Case Name: INDIRA SAWHNEY V/S UNION OF INDIA
Citation: AIR 1993 SC 477
· 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.
· Indira sawhney case was decided by nine-judge bench of the supreme court in 1992.
· This case is famous in current scenario also for laying down several landmark propositions such as 50% seats for reservations in certain types of jobs or posts and in the exclusion of creamy layer.
· 'Means test' signifies imposition of an income limit, for the purpose of excluding persons (from the backward class) whose income is 25% above average is the limit. This submission is very often referred to as "the creamy layer".
FACTS OF THE CASE
On January 1, 1979, the Government headed by the PM Sri Morarji Desai designated the second Backward Classes commission under article 340 of the Constitution to research the SEBCs inside the region of India and prescribe the action to be taken for their progressions.
Indira Sawhney was the appellant who filed the case against the union of India because of the system of reservation. The appellant filed the case for the reservation of seats in government quota of SC, ST and OBC's. He appealed that Article 16 (4) is the violation of Article 16(1). He raised his hands for the reservation of seats .
The commission presents its report in December 1980 and recognized 3743 stations as socially and instructively in backward classes and prescribe a booking for their 27 % Government employments for them.
Due to internal disturbances in party itself, Janta Government fallen and Congress party came in to the power under PM Indira Gandhi came to control at the middle. The Congress government didn't execute the commission report till 1989.
In 1989 the Congress party collapsed and Janta government again came to control and issued Office Memoranda to execute the commission report as it guaranteed to the electorate. In the wake of this the country came into unrest and a rough hostile to reservation development shook the country for three months bringing about tremendous loss of people and property.
On 1 October 1990 a writ request of for the benefit of the Supreme Court Bar Association was filled testing the legitimacy of the O.M. furthermore, to stay its task. The five-judge seat of the court remained the task of OM till the last transfer of the case.
Unfortunately, the Janta Government again fallen because of disobence and Congress party again came to control at the inside headed by P.V. Narasimha Rao issued another O.M. on September 25, 1991 by presenting the financial standard in conceding reservation by offering inclination to the poorer areas of SEBCs in the 27 % quantity and saved another 10% of opportunities for different SEBCs monetarily in backward segments of higher rank. 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 Commission under Article 340 of the Constitution under the chairmanship of Sri B.P. Mandal to investigate the Socially & Educationally Backward Classes within the territory of India.
But in the meanwhile, due to internal disturbances the government collapsed and imposed the provisions given by mandal commission and the Congress party came to rule after that.
ISSUE FRAMED BY COURT
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?
ARGUMENT MADE ON BEHALF OF PETITIONER
The arguments were made by learner senior councel Mr N.A. Palkhiwala, Mr K.K venugopal, Smt. Shyamala pappu.
· 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 them would 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 violative of Article 16(2) said by N.A Palkhiwala.
· Sri K.K.Venugopal appearing for the petitioner. According to him, backwardness may be social and educational and may also be economic. The authority appointed to identify backward classes must first settle the criteria or the indicators for determining backward classes and then it must apply the said criteria to each and every group in the country. He relied upon the provision in Clause (2) of Article 38 and Article 46 to say that the objective is to minimize the inequalities in income not only among individuals but also among groups of persons and to help the weaker sections of the society.
· . Smt. Shyamala Pappu also took the stand that caste can never be the basis for identification. According to her, survey to identify backward classes should be from individual to individual.
· 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.
· 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. Article 15(4) speaks about socially and educationally backward classes of citizens." However, it is now settled that the expression "backward class of citizens" in Article 16(4) means the same thing as the expression "any socially and educationally backward class of citizens" in Article 15(4). In order to qualify for being called a 'backward class citizens' he must be a member of a socially and educationally backward class. It is social and educational backwardness of a class which is material for the purposes of both Article 15(4) and 16(4).
· 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.
· 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.
· Sixthly, the argument that the implementation of the recommendations of the Commission would result in demoralization of the meritorious candidates appearing for the public employment.
· Seventhly, the 'Equal protection' clause prohibits the State from making unreasonable discrimination in providing preferences and facilities for any section of its people.
· The petitioner also argued that only 27% reservations should be made in seats for backward classes but the respondent was on the que of making 50% reservations.
ARGUMENTS MADE ON BEHALF OF THE RESPONDENT
· 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.
· 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.
· 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.
· 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 collectivizes 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.
· 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.
· Sixthly, 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.
· Pointing out one attack made on behalf of the Petitioner that if the commission’s report is implemented then it result in the sub-standard replacing the standard& also demoralization 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.
JUDGEMENT GIVEN BY COURT
· Five judge bench of supreme court has given the issue to a nine judge constitution bench of supreme court in perspective of the significance of the issue to settle the lawful position identifying with reservation.
· Decisions given by the 6:3 majority held that the decision of the union Government to hold 27% reservations in government jobs, services and in other occupations for SEBC's gave them creamy later among them disposed with its constitutional validity.
THE NINE JUDGES CONSTITUTION BENCH OF THE SUPREME COURT by 6:3 majority gave the following judgements:
· Backward classes of citizen in Article 16(4) can be identified on the basis of the caste system and notify only on economic basis.
· Article 16(4) is not an exception of Article 16(1). It is an part of Article 16 (1). Reservation can be made under article 16(1).
· Backward classes in Article 16(4) were not similar to as socially and educationally backward in article 15(4).
· Creamy layer must be excluded from the backward classes.
· Article 16(4) permits classification of backward classes into backward and more backward classes.
· A backward class of citizens cannot be identified only and exclusively with reference to economic criteria.
· Reservation shall not exceed 50% . The limit was set by the supreme court and no reservation in promotion. Reservation can be made by executive order only.
· Permanent statutory body was also established to examine the complains of over inclusion/under inclusion.
· Majority said that there is no need to express any opinion on the correctness or adequacy of the exercise done by the Mandal commission and the disputes regarding new criteria can be raised only in the supreme court.
The decision of this case no doubt, laid down a reasonable solution to the reservation problem. But in spite of that the politicians were still trying to interrupt in the case with the intention to political gain.
· The constitution 77th Amendment in 1995: by this amendment a new clause was inserted under article 16 and that is article 16 (4-A). Which empowers the state to make a provision for reservation in matter of the state in favor of SC and ST.
· The constitution 81st Amendment 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 and OBC .
· The Constitution 85th amendment in 2001: by this amendment the word "in the matter of promotion to any classes" were substituted by the word " in the matter of promotion with consequential seniority, to any classes". These types of acts on behalf of the government clearly indicates that with the intention to gain huge political advantages by curtailing it's effect the ruling party manipulately bypassed the decision made in this case.
Authored & Briefed By: Jatin Arora
Student, B.A.,LL.B., III semester , FIMT School of Law, GGIPU.