Author Name:   shashanktyagi

When our own Constitution was framed the framer of the constitution made a special provision with intention to provide equal opportunity in the public employment to all the citizens within India...

Case Presentation On
Indra Sawhney & Others Vs.Union Of India

When our own Constitution was framed the framer of the constitution made a special provision with intention to provide equal opportunity in the public employment to all the citizens within INDIA. The same was inserted in the Art. 16 of the Indian Constitution. But considering the backward classes a special provision was inserted in the same Art. In clause 4 i.e., in Art. 16(4). This section empowers the State to make a special provision for those backward classes who in the opinion of the State are not adequately represented in the service under the State.

But in these connection two questions reasonable explores our mind that:
i. Who will be designated as a backward class people for the purpose of this section? &
ii. Who will be treated to be inadequate in the employment under State?

Because there were no suitable answers of these two questions given under the provision of the Constitution. By taking this advantage the ruling party who were in the power at Centre utilised this provisions for their own political benefit. But this case (which is also famously known as MONDAL COMMISSION’S case) plays an important role to find out the answer of these two questions. So it is very important for us to know the fact, issue, findings & judgement of this case which are going to be discussed on subsequently.

2) Facts Of This Case :-
Ø The facts of the cases were as follows. On January 1, 1979 the JANATA Government headed by the Prime Minister Sri MORARJI DESAI appointed the second Backward Classes (By a Presidential Order under Article 340 of the Constitution of India, the first Backward Class Commission known as KAKA KALLELKAR's Commission was set up on January 29, 1953 and it submitted its report on March 30, ,1955 listing out 2399 castes as socially and educationally backward on the basis of criteria evolved by it, but the Central Government did not accept that report and shelved it in the cold storage) Commission under Article 340 of the Constitution under the chairmanship of Sri B.P. Mandal (MP) to investigate the Socially & Educationally Backward Classes within the territory of INDIA & recommended steps to be taken for their advancement including the necessary provision which are to be required to be made for them for the upliftment of their status by giving equal opportunity in the public employment.

Ø The commission submitted its report on December, 1980 in this report the commission identified about 3743 castes as socially & educationally backward classes& recommended for reservation of 27% in Government jobs.

Ø In the meantime due to internal disturbance within the party the GOVT. collapsed & by thus it couldn’t implement the recommendations made by MANDAL COMMISSION& after that the CONGRESS GOVT. headed by the Prime Minister Smt. INDIRA GANDHI came to the power at centre. But shedidin’t implement the MANDAL COMMISIONS report till 1989. In 1989 the CONGRESS GOVT. toppled due to the defeat of the general election.

Ø After winning that election JANATA DAL again came to the power & decided to implement the report of the commission. After that then Prime Minister V.P.SINGH issued office of memorandum on AUGUST 13, 1990& reserved 27% seats for the Socially & Backward classes.

Ø This cause effect in civil disturbance throughout the INDIA. From various places anti Reservation movement rocked the nation for 3 months. It results a huge loss of persons & property.

Ø A writ petition was filed from the BAR ASSOCIATION OF THE SUPREME COURT.Challenging the validity of Office of Memorandum issued by the GOVT.

Ø The case was ultimately decided by the 5 Judges bench. They issued a stay order till the final disposal of the case on October 1, 1990. Unfortunatelyin the meanwhile JANATAGOVT. again collapsed due to defections & in 1991 by the Parliamentary elections & the Congress again formed the GOVT. at centre.

Ø To tackle the situation & also for the political gain then Prime Minister P.V. NARSHIMA RAO issued another office of memorandum by making 2 changes i) by introducing the economic criterion in granting reservation within 27% in Govt. Job. & ii) Reserved another 10% of vacancies for the socially & educationally backward classes. That is total 37% (27% 10%)

Ø The 5judge’s bench referred this matter to the 9 judges bench who issued a notice to the Govt. to show cause the criteria upon which the GOVT. has proposed to make 27% reservation for them. But in spite of taking several adjournments the GOVT. of INDIA has failed to explain the criteria mentioned in the office of memorandum.

3) Issue Framed By The Court:-
In this case the court framed the following issues:-
1. Whether Article 16(4) is an exception to Article 16(1) and would be exhaustive of the right to reservation of posts in services under the State?

2. What would be the content of the phrase "Backward Class" in Article 16(4) of the Constitution and whether caste by itself could constitute a class and whether economic criterion by itself could identify a class for Article 16(4) and whether "Backward Classes" in Article 16(4) would include the "weaker sections" mentioned in Article 46 as well?

3. If economic criterion by itself could not constitute a Backward Class under Article 16(4), whether reservation of posts in services under the State, based exclusively on economic criterion would be covered by Article 16(1) of the Constitution?

4. Can the extent of reservation of posts in the services under the State under Article 16(4) or, if permitted under Article 16(1) and 16(4) together, exceed 50 % of the posts in a cadre or Service under the State or exceed 50% of appointments in a cadre or service in any particular year and can such extent of reservation be determined without determining the inadequacy of representation of each class in the different categories and grades of Services under the State?

5. Does Article 16(4) permit the classification of 'Backward Classes' into Backward Classes and Most Backward Classes or permit classification among them based on economic or other considerations?

6. Would making "any provision" under Article 16(4) for reservation "by the State" necessarily have to be by law made by the legislatures of the State or by law made by Parliament? Or could such provisions be made by an executive order?

7. Will the extent of judicial review be limited or restricted in regard to the identification of Backward Classes and the percentage of reservations made for such classes, to a demonstrably perverse identification or a demonstrably unreasonable percentage?

8. Would reservation of appointments or posts "in favour of any Backward Class" be restricted to the initial appointment to the post or would it extend to promotions as well?

9. Whether the matter should be sent back to the Five-Judge Bench?

4) Argument Made On Behalf Of The Petitioner :-
On behalf of the Petitioner following arguments were made by learned SENIORCOUNCEL, Mr. N.A. Palkhiwala, Mr. K.K. Venugopal, Smt. Shyamala Pappu and Mr. P.P. Rao assisted by a battery of layers appearing for the petitioners:-

I. Firstly, the recommendations made by the MONDAL COMMISSION are indirectly provoking the evil idea of CASTE SYSTEM which is nothing but considered as against the idea of the secularism. According to themwould be dangerous and disastrous for the rapid development of the Indian society as a whole marching towards the goal of the welfare state. They also contended that the identification of SEBCs by the Commission on the basis of caste system is bizarre and barren of force, much less exposing hollowness. Therefore, the OMs issued on the strength of the Mandal Report which is solely based on the caste criterion arc violative of Article 16(2).

II. Secondly, the report was not solely based upon the caste criteria but three other factors are also considered i.e. social, educational and economic backwardness but giving more importance -rightly too - to the social backwardness as "having a direct consequence of caste status.

III. Thirdly, the present Report based on 1931 census can never serve a correct basis for identifying the 'backward class', that therefore, a fresh Commission under Article 340(1) of the Constitution is required to be appointed to make a fresh wide survey throughout the length and breadth of the country and submit a new list of OBCs (other backward classes) on the basis of the present day Census.

IV. Fourthly, 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.

V. Fifthly, it will be in demoralization and discontent and that it would revitalize caste system, and cleave the nation into two - forward and backward - and open up new vistas for internecine conflict and fissiparous forces, and make backwardness a vested interest.

VI. Sixthly, the argument that the implementation of the recommendations of the Commission would result in demoralisation of the meritorious candidates appearing for the public employment.

VII. Seventhly, the 'Equal protection' clause prohibits the State from making unreasonable discrimination in providing preferences and facilities for any section of its people.

VIII. Eighthly, the arguments criticising the Report is that the said Report virtually rewrites the Constitution and in effect buries 50 fathoms deep the ideal of equality and that if the recommendations are given effect to and implemented, the efficiency of administration will come to a grinding halt.

5) Arguments Made On Behalf Of The Respondent I.E., Govt. Of India :-
I. Firstly, if the above argument is accepted it will result in negation of the just claim of the SEBCs to avail the benefit of Articles 16(4) which is a fundamental right.

II. Secondly, that the attack which was trough from the petitioner side that this report was totally based upon the census report made on 1931 report is completely false & baseless because A perusal of the Report itself indicates that the 1931 census does not have even a remote connection with the identification of OBCs. But on the other hand, they are identified only on the basis of the country-wide socio-educational field survey and the census report of 1961 particularly for the identification of primitive tribes, aboriginal tribes, hill tribes, forest tribes and indigenous tribes.

III. Thirdly, the Commission cannot be said to have ignored this factual position and found fault with for relying on 1931 census. In fact, this position is made clear by the Commission itself in Chapter XII of its Report. However Systematic caste-wise enumeration of population was introduced by the Registrar General of India in 1881 and discontinued in 1931. In view of this, figures of caste-wise population beyond 1931 are not available.

IV. Fourthly, the commission only went through the census report made on 1931 with intention 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. These collectivises were subsequently aggregated under five major heads i.e. (i) Scheduled Castes and Scheduled Tribes; (ii) Non-Hindu communities, Religious Groups, etc.; (iii) Forward Hindu Castes and Communities; (iv) Backward Hindu Castes and Communities; and (v) Backward Non-Hindu Communities. In this connection the RESPONDENT cited the example of “BALARAM CASE” where the Court considered the census report made on 1931.

V. Fifthly, the Commission only after deeply considering the social, educational and economic backwardness of various classes of citizens of our country in the light of the various propositions and tests laid down by this Court had submitted its Report enumerating various classes of persons who are to be treated as OBCs.The recommendations made in the present Report after a long lull since the submission of the Report by the First Backward Classes Commission, are supportive of affirmative action programmes holding the members of the historically disadvantaged groups for centuries to catch up with the standards of competition set up by a well advanced society.

VI. As a matter of fact, the Report wanted to reserve 52% of all the posts in the Central Government for OBCs commensurate with their ratio in the population. However, in deference to legal limitation it has recommended a reservation of 27% only even though the population of OBCs is almost twice this figure.

VII. Pointing out one attack made on behalf of the PETITIONERthat if the commission’s report is implemented then it result in the sub-standard replacing the standard& also demoralisation of the meritorious candidates appearing for the public employment is totally false & base upon false assumption because the very object of Article 16(4) is to ensure equality of opportunity in matters of public employment and give adequate representation to those who have been placed in a very discontent position from time immemorial on account of sociological reasons. Here the Commission through its report recommended the GOVT. to fulfil this target only & nothing else.

VIII. Though 'equal protection' clause prohibits the State from making unreasonable discrimination in providing preferences and facilities for any section of its people, nonetheless it requires the State to afford substantially equal opportunities to those, placed unequally.

IX. There is no question of rewriting the Constitution, because the Commission has acted only under the authority of the notification issued by the President.

6) Findings Of The Court :-
In connection of this case following findings were made by the Court:-
I. Clause (4) of Article 16 is not an exception to Clause (1) thereof. It only carves out a section of the society, viz., the backward class of citizens for whom the reservations in services may be kept. The said clause is exhaustive of the reservations of posts in the services so far as the backward class of citizens is concerned. It is not exhaustive of all the reservations in the services that may be kept. The reservations of posts in the services for the other sections of the society can be kept under Clause (1) of that Article.

II. The backward class of citizens referred to in Article 16(4) is the socially backward class of citizens whose educational and economic backwardness is on account of their social backwardness. A caste by itself may constitute a class. However, in order to constitute a backward class the caste concerned must be socially backward and its educational and economic backwardness must be on account of its social backwardness.The economic criterion by itself cannot identify a class as backward unless the economic backwardness of the class is on account of its social backwardness. The weaker sections mentioned in Article 46 are a genus of which backward class of citizens mentioned in Article 16(4) constitute a species. Article 16(4) refers to backward classes which are a part of the weaker sections of the society and it is only for the backward classes who are not adequately represented in the services, and not for all the weaker sections that the reservations in services are provided under Article 16(4).

III. No reservations of posts can be kept in services under the State based exclusively on economic criterion either under Article 16(4) or under Article 16(1).

IV. Ordinarily, the reservations kept both under Article 16(1) and 16(4) together should not exceed 50 per cent of the appointments in a grade, cadre or service in any particular year. It is only for extra-ordinary reasons that this percentage may be exceeded. However, every excess over 50 per cent will have to be justified on valid grounds which grounds will have to be specifically made out.The adequacy of representation is not to be determined merely on the basis of the overall numerical strength of the backward classes in the services. For determining the adequacy, their representation at different levels of administration and in different grades has to be taken into consideration. It is the effective voice in the administration and not the total number which determines the adequacy of representation.

V. Article 16(4) permits classification of backward classes into backward and more or most backward classes. However, this classification is permitted only on the basis of the degrees of social backwardness and not on the basis of the economic consideration alone.If backward classes are classified into backward and more or most backward classes, separate quotas of reservations will have to be kept for each of such classes. In the absence of such separate quotas, the reservations will be illegal. It is not permissible to classify backward classes or a backward class social group into an advanced section and a backward section either on economic or any other consideration. The test of advancement lies in the capacity to compete with the forward classes. If the advanced section in a backward class is so advanced as to be able to compete with the forward classes, the advanced section from the backward class no longer belongs to the backward class and should cease to be considered so and denied the benefit of reservations under Article 16(4).

VI. The provisions for reservations in the services under Article 16(4) can be made by an executive order.

VII. There is no special law of judicial review when the reservations under Article 16(4) are under scrutiny. The judicial review will be available only in the cases of demonstrably perverse identification of the backward classes and in the cases of unreasonable percentage of reservations made for them.

VIII. It is not necessary to answer the question since it does not arise in the present case. However, if it has to be answered, the answer is as follows:The reservations in the promotions in the services are unconstitutional as they are inconsistent with the maintenance of efficiency of administration.However, the backward classes may be provided with relaxations, exemptions, concessions and facilities etc. to enable them to compete for the promotional posts with others wherever the promotions are based on selection or merit-cum-seniority basis.Further, the committee or body entrusted with the task of selection must be representative and manned by suitable persons including those from the backward classes to make an impartial assessment of the merits.To ensure adequate representation of the backward classes which means representation at all levels and in all grades in the service, the rules of recruitment must ensure that there is direct recruitment at all levels and in all grades in the services.

IX. The matter should not be referred back to the Five-Judge Bench since almost all the relevant questions have been answered by this Bench. The grievance about the excessive and about the wrong inclusion and exclusion of social groups in and from the list of backward classes can be examined by a new Commission which may be set up for the purpose.

7) Observation Of The Court :-
Following observations were made by the court in connection of this case:-
I. The court particularly in this case observed that after the issue of Office of Memorandum (O.M.) by the GOVT. of INDIA regarding implementation of the recommendation made in the MONDAL COMMISSION report a wide spread violence occurred throughout the INDIA by which large number of public & properties were get effected by it. So Court considering the social scenario appealed to the people to keep peace & maintain social order.

II. Court also observed & also admitted that this types of problem which mainly occurred from the caste system & which we are now facing is nothing but a consequence of our own fault as we created in our ancient day & till we have been following. It is really a peril for our society. But we being judges can’t overlook it because otherwise basic object of the Constitution will be defeated. Our duty is to interprete this provision i.e., Art. 16(4) in such a way so that the true object of the framer of the constitution can easily be find out.

III. Court also pointed out that the Part-III of the Constitution (mainly deals with FUNDAMENTAL RIGHTS)&- Part III of the Constitution (mainly deals with FUNDAMENTAL DUTIES)are the core sections the constitution which was enacted for removal of historic injustice and inequalities either inherited or artificially created in the INDIAN society.

IV. The court also observed the idiotic practise our society where the moment a child comes out of the mother's womb in a Hindu family and takes its first breath and even before its umbilical cord is cut off, the innocent child is branded, stigmatized and put in a separate slot according to the caste of its parents despite the fact that the birth of the child in the particular slot is not by choice but by chance.

V. The concept of inequality is unknown in the kingdom of God who creates all beings equal, but some people have created the artificial inequality in the name of castism with selfish motive and vested interest. In this respect the court also pointed out the view of SWAMI VIVEKANANDA where he one of his letter referred “Caste or no caste, creed or no creed, or class, or caste, or nation, or institution which bars the power of free thought and action of an individual - even so long as that power does not injure others - is devilish and must go down”.

8) Judgement:-
The 9 judges Constitution Bench of the Supreme Court by 6-3 majority gave the following judgements:-

I. Backward class of citizen in Article 16(4) can be identified on the basis of the caste system & not only on economic basis.
II. Article 16(4) is not an exception of Article 16(1). It is an instance of the classification. Reservation can be made under article 16(1).
III. Backward classes in Article 16(4) were not similar to as socially & educationally backward in article 15(4).
IV. Creamy layer must be excluded from the backward classes.
V. Article 16(4) permits classification of backward classes into backward & more backward classes.
VI. A backward class of citizens cannot be identified only & exclusively with reference to economic criteria.
VII. Reservation shall not exceed 50%.
VIII. Reservation can be made by the ‘EXECUTIVE ORDER’.
IX. No reservation in promotion.
X. Permanent Statutory body to examine complains of over – inclusion / under – inclusion.
XI. Majority held that there is no need to express any opinion on the correctness or adequacy of the exercise done by the MONDAL COMMISSION.
XII. Disputes regarding new criteria can be raised only in the Supreme Court.

9) Conclusion :-
The decision of this case no doubtly laid down a workable & reasonable solution to the reservation problem. But inspite of that the politicians are still trying the dilute the effect of the decision of this case with intention to political gain. Subsequently three Constitutional amendments were made.

1. The Constitution 77th Amendment in 1995:- by this amendment a new clause were inserted under Article 16 & i.e., Article 16(4 - A). Which empowers the State to make to make a provision for reservation in matter of promotion to any class or classes of posts in the service of the State in favour of the SC & ST?

2. The Constitution 77thAmendment in 2000:- by this amendment a new clause (4 – B) was inserted under Article 16. By this amendment it was fixed that reservation can exceed above 50% reservation for SC, ST & BC if backlog vacancies which could not be filled up in the previous years due to the non-availability of eligible candidates.

3. The Constitution 77th Amendment in 2001:- by this amendment the word “in the matter of promotion to any classes” were substituted by the words “in the matter of promotion with consequential seniority, to any classes”

These types of acts on behalf of the GOVT. clearly indicates that with intention to gain huge vote banks by curtailing its effect the ruling party manipulately by passed the decision made in this case.

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*** Prepared By Shashank Tyagi, LL.M., UGC-NET (2011-2013), Gujarat National Law University

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