CONSTITUTION OF INDIA

Case Study

Indra Sawhney v. Union of India

By:

Roll No. Name Course/Branch

N281 Aayush Tayal MBA Tech CS

N282 Anant Teng MBA Tech CS

N283 Divyansh Tiwari MBA Tech CS

N284 Prasfur Tiwari MBA Tech CS

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 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 person’s
occupation is divided on the basis of his position on the social ladder.

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 Commission 1 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.
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 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
Mehrotra 4 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

2
Indra Sawhney v. Union of India AIR 1993 SC 477 at p. 536
3
AIR 1991 SC 2288
4
Supra n.3 at p.2293
5
AIR 1981 SC 298
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.

 Whether reservations promote anti-meritorious practices:

M.R. Balaji v. State of Mysore 7 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. Thomas 9 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

6
Supra n.3 at p.538
7
AIR 1963 SC 649
8
AIR 1973 SC 930
9
AIR 1976 SC 490
10
Supra n.3 at p.575
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 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 Dorairajan 12 - 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

11
Supra n.3 at p.576
12
AIR 1951 SC 226
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.
  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 State’s 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).

14
AIR 1964 SC 179
15
AIR 1964 SC 1823
  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
educationally or socially backward it cannot be considered to continually be
backward.

 K.S.Jayshree v. State of Karnataka 17 - 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 nation’s population could be roughly divided into two parts ‘backward’ and

16
AIR 1972 SC 1375
17
AIR 1976 SC 2381
‘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
than half the posts were reserved for appointment solely on the basis of caste and
not merit or vocational talent18. The main thrust of argument against the Mandal
Commission’s 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 Commission’s 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%

18
Supra n.3 at p.542
reservation would be introduced for any economically backward 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

19
AIR 1993 SC 477
salvage the economic 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.