Indira Sawhney v. Union of India

Indira Sawhney  v.  Union of India

 

Date               : 16th November, 1992

 

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

 

 

Facts :

The Mandal Commission was established in India in 1979 by the Janta Party government under Prime Minister Morarji Desai, with a mandated to “identify the socially or educationally backward classes”. It was headed by Indian Parliamentarian, B . P . Mandal to consider the question of seat reservations and quotes for “backward classes”. It used eleven social, economic, and educational indicators to determine backwardness. In 1980, the Commission gave its Report which gathered dust for ten long years. Ten years later, V. P. Singh, the then Prime Minister of India, announced in Parliament that the government would implement the Mandal recommendations. The announcement of the Prime Minister was followed by a strong and violent reaction of the student community in all part of India, and particularly in the north. The anti-Mandal protest manifested itself not only in rallies, meetings and discussions in the media, but also in the form of attacks on public property, burning of buses and other forms of violent demonstrations. Several writ petitions were also filed in the name of Indira Swahney, a practising advocate of the Supreme Court. All the other petitions were consolidated by the Supreme Court which decided to pass orders in this case – where the points agitated were the same as in the other petitions.

Issues Raised :

The questions raised before the 9-member Bench of the apex court – and the answers given by the majority of the 9-member Bench of the court – can be summarised as follows:

  1. 1 : Whether Art. 16(4) of the Constitution forms and exception to Art. 16(1).
[ Art. 16(1) guarantees equality of opportunity to all citizens in matter relating to employment or appointment to any office under the state. However, Art 16(4) allows the state to make any provision for reservation of appointments or posts in favour of any backward class of citizens, which in its opinion, is not adequately represented in the services under the state. ]

Ans.  1   : The court held that Art. 16(4) is not an exception to Art. 16(1). It is only and instance and an illustration of th4e classification inherent in Art 16(1).

 

  1. 2 : Would the making of “any provision” by the state under S. 16(4) for reservation have to be only by an act of an appropriate legislature – or could this also be done by an executive order?

Ans.  2   : It is not necessary that such a provision should be necessarily be made by a legislature. It can even be done by the executive.

 

  1. 3 : What interpretation is to be put on the phrase “Backward classes” in Art. 16(4) and whether caste by itself could identify a class for the purpose of the Art. 16(4).

Ans.  3  : The farmers of the Constitution must have had something in their minds when the word “class” and not the word  “caste”. The expression “backward class of citizens” is not restricted t classes who are situated similarly to scheduled castes and scheduled tribes. A “caste” per se cannot fall within the term “backward class of citizens” unless it satisfies the primary test of social backwardness and educational and economic backwardness which are the established and accepted criteria to identify a “backward class”. Also the “creamy layer” in the backward class should not be entitled to benefits of any reservation and such persons should be treated on  par with the “forward” classes. If the creamy layer amongst the backward classes is not excluded, then the benefits of reservation will not reach the really backward among the backward classes.

 

  1. 4 : If economic criteria by itself cannot constitute a “backward class” whether reservation of posts based exclusively on economic considerations should be valid.

Ans.  4    : A backward class of citizens cannot be identified only and exclusively with reference to economic criteria. Such a class should be socially and educationally backward. Mere economic backwardness cannot be the sole criterion for this purpose.

  1. 5 : Whether the extent of reservations  can exceed 50% of the appointments in a cadre.

Ans. 5     : Ordinarily, the reservation for all classes cannot exceed 50%/. This rule of 50% is to be applied each year. It cannot be related to the total strength of the class category, service or cadre, as the case may be.

 

  1. 6 : Whether reservation for backward classes, as guaranteed by the constitution , relate only to the initial appointment – or they also apply to promotion as well.

Ans. 6     : Reservation in favour of backward class can only be made in initial stage of recruitment. Such persons must compete with others and earn a promotion like all others. Supreme Court overruled its earlier decision in Rangachari’s case where the court had held that the policy of reservation would extend to promotions also. The Constitution was thereafter amended to provide for reservation in promotions too.

 

  1. 7 : Whether the extent of judicial review would be limited or restricted to the identification of the backward classes and the percentage of reservations made for such classes.

Ans. 7      : The action of the government in making reservations for backward classes is a matter of government policy. The judicial scrunity of such action would be the same as in other matters within the subjective satisfaction of the authority.

 

  1. 8 : Is a reservation policy by definition ant-ment? Can merit be sacrificed in the interests of social justice ?

 

Ans. 8       :  If reservation are made, some sacrifices  of merit is likely to be made; but this is the price which the country has to pay for achieving social justice. However, the Constitution clearly mandates  that when reservations are made for scheduled castes and scheduled tribes, efficiency of the administration should also be maintained, as directed by Art. 335. The condition would equally apply to reservations for backward classes.

 

Conclusion  :

The Central Government and all the State Governments should, within a period of four months, constitute a permanent body for entertaining, examining and making recommendations on requests received by it for inclusion in the lists of backward classes of citizens. The advice tendered by such a body should be ordinarily binding on the Government. With a period of four months, the Government should specify the bases, after applying the relevant socio – economic criteria, to exclude socially advanced persons and sections – the “creamy layer” – from the ambit of “other backward classes”.

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