CASE LAW- INDRA SAWHNEY AND ORS V UNION OF INDIA

AND ORS [1992] Supp 2 SCR 454

Submitted By:- Rupal Dash

SOA NATIONAL INSTITUTE OF LAW
GROUP-6
SUBMISSION DATE- 2ND JUNE, 2024
Parties
Appellant: Indra Sawhney

Respondent: Union of India and Others

Facts:

 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.

 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.

 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 she didn’t implement the MANDAL
COMMISIONS report till 1989. In 1989 the CONGRESS GOVT toppled due to the
defeat of the general election.

 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.

 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
 andproperty.

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

 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. Unfortunately in the meanwhile
JANATAGOVT. again collapsed due to defections & in 1991 by the Parliamentary
elections & the Congress again formed the GOVT. at centre.

 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%)

 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.

Issues:
1. Whether Article 16(4) is an exception for Article 16(1) and would be thorough of the
privilege to reservation of posts in administrations under the State?
2. The phrase “backward class” in art 16(4) of the Indian Constitution shall contain what
contents. Moreover, can caste itself could make a class or economical criterion itself shall
identify a class under art 16(4). Whether or not “Backward classes” would also include
“weaker sections” as mentioned in Art 16(4) and Art 46?

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

Holdings:

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

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

Procedural history:
 The case of Indra Sawhney v. Union of India is a landmark judgment in Indian
constitutional law, particularly concerning reservations for backward classes. Here's the
procedural history of the case:

1. Mandal Commission and Report (1979)

 The Government of India appointed the Second Backward Classes Commission, known
as the Mandal Commission, under the chairmanship of B.P. Mandal in 1979.
 The Commission was tasked with identifying socially and educationally backward classes
(SEBCs) and recommending measures for their advancement, including reservations in
government jobs.
 The Commission submitted its report in 1980, recommending 27% reservation for SEBCs
in addition to the existing 22.5% for Scheduled Castes (SCs) and Scheduled Tribes (STs),
making a total of 49.5%.

2. Government Decision and Office Memorandum (1990)

 In August 1990, Prime Minister V.P. Singh announced the decision to implement the
Mandal Commission's recommendations.
 An Office Memorandum (OM) was issued on August 13, 1990, by the Ministry of
Personnel, Public Grievances, and Pensions, providing 27% reservations for SEBCs in
civil posts and services under the Government of India.

3. Legal Challenges and Stay (1990-1991)

 The implementation of the Office Memorandum led to widespread protests and debates.
 Several writ petitions were filed in the Supreme Court challenging the validity of the
OM.
 The Supreme Court granted a stay on the implementation of the reservations pending its
final decision.

4. Constitution of the Nine-Judge Bench (1992)

 Given the significance of the case, the Supreme Court constituted a nine-judge bench to
decide on the matter.
 The bench was formed to address several key issues related to the scope and extent of
reservations under the Indian Constitution.

5. Arguments and Hearings

  Extensive arguments were presented by both sides. The petitioners argued that the OM
violated the principle of equality enshrined in the Constitution.
 The government defended the OM, arguing that reservations were essential for the
upliftment of backward classes.

6. Supreme Court Judgment (1992)

 The Supreme Court delivered its judgment on November 16, 1992.
 The key points of the judgment included:
 Upheld the 27% reservation for SEBCs.
 Introduced the concept of "creamy layer" to exclude the socially advanced members of
the SEBCs from the reservation benefits.
 Affirmed that reservations in total should not exceed 50%, except in extraordinary
circumstances.
 Stated that reservations in promotions are not valid, but can be made applicable for initial
appointments.
 Emphasized the need for periodic review of the list of SEBCs.

7. Aftermath and Impact

 The judgment had a profound impact on the reservation policies in India.
 It led to the implementation of the "creamy layer" criterion to ensure that only genuinely
disadvantaged members of the SEBCs received the benefits of reservation.
 The decision reinforced the balance between providing affirmative action and
maintaining the principle of equality.

Rationale:

The rationale behind the Supreme Court's judgment in Indra Sawhney v. Union of India
(1992) can be understood through its detailed examination of the constitutional
principles, the interpretation of reservation policies, and the social context in India. Here
are the key aspects of the rationale:

1. Constitutional Basis for Reservations

 The Court examined the provisions of Articles 14, 15, and 16 of the Indian Constitution,
which relate to equality before the law and prohibition of discrimination.
 Article 15(4) allows the state to make special provisions for the advancement of any
socially and educationally backward classes or for the Scheduled Castes and Scheduled
Tribes.
 Article 16(4) provides for reservation of appointments or posts in favor of any backward
class of citizens which, in the opinion of the state, is not adequately represented in the
services under the state.

2. Identification of Backward Classes

 The Court recognized the need to identify backward classes not solely based on caste but
on broader criteria, including social and educational backwardness.
 It upheld the use of caste as one of the criteria for identifying backward classes,
acknowledging the deep-rooted social and economic disparities associated with caste in
India.

3. Concept of Creamy Layer

 To ensure that the benefits of reservations reach the truly disadvantaged, the Court
introduced the concept of the "creamy layer."
 The creamy layer refers to the more affluent and better-educated members of the
backward classes who are not eligible for reservation benefits.
 This concept was aimed at excluding socially advanced individuals within the backward
classes, ensuring that reservations serve those who need them most.

4. 50% Cap on Reservations

 The Court emphasized that reservations should not exceed 50% of the total seats in any
category to maintain a balance between affirmative action and the principle of equality.
 This cap was set to prevent the marginalization of merit and the rights of other sections of
society.

5. Reservations in Promotions
 The judgment clarified that while reservations in initial appointments are permissible;
extending reservations to promotions within government services is not valid.
 This distinction was made to ensure efficiency and meritocracy in higher levels of public
service while still providing entry-level opportunities for the disadvantaged.

6. Social Justice and Equality

 The judgment balanced the need for social justice with the principle of equality,
recognizing that affirmative action is essential to address historical and systemic
injustices.
 The Court highlighted the importance of enabling backward classes to participate equally
in public employment and education, thereby fostering an inclusive society.

7. Legal Precedents and Interpretations

  The Court relied on previous judgments and legal interpretations to support its reasoning.
It drew upon the principles established in cases like State of Kerala v. N.M. Thomas and
M.R. Balaji v. State of Mysore, which dealt with the scope and limits of reservations.

8. National Interest and Social Harmony

 The judgment stressed that reservation policies should be implemented in a manner that
promotes national interest and social harmony.
 By introducing measures such as the creamy layer exclusion and periodic review, the
Court aimed to ensure that reservations do not lead to social divisions or resentment.

Dissent:

Here are key points from the dissenting opinions:

1. Justice Pandian's Dissent

 Justice M. Fathima Beevi and Justice M. H. Kania, in their dissenting opinion, argued
that the concept of the "creamy layer" should not be applied to OBCs. They contended
that economic advancement alone should not disqualify individuals from reservation
benefits as social and educational backwardness cannot be entirely separated from
economic status.
 Justice Pandian emphasized that caste is a significant determinant of social backwardness
in Indian society. Therefore, excluding individuals solely based on economic criteria
could undermine the objectives of the reservation policy.

2. Justice Sawant's Dissent

 Justice P.B. Sawant disagreed with the 50% cap on reservations. He argued that the
Constitution does not prescribe a specific limit on the extent of reservations, and the 50%
rule is arbitrary and lacks constitutional backing.
 He opined that the extent of reservations should be determined based on the actual needs
and circumstances of the backward classes and not be constrained by an arbitrary cap.

3. Justice Sahai's Dissent

 Justice R.M. Sahai expressed concerns about the periodic review of the backward classes
list. While agreeing that reviews are necessary, he cautioned against the potential misuse
of such reviews to arbitrarily exclude groups from the reservation benefits.
 He highlighted that the backwardness of classes should be assessed comprehensively,
considering social, educational, and economic factors, and not be subjected to frequent
changes that could destabilize the reservation policy.
 4. Reservations in Promotions
 Some dissenting opinions supported the extension of reservations to promotions within
government services. The dissenting justices argued that to achieve true equality and
representation, reservations should be applicable at all levels, including promotions. They
contended that restricting reservations to initial appointments does not fully address the
systemic barriers faced by backward classes in career advancement.

5. Merit and Efficiency

 The dissenting justices also critiqued the majority opinion's emphasis on merit and
efficiency. They argued that the concept of merit cannot be viewed in isolation from the
social context. True meritocracy, in their view, should account for the disadvantaged
starting points of different social groups and aim to level the playing field.

6. Reservations and Fundamental Rights

 Some dissenting opinions suggested that the provisions for reservations should be seen as
fundamental rights for the backward classes to ensure their adequate representation and
participation in public life. This perspective aimed to strengthen the justification for
affirmative action as a necessary measure for achieving social justice.

The dissenting opinions in the Indra Sawhney v. Union of India case offered significant
critiques and alternative perspectives on the majority judgment. They emphasized a broader and
more inclusive approach to reservations, questioned the arbitrary limits on reservations, and
underscored the complex interplay between caste, economic status, and social justice. These
dissents highlight the ongoing debates and challenges in implementing affirmative action
policies in India.

Arguments:

Contentions of the petitioners

1. 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:
2. 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.
 3. 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.
4. 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. Mr. K.K. Venugopal referred to Articles 38(2) and 46, which
instruct the State to reduce or eliminate inequalities that are faced by the weaker sections
of the society and the efforts to be taken to promote their educational and economic
interests, to draw an inference that the objective of “special provisions” in Article 16 is to
reduce the inequalities in income and concluded that the economic factor should be taken
into account to determine backward classes and privileged people belonging to the
backward classes should be excluded from receiving the benefits of such provisions by
introducing the concept called “creamy layer”.
5. 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
jeopardize the efficiency of the public administration system and would bring the same to
a grinding halt.
6. In relation to the issue of the competent authority to make “provisions” referred to in
Article 16(4), Mr. K.K. Venugopal contended that the provisions should only be made by
the legislative organ of the State and not by the executive organ. Because the power of
legislating should be used cautiously as it has an effect on the fundamental rights of other
citizens and there is a greater possibility of abusing such power if given to the executive.
If such power is given to the legislative organ, debates and discussions will be held where
various opinions are presented by the members of the Parliament before enacting such a
provision.
7. It is submitted by the petitioners that the reservations in the promotion are not
contemplated in Article 16(4) as it would lead to ‘double reservations’. This will be a
result of disinterestedness among candidates of the open category because their merit and
performance will be of no value as reserved candidates will benefit from reservation at
every successive stage. It will also go against the provision of Article 335, i.e.,
maintenance of efficiency in administration because a reserved candidate has lesser
competition and their efforts will not be up to their optimum potential. Thus, it will also
go contrary to one of the fundamental duties to strive towards excellence envisaged
in Clause (j) of Article 51A of the Constitution of India.

Contentions of the respondents

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 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 Mandal Commission and its
report was formed under Article 340 with the assent and under the authority of the
President of India.
5. Mr. Ram Jethmalani, appearing for the State of Bihar, reminded the historical suffering
and exploitation faced by the backward castes, referred to as “Shudras”. He argued that
the expression “backward classes” refers to those classes who are inadequately
represented in the apparatus of the Government and, hence, poverty is not an irrelevant
factor in determining backwardness. He states that “the provision for reservation is
really a programme of historical compensation. It is neither a measure of economic
reform nor a poverty alleviation programme.” Mr. Jethamalani referred to various U.S.
judicial decisions and, thus, contended that the competent authority to exercise the
power of deciding the criterion in determining backwardness is the State and Courts
have power only to review such criterion as to whether it is in conformity to the
Constitution of India.
6. It was contended that the reservations shall be provided in favour of a class or group,
but cannot be decided based on one particular individual because Article 16(4) states
that the reservations are to be provided to the backward classes of citizens, not
backward citizens. Therefore, a class as a whole shall be considered and determined
whether it is backward, if so reservations are to be given in favour of such class as a
whole.
7. It was argued that caste is a relevant factor to be considered for determining
backwardness, although Clause (2) of Article 16 prohibited discrimination on the
grounds of caste, among other grounds, because the protective discrimination is made
not due to the caste but due to the backwardness of that class.
8. It was argued that the issue of reservation in promotion should be decided upon as the
O.M. in question provided reservation in direct recruitment, not to the promotions and
the constitutional question should not be decided in a vacuum.

Judgment:
On 16 November 1992, the Supreme Court, in its verdict, upheld the government order, being of
the opinion that caste was an acceptable indicator of backwardness. Thus, the recommendation of
reservations for OBCs in central government services was finally implemented in
1992.The Supreme Court of India gave verdict that 27% central government reservation for
OBCs is valid. However, some states denied the existence of the creamy layer, and a report
commissioned by the Supreme Court was implemented. The case was pressed again in 1999 and,
in 2006, the Supreme Court reaffirmed the creamy layer exclusion and extended it to SCs and
STs. This judgment also overruled General Manager Southern Railway v. Rangachari and Akhil
Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India verdicts, which said that
reservations could be made in promotions as well as appointments. Indra Sawhney v. Union of
India held that reservations cannot be applied in promotions.
1992 Indra Sawhney & Others v. Union of India judgment laid down the limits of the state's
powers: it upheld the ceiling of 50 per cent quotas, emphasized the concept of "social
backwardness", and prescribed 11 indicators to ascertain backwardness. The nine-Judge Bench
judgement also established the concept of qualitative exclusion, such as "creamy layer". The
creamy layer is only applicable in the case of Other Backward Castes and not applicable on other
group like SC or ST. The creamy layer criterion was introduced at Rs 100,000 in 1993, and
revised to Rs 250,000 in 2004, Rs 450,000 in 2008, Rs 600,000 in 2013 and 800,000 in 2015.