Indra Sawhney Vs.

Union of India

AIR 1993 SC 477, 1992 Supp 2 SCR 454

Forum: Supreme Court of India

Case No.: Writ Petition (Civil) No. 930 of 1990

Date of Decision: 16th November 1992

Bench: Majority Opinion- Justice B J Reddy, Chief Justice M Kania, Justice AM Ahmadi,
Justice M Venkachaliah, Justice P Sawant, Justice S R Pandian

Minority Opinion- Justice Kuldip Singh, Justice TK Thommen, Justice R Sahai

Background:

Reservation, was an earnest attempt by the framers of the Constitution to bring in socio-
economic equality in 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 at par with the other sections
of society, the Constitution gave us a mechanism to safeguard the Backward Classes and
Scheduled Castes. In the celebrated case of Indra Sawhney, the court had discussed the
reservation policy, the threshold limit of 50%, criteria to analyse which domain constitutes
backward classes, the fragmentation of inequality in the employment under the State. Further,
the court explained the scope of Article 16(4) of the Indian Constitution, its validity and
purpose to remove all inequalities in the areas of employment, income, treatment, status. The
landmark ruling is the basis for evaluation and fixing the people in the class of reservation for
the eradication of caste and caste system.
Facts:

The second Backward Classes Commission, known as the "Mandal Commission," was
established in 1979 under Article 340 of the Constitution. The Commission's major goal was
to look at India's socially and educationally disadvantaged classes. One of the Commission's
primary recommendations was that, in addition to the Scheduled Castes (SCs) and Scheduled
Tribes (STs), 27 percent of government positions be reserved for Other Backward Classes
(OBCs), bringing the total reservation for SC, ST, and OBCs to 50 percent. However, the
Janta Party fell apart after that, and the Mandal Commission's recommendations were never
followed. Following that, the Congress party was elected to power. A freshly updated
memorandum from the Congress administration was introduced which provided for an
additional 10% reservation to be offered to economically backward classes not covered by
any reservation programme. As a result, reservation restrictions were increased by up to 37%.
However, the decision was challenged in the Supreme Court, and the suggestion was not
executed. When Janta Dal regained power in 1989, it attempted to put the Mandal
commission's recommendations into effect.  However, the government's action was
challenged at the Supreme Court via a writ petition, claiming that it violated an individual's
fundamental rights. The five-judge panel referred the case to a nine-judge panel for final
resolution.

Relevant Provisions:

Article- 16(4):-

Nothing in this article shall prevent the State from making any provision for the reservation
of appointments or posts in favour of any backward class of citizens which, in the opinion of
the State, is not adequately represented in the services under the State

Article- 16(1):-

There shall be equality of opportunity for all citizens in matters relating to employment or
appointment to any office under the State
Article- 15(4):-

Nothing in this article or in clause ( 2 ) of Article 29 shall prevent the State from making any
special provision for the advancement of any socially and educationally backward classes of
citizens or for the Scheduled Castes and the Scheduled Tribes

Article- 340(1):-

The President may by order appoint a Commission consisting of such persons as he thinks fit
to investigate the conditions of socially and educationally backward classes within the
territory of India and the difficulties under which they labour and to make recommendations
as to the steps that should be taken by the Union or any State to remove such difficulties and
to improve their condition and as to the grants that should be made for the purpose by the
Union or any State the conditions subject to which such grants should be made, and the order
appointing such Commission shall define the procedure to be followed by the Commission

Major Issues:

 Whether the classification made for reservation would be based on caste or economic
condition of an individual?
 Whether Article 16(4) is an exception to Article 16(1) or not?
 Can reservations for the post in State services; could exceed more than 50%?
 Whether the Classification made under the Backward class as Backward Class and
Most Backward Class is valid or not?
 Would reservation be restricted to the initial appointment to the post or would be
extendable to promotions as well?

Argument’s from Petitioner’s side:

It was argued by the petitioners that the recommendations made by the Mandal Commission
are indirectly provoking the evil idea of the Caste System which is nothing but considered as
against the idea of secularism. Hence, the Oms provided on the strength of the Report which
is completely based on the caste criterion and infringement of Article 16(2). It was also
argued that the present Report is based on the 1931 census and can never serve as a correct
basis for identifying the ‘backward class’, they insisted on the formation of a fresh
Commission under Article 340(1) of the Constitution to make a fresh wide survey throughout
the country. They also said that 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. The petitioners emphasized the ‘Equal protection’ clause which
prohibits the State from making unreasonable discrimination in providing preferences and
facilities for any section of its people. They also emphasized the effect of such
recommendations on the meritorious candidates appearing for public employment, they said
it would demoralize such candidates.

Argument’s from Respondent’s side:

The Respondents argued that if the above argument is accepted then it will negate the just
claim of the SEBCs to avail the benefit of Articles 16(4) which is a fundamental right. They
also argued that the petitioner’s argument regarding this report is based on the 1931 census is
totally false and baseless because a thorough study of the report suggest that the 1931 census
does not have any connection with the identification of OBCs. They further said that the
classes have been identified on the basis of the countrywide socio-educational field survey
and the census report of 1961 particularly for the identification of aboriginal, hill, indigenous,
primitive and forest tribes. It was also argued about the reference of the 1931 census. They
said that this position is made clear by the Commission itself in Chapter XII of its Report.
However Systematic caste-wise bifurcation of the population was introduced by the Registrar
General of India in 1881 and discontinued in 1931. They further said that the commission
only referred to the 1931 census report 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. The Respondents emphasized that the Report wanted to reserve 52% of all
the posts in the Central Government for OBCs as per their ratio in the population. However, it
is recommended reservation of 27% in deference to legal limitations. Still, the population of
OBCs is near twice the figure. The Respondents also pointed out the Petitioner’s argument
regarding sub-standards replacing standards. They termed this argument baseless and based
upon false assumptions because the very object of Article 16(4) is to ensure equality of
opportunity in matters of public employment and give adequate representation to the left
outclass of the society.

Majority Opinion:

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.

Justice Jeevan Reddy’s judgment was written on behalf of himself and three other judges:
Chief Justice Kania, Justice Venkatachaliah and Justice Ahmadi JJ. He held that the 50% rule
does apply. However, there might be ‘extraordinary situations’ where it could be exceeded.
He noted particularly communities that were outside the national mainstream and have
special circumstances peculiar to them.
Justice Sawant’s judgment cites Ambedkar and says that ‘ordinarily’ reservations should not
exceed 50%. But in particular circumstances, if valid grounds are made out, then it may be
permitted.

Minority Opinion:

Three judges have been categorical in stating the 50% rule. Justice Thommen J said the
number of seats reserved ‘must at all times remain well below 50%’. According to Justice
Kuldip Singh J ‘under no circumstances’ should reservations go beyond 50%. Justice Sahai J
noted that ‘reservation of any manner’ cannot cross 50%.

Development of Law:

1. Basis of Classification for reservation

The court held that the reservation cannot be solely based on economic backwardness
regardless of the social injustice and discrimination faced by the backward classes over the
ages, as it doesn’t do justice to the constitution of India. Social, educational and economic
backwardness are closely interrelated. For the identification of backward classes, caste can be
a criterion but it shall not be the sole criterion for reservation. There are several occupations,
sects, and denominations that are socially backward. Backward Classes of a citizen in Article
16(4) can be identified based on the caste system and not only on an economic basis.

2. Article 16(4) is an extension of Article 16(1)

In State of Kerala and Anr. V. N.M. Thomas, the court held that Article 16(4) is not an
exception to article 16(1) rather it is only an extension of it; stating the principle inherent in
the main provision itself. The court further said that Article 16(4) is an aiding clause to help
backward classes to reach the level of equality. The provisions made by the government
under this clause would not be regarded as an exception and infringement of fundamental
rights because when everyone would be on the same level then only healthy competition
could be created.

3. Not more than 50% reservation

Supreme Court held that reservations cannot be increased by more than 50%. It could only be
increased during extraordinary circumstances and the reason for exceeding the limit should
be valid and be justified. For determining the extent of reservation, overall numerical strength
and representation in administration services and different grades are considered.

4. Further classification of backward classes

The backward classes can further be classified into more backward and less backward
classes. The Supreme Court has given the power to the State government to classify the
classes. However, classes should be classified based on social backwardness and not only on
economic and educational backwardness. It further said that if the advanced section of the
backward classes are so advanced that they can compete with other higher classes then they
should no longer be termed as backward classes and should be denied reservation under
Article 16(4).

5. A reservation only in the appointment

The reservation would not apply to promotion in services, reservation in promotion is
unconstitutional and doesn’t do justice to the services. The promotion should be based on the
merit of a person, his capacities, and abilities. Reservation would only be applicable in the
initial appointment. Court further said that there should be direct recruitment of the reserved
classes at all level and all grades in services.