Indra Sawhney v. Union of India

Indra   Sawhney      v.    Union of India     [1993 SC]

[Constitutional Validity of Reservations for OBCs in Public Employment]

[It is a long judgment comprising of as many as 700 paragraphs running in 185 pages. Delhi Law Academy is presenting here for its students a concise and useful 4-page summary of the judgment:]

Issue 1

• Whether the ‘provision’ in Article 16(4) must necessarily be made by the Parliament/Legislature?

Decision

• It is not necessary that the ‘provision’ under Article 16(4) should necessarily be made by the Parliament/Legislature. Such a provision can be made by the Executive also.

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Issue 2(a)

• Whether clause (4) of Article 16 is an exception to clause (1)?

Decision

• Clause (4) of Article 16 is not an exception to clause (1). It is an instance and an illustration of the classification inherent in clause (1).

Issue 2(b)

• Whether Article 16(4) is exhaustive of the concept of reservations in favour of backward classes?

Decision

• Article 16(4) is exhaustive of the subject of reservation in favour of backward class of citizens, as explained in this judgment.

Issue 2(c)

• Whether Article 16(4) is exhaustive of the very concept of reservations? Whether clause (1) of Article 16 does not permit any reservations?

Decision

• Reservations can also be provided under clause (1) of Article 16. It is not confined to extending of preferences, concessions or exemptions alone. These reservations, if any, made under clause (1) have to be so adjusted and implemented as not to exceed the level of representation prescribed for ‘backward class of citizens’ – as explained in this Judgment.

Issue 3(a)

• Meaning of the expression “backward class of citizens” in Article 16(4).

Answer

• A caste can be and quite often is a social class in India. If it is backward socially, it would be a backward class for the purposes of Article 16(4). Among non- Hindus, there are several occupational groups, sects and denominations, which for historical reasons, are socially backward. They too represent backward social collectivities for the purposes of Article 16(4).

Issue 3(b)

• Identification of “backward class of citizens”

Answer

• Neither the Constitution nor the law prescribes the procedure or method of identification of backward classes.

• Thus one can start the process with the castes, wherever they are found, apply the criteria (evolved for determining backwardness) and find out whether it satisfies the criteria. If it does –what emerges is a “backward class of citizens” within the meaning of and for the purposes of Article 16(4). Similar process can be adopted in the case of other occupational groups, communities and classes, so as to cover the entire populace.

Issue 3(d)

• ‘Means-test’ and ‘creamy layer’

Answer

• ‘Creamy layer’ can be, and must be excluded.

Issue 3(e)

• Whether a class should be situated similarly to the Scheduled Castes/Scheduled Tribes for being qualified as a Backward Class?

Decision

• 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.

Issue 3(f)

• Adequacy of Representation in the Services under the State

Decision

• The adequacy of representation of a particular class in the services under the State is a matter within the subjective satisfaction of the appropriate Government. The judicial scrutiny in that behalf is the same as in other matters within the subjective satisfaction of an authority.

Issue 4(a)

• Whether backward classes can be identified only and exclusively with reference to the economic criterion?

Decision

• A backward class of citizens cannot be identified only and exclusively with reference to economic criteria.

Issue 4(b)

• Whether a backward class can be identified on the basis of occupation-cum-income without reference to caste?

Decision

• It is, of course, permissible for the Government or other authority to identify a backward class of citizens on the basis of occupation-cum-income, without reference to caste, if it is so advised.

Issue 5

• Whether Backward Classes can be further divided into backward and more backward categories?

Decision

• There is no constitutional bar to classify the backward classes of citizens into backward and more backward categories.

Issue 6

• To what extent can the reservation be made?

(a) Whether the 50% rule enunciated in Balaji a binding rule or only a rule of caution or rule of prudence?

(b) 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?

Decision

• and (b) 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 mainstream 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.

Issue 6(c)

• While applying 50% rule, if any, whether a year should be taken as a unit or whether the total strength of the cadre should be looked to?

Decision

• 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.

Issue 7

• Whether clause (4) of Article 16 provides reservation only in the matter of initial appointments/direct recruitment or does it contemplate and provide for reservations being made in the matter of promotion as well?

Decision

• Article 16(4) does not permit provision for reservations in the matter of promotion. This rule shall, however, have only prospective operation and shall not affect the promotions already made, whether made on regular basis or on any other basis. 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.

Issue 11

• 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 September 25, 1991 permissible under Article 16?

Decision

• 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 reservation’ made in the impugned Office Memorandum dated September 25, 1991 is constitutionally invalid and is accordingly struck down.

Issue 12

• Desirability of a Permanent Statutory Body to Examine Complaints of Over-inclusion/ Under-inclusion

Decision

• The Government of India and the State Governments have the power to, and ought to, create a permanent mechanism - in the nature of a Commission - for examining requests of inclusion and complaints of over-inclusion or non-inclusion in the list of OBCs and to advise the Government, which advice shall ordinarily be binding upon the Government.