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Case Analysis on Indra Sawhney v. Union of India and Ors

Right to Equality is one of the basic fundamental rights of the Constitution of India which is guaranteed to all the citizens of the country. Article 16 of the Constitution deals with the equality of opportunity in matters of public employment, which ensures equality of opportunity for all the citizens in matters relating to employment or appointment to any office under the State. 'Equal opportunity' is a term which has differing definitions and not have a precise meaning.

The issue of reservation has been overwhelming issue for quite a long time in India. It has seen times of differentiation in the educational and employment area not founded on open competition and merit but rather on rank, class edifying, money allied and social footing. In the present case, the constitutional validity of two office memorandum of the Central Government was challenged before the Supreme Court.

Facts:
The first backward class commission known as Kaka Kalelkar Commission was set up on January 29, 1953 by a Presidential Order under Article 340[2] of the Constitution of India. The Commission submitted its report on March 30, 1955, recommending that factors such as traditional occupation and profession, percentage of literacy and general education advancement, estimated population, and distribution throughout the State, have to be taken into account for classifying a community as a backward class. 2399 castes were listed out as socially and educationally backward on the basis of criteria evolved by it, but the Central Government rejected the report of the Commission in 1961.

On January 1, 1979, the Janata Dal, headed by the Prime Minister Moraji Desai appointed the second backward classes commission under the chairmanship of Sri B.P. Mandal, for determining the criteria for defining 'socially and educationally backward classes (SEBCs)'and to examine the desirability of providing for reservation in public services and posts in favour of such backward classes and citizens within the territory of India.

The commission submitted its report on December 31, 1980, and it relied almost exclusively on caste as the predominant criterion for reservation in Government jobs. About 3743 castes were identified as SEBCs and recommended for reservation of 27% quota for Other Backward Classes (OBC's). Discussions were held in Parliament from 1980- 1990 on the commission's recommendations, but the report was not implemented. In the meantime, due to internal disturbance within the party, the Government collapsed and couldn't implement the recommendations made by the commission and after that, the Congress Government headed by the Prime Minister Indira Gandhi came to the power at the Centre. She didn't implement the commission report till 1989.

In 1989, Janata Dal again came to the power and Prime Minister V.P. Singh issued an Office Memorandum (O.M.) dated August 13, 1990, and implemented Mandal Commission's recommendation of 27% quotas for OBCs in public service. and additional reservation of 10% vacancies for 'other economically backward sections of the people' who were not covered by any existing scheme of reservation.

This cause effect in civil disturbance throughout the country. From various places anti- reservation movement rocked the nation for three months. Several students burnt themselves and all the major universities in north India came up in flames. It resulted in a huge loss of persons and property.

A writ petition was filed from the Bar Association of the Supreme Court challenging the validity of Office Memorandum issued by the Government. The case was ultimately decided by the five judges bench. They issued a stay order till the final disposal of the case on October 1, 1990. Unfortunately, in the meanwhile, the Janata Government again collapsed due to defections and in 1991, in the Parliamentary elections, the Congress again formed the Government at centre.

In a conciliatory measure, the newly elected coalition government came out with another O.M. dated September 25, 1991, which modified the earlier O.M. and provided for an additional 10% reservation for other economic backward sections of society who were not covered by the existing schemes of reservation.

The five judge's bench referred this matter to the nine 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 and adjudicate on complex constitutional questions involving the interpretation of Article 16.

Issues:
  1. (a) Whether the 'provision' contemplated by Article 16(4) must necessarily be made by the legislative wing of the State?
    (b) If the answer to Clause (a) is in the negative, whether an executive order making such a provision is enforceable without incorporating it into a rule made under the proviso to Article 309?
     
  2. (a) Whether Clause (4) of Article 16 is an exception to Clause (1) of Article 16?
    (b) Whether Clause (4) of Article 16 is exhaustive of the special provisions that can be made in favour of 'backward class of citizens'? Whether it is exhaustive of the special provisions that can be made in favour of all sections, classes or groups?
    (c) Whether reservations can be made under Clause (1) of Article 16 or whether it permits only extending of preferences/concessions?
     
  3. (a) What does the expression 'backward class of citizens' in Article 16(4) means?
    (b) Whether backward classes can be identified on the basis and with reference to caste alone?
    (c) Whether a class, to be designated as a backward class, should be situated similarly to the Scheduled Castes/Scheduled Tribes.?
    (d) Whether the 'means' test can be applied in the course of identification of backward classes? And if the answer is yes, whether providing such a test is obligatory?
     
  4.  (a) Whether the backward classes can be identified only and exclusively with reference to economic criteria?
    (b) Whether criteria like occupation-cum-income without reference to caste altogether, can be evolved for identifying the backward classes?
  5. Whether the backward classes can be further categorized into backward and more backward categories?
     
  6. To what extent can the reservation be made?
    1. Whether the 50% rule enunciated in Balaji a binding rule or only a rule of caution or rule of prudence?
    2. Whether the 50% rule, if any, is confined to reservations made under Clause (4) of Article 16 or whether it takes in all types of reservations that can be provided under Article 16?
    3. Further while applying 50% rule, if any, whether a year should be taken as a unit or whether the total strength of the cadre should be looked to?
    4. Whether Devadasan was correctly decided?
       
  7. Whether Article 16 permits reservations being provided in the matter of promotions?
     
  8. Whether reservations are anti- meritarian? To what extent are Articles 335, 38(2) and 46 of the Constitution relevant in the matter of construing Article 16?
     
  9. Whether the extent of judicial review is restricted with 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?
     
  10. Whether the distinction made in the Memorandum between 'poorer sections' of the backward classes and others permissible under Article 16?
     
  11. Whether the reservation of 10% of the posts in favor of 'other economically backward sections of the people who are not covered by any of the existing schemes of the reservations' made by the Office Memorandum dated 25.9.1991 permissible under Article 16?

Background:
The questions regarding reservation in our Constitution has arisen before the Supreme Court multiple times.

In State of Madras v. Smt. Champakan Dorairajan[3], a Government Order (G.O.) issued by the State of Madras which apportioned seats in engineering and medical colleges on the basis of one's caste was challenged before the Supreme Court. A Special Bench of seven judges heard the matter. S.R. Das J. held that the ineligibility created by the 'communal G.O.' whereby a Brahmin, who was otherwise eligible, was rendered ineligible by virtue of his caste, was repugnant to Article 15 and 16.

Pursuant to Supreme Court's order in the case, the Parliament intervened and amended Article 15 by inserting Clause (4) by way of the Constitution (First Amendment) Act, 1951 which authorized the State to make special provisions for the advancement of 'socially and educationally backward classes of citizens'.

In M.R. Balaji and Ors. v. State of Mysore[4], the State of Mysore issued an order under Article 15(4) of the Constitution declaring all the communities except the Brahmin community as socially and educationally backward and reserving a total of 75 percent seats in Educational Institutions in favor of Socially and Educationally Backward Classes (SEBCs) and Scheduled Castes/ Scheduled Tribes.

The validity of the impugned order was questioned before the Supreme Court. The five judge Bench while striking down the said order, enunciated that Article 15(4) is a proviso or an exception to Article 15(1) and to Article 29(2). For the purpose of Article 15(4), backwardness must be both social and educational. The reservation made under Article 15(4) should be reasonable. It should not be such as to defeat or nullify the main rule of equality contained in Clause (1). The further categorization of backward classes into backward and more backward is not warranted by Article 15(4).[5]

The scope of Article 16 (4) was considered by the Supreme Court in T. Devadasan v. Union of India[6]. The Supreme Court struck down the “carry forward rule”, made by the Government to regulate the appointment of persons of backward classes in government services as unconstitutional on the ground that the power vested in the government cannot be so exercised so as to deny reasonable equality of opportunity in matters of public employment for the members of classes other than backward classes[7]. Clause (4) of Art. 16 is by way of a proviso or an exception to clause (1).

A seven judge bench of Supreme Court in State of Kerala v. N.M. Thomas[8]adopted the lone dissenting opinion of Justice Koka Subba Rao in Devdasan's case. A governmental order granted provisional promotions to members of Scheduled Castes and Scheduled Tribes who did not have the requisite qualifications to be eligible for such promotion, along with a two years' grace period for them to gain such qualifications was challenged[9].

The Court observed that Article 16(1) as a facet of right to equality under Article 14 permits reasonable classification. For making such classification, two criteria were fixed; first, basis of classification must be “backwardness” and second, the classification must have nexus to the adequacy of representation.

In Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India[10] the circulars issued by the Railway Board favoring Scheduled Castes and Scheduled Tribes promotions etc. in railway services was held valid. Carry forward rule to the extent of 64.4 percent was not considered excessive by Justice V.R. Krishnaiyer, and Justice O Chinnapa Reddy found that the limitation of 50 percent laid in Devadasan's case was only for guidance and CFR could be extended for 2 to 3 years.

In K.C. Vasanth Kumar v. State of Karnataka[11], the Supreme Court suggested that the reservations in favor of Scheduled Castes and Scheduled Tribes must be based on the “means test”. For backward classes, two tests should be conjunctively applied for identifying them for the purpose of reservation in employment and education.

One, that they should be comparable to the Scheduled Castes and Scheduled Tribes in the matter of their backwardness; and two, that they should satisfy the means test such as a State Government may lay down in the context of prevailing economic conditions.[12]

Judgement:
The 9 judges Constitution Bench of the Supreme Court by 6:3 majority gave the following judgement:
  1. Backward class of citizen in Article 16(4) can be identified on the basis of the caste system and not only on economic basis.
  2. 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).
  3. Backward classes in Article 16(4) were not similar to as socially and educationally backward in article 15(4).
  4. Creamy layer must be excluded from the backward classes.
  5. Article 16(4) permits classification of backward classes into backward and more backward classes.
  6. A backward class of citizens cannot be identified only and exclusively with reference to economic criteria.
  7. Reservation shall not exceed 50%.
  8. Reservation can be made by the Executive Order.
  9. No reservation in promotion.
  10. Permanent Statutory body to examine complains of over- inclusion / under- inclusion.
  11. Majority held that there is no need to express any opinion on the correctness or adequacy of the exercise done by the Mandal Commission.
  12. Disputes regarding new criteria can be raised only in the Supreme Court.

Analysis:
The first memorandum of the Mandal Commission took 'caste' as a dominant, rather sole criterion for determining the 'socially and educationally backward classes'. For this, the commission made a nationwide survey of the entire population and evolved eleven indicators; divided them into social, educational and economic criteria. The social indicators were given weightage of three points; educational and economic indicators, two and one point respectively, which together made twenty-two points. On the basis of these indicators, the Mandal Commission identified 3743 castes that were backward classes and were eligible for 27% reservation in public employment.

The Mandal Commission relied on highly inadequate data. The commission itself admitted that the surveys were carried out only in 0.06% of the villages. Many castes were simply included because they were mentioned in the first Backward Classes Commission report headed by Kaka Kalelkar. There was a vast disparity between the number of castes that had been recognized as backward by the Kalelkar Commission and by the State Government.

The commission relied on the 1931 and 1961 census for computing the percentage of backward classes, even when 1971 census was available, and completely ignored the demographic changes of the last fifty years and the fact that India of 1931 included Pakistan, Burma and Bangladesh. The report was statistically flawed, historically inaccurate and logically absurd but still, six out of nine judges accepted the report by completely glossing over these fatal defects. Justice Kuldip Singh strongly criticized the report by remarking: 'A collection of so- called backward castes by a clerical act based on drawing- room investigation cannot be the backward classes envisaged under Article 16(4).'

He also stated that inadequacy of representation was the pre- condition for reservation under Article 16(4). Hence, the State has to first make a determination of those communities that were under- represented in the Government services and then examine whether it was there backwardness that caused such under- representation. If the answer to both these questions was in the affirmative, only then could that community be treated as a 'backward class' eligible under the benefit under Article 16(4).

The Mandal Commission treated 'backward classes' and 'backward castes' as synonymous terms, and used 'caste' as the exclusive factor to provide reservation to individuals, excluding all other considerations including economic background. The commission ignored the basic point that it was not concerned with the genesis of social backwardness in India society but with the determination of the 'backward class' for the purpose of Article 16(4).

Justice R.M. Sahai, in his dissent opined, since the Constitution uses a wider word of 'class' and not 'caste', elementary principles of construction dictate that an interpretation leading to identification of backwardness on the basis of caste ought to be rejected. Empowering the State to make reservation under Article 16(4) on religion, race or caste would amount to destroying the purpose and object of Article 16(2) and would fall foul of the rule of anti-discrimination on the basis of caste. Identification based on caste would preclude socially, educationally and economically backward members of other communities from being regarded as backward classes.[13]

Equating caste with class creates the imminent risk of entrenching atavistic caste identities firmly within society. A system of reservations based on caste, incentivises even non-backward individuals belonging to "backward castes” (creamy layer) to exploit their caste to benefit from affirmative action of the State. Caste was never considered the desirable ground by the founding fathers of the Constitution to provide reservation as it formulates unnecessary discrimination and differentiation on a wrong basis that only disturbs the peaceful balance in the society and promotes mutual hatred.

Dr. Justice T.K. Thommen, also in his well- reasoned dissenting opinion observed that “what is sought to be identified for the purpose of reservation is not caste or religion, but poverty and backwardness caused by historical discrimination and its continuing evil effects. Caste may be a guide in this search, just as occupation or residence may be a guide, but what is sought to be identified is none but backwardness stemming from historical discrimination.

If caste is more often than not a guide in the search of backwardness and if the lowest of the low castes has for historical reasons become the indicium of the backwardness of the kind attracting reservation, caste in the absence of any better guide is a factor to be taken into account along with other factors such as poverty, illiteracy, physical and mental disabilities, and other diseases caused by malnutrition, unhygienic conditions and the like.”

The majority in their judgement held that reservation will be confined to the initial appointment alone, and will not be extended to promotion stage. They observed that “at the initial stage of recruitment, reservation can be made in favour of backward class of citizens but once they enter the service, efficiency of administration demands that these members to compete with others and earn promotion like all others. They are expected to operate on equal footing with others. Crutches cannot be provided throughout one's career. That would not be in the interest of efficiency of administration nor in the larger interest of the nation.”[14]

The majority also advised to keep certain posts outside the ken of reservation even at the stage of initial appointment, either on account of the nature of duties attached to such posts or their level in the official hierarchy as this would seriously impair the administrative efficiency that is mandated by Article 335[15]. An illustrative list of such posts was also given.

The petitioner's contention that the percentage of reservation should be confined to 30%, as the figure referred to in by Dr. B.R. Ambedkar's speech in the Constitutional Assembly was rejected by the majority. The majority relied on the decision laid down in State of Kerala v. N.M. Thomas[16] on quantum of reservation. The majority held that Article 16(4) was a facet of, and not an exception to Article 16(1).

However, the majority placed a cap of 50% on total reservation for appointments made every year and reservation cannot cross 50%. The Court overruled the Devdasan[17] case which held that reserved seats/ posts which could not be filled up in a given year can 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%. The second O.M. providing 10% reservation in favor of 'other economically backward section' was held unconstitutional.

By majority of 8:1, the Supreme Court held that the words socially and educationally backward classes cannot be read into Article 16(4), as the Constitution did not intend to restore the benefit only to those who are socially and educationally backward. The majority also held that the expression other backward classes is different, and broader in its meaning and scope when compared with the expression' socially and educationally backward classes' contained in Article 15(4). The other backward classes need not be similar in their backwardness to Scheduled Castes and Scheduled Tribes, in order to avail the benefits of reservation.

The concept of creamy layer was to be excluded from the backward classes from the benefits of reservation. Creamy layer meant those individual members found in any caste who had already made such significant strides in social, educational and economic progress as to render them undeserving of the benefits of reservation. However, it is difficult to exclude the members of such groups which are already highly socially advanced, economically and educationally sound.

Thus, they are as fit and forward as any other member of the mainstream society but were lapping up the benefits and defeating the very social objective of achieving equality within the society and not allowing such benefits to reach the truly backward sections of that class.[18] The really deserving tragically never gets the benefit of reservation or any affirmative policy of the Government. Thus, it amounts to violation of the principle of 'equality among equals'.

The judgement proves, that caste should never be made the basis of achieving a noble objective as it not only disrupts the basic principles of equality and fraternity in a society but also creates an unnecessary division between the deserving and the deserved, a barrier which is difficult to define but hard to remove.

Though reservations were neither an economic reform nor a poverty alleviation programme, but a programme of historical compensation, but the doctrine of backward classes would bring in back- door casteism and subvert the scheme for castles society by creating vested interest in the plums of backwardism.

Conclusion:
Framers of the Indian Constitution were against the evil of casteless and raunchy society. They had envisioned a unified, secular and homogenous society which would not be torn apart by the ugly shades of casteism, religious communalism, color, domicile and language.

The Indian Constitution is neither caste-blind nor caste-prejudiced, but fully alive to caste as one of the relevant criteria to be considered in the process of identification of backward classes of citizens. Reservation solely on the basis of caste will fall foul of the rule of anti-discrimination and may result in invidious reverse discrimination. The concept of equality cannot be pressed to commit another wrong.

Determination of backwardness to grant reservation to the classes must be based on certain ascertained social objectives based on common parlance of modern society and not on the mere subjective satisfaction of an individual seat of power.[19] Amongst the classes granted reservation, those who have been benefited from the reservation and have thus improved their social status (creamy layer), should not be allowed to benefit from reservation over and over again. The benefit of the reservation should not be misappropriated by the upper crust but it should be allowed to filter down to the lowliest so that they may benefit from reservation to improve their position.

End-Notes:
  1. AIR 1993 SC 477
  2. Appointment of a Commission to investigate the conditions of backward classes.
  3. [1951] S.C.R. 525.
  4. [1963] Suppl. 1 S.C.R. 439.
  5. https://www.lawctopus.com/academike/equality-opportunity-public-employment/
  6. AIR 1964 SC 179.
  7. Supra note 5.
  8. AIR 1976 SC 490.
  9. https://indconlawphil.wordpress.com/2014/02/01/reservations-equality-and-the-constitution-iii-state-of-kerala-v-n-m-thomas-and-the-transformation-of-equality/
  10. AIR 1981 SC 298.
  11. AIR 1985 SC 1495.
  12. http://www.legalserviceindia.com/legal/article-2369-case-comment-chebrolu-leela-prasad-rao-v-s-state-of-andhra-pradesh.html
  13. https://corporate.cyrilamarchandblogs.com/2017/11/casteism-much-analysis-indra-sawhney-part-ii/
  14. B.P Jeevan Reddy, J. Indra Sawhney v. Union of India, AIR 1993 SC 477, ¶107
  15. Claims of Scheduled Castes and Scheduled Tribes to services and posts
  16. Id., at 8.
  17. Id., at 6.
  18. https://www.scribd.com/document/403634311/COI-docx
  19. Ibid.
Written By: Shreyansh Chopra - BA. LLB, 2nd YEAR (Vivekananda Institute of Professional Studies, GGSIPU), 2018- 2023. 

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