CASE ANALYSIS On INDRA SAWHNEY & ORS VS UNION OF INDIA & ORS (AIR 1993 SC 477)

Introduction

The issue of reservation has been a burning issue for centuries in the history of this nation. It has seen ages of differentiation in the educational and job sector not based on open competition and merit but on caste, class educational, financial and social background. This has had a two-fold consequence. On one hand, it has sought to fulfill the objective of social justice laid down by the supreme law of the land but on the other hand it has made the citizens of this nation’s insecure regarding the basic idea of excellence and progress that this nation requires. Thus the present case is a landmark in the true sense as it proves, that caste and other such associated evils should never be made the basis of achieving such a noble objective as it not only disrupts the basic harmonious fabric of the society but also creates an unnecessary divide between the deserving and the deserved, a barrier which is difficult to define but hard to remove. The consequence of such an ideology that has greatly affected the stability of power relations and achievements in this country is not a new story. The Supreme Court and all of us have been witness to the fact that reservations are necessarily anti meritorious, however time and again it has been justified in the name of a price that the nation needs to pay to achieve equality. The reality however, has spoken louder than words and the story unfolded is quite different. The Indra Sawhney has resulted in more and more groups nowadays claiming reservations for their betterment of status. We are also aware of the extra-political interests that the political executive holds for its person selfish electoral gains in interest of gaining a sympathetic voters’ bank. Yet reservations have been considered a necessity since most of our population is still backward.

Brief Facts of the Case

  • On January 1, 1979, the Government headed by the PM Sri Moraji Desai appointed the second Backward Classes commission u/a 340 of the Constitution to investigate the SEBCs within the territory of India and recommend steps to be taken for their advancements.
  • The commission submits its report in December 1980 and identified 3743 castes as socially and educationally backward classes and recommend a reservation for their 27 % Government jobs for them.
  • Due to internal dissensions, Janta Government collapsed and Congress party headed by PM Smt. Indira Gandhi came to power at the center. The Congress government didn’t implement the commission report till 1989.
  • In 1989 the Congress party defeated and Janta government again came to power and issued Office Memoranda to implement the commission report as it promised to the electorate. After passing this memorandum threw the nation into turmoil and a violent anti-reservation movement rocked the nation for three months resulting in huge loss of persons and property.
  • On 1 October 1990 a writ petition on behalf of the Supreme Court Bar Association was filled challenging the validity of the O.M. and for staying its operation. The five-judge bench of the court stayed the operation of OM till the final disposal of the case.
  • Unfortunately, the Janta Government again collapsed due to defections and Congress party again came to power at the centre headed by P.V. Narasimha Rao issued another O.M. on September 25, 1991 by introducing the economic criterion in granting reservation by giving preference to the poorer sections of SEBCs in the 27 % quota and reserved another 10% of vacancies for other SEBCs economically backward sections of higher caste.

Issues Raised

  • WHETHER THE CLASSIFICATION IS BASED ON THE CASTE OR ECONOMIC BASIS?
  • WHETHER THE ARTICLE 16 (4) IS EXCEPTION OF ARTICLE 16 (1) OR NOT?
  • WHETHER IN ARTICLE 16 (4) BACKWARD CLASSES ARE SIMILIAR AS SEBCs IN ARTICLE 15 (4) OR NOT?
  • 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?
  • WHETHER THE CLASSIFICATION BETWEEN BACKWARD CLASS INTO BACKWARD OR MORE BACK WARD CLASS IS VALID OR NOT?

Arguments on Behalf of the Petitioner

  • There were various infirmities in the report of the second backward class commission and the consequent invalidity of the government order issued on it.
  • It was argued that the report is a attack against the doctrine of secularism, the net effect of which would be dangerous and disastrous for the indian society, it was said that the identification of SEBCs by the commission on the basis of caste system is bizzare and barren of force, muchless exposing hollowness. Therefore the OMs issued on the strength of the Mandal Report which is solely based on the caste criterion are violative of Article 16(2)
  • It was also argued that the data was based on the 1931 census which could never serve a correct basis for identifying the backward classes as there should have been a fresh wide survey which would be regarded as the basis of their population.
  • It was also argued 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.
  • It was argued that this upshot would 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 intercine conflict and fissiparous forces and make backwardness a vested interest.
  • It was also argued that the ‘Equal protection’ clause prohibits the State from making unreasonable discrimination in providing preferences and facilities for any section of its people.
  • One of the arguments critising the Report is that the said Report virtually rewrites the constitution and in effect buries 50 fathoms deep the ideal of equality and that if the recommendation are given effect to and implemented, the efficiency of administration will come to a grinding halt.

Arguments on Behalf of the Respondent

  • It was argued that 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.
  • There is no question of rewriting the constitution because the commission has acted under the authority of the notification issued by the parliament. It has after laying down the parameters in the light of the various pronouncements of this court has ultimately submitted its Report recommending the reservation in tune with the spirit of Article 16(4)
  • It was argued that 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 collectivises 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. In this connection the RESPONDENT cited the example of “BALARAM CASE” where the Court considered the census report made on 1931.
  • The argument that the implementation of the recommendations of the commission would result in demoralization and discontent has no merit because conversely can it not be said that the non implementation of the recommendations would result in demoralization and discontent among the SEBCs.
  • The basic policy of reservation is to off set the inequality and remove the manifest imbalance, the victims of which for bygone generation lag far behind and demand equality y preferences and their stratergies. It is more appropriate to recll that “there is equality only among equals and to equate unequals is to perpetuate ineaquality.”

Judgment

The five-judge bench referred the matter to a special Constitution Bench of 9 judges in view of the importance of the matter to finally settle the legal position relating to reservation.

The decision is given by the 6:3 majority held that the decision of the Union Government to reserve 27% Government jobs for SEBCs provided them Creamy layer among them eliminated is constitutionally valid. The court struck down the second provision of Office Memoranda and held that reserving 10% Government jobs for economically backward classes among higher caste is not valid. Following were the major pronouncements.

  • Backward classes in Article 16(4) were not similar to as socially & 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 & more backward classes.
  • A backward class of citizens cannot be identified only & exclusively with reference to economic criteria.
  • Reservation shall not exceed 50%.
  • Reservation can be made by the „EXECUTIVE ORDER‟.
  • No reservation in promotion.
  • Permanent Statutory body to examine complains of over –inclusion / under – inclusion.
  • Majority held that there is no need to express any opinion on the correctness or adequacy of the exercise done by the MANDAL COMMISSION.
  • Disputes regarding new criteria can be raised only in the Supreme Court.

Ordinarily, the reservations kept both under Article 16(1) and 16(4) together should not exceed 50 per cent of the appointments in a grade, cadre or service in any particular year. It is only for extra-ordinary reasons that this percentage may be exceeded. However, every excess over 50 per cent will have to be justified on valid grounds which grounds will have to be specifically made out. The adequacy of representation is not to be determined merely on the basis of the overall numerical strength of the backward classes in the services. For determining the adequacy, their representation at different levels of administration and in different grades has to be taken into consideration. It is the effective voice in the administration and not the total number which determines the adequacy of representation. It is not necessary to answer the question since it does not arise in the present case. However, if it has to be answered, the answer is as follows: The reservations in the promotions in the services are unconstitutional as they are inconsistent with the maintenance of efficiency of administration. However, the backward classes may be provided with relaxations, exemptions, concessions, and facilities etc. to enable them to compete for the promotional posts with others wherever the promotions are based on selection or merit-cum-seniority basis. Further, the committee or body entrusted with the task of selection must be representative and manned by suitable persons including those from the backward classes to make an impartial assessment of the merits. To ensure adequate representation of the backward classes which means representation at all levels and in all grades in the service, the rules of recruitment must ensure that there is direct recruitment at all levels and in all grades in the services The matter should not be referred back to the Five-Judge Bench since almost all the relevant questions have been answered by this Bench. The grievance about the excessive and about the wrong inclusion and exclusion of social groups in and from the list of backward classes can be examined by a new Commission which may be set up for the purpose. Founder of Indian Constitution was intended to establish the casteless and classless society. To uplift the down-trodden people and to provide them equality of status and opportunity in employment, provisions of reservation in education and employment were made. In the beginning, reservation was given to Scheduled Castes and Scheduled Tribes only. Although voices were raised time to time in substantial number by members of Parliament to give reservation to Other Backward Classes also specifically in southern and northern states of India.

Indian has enshrined article 15 in her constitution ensuring reservation for socially and educationally Backward Classes, Other Backward Classes and Scheduled Castes in jobs and seats in legislative bodies. The desire for government jobs is one reason for the demand for reservation and hence the policy gets promoted by state and central government. Reservation cannot be time bound.

The Indian Constitution, right from its inception and till date has not given a clear definition of Backward Classes so as to evolve a criterion for determining backwardness. This has resulted in various states and judiciary giving their own interpretations of backwardness which often turns out to be mutually conflicting and political expediency too playing its role in making it more complicated further. Reservation, therefore, should not be removed absolutely in an abrupt manner. Instead, it should be scrutinized, fine-tuned and updated as the years pass by and thereby be gradually erased. It should not be permanent measure extending to eternity, but an ad hoc measure to alleviate the most deprived sections of the society irrespective of caste.

There are so many people in the society who are covered under Scheduled Castes and Schedules Tribes but are not economically backward. They are as forward as a general category person but then also they would have the reservation benefits. Vice versa can also be held true that there are so many people who come under the general category but are as backward as a Scheduled Caste or a Scheduled tribe person.

Conclusion

On a thorough reading of the fact of the case and its judgment, I have come to many a deduction. This case is a landmark case on the reservation of post of BC citizens in government jobs which describe the scope and extent of Article 16 (4).

On coming on the first issue that whether the classification is based on caste or economic basis the court rightly held that the caste can be quite often and social class, if it is backward socially it would be a BC for the purpose of article 16 (4) and caste alone, can’t be taken into consideration for purpose of identification of the backward classes. The majority judges said that the neither the Constitution nor any law prescribes the procedure or method of identification of backward classes, nor it is possible for the courts to lay down any procedure or method, it is left to the authority appointed to identify.

On Coming on the second issue court is well justified and held that the article 16 (4) is not an exception to article 16(1) but an independent clause. Reservation can be made under clause (1) on the basis of reasonable classification and overruled the decision of Balaji v. State of Mysore[1]

On coming on the third issue the court held that the backward classes of citizen in article 16 (4) are not same as SEBCs referred to article 15 (4). Article 16(4) is a much wider scope and includes all other SC, ST and all other backward class of citizens including the SEBCs.

On coming on the fourth issue the court rightly describes this approach and held that the subclassification between backward classes and more backward classes is valid and overruled the decision of the Balaji case. It is necessary to do sub classification otherwise advances sections of the backward classes might take all the benefit of reservation.

In this case, the honorable court has rightly implemented this approach of understanding this article of the constitution that the cream layer must be excluded from the backward classes. It can be best understood by example given by the court that the if the member of a designated backward class becomes a member of IAS or IPS or any other all India service his status in society is rising he is no longer socially disadvantaged and it should not logical that his children should be given benefit of reservation. The court also said that there are certain post and services to which it may not be advisable to apply the rule of reservation. For example technical post in research & development organization, department institution in the super specialty in medicine, engineering, physical science, and maths, in defense service, pilots in Indian airlines, scientists and technicians in nuclear and space etc.

The court while giving the judgment mentioned that the reservation should not exceed 50 percent and reservation can’t be made in promotions. The court also overruled the decision of the Devdason v. Union of India[2] and held that carried forward rule is valid provided that it should not result in breach of 50 percent rule. The 50 percent limit can only be exceeded in the extraordinary situations prevailing in far-flung states like Nagaland, Tripura etc. And it need be made by parliament and legislature. The majority also made it clear that any disputes regarding can be raised only in the Supreme Court, not in the high court and any other tribunal.

The final verdict of the case according to me was well justified. The court has made a bold attempt to strike a balance between the interests of society and educationally backward classes and a person belonging to the general category in matters of government employment but There was a bit miscarriage while dealing with this case the court can also include the poor section of high castes in SEBCs.

Although there is principle of creamy layer but the author would like to say that issue of creamy layer among Other Backward Class is not as effortless as it has been taken by majority decisions in Mandal Commission. When Indian Constitution does not contain a single word about it, it is really very tricky to classify and trace out creamy layer among backward class; it is left on the committee’s decision.

At last the I would like to say that no doubt, reservation policy has brought a new good morning for the thousands years oppressed class, but to a vast number of potential beneficiaries, it is yet to effect realization. This may perhaps be due to some slackness in its execution. It is also due to lack of awareness among those for whom the policy is intended that its benefits are yet to trickle down.

[1]Balaji v. State of Mysore, 1963 AIR 649

[2] Devdason v. Union of India, 1964 AIR 179

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