SASI K.G.
04. Findings in Indra Sawhney Case
It shall be a Herculean Task to summarize all the findings
and observations of this Judgment which extends to around one thousand pages.
However, an attempt in this regard is made here limiting the scope to the
questions raised in the reframed issues. The subsequent important interventions
of the Apex Court also shall be mentioned wherever necessary.
01. Interpretation of fundamental Rights, Directive Principles of State Policy and other constitutional provisions
In this case the Judges of the Supreme Court differed in
their views. The majority view was taken by M. H. Kania, C. J., M. N.
Venkatachaliah, S. Ratnavel Pandhian, A. M. Ahmadi, P. B. Sawant and B. P.
Jeevan Reddy, JJ and the minority views by Dr. T. K. Thommen, Kuldip Singh, and
R. M. Sahai, JJ. For reasoning their judgments, the Honourable Supreme Court
had to formulate a few constitutional principles among which the following are
most important.
On the Doctrine of
equality under Constitution of India, Jeeven Reddy J. finds that Articless 14
to 18 are to be understood in light of Articles contained in part IV of
Constitution. He states, “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[lxxvi].“ This
principle is upheld in Harjinder
Singh v. Punjab State Warehousing Corporation also[lxxvii].
In Mrs.
Valsamma Paul etc. v. Cochin University And Ors.[lxxviii]
it is stated, “While Article 15(1) prohibits discrimination on grounds of
religion, race, caste, sex, place of birth, Article 15(4) enjoins upon the
State, despite the above injunction and the one provided in Article 29(2), to
make special provision for the advancement of any socially and educationally
backward classes of citizens or for the Dalits and Tribes, Equally, while
Article 16(1) guarantees equality of opportunity for all citizens in matters
relating to employment or appointment to any office under the State, Article
16(4) enjoins upon the State to make provision for reservation for these
sections which in the opinion of the State are not adequately represented in
the services under the State. Article 335 of the Constitution mandates that
claims of the members of the Dalits and Tribes shall be taken into
consideration in making appointments to services and posts in connection with
affairs of the Union or of a State consistent with the maintenance of
efficiency of administration. Therefore, this Court interpreted that equal
protection guaranteed by Articles 14, 15(1) and 16(1) is required to operate
consistently with Articles 15(4), .16(4), 38, 39, 46 and 335 of the
Constitution, vide per majority in Indra Sawhney v. Union of India, [1992]
Supp. 3 SCC 217 known as Mandal case, In other words, equal protection requires
affirmative action for those unequals handicapped due to historical facts of
untouchability practiced for millennium which is abolished by Article 17; for
Tribes living away from our national mainstream due to social and educational
backwardness of OBCs.”
The same principle is upheld in Surendra Prasad Tewari v. Uttar
Pradesh Rajya Krishi Utpadan Mandi Parishad & Others[lxxix]
and paras 644, 645 of Indra Sawhney Case
are quoted therein as,
"644.
The significance attached by the Founding Fathers to the right to equality is
evident not only from the fact that they
employed both the expressions 'equality
before the law' and 'equal protection of
the laws' in Article 14 but proceeded
further to state the same rule in positive and affirmative terms in Articles 15 to 18.
645.
Inasmuch as public employment always gave a certain status and power it has
always been the repository of State power besides the means of livelihood,
special care was taken to declare equality of opportunity in the matter of
public employment by Article 16. Clause (1), expressly declares that in the
matter of public employment or appointment to any office under the State,
citizens of this country shall have equal opportunity while clause (2) declares
that no citizen shall be discriminated in the said matter on the grounds only
of religion, race, caste, sex, descent, place of birth, residence or any of
them. At the same time, care was taken to declare in clause (4) that nothing in the said Article
shall prevent the State from making any
provision for 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."
Supreme Court holds that Articles 335, 341, 342 of the
Constitution of India in respect to Scheduled Caste and Scheduled Tribe on
Claim in public employment have to be considered consistently with maintenance
of efficiency. Similar consideration will also apply while considering claims
of other Backward Classes and Other Weaker Sections. Jeevan Reddy J. states, “
Article 335 provides that ‘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.’ It is obvious that if the claims of even Scheduled
Castes and Scheduled Tribes are to be taken into consideration consistently
with the maintenance of efficiency of administration, the said admonition has
to be respected equally while taking into consideration the claims of other
backward classes and other weaker sections[lxxx].”
On interpreting Article 141 of the Constitution of India,
on the concept of stare decisis Supreme Court in this case finds that the
relevance and significance – certainty, consistency and continuity are highly
desirable features in law and upholds decisions that have stood the test of
time and has never been doubted and commands that they have to be respected.
B.P. Jeevan Reddy, J. writes, “Though, we are sitting
in a larger Bench, we have kept in mind the relevance and significance of the
principle of stare decisis. We are conscious of the fact that in law certainty,
consistency and continuity are highly desirable features. Where a decision has
stood the test of time and has never been doubted, we have respected it unless,
of course, there are compelling and strong reasons to depart from it. Where, however,
such uniformity is not found, we have tried to answer the question on principle
keeping in mind the scheme and goal of our Constitution and the material placed
before us[lxxxi].”
This principle is upheld in T.M.A. Pai Foundation & Ors. v. State of Karnataka & Ors[lxxxii].
Commenting on the jurisdiction and scope of the Supreme
Court under Article 32 of the Constitution of India, Supreme Court contends
that Complex social, constitutional and legal questions upon which there has
been sharp division of opinion in society which could more satisfactorily be
settled by political processes if a reference of such question is made to Court
only shows disinclination of the executive to grapple with these sensitive
issues as also the confidence reposed in Court. SC writes, “There are occasions when the obvious needs to be stated
and, we think, this is one such occasion. 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[lxxxiii].”
Upholding the judgment in State of Andhra Pradesh And Ors v. U.S.V. Balram Etc[lxxxiv]
the Supreme Court says that a Backward
Classes Commission appointed under Article 340 of the Constitution of India,
when giving conclusions in its report, it cannot always be scientifically
accurate, but it is sufficient if relevant data and material given in report
justify the conclusions. B.P. Jeevan Reddy, J. writes, “In spite of best efforts that any commission may make in
collecting materials and datas, its conclusions cannot be always scientifically
accurate in such matters. Therefore, the proper approach, in our opinion should
be to see whether the relevant data and materials referred to in the report of
the Commission justify its conclusions[lxxxv].”
Supreme Court held that in interpretation of statutes,
the words used in Constitution, external aids such as Constituent Assembly
debates are not conclusive of the meaning of the words. Debates only furnish
the context in which, and objective to achieve which, the words have been used.
Jeevan Reddy, J states, “We may now turn to
Constituent Assembly debates with a view to ascertain the original intent underlying
the use of words ‘backward class of citizens’. At the outset we must clarify
that we are not taking these debates or even the speeches of Dr. Ambedkar as
conclusive on the meaning of the expression ‘backward classes.’ We are
referring to these debates as furnishing the context in which and the objective
to achieve which this phrase was put in Clause (4). We are aware that what is
said during these debates is not conclusive or binding upon the court because
several members may have expressed several views, all of which may not be
reflected in the provision finally enacted[lxxxvi].”
02. Whether the 'provision' contemplated by Article 16(4) must necessarily be made by the legislative wing of the State?
Interpreting Articles
16(4) and 73 of the Constitution of India, Supreme Court has held that
provision for reservation in favour of backward classes need not necessarily be
made by Parliament/Legislature. It can also be made by executive wing of
Union/State. B.P. Jeevan Reddy, J. writes, “A 'provision' under Article 16(4) can be made by an executive order. It
is not necessary that it should be made by Parliament/Legislature.[lxxxvii]” Elsewhere in Indra Sawhney Case it is stated,“The very use of the word
"provision" in Article 16(4) is significant. Whereas Clauses (3) and (5)
of Article 16 - and Clauses (2) to (6) of Article 9 -
use the word "Law", Article 16(4) uses the word "provision". Regulation of service conditions by
orders and Rules made by the Executive was a well known feature at the time of
the framing of the Constitution. Probably for this reason, a deliberate
departure has been made in the case of Clause (4). Accordingly, we hold,
agreeing with Balaji[lxxxviii],
that the "provision" contemplated by Article 16(4) can also be made
by the executive wing of the Union or of the State, as the case may be, as has
been done in the present case. Bajaji[lxxxix]
has been followed recently in Comptroller and Auditor
General of India v. Mohan Lal Mehrotra[xc]. With respect to the argument of abuse of power by the
political executive, we may say that there is adequate safeguard against misuse
by the political executive of the power under Article 16(4) in the provision itself. Any determination of backwardness is not a
subjective exercise, nor a matter of subjective satisfaction. As held herein -
as also by earlier judgments - the exercise is an objective one. Certain
objective social and other criteria has to be satisfied before any group or
class of citizens could be treated as backward. If the executive includes, for
collateral reasons, groups or classes not satisfying the relevant criteria, it
would be a clear case of fraud on power.[xci]”
However
in R.S. Garg v. State of U.P. & Ors[xcii]
Supreme Court holds that “An executive action or a legislative Act should also
be commensurate with the dicta laid down by this Court in Indra Sawhney vs.
Union of India (`Indra Sawhney-I')[xciii]
and followed in Ashoka Kumar Thakur vs. State of Bihar & Ors[xciv]
and Indra Sawhney vs. Union of India ('Indra Sawhney-II')[xcv].”
In
Umadevi (Secretary, State of Karnataka & Ors. v. Umadevi & Ors[xcvi],
the Constitution Bench referring to Kesavananda Bharati v. State of Kerala[xcvii]
Indra Sawhney-I[xcviii]
and Indra Sawhney-II[xcix]
opined, "These binding decisions are clear imperatives that adherence to
Articles 14 and 16 of the Constitution is a must in the process of public
employment."
03. If the answer to Clause (a) is in the negative, whether an executive order making such a provision is enforceable without incorporating it into a rule made under the proviso to Article 309?
Referring to Articles 16(4) and 73 of the Constitution of
India Supreme Court held that reservation of appointments/posts for backward
classes can be made by executive order and that the order is effective and
enforceable the moment it is made. Enactment into law or incorporation in rule
is not necessary for making it enforceable.
Executive power for order providing for reservation in appointments is
effective from the moment it is made.
“An executive order making a provision under
Article 16(4) is enforceable the moment it is made and issued[c].”
Supreme Court
adds, “Once we hold that a provision under Article 16(4) can be made by the
executive, it must necessarily follow that such a provision is effective the
moment it is made. A Constitution Bench of this Court in B.S. Yadav[ci] Y.V.
Chandrachud, C.J., speaking for the Bench has observed: Article 235 does not confer upon the High Court the power to make rules relating to
conditions of service of judicial officers attached to district courts and the
courts subordinate thereto. Whenever it was intended to confer on any authority
the power to make any special provisions or rules, including rules relating to
conditions of service, the Constitution has stated so in express terms. See,
for example Articles 15(4), 16(4), 77(3), 87(2), 118, 145(1), 146(1) and (2),
148(5), 166(3), 176(2), 187(3), 208, 225, 227(2) and (3), 229(1) and (2), 234,
237 and 283(1) and (2).
Be that as it
may, there is yet another reason, why we cannot agree that the impugned Memorandums
are not effective and enforceable the moment they are issued. It is well
settled by the decisions of this Court that the appropriate government is
empowered to prescribe the conditions of service of its employees by an
executive order in the absence of the rules made under the proviso to Article
309. It is further held by this Court that even where Rules under the proviso to
Article 309 are made, the government can issue orders/instructions with respect
to matters upon which the Rules are silent. [see Sant
Ram Sharma v. State of Rajasthan[cii]]. This view has been reiterated in a recent decision of
this Court in Comptroller and Auditor General v. Mohanlal Mehrotra[ciii] wherein it is held[civ].”
Para 55
04. Whether Clause (4) of Article 16 is an exception to Clause (1) of Article 16?
Interpreting Articles 16(1) and 16(4) of the Constitution
of India Supreme Court has held that clause (4) of Art 16 is not an exception
to Clause (1) of Art 16. Clause (4) is an instance of classification implicit
in and permitted by Clause (1).
Judgment in Indra Sawhney Case declares, “Article
16(4) is not an exception to Article 16(1). It is an instance of classification
inherent in Article 16(1). Article 16(4) is exhaustive of the subject of
reservation in favour of backward classes, though it may not be exhaustive of
the very concept of reservation. Reservations for other classes can be provided
under Clause (1) of Article 16[cv].”
In
Balaji[cvi]
it was held - "there is no doubt that Article 15(4) has to be read as a
proviso or an exception to Articles 15(1) and 29(2)". It was observed that
Article 15(4) was inserted by the First Amendment in the light of the decision
in Champakam,[cvii]
with a view to remove the defect pointed out by this Court namely, the absence
of a provision in Article 15 corresponding to Clause (4) of Article 16.
Following Balaji[cviii]
it was held by another Constitution Bench (by majority) in Devadasan[cix]
- "Further this Court has already held that Clause (4) of Article 16 is by
way of a proviso or an exception to Clause (1)". Subbarao, J., however,
opined in his dissenting opinion that Article 16(4) is not an exception to
Article 16(1) but that it is only an emphatic way of stating the principle
inherent in the main provision itself. Be that as it may, since the decision in
Devadasan[cx], it
was assumed by this Court that Article 16(4) is an exception to Article 16(1).
This view, however, received a severe set-back from the majority decision in State
of Kerala and Ors. v. N.M. Thomas[cxi]. Though the minority (H.R. Khanna and
A.C. Gupta, JJ.) stuck to the view that Article 16(4) is an exception, the
majority (Ray, C.J., Mathew, Krishna Iyer and Fazal Ali, JJ.) held that Article
16(4) is not an exception to Article 16(1) but that it was merely an emphatic
way of stating a principle implicit in Article 16(1). (Beg. J. took a slightly
different view which it is not necessary to mention here). The said four
learned Judges - whose views have been referred to in para 41 - held that Article 16(1) being a facet of the doctrine of
equality enshrined in Article 14 permits reasonable classification
just as Article 14 does. In our respectful opinion, the view taken by the majority
in Thomas is the correct one. We too believe that Article 16(1) does permit
reasonable classification for ensuring attainment of the equality of
opportunity assured by it. For assuring equality of opportunity, it may well be
necessary in certain situations to treat unequally situated persons unequally.
Not doing so, would perpetuate and accentuate inequality. Article 16(4) is an instance
of such classification, put in to place the matter beyond controversy. The
"backward class of citizens" are classified as a separate category
deserving a special treatment in the nature of reservation of
appointments/posts in the services of the State. Accordingly, we hold that
Clause (4) of Article 16 is not exception to Clause (1) of Article 16. It is an instance of classification implicit in and permitted by Clause
(1). Para 56.
However,
in Ajith Singh & Ors. v. State of Punjab and Ors[cxii]
Supreme Court holds, “In Ajit Singh II v. State of Punjab[cxiii],
It was stated (at PP. 229-230) relying upon earlier judgments starting from
1963, that Article 16(4) was only an enabling provision and did not impose any
constitutional duty nor confer any fundamental right for reservations. The
observations at page 691 by Jeevan Reddy, J. in Indira Sawhney[cxiv]
relied upon in the review applications do not deal with the above issue. It was
the view of two Constitution Bench Judgments of this Court one of 1963 in M.R.
Balaji v. State of Mysore, [1963] Supp. 1 SCR 439 and another in 1968 in C.A.
Rajendran v. Union of India, [1968] 1 SCR 721 and also two three judgments of
this Court in P&T Scheduled Caste/Tribe Employees Welfare Association
(Regd.) v. Union of India, [1998] 4 SCC 147 and State Bank of India v.
Scheduled Caste/ Tribes Employees Welfare Association, [1996] 4 SCC 1191, that
Article 16 (4) was only am enabling provision. The view was nowhere dissented in
Indira Sawhney much less at page 691 by Jeevan Reddy, J. It appears to us that
all the nine Judges in Indira Sawhney were of the same view that Article 16(4)
was not in the nature of a fundamental right and was only an enabling
provision. In this connection, reference may be made with advantage to the view
of the Jeevan Reddy, J. (at pages 667-735) referring to Subba Rao, J, That
Article 16 (4) was a provision conferring a 'power' and referring to Article 16
(1) alone as a guarantee and not to Article 16 (4); to the view of Sawant, J.
(at page 517,para 43 (4), Pandian J. (at page 407, para 168). Thommen, J. (at
page 449, para 284), Sahai, J. (at page 580) with whom Kuldip Singh, J. agreed,
- all expressly stating that Article 16 (4) was only an enabling provision.
Thus, majority of the learned Judges expressly stated that Article 16 (4) was
an "enabling provision". Merely because the reservation for backward
classes was created as reasonable classification and justified at page 691,that
does not detract from the view that Article 16 (4) was only an enabling
provision.”
In Ajit
Singh and Ors v. State of Punjab and Ors[cxv]
Supreme Court states, “In Indira
Sawhney's case, Jeevan Reddy, J. explained how the fundamental right of the
citizens as declared in Article16 (1) has to be balanced against the claims of
the reserved candidates in Article 16 (4).
The learned Judge stated: (See page 734
para 808):
"It needs
no emphasis to say that the
principal aim of Articles
14 and 16 is equality and
equality of opportunity and that
clause (4) of Article 16 is a means of achieving the very same objective. Clause (4) is a special provision - though
not an exception to clause (1). Both the
provisions have to be harmonised keeping in mind the fact that both are restatements
of the principles of equality enshrined in Article 14. The provision under
Article 16(4) - conceived in the interests of certain sections of society -
should be balanced against the guarantee of equality enshrined in clause (1) of Article 16 which is a guarantee held out to every citizen and to the entire
society".
The
same principle was reiterated in the judgment of the Constitution Bench in Post
Graduate Institute of Medical Education and Research vs. Faculty Association[cxvi]
after referring to several earlier cases.
It was stated :
(P.22)
" The doctrine of equality of opportunity in clause (1)
of Article 16 is to be reconciled in favour of backward classes under
clause (4) of Article 16 in such a manner that the latter while serving the
cause of backward classes shall not unreasonably encroach upon the field of
equality".
The above
approach in Balaji in 1963,
Indira Sawhney in 1991 later in Ajit Singh in 1996 and in PGI Case
in 1998
for striking a balance between
the individuals rights under
Articles 14 and 16(1) on the
one hand and affirmative action
under Articles 16(4) &
16(4A) on the other, appears to us to be
on the same lines as the approach of the U.S.
Supreme Court under the Equal Protection Clause in Richmond v. Croson
and Co. (1989) 488 U.S. 469 (at 493). In that case, it was stated
that while dealing with the
affirmative action taken in favour of African-Americans, the Equal Protection Clause
which conferred individual rights have to be kept in mind by the Courts.
As pointed in
Indira Sawhney, the provisions of
the Constitution must be interpreted in such a manner that a
sense of
competition is cultivated among
all service personnel, including the reserved categories.
05. Whether Clause (4) of Article 16 is exhaustive of the special provisions that can be made in favour of 'backward class of citizens'? Whether it is exhaustive of the special provisions that can be made in favour of all sections, classes or groups?
In an interpretation of Article 16(4) of the Constitution
of India Supreme Court holds in respect to reservation for backward classes
that the Words “any provision for the reservation of appointments and posts” do
not contemplate reservation as one and only form of provision. All supplemental
and ancillary provisions as also lesser types of special provisions such as
exemptions, concessions and relaxations fall within sweep of Art 16(4). Thus
reservations, exemptions, concessions and relaxations etc fall within sweep of
Art 16(4) and they are permissible under Art. 16(4).
In Indra Sawhney Case, Supreme Court states,
“In our opinion, reservation is the highest form of special provision, while
preference, concession and exemption are lesser forms.
The Constitutional scheme and context of
Article 16(4) induces us to take the view that larger concept of reservations takes
within its sweep all supplemental and ancillary provisions as also lesser types
of special provisions like exemptions, concessions and relaxations, consistent
no doubt with the requirement of maintenance of efficiency of administration -
the admonition of Article335. The several concessions, exemptions and other
measures issued by the Railway Administration and noticed in Karamchari Sangh[cxvii] are
instances of supplementary, incidental and ancillary provisions made with a
view to make the main provision of reservation effective i.e., to ensure that the members of the reserved
class fully avail of the provision for reservation in their favour. The other
type of measure is the one in Thomas. There was no provision for reservation in
favour of Scheduled Castes/Scheduled Tribes in the matter of promotion to the
category of Upper Division Clerks. Certain tests were required to be passed
before a Lower Division Clerk could be promoted as Upper Division Clerk. A
large number of Lower Division Clerks belonging to S.C./S.T. were not able to
pass those tests, with the result they were stagnating in the category of L.D.Cs.
Rule 13AA was accordingly made empowering the government to grant exemption to members
of S.C./S.T. from passing those tests and the Government did exempt them, not absolutely,
but only for a limited period. This provision for exemption was a lesser form
of special treatment than reservation. There is no reason why such a special
provision should not be held to be included within the larger concept of
reservation[cxviii].”
The Apex Court continues,
“We must also make it clear that it would not be
impermissible for the State to extend concessions and relaxations to members of
reserved categories in the matter of promotion without compromising the
efficiency of the administration. The relaxation concerned in Thomas and the concessions
namely carrying forward of vacancies and provisions for in-service
coaching/training in Karamchari Sangh[cxix] are
instances of such concessions and relaxations. However, it would not be permissible
to prescribe lower qualifying marks or a lesser level of evaluation for the
members of reserved categories since that would compromise the efficiency of
administration. We reiterate that while it may be permissible to prescribe a
reasonably lesser qualifying marks or evaluation for the O.B.Cs., S.Cs. and
S.Ts. consistent with the efficiency of administration and the nature of duties
attaching to the office concerned - in the matter of direct recruitment, such a
course would not be permissible in the matter of promotions for the reasons
recorded hereinabove.[cxx]”
However Supreme Court gives an exception too, “While on Article 335, we are of the opinion that there are certain services and
positions where either on account of the nature of duties attached to them or
the level (in the hierarchy) at which they obtain, merit as explained
hereinabove, alone counts. In such situations, it may not be advisable to
provide for reservations. For example, technical posts in research and
development organisations/ departments/ institutions, in specialties and
super-specialties in medicine, engineering and other such courses in physical
sciences and mathematics, in defence services and in the establishments
connected therewith. Similarly, in the case of posts at the higher echelons e.g.,
Professors (in Education), Pilots in Indian Airlines and Air India, Scientists
and Technicians in nuclear and space application provision for reservation
would not be advisable[cxxi].” This
exception is upheld in Post Graduate Institute of Medical Education and Research, Chandigarh v.
Faculty Association and Ors etc.[cxxii]
That judgment says, “We may point
out that the services posts enumerated above, on
account of their nature and duties attached,
are such
as call for highest
level of intelligence, skill and excellence. Some of
them are second level and third level posts in the ascending order. Hence, they
form a category apart. Reservation therein may not be consistent with "efficiency
of administration" contemplated by Art. 335.”
06. Whether reservations can be made under Clause (1) of Article 16 or whether it permits only extending of preferences/concessions?
Interpreting Article 16(1) and 16(4) of the Constitution
of India, Supreme Court has held in a majority basis that Clause (4) of Art 16
is not exhaustive of concept of reservation. It is exhaustive only of
reservations in favour of backward classes. Reservations can be provided under
Clause (1) of Article 16 only in very exceptional situations. Supreme Court
adds,
“In our opinion, therefore, where the State
finds it necessary - for the purpose of giving full effect to the provision of
reservation to provide certain exemptions, concessions or preferences to
members of backward classes, it can extend the same under Clause (4) itself. In
other words, all supplemental and ancillary provisions to ensure full availment
of provisions for reservation can be provided as part of concept of reservation
itself. Similarly, in a given situation, the State may think that in the case
of a particular backward class it is not necessary to provide reservation of
appointments/posts and that it would be sufficient if a certain preference or a
concession is provided in their favour. This can be done under Clause (4) itself.
In this sense, Clause (4) of Article 16 is exhaustive of the special provisions
that can be made in favour of "the backward class of citizens".
Backward Classes having been classified by the
Constitution itself as a class deserving special treatment and the
Constitution having itself specified the nature of special treatment, it should
be presumed that no further classification or special treatment is permissible
in their favour apart from or outside of Clause (4) of Article 16.[cxxiii]”
In Dr. Gulshan Prakash & Ors v.
State of Haryana & Ors[cxxiv] Supreme Court quotes the judgment in Indra
Sawhney Case
"The
aspect next to be considered is whether clause (4) is exhaustive of the very
concept of reservations? In other words, the question is whether any
reservations can be provided outside clause (4) i.e., under clause (1) of
Article 16. There are two views on this aspect. On a fuller consideration of
the matter, we are of the opinion that clause (4) is not, and cannot be held to
be, exhaustive of the concept of reservations; it is exhaustive of reservations
in favour of backward classes alone. Merely because, one form of classification
is stated as a specific clause, it does not follow that the very concept and
power of classification implicit in clause (1) is exhausted thereby. To say so
would not be correct in principle. But, at the same time, one thing is clear.
It is in very exceptional situations, -- and not for all and sundry reasons -- that any further reservations,
of whatever kind, should be provided under clause (1). In such cases, the State
has to satisfy, if called upon, that making such a provision was necessary (in
public interest) to redress a specific situation. The very presence of clause
(4) should act as a damper upon the propensity to create further classes
deserving special treatment. The reason for saying so is very simple. If
reservations are made both under clause (4) as well as under clause (1), the
vacancies available for free competition as well as reserved categories would
be a correspondingly whittled down and that is not a reasonable thing to do.[cxxv]"
07. What does the expression 'backward class of citizens' in Article 16(4) means?
Interpreting Article 16(4) of the Constitution of India,
Supreme Court has held in a majority basis that the Word ‘class’ in “Backward
class” is used in sense of a social class. Class is not antithetical to caste.
Caste can be taken as a backward class of community. The word ‘class’ is used
in Article 16(4) in a social sense. The word ‘community’ is wider than caste.
Judgment in Indra Sawhney Case states among others,
“Indeed, there are very good reasons why the
Constitution could not have used the expression "castes" or
"caste" in Article 16(4) and why the word "class"
was the natural choice in the context. The Constitution was meant for the
entire country and for all time to come. Non-Hindu religions like Islam,
Christianity and Sikh did not recognise caste as such though, as pointed out hereinabove,
castes did exist even among these religions to a varying degree. Further, a Constitution
is supposed to be a permanent document expected to last several centuries. It
must surely have been envisaged that in future many classes may spring-up
answering the test of backwardness, requiring the protection of Article 16(4). It, therefore, follows that from the use of the word "class" in Article
16(4), it cannot be concluded either that "class" is antithetical to "caste"
or that a caste cannot be a class or that a caste as such can never be taken as
a backward class of citizens. The word "class" in Article 16(4), in
our opinion, is used in the sense of social class - and not in the sense it is
understood in Marxist jargon[cxxvi].”
Supreme Court continues,
“ The expression 'backward class' in Article
16(4) takes in 'Other Backward Classes', S.Cs., S.Ts. and may be some other
backward classes as well. The accent in Article 16(4) is upon social backwardness. Social backwardness leads to educational
backwardness and economic backwardness. They are mutually contributory to each
other and are inter-twined with low occupations in the Indian society. A caste
can be and quite often is a social class in India. Economic criterion cannot be
the sole basis for determining the backward class of citizens contemplated by Article
16(4). The weaker sections referred to Article 46 do include S.E.B.Cs. referred to in
Article 340 and covered by Article 16(4).[cxxvii]”
08. Whether backward classes can be identified on the basis and with reference to caste alone?
Interpreting Articles 16(4) and 16(2) of the Constitution
of India in Indra Sawhney Case in a majority decision, the Supreme Court has
held that for the identification of backward classes caste can be a
consideration. Consideration of caste while identifying backward classes does
not offend Article 16(2). The test to be applied for identification of backward
classes need not also be one or uniform.
Theory of lingering effects of past discrimination has no
relevance in India where caste discrimination is still prevalent.
Identification as backward classes of only that group or section of people, who
are suffering the lingering effects of past discrimination would not therefore
be proper[cxxviii].”
Backwardness contemplated by Article 16(4) is mainly
social backwardness, but not social and educational backwardness. Backward
class contemplated by Article 16(4) is wider than one contemplated under
Article 15(4). Here the Supreme Court overruled Janki Prasad Parimoo v. State of Jammu and Kashmir[cxxix],
M. R. Balaji And Others vs State Of Mysore[cxxx]
and K.C. Vasanth Kumar & Another vs State Of Karnataka.[cxxxi]
The Judgment in Indra Sawhney Case continues,
“Neither the Constitution nor the law prescribes the
procedure or method of identification of backward classes. Nor is it possible
or advisable for the Court to lay down any such procedure or method. It must be
left to the authority appointed to identify. It can adopt such method/procedure
as it thinks convenient and so long as its survey covers the entire populace,
no objection can be taken to it.[cxxxii]”
Furthermore,
“By now, it is well settled that reservations
in educational institutions and other walks of life can be provided under
Article 15(4) just as reservations can be provided in services under Article 16(4). If so, it would not be correct to confine Article 15(4) to programmes of positive action alone. Article 15(4) is wider than Article 16(4) inasmuch as several kinds of positive action
programmes can also be evolved and implemented thereunder (in addition to
reservations) to improve the conditions of SEBCs., Scheduled Castes and
Scheduled Tribes, whereas Article 16(4) speaks only of one type of remedial measure,
namely, reservation of appointments/posts. But it may not be entirely right to
say that Article 15(4) is a provision envisaging programmes of positive action.
Indeed, even programmes of positive action may sometimes involve a degree of
discrimination. For example, if a special residential school is established for
Scheduled Tribes or Scheduled Castes at State expense, it is a discrimination
against other students, upon whose education a far lesser amount is being spent
by the State.[cxxxiii]”
09. Whether a class, to be designated as a backward class, should be situated similarly to the S.Cs./S.Ts.?
Interpreting Articles 16(4) of the Constitution of India
in Indra Sawhney Case in a majority decision, the Supreme Court has held that
in reservation in State Services for Identification of backward classes,
backwardness similar to that of Scheduled Castes and Scheduled tribes cannot be
a standard for identification of other classes or groups as backward classes.
In this case observations in AIR 1963 SC 649 was overruled. Supreme Court
states, “It is not necessary for a class to be designated
as a backward class that it is situated similarly to the Scheduled
Castes/Scheduled Tribes[cxxxiv].” Supreme
Court has clarified that, “We do not think that these observations were meant
to lay down any proposition that the socially Backward Classes were those
classes of people, whose conditions of life were very nearly the same as those
of the Scheduled Castes and Tribes....There is no point in attempting to
determine the social backwardness of other classes by applying the test of
nearness to the conditions of existence of the Scheduled Castes. Such a test
would practically nullify the provision for reservation for socially and
educationally Backward Classes other than Scheduled Castes and Tribes[cxxxv].”
Supreme Court adds, “We see no reason to
qualify or restrict the meaning of the expression "backward class of citizens"
by saying that it means those other backward classes who are situated similarly
to Scheduled Castes and/or Scheduled Tribes. As pointed out in para 85, the
relevant language employed in both the clauses is different. Article 16(4) does not expressly refer to Scheduled Castes or Scheduled Tribes; if so,
there is no reason why we should treat their backwardness as the standard backwardness for all those claiming its
protection. As a matter of fact, neither the several castes/groups/tribes
within the Scheduled Castes and Scheduled Tribes are similarly situated nor are
the Scheduled Castes and Scheduled Tribes similarly situated. If any group or class
is situated similarly to the Scheduled Castes, they may have a case for
inclusion in that class but there seems to be no basis either in fact or in
principle for holding that other classes/groups must be situated similarly to
them for qualifying as backward classes[cxxxvi].”
10. Whether the 'means' test can be applied in the course of identification of backward classes? And if the answer is yes, whether providing such a test is obligatory?
Interpreting Article 16(4) of the Constitution of India
in Indra Sawhney Case in a majority decision, the Supreme Court has held that
in reservation for backward class creamy layer can be and must be excluded.
Exclusion makes the class a truly backward class. It would benefit the truly backward. Supreme
Court issued directions to Central Government to specify the basis of
exclusion; whether on the basis of income, extent of holding or otherwise of
‘creamy layer’ within four months. Supreme Court held that exclusion of creamy
layer in reservation was valid. It is stated therein, “We direct the Government of India to specify
the basis of exclusion - whether on the basis of income, extent of holding or
otherwise - of 'creamy layer'. This shall be done as early as possible, but not
exceeding four months. On such specification persons falling within the net of
exclusionary rule shall cease to be the members of the Other Backward Classes
(covered by the expression 'backward class of citizens') for the purpose of
Article 16(4). The impugned Office Memorandums dated 13th August, 1990 and 25th September,
1991 shall be implemented subject only to such specification and exclusion of
socially advanced persons from the backward classes contemplated by the said
O.M. In other words, after the expiry of four months from today, the
implementation of the said O.M. shall be subject to the exclusion of the
'creamy layer' in accordance with the criteria to be specified by the
Government of India and not otherwise.[cxxxvii]”
Interpreting Articles 16(4), 32, and 226 of the
Constitution of India Supreme Court has held that satisfaction of State
as to inadequate representation of backward class in services under State is
open to judicial scrutiny.
Supreme Court stated in Indra Sawhney Case, “Not only should a class be a backward class for meriting
reservations, it should also be inadequately represented in the services under
the State. The language of Clause (4) makes it clear that the question whether
a backward class of citizens is not adequately represented in the services
under the State is a matter within the subjective satisfaction of the State.
This is evident from the fact that the said requirement is preceded by the
words "in the opinion of the State". This opinion can be formed by
the State on its own, i.e., on the basis of the material it has in its possession
already or it may gather such material through a Commission/Committee, person
or authority. All that is required is, there must be some material upon which
the opinion is formed. Indeed, in this matter the court should show due
deference to the opinion of the State, which in the
present context means the executive. The executive is supposed to know the
existing conditions in the society, drawn as it is from among the
representatives of the people in Parliament/Legislature. It does not, however,
mean that the opinion formed is beyond judicial scrutiny altogether. The scope
and reach of judicial scrutiny in matters within subjective satisfaction of the
executive are well and extensively stated in Barium Chemicals v. Company Law
Board, which need not be repeated here. Sufficed it to mention that the said
principles apply equally in the case of a constitutional provision like Article
16(4) which
expressly places the particular fact (inadequate representation) within the
subjective judgment of the State/executive[cxxxviii].”
This observation is upheld in Subhash Chandra and another v. Delhi
Subordinate Services Selection Board & Ors.[cxxxix].
In Indra Sawhney Case it is specified that “While dealing with Question No. 3(d), we held that that
exclusion of 'creamy layer' must be on the basis of social advancement (such
advancement as renders them misfits in the backward classes) and not on the
basis of mere economic criteria. At the same time, we held that income or the
extent of property held by a person can be taken as a measure of social
advancement and on that basis 'creamy layer' of a given
caste/community/occupational group can be excluded to arrive at a true backward
class. Under Question No. 5, we held that it is not impermissible for the State
to categories backward classes into backward and more backward on the basis of
their relative social backwardness. We had also given the illustration of two
occupational groups, viz., gold-smiths and Vaddes (traditional stone-cutters in
Andhra Pradesh); both are included within 'other backward classes'. If these
two groups are lumped together and a common reservation is made, the
gold-smiths would walk away with all the vacancies leaving none for vaddes.
From the said point of view, it was observed, such classification among the
designated backward classes may indeed serve to help the more backward among
them to get their due[cxl].”
The
facts of the case Nair Service Society v. State of Kerala[cxli]
is very interesting.
Indisputably,
pursuant to or in furtherance of the directions in 'Indra Sawhney Case, the
Union of India appointed a Commission.
It issued an Office Memorandum being dated September 8, 1993 laying down
guidelines for identifying 'creamy layer', inter alia, stipulating that the
sons and daughters of persons having
gross annual income of Rs.1 lakh or above would be excluded.
The
State of Kerala which was not in dispute, did not comply with the said
direction of this Court.
At
this juncture, it may be noticed that the constitutional validity of the
criteria for determining the 'creamy layer' for the purpose of exclusion from
backward classes laid down by the States of Bihar and Uttar Pradesh came up for
consideration before Supreme Court in Ashoka Kumar Thakur vs. State of Bihar
& Ors.[cxlii] Supreme Court held that having regard to the
observations made in Indra Sawhney Case, the said criteria were ultra vires
stating :
"This
Court in Mandal case [Indra Sawhney v. Union of India (1992) Supp.3 SCC 217]
has clearly and authoritatively laid down that the affluent part of a backward
class called "creamy layer" has to be excluded from the said class
and the benefit of Article 16(4) can only be given to the 'class' which remains
after the exclusion of the "creamy layer". The backward class under
Article 16(4) means the class which has no element of "creamy layer"
in it. It is mandatory under Article 16(4)
as interpreted by this Court that
the State must identify the "creamy layer" in a backward class and
thereafter by excluding the "creamy layer" extend the benefit of
reservation to the 'class' which remains after such exclusion. This Court has
laid down, clear and easy to follow, guidelines for the identification of
"creamy layer". The States of Bihar and Uttar Pradesh have acted
wholly arbitrary and in utter violation of the law laid down by this Court in
Mandal case"
By an
order dated 10th July, 1995, Supreme Court, while holding the State of Kerala
to be guilty of contempt of this Court, gave it two month's time to purge the
same and report its compliance. The
Chief Secretary of the State, pursuant to said order appeared before Supreme Court.
In
its order dated 10th July, 1995, Supreme Court, in Indra Sawhney vs. Union of
India & Ors[cxliii]. reported in (1995) 5 SCC 429, observed :
"We
are, therefore, of the opinion that this is a case for taking action in
contempt. We hold the respondent guilty of contempt. However, in order to give
the respondent an opportunity to purge the contempt before we pass the
sentence, we adjourn the matter by two months to enable the State Government to
report compliance before 11-9-1995, failing which this Court will proceed to
pass appropriate orders in respect of the contempt. The Chief Secretary will
remain present at the next date of hearing i.e. on 11-9-1995 to inform this
Court whether or not the order has been complied with. If not, he runs the risk
of being sentenced. Let the IAs Nos. 35 and 36 come up on 11-9-1995."
The
legislature of the State of Kerala thereafter enacted the Kerala State Backward
Classes (Reservation of Appointments or Posts in the Services Under the State)
Act, 1995 ('the State Act'), in terms whereof it was declared that there was no
socially advanced section in the State.
Section 4 of the State Act contemplates that nothing contained in the
law or in any judgment, decree or order of any Court or any other authority,
the reservation, which had been in operation since 1958, shall continue to
operate. The Nair Service Society filed
a writ petition before the Kerala High Court questioning the validity of the
State Act. Supreme Court admittedly
passed an order dated 4.11.1996 requesting the Chief Justice of the Kerala High
Court to appoint a High Powered Committee to determine the criteria for
identification of 'creamy layer'.
Pursuant
to the directions of the Chief Justice of Kerala High Court, a Committee headed
by Justice K.J. Joseph (hereinafter referred to as 'the Joseph Committee') was
constituted. The Committee submitted its
report on 4.8.1997. Objections to the
said report were filed before this Court.
By judgment and order dated 13.12.1999 in Indra Sawhney vs. Union of
India & Ors[cxliv].,
since reported in (2000) 1 SCC 168 or 'Indra Sawhney-II'), Supreme Court, while
holding the provisions of Sections 3, 4 and 6 of the State Act to be
unconstitutional, upon consideration of the objections to the report of the
Joseph Committee, accepted the same in toto, subject to certain additions of
communities and sub-castes, in the following terms:
"In
the result, we accept the Justice Joseph Committee Report in toto subject to
the addition of communities and sub-castes as pointed out in the affidavit of the
State dated 16-1-1998, referred to above."
The
Court furthermore noticed the contemptuous acts on the part of the authorities
of State of Kerala and held that they had deliberately been violating the
orders of Supreme Court. Some strictures were also passed against the State Government.
It was directed that the recommendations of the Joseph Committee should be
implemented forthwith until such time the State comes up with its own criteria
for determining 'creamy layer'. It further directed that the suo motu contempt
previously initiated by the Court would be kept pending and the State should
purge its contempt only by complying with the directions contained in Indra
Sawhney-II[cxlv].
The
recommendations made by the Joseph Committee in its report, however, were not
implemented forthwith in terms of the directions of Supreme Court. The State, on the other hand, appointed
another Commission headed by Justice K.K. Narendran. The Commission submitted an interim report
which directed the State to implement the report of the Joseph Committee. On 16.2.2000 the State issued fresh
guidelines for identifying creamy layer in accordance with the Joseph Committee
report. The Commission submitted its
final report on 11.4.2000. In the writ
petition in Nair Service Society v. State of Kerala[cxlvi],
the validity of the said notification was questioned.
From
Ashoka Kumar Thakur v. State of Bihar and Ors[cxlvii]
1996 AIR 75, 1995 (3) Suppl. SCR 269, 1995 (5) SCC 403, 1995 (5) SCALE 115,
1995 (6) JT 390 a portion is quoted below,
“It is
necessary to highlight another allied aspect of the
issue, in this connection. What do we mean by sufficient capacity to compete
with others? Is it the capacity to compete for Class IV or Class III or higher
class posts? A Class IV employee's children may develop capacity to compete for
Class III posts and in that sense, he and his
children may be
forward compared to those in his
class who have not secured even
Class IV posts. It cannot, however, be
argued that on that account, he has reached the "creamy" level. If
the adequacy of representation in the services as discussed earlier, is to be
evaluated in terms of qualitative and not mere quantitative representation,
which means representation in the higher
rungs of administration as well,
the competitive capacity should be determined on the basis of the capacity to
compete for the higher level posts also.
Such capacity will be acquired only when the backward sections reach those
levels or at least, near those levels."
E.V.
Chinnaiah v. State of Andhra Pradesh and Ors[cxlviii]
upholds the finding in Indra Sawhney Case that the discussion of creamy
layer is confined to other backward classes only and has no relevance in the
case of Scheduled Castes and Scheduled Tribes.
11. Whether the backward classes can be identified only and exclusively with reference to economic criteria?
Interpreting Articles 16(4) and 46 of the Constitution of
India in Indra Sawhney Case in a majority decision, the Supreme Court has held
that Identification of backward classes cannot be done exclusively on basis of
economic criterion. In reservation economic criterion alone cannot be the
basis. B.P. Jeevan Reddy J. states in Indra Sawhney Case, “It follows from the discussion under Question No. 3 that
a backward class cannot be determined only and exclusively with reference to
economic criterion. It may be a consideration or basis alongwith and in
addition to social backwardness, but it can never be the sole criterion. This
is the view uniformly taken by this Court and we respectfully agree with the
same.” He adds later, “A caste can be and quite often
is a social class in India. Economic criterion cannot be the sole basis for
determining the backward class of citizens contemplated by Article 16(4). The
weaker sections referred to Article 46 do include S.E.B.Cs referred to in Article
340 and covered by Article 16(4)[cxlix]”
12. Whether a criterion like occupation-cum-income without reference to caste altogether, can be evolved for identifying the backward classes?
Interpreting
Article 16(4) of the Constitution of India in Indra Sawhney Case in a majority
decision, the Supreme Court has held that Identification of backward classes
can be on occupation-cum-income basis without reference to caste. In this
judgment Chitralekha v State of Mysore[cl] is approved. B.P. Jeevan Reddy J.
states in Indra Sawhney Case, “In Chitralekha, this
Court held that such an identification is permissible. We see no reason to differ
with the said view inasmuch as this is but another method to find socially
backward classes. Indeed, this test in the Indian context is broadly the same
as the one adopted by the Mandal Commission. While answering Question 3(b), we
said that identification of backward classes can be done with reference to
castes alongwith other occupational groups, communities and classes. We did not
say that that is the only permissible method. Indeed, there may be some groups
or classes in whose case caste may not be relevant to all. For example,
agricultural labourers, Rickshawpullers/drivers, street-hawkers etc. may well
qualify for being designated as Backward Classes[cli].”
13. Whether the backward classes can be further categorised into backward and more backward categories?
Interpreting Articles 16(4) and 14 of the Constitution of
India in Indra Sawhney Case in a majority decision, the Supreme Court has held
that backward classes can be further classified into backward and more
backward. It is not impermissible in law. The Court says, “Articles 16(4) recognises
only one class viz., "backward class of citizens". It does speak
separately of Scheduled Castes and Scheduled Tribes, as does Articles 15 (4). Even so, it is beyond controversy that
Scheduled Castes and Scheduled Tribes are also included in the expression
"backward class of citizens" and that separate reservations can be
provided in their favour. It is a well-accepted phenomenon throughout the country.
What is the logic behind it? It is that if Scheduled Tribes, Scheduled Castes
and Other Backward Classes are lumped together, O.B.Cs. will take away all the
vacancies leaving Scheduled Castes and Scheduled Tribes high and dry. The same
logic also warrants categorisation as between more backward and backward. We do
not mean to say - we may reiterate - that this should be done. We are only
saying that if a State chooses to do it, it is not impermissible in law[clii].”
It is stated elsewhere, “There is no constitutional bar to classify the backward classes of citizens
into backward and more backward categories[cliii].
E.V.
Chinnaiah v. State of Andhra Pradesh and Ors[cliv]
upholds this position and states, “Supreme Court in Indra Sawhney case
classified the backward class citizens in four different categories - (i) more
backward, (ii) backward, (iii) Scheduled Caste and (iv) Scheduled Tribe. In
Indra Sawhney Case Court categorically stated that it was not concerned with
the question as regard members of Scheduled Castes and Scheduled Tribes.”
14. Whether the 50% rule enunciated in Balaji a binding rule or only a rule of caution or rule of prudence?
Interpreting Articles 16(4) and 311 of the Constitution
of India in Indra Sawhney Case in a majority decision, the Supreme Court has
held that reservation under Art 16(4) to Services under State should not exceed
50%. Relaxation of 50% rule can be made only in extraordinary situation. A part
of the Judgment runs, “From the above
discussion, the irresistible conclusion that follows is that the reservations contemplated
in Clause (4) of Article 16 should not exceed 50%. While 50% shall be the rule,
it is necessary not to put out of consideration certain extraordinary situations
inherent in the great diversity of this country and the people. It might happen
that in far-flung and remote areas the population inhabiting those areas might,
on account of their being out of the main stream of national life and in view
of conditions peculiar to and characteristical to them, need to be treated in a
different way, some relaxation in this strict rule may become imperative. In
doing so, extreme caution is to be exercised and a special case made out. In
this connection it is well to remember that the reservations under Article
16(4) do not operate like a communal reservation. It may well happen that some
members belonging to, say Scheduled Castes get selected in the open competition
field on the basis of their own merit; they will not be counted against the
quota reserved for Scheduled Castes; they will be treated as open competition candidates.[clv]”
“There is no constitutional bar to classify
the backward classes of citizens into backward and more backward categories[clvi].
The reservations contemplated in Clause (4) of Article 16 should not exceed
50%. While 50% shall be the rule, it is necessary not to put out of consideration
certain extraordinary situations inherent in the great diversity of this
country and the people. It might happen that in far-flung and remote areas the
population inhabiting those areas might, on account of their being out of the
main-stream of national life and in view of the conditions peculiar to and characteristic
of them need to be treated in a different way, some relaxation in this strict
rule may become imperative. In doing so, extreme caution is to be exercised and
a special case made out[clvii].”
The Court then adds, “The rule of 50% should be applied to each year. It cannot
be related to the total strength of the class, category, service or cadre, as
the case may be.[clviii]”
This principle is upheld
in Union of India etc. v. Rakesh Kumar and Ors[clix]
and many other decisions of Supreme Court.
Indra Sawhney Case further remarks, “However, it would not be permissible to prescribe lower
qualifying marks or a lesser level of evaluation for the members of reserved
categories since that would compromise the efficiency of administration. We
reiterate that while it may be permissible to prescribe a reasonably lesser
qualifying marks or evaluation for the O.B.Cs., S.Cs. and S.Ts. consistent with
the efficiency of administration and the nature of duties attaching to the
office concerned - in the matter of direct recruitment, such a course would not
be permissible in the matter of promotions for the reasons recorded
hereinabove.[clx]”
Furthermore, the judgment runs, “Having said this, we
must append a note of clarification. In some cases arising under Article 15, this
Court has upheld the removal of minimum qualifying marks, in the case of
Scheduled Caste/Scheduled Tribe candidates, in the matter of admission to
medical courses. For example, in State Of M.P. v. Nivedita Jain[clxi] admission to medical course was regulated by an entrance test (called
Pre-Medical Test). For general candidates, the minimum qualifying marks were
50% in the aggregate and 33% in each subject. For Scheduled Caste/Scheduled
Tribe candidates, however, it was 40% and 30% respectively. On finding that
Scheduled Cast/Schedule Tribe candidates equal to the number of the seats
reserved for them did not qualify on the above standard, the Government did
away with the said minimum standard altogether. The Government's action was
challenged in this Court but was upheld. Since it was a case under Article 15,
Article 335 had no relevance and was not applied. But in the case of Article 16, Article
335 would be relevant and any order on the lines of the order of the Government
of M.P. (in Nivedita Jain[clxii])
would not be permissible, being inconsistent with the efficiency of
administration. To wit, in the matter of appointment of Medical Officers, the
Government or the Public Service Commission cannot say that there shall be no
minimum qualifying marks for Scheduled Castes/Scheduled Tribes candidates,
while prescribing a minimum for others. It may be permissible for the
Government to prescribe a reasonably lower standard for Scheduled Castes/Scheduled
Tribes/Backward Classes - consistent with the requirements of efficiency of administration
- it would not be permissible not to prescribe any such minimum standard at
all. While prescribing the lower minimum standard for reserved category, the
nature of duties attached to the post and the interest of the general public
should also be kept in mind[clxiii].”
Para 811 of the Indra Sawhney Judgment is
quoted and upheld in The Union of India v. Ramesh Ram &
Ors. Etc.[clxiv]
as “It is well to remember that the reservations under Article 16 (4) do not
operate like a communal reservation. It may well happen that some members
belonging to, say, Scheduled Castes get selected in the open competition field
on the basis of their own merit; they will not be counted against the quota
reserved for Scheduled Castes; they will be treated as open competition
candidates[clxv].”
Supreme
Court held in P.V. Indiresan v. Union of India & Ors[clxvi]
as, “The point is
that universities alone
cannot produce qualified job
candidates. Forced to admit students with lower marks, the university's final
product will not
be as strong.
Once the creamy
is excluded, cut-off marks would likely drop considerably in order to
fill the 27% quota for
non creamy layer
OBCs. When the
creamy layer is
not removed, as in the case of Tamil Nadu, the difference in cut off
marks for the general and backward categories may be insignificant. (See para
408 of Indira Sawhney). Of course, the extent to which standards of excellence
would suffer would vary by institution.
As I mention below, I urge the Government to set OBC cut off marks no
lower than 10 marks below that of the general category. This is only a
recommendation.”
In
State of UP and Ors v. Sangam Nath Pandey and Ors[clxvii]
Supreme Court quotes para 814 of Indra Sawhney case, "Take a
unit/service/cadre comprising 1000 posts. The reservation in favour of
Scheduled Tribes, Scheduled Castes and Other Backward Classes is 50% which
means that out of the 1000 posts 500 must be held by the members of these
classes i.e. 270 by Other Backward Classes, 150 by Scheduled Castes and 80 by
Scheduled Tribes. At a given point of time, let us say, the number of members
of OBCs in the unit/service/category is only 50, a shortfall of 220. Similarly
the number of members of Scheduled Castes and Scheduled Tribes is only 20 and 5
respectively, shortfall of 130 and 75. If the entire service/cadre is taken as
a unit and the backlog is sought to be made up, then the open competition
channel has to be choked altogether for a number of years until the number of
members of all Backward Classes reaches 500, i.e., till the quota meant for
each of them is filled up. This may take quite a number of years because the
number of vacancies arising each year are not many. Meanwhile, the members of
open competition category would become age-barred and ineligible. Equality of
opportunity in their case would become a mere mirage. It must be remembered
that the equality of opportunity guaranteed by clause (1) is to each individual
citizen of the country while clause (4) contemplates special provision being
made in favour of socially disadvantaged classes. Both must be balanced against
each other. Neither should be allowed to eclipse the other. For the above
reason, we hold that for the purpose of applying the rule of 50% a year should
be taken as the unit and not the entire strength of the cadre, service or the
unit as the case may be.[clxviii]"
Then
the Supreme Court adds, “The facts narrated above would indicate is that the
situation in the present case is almost as it was depicted by this Court in the
case of Indra Sawhney (supra). We, therefore, reiterate that it is necessary
for the department to identify year-wise vacancies for the cadre. It is also
necessary to fill up the posts speedily in order to avoid certain candidates
being rendered ineligible as they may have become overage. It is for this
reason that Section 3 has placed importance on the year of recruitment as also
on the process of selection.”
In
Nair Service Society v. Dr. T. Beermasthan & Ors[clxix]
Supreme Court has upheld, “It is true that reserved category candidates can
compete for the non-reserved post as provided for in Rule 14 (b), which only
provides what has already been laid down by the Constitution Bench of this
Court in R.K. Sabharwal and others vs. State of Punjab and others (1995) 2 SCC
745. Rule 14(b), however, will apply only to units of 20 candidates, and not
for the total vacancies[clxx].”
In
Manesh Gupta & Ors v. Yashwant Kumar Ahirwar & Ors[clxxi]
Supreme Court held that, “Whereas a reasonable reservation within the
meaning of Article 16 of the Constitution of India should not ordinarily exist,
50%, as has been held by this Court in Indra Sawhney v. Union of India [1992
Supp (3) SCC 212 : AIR 1993 SC 477], reservation for women or handicapped
persons would not come within the purview thereof.”
In
DR. K. Krishna Murthy and Ors v. Union of India & Anr[clxxii]
Supreme Court has stated, “Admittedly, reservations in excess of 50% do
exist in some exceptional cases, when it comes to the domain of political
representation. For instance, the Legislative Assemblies of the States of
Arunachal Pradesh, Nagaland, Meghalaya, Mizoram and Sikkim have reservations
that are far in excess of the 50% limit. However, such a position is the
outcome of exceptional considerations in relation to these areas. Similarly,
vertical reservations in excess
of 50% are
permissible in the composition of local self-government
institutions located in the Fifth Schedule Areas. In the recent decision
reported as Union of India v. Rakesh Kumar, (2010) 1 SCALE 281, this Court has
explained why it may be necessary to provide reservations in favour of
Scheduled Tribes that exceed 50% of the seats in panchayats located in
Scheduled Areas. However, such exceptional considerations cannot be invoked
when we are examining the quantum of reservations in favour of backward classes
for the purpose of local bodies located in general areas.[clxxiii]
“ The Court adds, “In such circumstances, the vertical reservations in favour
of SC/ST/OBCs cannot exceed the upper limit of 50% when taken together. It is
obvious that in order to adhere to this upper ceiling, some of the States may
have to modify their legislations so as to reduce the quantum of the existing
quotas in favour of OBCs.”
NOTES
[lxxvi]
Indra Sawhney
etc. v. Union of India and Others, etc. (AIR 1993 SC 477, 1992 Supp 2 SCR 454) Para 4
[lxxvii]
2010 (1) SCR 591
[lxxviii]
Etc 1996 AIR 1011, 1996 (1) SCR 128, 1996 (3) SCC 545, 1996 (1) SCALE 85, 1996
(1) JT 57
[lxxix]
2006(5)Suppl.SCR828, 2006(7)SCC 684, 2006(9)SCALE 101, 2006(8)JT504
[lxxx]
Ibid Para 8
[lxxxi]
Ibid Para 26A
[lxxxii]
2003 AIR 355, 2002(3)Suppl.SCR 587, 2002(8)SCC 481, 2002(8)SCALE 1, 2002(9)JT 1
[lxxxiii]
Ibid Para 26 A
[lxxxiv]
AIR
1972 SC 1375
[lxxxv]
Indra Sawhney
etc. v. Union of India and Others, etc. (AIR 1993 SC 477, 1992 Supp 2 SCR 454)
Para 38
[lxxxvi]
Ibid Para 78
[lxxxvii]
Ibid Para 121(6)
[lxxxviii]
Balaji v. the State of Mysore AIR 1963 SC 649
[lxxxix]
Balaji
v. the State of Mysore AIR 1963 SC 649
[xc]
1991 AIR 2288, 1991 SCR Suppl. (1) 482
[xci] Indra Sawhney etc. v.
Union of India and Others, etc. (AIR 1993 SC 477, 1992 Supp 2 SCR 454) Para 54
[xcii]
2006 AIR 2912, 2006 (4) Suppl. SCR 120, 2006 (6) SCC 430, 2006 (7) SCALE 405, 2006(7)
JT1
[xciii]
1992 Supp.2 SCR 454
[xciv]
1995 (5) SCC 403
[xcv] 1999
Supp. 5 SCR 229
[xcvi]
(2006) 4 SCALE 197
[xcvii]
(1973) 4 SCC 225
[xcviii]
Indra Sawhney
etc. v. Union of India and Others, etc. (AIR 1993 SC 477, 1992 Supp 2 SCR 454)
[xcix]
Indra Sawhney vs. Union of India [1999 Supp.5 SCR 229] ('Indra Sawhney-II')
[c] Sawhney etc. v. Union
of India and Others, etc. (AIR 1993 SC 477, 1992 Supp 2 SCR 454) Para 121
[ci] B.
S. Yadav and Others Etc v. State of Haryana and Others etc 1981 AIR 561, 1981
SCR (1)1024
[cii] 1967
AIR 1910, 1968 SCR (1) 111
[ciii]
1991 AIR 2288, 1991 SCR Suppl. (1) 482
[civ]
Indra Sawhney
etc. v. Union of India and Others, etc. (AIR 1993 SC 477, 1992 Supp 2 SCR 454)
Para 55
[cv] Indra Sawhney etc. v.
Union of India and Others, etc. (AIR 1993 SC 477, 1992 Supp 2 SCR 454) Para 121
[cvi] Balaji v. the
State of Mysore AIR 1963 SC 649
[cvii]
The State Of Madras vs Srimathi Champakam 1951 AIR 226, 1951 SCR 525
[cviii]
Balaji
v. the State of Mysore AIR 1963 SC 649
[cix] T. Devadasan v. The Union of India and Another 1964
AIR 179, 1964 SCR (4) 680
[cx] T.
Devadasan v. The Union of India and Another 1964 AIR 179, 1964 SCR (4) 680
[cxi] [1976]
1 SCR 906
[cxii]
1999 (5) Suppl. SCR 195, 2000 (1) SCC 430, 1999 (7) SCALE 395, 1999 (9) JT 542
[cxiii]
[1997] 7 SCC 209
[cxiv]
Indra Sawhney
etc. v. Union of India and Others, etc. (AIR 1993 SC 477, 1992 Supp 2 SCR 454)
[cxv] 1999
AIR 3471, 1999(2) Suppl. SCR 521, 1999(7) SCC 209, 1999 (5) SCALE 556, 1999 (7)
JT 153
[cxvi]
1998 (4) SCC 1
[cxvii]
Akhil Bharatiya Soshit
Karamchari Sangh (Railway) v. Union of India and Ors., [1981] 1 SCC, AIR
1981 SC 290
[cxviii]
Indra Sawhney
etc. v. Union of India and Others, etc. (AIR 1993 SC 477, 1992 Supp 2 SCR 454)
Para 57
[cxix]
Akhil Bharatiya Soshit
Karamchari Sangh (Railway) v. Union of India and Ors., [1981] 1 SCC, AIR
1981 SC 290
[cxx] Indra Sawhney etc. v.
Union of India and Others, etc. (AIR 1993 SC 477, 1992 Supp 2 SCR 454) Para 107
[cxxi]
Ibid Para 112
[cxxii]
1998 AIR 1767, 1998(2) SCR 845, 1998(4) SCC 1,
1998 (2) SCALE 772, 1998 (3) JT 223
[cxxiii]
Indra Sawhney
etc. v. Union of India and Others, etc. (AIR 1993 SC 477, 1992 Supp 2 SCR 454)
Para 57
[cxxiv]
Civil Appeal of 2009 (Arising out of S.L.P. (C) No. 4590 of 2008) with Writ
Petition (C) No. 69 OF 2009
[cxxv]
Indra Sawhney
etc. v. Union of India and Others, etc. (AIR 1993 SC 477, 1992 Supp 2 SCR 454)
Para 744
[cxxvi]
Ibid Para 81
[cxxvii]
Ibid Para 121
[cxxviii]
Ibid Paras 84 and 285
[cxxix]
AIR 1973 SC 930
[cxxx]
AIR
1963 SC 649, 1962 SCR Supl. (1) 439
[cxxxii]
Indra Sawhney
etc. v. Union of India and Others, etc. (AIR 1993 SC 477, 1992 Supp 2 SCR 454)
Paras 88A, 121
[cxxxiii]
Ibid Para 116
[cxxxiv]
Ibid Para 121
[cxxxv]
Ibid Para 87
[cxxxvi]
Ibid Para 88
[cxxxvii]
Ibid Para 86
[cxxxviii]
Ibid Para 89
[cxxxix]
Civil Appeal No. of 2009 (Arising out of
SLP (C) No.24327 of 2005) with Writ Petition (C) No. 507 of 2006
[cxl] Indra Sawhney etc. v.
Union of India and Others, etc. (AIR 1993 SC 477, 1992 Supp 2 SCR 454) Para 114
[cxli]
2007 AIR 2891, 2007(3) SCR 149, 2007 (4)SCC 1, 2007 (4) SCALE 106, 2007 (6) JT
103
[cxlii]
(1995) 5 SCC 403
[cxliii]
(1995) 5 SCC 429
[cxliv]
(2000) 1 SCC 168
[cxlv]
(2000) 1 SCC 168
[cxlvi]
2007 AIR 2891, 2007(3) SCR 149, 2007 (4)SCC 1, 2007 (4) SCALE 106, 2007 (6) JT
103
[cxlvii]
1996 AIR 75, 1995 (3) Suppl. SCR 269, 1995 (5) SCC 403, 1995 (5) SCALE 115,
1995 (6) JT 390
[cxlviii]
2005 AIR 162, 2004 (5) Suppl. SCR 972, 2005 (1) SCC 394 , 2004 (9) SCALE 316,
2005 (11) JT 482
[cxlix]
Indra Sawhney
etc. v. Union of India and Others, etc. (AIR 1993 SC 477, 1992 Supp 2 SCR 454)
Para 121
[cl] AIR 1964 SC
1823, 1964 SCR (6) 368
[cli] Indra Sawhney etc. v.
Union of India and Others, etc. (AIR 1993 SC 477, 1992 Supp 2 SCR 454) Para 91
[clii]
Ibid Para 92A
[cliii]
Ibid Para 121 (5)
[cliv]
2005 AIR 162, 2004 (5) Suppl. SCR 972, 2005 (1) SCC 394 , 2004 (9) SCALE 316,
2005 (11) JT 482
[clv] Indra Sawhney etc. v.
Union of India and Others, etc. (AIR 1993 SC 477, 1992 Supp 2 SCR 454) Para 94
[clvi]
Ibid Para 92 (6) (a) and (b)
[clvii]
Ibid Para 121
[clviii]
Ibid Para 96 and 121
[clix]
Civil Appeals Nos. 484-491 of 2006
[clx] Indra Sawhney etc. v.
Union of India and Others, etc. (AIR 1993 SC 477, 1992 Supp 2 SCR 454) Para 107
[clxi]
State Of M.P. and
Anr v. Kumari Nivedita Jain and Ors 1981
AIR 2045, 1982 SCR (1) 759, 1981 SCC (4) 296, 1981 SCALE (3)1512
[clxii]
Ibid
[clxiii]
Indra Sawhney
etc. v. Union of India and Others, etc. (AIR 1993 SC 477, 1992 Supp 2 SCR 454)
Para 111
[clxiv]
CA Nos.4315-4316/2010 @ SLP (C) Nos.13297-98/2008
[clxv]
Indra Sawhney
etc. v. Union of India and Others, etc. (AIR 1993 SC 477, 1992 Supp 2 SCR 454)
Para 811
[clxvi]
Civil Appeal No. 7084 of 2011 [Arising out of SLP [C] No.27965/2010], (2011) 8
SCC 441
[clxvii]
Civil Appeal No. 4360 OF 2010
[clxviii]
Indra Sawhney
etc. v. Union of India and Others, etc. (AIR 1993 SC 477, 1992 Supp 2 SCR 454)
Para 814
[clxix]
Civil Appeal No. 1991 of 2009 [Arising out of SLP(Civil) No. 20419 of 2008]
2009 (3) TMI 981
[clxx]
Nair Service Society v. Dr. T. Beermasthan & Ors Civil Appeal No. 1991 of
2009 [Arising out of SLP(Civil) No. 20419 of 2008] 2009 (3) TMI 981 Para 48
[clxxi]
2007 AIR 3136, 2007(9) SCR 578 , 2007 (8) SCC 621 , 2007 (10) SCALE 485, 2007
(10) JT 556
[clxxii]
Writ Petition (Civil) No. 356 of 1994
[clxxiii]
DR. K. Krishna Murthy and Ors v. Union of India & Anr Writ Petition (Civil)
No. 356 of 1994 Para 39
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