SASI K.G.
15. Whether the 50% rule, if any, is confined to reservations made under Clause (4) of Article 16 or whether it takes in all types of reservations that can be provided under Article 16?
Interpreting Article 16(4) of the Constitution of India
in Indra Sawhney Case in a majority decision, the Supreme Court has held that
reservations under Art 16(4) do not operate as communal reservation. If a
Scheduled Caste member getting selected in open competition field on the basis
of his merit, such selection should not be counted against quota reserved for
Scheduled Caste Reservation[clxxiv].
The judgment in Indra Sawhney Case states, “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[clxxv].”
The Supreme Court also held that the limit of 50%
reservation in favour of backward classes should be worked out such that
interlocking reservations are excluded. B.P. Jeevan Reddy, J. states, “There
are two types of reservations, ‘vertical reservations’ and ‘horizontal reservations’.
The reservations in favour of Scheduled Castes, Scheduled Tribes and other
backward classes [under Article 16(4)] may be called vertical reservations
whereas reservation in favour of physically handicapped [under clause (1) of
Art 16] can be referred to as horizontal reservations. Horizontal reservations
cut across the vertical reservations – What is called interlocking
reservations. Suppose 3% of the vacancies are reserved in favour of physically
handicapped persons; this would be a reservation relatable to clause (1) of
Article 16. The persons selected against this quota will be placed in the
appropriate category; if he belongs to SC category he will be placed in that
quota by making necessary adjustments; similarly, if he belongs to open competition
(OC) category, he will be placed in that category by making necessary
adjustments. Even after providing for these horizontal reservations, the
percentage of reservations in favour of backward class of citizens remains –
and should remain – the same[clxxvi].”
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 the limit of 50% in reservation for backward classes is not
applicable to exemptions, concessions or relaxations given to backward classes
under Art 16(4)[clxxvii].
In
Union of India & Anr v. National Federation of the Blind & Ors[clxxviii]
Supreme Court states, “The reservations in favour of Scheduled Castes,
Scheduled Tribes and other backward classes [under Article
16(4)] may be called
vertical reservations whereas reservations in favour of physically handicapped [under Clause (1) of Article 16]
can be
referred to as
horizontal reservations.
Horizontal reservations cut
across the vertical reservations - what is called
inter-locking reservations. To be more precise, suppose 3% of
the vacancies are
reserved in favour
of physically handicapped persons; this would be a reservation relatable to Clause (1) of Article 16. The
persons selected against this quota will be placed in the appropriate
category; if he
belongs to S.C. category
he will be
placed in that
quota by making
necessary adjustments; similarly, if
he belongs to
open competition (O.C.) category, he will be placed in
that category by
making necessary adjustments.
Even after providing for these
horizontal reservations, the
percentage of reservations in favour of backward class of citizens remains -
and should remain - the same………………..
…………………. Further, the
reservation for persons with disabilities has nothing to do with the ceiling
of 50% and
hence, Indra Sawhney
(supra) is not applicable with respect to the disabled
persons.”
In
State of U.P. & Ors. v. Bharat Singh & Ors[clxxix]
Supreme Court states, “In Chakradhan Paswan's case (supra) this Court
relying upon the decision in Arati Ray Choudhury v. Union of India 1974 (1) SCC
87, M.R. Balaji v. State of Mysore AIR 1963 SC 649 and T. Devadasan v. Union of
India AIR 1964 SC 179
held that separate
posts in different institutions cannot
be clubbed together
for the purpose
of reservation and that
reservations may be
made only where there are more than one posts. Reservation of
only a single post in
the cadre would
amount to 100%
reservation and thereby violate
Articles 14(1) and 16(4) of the Constitution. In Bhide
Girls Education Society
v. Education Officer, Zila
Parishad, Nagpur and
Ors., 1993 Supp
(3) SCC 527 this
Court held that
a single post
of Headmistress of an
institution could not be reserved as the same would amount to making a 100%
reservation[clxxx].”
In
Shiv Prasad v. Government of India & Ors[clxxxi]
when the action of appointing no general candidate out of vacancy of three,
Supreme Court ratified the same by stating, “In the affidavit-in-reply by the
University, it was clarified that three posts in the Flexible Cadre Structure (1
General : unreserved + 2 Schedule Caste) were vacant under the heading 'Associate
Professor/ Assistant Professor'. Since
there was 20% reservation for women and three posts were to be filled in, it
came to 0.6% i.e. more than 0.5% and as such one post had to be horizontally
reserved for a woman candidate. As respondent No. 4 was found eligible and qualified,
she was selected and recommended for appointment as Assistant Professor and no
grievance can be raised against such lawful action of the University.
…………….
For
the foregoing reasons, in our view, the appeal filed by Dr. Shiv Prasad
(Petitioner of Writ Petition No. 802 (S/B) of 2001) deserves to be dismissed
and is hereby dismissed. The appeal
filed by Dr. (Mrs.) Madhu Jain (respondent No. 4 in Writ Petition No. 802 (S/B)
of 2001) deserved to be allowed and is accordingly allowed. Her selection, recommendation and appointment
as Assistant Professor is held legal, valid and in accordance with law and
could not have been set aside by the High Court. The order of the High Court to that extent is
set aside upholding the action of the University[clxxxii].”
In
Rajesh Kumar Daria v. Rajasthan Public Service Commission & Ors[clxxxiii]
the Supreme Court has observed, “A special provision for women made under
Article 15(3), in respect of employment, is a special reservation as contrasted
from the social reservation under Article 16(4). The method of implementing
special reservation, which is a horizontal reservation, cutting across vertical
reservations, was explained by Supreme Court in Anil Kumar Gupta vs. State of
U.P. [1995 (5) SCC 173] thus :
‘The
proper and correct course is to first fill up the Open Competition quota (50%)
on the basis of merit; then fill up each of the social reservation quotas,
i.e., S.C., S.T. and B.C; the third step would be to find out how many
candidates belonging to special reservations have been selected on the above
basis. If the quota fixed for horizontal reservations is already satisfied - in
case it is an overall horizontal reservation - no further question arises. But
if it is not so satisfied, the requisite number of special reservation
candidates shall have to be taken and adjusted/accommodated against their
respective social reservation categories by deleting the corresponding number
of candidates therefrom.’”
In
Jitendra Kumar Singh and Anr. v. State of UP & Ors[clxxxiv] it is stated by Supreme Court that, “These
observations make it abundantly clear that the reservations should not be so
excessive as to render the Fundamental Right under Article 16(1) of the Constitution
meaningless. In Indra Sawhney (supra), this Court has observed as under:-
‘In
our opinion, however, the result of application of carry-forward rule, in
whatever manner it is operated, shall not result in breach of 50% rule[clxxxv].’
[clxxxvi]
"
In
Dr. Saurabh Choudhary and Ors. v. Union of India and Ors[clxxxvii]
Supreme Court observed, "The view was approved by this Court in the
case of Indra Sawhney v. Union of India[clxxxviii].
If one looks at this issue in the light of the spirit of the ratios laid down
in Preeti Srivastava v. State of M.P., AIR (1999) SC 2894 and in AIIMS Students
Union v. AIMS, AIR (2001) SC 3262, one would come to the inevitable conclusions
that the constitutional reservations contemplated under Article 15(4) should be
kept at the minimal level so that national interest in the achievement of the
goal of excellence in all fields is not unduly affected.
…………………………..
(4)
The institutional preference should be limited to 50% and the rest being left
for open competition based purely on merits on an All India basis." Right
of a meritorious student to get admission in a Post-Graduate Course is a
Fundamental and Human Right, which is required to be protected. Such a valuable
right cannot be permitted to be whittled down at the instance of less meritorious
students.”
16. Further while applying 50% rule, if any, whether an year should be taken as a unit or whether the total strength of the cadre should be looked to?
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 in reservation in service, the Rule of 50% limit has to be applied by
taking a year as the unit and that applying 50% rule to entire strength of the Cadre/Service
would not be consistent with Article 16. Here Supreme Court has overruled State Of Kerala
& Anr v. N. M. Thomas & Ors.[clxxxix]
The Judgment in Indra Sawhney case further states,
“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% an year should be taken as the unit and not the entire
strength of the cadre, service or the unit, as the case may be[cxc].”
“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[cxci].”
In
R.K.Sabharwal and Ors v. State of Punjab & Ors[cxcii]
Supreme Court holds, “When all the roster-points in a cadre are filled the
required percentage of reservation is achieved. Once the total cadre has full representation
of the Scheduled Casts/Tribes and Backward Classes in accordance with the reservation
policy then the vacancies arising thereafter in the cadre are to be filled from
amongst the category of persons to whom the respective vacancies belong[cxciii].”
Supreme
Court in Nair Service Society v. Dist. Officer, Kerala Public Service
Commission & Ors[cxciv]
uphold the position in State Bank of India Scheduled Caste/Tribe
Employees' Welfare Association and Another vs. State Bank of India and Others[cxcv]
that the reserved vacancies should not be carried forward beyond the period of
three years at the end of which they lapse and cannot be revived and filled
retrospectively by applying the relaxed norms.
17. Whether T. Devadasan v. The Union of India and Another was correctly decided?
Interpreting Articles 16 and 311 of the Constitution of
India in Indra Sawhney Case in a majority decision, the Supreme Court has held
that, rule to carry forward of unfilled reserved vacancies in State service is
not per se unconstitutional. However operation of such rule should not result
in breach of 50% rule. Here Supreme Court overruled T.Devadasan vs The Union of India and
Another[cxcvi]. Two Paras of the
Judgments of Indra Sawhney Case are reproduced below,
“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% an year should be taken as the unit and not the entire
strength of the cadre, service or the unit, as the case may be[cxcvii]”
“Accordingly, we over-rule the decision in Devadasan. We
have already discussed and explained the 50% rule in paras 93 to 96. The same
position would apply in the case of carry forward rule as well. We, however,
agree that an year should be taken as the unit or basis, as the case may be,
for applying the rule of 50% and not the entire cadre strength[cxcviii]”
“We may reiterate that a carry forward rule need not
necessarily be in the same terms as the one found in Devadasan. A given rule
may say that the unfilled reserved vacancies shall not be filled by unreserved
category candidates but shall be carried forward as such for a period of three years.
In such a case, a contention may be raised that reserved posts remain a
separate category altogether. In our opinion, however, the result of
application of carry forward rule, in whatever manner it is operated, should
not result in breach of 50% rule[cxcix].
18. Whether Article 16 permits reservations being provided in the matter of promotions?
Interpreting Articles 32 and 226 of the Constitution of
India in Indra Sawhney Case in a majority decision, the Supreme Court as an
exception to the concept that Constitutional question is not to be decided in
vacuum, especially in a matter referred to larger Bench to authoritatively
settle law relating to reservations in state services, decided the question
whether reservation can be provided even in promotion, though did not arise in
the case. Supreme Court held that “Reservation of appointments or posts
theoretically and conceivable means some impairment of efficiency. There can be
no justification to multiply ‘the risk’ by holding that reservation can be
provided even in the matter of promotion. While it is certainly just to say
that a handicap should be given to backward class of citizens at the stage of
initial appointment, it would be a serious and unacceptable inroad into the
rule of equality of opportunity to say that such a handicap should be provided
at every stage of promotion throughout their career. That would mean creation
of a permanent separate category apart from the main stream – a vertical
division of the administrative apparatus. The members of reserved categories
need not have to compete with others but only among themselves. There would be
no will to work, compete and excel among them. Whether they work or not, they
tend to think, their promotion is assured. This in turn is bound to generate a
feeling of despondence and ‘heart-burning’ among open competition members. At
the initial stage of recruitment reservation can be made in favour of backward
class of citizens but once they enter the service, efficiency of administration
demands that these members too compete with others and earn promotion like all
others; no further distinction can be made thereafter with reference to their
“birth-mark”. It is wrong to think. Denying reservation in matter of promotion
does not have the effect of confining the backward class of citizens to the
lowest cadres. It is well-known that direct recruitment takes place at several
higher levels of administration and not merely at the level of Class IV and
class III[cc].”
Supreme Court further clarified that. “It would be
permissible 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. 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[cci].”
The Court being conscious of the fact that this departure
from settled law for more than 30 years provided for an interim remedy as, “However, taking into consideration all the circumstances,
we direct that our decision on this question shall operate only prospectively
and shall not affect promotions already made, whether on temporary, officiating
or regular/permanent basis. It is further directed that wherever reservations
are already provided in the matter of promotion - be it Central Services or
State Services, or for that matter services under any corporation, authority or
body falling under the definition of 'State' in Article 12 - such reservations shall continue in operation for a period of five years
from this day. Within this period, it would be open to the appropriate
authorities to revise modify or reissue the relevant Rules to ensure the
achievement of the objective of Article 16(4). If any authority thinks that for ensuring
adequate representation of 'backward class of citizens' in any service, class
or category, it is necessary to provide for direct recruitment therein, it
shall be open to it do so[ccii].”
This
judgment in Indra Sawhney's Case led to seventy-seventh amendment of the
Constitution. The Statement of Objects and Reasons incorporated in the bill
introduced, which led to the passing of Constitution (Seventy-seventh
Amendment) Act, 1995 reads as under:-
"Statement
of Objects and Reasons.- The Scheduled Castes and the Scheduled Tribes have
been enjoying the facility of reservation in promotion since 1955. The Supreme
Court in its judgment dated 16.11.1992 in the case of Indra Sawhney vs. Union
of India [1992 Supp. (3) SC 217], however, observed that reservation of appointments or
posts under Article 16(4) of the Constitution is confined to initial
appointment and cannot extend to reservation in the matter of promotion. This
ruling of the Supreme Court will adversely affect the interests of the Scheduled
Castes and the Scheduled Tribes. Since the representation of the Scheduled
Castes and the Scheduled Tribes in services in the States has not reached the
required level, it is necessary to continue the existing dispensation of
providing reservation in promotion in the case of the Scheduled Castes and the
Scheduled Tribes. In view of the commitment of the Government to protect the
interests of the Scheduled Castes and the Scheduled Tribes, the Government has
decided to continue the existing policy of reservation in promotion for the
Scheduled Castes and the Scheduled Tribes. To carry this out, it is necessary
to amend Article 16 of the Constitution by inserting a new clause (4-A) in the
said article to provide for reservation in promotion for the Scheduled Castes
and the Scheduled Tribes."
Clause
(4-A) which was inserted by the aforesaid amendment reads as under:-
"Nothing
in this article shall prevent the State from making any provision for
reservation in matters of promotion to any class 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[cciii]."
The
constitutionality of the above reproduced clause has been upheld in M. Nagaraj
and Ors. v. Union of India & Ors.[cciv]
The same was also upheld in Union of
India & Anr. v. Madhav son of Gajanan Chaubal & Anr.[ccv]
In
The Commissioner of Commercial Taxes, Andhra Pradesh, Hyderabad v. G. Sethumadhava Rao & Ors[ccvi]
Supreme Court held that By Constitutional parameters and interpretation of law
by Supreme Court, reservation under Articles 141B, 16(1) and 16(4) would
include reservation in promotion as well.
Supreme
Court in Suraj Bhan Meena & Anr v. State of Rajasthan & Ors[ccvii]
remarked, “ It was further held that the impugned Constitution
Amendments, introducing Article 16(4-A) and 16(4-B), had been inserted and flow
from Article 16(4), but they do not alter the structure of Article 16(4) of the
Constitution. They do not wipe out any
of the Constitutional requirements such as ceiling limit and the concept of
creamy layer on one hand and Scheduled
Castes and Scheduled Tribes on the other hand, as was held in Indra Sawhney's
case (supra). Ultimately, after the entire exercise, the Constitution Bench
held that the State is not bound to make reservation for Scheduled Castes and
Scheduled Tribes candidates in matters of promotion but if it wished, it could collect
quantifiable data touching backwardness of the applicants and inadequacy of
representation of that class in public employment for the purpose of compliance
with Article 335 of the Constitution.”
The
judgment in Society for Un-aided Private Schools v. Union of India & Anr.[ccviii]
gives a clear picture of the history of reservation laws in India since Indra
Sawhney Case as “77. In Indra Sawhney v. Union of India and Others [(1992)
Supp. 3 SCC 212], this Court held that, as the law stood then, there could be
no reservation in promotion. It
was held
that reservation of
appointments or posts under Article
16(4) is confined
to initial appointments
only. To set right the law and to
advance social justice by giving promotions to Scheduled Castes and Scheduled Tribes
Clause (4A) was added to Article 16 by the Constitution (Seventy-seventh
Amendment) Act, 1995. Consequently, the
hurdle or obstacle which stood in the way was removed by the Constitutional
amendment.
78.
The scope of the above provision came up for consideration in Jagdish Lal and
Others v. State of Haryana and
Others [(1997) 6 SCC
538], where this Court held that the principle of seniority
according to length of continuous service on a post or service
will apply and that alone will have to be looked into
for the
purpose of seniority even though they got promotion
ignoring the claim of seniors. It was said that reserved candidates who got
promotion ignoring the claim of services in general category will be
seniors and the same cannot affect the promotion of general
candidates from the
respective dates of promotion and general candidates remain
junior in higher echelons
to the reserved candidates. The
above position was, however, overruled
in Ajit Singh and Others v. State of Punjab and Others [(1999)
7 SCC 209], wherein it was
decided that the
reserved category candidates cannot count seniority in the
promoted category from
the date of continuous officiation vis-à-vis the
general candidates who were senior to them in the lower category and who were
later promoted. Ajit Singh case was
declaring the law as it stood.
Consequently, the Parliament, in order to give continuous
appreciation in promotion,
inserted the words “with
consequential seniority” in Clause (4A) to
Article 16 by Constitution (Eighty-fifth
Amendment) Act, 2001
(which was made
effective from 17.6.1995). In the
light of Article 16(4A), the claims of Scheduled Castes and Scheduled Tribes
for promotion shall be taken into consideration in making appointment or giving
promotion.
79. Constitution (Eighty-first Amendment)
Act, 2000, which
came into effect on 9.6.2000, inserted Clause (4B)
to Article 16,
which envisaged that the unfilled reserved vacancies in a year to
be carried forward to subsequent years and that these
vacancies are to be treated as distinct
and separate from the current vacancies
during any year, which means that 50% rule is to be
applied only to normal vacancies and not to the posts of backlog of reserved
vacancies. Inadequacy and representation of backward classes,
Scheduled Castes and
Scheduled Tribes are the circumstances which enabled
the State Government
to enact Articles 16(4), 16(4A) and 16(4B).
80.
The constitutional validity of Article 16(4A) substituted by the Constitution
(Eighty-fifth Amendment) Act, 2001 came up for consideration before this Court
in M. Nagaraj & Ors. v. Union of India [(2006) 8 SCC 212]. The validity of
the Constitution (Seventy-seventh Amendment) Act, 1995, the Constitution
(Eighty-first Amendment) Act, 2000, the Constitution (Eighty-second Amendment)
Act, 2000 and the Constitution (Eighty-fifth Amendment) Act, 2001 were also
examined and held valid. This Court held
that they do not infringe either the width of the Constitution amending power
or alter the identity of the Constitution or its basic structure. This Court held that the ceiling-limit of
50%, the concept of creamy layer and the
compelling reasons, namely, backwardness,
inadequacy of representation and
overall administrative efficiency are all constitutional requirements
without which the structure of
equality of opportunity in
Article 16 would collapse[ccix].”
19. Whether reservations are anti-meritian? To what extent are Articles 335, 38(2) and 46 of the Constitution relevant in the matter of construing Article 16?
Interpreting Article 16(4) of the Constitution of India
in Indra Sawhney Case in a majority decision, the Supreme Court held that reservation
for backward classes is not anti-meritian. B.P. Jeevan Reddy, J. wrote,
“Efficiency, competence and merit are not synonymous concepts; may be, it is
wrong to treat merit as synonymous with efficiency in administration and that
merit is but a component of the efficiency of an administrator. Even so, the
relevance and significance of merit at the stage of initial recruitment cannot
be ignored. It cannot also be ignored that the very idea of reservation implies
selection of a less meritorious person. But this much cost has to be paid, if
the constitutional promise of social justice is to be redeemed. Given an
opportunity, members of these classes are bound to overcome their initial
disadvantages and with compete with – and may, in some cases, excel – members
of open competitor candidates. It is undeniable that nature has endowed merit
upon members of backward classes as much as it has endowed upon members of
other classes and that what is required is an opportunity to prove it. It may
not, therefore, be said that reservations are anti-meritian. Merit there is
even among the reserved candidates and the small difference, that may be
allowed, at the stage of initial recruitment is bound to disappear in course of
time. These members too will compete with and improve their efficiency along
with others[ccx].”
Interpreting Articles 311, 16(4) and 335 the Supreme
Court said that reservation for backward classes has to be consistent with
requirements of efficiency of administration. In matter of appointment Government
cannot say that there shall be no minimum qualifying marks for Scheduled
Castes/Scheduled Tribes candidates, while prescribing a minimum for others[ccxi].
Interpreting Article 16(4) the Supreme Court maintained
that reservation for backward classes should not be made in services and
positions where merit alone counts. Court held, “There are certain
services and positions where either on account of nature of duties attached to
them or the level (in the hierarchy) at which they obtain, merit alone counts.
In such situations, it may not be advisable to provide for reservations. Some of
the services and posts to whom application of the rule of reservation may not
be advisable are: (1) Defence Services including all technical posts therein
but excluding civil posts. (2) All technical posts in establishments engaged in
Research and Development including those connected with atomic energy and space
and establishments engaged in production of defence equipment. (3) Teaching
posts of Professors—and above, if any. (4) Posts in super-specialties in
Medicine, Engineering and other scientific and technical subjects. (5) Posts of
pilots (and co-pilots) in Indian Airlines and Air India. The list given above
is merely illustrative and not exhaustive[ccxii].”
The judgment remarked elsewhere, as,
“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[ccxiii]
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 Caste/Scheduled 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 Governments 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 Madhya Pradesh (in Nivedita Jain[ccxiv])
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 Caste/Scheduled
Tribe 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[ccxv].“
20. Whether the extent of judicial review is restricted with regard to the identification of Backward Classes and the percentage of reservations made for such classes to a demonstrably perverse identification or a demonstrably unreasonable percentage?
Interpreting Articles 32, 226, and 16(4) of the
Constitution of India in Indra Sawhney Case in a majority decision, the Supreme
Court held that in matters relating to identification of backward classes and
reservation for such classes in State Services, there is no special or
particular standards of Judicial scrutiny apply. Court however would normally
extend due deference to the judgment and discretion of the Executive which is a
co-equal wing in these matters. There is no particular or special standard of
Judicial scrutiny in matters arising under Art 16(4) or for that matter under
Art 15(4)[ccxvi].
S. Ratnavel Pandian, J. remarked in the judgment, “The
action of the Government in making provision for the reservation of
appointments or posts in favour of ‘any backward class of citizens’ is a matter
of policy of the Government. What is best for the ‘backward class’ and in what
manner the policy should be formulated and implemented bearing in mind the
object to be achieved by such reservation is a matter for decision exclusively
within the province of the Government and such matters do not ordinarily
attract the power of judicial review or judicial interference except on the
grounds which are well settled by a catena of decisions of Supreme Court[ccxvii].”
21. Whether the distinction made in the Memorandum between 'poorer sections' of the backward classes and others permissible under Article 16?
Interpreting Article 16(4) of the Constitution of India
in Indra Sawhney Case in a majority decision, the Supreme Court held that
reservation for backward classes as per Office Memorandum D/- 25-9-1991 Clause
(1) classifying backward class into backward classes and poorer sections of
backward classes and giving preference to poorer sections is not
unconstitutional. The words ‘poorer sections’ mean not economically poorer but
those who are socially and economically more backward. The word ‘preference’ would
mean equitable apportionment of vacancies amongst the two sub-categories.
The judgment in Indra Sawhney Case upheld, “The expression 'poorer sections' mentioned in
para 2 (i) of the amended Office Memorandum of 1991 denotes a division among
SEBCs on economic criterion. Therefore, no division or sub-classification as
'poorer sections' and other backward class (non poorer sections) out of the identified
SEBCs can be made by application of 'means test' based on economic criterion.
Such a division in the same identified and ascertained unit consisting of SEBCs
having common characteristics and attributes, the primary characteristic or
attribute being the social backwardness is violative of Clause (4) of Article
16 of the Constitution. Hence, the division of the SEBCs as 'poorer sections'
and others, brought out in para 2(i) of the impugned amended Office Memorandum
dated 25th September 1991 is constitutionally invalid and impermissible. Accordingly,
para 2(i) of the said amended Office Memorandum is struck down[ccxviii].”
On first impression, it may appear that backward classes
are classified into two sub-groups on the basis of economic criteria alone and
a preference provided in favour of the poorer sections) of the backward
classes. However, such an interpretation would not be consistent with the
context in which the said expression is used and the spirit underlying the
clause, nor would it further the objective it seeks to achieve. The object of
the clause is to provide a preference in favour of more backward among the
“socially and educationally backward classes”. In other words, the expression
‘poorer sections’ was meant to refer to those who are socially and economically
more backward. The use of the word ‘poorer’, in the context, is meant only as a
measure of social backwardness. Understood in this sense, the said
classification is not and cannot be termed as invalid either constitutionally
speaking or in law. Having regard to the fact the backward classes are sought
to be divided into two sub-categories, viz., backward and more backward, the
expression ‘preference’ must be read down to mean an equitable apportionment of
the vacancies reserved (for backward classes) among them[ccxix].
Supreme Court further clarifies, ”On first impression, it may appear that backward classes
are classified into two sub-groups on the basis of economic criteria alone and
a preference provided in favour of the poorer sections of the backward classes.
In our considered opinion, however, such an interpretation would not be
consistent with the context in which the said expression is used and the spirit
underlying the clause nor would it further the objective it seeks to achieve.
The object of the clause is to provide a preference in favour of more backward among
the "socially and educationally backward classes". In other words,
the expression 'poorer sections' was meant to refer to those who are socially
and economically more backward. The use of the word 'poorer', in the context,
is meant only as a measure of social backwardness. (Of course, the Government
is yet to notify which classes among the designated backward classes are more
socially backward, i.e., 'poorer sections'). Understood in this sense, the said
classification is not and cannot be termed as invalid either constitutionally
speaking or in law. The next question that arises is: what is the meaning and
context of the expression 'preference'? Having regard to the fact the backward
classes are sought to be divided into two sub-categories, viz., backward and more
backward, the expression 'preference' must be read down to mean an equitable apportionment
of the vacancies reserved (for backward classes) among them[ccxx].”
22. Whether the reservation of 10% of the posts in favour of 'other economically backward sections of the people who are not covered by any of the existing schemes of the reservations' made by the Office Memorandum dated 25.9.1991 permissible under Article 16?
Interpreting Articles 16(1) and 311 of the Constitution
of India in Indra Sawhney Case in a majority decision, the Supreme Court held
that Office Memorandum dated 25.09.1991 Clause (ii) providing reservation in
favour of economically backward sections among open competition category is not
permissible under Article 16(1). Provision of reservation of 10% seats for such
category made under Clause (ii) of office memorandum was quashed by the Supreme
Court.
Supreme Court held, “Reservation of 10% of the vacancies
among open competition candidates on the basis of income/property holding means
exclusion of those above the demarcating line from those 10% seats. It may not
be permissible to debar a citizen from being considered for appointment to an
office under the State solely on the basis of his income or property-holding.
Since the employment under the State is really conceived to serve the people no
such bar can be created. Any such bar would be inconsistent with the guarantee
of equal opportunity held out by clause (1) of Art. 16. On this ground alone,
the clause making such reservation in the Office Memorandum dated 25-5-1991 fails[ccxxi].”
23. Other Important Findings in Indra Sawhney Case
For arriving at the above said conclusions Supreme Court
has resorted to other ancillary findings also. Some of the most important such
conclusions / findings are given below.
Interpreting Articles 15(4) and 16(4), the Supreme Court
held that held that the Scope of Article 15(4) is not confined to programmes of
positive action alone and that Article 16(4) cannot also be compartmentalised
as a provision warranting programmes of positive discrimination[ccxxii].
Interpreting Articles 16(4) and 340, the Supreme Court
held that for the Identification of backward classes, a permanent body to
examine complaints of wrong inclusion or non-inclusion of groups in list of
backward classes can be constituted under Article 16(4) or under Article 16(4)
read with Art. 340. Direction to constitute such bodies at Central and State
levels were also issued by the Supreme Court[ccxxiii].
Interpreting Article 16(4), the Supreme Court held that
reservation as per recommendations of Mandal Commission Report is not invalid
on ground that they are based on 1931 census[ccxxiv].
Interpreting Articles 16(4) and 14, the Supreme Court
held that the scope for reservation for socially, educationally backward
classes and the implementation of recommendations of Mandal Commission Report
would not result in demoralisation and discontent. It would not curtail concept
of equality enshrined under Article 14 or destroy basic structure of
Constitution.[ccxxv]
Interpreting Article 16(4), the Supreme Court held that
in reservation, power conferred on State under Article 16(4) is one coupled
with duty. Therefore, State has to exercise that power for the benefit of all
those, namely, backward class for whom it is intended[ccxxvi].
Interpreting Article 16(4), the Supreme Court held that
interpretation of constitutional provisions relating to reservation in State
employment should be done by treating Constitution as vibrant document alive to
social situation.[ccxxvii]
Interpreting Article 16(4), the Supreme Court held that
Reservation for backward classes will have to be estimated with reference to
representation in different grades and category.[ccxxviii]
Interpreting Article 16(4), the Supreme Court held that
Classification of each of the backward class internally into backward and more
backward is not justified.[ccxxix]
Interpreting Article 16(4), the Supreme Court held that
no period for reservation is provided but every State, however, must keep on
evaluating periodically if it was necessary to continue reservation and to whom[ccxxx].
05. Conclusion
The major
characteristic of the Judgment in Indra Sawhney Case is an attempt to establish
an equilibrium between the rights for equality of those who are equal and those
who are unequal. The Supreme Court in that Case seems to have borrowed the
motto of Mandal Commission that “There is
equality only among equals. To equate unequals is to perpetuate inequality.”
The somewhat balanced equilibrium constructed by the Supreme Court in this
case, and similar other cases such as P.A. Inamdar v. State of Maharashtra were interrupted and
destructed by the legislative interruption. Merit nowadays has reduced upto
30%. The legal position of declaring Article 16 (4) not being a fundamental
right and the stand of the Supreme Court that the person who has fundamental
right under 16 (1) should not challenge reservation under 16(4) have undermined
the supremacy of the fundamental rights in matters of right. In cases where
there are three vacancies, not even one post can be guaranteed for the First
Rank Holder. The Supreme Court had found that the huge discrimination being
suffered by the lower caste for the last few centuries were mainly due to conditioning the consciousness of the lower castes in
accepting their inferior status in the ritual hierarchy as a part of the
natural order of things. But
as a result of the entire reservation scheme the backward classes now cry
themselves to get declared that they are backward and struggle to get declared
to be inferior. From the very reasoning of the Supreme Court it will only
perpetually retain them in discrimination. Caste, the most evil system that
needs to be eradicated in India, in spite of efforts in that regard, has grown
big making almost all big political bargains in the name of caste. The main
cause of this evil is the marketability of the backwardness in economical
terms. The main defects of Indra Sawhney Judgment are two, namely,
1.
It gives State unlimited power to overrun rights under
Article 16 (1) in the name of the provisions under Article 16(4) by an
executive order and without going through the process of legislation.
2.
It does not make an attempt to define the exact norms on
the attainment of which reservation shall cease; instead it gives unlimited
power to the executive to review the entire reservation scenario and to make
necessary changes.
But as the
Supreme Court has found in Indra Sawhney Case itself, the State – both
Executive and Legislature – have remained impotent to address the real issues
and to make appropriate decisions. Anyhow, India cannot go on for a long time,
neglecting its best brains abandoned and left to the service of other
countries. The most able Indian Citizen are searching for their livelihood in
foreign countries.
NOTES
[clxxiv]
Indra Sawhney
etc. v. Union of India and Others, etc. (AIR 1993 SC 477, 1992 Supp 2 SCR 454)
Para 94A
[clxxv]
Ibid
[clxxvi]
Ibid Para 95
[clxxvii]
Ibid Para 95
[clxxviii]
Civil Appeal No.9096 of 2013 (Arising out of SLP (Civil) No. 7541 of 2009)
[clxxix]
Civil Appeal No. 2351 OF 2011 (Arising out of SLP (C) No.25966 of 2008)
[clxxx]
State of U.P. & Ors. v. Bharat Singh & Ors Civil Appeal No. 2351 OF
2011 (Arising out of SLP (C) No.25966 of 2008) Para 46
[clxxxi]
2008 (6) SCR 1096, 2008 (10) SCC 382, 2008 (6) SCALE 315
[clxxxii]
Shiv Prasad v. Government of India & Ors 2008 (6) SCR 1096, 2008 (10) SCC
382, 2008 (6) SCALE 315 Paras 30-34
[clxxxiii]
2007 AIR 3127, 2007 (8) SCR 972 , 2007 (8) SCC 785, 2007 (10) SCALE 50, 2007
(10) JT 154
[clxxxiv]
Civil Appeal No. 74 of 2010 (Arising out of Special Leave Petition (C) No. 1952
OF 2008)
[clxxxv]
Indra Sawhney
etc. v. Union of India and Others, etc. (AIR 1993 SC 477, 1992 Supp 2 SCR 454)
Para 99
[clxxxvi]
Jitendra Kumar Singh and Anr. v. State of UP & Ors Civil Appeal No. 74 of
2010 (Arising out of Special Leave Petition (C) No. 1952 OF 2008) Para 35
[clxxxvii]
Writ Petition (civil) 29 of 2003
[clxxxviii]
AIR 1993 SC
477, 1992 Supp 2 SCR 454
[cxc] Indra Sawhney etc. v.
Union of India and Others, etc. (AIR 1993 SC 477, 1992 Supp 2 SCR 454) Para 96
[cxci]
Ibid Para 121
[cxcii]
1995 AIR 1371, 1995 (2) SCR 35, 1995 (2) SCC 745, 1995 (1) SCALE 685, 1995 (2)
JT 351
[cxciii]
R.K.Sabharwal and Ors v. State of Punjab &
Ors 1995 AIR 1371, 1995 (2) SCR 35, 1995 (2) SCC 745, 1995 (1) SCALE 685, 1995
(2) JT 351 Para 8
[cxciv]
2004 AIR 834, 2003 (5) Suppl. SCR 551, 2003 (12) SCC 10, 2003 (9) SCALE 608,
2003 (9) JT 408
[cxcv]
(1996) 4 SCC 119
[cxcvi]
AIR
1964 SC 179
[cxcvii]
Indra Sawhney
etc. v. Union of India and Others, etc. (AIR 1993 SC 477, 1992 Supp 2 SCR 454)
Para 96
[cxcviii]
Ibid Para 98
[cxcix]
Ibid Para 99
[cc]
Ibid Para 107
[cci]
Ibid Para 107
[ccii]
Ibid Para 107
[cciii]
Inserted
by the Constitution (Seventy-seventh Amendment) Act, 1995, Section 2
[cciv]
2007 AIR 71, 2006 (7) Suppl. SCR 336, 2006 (8) SCC 212, 2006 (10) SCALE 301,
2006 (9) JT 191
[ccv] 1997 AIR 3074, 1996(6)Suppl.SCR 503, 1997(2)SCC 332,
1996(7)SCALE494, 1996(9)JT 320
[ccvi]
1996 AIR 1915, 1996(1)SCR 693, 1996(1)SCALE721, 1996(2)JT 44
[ccvii]
Special Leave Petition (Civil) No. 6385 of 2010
[ccviii]
Writ Petition (C) No. 95 of 2010
[ccix]
Society for Un-aided Private Schools v. Union of India & Anr. Writ Petition
(C) No. 95 of 2010 Para 77-80
[ccx] Indra Sawhney etc. v.
Union of India and Others, etc. (AIR 1993 SC 477, 1992 Supp 2 SCR 454) Para 111
[ccxi]
Ibid Para 111
[ccxii]
Ibid Paras 112
[ccxiii]
1981 AIR 2045, 1982 SCR (1) 759, 1981 SCC (4) 296, 1981 SCALE (3)1512
[ccxiv]
Ibid
[ccxv]
Indra Sawhney
etc. v. Union of India and Others, etc. (AIR 1993 SC 477, 1992 Supp 2 SCR 454)
Para 837
[ccxvi]
Ibid Paras 113, 121(12), 300
[ccxvii]
Ibid Para 300
[ccxviii]
Ibid Para 385 (8)
[ccxix]
Ibid Paras 114, 121(9),455
[ccxx]
Ibid Para 114
[ccxxi]
Ibid Paras 115, 121(11), 366, 553, 622, 623
[ccxxii]
Ibid Para 116
[ccxxiii]
Ibid Paras 117, 121 (13), 366
[ccxxiv]
Ibid Paras 263, 264
[ccxxv]
Ibid Paras 267, 268, 272
[ccxxvi]
Ibid Para 366
[ccxxvii]
Ibid Para 370
[ccxxviii]
Ibid Para 448
[ccxxix]
Ibid Para 450, 451, 452
[ccxxx]
Ibid Para 633
BIBLIOGRAPHY
1. The Constitution of India Volume 1
by D.J. De Third Edition 2012 Reprint Published by Asia Law House, Hyderabad
2. The Constitution of India Volume 2
by D.J. De Third Edition 2012 Reprint Published by Asia Law House, Hyderabad
3. Report
on the Backward Classes Commission First Part Vol I & II, 1980 by Sri B.P.
Mandal
4. Report on the Backward Classes Commission Second Part
Vol III to VII, 1980 by Sri B.P. Mandal
5. Social,
Economic and Educational Status of the Muslim Community of India A Report, 2006
by Rajindar Sachar
6. 7
Bare Acts as stated in the List of enactments mentioned
7. Judgments in 64 caselaws mentioned
in Table of Case Laws
8. Wikipedia
10.
http://judis.nic.in/supremecourt/chejudis.asp
11. And numerous online sites
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