Sawhney

Page 1 of 3 INDRA SAWHNEY V. UNION OF INDIA

Any discussion on the Mandal case must be dealt with in the following order  1. Facts and circumstances leading to the implementation of the Mandal Commission Report 2. Issues dealt with in the case 3. Constitutional Amendments that came after the judgment Anything that follows is substantially plagiarized from JN Pandey, Constitutional Law of  India. pp. 135-151. Facts

Janua January ry 1, 19791979-Th Thee Mora Moraji ji Desa Desaii gover governm nmen entt appo appoin inte ted d of backw backwar ard d clas classe sess 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 in government jobs. The Commission Commission submitted submitted its report in December 1980. It identified identified as many as 3743 castes as socially and educationally backward and recommended for  reservatio reservation n of 27 percent of government government jobs. Subsequentl Subsequently y with the fall of the Janata 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 prime ministership ministership of VP Singh issued an Office Memorandum (OM), on August 13, 1990 preserving 27 percent seats for   backward classes in government services on the basis of the recommendations of the Manda Mandall Comm Commis issi sion on.. This This thro through ugh the the natio nation n into into turm turmoi oill and the the viol violent ent anti anti reservation movement resulted in a huge loss loss of persons and property. A recognition on  behalf of the Supreme Court Bar Association was filed challenging the validly of the Offi Office ce Memo Memora rand ndum um.. A five five judgm judgment ent of the the Supr Suprem emee Cour Courtt stay stayed ed the the Offi Office ce memorandum memorandum until October October 1, 1990. In the meantime meantime the Janata Janata Govt collapsed collapsed in the  parliamentary 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 grounds 1. 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 Reservation of 10 percent percent of vacancies for other socially socially and educationall educationally y backward backward classes of the higher castes. This matter was then referred to a nine Judge Constitutional Bench of the Supreme Court in to finally settled legal position relating to reservations. In this case the court examined a variety of issues(11) 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 and not 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 the  purposes 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 it was 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 of   backward 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 made under 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 of  Kerala 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. The  backward 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 class to 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 advanced  persons-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 more  backward 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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Page 3 of 3 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 backwardness would be the criterion and not economic backwardness. 7. Percentage of reservation -the court affirmed the Balaji judgment in this matter and held 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 p romotions which have already been made and 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 cases a. 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 Jagannathan The 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 promotions like 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 are differences 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 A 2.77th 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 the carry 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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