Indra Sawhney v Union of India, AIR 1993 SC 477, Reservations for OBCs

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Introduction

Daily political and social discussion would be so mundane for the Indians if the topic of reservation gets wiped out from our life but this being the part and parcel of fundamental right has a long course of history followed by widespread protest, anger and socio-political drama that still persist to this very day. This case being the landmark judgement serves as a precedent but there’s no such thing as watertight decision when talked under the judicial spectrum and so does the dynamic and decision of reservation keep on changing as the time passes. However, the case serves as the basic outline and is an unstable child born out of three parent naming political unrest, pro reservation and anti-reservation.

Background

A nine-judge bench judgement that shaped the entire course of history covering the educational and socially backward reservation in the central government jobs and public institution. It goes back to the time when Kaka Kalelkar Commission, the first backward class commission formed in 1953 gave out its report of investigating the condition of socially backward classes but the report was eventually rejected in 1961 only for Janata Dal to come into picture which gave the way to infamous Mandal commission, the Second Backward Class Commission. It submitted the report for the upliftment of the Socially and Economically Backward classes (SEBC) along with the proposal of 27% quota in addition to the 22.5% reservation to the SCs and STs.

Here onwards the political drama begins with Janata Dal losing the power to congress, which denied to implement anything that was proposed in the report but the luck took turn and Janata Dal again came into power issuing Office Memoranda to fulfil its electoral promise only to face with massive protest and unrest. This all seems like a sea saw where maintaining balance is next to impossible and however many times, one party tries to put force on the other one would always rule it out all in against. Janata dal again lost the battle of election to congress and this time the ruling party decides to implement the report with little bit of modifications here and there, such as, adoption of the economic criterion in the reservation-granting process by providing precedence to the poorer SEBC sections within the projected 27% quota and an additional 10% reservation grant to the economically disadvantaged portions of the population who are not already benefiting from reservation programs.

Widespread protest and socio-political unrest continued and the judiciary came in the game on 11^th of September 1990, for it to transfer all the writ petitions challenging the Mandal Commission Report.

Issues raised

The broad issues in the case were:

• Purview and expanse of Article 16(1) and Article 16(4) which says “There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State” And “Nothing in this article shall prevent the State from making any provision for the 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” Respectively.
• What does exactly “backward class of citizens” mean.
• Particular set of criteria to define backward classes
• Nature and expanse of permissible reservation

Contentions raised by both the parties

Petitioner

The main issue raised by petitioner is that the reservation would be totally against the fundamental right to equality that is guaranteed under the basic doctrine of the constitution and if at all the reservation to be provided, it must be basic on all factors including social and economic background instead of using caste as the sole criterion for one person to be eligible for the perks of reservation. Secondly the providing with reservation benefits would fuel more casteism in the society and contrastingly divide the society into forward and backward class. Thirdly if the reservation is being guaranteed, it shall be done on the basis of latest censes instead of the old census of 1931 and a new commission should be formed for this too.

Respondent

The arguments raised by the respondent is that the reservation would allow for the upliftment of the backward classes and would help them to compete from the same position as the other classes and casted instead of starting from the scratch as they’ve been deprived of basic privileges since long. Secondly various tests and methods were taken while the making of the report which states for the urgent need of positive support for their upliftment. Thirdly that the report has already been made on the 1961 census as only community wise figure was available in the 1931 report.

Judgement

On 16^th of November 1992 the judgement was delivered with 6:3 majority with P.V. Narasimha Rao’s Government all set to introduce 27 percent reservation for Socially and Backward Classes with certain conditions attached to it. Apart from this major judgement given by the court, the institution also tried to answer minor questions to avoid any future inconvenience and upcoming misinterpretation and exploitation of the articles written in the constitution. Firstly, it clarified that the article 16(1) and 16(4) should be read in harmony and that article 16(4) is not an exception of 16(1). Secondly, class should always be contrasted from the term caste. Thirdly, the test of backwardness and the test of inadequate representation was given to determine whether the reservation should be provided or not along with the exclusion of “creamy layer” as it was stated that some members of OBSc have advanced significantly and therefore the privileged shouldn’t be the one to enjoy the reservation when it is clearly for the unprivileged and backward ones. Fourthly, the institution stated that there’s no as such water tight sub classification to determine who shall fall under the ambit of OBCs and the onus is on state to provide with extra concession, donations etc. without compromising the efficiency of the public administration and unity and integrity of the nation. Lastly, Reservations cannot be made in excess of 50%, and this restriction should be true even when applying the carry-forward rule (which fills open positions in the next year). Promotions must be free of any restrictions.

Conclusion

As the time passed, the complexities and sceptism related to reservation has only got messier and it is till date a sensitive topic, yet the favorite one for political opportunist to use it for the electoral votes. With further developments in reservation jurisprudence, many a times the judgement was criticized and simultaneously used as a precedent but the ambiguity remains in the picture and will most probably cover up the Socio-political drama for the next 20-30 years presumably. Do we actually need reservation for the upliftment of socially and economically backward classes/ castes or providing them with reservation just allows the society to get divided into two camps of forward and reserved category and if not reservation then what’s the other method to come up with for their upliftment? The questions seem never-ending and yet it is difficult to find one definite answer to any of it.

Written by: Varsha Gond, Rajiv Gandhi National University Of Law, Punjab, 4^th Semester

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