Title of the Case:  Indra Sawhney Etc. vs Union of India and Others 1992

Citation: AIR 1993 SC 477, 1992 Supp 2 SCR 454
Court: Supreme Court of India

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

Parties Involved:
Appellant: Indra Sawhney Etc

Respondent: Union of India and Others.

Brief facts:

As we all know the matter of reservation has always been in limelight since the day, we dreamt of Britishers free India. This case has become a landmark due to its history.

On January 1, 1979, the Janta Party Government led by Prime Minister Shri Morarji Desai set up the Socially and Educationally Backward Classes (SEBC) Commission headed by Shri B.P. Mandal. This commission was appointed by the President of India under Article 340 of the Constitution of India. The first SEBC commission was set up in January 1953 under the chairmanship of Kaka Kalelkar. It presented its report on March 30, 1955, listing down 2399 ranks as socially and educationally in deprived class on rules made by the Central Government. [1]

The Mandal commission submitted its report in December 1980 in this report the commission identified about 3743 castes as socially & educationally backward classes and recommended for reservation of 27% in Government jobs. Before the suggestions of the Mandal commission could be implemented, the Janta Party government collapsed.[2]

In 1980, the Congress government led by Smt. Indira Gandhi came into power. She didn’t implement any recommendation made by the Mandal commission. After the unfortunate demise of her, Shri Rajiv Gandhi took over and he also didn’t implement the recommendations until 1989. In 1989, Janta Dal again won the election and they decided to implement the long-pending Mandal commission recommendations.[3] After that then Prime Minister V.P, Singh issued an office of a memorandum on August 13, 1990, and reserved 27% seats for the Socially & Backward classes. This caused a civil disturbance in the country. Anti reservation moment was started from various parts of the country. Indian Youth were in the streets to protest against this decision.

A writ appeal was documented by the Bar Association of the Supreme Court, Challenging the legitimacy of the Office of Memorandum given by the public authority. Finally, the case was decided by the 5 Judges bench. Later, on October 1, 1990, they issued a stay order till the final disposal of the matter.  Meanwhile, the VP Singh government again fell and through a General Election Congress government drove by P.V. Narsimha Rao again came into power. He chose to give another Office of Memorandum by rolling out 2 improvements

i) by presenting the financial rule in allowing reservation inside 27% in Govt. Work and

ii)Reserved another 10% of opportunities socially and instructively in reverse classes. That is complete 37% (27% 10%).

The 5 judge’s bench referred this matter to the 9 judges’ bench who issued a notice to the government to show cause the criteria upon which the government has proposed to make 27% reservation for them.

Issues:[4]

1. Whether Article 16(4) is an exception for Article 16(1) and would be thorough of the privilege to reservation of posts in administrations under the State?
2. The phrase “backward class” in art 16(4) of the Indian Constitution shall contain what contents. Moreover, can caste itself could make a class or economical criterion itself shall identify a class under art 16(4). Whether or not “Backward classes” would also include “weaker sections” as mentioned in Art 16(4) and Art 46?
3. What if financial or economical criterion by itself could not define “backward class” under Art 16(4)? Furthermore, is reserving posts in services under any State, based solely on economical criterion could be covered by Art 16(1) of the Indian Constitution?
4. Could the State extent the reservation of posts in State services under both Art16(1) and Art 16(4)? Can exceeding 50% of the State govt posts in a cadre or services or exceeding 50% of appointments in a cadre in a year. Can a State provide such extent of reservation and determine without knowing the inadequacy of representation of each class in various categories and levels of services under the State?
5. Can Art 16(4) of the Indian Constitution allow the classification into backward classes and most backward classes or even permit class of “backward classes”? Is the consideration shall be based on economic or other considerations?
6. If making “any provision” under Art 16(4) “by the State” necessarily has to define reservation and does it have to be by law made by the parliament or state? Or would such provisions be made by executive order?
7. Can the extent of judicial review be only restricted in regard to the identification of the “backward class”? Such percentage of reservations made for those classes, to demonstrably contrary to identification or show unreasonable percentage?
8. The appointments or posts made by reservation “in favour of backward class” can be restricted to the starting appointment to the designation or it would extend to promotions?
9. Considering the matter, should it be sent back to the previous Five-Judge Bench?

Petitioner’s Argument:[5]

• It was argued by the petitioners that the recommendations made by the Mandal Commission are indirectly provoking the evil idea of the Caste System which is nothing but considered as against the idea of secularism. Hence, the Oms provided on the strength of the Report which is completely based on the caste criterion and infringement of Article 16(2).
• It was also argued that the present Report is based on the 1931 census and can never serve as a correct basis for identifying the ‘backward class’, they insisted on the formation of a fresh Commission under Article 340(1) of the Constitution to make a fresh wide survey throughout the country. They also said that if the recommendations of the Commission are implemented, it would result in the sub-standard replacing the standard and the reins of power passing from meritocracy to mediocrity.
• The petitioners emphasized the ‘Equal protection’ clause which prohibits the State from making unreasonable discrimination in providing preferences and facilities for any section of its people. They also emphasized the effect of such recommendations on the meritorious candidates appearing for public employment, they said it would demoralize such candidates.

Respondent’s Argument:

• The Respondents argued that if the above argument is accepted then it will negate the just claim of the SEBCs to avail the benefit of Articles 16(4) which is a fundamental right. They also argued that the petitioner’s argument regarding this report is based on the 1931 census is totally false and baseless because a thorough study of the report suggest that the 1931 census does not have any connection with the identification of OBCs. They further said that the classes have been identified on the basis of the countrywide socio-educational field survey and the census report of 1961 particularly for the identification of aboriginal, hill, indigenous, primitive and forest tribes. [6]
• It was also argued about the reference of the 1931 census. They said that this position is made clear by the Commission itself in Chapter XII of its Report. However Systematic caste-wise bifurcation of the population was introduced by the Registrar General of India in 1881 and discontinued in 1931. They further said that the commission only referred to the 1931 census report to gain an idea of community-wise population figures from the census records of 1931 and, then grouped them into broad caste clusters and religious groups.
• The Respondents emphasized that the Report wanted to reserve 52% of all the posts in the Central Government for OBCs as per their ratio in the population. However, it is recommended reservation of 27% in deference to legal limitations. Still, the population of OBCs is near twice the figure.
• The Respondents also pointed out the Petitioner’s argument regarding sub-standards replacing standards. They termed this argument baseless and based upon false assumptions because the very object of Article 16(4) is to ensure equality of opportunity in matters of public employment and give adequate representation to the left outclass of the society.

Judgment:

The 9 Judge Bench of the Supreme Court of India conveyed the landmark judgment on the issue of reservation to the OBCs. The Hon’ble Supreme Court of India had altogether inspected each conceivable inquiry. The 6:3 ratio decided the following:[7]

1. Backward class civilians as referenced in Article 16(4) can be recognized based on the caste system and not just on an economical basis.
2. Art 16(4) isn’t an exemption of art16(1) of the Indian Constitution. It just cuts out the classification of society. Reservation can be made under article 16(1) for any part other than those referenced in article 16(4).
3. Backward classes referenced in article 16(4) were not as socially and educationally deprived as referenced in article 15(4).
4. Article 16(4) grants an order of in deprived classes into in backward and all the more in deprived classes.
5. Those who have a place in the Creamy layer should be not be included in the deprived classes and are not qualified for benefits provided for the deprived classes.
6. The Reservation of the classes of society will not surpass half.
7. Moreover, there will be no reservation for promotions.
8. The process for reservation can be made by Executive Order.
9. There will be a legal body to take care of complaints and concerns.
10. A majority held that there is no compelling reason to state any opinion on the accuracy or adequacy of the activity done by the Mandal Commission.

[1] Metanoia-Episode 2: Reservation, Podcast on Spotify https://open.spotify.com/show/4qIIANzhisxbdSwDbbYjvK?si=jA39LgpHRISWJgnRAYqzpg

[2] Shashank Tyagi, Case Summary on Indira Sawhney & ors vs UOI, Legal Services India (May 21, 2021, 13:07), http://www.legalservicesindia.com/article/1457/Indra-Sawhney-&-Others-Vs.Union-of-India.html

[3] Pradhanmantri-Episode 18: Mandal Commission on Youtube https://youtu.be/lGZPyqOenAc

[4] Shashank Tyagi, Case Summary on Indira Sawhney & ors vs UOI, , Legal Services India (May 21, 2021, 13:07), http://www.legalservicesindia.com/article/1457/Indra-Sawhney-&-Others-Vs.Union-of-India.html

[5] Metanoia-Episode 2: Reservation, Podcast on Spotify https://open.spotify.com/show/4qIIANzhisxbdSwDbbYjvK?si=jA39LgpHRISWJgnRAYqzpg

[6] Aditya Mehta, Casteism Much? – An Analysis of Indra Sawhney: Part I, Cyril Amarchand Mangaldas Blog, (24 May, 2021, 10:37AM), https://corporate.cyrilamarchandblogs.com/2017/11/casteism-much-analysis-indra-sawhney-part/

[7] Indira Sahwney & Ors vs UOI, Indian Kanoon, (24 May 2021, 11:24AM) https://indiankanoon.org/doc/1363234/