CONSTITUTIONAL LAW II

Indra Sawhney v. Union of India

AIR 1993 SC 477 (Petitioner)
Sayontika Das B.A. LLB. KIIT Law School

Electronic copy available at: http://ssrn.com/abstract=1813043

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 nations 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 antimeritorious, 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. Hinduism is the only religion in India that follows the ideology of social division based between castes based on discrimination of monetary status, color or descent, which consequently results in social degeneration of complex social relations that destruct the harmonious balance of societal existence. An existing system of hierarchical order based on social division of labor that entails that a persons occupation is divided on the basis of his position on the social ladder.

Electronic copy available at: http://ssrn.com/abstract=1813043

This was the most prevalent system of caste-based discrimination which was known as the Varna system. The history of reservations for upholding the grievances of the lower class of people goes back to the British Raj, when in 1927 the Simon Commission proposed reservation of seats for the lower castes in the Legislative Council to enhance their political representation and participation in policy-making. This practice was continued into the Government of India Act 1935, whereby a list of these lower castes was prepared and they were known as the Scheduled Castes. The reservation policy was issued for ten years only fulfill the objective of upliftment of the lower strata of society since it evidently would have a detrimental effect on the fundamental right to equality of the citizens in India and would divide the society on lines of caste which had been a formidable curse, the evil effects of which the society had faced already. The present case is a witness in time that upholds the both sides of a coin that acts as a trump. Whether heads or tails the win or the loss of either party is definite. The price however is just a token paid to see an egalitarian society promoting development & progress.

MANDAL COMMISSION REPORT

The Mandal Commission was a set up by the Prime Minister of India in the year 1979, Morarji Desai. The head of the Commission was Mr. Bhindeshwari Prasad Mandal, and its objective of setting up was identify and the socially or educationally backward classes. It was set up as under Article 340 of the Constitution of India, it was obligatory for the Government to promote the welfare of Other Backward Classes. The objectives of the Commission1 was to determine the criteria under which the socially or educationally backward classes should be determined and more importantly how to advance these classes to a better standard of life in society by collecting factual data and facts and judging in conditions of these classes in detain to make a comprehensive report.

OBC Reservation, Site Accessed: http://obcreservation.net/ver2/reservation-mainmenu-9/mandal-mainmenu102/what-is-mandal--mainmenu-90.html?start=1 Accessed on 5th March, 2010.

The Mandal Commission has however been criticized for various reasons. It allocated reservations on the basis of caste; this was a violation of the principles of Equality and was not suitable to a country which dappled in secularism. The discrimination should have been made on grounds of classes who are truly deprived and not castes. For example, a person of a so called backward class might not be as deprived and at the same time getting the benefits of reservations while the truly deprived individual who might not be of a backward caste is not. Moreover educational institutions might have to compromise on credibility of their students because of such reservations as some not so deserving students can topple better students and study in good institutions because of reservations. So in my opinion, reservations if made should be made for the economically backward and not on basis of caste. Moreover, steps should be taken to eliminate economic and educational backwardness by proper distribution of income and promoting merit. Thus reservation laws should have to be handled carefully. Whether the provision under Article 16(4) should be made by the legislative wing of the State: The petitioner contends on this issue vehemently. The petitioner submits that he making of Article 16(4) should necessarily be treated as the prerogative of the legislative wing of the State and should not be left to any other authority. It is believed that if such an authority is left to the executive wing it may result in the abuse of the unprecedented power granted to it. The learned counsel rightly submits that the political executive is corrupted with the degeneration of the present electoral process that solely concentrates on minorities interests to use as a suitable podium for their own selfish electoral gains2. They base this success on the sympathy gained on basis of the minority vote bank that grants its sympathy in lieu of the realization of the betterment of its status. Thus the task of the making of any provision under Article 16(4) is proposed to be constricted to
2

Indra Sawhney v. Union of India AIR 1993 SC 477 at p. 536

merely to a competent legislature since it provides a proper forum for debate and discussion on this matter where a fair and independent opinion can be presented on an a balanced and unbiased dias with an impartial frame of mind. As held in Comptroller & Auditor-General India v. Mohan Lal Mehrotra3 the political executive is guarded by adequate safeguards against the misuse of its power by Article 16 (4) itself. Determination of backwardness to grant reservation to the classes has to be based on certain ascertained social objectives based on common parlance of modern society and not on the mere subjective satisfaction of an individual seat of power. Whether the provision made under Article 16(4) is as effective as a statutory provision laid down by a legislature: If a certain provision has not been passed by an appropriate/ competent legislature as a law or has not been passed as a proviso to Article 309, the provision as provided by the Executive does not become enforceable unless passed by proper procedure established by law. As held in Comptroller & AuditorGeneral India v. Mohan Lal Mehrotra4 the government may direct the reservation policy in the form of Executive orders. However, such orders cannot exist in contravention to statutory rules made by a competent legislature. They may supplement relevant statutory laws. The afore-mentioned proposition was upheld in Akhil Bhartiya Soshit Karamchari Sangh (Railways) v. Union of India 5. Any law made or relevant rules issued in relation to Article 309 regarding reservations for backward classes can be open to the Executive, which can accordingly provide so for posts/appointments. The validity of these laws is the same as orders issued under Article 73 when read with Article 16(4)6.

3 4

AIR 1991 SC 2288 Supra n.3 at p.2293 5 AIR 1981 SC 298 6 Supra n.3 at p.538

 Whether reservations promote anti-meritorious practices: M.R. Balaji v. State of Mysore7 began with the assumption that reservations are necessarily anti-meritorious. Consequent cases like Janaki Prasad Parimoo v. State of Jammu and Kashmir 8 and State of Kerela v. N.M. Thomas9 the basic principle behind reservations was exposed which examined that the common tendency was to give preference to less meritorious people over the more meritorious students only on the basis of caste or social status. Reservation in any form entails lowering of standards. This is because without taking the initial step of giving an opportunity to the lower classes of people one cannot think of performing the herculean task of improving their status in society and equaling their status quo with that of the mainstream society. The State however proposes minimum qualifications for appointment to a certain post. As per J. Krishna Iyer, opined that the value of efficiency cannot be constricted merely to the ambit of marks but should be measured through responsive interaction and responsible interest in the requisite post for service10. The efficiency rule examines the sense of accountability that is a pre-requisite for appointment to any service. The learned counsel for petitioner rightly points out that the reservation of posts for appointment to services should be confined to a small part of the minority who really need the opportunity to excel so that it does not affect the efficiency of administration. Merit is a significant component in the initial stage of recruitment for administration. In the wake of realization of the objective of social justice, reservations usually entail that an equal opportunity should be given to the members with such disadvantages, so that they can overcome their circumstantial hurdles and the true meaning of Article 14 can be fulfilled and the entire scope of equality can be realized for all. It is suggested that there may be relaxation of standards as much is within the permissible limits to
7 8

AIR 1963 SC 649 AIR 1973 SC 930 9 AIR 1976 SC 490 10 Supra n.3 at p.575

maintain proper efficiency in administration and services. Certain nature of duties, general responsiveness towards public welfare and associated interest must be examined in the candidate. Some services require special skills and different kind of technical training and are within the purview of reservations11. This is to avoid any mishaps regarding the nature of the job and profession. These services or posts need a specialized nature of skill, intelligence and technical know-how attached to them. Hence reservations may be contrary to the spirit of excellence and may lower the efficiency of administration or profession as envisaged by Article 335. Basis of reservations pre-Indra Sawhney whether caste was a suitable indicator or not: State of Madras v. Champakam Dorairajan12- In the present case, the Government of Madras had reserved certain number of seats in State medical and engineering colleges for students. The basis of reservation and differentiation here was caste, religion and race. The State sought to defend the law on grounds valid under Article 46. However, the Supreme held the view that it was a primarily anti-meritorious practice which sought to undermine progress and development. It was unfair against open competition which advocated high educational standards and intelligent outlook. Moreover, it sought to further divide the already fragmented social structure on basis of the ruinous cleavages of race and caste which would further distance the classes of people from each other. Thus the First Amendment 1951 added Article 15(4) to make the practice more effectively functional.

11 12

Supra n.3 at p.576 AIR 1951 SC 226

 M.R.Balaji v. State of Mysore13- In the present case, the Mysore Government issued a reservation scheme in accordance with Article 15(4) where seats were reserved in State medical and engineering colleges. Here seats reserved for the Backward Classes were 28%. A further reservation of 20% on the same was made and the Scheduled Castes and Scheduled Tribes were provided a reservation of 18%. Thus the total count of reserved seats for professional studies was 68%. The Supreme Court held that caste should not be the predominant factor forming the basis for reservations. Even though caste is an indicator laid down by means of a relevant test, it would stand invalidated. It was further held that Backwardness was a relative concept suited to different mental perceptions. Thus it should not be solely differentiated on the basis of caste or racial considerations, but the social and educational background should be considered. The other relevant factors like domicile, occupation and economic condition should also be considered. Sub-classification of Backward classes is not allowed. They felt that the use of caste solely as a basis of classification determining the backwardness of a community was wrong because unlike Hindus, other sects like Muslims, Sikhs, and Christians did not believe in the caste system. Thus it should not be treated as the predominant factor in ascertaining social, educational and economic backwardness. Since the reservation policy was such that reserved seats in educational institutions were 68% it was necessarily detrimental to educational standards. Thus there would be a general reservation quota of upto 50% of the seats. The principle laid down in Article 15(4) for equality should violate the basic principle of equality in (1).

13

AIR 1963 SC 649

 Devadasan v. Union of India 14- This case tested the validity of the carryforward rule. The carry-forward rule laid down that if in a particular year sufficient number of candidates were not available for posts of recruitment for any specific community then those unfilled vacancies would be treated as unreserved seas open to general competition. These reserved vacancies would be added as an additional quota in the following year. Thus this additional quota would also fall under reservations adding to the number of already reserved seats. Thus the unfilled vacancies would be carried forward over the subsequent years for SCs and STs. Thus the total reservation percentage came upto 65% which was against the 50% ceiling. A class once considered a backward class and whether it was adequately represented was purely under States prudent discretion. The carryforward rule was invalidated.

Chitralekha v. State of Mysore15- The Mysore Government completely ignored caste consideration in determining backwardness of classes. They adopted the basis of income and occupation alone to reserve seats at educational institutions. This was a wrong approach too as wholly omitting caste considerations was impermissible. However it was held by the Court that this approach was valid and did not offend Article 15 (4). State of Andhra Pradesh v. U.S.V. Balaram16- This case laid down that caste should not be set down as the sole test for determining backwardness of a group of citizens. If at a given point of time, such a group is wholly

14 15

AIR 1964 SC 179 AIR 1964 SC 1823 16 AIR 1972 SC 1375

educationally or socially backward it cannot be considered to continually be backward. K.S.Jayshree v. State of Karnataka17- The present case saw the Kerela Government decide that families having an income beyond Rs.10000 were not be considered eligible for being provided the benefits of reservations. It identified poverty as a factor of determining backwardness.

Identification of backward class of citizens in Article 16(4): The Constitution and its makers had envisioned a unified, secular and homogenous society which would not be torn apart by ugly shades of casteism, religious communalism, color, domicile and language. India and its diversity was one of the primary reasons why the nation adopted a federalist structure of governance for administrative convenience so as to ensure equality among all sections of society. Thus caste is never considered the desirable ground to provide reservation as it causes unnecessary discrimination and differentiation on a wrong basis that can only promote mutual hatred and disturb the peaceful balance in society. However caste has been mentioned as the permanent basis that should be used to provide for reservations as per the Mandal Commission Report. It has treated backward classes and backward castes as synonymous terms, which uses caste as the only exclusive factor to provide reservation to individuals, which excluded all other considerations including economic background. The Commission proposed that the nations population could be roughly divided into two parts backward and forward, whereby 52% of population was in the former category. However as per the learned counsels good faith of prudence this proposition of reservation of posts on this basis would be disastrous for the proper progression of our country and seriously harm the efficiency and competency of the services and administrative machinery of more
17

AIR 1976 SC 2381

than half the posts were reserved for appointment solely on the basis of caste and not merit or vocational talent 18. The main thrust of argument against the Mandal Commissions ideology tries to establish that backwardness must be determined by laying down said standards of social, educational and economic backwardness. The other major approach is that backward castes and backward classes are not necessarily synonymous. Therefore unified criteria should be laid down to determine backwardness which must necessarily include economic condition in addition to educational and social status. Then such criteria should be applied to all the different groups to test whether the groups qualify in totality or in part.

ANALYSIS
The Mandal Commissions major objective was to investigate and determine the basis on which the backward classes could be recognized. The social and economic and educational background of such individuals was considered. However caste was laid down as a major indicator to determine the status of such citizens which further deepened the ruinous cleavages fragmenting our social structure. It reached the consensus that SCs/STs and OBCs constituted nearly 52% of the population to be uplifted towards progression. Thus it recommended 27% reservations in matters of public employment in government jobs thereby resting the quantum of equilibrium among the majority and minority at 50%. The recommendations were adopted by the V.P. Singh government in August 1990 which saw widespread discontent, riots and protests against the implementation of the same. However in 1991, the Narasimha Rao government rightly sought to modify the same. It was laid down that poorer sections and economically challenged individuals would get the benefits of reservation and an additional quota of 10% reservation would be introduced for any economically backward

18

Supra n.3 at p.542

class if they were not covered under any other reservation scheme. This was subsequently challenged by Indra Sawhney v. Union of India19 which was decided by a Nine-judge Bench with a ratio 6:3. The Court specifically laid down that affirmative action or conferring benefits in form of reservations and equal opportunity was not wrong on part of the State. However, what factors and indices it chose to decide & determine and reasonably classify the class of individuals was important. The Constitution itself provided for special treatment to be given to the backward classes. The historic timeline was aware of the social division of labor and lives in Indian society caste and its associated evils formed a vicious circle within the Hinduism fold. Hence the consideration of differentiation on the basis of caste was challenged. Moreover the principles of equality as laid down by Article 14 were strengthened whereby the equal treatment among equals principle was observed. It was noticed that as per the means test which imposes an income limit for the purpose of exclusion of certain people whose income is beyond that limit. The creamy layer as contended by the petitioner was the better half of the group which was known to be socially and educationally backward. However, some of the members of such groups were already highly socially advanced and economically and educationally sound. Thus they were as fit and forward as any other member of the mainstream society but were lapping up the benefits and defeating the very social objective of achieving equality within the society and not allowing such benefits to reach the truly backward sections of that class. Thus it brought about a violation of the principle of equality among equals. Since they were lapping up the benefits of reservations, which they did not truly deserve they were perpetuating equal treatment of unequals with relation to the backward classes and unequal treatment of equals in relation to the mainstream majority. Thus the Supreme Court rightly upheld the object of providing special educational opportunities and employment benefits to salvage the economic

19

AIR 1993 SC 477

interests of the weaker sections of the backward classes including Scheduled Castes and Scheduled Tribes and protect them from social injustice.

AFTERWORD
The case is highly debatable and has had a considerable impact on the Indian socio-political scenario. The Supreme Court has consciously sought to explain the legality and necessity of affirmative action in its governance policy. Moreover the Supreme Court laid down certain guidelines considering past situations and the present scenario which required a more progressive outlook. The three main impacts: Reservations were validated for Backward Classes. A 50% ceiling was imposed to ensure equality of opportunity and maintenance of efficiency and standards. The creamy layer was distinguished by careful examination of existing economic conditions and was rightly excluded from any reservation category. The judgment cannot be considered omnipotent and sacrosanct. It has its flaws. The Supreme Court has tried to minimize the reverse discrimination evils as much as possible. However, even today rules laid down are flouted. The Tamil Nadu government for instance, increased reservation granted to 69% rather than decreasing it to 50%. Moreover, a more blatant violation was noticed in the form of addition of clause 4(a) to Article 16, which validated reservations regarding promotions, clearly violating the ruling of the Supreme Court. Thus we all have to give India a more equal society based on awareness and consolidated effort.