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Indra Sawhney and Union of India (1992)

Indra Sawhney and Union of India (1992)

Introduction

  • When our own Constitution was framed the framer of the constitution made a special provision with intention to provide equal opportunity in the public employment to all the citizens within INDIA. The same was inserted in the Art. 16 of the Indian Constitution. But considering the backward classes a special provision was inserted in the same Art. In clause 41.e., in Art. 16(4). This section empowers the State to make a special provision for those backward classes who in the opinion of the State are not adequately represented in the service under the State.
  • But in these connection two questions reasonable explores our mind that:
    • Who will be designated as a backward class people for the purpose of this section? &
    • Who will be treated to be inadequate in the employment under State? Indra Sawhney and Union of India (1992)
  • Because there were no suitable answers of these two questions given under the provision of the Constitution. By taking this advantage the ruling party who were in the power at Centre utilised this provisions for their own political benefit. But this case (which is also famously known as MANDAL COMMISSION’S case) plays an important role to find out the answer of these two questions.  Indra Sawhney and Union of India (1992)

Background | Indra Sawhney and Union of India (1992)

  • On January 1, 1973 the JANATA Government headed By the Prime Minister Sri MORARJI DESAI appointed the second Backward Classes Commission under Article 340 of the Constitution under the chairmanship of Sri B.P. Mandal (MP) to investigate the Socially & Educationally Backward Classes within the territory of INDIA & recommended steps to be taken for their advancement including the necessary provision which are to be required to be made for them for the upliftment of their status by giving equal opportunity in the public employment.
  • The commission submitted its report on December, 1980 in this report the commission identified about 3743 caste: as socially & educationally backward classes recommended for reservation of 27% in Government jobs.   Indra Sawhney and Union of India (1992)
  • In the meantime due to internal disturbance within the party the GOVT. collapsed & by thus it couldn’t implement the recommendations made by MANDAL COMMISSIONS after that the CONGRESS GOVT. headed by the Prime Minister Smt. INDIRA GANDHI came to the power at centre. But she didn’t implement the MANDAL COMMISSION’S report till 1989. In 1989 the CONGRESS GOVT. toppled due to the defeat of the general election.  Indra Sawhney and Union of India (1992)
  • After winning that election JANATA DAL again came to the power & decided to implement the report of the commission. After that then Prime Minister V.P.SINGH issued office of memorandum on AUGUST 13, 1990 & reserved 27% seats for the Socially & Backward classes.
  • This cause effect in civil disturbance throughout the INDIA. From various places anti Reservation movement rocked the nation for 3 months. It results a huge loss of persons & property.
  • A writ petition was filed from the BAR ASSOCIATION OF THE SUPREME COURT.Challenging the validity of Office of Memorandum issued by the GOVT.
  • The case was ultimately decided by the 5 Judges bench. They issued a stay order till the final disposal of the case on October 1, 1990. Unfortunately in the meanwhile JANATA GOVT again collapsed due to defections & in 1991 by the Parliamentary elections & the Congress again formed the government at centre.
  • To tackle the situation & also for the political gain, the then Prime Minister PV. NARASIMHA RAO issued another office of memorandum by making 2 changes i.e.
    • By introducing the economic criterion in granting reservation within 27% in Govt. Job. &
    • Reserved another 10% of vacancies for the socially & educationally backward classes. That is total 37% (27% 10%)  Indra Sawhney and Union of India (1992)
  • The 5 judge’s bench referred this matter to the 9 judges bench who issued a notice to the Govt. to show cause the criteria upon which the government has proposed to make 27% reservation for them. But in spite of taking several adjournments the government of India has failed to explain the criteria mentioned in the office of memorandum.

Issues | Indra Sawhney and Union of India (1992)

  • Whether Article 16(4) is an exception to Article 16(1) and would be exhaustive of the right to reservation of posts in services under the State?
  • What would be the content of the phrase “Backward Class” in Article 16(4) of the Constitution and whether caste by itself could constitute a class and whether economic criterion by itself could identify a class for Article 16(4) and whether “Backward Classes” in Article 16(4) would include the “weaker sections” mentioned in Article 46 as well?
  • If economic criterion by itself could not constitute a Backward Class under Article 16(4), whether reservation of posts in services under the State, based exclusively on economic criterion would be covered by Article 16(1) of the Constitution? Indra Sawhney and Union of India (1992)
  • Can the extent of reservation of posts in the services under the State under Article 16(4) or, if permitted under Article 16(1) and 16(4) together, exceed 50 % of the posts in a cadre or Service under the State or exceed 50% of appointments in a cadre or service in any particular year and can such extent of reservation be determined without determining the inadequacy of representation of each class in the different categories and grades of Services under the State?
  • Does Article 16(4) permit the classification of ‘Backward Classes’ into Backward Classes and Most Backward Classes or permit classification among them based on economic or other considerations?
  • Would making “any provision” under Article 16(4) for reservation “by the State” necessarily have to be by law made by the legislatures of the State or by law made by Parliament? Or could such provisions be made by an executive order? Indra Sawhney and Union of India (1992)
  • Will the extent of judicial review be limited or restricted in regard to the identification of Backward Classes and the percentage of reservations made for such classes, to a demonstrably perverse identification or a demonstrably unreasonable percentage?
  • Would reservation of appointments or posts ‘in favour of any Backward Class” be restricted to the initial appointment to the post or would it extend to promotions as well?
  • Whether the matter should be sent back to the Five-Judge Bench?

Judgement | Indra Sawhney and Union of India (1992)

  • The 9 judges Constitution Bench of the Supreme Court by 6-3 majority gave the following judgements:-
  • Backward class of citizen in Article 16(4) can be identified on the basis of the caste system & not only on economic basis.
  • Article 16(4) is not an exception of Article 16(1). It is an instance of the classification. Reservation can be made under article 16(1).
  • Backward classes in Article 16(4) were not similar to as socially & educationally backward in article 15(4).
  • Creamy layer must be excluded from the backward classes.
  • Article 16(4) permits classification of backward classes into backward & more backward classes.  Indra Sawhney and Union of India (1992)
  • A backward class of citizens cannot be identified only & exclusively with reference to economic criteria.
  • Reservation shall not exceed 50%.
  • Reservation can be made by the ‘EXECUTIVE ORDER.
  • No reservation in promotion.
  • Permanent Statutory body to examine complains of over – inclusion / under – inclusion.
  • Majority held that there is no need to express any opinion on the correctness or adequacy of the exercise done by the MANDAL COMMISSION.
  • Disputes regarding new criteria can be raised only in the Supreme Court.
  • Indra Sawhney and Union of India (1992)

 

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