Submitted by: Arun k and Deepthi Sajith

3 S2 (Unitary)

Submitted to: Moorthy Krishna (Dr),

Professor

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 TABLE OF CONTENTS

SL NO CONTENTS PAGE NO
1 Title 3
2 Parties to the Suit 4
3 Introduction 5
4 Legal Provision 5
5 Facts of the Case 6
6 Issues Framed 6
7 Arguments 7
8 Decision made by the court 8
9 Related Case Laws 8
10 Judgment 9
11 Conclusion 9
12 Bibliography 10

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 TITLE

INDRA SAWHNEY
V
UNION OF INDIA AND ORS

CITATION: AIR 1993 SC 477

DATE OF JUDGMENT: 16th November 1992

BENCH: M. Kania, M. Venkatachaliah, S.R. Pandian,

T. Ahmadi, K. Singh P. Sawant, R. Sahai, B.J.Reddy

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 PARTIES TO THE SUIT

PETITIONER: INDRA SAWHNEY

RESPONDENT: UNION OF INDIA AND ORS

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INTRODUCTION

The nine-judge bench case of Indra Sawhney v. Union of India (1992) is a case that got
written in stone by the Indian judiciary and is both blessed and cursed, perhaps to
eternally witness the dynamic power play and friction of political opportunism, pro-
reservation and anti-reservation sentiments in India. This landmark case was the miracle
child of Indian judicial pragmatism, conceived at the backdrop of nationwide chaos and
violent protests against the implementation of the infamous Mandal Commission
Report’s 27 percent quota for the socially and educationally backward classes (SEBCs) in
all the central government jobs and public institutions. This article attempts to portray
this three decades old landmark case law in a simplified manner and analyze the same at
the altar of transformative constitutionalism, succeeding landmark Supreme Court cases
on reservation and the present day’s socio-political stage.

LEGAL PROVISION

Article 16(1)

Article 16 clause (1) provides for the general rule which entails that there shall be
equality in appointment in public sector jobs and there shall be no discrimination for such
employment under the State, only on the grounds of religion, caste, race, sex, place of
birth, descent or residence.

Article 16 (4)

Clause (4) of Article 16 provides that the State can enact legislation for the reservation of
posts in the government sector or jobs in favour of the backward classes of citizens,
which the State considers to have not been adequately represented in the services of the
State.

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FACTS OF THE CASE

The First Backwards Class Commission, also known as the Kaka Kalelkar Commission,
was formed way back in 1953 vide Article 340 (appointment of a commission to
investigate the conditions of backward classes) of the Indian Constitution, but its report
(1955) was effectively rejected in 1961. In January 1979, the Janata Dal, headed by the
then Prime Minister Moraji Desai, formed the Second Backwards Class Commission
(Mandal Commission), which submitted its report in December 1980 to recommend steps
for the upliftment of the SEBCs. This Mandal Commission Report, inter alia, proposed a
27 percent government quota for the SEBCs on top of the pre-existing 22.5 percent
reservation for the SCs and STs.

But, before this Mandal Commission Report could be put into effect, the coalition Janata
Dal government fell and the Indira Gandhi led Congress government came into power.
Now, the Congress government did not implement this report for a long time until they
lost again to V.P. Singh led Janata Dal in 1989. After coming back to power, the Janata
Dal issued an Office Memoranda (OM) to implement the Mandal Commission Report as
per their electoral promises, but this pushed the country into a chaotic time filled with
violent anti-reservation protests where many students burned themselves to death
protesting against reservation.

The Janata Dal fell again amidst these widespread disturbances and the P.V. Narasimha
Rao led Congress government came into power in 1991 and issued another O.M. to
implement the Mandal Commission Report with a couple of modifications, namely, the
introduction of the economic criterion in the granting of reservations by giving preference
to the poorer sections of the SEBCs within the proposed 27 percent quota and a further 10
percent reservation grant to the economically challenged sections of the people not
enjoying any reservation schemes. But still, the massive violence continued, and India
kept on suffering tremendous loss of life and property. Finally, on 11th September 1990,
the Supreme Court transferred to itself all writ petitions challenging the implementation
of the Mandal Commission Report, and thus began the two-year-long tussle where the
Supreme Court tried balancing judicial pragmatism with political opportunism.

ISSUES FRAMED
 Whether the caste on its own constitutes a different class and whether economic
criteria could buy itself being a determination of a class?
 Whether Art 16 (4) was an exception of Art 16 (1)?
 Whether Art 16 (4) allow classification of backward classes or permit
classification among them based on economic or other considerations?

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ARGUMENTS

Petitioners Arguments

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
prioritized 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 jeopardize the efficiency of the public administration system and
would bring the same to a grinding halt.

Respondents Arguments

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.

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 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.

DECISION MADE BY THE COURT

The backward classes under Art 16 (4) cannot be identified on the basis of economic
criteria but the caste system should also be considered. The backward classes in Art 16
(4) were different from the socially and educationally backward class mentioned in Art
15 (4). The concept of creamy layer was laid down in this case and execution of
legislative action refusing to include the creamy layer from the benefits of reservation
will be violative of Art 14, Art 16 (1) and Art 16 (4) of the constitution. The reservation
should not exceed 50%.

RELATED CASE LAWS

1. R.K Sabharwal V State of Punjab (1995) 1

2. Arijith Singh V State of Punjab (1996)2
3. M.Nagaraj V. Union of India (2006) 3
4. Jarnail Singh v. Lachhmi Narain Gupta (2018) 4
5. B.K.Pavitra v. Union of India (2019)- II5
6. Dr. Jaishri Laxmanrao Patil v. The Chief Minister (2021)(The Maratha
Reservation case)6

1
R.K Sabharwal V State of Punjab (1995)
2
Arijith Singh V State of Punjab (1996)
3
M.Nagaraj V. Union of India (2006)
4
Jarnail Singh v. Lachhmi Narain Gupta (2018)
5
B.K.Pavitra v. Union of India (2019)- II
6
Dr. Jaishri Laxmanrao Patil v. The Chief Minister (2021)(The Maratha Reservation
case)

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JUDGMENT

Justice B.P. Jeevan Reddy penned the leading judgement for himself and his brother
judges namely M.H. Kania J., M.N. Venkatachaliah J. and A.M. Ahmadi J. Justices S.
Ratnavel Pandian and P.B. Sawant wrote concurring opinions. This constituted the
majority judgement and the dissenting opinion was given by Justices Dr. T.K. Thommen,
Kuldip Singh and R.M. Sahai. So, in a 6:3 majority judgement, the decision of the
P.V.Narasimha Rao government to introduce a 27 percent reservation for the SEBCs
based on the Mandal Commission Report was upheld subject to certain conditions.

CONCLUSION

After studying the case analysis of the landmark Indra Sawhney case in detail, it is
needless to say that reservation is an extremely sensitive issue and despite sincere
attempts by this article, the complexities of the same cannot be untangled into simpler
versions. As seen in the above discussions, the canvas of reservation issues based on
caste has witnessed a lot of developments in the last three decades. From the violent
protest days against Mandal Commission implementation thirty years ago, the questions
still remain- how far have the backward people progressed till date? How long do they
still need reservations? To what extent and how long should reservations in promotions
continue besides initial appointments based on reservations? 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
departments and NGOs are working tirelessly to uplift the backward classes of people.
But it appears that the above-unanswered questions are willfully kept unanswered. Till
date, where our constitutional values have evolved for the better in general, there are
many villages in India where people will ask you your caste before interacting with you,
there are still multiple incidents of caste-based violence where the backward classes have
been beaten black and blue for their castes. Three decades of Indra Sawhney and still the
story of two Indians continues. On one side there is judicial pragmatism and on the other
side there is political opportunism; on one side there are alleged reverse discrimination
victims having anti-reservation sentiments, and on the other side Dalit beatings continue.
Is the social stigma of casteism too deeply ingrained in India to ever get rid of caste-
based reservations? Tomorrow’s young India can indeed be the example where people
get recognized strictly based on their work and not caste. Let this dream not be turned
into a utilitarian one by political opportunism.

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BIBLIOGRAPHY

Book
Constitutional law of India
Dr. J.N. Pandey, 59th Edition,
Central law Agency.

Internet
1. https://www.scobserver.in/reports/consequential-seniority-plain-english-summary-
of-the-judgment-in-b-k-pavitra-v-union-of-india-ii/
2. http://www.ncbc.nic.in/User_Panel/UserView.aspx?TypeID=1161
3. http://www.ncbc.nic.in/User_Panel/UserView.aspx?TypeID=1114
4. https://www.scconline.com/blog/post/tag/indira-sawhney/
5. https://www.barandbench.com/columns/reservation-in-promotion-the-ball-is-
again-in-the-governments-court

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