CASE COMMENTS

Indra Sawhney v. Union of India' A Review

Vikram Singh"

Introduction

In realisation of the Constitutional mandate for affirmative action, enshrined in Articles 14,15 (4),16 (4), 338(10) and 340 (1) read in the light of Article 46 of the Constitution of India, the central government set up the First Backward Classes Commission (Kaka Kalelkar Commission) in 1953 under Article 340. The Commission submitted its report in 1955. After consideration, the government of India in August 1961, took a decision, which in effect amounted to the rejection of the same. Thereafter, in 1979, the Second Backward Classes Commission- was set up by the President under Article 340 (1) and it submitted its report on 31 December 1980. Its report was duly tabled and discussed in Parliament and was under examination till 1990. It was on 7 August, 1990, that the then Prime Minister V. P. Singh, made the announcement that the government was accepting the Mandai Commission recommendation of reservation of 27 per cent of the jobs in all central government offices and public institutions.

Events unfolded rapidly thereafter. The first Official Memorandum in this regard3 was issued for 27 per cent reservations in the central services and public sector undertakings for the socially and educationally backward classes,' comprising in the first instance, the castes and communities common to the lists of the Mandal report and the States. Several students burnt themselves, the governments fell, Prime Ministers came and went. One year later, the P. V. Narasirnha Rao government issued the second Office Memorandums which was for preference within this 27 per cent, to the poorer sections of the SEBCs, and for 10 per cent reservations for the economically backward sections of the people not covered by the existing schemes of reservations.

The Supreme Court of India was seized of the matter in the backdrop of widespread student unrest and riots occurring in every part of the country, with nearly every campus in northern India, up in flames. On September 11, 1990, the Supreme Court transferred to itself all writ petitions challenging the implementation. Thus commenced a two-year long attempt by the Court to balance judicial pragmatism on the one hand and political opportunism on the other.

'IV Year, B.A., LL.B [Hons.), NLSIU. 1. AIR 1993 SC 477.

2 Hereinafter Mandai Commission.

3. No. 36012/31/90- ESTT. (SCT) dated 13 August, 1990.

4. Hereinafter SEIlC.

5. Dated 2Septembe 1991

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The Broad Issues Examined

The Supreme Court nine-judge" Bench constituted for the first time to finally settle the legal position on reservations, delivered its [udgrncnt" on 16 November, 1992. Though the efficacy of the much-maligned Mandai Commission report was the topic of the day, in the heated public controversy surrounding the passage of the decision iu lndra Sllwlmcy v. Union of IndiJ3, the issues before the Court did not centre around the validity of the Report but of the impugned memorand urns and various otherconsti tutional issues relati ng to the concept of compensatory discrimination itself.

The broad issues raised before the Supreme Court revolved around the nature and scope of the constitutional provisions for reservations in public employment and the related concept of equality of opportunity in the same. These issues can be broadly classified under the following heads:

(a) Scope and extent of Article 16 (1) and 16 (4).

(b) Definitive parameters of the term "backward class of citizens." (c) The identification criteria applicable.

(d) Nature and extent of reservation permissible.

In this judgment, Chief Justice M. H. Kania and Justices M. N. Venkatachaliah, A. M. Ahmadi, B. P. Iecvan Reddy and P. B. Sawant? held the first Government Order as valid and enforceable, subject to the exclusion of the creamy layer from the notified SEBCs as per clause (i) of the second order on preference to the poorer sections and clause (ii) on 10 per cent reservations for the economically backward sections as invalid. Justice S. R. Pandian 10 held the first Order as valid ill toto and both clauses of the second as invalid. Justices T. K. Thommen, Kuldip Singh and R. M. Sahai!' held both the Government Orders as invalid for want of convincing proof of proper identification of the Other Backward Classes12 by recourse to relevant criteria.

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Reservations and Constitutional Mandate - Scope and Extent of Article 16 (1) and 16 (4)

The first major issue which had to be decided by the Bench was the scope and extent of the mandate granted under Article 16 (1) and 16 (4) to the State to make reservations. The Bench was of the opinion that both the clauses had the same scope of operation and their related observations were, that "clause (4) of Article 16 is not an exception to clause (1) of Article 16. It is an instance of classification implicit in and permitted by clause (1) ... it must be read along with and in harmony with clause (1)." 13 The Bench thus overruled the decision in T. Deoadasen v. lndia,14 and approved the dicta in Stllte of Kerala v. N. M. 17lOlnllS.15

6. The largest Supreme Court bench, preceding this judgment, constituted 10 review a reservation issue has been

the seven judge bench which decided State of Kerala v. Thomas, A1R 1976 SC 490.

7. The Judgment constituted six separate judgements covering almost 911 pages.

8. Supra, n. 1.

9. Common judgment by Justice Reddy on behalf of Lhe majority and a concurring judgment by Justice Sawan!. 10 Separate judgment.

11 Common order but separate judgments. 121 Iereinafter OBCs.

13. Held by the majority, vide paras 57, 121(2)(a).

14 AIR 1964 SC 179. The Court in a 4-1 majority held that Art. 16(4) was in the nature of a provisio or exception to Art. 16(1).

15 AIR 1976 SC 490. The Court in a 5-2 majority held that even if the State didn't adopt the reservation policy so as to clearly rome under Art. 16(4), the scheme could be upheld under Art. 16(1) if the tests of reasonable classification and reasonable relaxation were applied positively. Art. 16(4) was not an exception to Art. 16(1).

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Six of the judges were of the opinion that Article 16 (4) was exhaustive of reservations for the backward classes alone/and not of the very concept of reservations, while the minority concluded that Article 16 (4) included all types of reservations within its purview and no reservation was permissible under Article 16 (1). The majority added a rider to the reservation permissible under Article 16 (1), in the form of an exceptional public interest redressal restriction.

Backward Class of Citizens: Definitive Parameters

The next stage in the articulation of the Court's pronouncement involved, sctti ng the definitive parameters of the phrase "backward class of citizens" in Article 16 (4). It gains a special import for two reasons, - it limits the identi fication criteria applicable in idcn tifying the same and it differs from the phrase enshrined in the subsequently introd uccd Article 15 (4).

The majority was of the view that from the usc of the word "class" in Article 16(4), it could not be concluded that:

i. "class" was antithetical to "caste", or

ii, a caste could not be a class, or

iii. a caste as such could never be taken as a backward class of citizens.

It went on to state that "the word 'class' in Article 16(4) is used in the sense of social class and not in the sense as it is understood in the Marxist jargon. There arc very good reasons why the Constitution could not have used the expression 'caste' in Article 16(4) .... " 16 Hence a caste could, in the opinion of the Court, be defined as a social class -(1 socially and occupationally homogeneous class.

The Identification: Criteria Applicable

Within the aforementioned definitive parameters of Article 16(4), the Mandal Commission applied certain criteria for identification of those classes which would be eligible for the reservations contemplated subsequently. The criteria were vociferously criticized and a number of issues raised centred around the validity of the same.

The Class-Caste Nexus

The accent in the use of the term "backward" for purposes of Article 16(4), was set by the majority upon social backwardness and hence, for understanding the content of the expression "backward class" in the said Article and for the purposes of identifying the classes within its ambit, it is imperative to understand the cas te-class nexus in that context.

Though the majority was of the opinion that "class" for the purposes of Article 16(4) is used in the sense of a social class, as mentioned earlier, Justices Thommen, Kuldip Singh and Sahai observed that "class" under Article 16(4) could not be read as "caste". Chief} ustice Kania and Justices Venkatachaliah, Ahmadi, and [ccvan Rcdd y however, went on to clarify their position. They felt that the classification attempted was not on the basis of caste but on the ground that the caste is found to be a backward class, not adequately represented in the

16 See, paras 80,81,82, 121(3)(a), 577.

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services of the State. Justice Sawant added that in order to constitute a backward class, the caste concerned had to be socially backward and its educational and economic backwardness had to be on account of its social backwardness. Thus, the majority opinion concurred with the basic postulate enunciated by the Mandai Commission that both educational and economic backwardness was traceable back to social backwardness.'?

On the question of caste as a relevant and dominant criteria, the majority opined that caste was a "dominant factor or primary criterion in determining the backward ness of a class of citizens" and that it did not offend Article 16(4). The reasoning advanced was that what Article 16(4) requi red was identification and not classification and hence any factor contributing to a class's social and educational backwardness, which included caste as a dominant one, would naturally also supply the basis for idcntificatlon.!" Th us, a caste could become a 'backward class' provided that the caste satisfied the test of backwardness and the test of inadequate representation.

The minority however/differed radically. It was of the opinion that "class" under Article 16(4) could not be read as "caste" and that "not adequately represented in the services under the State" was the only test for the identification of a class under Article ]6(4). A logical conclusion drawn from the same is that, in their view, social backwardness emanated from either cd ucational Or economic backwardness, a classical example of the "which-came-first, the-chicken-or-the-egg" syndrome.

Economic Criteria

While virtually all the judges recognised the relevance of caste for identifying social backwardness, all but Justice Kuldip Singh held the determination of backwardness only and exclusively wi th reference-to economic criteria as invalid. That explai ns the rejection by all but Justice Kuldip Singh of the 10 per cent reservations for the economically backward sections. His opinion is based on the conclusion that poverty, which breeds backwardness all around the class into which it strikes and which invariably results in socio-economic and educational backwardness is the "culprit cause" of all kinds of backwardness,

The "Creamy Layer" exclusionary principle

Departing from the well-established judicial principle of allowing the entire group identified to be eligible for reservation benefits, the bench for the first time (excl uding Justice Pandian) evolved the "creamy layer exclusionary principle", that is excluding the advanced sections of the OBCs from the benefits of reservation. Thus, Chief Justice Kania, and Justices Venkatachalaiah, Ahmadi and [eevan Reddy observed:

In a backward class under clause (4) of Article 16, if the connecting link is the social _ backwardness, it should broadly be the same in a given class. If some members are far too advanced socially (which in thc context necessarily means economically and may also mean ed ucationally), the connecting thread between them and the remaining class snaps. They would be misfits in the class .. _l9

17. Report of the Second Backward Classes Committee (New Delhi: Government of India, 1980) 19 10 32; (hereinafter Mandai Commission).

18. See, Paras 83, 83A, 121(3)(b), 206, 231, 366, 412.

19. See, pans 86, 121(~)(d), 450-1.

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However, realising the difficulty in deciding on the drawing line, and the likely danger of taking away with one hand what is given by the other, as against the "means test" proposed by Justices Thommen, Kuldip Singh and Sahai, they cautioned, that the exclusion should not merely be on economic basis but on the basis of social advancement. The Court imposed a 4 month limitation on the Centre and a 6 month limitation on the States to evolve the said basis of exclusion and subsequently implement the same.zo

The creamy layer exclusionary principle however, as mentioned earlier, runs contrary to the judicially sanctioned legal framework contemplated by the founding fathers. It tends to overlook certain vital facts, such as,21

(a) that the Constitution makes special provisions for "classes" and hence as Chinnappa

Reddy, J. opined,

Class poverty, not individual poverty, is therefore the primary test. .. Despite individual exceptions, it may be possible and easy to identify social backwardness with response to caste ... 22

(b) that the framers of the Constitution advisedly used the expression SEBCs in Article 340 of the Constitution and not "economically backward."

(c) that Article 16(4) provides for reservation for backward classes if they are not adequately represented in the services. Hence, if a backward class does not have adequate representation in the services of the State, the question of applying economic criteria to individuals does not arise. Applying the creamy layer exclusionary principle would result in the further decrease in the representation of the OBCs in the services.

Nature and Extent of the Reservations Permissible

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On the issue of the nature, extent and scope of reservations permissible under the envisaged Constitutional mandate, the Bench evolved the following principles:

1. Though a sub-classification oj the OBCs20A was not imperative, there is no Constitutional or legal bar to such classification if the state chooses to do so. Thus/if backward classes were classified on the basis of the degrees of social backwardness, separate quotas of reservations would have to be kept for each of such classes. That explains their reading down clause (i) of the second Government Ordcr.P

2. Reservations should be a one-time affair, confined to only initial appointments and no: pl'Omotions.24 Notwithstanding the bar on promotions, the State was not prevented from

20. The government appointed the Ram Nandan Prasad Committee to evolve the required criteria for exclusion

of the creamy layer. It sought to exclude the following: i. Persons holding constitutional posts.

ii. Class I are officers of the All Ind ia Centre and State services. iii. H both parent are Class II officers, children nol eligible.

iv. Those with gross annual income of Rs. llakh and above in the non-governmental secIor. v. Property holders based on the extent of land holdings.

21.Vikaram Singh, "Constitutional Validity of Implementation of the Manual Commission

Recommendations," (1991) 3 NLSJ: 143,149.

22. Vasanth Kumar v. State of Karnataka, AIR 1985 SC 1495; (emphasis supplied).

23. Justice Pandian disagreed with this opinion of the Majority.

24. In observing so, the Bench overruled the Court's decision in General Manager, Southern Rail ways v. Rangachari, AIR 1962 Sc 36, wherein a 3·2 majority held that Art. 16(4) covered both initial appointments and promotions; (emphasis supplied).

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offering the OBCs donations, exemptions, concessions, and such other facilities, consistent with the maintenance of efficiency of the administration, to enable them to compete for career advancement. However, the bur on reservations inpromotionseems to partially ignore the reality. Even though the OBC candidate will on paper, have the same career advancement options open to any other candidate, the invisible hand of the social stigma attached to his caste and social background would always be operating as an obstacle to the same.

3. Though the majority have on one hand observed that the rule of reservations cannot be called unii-meriiarian, or the-other, they have preferred, for various reasons, the exclusion of certain services and posts from this rule.2.'l

4. Ordinarily.the reservations under Article 16(4) for all classes should not exceed 50 percent, and that while in extraordinary si tuations, some relaxation in the strict rule may become imperative, in doing so, extreme caution has to be exercised and a special case, made out.

5. Related to the 50 per cent rule is the directive of the majority.that for purposes of applying it, a year should be the unit and not the entire strength of the cadre, service, or the unit as the case may be: and though carry fonvCII'd of unfilled reserved vacancies is not pCI' se unconstitutional, the operation of such a rule should not result in the breach of the 50 per cent rule .. 26

In Conclusion: Judicial Pragmatism and Political Status Quo

The lndra Sawhney case'? has been a stormy two year mammoth joint venture, undertaken by the judiciary and the executive in an attempt to uphold the constitutional mandate, supporting and necessitating confirmative, compensatory, discriminatory state action in order to ameliorate the miserable plight,of 52% of our populace which is "SOCially and educationally backward". The resulting judgment as expected." upheld the vires of the first office memorandum, reading down the operation of clause (i) of the second, while invalidating clause (ii) of the latter.

The Court upheld the orders as per the letter of the law, whilethe government pursued the same end result as per the dictates of the law of vote banks. Both succeeded in their separate endeavours. However, in the ultimate analysis it is the people of India who have suffered -the OBCs, the SC/STs, the forward classes ----everyone. The Mandai Commission Report recommended a five-pronged strategcrn to combat the crippling social handicaps which included special ed ucational facilities forOBe children, vocational training, financial assistance in upgrading the skills of the OBC artisans and major structural changes especially in land holdings patterns, inter alia.29 The government conveniently focussed on only one aspect, job reservations, and overlooked the other aspects o£ the recommendations, - which involved long term planning and infrastructural expenditure and had no noticeable

25_ Examples cited are defence services, all technical posts in research and development establishments, teaching posts of professors i medicine, engineering and other scientific supcrcialities, posts of pilots inter alia.

26. The Bench thus overruled the Court's decision in Devadasan's case, supra, n. 14, wherein the Court had in

effect invalidated a Rule permitting the carry forward rule. 27_ AIR 1993 SC 477.

28. See Supra, n. 20 at P: 153.

29. MandaI Commission Report, Vol. 62.

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short term benefits which could be translated into votes. The apex court of the land when confronted by an executive order which complied with the constitutional mandate and the letter of the law, had no option but to uphold the validity of the same.

However, all said and done, this judgment will have far reaching consequences. The economy is rapidly undergoing massive structural realignments, playing to the tunc of the recently introduced New Economic Policy. Instability is writ large on the political scenario. The State presence is vanishing steadily. Critics of the judgment are of the opinion that the judgment will fast lose relevance as no reservation is possible in the libcraliscd and privatiscd industrial and agro-based sectors. Privatisation of the public sector is resulting in the shrinking of the field of reservations permissible in at least the Central PSUs. Technological know-how, skilled competent labour is the need of the hour. Whem·will the SEBCs stand then? What answer docs the Constitution, with its mandate for compensatory affirmative action by the State, have to that? What answer does the judiciary have to that? Will it strike down the present liberalisation policy? Not likely .... the country is fast losing the right to make any choice whatsoever.