CASE COMMENT:-INDRA SAWHNEY V.

UNION OF INDIA

BRIEF FACTS:-

On January 1, 1979, then prime minister Morarji Desai appointed the second
backward class commission under article 340 which was headed by Shri B.P. Mandal.
This commission was formed to investigate the socially and economically backward
classes in India and make a roadmap for facilitating the upliftment of their status by
giving them equal opportunity in the employment sector. The commission in its
report recognized about 3743 castes as socially and economically backward classes
and recommended a reservation of 27% for people belonging to these castes in
government sector jobs.

The implementation of this decision was delayed as Janata Dal’s government

collapsed due to internal disturbance and gained back power in 1989. after regaining
power, then prime minister VP Singh issued an office of the memorandum on the 13 th
of August 1990 and reserved 27% seats for the socially backward classes. This
decision sparked a major uproar in the subcontinent. Anti reservation movements
rocked several places in the nation resulting in a huge loss of people and property. Bar
Association of Supreme Court filed a writ petition in SC to challenging the validity of
this decision.

To assuage the public emotion and tackle the ongoing unrest, then PM, PV Narsimha
Rao issued another office of the memorandum which created an economic criterion in
granting the 27% reservation and granted an additional 10% reservation exclusively to
the socially and economically backward classes. This matter was referred to a 9-
Judge bench which issued a notice to the government for disclosing the criterion on
which 27% reservation for the socially and economically backward classes is
proposed.

ARGUMETS
Counsel for the petitioner:- Mr NA. Pakhiwala, Mr KK Venugopal, Smt.
Shayamala Pappu, Mr PP Rao.
 The counsels for the petitioner argued that the idea proposed by the Mondol
Commission will ameliorate the anathema of the caste system in our society
which will shatter the spirit of secularism imbibed in our constitution.
 The petitioner side stated that such decisions can lay a negative impact on the
diverse culture of the society which is marching as a whole towards the goal of
the welfare state.
 The petitioner argued that the report prepared by the Mondol commission is
highly inaccurate in identifying the “backward classes” as it is based on the
census conducted in 1931. Petitioners recommended a report to be created after
the completion of a fresh survey.
 Petitioner stated that such a decision will lay a bad impact on meritocracy and
will promote mediocrity.
 The petitioners also argued that the report made by the Mondal commission will
demoralize the meritorious candidates appearing for public employment, it will
also brutally transgress the ideal of equality enshrined in our constitution.

Counsel for the Respondent:-

 The respondent side argued that negation of this decision will affect the
fundamental right of SEBCs guaranteed under article 16(4) of the constitution of
India.
 The respondent side negated the claim of the petitioner side that the report of the
commission is highly inaccurate as it is based on the census of 1931. respondents
stated that systematic case-wise enumeration of the population was discontinued
from the year 1931 and that is why the figure of caste wise population beyond
1931 are not available.
  The Commission only after thoroughly and meticulously considering the social,
educational and economic backwardness of various classes of citizens of our
country in the light of the various propositions and tests laid down by this Court
had submitted its Report enumerating various classes of persons who are to be
treated as OBCs.
 The respondent argued that as the commission has acted under the authority of
the notification issued by the president, there is no violation of the constitution in
the instant case. Respondents stated that “Though 'equal protection' clause
 prohibits the State from making unreasonable discrimination in providing
preferences and facilities for any section of its people, nonetheless it requires the
State to afford substantially equal opportunities to those, placed unequally.”

ISSUES:-

In this case, the Supreme Court framed the following issues: -

1. Whether Article 16(4) is an exception to Article 16(1) and would be exhaustive of

the right to reservation of posts in services under the State?

2. What would be the content of the phrase "Backward Class" in Article 16(4) of the
Constitution and whether caste by itself would constitute a class and whether
economic criterion by itself could identify a class for Article 16(4) and whether
"Backward Classes" in Article 16(4) would include the "weaker sections" mentioned
in Article 46 as well?

3. Whether reservation of posts in services under the State, based exclusively on

economic criterion would be covered by Article 16(1) of the Constitution?

4. Can the extent of reservation of posts in the services under the State under Article
16(4) or, if permitted under Article 16(1) and 16(4) together, exceed 50 % of the posts
in a cadre or Service under the State or exceed 50% of appointments in a cadre or
service in any particular year and can such extent of reservation be determined
without determining the inadequacy of representation of each class in the different
categories and grades of Services under the State?

5. Whether Article 16(4) permits the classification of 'Backward Classes' into

Backward Classes and Most Backward Classes or permit classification among them
based on economic or other considerations?

6. Whether "any provision" under Article 16(4) for reservation "by the State" be made
by an executive order?
7. Whether the extent of judicial review be limited in regard to the identification of
Backward Classes and the percentage of reservations made for such classes, to a
demonstrably perverse identification or a demonstrably unreasonable percentage?

8. Would reservation of appointments or posts "in favour of any Backward Class" be

restricted to the initial appointment to the post or would it extend to promotions as
well?

JUDGEMENT:-

This case dealt with some important substantial questions of law which had far-
reaching implications and consequences. Various constitutional provisions were taken
into account in this case.

While dealing with the question regarding the scope and extent of Article 16(1) read
with 16(4), the majority held 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.

The court held 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. After
thorough analysis of pre-independence history, Constituent Assembly Debates and Dr
Ambedkar's speech in the Parliament at the time of the First Amendment where he
said that backward classes "are nothing else but a collection of certain castes", the
majority concluded that a classification based on caste was constitutionally
permissible. The rationale was that "a caste is nothing but a social class – a socially
homogeneous class" and that mere use of "class" as used in Article 16(4) cannot
render it antithetical to "caste". 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. Reservations, based exclusively on
economic criterion, are not permissible under the State either under Article 16(4) or
under Article 16(1). 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).

Ordinarily, reservations under Article 16(1) and 16(4) together should not exceed
50% of the appointments in a particular year. However, this percentage may be
exceeded only for extra-ordinary reasons, which have to justified on valid grounds.
For determining the adequacy, representation at different levels of administration has
to be taken into consideration and not just the total number.

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 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).
The provisions for reservations in the services under Article 16(4) can be made by an
executive order.

Ordinarily, judicial review is not available when reservations under Article 16(4) are
under scrutiny. However, in the cases of demonstrably perverse identification of the
backward classes and in the cases of unreasonable percentage of reservations made
for them, judicial review would be available.

The Hon’ble Court held that reservations in the promotions are unconstitutional. Any
effort to provide reservation at promotion would affect the efficiency of
administration and violate the principle of equality enshrined under Article 16(1).
However, the backward classes may be provided with relaxations, exemptions,
concessions, 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.

SUBSEQUNT DEVELOPMENT IN THE JURISPRUDENCE OF INDIRA

SAWHNEY CASE:-

A significant amount of jurisprudential evolution has been done w.r.t to reservation in

promotions.  In Ajet singh Januja case and Veer Pal singh Chauhan case- it was
held that we cannot have the consequential seniority you have to follow catchup rule
in order to determine date of seniority. Further in case of S. Vinod Kumar v Union
of India it was argued that lowering of the marks may result in ultimately reduction in
administrative efficacy. The constitutional mandate enshrined under Article 335 bars
on compromise of administrative efficacy. Hence in this case lowering of marks was
looked as the hit on administrative efficacy.(in comment mention about how in this
phase the efficacy is decided by how much marks is scored, it’s like going back to
colour blind notion of equality)
Subsequently, Vajpayee government bought three constitutional amendments. 81st,
82nd and 85th amendments which dealt with the reservation. The 81st amendment
brought 16(4)(B) which says you can carry forward beyond 50% (challenging Indira
Swahney and Devdasan case directly). 82nd amendment dealt with proviso to Article
335 which says that lowering of the marks will not be considered as lowering the
administrative efficacy (challenging Vinod Kumar ratio). 85th amendment made
amendment to 16(4)(a) (check the Article) which now says that the government can
provide reservation with consequential seniority. Hence this was legislative overruling
of some of the landmark cases on reservation.

These amendments were challenged in Nagraj Case. The case extensively dealt with
reservation in promotion.  Court in Nagraj held that every time the state needs to have
the reservation in promotion it needs to satisfy certain things-
1- Demonstrate the backwardness of SC/STs.
2- SC/STs are inadequately represented in relevant public service.
3- Maintain the overall efficacy of the admiration.

Nagraj case is not just about some constitutional amendment upholding them is just a
facade. The essence lies in these 3 points. Court by applying these conditions for
proving backwardness may be testing the waters. In future these conditions may be
imposed on the entry level. Reservation in promotion is a testing point of idea of
proving backwardness, and just belonging to a community does not establish you
backward resulting in the license of reservation

The BK Pavitra case I (2017) also struck down the reservation in promotion as it
does not comply with the Nagraj standards. In 2018 Jarnail Singh v Lakshmi
Narayan Gupta case was decided. In this case the issue is Nagraj in laying these
criteria a departure from previous precedents. Has it overruled Indira Sawhney?
Because it could not be done as it was a smaller bench. In a five judge bench held by
Nariman J. held that there is no need to revisit the Nagraj case as it is not in
contradiction with Indira Sawhney. Between Indira Swahney and Nagraj there are
many constitutional amendments and the court is just adjudicating on those
constitutional amendments. Since Nagraj is not based on similar facts it could not
have overruled Indira Swahney. Hence Jarnail Singh brings the creamy layer
concept on reservation in promotion.

BK Pavitra II case on the question of consequential seniority and creamy layer the
court held that the Jarnail singh only talked about the promotion in reservation and not
about the consequential seniority. On the point of administrative efficacy
Chandrachud J. relied on Amartya Sen and held that we should not look solely at the
merit, rather inclusiveness should be consider.
EV Chinnaiah v State of Andhra Pradesh- there was an Andhra Pradesh law which
has made sub-classification in SC community. Some SC were considered more
backward to which SC said that you can’t do it. SC said that SC is a homogeneous
group where you cannot further characterise. This ratio stayed for quite some
time.This whole idea was relooked in State of Punjab v Davinder Singh(2020)- in
this case there was a punjab law which further sub-categorised the SC community. In
the law the 50% of the SC seats were reserved for the balmakis and mazhabi sikhs in
punjab. This was challenged on ground of Chinnaiah and was further referred to a
larger bench for reconsideration. In 2020 Arun Mishra J. severly critiqued chinniah
and further referred it to 11 judge bench as chinnaiah was also 5 judge bench and
some aspect of Indira Sawhney is also considered. Probably the indication is
chinnaiah will strike down but it is presently pending in Supreme Court. Arun J. held
that in cases like Jarnail Singh where the creamy layer separation is allowed in the SC
community which itself indicate that the SC is not a homogenous group  further sub-
classification is possible.

The recent controversy has emerged after the reservation based on Economic and
Weaker section of the society. Though this was earlier introduced through an office
memorandum which was subsequently struck down through Indira Swahney case but
currently it is introduced through 103rd constitutional amendment. Now it would have
to survive Basic Structure scrutiny. This case is currently pending in Supreme Court.