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OBCs reservation in Public Employment (Mandal Commission report case)

Indra Sawhney v. Union of India AIR 1993 SC 477: (1992) Supp 2 SCR 954

In 1989 the Congress Party was defeated in the Parliamentary elections and the Janata Dal came to power and decided to implement the Mandal Commission’s report as it had promised to the electorate. Accordingly, the Government of India, headed by Prime Minister V.P. Singh issued the Office Memoranda (called O.M.) on August 13, 1990 reserving 27% seats for backward classes in government services on the basis of the recommendations of the Mandal Commission. A writ petition on behalf of the Supreme Court Bar Association was filed challenging the validity of the O.M. and for staying its operation. The Five Judges Bench of the Court stayed the operation of the O.M. till the final disposal of the case. Unfortunately the Janata Government collapsed and the Congress Party came to power at the Centre in 1991. The Congress Government issued another Office Memoranda on September 25, 1991 but made two changes in the O.M. of Janata Dal. (I) Introduced the Economic criterion in granting reservation by giving preference to the poorer sections of socially and educationally backward classes in the 27% quota. (II) Another 10% reservation for other socially and educationally backward classes (SEBCs), and economically backward sections of higher castes. The economic criterion was to be specified separately. The Five Judges Bench referred the matter to a special Constitution Bench of Judges.

The scope and extent of article 16(4) of the Constitution, and the validity of the Mandal Commission Report.

There is adequate safeguard against misuse by the political executive of the power under article 16(4) in the provision itself. Any determination of backwardness is not a subjective exercise nor a matter of subjective satisfaction. The exercise is an objective one. Certain objective social and other criteria have to be satisfied before any group or class of citizen could be treated as backward. If the executive includes for collateral reasons, groups or classes not satisfying the relevant criteria, it would be a clear case of fraud on power.

The reservations for ‘backward classes’ can only be made under clause (4) since they have been taken out from the classes for which reservation can be made under article 16(1). Hence, article 16(4) is exhaustive of all the reservations that can be made for the backward classes as such, but is not exhaustive of reservations that can be made for classes other than backward classes under article 16(1). So also, no reservation can be made under article 16(4) for classes other than “backward classes” implicit in that Article. They have to look for their reservation in article 16(1).

• Backward class of citizens in article 16(4) can be identified on the basis of caste and not only on economic basis. A caste is a social class in India and if it is backward socially, it would be a backward class. Though caste alone cannot be taken into consideration for purposes of identification of backward classes (occupation, groups, classes and sections of people or classes among non-Hindus, Muslims, Christians, etc. and if they are backward socially they are entitled to reservation).

• Article 16(4) is not an exception to article 16(1), but an independent clause. Reservation can be made under article 16(1) on the basis of reasonable classification. The Court further said that article 16(4) is exhaustive on the subject of reservation in favour of backward classes. Reservation for other classes can be made under article 16(1).

• Backward classes in article 16(4) are not similar to as socially and educationally backward in article 15(4).

• Creamy layer (socially advanced persons) can be and must be excluded from backward classes.

• Article 16(4) permits classification of backward classes into backward and more backward classes.

• A backward class of citizens cannot be identified only and exclusively with reference to economic criteria. Article 16(4) is not aimed at economic upliftment or alleviation of poverty. Mainly social and therefore educational and economic backwardness has to be taken into account.

• Reservation shall not exceed 50%.
The Court observed that article 16(4) speaks of adequate representation and not the proportionate representation. Rule of 50% is applicable to reservation proper only, not to exemptions, concessions or relaxation provided to backward classes. The Court also held that carry forward rule (to carry forward the unfilled vacancies in the next year) is valid provided it should not result in breach of 50% rule.

• No reservation in promotions.

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