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INDRA SAWHNEYV. UNIONOF INDIA

Any discussion on the Mandal case must be dealt with in the following order1. Facts and circumstances leading to the implementation of the Mandal Commission

Report

2. Issues dealt with in the case3. Constitutional Amendments that came after the judgment

Anything that follows is substantially plagiarized from JN Pandey, Constitutional Law ofIndia. pp. 135-151.

Facts

January 1, 1979-The Moraji Desai government appointed of backward classes

commission under Article 340 of the Constitution under the chairmanship of BP Mandal

to investigate the socially and educationally backward classes, recommend steps to be

taken for their advancement and making provisions for reservation of seats for them ingovernment jobs. The Commission submitted its report in December 1980. It identified

as many as 3743 castes as socially and educationally backward and recommended forreservation of 27 percent of government jobs. Subsequently with the fall of the Janata

Govt and victory of the Congress party the report was never implemented until 1989.

In 1989 the Congress party was defeated in the parliamentary elections and the Janata Dal

came to power and decided to implement the Commission Report as it had promised to

the electorate. The government of India under the prime ministership of VP Singh issued

an Office Memorandum (OM), on August 13, 1990 preserving 27 percent seats forbackward classes in government services on the basis of the recommendations of the

Mandal Commission. This through the nation into turmoil and the violent antireservation movement resulted in a huge loss of persons and property. A recognition onbehalf of the Supreme Court Bar Association was filed challenging the validly of the

Office Memorandum. A five judgment of the Supreme Court stayed the Office

memorandum until October 1, 1990. In the meantime the Janata Govt collapsed in theparliamentary elections 1991 and the Congress party came to power.

The Congress party headed by P. V. Narasimha Rao issued another Office memorandum

on Sept 25, 1991 which differed from the earlier Office Memorandum on two grounds1. Introduction of an economic criterion in granting reservation by giving preference to

poorer sections of socially and educationally backward classes in the 27 percent quota

2. Reservation of 10 percent of vacancies for other socially and educationally backwardclasses of the higher castes.

This matter was then referred to a nine Judge Constitutional Bench of the Supreme Courtin to finally settled legal position relating to reservations. In this case the court examined

a variety of issues(11) with the majority of 6:3. The Supreme Court examined the scope

and extent of Article 16 (4) in detail and clarified various aspects on which there were

differences of opinion in earlier judgments.

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Issues (In this matter see also Paragraph 121 of the Original Judgment)

1. Whether a backward class of citizens can be identified on the basis of caste andnot economic criterion-the majority opinion is that a caste can quite often be and case a

social class in India and if it is backward socially it would be a backward class for thepurposes of Article 16 (4). Even classes among non-hindus, Muslims, Christians and

Sikhs may be entitled to reservation if they are backward. It was held that the

Constitution does not prescribe the procedure for identification of backward classes and itwas not advisable for the court to lay down any such procedure. Identification of

backward classes it was held was to be done by the authority which was competent to do

so and caste may be a relevant criterion among others as a test of backwardness.

However, castes alone cannot be taken into consideration for purposes of identification ofbackward classes.

2. Whether Article 16 (4) is an exception Article 16 (1)-it was held that Article 16 (4)

is not an exception Article 16 (1) but an independent clause and reservation can be madeunder Article 16 (1) on the basis of reasonable classification. In this matter the Court

overruled the decision of Balaji vs State of Mysore and approve the decision of State ofKerala vs NM Thomas. It held that Article 16 (4) is a facet of the doctrine of equality

enshrined in Article 14.

3. Whether backward classes in Article 16 (4) is similar to socially and educationally

backward classes in Article 15 (4)-the majority opinion held that backward class of

citizens contemplated in Article 16 (4) is not the same as socially and educationally

backward classes referred to in Article 15 (4) and has a marked wider ambit. Thebackward class of citizens in Article 16 (4) takes in essays and STS and all other

backward classes of citizens including socially and educationally backward classes. The

Court overruled the Balaji case on this point and held that it was not necessary for classto be designated as backward that it is situated similarly to Schedule castes and scheduled

tribes.

4. Whether creamy layer must be excluded from backward classes-the majority

opinion held that the creamy a must be excluded. The court directed the government of

India to set up a commission within four months of the decision specifying the basis for

applying the relevant and requisite socio-economic criterion to exclude socially advancedpersons-the creamy layer-among the backward classes.

5. Whether Article 16 (4) permits classification of backward classes into backward

and more backward classes-the Court overruled the Balaji case and held that the sub

classification between backward classes and more backward classes is not

unconstitutional. It was held that the classification is necessary to help the morebackward classes in getting the benefits of reservation.

6. Whether a backward class of citizens can be identified only with respect to

economic criterion.-it was held that Article 16 (4) is not aimed at economic upliftment

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or alleviation of poverty but it was aimed more at giving a due share of State power to

those who have remained out of it mainly on account of their social backwardness which

have led to their educational and economic backwardness therefore social backwardnesswould be the criterion and not economic backwardness.

7. Percentage of reservation-the court affirmed the Balaji judgment in this matter andheld that reservation was not exceed 50 percent. The court relied on the speech by Dr B.

R. Ambedkar who and stated that reservation must be confined to minority of seats. In

this matter the Court overruled the decision in State of Kerala vs NM Thomas and K. C.Vasanth Kumar vs State of Karnataka. The Court also overruled the decision in they case

Devadasan vs Union of India which had affirmed the carry forward rule. The Court

however held that in certain far-flung States the 50 percent limit can be exceeded.

8. Whether reservation can be made by executive order-the court reaffirmed the

decision in Balaji vs State of Mysore and stated that reservation may be made by

executive order.

9. Whether reservation may be made in promotion-it was held that under Article 16(4) reservation cannot be made in promotion and is confined to initial appointments. But

it was held that this provision would not effect promotions which have already been madeand that promotions may continue for a period of five years and within this period the

authoritative are to revise, modify or reissue rules relating to promotion.(Prospective

overruling applied). The court thus overruled the following casesa. General manager, Southern Railway vs Rangachari

b. State of Punjab vs Hira Lal

c. Akhil Bharathiya Shoshit Karmachari Sangh vs Union of India

d. Comptroller and Auditor General Of India, Gian Prakash vs. KS JagannathanThe Court held that this was consistent with the object enshrined in Article 335 and stated

that although at the initial stages reservation can be made for them once they enter the

service efficiency demands that these members compete with others and earn promotionslike all others.

10. Setting up of a permanent statutory body to examine complaints

11. Mandal Commission Report - The validity of the report was questioned but there aredifferences of opinion on this matter and the question of the need of another commission

was raised but no express opinion was cast on this matter.

12. Disputes to be raised before the Supreme Court

Amendments

The case of Indra Sawhney v. Union of India attracted 5 Constitutional Amendments

1.76th Constitutional Amendment, 1994 - Insertion of legislation into the 9th Schedule as

Item 257 A2.77th Constitutional Amendment, 1995 - Insertion of Article 16(4A) for reservation in

promotion

3.81st Constitutional Amendment, 2000 - Insertion of Article 16(4B) with regard to thecarry forward rule

4.82nd Constitutional Amendment, 2000 - Insertion of proviso to A 335

5.85th Constitutional Amendment, 2001 - Edited Article 16(4A) for consequential

promotion

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