SASI K.G.

Indra Sawhney etc. v. Union of India and Others, etc. (AIR 1993 SC 477, 1992 Supp 2 SCR 454) or Indra Sawhney Case or Mandal Case, as it is popularly known was pronounced in open Court by a nine member constitution bench of the Supreme Court of India on 16.11.1992. Of the nine member bench, B.P.Jeevan Reddy, J., wrote the majority opinion on his own behalf and on behalf of Chief Justice M.H. Kania and M.N. Venkatachaliah and A.M. Ahmadi, JJ. S. Ratnavel Pandian, T.K.Thommen, Kuldip Singh, P.B.Sawant and R.M.Sahai, JJ., wrote separate opinions.[i] This case has considered the constitutional validity of the reservation to public employments and educational courses. The scope and area of the subject matter of this case is very vast and the judgment itself is considered in State of U.P. & Ors. v. Bharat Singh & Ors[ii] as the locus classicus on the subject of reservation. Before going any further let us consider the historical facts of the case first.

01. Historical Facts of Indra Sawhney Case

01. Caste as Major Discrimination

The Hindu society for a few centuries were divided into thousands of castes which enjoyed rights and responsibilities though customary law. These customary laws were not all egalitarian in nature and caused huge discrimination. The main philosophy behind this discrimination was the millennium old chaturvarna system. However, nature of employment, sources of raw materials and technology, possession of knowledge and weapons, enjoyment of power of the nation and religion, distribution of wealth etc were also prominent. However, during the National Movement for freedom, the propaganda aspect of these disabilities concentrated in caste, as the British had taken much advantage of the division of Indian people into castes, through their divide and rule policy. The eradications of caste and its main evil of untouchability gained prominence in reformative actions of pre-independence scenario. It was universally accepted that the main disadvantage of India was not the foreign rules, as it was averred that India had benefitted much from them, but only the caste system which kept the majority of Indian people under slavery by their own better coloured brethren. It was also generally believed that the high caste people could suppress the majority low caste people, not only because of the superiority of the high class, but also due to the sense of inferiority of the low caste brought into them though the efforts of a few centuries. B.P.Jeevan Reddy, J. in the judgment of Indra Sawhney case states, “……………………. the Hindu religion – the religion of the overwhelming majority - as it was being practiced, was not known for its egalitarian ethos. It divided its adherents into four watertight compartments. Those outside this fourtier system (chaturvarnya) were the outcastes (Panchamas), the lowliest. They did not even believe all the caste system - ugly as its face was. The fourth, shudras, were no better, though certainly better than the Panchamas. The lowliness attached to them (Shudras and Panchamas) by virtue of their birth in these castes, unconnected with their deeds. There was to be no deliverance for them from this social stigma, except perhaps death. They were condemned to be inferior. All lowly, menial and unsavoury occupations were assigned to them. In the rural life, they had no alternative but to follow these occupations, generation after generation, century after century. It was their 'karma', they were told, the penalty for the sins they allegedly committed in their previous birth. Pity is, they believed all this. They were conditioned to believe it. This mental blindfold had to be removed first. This was a phenomenon peculiar to this country. Poverty there has been - and there is - in every country. But none had the misfortune of having this social division - or as some call it, degradation - super-imposed on poverty. Poverty, low social status in Hindu caste system and the lowly occupation constituted - and do still constitute - a vicious circle[iii].”

02. Constitutional Rights of the Backward Classes

B.P.Jeevan Reddy, J. goes on stating when commenting on the constitutional provisions, “The doctrine of equality has many facets. It is a dynamic, and an evolving concept. Its main facets, relevant to Indian Society, have been referred to in the preamble and the articles under the sub-heading "Right to equality"-(Articles 14 to 18). In short, the goal is "equality of status and of opportunity". Articles 14 to 18 must be understood not merely with reference to what they say but also in the light of the several articles in Part IV (Directive Principles of State Policy). "Justice, Social, Economic and Political", is the sum total of the aspirations incorporated in part IV.[iv]” He adds, “The content of the expression "equality before the law" is illustrated not only by Articles 15 to 18 but also by the several articles in Part IV, in particular, Articles 38, 39, 39A, 41 and 46[v].” In the Original constitution as approved by the Constitution Assembly, Article 15 had only three clauses, and the fourth clause enabling the State for making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes was added later[vi]. Relevant provisions of Articles are reproduced hereunder.

“15. (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to—

(a) access to shops, public restaurants, hotels and places of public entertainment; or

(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.

(3) Nothing in this article shall prevent the State from making any special provision for women and children.

[(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.[vii]]

[(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.[viii]]

16. (1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.

(3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office [under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory[ix]] prior to such employment or appointment.

(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.

[(4A) Nothing in this article shall prevent the State from making any provision for reservation [in matters of promotion, with consequential seniority, to any class[x]] or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which,

in the opinion of the State, are not adequately represented in the services under the State.[xi]]

[(4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled

up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year.[xii]]

(5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.

17. “Untouchability” is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of “Untouchability” shall be an offence punishable in accordance with law.

18. (1) No title, not being a military or academic distinction, shall be conferred by the State.

(2) No citizen of India shall accept any title from any foreign State.

(3) No person who is not a citizen of India shall, while he holds any office of profit or trust under the State, accept without the consent of the President any title from any foreign State.

(4) No person holding any office of profit or trust under the State shall, without the consent of the President, accept any present, emolument, or office of any kind from or under any foreign State.”

Constitution Part IV, Articles 38, 39, 39A, 41 and 46 are reproduced below.

“38. [(1)[xiii]] The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.

[(2) The State shall, in particular, strive to minimize the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.[xiv]]

39. The State shall, in particular, direct its policy towards securing—

(a) that the citizens, men and women equally, have the right to an adequate means of livelihood;

(b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good;

(c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment;

(d) that there is equal pay for equal work for both men and women;

(e) that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength;

[(f) that children are given opportunities and facilities to develop in a healthy manner and in

conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.[xv]]

[39A. The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.[xvi]]

41. The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.

46. The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.”

In addition to the above Articles 335, 338, 338A ,339, 340, 341 and 342 also are relevant in this regard. They are reproduced below.

“335. The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State:

[Provided that nothing in this article shall prevent in making of any provision in favour of the members of the Scheduled Castes and the Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State[xvii].]

338. [(1) There shall be a Commission for the Scheduled Castes to be known as the National

Commission for the Scheduled Castes.

(2) Subject to the provisions of any law made in this behalf by Parliament, the Commission shall consist of a Chairperson, Vice-Chairperson and three other Members and the conditions of service and tenure of office of the Chairperson, Vice-Chairperson and other Members so appointed shall be such as the President may by rule determine.[xviii]]

(3) The Chairperson, Vice-Chairperson and other Members of the Commission shall be appointed by the President by warrant under his hand and seal.

(4) The Commission shall have the power to regulate its own procedure.

(5) It shall be the duty of the Commission—

(a) to investigate and monitor all matters relating to the safeguards provided for the Scheduled Castes[***[xix]] under this Constitution or under any other law for the time being in force or under any order of the Government and to evaluate the working of such safeguards;

(b) to inquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Castes [***[xx]];

Scheduled Castes [***[xxi]] and to evaluate the progress of their development under the Union and any State;

(d) to present to the President, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards;

(e) to make in such reports recommendations as to the measures that should be taken by the Union or any State for the effective implementation of those safeguards and other measures for the protection, welfare and socio-economic development of the Scheduled Castes [***[xxii]]; and

(f) to discharge such other functions in relation to the protection, welfare and development and

advancement of the Scheduled Castes [***[xxiii]] as the President may, subject to the provisions of any law made by Parliament, by rule specify.

(6) The President shall cause all such reports to be laid before each House of Parliament along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the Union and the reasons for the non-acceptance, if any, of any of such recommendations.

(7) Where any such report, or any part thereof, relates to any matter with which any State Government is concerned, a copy of such report shall be forwarded to the Governor of the State who shall cause it to be laid before the Legislature of the State along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the State and the reasons for the non-acceptance, if any, of any of such recommendations.

(8) The Commission shall, while investigating any matter referred to in sub-clause (a) or inquiring into any complaint referred to in sub-clause (b) of clause (5), have all the powers of a civil court trying a suit and in particular in respect of the following matters, namely :—

(a) summoning and enforcing the attendance of any person from any part of India and examining him on oath;

(b) requiring the discovery and production of any document;

(d) requisitioning any public record or copy thereof from any court or office;

(e) issuing commissions for the examination of witnesses and documents;

(f) any other matter which the President may, by rule, determine.

(9) The Union and every State Government shall consult the Commission on all major policy matters affecting Scheduled Castes [***[xxiv].]

[(10)[xxv]] In this article, references to the Scheduled Castes [***[xxvi]] shall be construed as including references to such other backward classes as the President may, on receipt of the report of a Commission appointed under clause (1) of article 340, by order specify and also to the Anglo-Indian community.

[338A. (1) There shall be a Commission for the Scheduled Tribes to be known as the National

Commission for the Scheduled Tribes.

(3) The Chairperson, Vice-Chairperson and other Members of the Commission shall be appointed by the President by warrant under his hand and seal.

(4) The Commission shall have the power to regulate its own procedure.

(5) It shall be the duty of the Commission—

(a) to investigate and monitor all matters relating to the safeguards provided for the Scheduled Tribes under this Constitution or under any other law for the time being in force or under any order of the Government and to evaluate the working of such safeguards;

(b) to inquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Tribes;

Scheduled Tribes and to evaluate the progress of their development under the Union and any State;

(d) to present to the President, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards;

(f) to discharge such other functions in relation to the protection, welfare and development and

advancement of the Scheduled Tribes as the President may, subject to the provisions of any law made by Parliament, by rule specify.

(a) summoning and enforcing the attendance of any person from any part of India and examining him on oath;

(b) requiring the discovery and production of any document;

(d) requisitioning any public record or copy thereof from any court or office;

(e) issuing commissions for the examination of witnesses and documents;

(f) any other matter which the President may, by rule, determine.

(9) The Union and every State Government shall consult the Commission on all major policy matters affecting Scheduled Tribes.[xxvii]]

339. (1) The President may at any time and shall, at the expiration of ten years from the commencement of this Constitution by order appoint a Commission to report on the administration of the Scheduled Areas and the welfare of the Scheduled Tribes in the States [***[xxviii]].

The order may define the composition, powers and procedure of the Commission and may contain such incidental or ancillary provisions as the President may consider necessary or desirable.

(2) The executive power of the Union shall extend to the giving of directions to [a State[xxix]] as to the drawing up and execution of schemes specified in the direction to be essential for the welfare of the Scheduled Tribes in the State.

340. (1) The President may by order appoint a Commission consisting of such persons as he thinks fit to investigate the conditions of socially and educationally backward classes within the territory of India and the difficulties under which they labour and to make recommendations as to the steps that should be taken by the Union or any State to remove such difficulties and to

Improve their condition and as to the grants that should be made for the purpose by the Union or any State and the conditions subject to which such grants should be made, and the order appointing such Commission shall define the procedure to be followed by the Commission.

(2) A Commission so appointed shall investigate the matters referred to them and present to the President a report setting out the facts as found by them and making such recommendations as they think proper.

(3) The President shall cause a copy of the report so presented together with a memorandum explaining the action taken thereon to be laid before each House of Parliament.

341. (1) The President [may with respect to any State [or Union territory[xxx]], and where it is a State [***[xxxi]], after consultation with the Governor [***[xxxii]] thereof, [xxxiii]] by public notification[xxxiv], specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State [or Union territory, as the case may be[xxxv]].

(2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.

342. (1) The President [may with respect to any State [or Union territory[xxxvi]], and where it is a State [***[xxxvii]], after consultation with the Governor [***[xxxviii]] thereof,[xxxix]] by public notification[xl], specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State [or Union territory, as the case may be[xli]].

(2) Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under clause (1) any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification. ”

Thus having empowered with such constitutional provisions and other statutory provisions, it was the duty of the State to define and provide for the Scheduled Castes, Scheduled Tribes and the Backward Classes. The State took initiation to fulfill its duties.

03. Scheduled Castes and Scheduled Tribes

As seen from the constitutional provisions mentioned earlier Scheduled Castes and Scheduled tribes are entitled to enjoy special privileges. The Scheduled Castes and the Scheduled Tribes have been enjoying the facility of reservation in promotion since 1955[xlii]. Supreme Court has held in Punit Raj v. Dinesh Chaudhary[xliii] and State of Kerala and Anr. v. Chandramohanan[xliv], “Scheduled Caste, however, is not a caste in terms of its definition as contained in Article 366(24) of the Constitution of India. They are brought within the purview of the said category by reason of their abysmal backwardness. Scheduled Caste consists of not only the people who belong to some backward caste but also race or tribe or part of or groups within castes, races or tribes. They are not merely backward but the backwardmost. A person even does not cease to be a Scheduled Caste automatically even on his conversion to another religion.”

In State of Kerala and Anr. v. N.M.Thomas and Ors.[xlv], Mathew, J. discussing the status of the caste found in the Presidential List observed:- "This shows that it is by virtue of the notification of the President that the Scheduled castes come into being. Though the members of the scheduled castes are drawn from castes, races or tribes, they attain a new Status by virtue of the Presidential notification." This fact is also quoted in E.V. Chinnaiah v. State of Andhra Pradesh and Ors[xlvi].

Krishna Iyer, J. speaking in State of Kerala and Anr. v. N.M.Thomas and Ors with reference to the status of castes included in the Presidential List had this to say :- "We may clear the clog of Article 16(2) as it stems from a confusion about caste in the terminology of scheduled castes and scheduled tribes. This latter expression has been defined in Articles 341 and 342. A bare reading brings out the quintessential concept that they are no castes in the Hindu fold but an amalgam of castes, races, groups, tribes, communities or parts thereof found on investigation to be the lowliest and in need of massive State aid and notified as such by the President[xlvii]".

Even before independence through The Government of India (Scheduled Castes) Order, 1936, the scheduled castes were identified in India. After independence The Constitution (Scheduled Castes) Order, 1950 identified them. The Constitution (Scheduled Tribes) Order, 1950 identified the Scheduled Tribes of India. Article 330 provides for the reservation of Scheduled Castes and Scheduled Tribes in the House of People in the proportion of their population to the total population of India. Article 332 provides for the proportional representation according to population of the Scheduled Castes in the Legislative Assemblies of the various States and Union Territories. Article 334 of the Constitution had originally required the reservation of seats to cease in 1960, but this was extended to 1970 by the eighth Amendment. The period of reservation was extended to 1980, 1990, 2000 and 2010 by the twenty third, forty fifth, sixty second and seventy ninth Amendments respectively. The 95th Amendment extended the period of reservation to 2020 by amending the term sixty years to seventy years. Articles 243D and 243T provides for the proportional reservation of seats for the scheduled castes and scheduled tribes in Panchayats and Municipalities respectively.

Protective enactments such as The Untouchability Practices Act, 1955, Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, The Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993, etc also protects the Scheduled Castes and Scheduled Tribes. Reservation in appointments and promotions were available to them. However such rights were not available to the backward classes in the national level until the existence of Union memorandum in consequence to the Mandal Commission Report, although many states had provided considerable protection to their backward classes through their legislations long ago.

04. The First Backward Classes Commission (Kalelkar Commission)

While speaking on the draft Article 10(3) [corresponding to Article 16(4)] Dr. Ambedkar had stated, "then we have quite a massive opinion which insists that although theoretically it is good to have the principle that there shall be equality of opportunity, there must at the same time be a provision made for the entry of certain communities which have so far been outside the administration.[xlviii]" It was this demand which was mainly responsible for the incorporation of Clause (4) in Article 16. As matter of fact, in some of the southern States, reservations in favour of O.B.Cs were in vogue since quite a number of years prior to the Constitution. There was a demand for similar reservations at the center. In response to this demand and also in realisation of its obligation to provide for such reservations in favour of backward sections of the society, the Central Government appointed a Backward Class Commission under Article 340 of the Constitution on January 29, 1953. The Commission, popularly known as Kaka Kalelkar Commission, was required "to investigate the conditions of socially and educationally backward classes within the territory of India and the difficulties under which they labour and to make recommendations as to the steps that should be taken by the Union or any State to remove difficulties and to improve their conditions". The Commission submitted its report on March 30, 1955. According to it, the relevant factors to consider while classifying backward classes would be their traditional occupation and profession, the percentage of literacy or the general educational advancement made by them; the estimated population of the community and the distribution of the various communities throughout the state or their concentration in certain areas. The Commission was also of the opinion that the social position which a community occupies in the caste hierarchy would also have to be considered as well as its representation in Government service or in the Industrial sphere. According to the Commission, the causes of educational backwardness amongst the educationally and backward communities were

(i) traditional apathy for education on account of social and environmental conditions or occupational handicaps:

(ii) poverty and lack of educational institutions in rural areas and

(iii) living in inaccessible areas.

The Chairman of the commission, Kaka Kalelkar, however, had second thoughts after signing the report. In the enclosing letter addressed to the President he virtually pleaded for the rejection of the report on the ground that the reservations and other remedies recommended on the basis of caste would not be in the interest of society and country. He opined that the principle of caste should be eschewed altogether. Then alone, he said, would it be possible to help the extremely poor and deserving members of all the communities. At the same time, he added, preference ought to be given to those who come from traditionally neglected social classes.[xlix]

The report made by the Commission was considered by the Central Government, which apparently was not satisfied with the approach adopted by the Commission in determining the criteria for identifying the backward classes under Article 15(4). The Memorandum of action appended to the Report of the Commission while placing it on the table of the Parliament [as required by Clause (3) of Article 340] on September 3, 1956, pointed out that the caste system is the greatest hindrance in the way of our progress to egalitarian society and that in such a situation recognition of certain specified castes as backward may serve to maintain and perpetuate the existing distinctions on the basis of caste. The Memorandum also found fault with certain tests adopted by the Commission for identifying the backward classes. It expressed the opinion that a more systematic and elaborate basis has to be evolved for identifying backward classes.[l]

No meaningful action was taken after 1956 either for constituting another Commission or for evolving a better criteria. Ultimately, on August 14, 1961, the Central Government wrote to ail the State Governments stating inter alia that "while the State Governments have the discretion to choose their own criteria for defining backwardness, in the view of the Government of India it would be better to apply economic tests than to go by caste." The letter stated further, rather inexplicably, that "even if the Central Government were to specify under Article 338(3) certain groups of people as belonging to 'other backward classes', it will still be open to every State Government to draw up its own lists for the purposes of Articles 15 and 16. As, therefore, the State Governments may adhere to their own lists, any All-India list drawn up by the Central Government would have no practical utility." Various State Governments thereupon appointed Commissions for identifying backward classes and issued orders identifying the socially and educationally backward classes and reserving certain percentage of posts in their favour. So far as the Central services are concerned, no reservations were ever made in favour of other backward classes though made in favour of Scheduled Castes and Scheduled Tribes[li].

05. The Second Backward Classes Commission (Mandal Commission)

By an Order made by the President of India, in the year 1979, under Article 340 of the Constitution, a Backward Class Commission was appointed to investigate the conditions of

socially and educationally backward classes within the territory of India, which Commission is

popularly known as Mandal Commission. The terms of reference of the Commission were:

(i) to determine the criteria for defining the socially and educationally backward classes;

(ii) to recommend steps to be taken for the advancement of the socially and educationally backward classes of citizens so identified;

(iii) to examine the desirability or otherwise of making provision for the reservation of appointments or posts in favour of such backward classes of citizens which are not adequately

represented in public services and posts in connection with the affairs of the Union or of any

State; and

(iv) present to the President a report setting out the facts as found by them and making such recommendations as they think proper.

The Commission was empowered to:-

(a) obtain such information as they may consider necessary or relevant for their purpose in such form and such manner as they may think appropriate, from the Central Government, the State Government, the Union Territory Administrations and such other authorities, organisations or individuals as may in the opinion of the Commission, be of assistance to them: and

(b) hold their sittings or the sittings of such sub-committees as they may appoint from amongst their own members of such times and such places as may be determined by, or under the authority of the Chairman[lii].

The report of the Commission was required to be submitted not later than 31st December,

1979, which date was later extended upto December 31, 1980. It was so submitted[liii].

Mandal Commission who adopted a motto for itself as “There is equality only among equals. To equate unequals is to perpetuate inequality.” had evolved eleven 'Indicators' or 'criteria' for determining social and educational backwardness. These 11 'Indicators' were grouped under three broad heads, i.e., Social, Educational and Economic. They are:-

A. Social:

(i) Castes/Classes considered as socially backward by others.

(ii) Castes/Classes which mainly depend on manual labour for their livelihood.

(iii) Castes/Classes where at least 25% females and 10% males above the state average get married at an age below 17 years in rural areas and at least 10% females and 5% males do so in

urban areas.

(iv) Castes/Classes where participation of females in work is at least 25% above the State average.

B. Educational:

(v) Castes/Classes where the number of children in the age group of 5-15 years who never attended school is at least 25% above the State average.

(vi) Castes/Classes where the rate of student drop-out in the age group of 5-15 years is at least 25% above the State average.

(vii) Castes/Classes amongst whom the proportion of matriculates is at least 25% below the State average.

C. Economic:

(viii) Castes/Classes where the average value of family assets is at least 25% below the State average.

(ix) Castes/Classes where the number of families living in Kuccha houses is at least 25% above the State average.

(x) Castes/Classes where the source of drinking water is beyond half a kilometer for more than 50% of the households.

(xi) Castes/Classes where the number of households having taken consumption loan is at least 25% above the State average[liv].

There is a principle in logic stating that the inference shall bring you where your postulates are. Thus accepting the criteria or social indicators as based on caste only, Mandal Commission could find only caste as the cause of the backwardness of the so called backwardness of the people of India. The most important recommendations out of the more than forty recommendations of the Commission were,

1. The population of OBCs, both Hindu and non-Hindu, is around 52% of the total population of India. Accordingly 52% of all post under the Central Government should be reserved for them, but this provision may go against the law laid down in a number of Supreme Court judgments wherein it has been held that the total quantum of reservations under Articles 15(4) and 16(4) of the Constitution should be below 50%. In view of this the proposed reservation for OBCs would have to be pegged at a figure which, when added to 22.5% of SCs and STs, remain below 50%. In view of this legal constrain, the commission is obliged to recommend a reservation of 27% only, even though their population us almost twice this figure.

2. States which have already introduced reservation for OBCs exceeding 27%, will remain unaffected by this recommendation.

3. With the above general recommendation regarding the quantum of reservation, the Commission proposes the following over-all scheme of reservation for OBCs:-

(1) Candidates belonging to OBCs recruited on the basis of merit in an open competition should not be adjusted against their reservation quota of 27%.

(2) The above reservation should also be made available to promotion quota at all levels.

(3) Reserved quota remaining unfilled should be carried forward for a period of three years

and deserved thereafter.

(4) Relaxation in the upper age limit for direct recruitment should be extended in the same manner as done in case of SCs and STs.

(5) A roster system for each category of posts should be adopted by the concerned authorities in the same manner as presently done in respect of SC and ST candidates.

4. The above scheme of reservations in its toto should be made applicable to all recruitment to public sector undertakings both under the Central and State Governments, as also to nationalized banks.

5. All private sector undertakings which have received financial assistance from the Government in one form or the other should also be obliged to recruit personnel on the aforesaid basis.

6. All universities and affiliated colleges should also be covered by the above scheme of reservation.

7. To give proper effect to these recommendations, it is imperative that adequate statutory provisions are made by the Government to amend the existing enactments, rules, procedure, etc. to the extent they are not in consonance with the same.

8. Various State Governments are giving a number of educational concessions to other backward class students like exemption of tuition fees, free supply of books and clothes, mid-day meals, special hostel facilities, stipends, etc. These concessions are all right as far as they go. But they do not go far enough. What is required is, perhaps, not so much the provision of additional funds as the framing of integrated schemes for creating the proper environment and incentives for serious and purposeful studies.

9. First, an intensive and time bound programme for adult education should be launched

in selected pockets with high concentration of OBC population.

10. Seats should be reserved for OBC students in all scientific, technical and professional institutions run by the Central Government as well as State Governments. This reservation will fall under Article 15(4) of the Constitution and the quantum of reservation should be the same as in the Government services, i.e., 27%. Those States which have already reserved more that 27% seats for OBC students will remain unaffected by this recommendation.

11. All the State Governments should be directed to enact and implement progressive land legislations so as to effect basic structural changes in the existing production relations in the countryside.

12. At present surplus land in being allotted to SCs and STs. A part of the surplus land becoming available in future as a result of the operation of land ceiling laws etc. should also be allotted to the OBC landless labour.

13. Certain sections of some occupational communities like Fishermen, Banjaras, Bansoforas, Khatwes etc. still suffer from the stigma of untouchability in some part of the country. They have been listed as O.B.Cs. by the Commission, but their inclusion in the lists

of Scheduled Castes / Scheduled Tribes may be considered by the Government.

14. Backward Classes Development Corporations should be set up both at the Central and

State levels to implement various socio-educational and economic measures for their advancement.

15. A separate Ministry / Department for O.B.Cs. at the Centre and States should be created to safe-guard their interests.

16. All development programmes specially designed for Other Backward Classes should be financed by the Central Government in the same manner and to the same extent as done in the case of Scheduled Castes and Scheduled Tribes.

17. Regarding the period of operation of the Commission’s recommendations entire scheme should be reviewed after twenty years.

The Report of the Mandal Commission was laid before each House of Parliament and

discussed on two occasions - once in 1982 and again in the year 1983[lv]. No action was, however, taken on the basis of the Mandal Commission Report until the issuance of the Office Memorandum on 25th September, 1991. On that day, the then Prime Minister Sri V.P. Singh made a statement in the Parliament in which he stated inter alia as follows[lvi]:

“After all, if you take the strength of the whole of the Government employees as a proportion of the population, it will be 1% or 1 ½. I do not know exactly, it may be less than 1%. We are under no illusion that this 1% of the population, or a fraction of it will resolve the economic problems of the whole section of 52%. No. We consciously want to give them a position in the decision-making of the country, a share in the power structure.” He continued, “There is a very big force in the argument to involve the poorest in the power structure. For a lot of time we have acted on behalf of the poor. We represent the poor....

Let us forget that the poor are begging for some crumbs. They have suffered it for thousands of years. Now they are fighting for their honour as a human being....[lvii]”

06. Facts of Indra Sawhney Case

The Office Memorandum on 25th September, 1991 provided for among others,

“(i) 27% of the vacancies in civil posts and services under the Government of India shall be reserved for SEBC.

(ii) The aforesaid reservation shall apply to vacancies to be filled by direct recruitment. Detailed instructions relating to the procedures to be followed for enforcing reservation will be issued separately.

(iii) Candidates belonging to SEBC recruited on the basis of merit in an open competition on the same standards prescribed for the general candidates shall not be adjusted against the reservation quota of 27%.

(iv) The SEBC would comprise in the first phase the castes and communities which are common to both the list in the report of the Mandal Commission and the State Governments' lists, a list of such castes/communities is being issued separately.

(v) The aforesaid reservation shall take effect from 7.8.1990. However, this will not apply to vacancies where the recruitment process has already been initiated prior to the issue of these orders.[lviii]”

Soon after the issuance of the said Memorandum there was wide-spread protest in certain

Northern States against it. There occurred serious disturbance to law and order involving damage to private and public property. Some young people lost their lives by self-immolation. Writ Petitions were filed in this Court questioning the said Memorandum along with applications for staying the operation of the Memorandum. It was stayed by Supreme Court[lix].

After the change of the Government at the center following the general election held in the

first half of 1991, another Office Memorandum was issued on 25th September, 1991 modifying the earlier Memorandum dated 13th August, 1990[lx]. The main contents of It is given below,

“(i) Within the 27% of the vacancies in civil posts and services under the Government of India

reserved for SEBCs, preference shall be given to candidates belonging to the poorer sections of

the SEBCs. In case sufficient number of such candidates are not available, unfilled vacancies shall be filled by the other SEBC candidates.

(ii) 10% of the vacancies in civil posts and services under the Government of India shall be reserved for other economically backward sections of the people who are not covered by any of the existing schemes of reservation.

(iii) The criteria for determining the poorer sections of the SEBCs or the other economically backward sections of the people who are not covered by any of the existing schemes of reservations are being issued separately.

The Office Memorandum dated the 13th August, 1990, shall be deemed to have been amended to the extent specified above[lxi].”

Till the institution of Indra Sawhney Case, the Central Government had not evolved the economic criteria as contemplated by the later Memorandum, though the hearing of these writ petitions was adjourned on more than one occasion for the purpose. Some of the writ petitions have meanwhile been amended challenging the later Memorandum as well[lxii].

These writ petitions were heard in the first instance by a Constitution Bench presided over by the then Chief Justice Sri Ranganath Misra. After hearing them for some them, the Constitution Bench referred them to a Special Bench of Nine Judges, "to finally settle the legal position relating to reservations." The reason for the reference being, "that the several Judgments of Supreme Court have, not spoken in the same voice on this issue and a final look by a larger Bench should settle the law in an authoritative way[lxiii].”

Supreme Court has, accordingly, heard all the parties and interveners who wished to be heard in the matter. Written submissions have been filed by almost all the parties and interveners. Together, they run into several hundreds of pages[lxiv]. From these submissions the nine bench Supreme Court framed the issues.

02. Issues framed in Indra Sawhney Case

At the inception of arguments, counsel for both sides put their heads together and framed eight questions arising for Supreme Court’s discussion. They are given separately when dealing with the Chapter Findings of Indra Sawhney Case.

03. General Mind set of the Judges in Indra Sawhney Case

The usage of ‘classes’ instead of ‘caste’ in Constitutional reference to OBCs viz. article 15 (4), 16(4) and 340 (1) has led to many legal wrangles and disputes. However, the courts, like the two Backward Classes Commissions accepted ‘caste’ as a basis of classification[lxv]. In Venkataramana Vs State of Madras[lxvi], the Supreme Court upheld the list of Hindu castes declared as backward by the Madras government. This was further confirmed in Ramakrishna Singh Vs. State of Mysore[lxvii] in which the Mysore High Court held that class included persons grouped on the basis of their castes. A series of Supreme Court cases have further refined the provision. In Balaji v. the State of Mysore[lxviii], the Supreme Court put a ceiling on the total quota for affirmative action at fifty percent. It was critical of using the caste criterion, and one of the reasons cited was its inapplicability to non-Hindu groups. In Chitralekha v State of Mysore[lxix] the Court clarified that the (i) ‘caste...may be relevant...in ascertaining..social backwardness’; but (ii)’it cannot be the sole or dominant test’. The ‘caste basis’ was further clarified in 1968 in P. Rajendran vs. State of Madras,[lxx] wherein the Supreme Court held that ‘a caste is also a class of citizens if the caste as a whole is socially and educationally backward’[lxxi]. This was reaffirmed in U.S.V. Balaram Vs. State of Andhra Pradesh[lxxii] when the Supreme Court scrapped the Andhra Pradesh High Court ruling and allowed the use of caste as a determinant to define backwardness. In the Indra Sawhney Case, the nine judge bench rejected economic criterion as the determinant of backwardness. The Court upheld the concept of caste: ‘A caste can be and quite often is a social class in India[lxxiii].’ On the question of backward classes among non-Hindus, the Court held that they should be identified on the basis of their traditional occupations.

It is noteworthy that none of the nine bench Judges of took any pain to assess the merit of the Mandal Commission Report, instead they maintained that it was the duty of the State to deal with it. The outcome of the perusal by State was just two Office Memoranda the first of which was stayed by Supreme Court and the second was only the amendment of the already stayed first. Supreme Court had already admitted that, “Till now, the Central Government has not evolved the economic criteria as contemplated by the later Memorandum, though the hearing of these writ petitions was adjourned on more than one occasion for the purpose[lxxiv].” But the court instead has resorted to the deliberations in the Parliament as already stated earlier. The deliberations at the Parliament need not normally come as evidence, as the legal reasoning shall be supplied normally along with the legal document. The Supreme Court was uneasy with the protests of the people and the riots and suicides, in addition to the helplessness of the competent Government to take a proper decision. The nine member bench speaks through Jeevan Reddy J,

“We are dealing with complex social, constitutional and legal questions upon which there has been a sharp division of opinion in the Society, which could have been settled more satisfactorily through political processes. But that was not to be. The issues have been relegated to the judiciary - Which shows both the disinclination of the executive to grapple with these sensitive issues as also the confidence reposed in this organ of the State. We are reminded of what Sir Anthony Mason, Chief Justice of Australia once said:

‘Society exhibits more signs of conflict and disagreement today than it did before.... Governments have always had the option of leaving questions to be determined by the courts according to law....

There are other reasons, of course - that cause governments to leave decisions to be made by

Courts. They are of expedient political character. The community may be so divided on a particular issue that a government feels that the safe course for it to pursue is to leave the issue to be resolved by the Courts, thereby diminishing the risk it will alienate significant sections of the Community.’

But then answering a question as to the legitimacy of the Court to decide such crucial issues, the learned Chief Justice says:

‘....my own feeling is that the people accept the Courts as the appropriate means of resolving disputes when governments decide not to attempt to solve the disputes by the political process.’ (Judging the World: Law and Politics in the World’s Leading Courts - page 343)

We hope and trust that our people too are mature enough to appreciate our endeavour in the same spirit. They may well remember that "the law is not an abstract concept removed from the society it serves, and that Judges, as safe-guarders of the Constitution, must constantly strive to narrow the gap between the ideal of equal justice and the reality of social inequality."

Thus the judgment in Indra Sawhney case reveals both the responsibility of the Judiciary and the inaction of the State as defined in Article 12 of the Constitution. However, even when adequate materials for making such a judgment of long lasting influence were scarce, Supreme Court seems to appreciate the efforts of Mandal Commission.[lxxv]

[i]Ajith Singh & Ors. v. State of Punjab and Ors. 1999(5)Suppl. SCR195, 2000(1)SCC430, 1999(7) SCALE 395, 1999(9)JT542

[ii] Civil Appeal No. 2351 OF 2011 (Arising out of SLP (C) No.25966 of 2008)

[iii] Indra Sawhney etc. v. Union of India and Others, etc. (AIR 1993 SC 477, 1992 Supp 2 SCR 454) Para 2

[iv] Indra Sawhney etc. v. Union of India and Others, etc. (AIR 1993 SC 477, 1992 Supp 2 SCR 454) Para 4

[v] Indra Sawhney etc. v. Union of India and Others, etc. (AIR 1993 SC 477, 1992 Supp 2 SCR 454) Para 5

[vi] Added by the Constitution (First Amendment) Act, 1951, S. 2.

[vii] Added by the Constitution (First Amendment) Act, 1951, S. 2.

[viii] Inserted by the Constitution (Ninety-third Amendment) Act, 2005, S. 2 (w.e.f. 20-1-2006)

[ix] Subs. by the Constitution (Seventh Amendment) Act, 1956, S. 29 and Sch., for “under any State specified in the First Schedule or any local or other authority within its territory, any requirement as to residence within that State

[x] Substituted by the Constitution (Eighty-fifth Amendment) Act, 2001, S. 2, for certain words (w.e.f. 17-6-1995)

[xi] Inserted by the Constitution (Seventy-seventh Amendment) Act, 1995, S. 2.

[xii] Inserted by the Constitution (Eighty-first Amendment) Act, 2000, S. 2 (w.e.f. 9-6-2000)

[xiii] Art. 38 renumbered as clause (1) thereof by the Constitution (Forty-fourth Amendment) Act, 1978, S. 9 (w.e.f. 20-6-1979)

[xiv] Inserted by the Constitution (Forty-fourth Amendment) Act, 1978, S. 9 (w.e.f. 20-6-1979)

[xv] Substituted by the Constitution (Forty-second Amendment) Act, 1976, S. 7, for clause (f) (w.e.f. 3-1-1977)

[xvi] Inserted by the Constitution (Forty-second Amendment) Act, 1976, S. 8, (w.e.f. 3-1-1977).

[xvii] Inserted by the Constitution (Eighty-second Amendment) Act, 2000, S. 2.

[xviii] Substituted by the Constitution (Eighty-ninth Amendment) Act, 2003, S. 2, for the marginal heading and for clauses (1) and (2) (w.e.f. 19-2-2004)

[xix] The words “and Scheduled Tribes” omitted by s. 2 of Constitution (Eighty-ninth Amendment) Act, 2003 (w.e.f. 19-2-2004)

[xx][xx] The words “and Scheduled Tribes” omitted by s. 2 of Constitution (Eighty-ninth Amendment) Act, 2003 (w.e.f. 19-2-2004)

[xxi] The words “and Scheduled Tribes” omitted by s. 2 of Constitution (Eighty-ninth Amendment) Act, 2003 (w.e.f. 19-2-2004)

[xxii] The words “and Scheduled Tribes” omitted by s. 2 of Constitution (Eighty-ninth Amendment) Act, 2003 (w.e.f. 19-2-2004)

[xxiii] The words “and Scheduled Tribes” omitted by s. 2 of Constitution (Eighty-ninth Amendment) Act, 2003 (w.e.f. 19-2-2004)

[xxiv] The words “and Scheduled Tribes” omitted by s. 2 of Constitution (Eighty-ninth Amendment) Act, 2003 (w.e.f. 19-2-2004)

[xxv]Clause (3) renumbered as clause (10) by the Constitution (Sixty-fifth Amendment) Act, 1990, S. 2 (w.e.f. 12-3-1992).

[xxvi] The words “and Scheduled Tribes” omitted by s. 2 of Constitution (Eighty-ninth Amendment) Act, 2003 (w.e.f. 19-2-2004)

[xxvii] Inserted by the Constitution (Eighty-ninth Amendment) Act, 2003, S. 3 (w.e.f. 19-2-2004)

[xxviii] The words and letters “specified in Part A and Part B of the First Schedule” omitted by the Constitution (Seventh Amendment) Act, 1956, S. 29 and Sch.

[xxix] Substituted by the Constitution (Seventh Amendment) Act, 1956, S. 29 and Schedule, for “any such State”

[xxx] Inserted by the Constitution (Seventh Amendment) Act, 1956, S. 29 and Schedule

[xxxi] The words and letters “specified in Part A or Part B of the First Schedule” omitted by S. 29 and Schedule of the Constitution (First Amendment) Act, 1951

[xxxii] The words “or Rajpramukh” omitted by S. 29 and Schedule , of the Constitution (First Amendment) Act, 1951

[xxxiii] Substituted by the Constitution (First Amendment) Act, 1951, S. 10, for “may, after consultation with the Governor or Rajpramukh of a State”

[xxxiv] See the Constitution (Scheduled Castes) Order, 1950 (C.O. 19), the Constitution (Scheduled Castes) (Union Territories) Order, 1951 (C.O. 32), the Constitution (Jammu and Kashmir) Scheduled Castes Order, 1956 (C.O. 52), the Constitution (Dadra and Nagar Haveli) Scheduled Castes Order, 1962 (C.O. 64), the Constitution (Pondicherry) Scheduled Castes Order, 1964 (C.O. 68), the Constitution (Goa, Daman and Diu) Scheduled Castes Order, 1968 (C.O. 81) and the Constitution (Sikkim) Scheduled Castes Order, 1978 (C.O. 110)

[xxxv] Inserted by the Constitution (Seventh Amendment) Act, 1956, S. 29 and Schedule

[xxxvi] Inserted by the Constitution (Seventh Amendment) Act, 1956, s. 29 and Schedule

[xxxvii] The words and letters “Specified in Part A or Part B of the First Schedule” omitted by the Constitution (Seventh Amendment) Act, 1956, S. 29 and Schedule

[xxxviii] The words “or Rajpramukh” omitted by S. 29 and Schedule of the Constitution (Seventh Amendment)Act, 1956

[xxxix] Substituted by the Constitution (First Amendment) Act, 1951, S. 11, for “may, after consultation with the Governor or Rajpramukh of a State,”

[xl] See the Constitution (Scheduled Tribes) Order, 1950 (C.O. 22), the Constitution (Scheduled Tribes) (Union Territories) Order, 1951 (C.O. 33), the Constitution (Andaman and Nicobar Islands) Scheduled Tribes Order, 1959 (C.O. 58), the Constitution (Dadra and Nagar Haveli) Scheduled Tribes Order, 1962 (C.O. 65), the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967 (C.O. 78), the Constitution (Goa, Daman and Diu) Scheduled Tribes Order, 1968 (C.O. 82), the Constitution (Nagaland) Scheduled Tribes Order, 1970 (C.O. 88) and the Constitution (Sikkim) Scheduled Tribes Order, 1978 (C.O. 111)

[xli] Inserted by the Constitution (Seventh Amendment) Act, 1956, S. 29 and Schedule

[xlii] The Statement of Objects and Reasons incorporated in the bill introduced, which led to the passing of Constitution (Seventy-seventh Amendment) Act, 1995

[xliii] W.P.(C).No.17265/2012 : (2003) 8 SCC 204

[xliv] 2004 (1)SCR 1155

[xlv] 1976 AIR 490, 1976 SCR (1) 906, 1976 SCC (2) 310

[xlvi] 2005 AIR 162, 2004 (5) Suppl. SCR 972 , 2005 (1) SCC 394, 2004 (9) SCALE 316 , 2005 (11) JT 482

[xlvii] 1976 AIR 490, 1976 SCR (1) 906, 1976 SCC (2) 310

[xlviii] Quoted in Indra Sawhney etc. v. Union of India and Others, etc. (AIR 1993 SC 477, 1992 Supp 2 SCR 454) Para 9

[xlix] Indra Sawhney etc. v. Union of India and Others, etc. (AIR 1993 SC 477, 1992 Supp 2 SCR 454) Para 9

[l] Indra Sawhney etc. v. Union of India and Others, etc. (AIR 1993 SC 477, 1992 Supp 2 SCR 454) Para 10

[li] Ibid Para 11

[lii] Ibid Para 12

[liii] Ibid Para 13

[liv] Ibid Para 11.23

[lv] Ibid Para 20

[lvi] Ibid Para 21

[lvii] Ibid Para 21

[lviii] Ibid Para 22

[lix] Ibid Para 23

[lx] Ibid Para 24

[lxi] Ibid Para 24

[lxii] Ibid Para 25

[lxiii] Ibid Para 26

[lxiv] Ibid Para 26

[lxv] Sachar Committee Report Chapter 10.2 The Emergence of The Category ‘Other Backward Classes’

[lxvi] AIR 1951 SC 229

[lxvii] AIR 1960 Mys 338

[lxviii] AIR 1963 SC 649

[lxix] 1964 AIR 1823, 1964 SCR (6) 368

[lxx] AIR 1968 SC 1012

[lxxi] AIR 1968 SC 1012 at 1015

[lxxii] AIR 1972 SC 1375

[lxxiii] Indra Sawhney etc. v. Union of India and Others, etc. (AIR 1993 SC 477, 1992 Supp 2 SCR 454) Para 121

[lxxiv] Ibid Para 25

[lxxv] Ibid Para 12 to 20

Law Student in Action

Tuesday, February 23, 2016

INDRA SAWHNEY CASE AN ENQUIRY INTO CONSTITUTIONAL RESERVATION - Part I