Raised
• Decision of the court
• Rationale of the Judgement
• Whether reservations are applicable for promotions or not?
• Creamy layer
• Concluding remarks
• 77th Constitutional Amendment
• 81st Constitutional Amendment
• 103rd Constitutional Amendment

Indra Sawhney v. Union of India, known as the Mandal Commission case, is a very significant pronouncement of the Supreme Court on the question of reservation of posts for backward classes. The Court has dealt with this question in a very exhaustive manner. This case has overruled the judgement laid down in the case of Devadasan v. Union of India[1] stating that the rule of carried forward is applicable unless it does not breach the 50% rule. Analysis of this case gives a clear picture of how reservation works in India.

Case Analysis: Indra Sawhney v. Union of India (1993)

I. Basic Details

Case Name: Indra Sawhney v. Union of India

Bench: M Kania, M Venkatachaliah, SR Pandian, T Ahmadi, K Singh, P Sawant, R Sahai, T.K. Thommen, B.J Reddy.

Citation: AIR 1993 SC 477.

Statutes referred

Article 16(1), Article 16(4), Article 15(4), Article 340(1) of the Indian Constitution.

Article 15(4): Nothing in this article or in clause (2) of Article 29 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 Castes and the Scheduled Tribes.

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 favour 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 labour 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.

Cases Referred:

1. Balaji v. State of Mysore AIR 1963 SC 649
2. State of Kerala v. N.M. Thomas AIR 1976 SC 490
3. Devadason v. Union of India AIR 1964 SC 179

II. Facts

• The Mandal Commission was appointed by the Government of India headed by the Prime Minister Sri Morarji Desai in terms of Art. 340 of the Constitution in 1979 to investigate the conditions of socially and educationally backward classes.
• The committee has recognized 3743 classes as Socially and Educationally backward classes in December 1980 and gave a certain recommendation.
• 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) which constitute nearly 52% component of the population, 27% government jobs be reserved so that the total reservation for all, SCs, STs and OBCs, amounts to 50%.
• At that time the Janata party got dissolved and Congress came to the power. They did not implement the recommendations until 1989.
• In 1989, the Janata Party came to power and they issued an office Memoranda in order to implement the recommendations of the committee. But there were violent protests throughout the country for three months resulting in damage to person and property.
• So a Writ Petition was filed in October 1990 challenging the legitimacy of the Office Memoranda. Later the Janata Party again collapsed and Narasimha Rao assumed office and he introduced economic criterion by providing importance to the poorer sections of Social and Educationally Backward classes from that 27% and also inserted 10% reservations to the Educationally Backward classes of the Higher caste people.
• The five-judge bench referred the matter to a special Constitution Bench of 9 judges in view of the importance of the matter to finally settle the legal position relating to the reservation.
• Ultimately, the constitutional validity of the memorandum came to be questioned in the Supreme Court through several writ petitions. The question of the constitutional validity of the memorandum was considered by a Bench of 9 Judges. Six opinions were delivered. The leading opinion was delivered by Jeevan Reddy, J., on behalf of himself, Kania, C.J., Venkatachaliah, and Ahmadi, JJ. Two judges, Pandian and Sawant, JJ., in separate opinions concurred with Reddy, J. Three judges, Thommen, Kuldip Singh and Sahai, JJ., in separate opinions dissented from Reddy, J., on several points.

III. Issues Raised

1. Whether the classification made is on the basis of economy or caste?
2. Whether Article 16(4) is an exception of Article 16(1) or not?
3. Whether in Article 16(4) Backward classes are similar as Socially and Educationally Backward classes in Article 15(4) or not?
4. Whether the Classification made under the Backward class as Backward Class and Most Backward Class is valid or not?

IV. Decision of the court

The court gave a decision with 6:3 majority held that the decision of the Government of India to reserve 27% of the jobs to the socially and economically backward classes in which the preference would be given to the poorer sections of the Socially and Educationally Backward Classes in the 27% a quota is held to be constitutionally valid. By this, the court thought that the creamy layer among the Socially and Economically Backward Classes would be eliminated. But the court struck down the provision which provides 10% reservation for economically backward people among the higher castes as invalid.

V. Rationale of the Judgement

Issue 1: Whether the classification made is on the basis of economy or caste?

This case describes the extent through which Article 16(4) could be used and also this case would serve as a landmark judgment for the reservation people from the Backward class. The court has rightly pointed out that the Article 16(4) by its nature cannot be applied to the economically backward people unless a proper methodology is worked out to ascertain the inadequate representation of such economically backward among the higher castes.

The court also further held that the reservation cannot be purely on the basis of economic backwardness without any regard to the historical discrimination and it finds no justification in the Indian Constitution. The Court further ruled that the total number of seats reserved cannot be greater than 50%. The majority of judges held that neither the Constitution of India nor any law existing does not lay the procedure for the ascertainment of the Backward Classes. And also it is not possible for the courts to ascertain the same and so it has been left to the authority concerned.

The accent of Art. 16(4) is on social backwardness. From a review of the previous case-law in the area, the Court has concluded that the judicial opinions emphasize the integral connection between caste, occupation, poverty and social backwardness.

Social, educational and economic backwardness are closely intertwined in the Indian context. As regards the identification of backward classes, caste may be used as a criterion because caste often is a social class in India. But caste cannot be the sole criterion for reservation. Reservation is not being made under Art. 16(4) in favour of caste but a backward class. Once a caste satisfies the criteria of backwardness, it becomes a backward class for purposes of Art. 16(4).

Reddy, J., has observed in this connection:

“……. the classification is not on the basis of the caste but on the ground that that caste is found to be a backward class not adequately represented in the services of the State.”

Among the non-Hindus, there are several occupational groups, sects and denominations which, for historical reasons, are socially backward. They too represent backward social collectivities for the purposes of Art. 16(4).

Issue 2: Whether Article 16(4) is an exception of Article 16(1) or not?

Regarding this issue, the court held that Article 16 (4) is not an exception of Article 16 (1) but it is an extension of Article 16 (1). The Court has reiterated the view, expressed by it earlier in Thomas, that Art. 16(1) permits classification for ensuring the attainment of equality of opportunity assured by Art. 16(1) itself. Art. 16(1) is a facet of Art. 14. Just as Art. 14 permits reasonable classification so does Art. 16(1). A classification may involve reservation of seats or vacancies, as the case may be. In other words, under Art. 16(1), appointments and/or posts can be reserved in favour of a class.

Article 16(4) is not an exception to Art. 16(1), but only an instance of classification implicit and permitted by Art. 16(1). Even without Art. 16(4), the State could have classified “backward class of citizens” in a separate category for special treatment in the nature of reservation of posts/appointments in government services. Art. 16(4) merely puts the matter beyond any shadow of doubt in specific terms.

Art. 16(4) permits reservation in favour of any “backward classes of citizens”. Backward classes having been classified by the Constitution itself as a class deserving special treatment, and the Constitution having itself specified the nature of the special treatment, it should be presumed that no further classification or special treatment is permissible in their favour apart from or outside of Art. 16(4).

Article 16(4) is exhaustive of the provisions that can be made in favour of the backward classes in the matter of employment. No reservations can be provided outside Art. 16(4) in favour of backward classes though it may not be exhaustive of the very concept of reservation.

Reservations for other classes can be provided under Cl. 16(1) on the basis of reasonable classification and overruled the decision of Balaji v. State of Mysore[2]. If for backward classes, reservations are made both under Clause (4) as well as Cl. (1), then “the vacancies available for free competition as well as reserved categories would be correspondingly whittled down and that is not a reasonable thing to do”.

Issue 3: Whether in Article 16(4) Backward classes are similar as Socially and Educationally Backward Classes in Article 15(4) or not?

The court said that “backward class of citizens” in Art. 16(4) is not the same as the “socially and educationally backward classes” in Art. 15(4).

Backwardness under Art. 16(4) need not be social as well as educational as is the case under Art. 15(4). Art. 16(4) does not contain the qualifying words “socially and educationally” as does Art. 15(4).

“Saying so would mean and imply reading a limitation into a beneficial provision like Art. 16(4).”

Backwardness contemplated by Art. 16(4) is mainly social backwardness. A backward class cannot be identified only and exclusively with reference to economic criterion. A backward class may, however, be identified on the basis of occupation-cum-income without any reference to caste.

Issue 4: Whether the Classification made under the Backward class as Backward Class and Most Backward Class is valid or not?

It is open to the Government to notify which classes among the several designated OBCs are more backwards and apportion reserved vacancies/posts among ‘backwards’ and more ‘backwards’.

The Court has rejected the reservation of 10% posts (made by the Narasimha Rao Government) in favour of “other economically backward sections of the people who are not covered by any existing schemes of reservations.” Such a category cannot be related to Art. 16(4). If at all, it can be related to Art. 16(1). Even so, the Court could not sustain it.

Reservation of 10% vacancies among open competition candidates on the basis of income/property-holding means the exclusion of those who are above the demarcating line from those 10% seats. It is not permissible to debar a citizen from being considered for appointment to any office under the state solely on the basis of his income or property-holding. Any such bar would be inconsistent with the guarantee of equal opportunity held out by Art. 16(1).

Whether reservations are applicable for promotions or not?

The Court held that the rule of reservation would not apply to promotions. Under Art. 16(4), reservation is permissible only at the stage of entry into the State service, i.e. only at the initial stage of direct recruitment and not at the subsequent promotional stage. The Court has reached this conclusion as a result of the combined reading of Art. 16(4) and Art. 335. Reddy, J., has observed on this point:

“While it is certainly just to say that a handicap should be given to the backward class of citizens at the stage of initial appointment, it would be a serious and unacceptable inroad into the rule of equality of opportunity to say that such a handicap should be provided at every stage of promotion throughout their career.

That would mean the creation of a permanent separate category apart from the mainstream–a vertical division of the administrative apparatus… All this is bound to affect the efficiency of administration… At the initial stage of recruitment, reservation can be made in favour of a backward class of citizens but once they enter the service, the efficiency of administration demands that these members compete with others and earn promotion like all others. They are expected to operate on equal footing with others…”

Thus, the Court now overruled Rangachari[3] which had held the field for the last thirty years. To soften the adverse impact of the new ruling, the Court directed that it would be operative only prospectively and wherever reservations had been provided in promotions, it would continue for a period of five years.

The Court has also ruled that “it would not be impermissible for the state to extend concessions and relaxations to members of reserved categories in the matter of promotion without compromising the efficiency of the administration”.

Creamy layer

A very important recommendation made by the Court is that the “creamy layer”, the socially advanced members of a backward class, should be excluded from the benefit of reservation. Such exclusion would benefit the truly backward people and, thus, more appropriately serve the purpose of Art. 16(4). Reddy, J., has opined that the basis of exclusion should not merely be economic, unless, of course, “the economic advancement is so high that it necessarily means social advancement”.

There are however certain positions, the occupants of which can be treated as “socially advanced” without any further inquiry. Thus, when a member of a designated backward class becomes a member of IAS or IPS or any other All India Service, his status in society rises; he is no longer socially disadvantaged. His children get full opportunity to realise their potential. They are in no way handicapped in the race of life. His salary is also such that he is above want. It is but logical that in such a situation, his children are not given the benefit of reservation. For, giving them the benefit of reservation, other disadvantaged members of that backward class may be deprived of that benefit.

However, instead of itself laying down finally the test to identify the ‘creamy layer’, the Court has directed the Government to specify the basis of exclusion– whether on the basis of income, the extent of holding or otherwise.

This ruling aims at ensuring that the benefit of reservation reaches the proper and the weakest section of the backward class.

The Court also overruled the Devadasan[4] case which ruled out the ‘carry forward’ rule by saying that the reserved posts remaining unfilled in one year may be carried forward to the next year but subject to the overall limit that over-all reservation in any one year ought not to be more than 50%.

Concluding remarks

In Indra Sawhney, the Supreme Court has taken cognizance of many complex but very momentous questions having a bearing on the future welfare and stability of the Indian society. The Supreme Court has delivered a very thoughtful, creative and exhaustive opinion dealing with various aspects of the reservation problem.

Basically reservation in government services is anti-meritocracy because when a candidate is appointed to a reserved post, it inevitably excludes a more meritorious candidate. But reservation is now a fact of life and it will be the ruling norm for years to come. The society may find it very difficult to shed the reservation rule in the near future. But the Court’s opinion has checked the system of reservation from running riot and has also mitigated some of its evils.

Three positive aspects of the Supreme Court’s opinion may be highlighted.

1. The over-all reservation in a year is now limited to a maximum of 50%.
2. Amongst the classes granted reservation, those who have been benefited from the reservation and have thus improved their social status (called the ‘creamy layer’ by the Court), should not be allowed to benefit from reservation over and over again. This means that the benefit of the reservation should not be misappropriated by the upper crust but that the benefit of the reservation should be allowed to filter down to the lowliest so that they may benefit from reservation to improve their position.

This proposition raises the ticklish question of finding suitable socio-economic tests to identify the creamy layer among the backward classes. The Court admits that identifying the elite classes may not be an easy exercise. Accordingly, the Court has left the task of chalking out the criteria for the purpose of the government concerned. However, the Court has given one clear indication of its thinking on this issue. The Court has said that if a member of a backward family becomes a member of IAS, IPS or any other All-India Service, his social status rises; he is no longer socially disadvantaged. This means that, in effect, a family can avail of the reservation only once.

3. An element of merit has now been introduced into the scheme of reservation. This has been done in several ways, e.g.:
4. promotions are to be merit-based and are to be excluded from the reservation rule;
5. certain posts are to be excluded from the reservation rule and recruitment to such posts is to be merit-based;
6. minimum standards have to be laid down for recruitment to the reserved posts. In fact, the Court has insisted that some minimum standards must be laid down even though the same may be lower than the standards laid down for the non-reserved posts.

Important points

1. Caste can be one of the factors, but not the sole factor, to assess backwardness.
2. Reservation is a constitutionally recognised method of overcoming backwardness. This may adversely affect efficiency in administration. But, for the present, the system of reservation has to be accepted as necessary. However, It must not be kept within strict limits. The Supreme Court’s opinion in Indra Sawhney makes a signal contribution to this end.
3. The “socially” advanced members of a backward class, the “creamy layer”, has to be excluded from the backward class and the benefit of reservation under Art. 16(4) can only be given to the “class” which remains after the exclusion of the ‘creamy layer’. This would more appropriately serve the purpose and object of Art. 16(4).
4. After Indra Sawhney, two Constitutional Amendments have been incorporated in Art. 16(4) to somewhat tone down the impact of the Supreme Court pronouncement

77th Constitutional Amendment

It has been brought into effect permitting reservation in promotion to the Scheduled Castes and Scheduled Tribes. The following clause [4A] has been added to Art. 16 in 1995:

“Nothing in this Article shall prevent the State from making any provision for reservation in matters of promotion to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which in the opinion of the State are not adequately represented in the services under the State.”

By amending the Constitution, Parliament has removed the base as interpreted by the Supreme Court in Indra Sawhney that “appointment” does not include “promotion”. Art 16(4A) thus revives the interpretation put on Art. 16 in Rangachari. Rule of reservation can now apply not only to initial recruitment but also to promotions as well where the state is of the opinion that the Scheduled Castes and Scheduled Tribes are not adequately represented in promotional posts in services under the state.

It may, however, be noted that Art 16(4A) permits reservation in promotion posts only for the members of the Scheduled Castes and Scheduled Tribes but not for other Backward Classes. This means that the position taken by the Supreme Court in Indra Sawhney still prevails as regards OBCs in respect of promotion posts. No reservation can be made in promotion posts for the OBCs.

81^st Constitutional Amendment

The Constitution (Eighty-First Amendment) Act, 2000, has added Art. 16(4B) to the Constitution. Art. 16(4B) runs as follows:

“Nothing in this Article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty percent reservation on total number of vacancies of that year.”

The Amendment envisages that the unfilled reserved vacancies in a year are to be carried forward to subsequent years and that these vacancies are to be treated as distinct and separate from the current vacancies during any year. The rule of 50% reservation laid down by the Supreme Court is to be applied only to the normal vacancies and not to the posts of the backlog of reserved vacancies. This means that the unfilled reserved vacancies are to be carried forward from year to year without any limit, and are to be filled separately from the normal vacancies.

This Amendment also modifies the proposition laid down by the Supreme Court in Indra Sawhney. The Amendment does increase the employment opportunities for the S/C, S/T and OBC candidates.

103^rd Constitutional Amendment

Article 15(6) and Article 16(6) is added to the Indian Constitution by this 103 rd Amendment which provides reservations in the educational institution including the private educational institutions whether aided or unaided and reservations in the Government jobs to the economically weaker sections of people who are not belonging to SC, ST and OBC. Article 16(6) of the Indian Constitution which has been newly inserted by the amendment provided for the maximum of 10% reservation in favour of the economically weaker sections of people. This reservation is made in addition to the existing reservation scheme.

The Constitution (Amendment) Act, 2019 has given powers to provide up to 10% reservation for the economically weaker sections among the so-called higher castes in the education and government employment. This will be above and over the existing reservation scheme and would ultimately lead to an increase in the total reservation scheme to 59.50%.

This amendment made in order to overrule the judgement of Indra Sawhney v. Union of India that

1. The total reservation scheme should not exceed 50 per cent
2. Economic backwardness cannot be the sole criterion for reservations.

The 103 rd amendment has been challenged by the Petition filed by the Youth for Equality, a non- governmental organisation in the Supreme Court of India through which they challenged the amendment on the grounds that it is against the basic structure of the Constitution of India and also by this amendment the total reservation exceeds the threshold fixed by the Supreme Court in the case of Indra Sawhney vs Union of India.

The case is highly debatable and has had a considerable impact on the Indian socio-political scenario. The Supreme Court has consciously sought to explain the legality and necessity of affirmative action in its governance policy. However, even today rules laid down are flouted. The Tamil Nadu government, for instance, increased reservation granted to 69% rather than decreasing it to 50%. Moreover, a more blatant violation was noticed in the form of addition of clause 4(a) to Article 16, which validated reservations regarding promotions, clearly violating the ruling of the Supreme Court. Thus we all have to give India a more equal society based on awareness and consolidated effort.

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References:

1. P.Jain, Indian Constitution Law(8th edn, Lexis Nexis 2018)
2. Sujit Choudhry, The Oxford Handbook of the Indian Constitution(Oxford University Press UK 2016)
3. N. Shukla, Constitution Of India (12^th Ed, 2013).
4. Durga Das Basu, Introduction To The Constitution Of India, (22^nd Edition, 2015)
5. R. Khanna, Making Of Indian Constitution, 2013.
6. INDIA CONST. art. 15, amended by The Constitution (Hundred and Third Amendment) Act, 2019.
7. INDIA CONST. art. 16, amended by The Constitution Hundred and Third Amendment) Act, 2019.
8. K.S. Chalam, Caste Reservations and equality of opportunity in education, Economic and Political Weekly, pp.2333 -2339 (1

[1] 1964 SCR(4) 680(India).

[2] AIR 1963 SC 649

[3] Rangachari v. The General Manager, Southern …, AIR 1961 Mad 35

[4] Devadasan v. Union of India AIR 1964 SC 179

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