Article 16(4) of the Indian Constitution empowers the State to make a special

provision for those backward classes who in the opinion of the State are not
adequately represented in the service under the State.

[Case Brief] Indra Sawhney & Others v. Union of India

Case name: Indra Sawhney & Others v. Union of India

Case number: AIR 1993 SC 477, 1992 Supp 2 SCR 454

Court: Supreme Court of India

Bench: M Kania, M Venkatachaliah, S R Pandian, . T Ahmadi, K Singh, P Sawant, R Sahai,

B J Reddy, TK Thomen, JJJJJJJJJ.

Decided on: 16 November, 1992

Relevant Acts/Sections: Constitution of India, Art. 15(4), 16(1), 16(4), 340(1).

 FACTS AND PROCEDURAL HISTORY:

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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 BEFORE THE COURT

1. Whether the Article 16(4) is exception of Article 16(1) or not?

2. Whether in Article 16(4) backward classes are similar as SEBCs in Article 15(4) or
not?
3. Whether the classification between backward class into backward or more backward
class is valid or not?
4. Whether the classification is based on the caste or economic basis?

 RATIO OF THE COURT

1. Cases referred:

 Balaji v. State of Mysore AIR 1963 SC 649

 State of Kerala v. N.M. Thomas AIR 1976 SC 490
 Devadason v. Union of India AIR 1964 SC 179

2. The court found that Clause (4) of Article 16 is not an exception to Clause (1)
thereof. It only carves out a section of the society, viz., the backward class of citizens
for whom the reservations in services may be kept. The said clause is exhaustive of
the reservations of posts in the services so far as the backward class of citizens is
 concerned. It is not exhaustive of all the reservations in the services that may be kept.
The reservations of posts in the services for the other sections of the society can be
kept under Clause (1) of that Article.
3. The court found that the backward class of citizens referred to in Article 16(4) is the
socially backward class of citizens whose educational and economic backwardness is
on account of their social backwardness. A caste by itself may constitute a class.
However, in order to constitute a backward class the caste concerned must be socially
backward and its educational and economic backwardness must be on account of its
social backwardness. The economic criterion by itself cannot identify a class as
backward unless the economic backwardness of the class is on account of its social
backwardness. The weaker sections mentioned in Article 46 are a genus of which
backward class of citizens mentioned in Article 16(4) constitute a species. Article
16(4) refers to backward classes which are a part of the weaker sections of the society
and it is only for the backward classes who are not adequately represented in the
services, and not for all the weaker sections that the reservations in services are
provided under Article 16(4).
4. The court found that no reservations of posts can be kept in services under the State
based exclusively on economic criterion either under Article 16(4) or under Article
16(1).
5. 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.
6. The court found that Article 16(4) permits classification of backward classes into
backward and more or most backward classes. However, this classification is
permitted only on the basis of the degrees of social backwardness and not on the basis
of the economic consideration alone. If backward classes are classified into backward
and more or most backward classes, separate quotas of reservations will have to be
 kept for each of such classes. In the absence of such separate quotas, the reservations
will be illegal. It is not permissible to classify backward classes or a backward class
social group into an advanced section and a backward section either on economic or
any other consideration. The test of advancement lies in the capacity to compete with
the forward classes. If the advanced section in a backward class is so advanced as to
be able to compete with the forward classes, the advanced section from the backward
class no longer belongs to the backward class and should cease to be considered so
and denied the benefit of reservations under Article 16(4).
7. The court found that provisions for reservations in the services under Article 16(4)
can be made by an executive order.
8. The court found that there is no special law of judicial review when the reservations
under Article 16(4) are under scrutiny. The judicial review will be available only in
the cases of demonstrably perverse identification of the backward classes and in the
cases of unreasonable percentage of reservations made for them.
9. Court found that 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.
10. The court found that 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.\
11. The court particularly in this case observed that after the issue of Office of
Memorandum (O.M.) by the GOVT. of INDIA regarding implementation of the
 recommendation made in the MONDAL COMMISSION report a wide spread
violence occurred throughout the INDIA by which large number of public &
properties were get effected by it. So Court considering the social scenario appealed
to the people to keep peace & maintain social order.
12. Court also observed & also admitted that this types of problem which mainly occurred
from the caste system & which we are now facing is nothing but a consequence of our
own fault as we created in our ancient day & till we have been following. It is really a
peril for our society. But we being judges can’t overlook it because otherwise basic
object of the Constitution will be defeated. Our duty is to interprete this provision i.e.,
Art. 16(4) in such a way so that the true object of the framer of the constitution can
easily be find out.
13. Court also pointed out that the Part-III of the Constitution (mainly deals with
FUNDAMENTAL RIGHTS)&- Part III of the Constitution (mainly deals with
FUNDAMENTAL DUTIES)are the core sections the constitution which was enacted
for removal of historic injustice and inequalities either inherited or artificially created
in the INDIAN society.
14. The court also observed the idiotic practise our society where the moment a child
comes out of the mother's womb in a Hindu family and takes its first breath and even
before its umbilical cord is cut off, the innocent child is branded, stigmatized and put
in a separate slot according to the caste of its parents despite the fact that the birth of
the child in the particular slot is not by choice but by chance.
15. The concept of inequality is unknown in the kingdom of God who creates all beings
equal, but some people have created the artificial inequality in the name of castism
with selfish motive and vested interest. In this respect the court also pointed out the
view of SWAMI VIVEKANANDA where he one of his letter referred “Caste or no
caste, creed or no creed, or class, or caste, or nation, or institution which bars the
power of free thought and action of an individual - even so long as that power does
not injure others - is devilish and must go down”.

 DECISION HELD BY THE COURT

The 9 judges Constitution Bench of the Supreme Court by 6-3 majority gave the
following judgements:-
1. Backward class of citizen in Article 16(4) can be identified on the basis of the caste
system & not only on economic basis.
2. Article 16(4) is not an exception of Article 16(1). It is an instance of the classification.
Reservation can be made under article 16(1).
3. Backward classes in Article 16(4) were not similar to as socially & educationally
backward in article 15(4).
4. Creamy layer must be excluded from the backward classes.
5. Article 16(4) permits classification of backward classes into backward & more
backward classes.
6. A backward class of citizens cannot be identified only & exclusively with reference
to economic criteria.
7. Reservation shall not exceed 50%.
8. Reservation can be made by the ‘EXECUTIVE ORDER’.
9. No reservation in promotion.
10. Permanent Statutory body to examine complains of over – inclusion / under –
inclusion.
11. Majority held that there is no need to express any opinion on the correctness or
adequacy of the exercise done by the MONDAL COMMISSION.
12. Disputes regarding new criteria can be raised only in the Supreme Court.