Indra Sawhney Etc. vs Union Of India And Others, Etc. on 16 November, 1992
Equivalent citations: AIR-1993 SC 477, 1992 Supp 2 SCR 454
(Indira Sawhney case)
Contents of the INDIRA SAWHNEY VS. UOI, 1993
|1.||BACKGROUND AND HISTORY|
|2.||FACTS OF THE CASE|
|5.||CONCLUSIONS OF THE CASE|
1.Background and History (Indira Sawhney case)
During the making of our constitution, our framer have analyzed that English slavery turn into a great gap between classes of group in citizens of India. To eradicate such backwardness gap, framers decide to the constitution in such way that people get equal opportunities in representation of public employment. Article 16 empowers the state to make any provision to related to eradication of socially backwardness if the state thinks fit in its opinion
But for achieving this goal the two questions arose in consideration which was raised because of this Indira Sawhney Case:-
- Who will be treated as the backward class people for the purpose of the articles?
- Who will be treated as the adequate in the employment under state?
As there was no appropriate definition or guidelines has been given in the applying the article 16(4). So that ruling party can take advantages behind the gap and utilized in their own favour .
For the instance, this case also known as MANDAL CASE laid an important role to find the answer for the two questions.
2. Facts of the Indira Sawhney case
On January 1st, 1979, the ruling party govt. of Morar ji Desai appointed a second backward commission (KAKA KALLELKAR COMMISSION was first backward commission in 1953) under the Article 340 of the Constitution chairmanship of B.P MANDAL to investigate the socially and backward class of people within the territory of India and recommended certain steps to eliminate the socially gap and promote equal opportunities in public employment.
Ø The Mandal commission submitted its report on December, 1980 in it’s report the commission identified almost 3743 castes as socially & educationally backward classes & recommended for reservation of 27% (twenty seven) in Government jobs.
Ø In the meantime due to some internal disturbance within the party the GOVT collapsed & thus it could not implement the recommendations made by MANDAL Commission and after that next government which was Congress, headed by the first lady Prime Minister Smt. INDIRA govt. came to the power at center. But she did not implement the MANDAL COMMISIONS report till 1989. In 1989 the CONGRESS Government also toppled due to the defeat of the general election.
Ø After winning the election JANATA DAL again came to the ruling & decided to implement the report of the commission. After that time V.P.SINGH government issued office of memorandum on 13/08/990 & reservation done 27% seats for the Socially and Backward classes.
Ø This effect of this notification turn into civil disturbance throughout the INDIA. From several places anti reservation movement spread in the nation for 3 months. It results a huge calamity and loss of persons & property.
Ø A writ petition was filed from the BAR ASSOCIATION OF THE SUPREME COURT for Challenging the validity of Office of Memorandum issued by the ruling GOVT.
Ø The case was ultimately concluded by the 5 Judges bench. Hon’ble Court issued a stay order till the final disposal of the case on October 1st , 1990. Unfortunately in the meanwhile JANATA GOVT. again collapsed due to defections & in 1991 by the Parliamentary elections and the Congress again formed the GOVT. at center.
Ø To handle the situation & also for the political gain then PM- P.V. NARSHIMA RAO issued modified office of memorandum by making 2 changes
- by introducing the economic criterion in granting reservation within 27% in Govt. Job. &
- Reserved another 10% of vacancies for the socially & educationally backward classes. That is total 37% (27% 10%)
Ø The 5 (five) judge’s bench referred this matter to the 9 judges bench who issued a notice to the Govt. to reveal the cause of the criteria upon which the GOVT. has proposed to make 27% reservation for them. But despite of taking several adjournments the GOVT of India has failed to explain the criteria mentioned in the office of memorandum.
3) Issue Framed By The hon’ble Court:–
In this case the court framed the subsequent issues:-
- Whether Article 16(4) is an exception to Article 16(1) and would be exhaustive of the right to reservation of posts in services under the State?
- What would be the content of the phrase “Backward Class” in Article 16(4) of the Constitution and whether caste by itself could constitute a class and whether economic criterion by itself could recognize a class for sub clause 4 of Article 16 and whether “Backward Classes” in Article 16(4) would include the “weaker sections” mentioned in Article 46 as well?
- If economic criterion could not constitute a Backward Class by itself under Article 16(4), whether reservation of posts in employment under the State, based exclusively on economic criterion would be covered by Article 16(1) of the Constitution?
- Can the scope of reservation of posts in the services under the State under Article 16(4) or, if allowed under Article 16(1) and 16(4) together, exceed 50 % of the position in a cadre or Service under the State or exceed 50% (fifty) of appointments in a cadre or service in any particular year and can such extent of reservation be made without determining the inadequacy of representation of every class in the different classes or categories and grades of facility under the State?
- Does Article 16(4) permit the classification of ‘Backward Classes’ into Backward Classes and Most Backward Classes or permit classification among them based on economic or other considerations?
- Would making “any provision” under Article sub clause 4 of 16 for reservation “by the State” necessarily have to be by law made by the legislatures of the State or by law made by Parliament? Will the scope of judicial review be limited or restricted in regard to the identification of Backward Classes and the percentage of reservations made for such classes, to a demonstrably perverse identification or a demonstrably unreasonable percentage?
- Whether the reservation of appointments or posts “in favour of any Backward Class” be restricted to the initial appointment to the post or would it extend to promotions as well?
- Whether the matter should be sent back to the Five-Judge Bench or not?
The nine judges of Bench of the Supreme Court by ratio of 6-3 majority gave the following judgments:-
I. Backward class(BC) of citizen in Article 16(4) of the Constitution of India can be recognized on the basis of the caste system and not solely on economic basis.
II. Article 16(4) of the Constitution of India is not an exception of Article 16(1). It is an instance and helpful in the classification. Reservation(आरक्षण) can be made under article 16(1).
III. Backward classes in Article 16(4) of the Constitution of India were not similar to as socially & educationally backward in article 15(4).
IV. Creamy layer in the provision must be excluded from the backward classes.
V. Article 16(4) of the Constitution of India permits classification of backward classes into backward & more backward classes.
VI. A citizens belonging to backward cannot be considered only & exclusively with reference to financial condition criteria.
VII. Reservation shall not exceed more than 50%.
VIII. Reservation can be done by the ‘EXECUTIVE Order’.
IX. No reservation is done in promotion.
X. Permanent Statutory body is made to examine complains of over – inclusion or under – inclusion.
XI. Majority decided that there’s no need to express any opinion on the correctness or adequacy of the exercise done by the MANDAL COMMISSION report.
XII. Disputes regarding the notifications new criteria can be raised nowhere other than in the Supreme Court.
5. Conclusion :–
The decision of this case no doubt but laid down a workable & reasonable solution to the reservation problem. But in spite of that the politicians are still trying the manipulate and dilute the effect of the decision of this case with intention to political gain. Subsequently three Constitutional amendments were made regarding the issues listed below.
1. The Constitution 77th Amendment in 1995:-
by this amendment a new clause were added under Article 16 & i.e., Article 16(4-A). Which empowers the State to make or introduce to make a provision for reservation in matter of promotion to any class or classes of posts in the service of the State/Nation in favour of the Schedule Caste and Schedule tribes (SC & ST) ?
2. The Constitution 77thAmendment in 2000:-
by this amendment a new clause (4–B) was added under Article 16. By this amendment it was fixed that reservation can exceed above 50% reservation for SC, ST & BC if there any backlog vacancies would raise which could not be filled/occupied up in the previous years due to the non-availability of eligible candidates.
3. The Constitution 77th Amendment in 2001:-
By the amendment the word “in the matter of promotion to any classes” were interchanged by the words “in the matter of promotion with consequential seniority, to any classes”