Case Study: Indra Sawhney vs Union Of India & Ors. (1992 (Suppl) 3, SCC 217)

INTRODUCTION

Nine Judges bench of Indra Sawhney v. Union of India (1992) is a case carved in stone by the Indian judiciary, both blessed and cursed, a dynamic power play of political opportunism and may witness friction forever. Sentiment for and against reservations in India. This landmark incident sparked nationwide turmoil and violent protests against the implementation of the infamous Mandal Commission report’s 27% quota for the Socially and Educationally Disadvantaged Classes (SEBCs) across the central government. The genius of Indian legal pragmatism, devised in the background, became a government agency and became public. institution. This article presents this landmark 30-year-old jurisprudence in a simplistic manner, presenting the altar of transformative constitutionalism, the subsequent landmark Supreme Court case on the reservation, and today’s Analyze the socio-political stages.

history and facts of Indra Sawhney v. Union of India

The government initiated affirmative action for the Depressed Class, Scheduled Castes (SCs), and Scheduled Tribes (STs) when India gained independence in 1947. However, there was no list of the country’s Other Backward Classes (OBC), which were less backward than the ST and SC castes.

• On January 29, 1953, India constituted the first Backward Classes Commission to address this issue. Kaka Kalelkar, the commission’s chairman, was also known as the Kalelkar Commission.
• On March 30, 1955, the commission reported to the Central Government, identifying 2399 castes as socially and educationally backward. The Central Government, on the other hand, had the notion of creating a casteless society, hence the Commission’s recommendation was rejected in 1961.
• On January 1, 1979, the Mandal Commission, also known as the Socially and Educationally Backward Classes Commission, was established. The commission was established by the Janata Dal, which was led by then-Prime Minister Morarji Desai.
• Aim: To identify socially or educationally disadvantaged groups and offer them reservations in government services and positions. Because the Janata Party’s administration fell apart, they were unable to carry out these proposals.
• For several years, there was little progress in this area until the Janata Dal regained power in 1989 and decided to adopt the report’s recommendations, reserving 27% of the seats for socially disadvantaged strata.
• Reservation and anti-reservation protests erupted across the country, with violence breaking out in some areas.
• When the government’s action was challenged in the Supreme Court via a writ petition, then-Prime Minister P V Narasimha Rao issued a new order increasing the reservation limit to 37% and encompassing economically, socially, and educationally backward classes.

Issues addressed by the case of Indra Sawhney v. Union of India 

To the layman, the only issue before the Supreme Court was whether the Mandal Commission Report was valid or not. But in reality, the Apex Court was tasked with determining various complex issues that had far-reaching implications, and the broad issues of this landmark case can be categorised in a simple manner as follows:

• Scope and extent of Article 16(1) and Article 16(4).
• Definite parameters for the term “backward class of citizens”.
• The criteria to identify the backward class of citizens.
• Nature and extent of the reservations permissible.

Contentions raised by both parties in Indra Sawhney v. Union of India

The contentions raised by both parties are presented as follows:

Contentions of the petitioners in the Indra Sawhney case

Here, the lead petitioner was advocate Indra Sawhney and the arguments were advanced by legendary counsels like Nani Palkhivala, K.K. Venugopal, Mr. P.P. Rao, and Smt. Shyamala Pappu. Their contentions can be briefly stated as follows:

1. It was argued that the reservation system is fueling the evil caste system and dividing the society into two halves, namely forward classes and backward classes. This was leading to mutual hatred, thereby causing increased conflicts in society. The goal of a welfare state would remain a distant dream until equal opportunity was provided to everyone. Granting reservations based on caste was against the constitutional guarantee of equal opportunity for all, and such a violation of the fundamental right of an individual would be disastrous for the development of society.
2. If reservation at all was to be provided, it should be provided based on the latest census and not the old census of 1931, for then only the actual quantum of backward classes (OBCs) could be properly identified. For this end, a new commission under Article 340(1) should be formed.
3. Caste cannot and should not be the main basis for granting reservations. Other important factors like education, social and economic factors should be prioritised over caste for the grant of reservation.
4. It was further argued that implementation of the Mandal Commission Report would amount to rewriting the constitution at the burial grounds of the right to equality. Moreover, the implementation of the Mandal Commission Report would greatly jeopardise the efficiency of the public administration system and would bring the same to a grinding halt.

Contentions of the respondents in the Indra Sawhney case

The main contentions of the respondents can be briefly stated as follows:

1. It was argued that reservation based on the Mandal Commission Report was a necessity to uplift the backward classes of society,  and this upliftment would protect them from social injustices and exploitations of all kinds. Moreover, the Mandal Commission Report was a continuation of the first minority commission (Kaka Kalelkar Commission) report, and the first minority commission report had also recommended positive steps to uplift the backward classes of society.
2. The contention of the petitioners that the Mandal Commission Report was based on the old census report of 1931 was argued to be baseless, for only the community-wise population figures were obtained from the 1931 census report. The identification of other backward classes had been made based on the 1961 census report.
3. It was argued that due care and a variety of thorough tests had been used by the Mandal Commission to identify the other backward classes in society that do indeed need positive support for their upliftment.
4. The contention of the petitioners that the constitution was being rewritten by the Mandal Commission was baseless as the formation of the Mandal Commission and its report was formed under Article 340 with the assent and under the authority of the President of India.

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.

Ratio Decidendi

The essential points pertaining to a reservation in Public Employment under Article 16(4) of the constitution are as follows;

• Article 16(4) is exhaustive of the provision made in favour of backward classes in a matter of public employment. The court manifested on saying the Reservation is neither a matter of policy nor a political issue and the higher courts in the country are constitutionally obliged to exercise the power of judicial review in every matter which is constitutional in nature.
• The constitutional bar under article 16(2) against the state for not discriminating on race, religion or caste is as much applicable to articles 16(4) and (1) for ensuring equality. Identification of backward class by caste is against the Constitution.
• Reservation under Article 16(4) being for any class of citizens not only Hindus but Muslims, Christians, Sikhs, Buddhists, Jains etc., The principle for identification has to be the universal application so as to extend to every community.
• Reservation being extreme of protective measure it should be confined to a minority of seats, the principle of balancing equality should not exceed 50% threshold limit of reservation.
• Reservation in promotion is constitutionally impermissible.
• Creamy Layer amongst backward classes must be excluded by fixation of proper income, property or status criteria.

Definite parameters for the term “backward class of citizens”

Laying down the boundaries of the term “backward class of citizens” was another achievement of the Hon’ble Bench in the Indra Sawhney case. This becomes more significant for two reasons, namely- it limits the identification criteria applicable in identifying the same and it differs from the phrase “socially and educationally backward classes of citizens” enshrined in the subsequently introduced Article 15 (4) [introduced vide Constitution (First) Amendment Act, 1951] as compared to the phrase “backward classes of citizens” enshrined in Article 16(4).

In this context, the majority held that from the word ‘class’ the following could not be concluded, that:

1. “class” was antithetical to “caste”, or
2. a caste could not be a class, or
3. a caste as such could never be taken as a backward class of citizens.

It was further held that the word ‘class’ in Article16(4) meant ‘social class’ and not ‘Marxist class’. The Constitutional makers were prudent enough to not use the term ‘caste’ in Section 16(4). Thus, the majority Bench decided that a caste could be defined as a social class — ‘a socially and occupationally homogeneous class’. For further references in this regard, one may see paras 80, 81, 82, 121(3)(a) and 577 of the original judgement.

The criteria to identify the backward class of citizens

The criteria used to identify the backward class of citizens can be better understood when studied under the following heads:

Class-caste nexus

The majority of the Indra Sawhney Bench was of the opinion that “class” in Section 16(4) meant social class and they justified the same by stating that the classification attempted by Section 16(4) was not on the basis of caste but on the ground that the caste is found to be a backward class and inadequately represented in the public administration system. Thus, the majority agreed with the Mandal Commission that the social backwardness was indeed because of the educational and economic backwardness of the caste and that such social backwardness was attributable to the caste. In other words, “class” under Section 16(4) could be read as “caste.”

All this led to the laying down of the two-fold test by which reservation can be provided based on caste. In other words, if the following two criteria are met, then caste can be the dominant factor in determining backward classes for the purpose of reservations as per the Mandal Commission Report. The tests are as follows:

• The test of backwardness.
• The test of inadequate representation.

The justification that was given for stating that caste can be the dominant factor in the determination of the backward class is that Article 16(4) requires identification and not classification and thus any factor that was causing social and educational backwardness of a class of citizens can be the basis for identification. So, if caste is made the dominant basis for identifying backward classes, then Article 16(4) is not disturbed. For further references in this regard paras 83, 83A, 121(3)(b), 206, 231, 366 and 412 of the original judgement may be referred to.

Economic criteria

The majority of the Bench refused to recognise economic criteria as the sole determining factor of backwardness. That is the reason the ten percent reservation of economically backward sections was rejected by the majority Bench.

The “Creamy Layer” exclusionary principle

The “Creamy Layer” exclusionary principle is another feat of the majority Bench of Indra Sawhney.  By virtue of this principle, the advanced sections of the OBCs were excluded from the benefits of the reservation. The justification that was provided in this regard is that when some members of the OBCs have advanced significantly socially (which in the context necessarily means economically and may also mean educationally), they would be misfits in the class as then the connecting thread between them and the remaining class snaps.

But as a corollary to this “Creamy Layer” exclusionary principle came the dire possibility of taking away with one hand what was given by the other. So, there was a necessity to have a drawing line to exclude the creamy layer from the benefits of reservation without jeopardising the non-creamy layers. Hence, to this end, a duty was imposed on the Centre and the states to evolve the said basis for the exclusion of the creamy layer within a time period of four months and six months, respectively, and to subsequently implement the same. To follow this order, the government formed the Ram Nandan Prasad Committee to evolve the required criteria for the exclusion of the creamy layer. It sought to exclude the following: 

“i. Persons holding constitutional posts.

ii. Class I officers of the All India Centre and Slate services.

iii. If both parents are Class II officers, children are not eligible.

iv. Those with a gross annual income of Rs. 1 lakh and above in the non-governmental sector.

v. Property holders based on the extent of land holdings.”

The dissenting opinion in the case of Indra Sawhney v. Union of India

• The dissenting opinion in the Indra Sawhney case was given by Justices Dr. T.K. Thommen, Kuldip Singh and R.M. Sahai. The significant portions of the dissenting opinions in this landmark case are laid down in a simple manner as follows:
• The minority opinion was that all kinds of reservations fall within the scope of Article 16(4) and reservations under Article 16(1) are not permitted. This went against the view of the majority who believed that Article 16(4) only contained reservations to lower classes  and that the very concept of reservations was not included in its parameters.

• Thommen Judges, Kuldip Singh Judges and R.M. Sahai pointed out that under article 16(4) ‘class’ cannot be read as ‘caste’. In other words, they refused to consider caste as a major discriminating parameter of backwardness.
• There was a fundamental disagreement between the majority and the minority regarding the determination of classes under Article 16(4). In other words, minorities believed that educational or economic backwardness led to social backwardness and that this social backwardness did not derive primarily from caste. This can be described as a classic case of the “chicken and egg syndrome”. In other words, what are the causes of social backwardness, the primary caste factor, or low education and economic factors?
• Justice Kuldeep Singh’s minority opinion was based on the argument that it is poverty that envelops classes in backwardness, and that this “responsibility” for poverty is the constant cause leading to socio-economic and educational backwardness.. In other words, he meant that economic criteria should determine backwardness.
• Judge Pandian disagreed with the majority regarding classifying OBCs into subclasses based on their degree of social backwardness and maintaining separate reservation quotas for each subclass of OBC.

 

A brief summary of the Indra Sawhney judgement

Affirmative action, which is commonly referred to in India as reservation, was an earnest attempt by the framers of the Constitution to bring socio-economic equality to Indian society, particularly, the reservation in matters of Public Employment as provided in Article 16 of the Constitution.

The framers of the Constitution were aware and conscious of the lack of homogeneity of the Indian Society, and apart from the differences in religion, culture, language, etc. there existed people who were in comparison weaker than others – economically, socially and culturally. To ameliorate the conditions of weaker and backward classes, and to make them on par with the other sections of society, the Constitution gave us a mechanism to safeguard the Backward Classes and Scheduled Castes.

As such, the provision for the reservation was adopted in the Constitution. Reservation to the socially and economically deprived people as such is not a new concept enshrined in the Indian Constitution, but, has been in existence in the pre-constitutional era as well. It is important to mention here the reservation granted by the former princely state of Mysore on the recommendations of the committee set up in the year 1918. The demand for some kind of affirmative action had also been taken up before by people like Jyotibha Phule and others, and the British did give reservation to some of these classes but their motives were always suspect. Over the years reservation has become more of a political tool than an earnest attempt to establish an egalitarian society.

A landmark in the issue of reservation was the judgement pronounced in Indra Sawhney v Union Of India & Ors by the Supreme Court. What follows is an attempt to summarise this important judgment.

In the year 1979, the then Prime Minister Shri Morarji Desai appointed the second Backward Classes Commission under Article 340 of the Constitution.

• The Commission was headed by B.P. Mandal and its mandate was to investigate the status of socially and educationally backward classes in India.
• When the Commission finally submitted its report in 1980, it recommended a reservation of 27 percent in government jobs for these castes.
• The collapse of the Janata Party government complicated matters and the recommendations of the report could not be implemented.
• There wasn’t much progress in this respect for several years until Janata Dal regained power in 1989 and decided to implement the recommendations of the report and reserved 27 percent of the seats for socially backward classes.
• This was followed by reservation and anti-reservation protests in large parts of the country some of which led to riots.
• When the government action was challenged before the Supreme Court by way of a writ petition, the then Prime Minister P V Narasimha Rao brought in another order which increased the reservation limit to 37 percent while including economically, socially and educationally backward classes as well. The five-judge bench referred the matter to a nine-judge bench.

Issues Before the Court

The court further framed issues, the adjudication of which was essential to deal with the situation at hand, some of these issues were:

• Whether caste on its own constitutes a different class and whether economic criteria could by itself be the determinant of a class.
• Whether Article 16(4) was an exception to Article 16(1) and is exhaustive in itself of the rights of reservation.
• Does Article 16(4) allow classification of ‘Backward Classes’ into Backward Classes and Most Backward Classes or permit classification among them based on economic or other considerations.

Related post-Indra Sawhney scenario cases vis-a-vis the development of the reservation jurisprudence based on Indra Sawhney

The Indra Sawhney judgement has been substantially disliked by political opportunists and a lot of water has flown down the riverbed of reservation jurisprudence since this landmark case law was pronounced in 1992. Lots of subsequent cases have taken place and constitutional amendments to counter judicial pragmatism have been brought in – all of them bearing more or less direct connections with this precedent case law. The significance of this landmark case law is etched in all these subsequent case laws and constitutional amendments. For a better understanding of the same, the significant post-Indra Sawhney cases and constitutional amendments are briefly portrayed as per their timeline in a tabular and analytical form below to the extent they are connected with the Indra Sawhney case and interconnected with each other:

Sl.No	Case Laws	Judgement
1.	R. K. Sabharwal v. State of Punjab (1995)	It was held by the Supreme Court that the reservation should be determined on the basis of the number of posts in the cadre and not on the basis of vacancies. The basic principle of post-based reservation is that the number of posts filled by reservation for any category in a cadre should be equal to the quota prescribed for that category.
The 77th Constitutional (Amendment) Act, 1995 (w.e.f. 17.06.1995)This Amendment was passed to nullify the reservation ban of the Indra Sawhney judgement on promotions of reserved category people.By this Amendment, Article 16(4A) was inserted, which gave the government constitutional sanction to give reservation in promotions to SCs/STs as long as the SCs/STs, in the opinion of the state, are insufficiently represented in the services of the state.
2.	Arijit Singh v. State of Punjab (1996)	The ‘catch-up rule’ was advocated in this judgement, thereby reiterating Union of India v. Virpal Singh Chauhan (1995).This rule became a necessity post-constitutional recognition of reservations in promotions.By the virtue of this rule, a general candidate who was promoted after SC/ST candidates because of reservation in promotions for SC/ST, will regain his seniority back if he was senior in the lower cadre.
3.	Arijit Singh v. State of Punjab (1999)	It was held that Article 16(4) and (4A) are only enabling provisions.The rule of doing away with inadequate representation under Article 16(4) must not adversely affect the efficiency in administration as envisaged under Article 335 of the Indian constitution.
4.	Indra Sawhney v. Union of India (2000)	The Supreme Court said that it was not acceptable that once a backward class would mean always a backward class.It was further said that refusal to exclude creamy layer from the reservation is a blatant violation of Articles 14, 16(1) and 16(4).The principle of efficiency of administration as envisaged under Article 335 of the Constitution was stressed upon.
The 81st Constitutional (Amendment) Act, 2000  (w.e.f. 09.06.2000)This constitutional amendment was ushered in to facilitate reservations in promotions and for this end, Article 16(4B) was inserted.Through Article 16(4B), the ‘carry-forward rule’ was introduced by virtue of which unfulfilled vacancies were carried forward to subsequent years and were treated as a separate class and this permitted the breach of the 50 percent reservation limit of the Indra Sawhney.Significantly enough, though the unfulfilled vacancies were made a separate class vide Article 16(4B) to breach the 50 percent ceiling limit, this clause also ended up giving constitutional status to the 50 percent ceiling limit prescribed in Indra Sawhney.
The 82nd Constitutional (Amendment) Act, 2000  (w.e.f. 08.09.2000)In the same year of 2000, another constitutional amendment was brought in and this time a proviso was added to Article 335 of the Constitution.By virtue of this proviso, the government became empowered to relax and lower qualifying marks and standards of evaluation for the reservation of SCs/STs in promotion notwithstanding the efficiency of administration requirements mandated by Article 335. Thus, all Supreme Court rulings like the judgement in Vinod Kumar v. Union of India (1996) stressing on non-relaxation of qualifying marks for reservation in promotion to maintain administrative efficiency was undone with this constitutional amendment.
The 85th Constitutional (Amendment) Act, 2005  (w.e.f. 08.09.2000)By this constitutional amendment, Article 16(4A) was amended and the words “consequential seniority” were inserted into it. By virtue of this rule, the reserved candidates who have enjoyed reservation in promotion retain seniority over the general category candidates in subsequent promotions.This nullified the catch-up rule propounded in Union of India v. Virpal Singh Chauhan (1995) and Arijit Singh v. State of Punjab (1996).
5.	M.Nagaraj v. Union of India (2006)	The 77th, 81st, 82nd, and 85th Constitutional Amendments were upheld in this landmark case.The theory of guided power containing three controlling factors was laid down by which the Court would strike down any excessive reservation policies that were leading to reverse discrimination and that overall administrative efficiency must be maintained.The three controlling factors envisaged by the five-judge Bench of the M. Nagaraj case to prevent excess reservation are as follows:The 50 percent ceiling limit must not be breached (quantitative factor).There must be a creamy layer exclusion for reservation in promotion (qualitative factor).The state must show by collecting due data that there is indeed backwardness and inadequate representation.
6.	Jarnail Singh v. Lachhmi Narain Gupta (2018)	It was held that states need not collect quantifiable data as per M.Nagaraj case to show backwardness as that would violate the precedence of the Indra Sawhney case but the inadequacy of representation must be shown by quantifiable data.The creamy layer exclusion principle for reservation in promotions for SC/Sts was upheld by the five-judge Bench in this case.
7.	B.K.Pavitra v. Union of India (2019)- II	The consequential seniority principle introduced by the 2018 Karnataka Reservation Act was upheld overturning B.K.Pavitra I because the State of Karnataka was successful in showing quantitatively by data that indeed SC/STs were inadequately represented and that their reservations for promotions would not prejudice administrative efficiency.It was further held that the creamy layer exclusion principle of the Jarnail Singh case was for reservation in promotions and not for consequential seniority.
8.	Dr. Jaishri Laxmanrao Patil v. The Chief Minister (2021)(The Maratha Reservation case)	It was held unanimously that there was no need to visit the ratio laid down by the landmark Indra Sawhney case.The 50 percent ceiling limit under Article 16(4) must not be breached unless there are extraordinary circumstances as envisaged in the Indra Sawhney case.

CONCLUSION

After a detailed study of the case analysis of the landmark Indra Sawhney case, it goes without saying that warnings are a very sensitive issue, and despite the good faith efforts of this article, the complexity of the same issue has not been oversimplified. cannot be elucidated. As can be seen from the discussion above, there have been many developments in the field of caste-based settlements over the past three decades. Questions have remained since the days of violent protests against the implementation of the Mandal Commission 30 years ago. Until when do I need to make a reservation?To what extent and for how long must the promotional reservation be maintained in conjunction with the original reservation by reservation?The National Commission for Backward Classes (NCBC) has now constitutional status by virtue of The Constitution (One Hundred and Second Amendment) Act, 2018.Various government agencies and NGOs are working tirelessly to improve the underclass. However, the unanswered question above seems intentionally unanswered. To this day, when our constitutional values have generally evolved for the better, there are many villages in India where people ask about your caste before interacting with you. There are still some. defeated by black and blue for their caste. Her 30 years of Indra Sawni and the story of her two Indians continues to this day. On the one hand there is legal pragmatism, on the other there is political opportunism. On the one hand there are suspected victims of reverse discrimination against reservations and on the other hand Dalits continue to be beaten. Is caste social stigma so ingrained in India that we can’t get rid of caste-based prejudices? Indeed, tomorrow’s young India could be an example where people are perceived solely on the basis of their jobs and not their caste. there is. This dream must not be turned into a utilitarian one by political opportunism.