INDRA SAWHNEY VS UNION OF INDIA : SUPREME COURT STAMPS CASTE BASED RESERVATION

The Supreme Court in a landmark judgment Indra Sawhney & Ors Vs Union of India & Ors (1992) Suppl. (3) SCC 217 has validated the Union of India memorandums providing for reservation to the extent of 27% for Other Backward Classes (OBC) in civil posts and services of the Government and had held inter alia that caste can be basis for providing reservation. While this judgment has been held by some as giant step towards social justice, it has also drawn criticism from some quarters like Nani Palkhiwala as a regressive  judgment which will revitalize casteism and cleave the nation into forward and backward.

Union of India on the basis of Mandal Commission  Report issued Office Memorandum in 1990 providing for reservation to OBC to the extent of 27 % in Civil Posts and Services. This has led to wide scale protests and even few students had committee suicide. This Office Memorandum was challenged before the Supreme Court in several Writ Petitions.

Following were some of important issues which were decided by the Supreme Court.

Whether provisions under Article 16 (4) has to be made by Parliament or State Legislature ?

The provisions of reservation has been made by an executive order. It was contended before the Supreme Court that provisions for reservation under Article 16 (4) can be made only by Parliament or State Legislature. This has been repelled the Supreme Court. The Supreme Court held that 16 (4) empowers State to make provision. The definition of State under Article 16 (4) includes Legislature, Executive and Local Authority also. As such the Executive is competent to make provisions for reservation under Article 16 (4) of the Constitution.

Whether Article 16 (4) is an exception of Article 16 (1) ?

The Supreme Court in T. Devadasan Vs Union of India (1964) 4 SCR 680 has held that 16 (4) is an exception to 16 (1)  following judgment of the Supreme Court in M. R. Balaji Vs State of Mysore (1963) Suppl 1 SCR 439 wherein it has been held that 15(4) is an exception to 15 (1). The Court noted that till Balaji and Devadasan it had not been recognized that Article 16 is a facet of Article 14 and classification is permissible under Article 16. In State of Kerala Vs. N. M. Thomas (1976 ) SCR 490 it was recognized that Article 16 is a facet of Article 14 and permits classification. The Court held that 16(4) is not an exception of Article 16 (1) but rather a facet of it.

The Court also held that Article 16 (4) is not exhaustive of the concept of reservation in favour of OBC.

How to identify  Backward Class of Citizens in Article 16 (4) ?

Backward Class of Citizens has not been defined in the Constitution. The Court noted that in pre-independence India, class and caste has been used interchangeably and caste was understood as enclosed class. In the Constitution the term “caste” may not have been used because caste does not exist in Islam, Christianity or Sikh religion. The Supreme Court held that “caste” used in  16 (4) is not antithetical to class. Class has been used to connote “social class” and not a class as understood in Marxism. Caste is a social class as well as an occupational grouping whose membership is hereditary. Endogamy is its main characteristic.  The Supreme Court recommended survey of communities for identifying  Backward Classes. A caste in India can often be social class for purposes of Article 16 (4).

Whether 16 (4) applies to only socially and educationally backward classes ?

The Court noted that in Balaji it has been assumed that 16 (4) applied to socially and educationally backward classes following provisions of Article 15 (4). This assumption has no basis. Article 15 (4) has been inserted by 1^st Amendment which is qualified by socially and educationally. There is no such qualifications in 16 (4).

Whether Creamy Layer should be excluded ?

The Court held that exclusion of socially advanced members will make a class truly backward class and would more appropriately serve the purposes and object of  Article 16 (4). The Supreme Court directed the Government of India for exclusion of creamy layer. This is not applicable to Scheduled Tribes and Scheduled Castes.

Whether representation should be adequate or proportion  ?

Representation in services have to be given to such OBC, whose representation is inadequate. There does not exist provision for proportionate reservation. Representation has to be only adequate.

State has to determine whether representation is adequate or not. Backward class can not be determined on the basis of only and exclusively on economic criteria. It can be in addition to social backwardness. Backward class can be identified without reference to caste. Backward classes can be divided in backward and more backward classes.

What should be extent of reservation ?

The Court held reservation can be upto 50 % of posts in direct recruitment. Only in extraordinary circumstances this limit can be relaxed. The Supreme Court differentiated between vertical reservation and horizontal reservation. Reservation for SC/ST and OBC are examples of vertical reservation. Horizontal reservation cut across vertical reservation and also called interlocking reservation.  Reservation granted to physical handicapped  persons are example of horizontal reservation.

Whether there can be reservation in promotion ?

The Supreme Court overruled findings in General Manager, Southern Railway Vs Rangachari (1962 ) AIR 36 to the extent that it permitted reservation in Promotion. The Supreme Court applied this aspect of judgment prospectively.

Should some services be excluded from reservation ?

The Supreme Court held that there are certain positions and duties where merit only counts. In such positions reservation will not be advisable. Some positions identified by the Supreme Court are technical posts in Research and Development Organizations, Specialties and Super Specialties in medicine, engineering and other such courses and defense services.

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