Author: Shazia Sameen & Zene Qamar
Bench: M.Kania, M.Venkatachaliah, SR Pandian, T.Ahmadi, K.Singh, P.Sawant, R.Sahai, T.K.Thommen, B.J Redd.
“Justice has always evoked ideas of equality, of the proportion of compensation. Equity signifies equality. Rules and regulations, right and righteousness are concerned with equality in value. If all men are equal, then all men are of the same essence, and the common essence entitles them of the same fundamental rights and equal liberty…In short, justice is another name of liberty, equality and fraternity.” B. R Ambedkar
The legitimacy of the reservation is an unending debate that’s been going on in the Hon’ble Supreme court since the longest time now. In the case of Indira Sawhney the evolution of the system of the reservation took many twists and turns, amidst the political motives and the principle of equality, the Supreme Court gave many interpretations of Article 16(4).
The case of Indra Sawhney came into light when the second backward classes commission under Article 340 of the constitution was appointed to investigate the socially and economically backward classes.
It identified 3743 castes as socially and educationally backward classes and a recommendation was made for 27% of government jobs for them.
However, the Janata Government collapsed and congress party came into power. The Mandal Commission was not implemented by the Congress government due to some reasons.
Later on, the Janata Dal came again into power and implemented the commission report as promised to the electorate. Hence, the Office Memorandum on August 13, 1990, reserving 27% of the seats for backward classes was issued, this acceptance of the memorandum led to the nationwide protest and a violent anti-reservation movement was continued till three months.
A writ petition was filed challenging the validity of the memorandum, the court stayed the Office Memorandum till the final disposition of the case on October 1, 1990. Meanwhile the congress again came into power and issued another Office Memorandum on September 25, 1991 with two special changes:
(i) by introducing the economic criterion in granting reservation by giving preference to the poorer sections of SEBCs in the 27% quota
(ii) reserved another 10% vacancies for other Socially and Educationally Backward Classes (SEBCs) economically backward sections of higher class.
The issue which came into light are:
- Whether A16(4) is an exception to A16(1) and would be exhaustive of the right to reservation.
- Whether backward classes can be further divided into backward and more backward classes.
- Whether the classification can be made only on the basis of caste or economy
- To what extent can the reservation be made.
- Whether the legislative order or parliamentary order is necessary for implementing reservation or it can be made through executive order only.
- Whether the reservation is restricted to initial appointments or it can be extended to promotions also.
The court observed that today’s issue with the caste system is the consequences of our own fault created in ancient days, the Court pointed out that Part III of the Constitution are the core sections which are enacted for the removal of historic injustice. The court decided that the class of citizens in Article 16(4) can be identified on caste system and not only on economic basis. It was decided that Backward classes in Article 16(4) were not similar to as socially & educationally backward in article 15(4) and also Creamy layer must be excluded from the backward classes.The court further added that the backward class of a citizen cannot be decided solely on the basis of the economic condition.
The court also observed that reservation cannot exceed 50% and there shall be no reservation in promotion was further decided by the court. The majority was of the view that there was no need to express any opinion persistent to the correctness of the commission. It can be concluded that the court was of the view of implementing the reservation policies in order to curb the social evil existing in the society.
The hon’ble supreme court in this landmark judgment rightly answered almost all the prevalent questions pertinent to the reservation and disregarded many misconceptions arising out of Mandal commission and other subsequent provisions for the upliftment of backward classes.
Firstly the supreme court while rejecting the view taken in M.R Balaji and T.Devadasan held that A16(4) is not an exception to A16(1). Hitherto the doctrine of equality was much narrower and construed in a manner to treat everyone equally rather than classifying the different strata of society. As per A14 “the state shall not deny to any person equality before the law and equal protection of laws” here, equal protection of laws enable the state to formulate affirmative actions as it promotes justice. Contemporary law does not demarcate justice from equality, both are different sides of the same coin. We can not expect one without the other.
Therefore if A16 is a facet of the doctrine of equality then how it could be possible that A16(4) is an exception. thus the majority in the present case was of the view that we can not interpret A16(4) as an exception.
Secondly, reservations were meant to eradicate social inequality and to achieve its optimum result classifying backward classes into more backward classes was a significant decision.
For instance, A16(4) does not talk about SC/ST rather includes a more inclusive term that is
the “backward class of citizens” but we are well aware that SC/ST has been provided with a separate reservation under A15(4) otherwise if they were included in a category of other backward classes as per A16(4) most of the seats must have been occupied by OBCs. The same logic can be used to justify the categorisation between backward and more backward classes. We can not deny the fact that there are groups in OBCs as well who are far less backward than others, so this reasonable classification has been done for a larger good.
Thirdly and the most controversial stand on the reservation was whether it should be provided on the basis of caste or on the economy. To answer this question one should know that affirmative actions must be provided on the basis on which the discrimination has taken place. If the basis of discrimination prevalent in our society was caste then its remedy should be provided on the basis of caste only and not economy. We are not denying the fact that there is economic disparity as well but reservations are not meant to deal with every kind of disparity in our society but a way to deal with one disparity at a time that is caste. Therefore the supreme court took the same view as the Mandal commission suggests and approves caste-based reservations while giving much recognition to the economy as well.
Fourthly the court favoured that the reservation shall not exceed the 50% limit but also attached an exception of “special circumstances”, and the court remains silent as to what the circumstances could be, Also the question of carry forward rule arose, In the case of T.Devadasan The court held carry forward rule as the violation of 50% rule as there was no certainty as to by what percent the vacancies can add up and hamper the fair chances of the General category.
However, the court again made an exception to the carry forward rule by making it applicable in “extraordinary situations”. The facts are silent as what those situations can be. This can cause more ambiguity as it can be used for certain political motives..
Fifthly, While upholding the view taken in M.R Balaji The supreme court rejected the petitioner’s contention simply by construing A12 and A13(3)(a) which empowers not only the legislature or parliament to make laws but any authority which falls under the purview of A12. Though wider scope for discretion at the hands of the executive body leads to arbitrariness but in this case for the better improvement of representation in the institution it is important to give some power to an administrative body. Parliament /legislature may not be in a capacity to know the ground reality of a particular institution, in that case, the executive body must have the power to formulate provisions regarding reservations.Therefore, reservations can be made by executive order. This view was later followed by Comptroller and Auditor general of India.
Sixthly, in the issue of reservation in promotion, the court held that there could be no reservation in promotion, as it would hamper the rights of the General class who reached there according to the procedure and it also can undermine the efficiency of the administration in a particular department, However, if we look closely in the job profiles of the Multinational Companies or even Governmental organisations, the representation of the Socially, Economically backward, Minority religious groups and Women is much less than the upper caste men or privileged class, in fact there are rarely any positions that are occupied by the less fortunate groups of our society. One of the biggest reasons of this cause could be the absence of the reservation in promotion, the economically and socially backward class lose their representation and yet again are unable to match the same standard, the disparity between the job profiles and even in salaries differ a lot, leaving the mark of differentiation and discrimination.
It is a well known fact that Poverty is not peculiar to India, but in our country, the combination of poverty along with a legitimized caste system makes it worse. It tends to drag the individual belonging to a particular class or caste in a vicious circle of exploitation thus degrading the very facet of life that is, their dignity. Indian constitution ensures justice in the social, economical and political realm thus creating a just and dignified state for all irrespective of caste, creed, and class.
The report of the Mandal commission strongly suggested that the group must be socially and educationally backward and thus social backwardness could be a result of casteism.
However, the economic factor was also given due consideration but not equally placed. Poorer OBC’s must be given preference over the creamy layer
Mandal commission after a thorough survey divided backward classes into 3743 groups and suggested 27% reservation in all government services in which their representation is inadequate. Despite the fact that the total population of backward classes in India was 52% the number of reserved seats was way too little. According to the report, reservation is an affirmative action and meant to uplift the socially and educationally backward classes and not an economic policy to help the poorer section of the society. For that purpose, there are quite a few policies already in existence, but to eradicate the social evil and to uplift the backward groups’ reservation is a must.
The reservation of seats in the educational institutions and government organisations have no doubt improved their economic conditions but their social status is still in question, they are still looked down merely because of the caste they belong to combined with the fact that there are self acclaimed higher castes who still are unable to accept them. The reservation granted to them might have come with some political motives but the injustice that has been done to them deserves the entire removal of the inequality that has existed from time immemorial.
If we continue to deny it for long, we will do so only by putting our political democracy in peril. We must remove this contradiction at the earliest possible moment or else those who suffer from inequality will blow up the structure of political democracy which this Assembly has so laboriously built up ~B.R Ambedkar
Available at http://ccnmtl.columbia.edu/projects/mmt/ambedkar/web/readings/aoc_print_2004. (Last visited on June 24, 2020).
Indra Sawhney v. Union of India AIR 1993, SC 477.
The Constitution of India, 1950 A.16(4).
The Constitution of India, 1950 A.340.
Dr. J.N Pandey, Constitutional law of India, 173 (Central Law Agency, 55th edn., 2018).
The Constitution of India, 1950 A.15(4).
M.R Balaji v. State of Mysore 1963 AIR 649, 1962 SCR Supl. (1) 439.
T.Devadasan v. Union of India 1964 AIR 179, 1964 SCR (4) 680.
T .Devadasan v. Union of India AIR 1964, SC 179.
M.R Balaji v. State of Mysore 1963 AIR 649, 1962 SCR Supl. (1) 439.
The Constitution of India, 1950 A.12.
The Constitution of India, 1950 A.13(3)(a).
Comptroller and Auditor general of India v. Mohan Lal Mehrotra 1991 AIR 2288, 1991 SCR Supl. (1) 482.
Available at http://ccnmtl.columbia.edu/projects/mmt/ambedkar/web/readings/aoc_print_2004. (Last visited 28 June 2020).