This article was written by Satyaki Deb and further updated by Pujari Dharani. This article provides an exhaustive case analysis of the landmark case of Indra Sawhney v. Union of India (1992) and an overview of the subsequent precedent case laws related to reservation from an analytical viewpoint.

Introduction

The provision of reservations in educational institutes and public services, whether Centre or State, in favour of disadvantaged or marginalised sections of society are provided by the governments even today. However, the Constitution of India at its inception does not mandate the governments to abide by it. Indeed the issue of the reservations was left open to the Government ruling at the Centre to take a decision after conducting due surveys about the real and current scenarios, and that too for the initial ten years, not beyond. These enabling provisions of the Constitution are evidently being used by the Governments for political purposes. Although the intention of the Constituent Assembly is genuine as it aims to remove the historical exploitation and sufferings of backward classes and the same has been recognised by the Indian judiciary to ensure that the aim is upheld by adequate representation in the public services and other measures, whether such aims are purposefully implemented or not is still a question. One such case where the Indian judiciary recognised the legislative intent beyond reservations and gave effect to the same by its judgement is Indra Sawhney & Ors. v. Union of India & Ors. (1992). 

The nine-judge bench case of Indra Sawhney & Ors. v. Union of India & Ors. (1992) is a case that got written in stone by the Indian judiciary and is both blessed and cursed, perhaps to eternally witness the dynamic power play and friction of political opportunism, pro-reservation and anti-reservation sentiments in India. This landmark case was the miracle child of Indian judicial pragmatism, conceived at the backdrop of nationwide chaos and violent protests against the implementation of the infamous Mandal Commission Report’s 27 per cent quota for the socially and educationally backward classes (SEBCs) in all the central government jobs and public institutions. This article attempts to portray this three-decades-old landmark case law in a simplified manner and analyses the same at the altar of transformative Constitutionalism, succeeding landmark Supreme Court cases on the reservation and the present day’s socio-political stage.

Brief details of Indra Sawhney v. Union of India and Ors. (1992)

Name of the case

Indra Sawhney & Ors. v. Union of India & Ors.

Date of the judgement

16th November 1992

Parties of the case

Petitioner

Indra Sawhney

Respondent

Union of India

Represented by

Petitioner

Advocates, namely, M.L. Verma, G.L. Sanghi, S.K. Verma, Manoj Prasad, Minoti Mukherjee and A.K. Srivastava, K.K. Venugopal.

Respondent

Sri K. Parasaran

Equivalent citations

AIR 1993 SC 477; 1992 Supp (3) SCC 217; [1992] Supp 2 SCR 454; 1993 (1) SCT 448 (SC).

Type of the case

Writ Petition (Civil) No. 930 of 1990

Court

Supreme Court of India

Provisions and Statutes involved

• Articles 16(1) and 16(4) of the Constitution of India.
• Scheduled Castes and Scheduled Tribes Order (Amendment) Act, 1976.

Bench

Justice M.H. Kania, the then Chief Justice of India, Justice M.N. Venkatachaliah, Justice S.R. Pandian, Justice T.K. Thommen, Justice A.M. Ahmadi, Justice Kuldip Singh, Justice P.B. Sawant, Justice R.M. Sahai and Justice B.P. Jeevan Reddy constituted a nine-judge Bench. 

Brief history and facts of Indra Sawhney v. Union of India and Ors. (1992)

A case analysis should be done comprehensively from all possible perspectives, and so this legal article must briefly witness, through an unbiased lens, the necessary background political and economic angles that will demonstrate the culmination of the broad canvas where this landmark case law was portrayed.

Article 16(4) of the Constitution of India

Before we move forward to the facts of the case and deep analysis of the judgement, let us first understand what Article 16(4) of the Constitution of India talks about as the current case is all about interpreting this provision.

This provision enables the State to create any laws or special provisions to benefit the backward classes of citizens who do not have adequate representation in public services. This provision is just an enabling provision, thus, any person from backward class cannot seek special benefits as a matter of right. As the word “backward class” is not defined in the Constitution, it is prone to be challenged by citizens, which is the result of the present case as one of the issues raised is the definition of backward class and who is competent to determine classes for the purpose of this provision.

Kaka Kalelkar Commission: The First Backward Classes Commission

The discussions in the Constituent Assembly on the draft of Article 10(3), which resembles the current provision of Article 16(4), reveal that a few communities demanded the State to confer reservations in the matter of public employment. This demand is a major cause for adding Clause (4) to Article 16. It is pertinent to look into the observations made by the chairman of the drafting committee, Dr. B.R. Ambedkar, which are reproduced below:

“Then we have quite a massive opinion which insists that although theoretically it is good to have the principle that there shall be equality of opportunity, there must at the same time be a provision made for the entry of certain communities which have so far been outside the administration.”

After the Constitution came into force on 26th January, 1950, there was a demand from the public on the Centre to make provisions for reservations similar to reservations for O.B.Cs (Other Backward Classes), which have been provided even before the commencement of the Constitution, in southern states.

The then Central Government realised its duty to provide reservations for backward classes in India on such demand and, for that purpose, the First Backward Classes Commission, also popularly known as the Kaka Kalelkar Commission, was formed way back in 1953 vide Article 340 (Appointment of a Commission to investigate the conditions of backward classes) of the Indian Constitution, but its report (1955) was effectively rejected in 1961 as the Central Government did not satisfy the basis for determining the backward classes. On August 16, 1961, the Central Government instructed State Governments to lay down its own test on which basis the backwardness of a class will be determined; provided, in the opinion of the Central Government, such basis shall be in economic terms rather than caste. It further stated that the State Government is at discretion to release its own lists identifying backward classes for the purpose of providing reservations to such category of people as envisaged under Articles 15 and 16 and may follow the same leaving All-India list prepared by the Central Government under Article 338(3) practically ineffective. State Governments, complying with these instructions, formed a commission to identify the socially and educationally backward classes for providing reservations in public services. However, there are no reservations for other backward classes in central services, though given to Scheduled Castes (SCs) and Scheduled Tribes (STs).  

Mandal Commission: The Second Backward Classes Commission

In January 1979, the Janata Dal, headed by the then Prime Minister Moraji Desai, through a Presidential Order formed the Second Backward Classes Commission (popularly known as Mandal Commission), which was chaired by Sir B.P. Mandal. This Commission was tasked with determining the criteria or test to decide the issue of who shall come under the category  of socially and economically backward classes (SEBCs) for the purpose of reserving jobs in the public sector. The Commission submitted its report in December 1980 to recommend steps for the upliftment of the SEBCs. The summary of the chapters in the Commission’s report is provided in the below table.

Brief Report

Chapter	Deals with	Description
Chapter I	Constitution of the Kaka Kalelkar Commission	The Report of the Commission and aftermath of the report. It also exposed the internal inconsistency of the first commission of the report.
Chapter II	Status of Other Backward Classes in some States	Various reservation provisions for OBCs in different states.
Chapter III	Methodology and database	It informs what procedure the commission adopted and the material collected by them.
Chapter IV	Interrelationship between Social Backwardness and caste	It explains how the fourth caste, i.e., Shudras, were oppressed, intellectually and physically, and the historical injustices they suffered.
Chapter V	Social Dynamics of caste	It explains the pivotal role caste plays in politics and public life.
Chapter VI	Social Justice, Merit and Privilege	The merit depends upon environmental privileges and disadvantages in an elitist society.
Chapter VII	Social Justice, Constitution and the Law	A reference to various principles laid down in the judicial decisions in the case of M.R. Balaji & Ors. v. State of Mysore (1962) and the subsequent decisions.
Chapter VIII	North-South Comparison of Other Backward Classes Welfare	Two southern states, namely, Tamil Nadu and Karnataka and two northern states, namely, Bihar and Uttar Pradesh are taken into consideration for the said comparison.
Chapter IX	Evidence by Central and State Governments
Chapter X	Evidence by the Public
Chapter XI	Socio-Educational Field Survey and Criteria of Backwardness	It declared that the said survey is the most comprehensive inquiry made by the Commission.
Chapter XII	Identification of O.B.Cs	It concluded that the people belonging to OBCs are around 52% of the total population in India.
Chapter XIII	Recommendations (including reservations in services)	This Mandal Commission Report, inter alia, proposed a 27 percent government quota for the SEBCs on top of the pre-existing 22.5 percent reservation for the SCs and STs.
Chapter XIV	Summary of the Report

Test for determining backward classes

The Commission recommended two different tests for Hindus and non-Hindus separately to determine whether a candidate is socially and educationally backward. Those tests are:

• If the candidate is a Hindu – the test is that the candidate is not among three Dvij (twice-born) Varnas, i.e., Brahim, Kshatriya, Vaishya, as well as both his father and grandfather did not study more than primary education. The former conveys social backwardness and the latter conveys educational backwardness.
• If the candidate is non-Hindu – the test is that the candidate is a convert from Hindu, who is socially backward; if he is not a convert, whose parent’s income is below the poverty line, i.e., Rs. 71 per head per month, as well as both his father and grandfather did not study more than primary education.

Indicators for the backwardness of a class

The Commission conducted a detailed survey, a brief of which is provided in Para 16 of the original judgement, to conclude with the following eleven indicators to determine the backwardness of a class. The eleven indicators were categorised into three broad headings. These are reproduced in the below table.

Social indicators
Castes/Classes considered as socially backward by others			Castes/Classes which mainly depend on manual labour for their livelihood			Castes/Classes where at least 25% of females and 10% of males above the State average get married below 17 years of age in rural areas and at least 10% females and 5% males do so in urban areas			Castes/Classes where participation of females in work is at least 25% above the State average.
Educational indicators
Castes/Classes where the number of children in the age group of 5-15 years who never attended school is at least 25% above the State average				Castes/Classes where the rate of student dropout in the age group of 5-15 years is at least 25% above the State average				Castes/Classes amongst whom the proportion of matriculates is at least 25% below the State average
Economic indicators
Castes/Classes where the average value of family assets is at least 25% below the State average			Castes/Classes where the number of families living in Kuccha houses is at least 25% above the State average			Castes/Classes where the source of drinking water is beyond half a kilometre for more than 50% of the households			Castes/Classes where the number of households having taken a consumption loan is at least 25% above the State average

Allotment of points

Because the above-stated indicators are not of equal importance for the purpose of determining the backwardness of a class, separate weightage was allotted to every indicator in each group. All the social, educational and economic indicators were given a weightage of 3 points, 2 points and 1 point each respectively. Therefore, the total score will be 22 points. If a caste scores less than half of the total points i.e., not more than 11 points, such caste will be treated as backward and the rest will be termed forward classes.

The aftermath of the submission of the report

Before this Mandal Commission Report could be put into effect, the coalition Janata Dal government fell and the Indira Gandhi-led Congress government came into power. Now, the Congress government did not implement this report for a long time until they lost again to V.P. Singh-led Janata Dal in 1989. After coming back to power, the Janata Dal issued an Office Memorandum (OM) to implement the Mandal Commission Report as per their electoral promises, but this pushed the country into a chaotic time filled with violent anti-reservation protests where many students burned themselves to death protesting against reservation.

The Janata Dal fell again amidst these widespread disturbances and the P.V. Narasimha Rao-led Congress government came into power in 1991 and issued another O.M. to implement the Mandal Commission Report with a couple of modifications, namely, the introduction of the economic criterion in the granting of reservations by giving preference to the poorer sections of the SEBCs within the proposed 27 percent quota and a further 10 percent reservation grant to the economically challenged sections of the people not enjoying any reservation schemes. But still, the massive violence continued, and India kept on suffering tremendous loss of life and property. Finally, on 11th September 1990, the Supreme Court transferred to itself all writ petitions challenging the implementation of the Mandal Commission Report, and thus, began the two-year-long tussle where the Supreme Court tried balancing judicial pragmatism with political opportunism.

To see the other side of the coin, at that time, the LPG (Liberalisation, Privatisation, Globalization) policy was also introduced in 1991, which was a giant step for India, and as massive structural and economic realignments started happening, with the floodgates open for the international private players, how far reservation could be effectively implemented to uplift the SEBCs was also becoming a serious question.

Issues addressed by the case of Indra Sawhney v. Union of India and Ors. (1992) 

Indra Sawhney, an advocate, challenged the implementation of the recommendations cited in the Mandal Commission Report by filing a Public Interest Litigation (PIL) under Article 32 of the Constitution of India. One of the major concerns raised in this PIL is the recommendation of caste to be taken as a main criterion for deciding who will fall under the ‘backward class’.

To a layman, the only issue before the Supreme Court was whether the Mandal Commission Report was valid or not. However, in reality, the Apex Court was tasked with determining various complex issues that had far-reaching implications, and the broad eight issues of this landmark case can be categorised in a simple manner as follows:

Scope and extent of Article 16(1) and Article 16(4)

Issue 1: Whether Article 16(4) an exception to Article 16(1) and would be exhaustive of the right to reservation to posts in services under the State? 

Definite parameters for the term “backward class of citizens” and the criteria to identify them

Issue 2: What would be the meaning of the term “Backward Class” in Article 16(4) of the Constitution

• Whether ‘caste’ by itself could constitute a ‘class’? 
• Whether economic criterion by itself could identify a class for Article 16(4)?
• Whether backward Classes in Article 16(4) would include Article 46 as well? 

Issue 3: If economic criterion by itself could not constitute a Backward Class under Article 16(4) whether the reservation of posts in services under the State based exclusively on economic criteria be covered by Article 16(1) of the Constitution? 

Nature and extent of the reservations permissible

Issue 4: Can the extent of reservation to posts in the services under the State under Article 16(4) or, if permitted under Articles 16(1) and 16(4) together, exceed 50% of the posts in a cadre or Service under the State or exceed 50% of the appointment 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? 

Issue 5: 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?

Issue 8: Would reservation of appointments or posts “in favor of any Backward Class” be restricted to the initial appointment to the post or would it extend to promotions as well?

Legislative and executive power to make reservation provisions and judicial power to review them

Issue 6: 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? 

Issue 7: 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?

Contentions raised by both parties in Indra Sawhney v. Union of India and Ors. (1992)

The contentions raised by both parties are presented as follows:

Contentions of the petitioners in the Indra Sawhney case

Here, the lead petitioner was advocate Indra Sawhney and the arguments were advanced by legendary counsels like Nani Palkhivala, K.K. Venugopal, Mr. P.P. Rao, and Smt. Shyamala Pappu. Their contentions can be briefly stated as follows:

1. It was argued that the reservation system is fueling the evil caste system and dividing the society into two halves, namely forward classes and backward classes. This was leading to mutual hatred, thereby causing increased conflicts in society. The goal of a welfare state would remain a distant dream until equal opportunity was provided to everyone. Granting reservations based on caste was against the constitutional guarantee of equal opportunity for all, and such a violation of the fundamental right of an individual would be disastrous for the development of society.
2. If reservation at all was to be provided, it should be provided based on the latest census and not the old census of 1931, for then only the actual quantum of backward classes (OBCs) could be properly identified. For this end, a new commission under Article 340(1) should be formed.
3. Caste cannot and should not be the main basis for granting reservations. Other important factors like education, social and economic factors should be prioritised over caste for the grant of reservation. Mr. K.K. Venugopal referred to Articles 38(2) and 46, which instruct the State to reduce or eliminate inequalities that are faced by the weaker sections of the society and the efforts to be taken to promote their educational and economic interests, to draw an inference that the objective of “special provisions” in Article 16 is to reduce the inequalities in income and concluded that the economic factor should be taken into account to determine backward classes and privileged people belonging to the backward classes should be excluded from receiving the benefits of such provisions by introducing the concept called “creamy layer”.
4. It was further argued that implementation of the Mandal Commission Report would amount to rewriting the Constitution at the burial grounds of the right to equality. Moreover, the implementation of the Mandal Commission Report would greatly jeopardize the efficiency of the public administration system and would bring the same to a grinding halt.
5. In relation to the issue of the competent authority to make “provisions” referred to in Article 16(4), Mr. K.K. Venugopal contended that the provisions should only be made by the legislative organ of the State and not by the executive organ. Because the power of legislating should be used cautiously as it has an effect on the fundamental rights of other citizens and there is a greater possibility of abusing such power if given to the executive. If such power is given to the legislative organ, debates and discussions will be held where various opinions are presented by the members of the Parliament before enacting such a provision.
6. It is submitted by the petitioners that the reservations in the promotion are not contemplated in Article 16(4) as it would lead to ‘double reservations’. This will be a result of disinterestedness among candidates of the open category because their merit and performance will be of no value as reserved candidates will benefit from reservation at every successive stage. It will also go against the provision of Article 335, i.e., maintenance of efficiency in administration because a reserved candidate has lesser competition and their efforts will not be up to their optimum potential. Thus, it will also go contrary to one of the fundamental duties to strive towards excellence envisaged in Clause (j) of Article 51A of the Constitution of India.

Contentions of the respondents in the Indra Sawhney case

The main contentions of the respondents can be briefly stated as follows:

1. It was argued that reservation based on the Mandal Commission Report was a necessity to uplift the backward classes of society,  and this upliftment would protect them from social injustices and exploitations of all kinds. Moreover, the Mandal Commission Report was a continuation of the first minority commission (Kaka Kalelkar Commission) report, and the first minority commission report also recommended positive steps to uplift the backward classes of society.
2. The contention of the petitioners that the Mandal Commission Report was based on the old census report of 1931 was argued to be baseless, for only the community-wise population figures were obtained from the 1931 census report. The identification of other backward classes had been made based on the 1961 census report.
3. It was argued that due care and a variety of thorough tests had been used by the Mandal Commission to identify the other backward classes in society that do indeed need positive support for their upliftment.
4. The contention of the petitioners that the Constitution was being rewritten by the Mandal Commission was baseless as the formation of Mandal Commission and its report was formed under Article 340 with the assent and under the authority of the President of India.
5. Mr. Ram Jethmalani, appearing for the State of Bihar, reminded the historical suffering and exploitation faced by the backward castes, referred to as “Shudras”. He argued that the expression “backward classes” refers to those classes who are inadequately represented in the apparatus of the Government and, hence, poverty is not an irrelevant factor in determining backwardness. He states that “the provision for reservation is really a programme of historical compensation. It is neither a measure of economic reform nor a poverty alleviation programme.” Mr. Jethamalani referred to various U.S. judicial decisions and, thus, contended that the competent authority to exercise the power of deciding the criterion in determining backwardness is the State and Courts have power only to review such criterion as to whether it is in conformity to the Constitution of India.
6. It was contended that the reservations shall be provided in favour of a class or group, but cannot be decided based on one particular individual because Article 16(4) states that the reservations are to be provided to the backward classes of citizens, not backward citizens. Therefore, a class as a whole shall be considered and determined whether it is backward, if so reservations are to be given in favour of such class as a whole.
7. It was argued that caste is a relevant factor to be considered for determining backwardness, although Clause (2) of Article 16 prohibited discrimination on the grounds of caste, among other grounds, because the protective discrimination is made not due to the caste but due to the backwardness of that class.
8. It was argued that the issue of reservation in promotion should be decided upon as the O.M. in question provided reservation in direct recruitment, not to the promotions and the constitutional question should not be decided in a vacuum.

Judgement of Indra Sawhney v. Union of India and Ors. (1992)

The nine-judge bench of the Indra Sawhney case

On 16th November 1992 this judgement was delivered and the names of the Hon’ble judges who constituted its constitutional bench are as follows:

1. M.H. Kania, CJ
2. M.N. Venkatachaliah J.
3. S. Ratnavel Pandian J.
4. Dr. T.K. Thommen J. (Dissenting judgement)
5. A.M. Ahmadi J.
6. Kuldip Singh J. (Dissenting judgement)
7. P.B. Sawant J
8. R.M. Sahai J. (Dissenting judgement)
9. B.P. Jeevan Reddy J.

Justice B.P. Jeevan Reddy penned the leading judgement for himself and his brother judges namely M.H. Kania J., M.N. Venkatachaliah J. and A.M. Ahmadi J. Justices S. Ratnavel Pandian and P.B. Sawant wrote concurring opinions. This constituted the majority judgement and the dissenting opinion was given by Justices Dr. T.K. Thommen, Kuldip Singh and R.M. Sahai. So, in a 6:3 majority judgement, the decision of the P.V.Narasimha Rao government to introduce a 27 percent reservation for the SEBCs based on the Mandal Commission Report was upheld subject to certain conditions.

Cases referred by the Bench in Indra Sawhney case

Before delivering a judgement and giving a ratio decidendi to every issue raised in the current case, the Court went through all the previous important judicial decisions given by the Honourable Supreme Court in various cases as well as by the U.S. Supreme Court. The cases which are cited by the Court are as follows:

Judicial decisions by the Supreme Court of India

The following are the landmark judicial decisions taken by the Supreme Court of India with regard to the special provisions for reservations to socially and educationally backward classes provided by the State.

Name of the case cited	Judicial decision given by the Supreme Court of India
State of Madras v. Champakam Dorairajan (1951)	Allotment of seats in Medical and Engineering colleges in the manner prescribed by the Madras Government’s ‘Communal G.O.’ is violative of Articles 15(1) and 29(2) as the allotment is made based community of the students they belong, which found to be discriminative on the basis of caste.This decision led to the insertion of Clause (4) to Article 15 in 1951 by the Constitution (First Amendment) Act.
B. Venkataraman v. State of Tamil Nadu (1951)	Reservation in favour of any backward class of citizens in public services was held unconstitutional by referring to Article 16(4).
M.R. Balaji & Ors. v State of Mysore (1963)	Caste cannot be the sole and dominant criterion for determining backwardness. The provisions for reservations should be reasonable, i.e., should not go contrary to Article 15(1), and below the 50% mark.
T. Devadasan v. Union of India (1964)	The “carry forward rule”, which makes reserved seats to be non-reserved if unfilled due to less reserved candidates in that year and increases the reserved posts by such number in the next year, was held to be unconstitutional as it resulted in more than 50% mark.
R. Chitralekha v. State of Mysore (1964)	Reservation on the grounds of both occupation and income, even if the caste is not taken into consideration, is valid and not violative of Article 15(4).
Minor P. Rajendran v. State of Madras (1968)	Caste is considered to be a class of citizens and reservation solely based on caste is valid if those citizens are socially and educationally backward. The burden of proving that the caste as a whole is not SEBC is on the petitioner.
State of Andhra Pradesh v. U.S.V. Balram (1972)	The Court upheld the identification of SEBCs by the Andhra Pradesh Government based on caste as the Commission made many efforts to identify them.
Janaki Prasad Parimoo v. State of Jammu & Kashmir (1973) and State of Uttar Pradesh v. Pradip Tandon (1975)	Poverty should not be the sole criterion to identify SEBCs as the purpose of Articles 15(4) and 16(4) is to remove social and educational backwardness and not a programme for poverty alleviation.
K.C. Vasant Kumar and Anr. v. State of Karnataka (1985)	“Means test”, i.e., consideration of economic conditions of a class, should be used to identify SEBCs after 2000 so as to ensure that reservations are provided to deserving people.

Judicial decisions by the U.S. Supreme Court

A brief history of the discrimination against Blacks in the U.S.

The Supreme Court in the Indra Sawhney case referred to the state of affairs in the U.S. concerning the present issue, i.e., providing reservations to the backward classes, just to give a glance of how another democracy, which has similar situations as to the backward classes, is dealing. The situations of the people who are considered as Blacks or Negroes in the United States are similar to that of Scheduled Castes, Scheduled Tribes and Backward Classes in India. Blacks in the U.S. were not treated as citizens, but looked down on as slaves and deemed to be the property of their masters who had legal authority over them. However, this problem is less complex in the U.S. when compared to India because the backward classes consist of fewer groups or classes, namely, Blacks, Spanish-speaking people, Indians, Purto Ricano, Aleuts, among other groups, amounting to less population. Whereas, backward classes in India, including Scheduled Castes and Scheduled Tribes, constitute the majority of India’s population. The kind of oppressive practices like untouchability which is practised in India can be seen nowhere, not even in older civilisations.

The problem of Blacks has been prevalent in the South and Midwest of the U.S. for many decades even though the Thirteenth Amendment and the Fourteenth Amendment of the U.S. Constitution prohibited slavery and guaranteed equality respectively. All cases against such practices of slavery are not helpful in eradicating their sufferings.

After World War II, the situation underwent a sea change. The doctrine of “separate but equal”, which was evolved in the case of Plessy v. Ferguson (1986), was overruled in notable cases, namely, Brown v. Board of Education (1954) and Boiling v. Sharpe (1954). After these landmark cases, there have been many judicial decisions which have prohibited the practices which discriminate against blacks in every sphere of daily life. 

Nevertheless, there is no change outside the courts in the practical scenario. For centuries, blacks were backward not just socially, but also economically and educationally due to the discrimination, poverty and shame they suffered. Even today, they are not in a position to compete with their white counterparts who are well-off socially, educationally and economically. The same is the situation with minorities in India.

Four landmark cases of the U.S. Supreme Court

The following are the four landmark judicial decisions taken by the U.S. Supreme Court; those observations are referred to by the Supreme Court of India before giving an issue-wise ratio decidendi in the Indra Sawhney case.

Name of the case cited	Observations by the U.S. Supreme Court
DeFunis v. Charles Odeqaard (1974)	The Court decided to stay the judgement as the issue of admissions policy became moot. However, Justice Douglas observed that reserving seats in a Law School for Blacks and admitting them is not against the Equal Protection Clause as there can be no fixed formula to decide the potential of an applicant just solely based on the test scores.
Regents of the University of California v. Allan Bakke (1978)	Three viewpoints are found in this case regarding special admissions programs reserving a fixed quota i.e., 16 seats in a Medical University. Those are The consideration of the ‘race’ factor is justified to increase the representation of minorities in the medical profession and, hence, is not a violation of Federal or State Constitutions or Title VI of the Civil Rights Act, 1964. Thus, it is valid.Bakke, one who was excluded from consideration in respect of 16 seats, is a victim of reverse discrimination as his exclusion is solely because of his race, he being white. It is observed that it is a violation of Title VI.The consideration of ‘race’ as a factor for admitting minorities for diversity is observed to be valid based on the Fourteenth Amendment, but the concept of fixed quota is invalid.
Fullilove v. Philip M. Klutznick (1980)	The Court rejected the challenge of a provision which mandated the State to allot not less than 10% of federal funds to Minority Business Enterprises (MBEs) for local public works as the aim of the provision is to address the issue of discrimination and rectify the past inequalities by increasing minority participation.
Metro Broadcasting, Inc. v. Federal Communications Commission (1990)	This case is marked as a shift in judicial approach towards racial classifications as it was held to be constitutionally permissible if they serve vital governmental functions even if it does not address the issue of discrimination.

In this way, the Supreme Court of India in the present case referred to the significant judicial decisions in various cases given by the U.S. Supreme Court to analyse how another similar democracy is dealing with this issue of discrimination of backward class and benefits of reservations for them over general candidates.

Ratio decidendi of the Indra Sawhney case

Besides the broad issues mentioned above, this complex case required the answers to various other allied miscellaneous questions too. So, for the ease of understanding of the readers, the ratio part will be assimilated and envisaged in a question (issue) and answer format. Thus, the judgement in this landmark case is portrayed as follows:

Scope and extent of Article 16(1) and Article 16(4) – reservations and constitutional mandate

Issue 1, i.e., whether Article 16(4) is an exception to Article 16(1) and would be exhaustive of the right to reservation to posts in services under the State?, was one of the prime issues that needed to be addressed by the Hon’ble Bench. It was held in this regard that “clause (4) of Article 16 is not an exception to clause (1) of Article 16. It is an instance of classification implicit in and permitted by clause (1)… it must be read along with and in harmony with clause (1).” A cursory reading of clauses (1) and (4) may give us an apparent understanding that clause (4) is the exception to the right to equality of opportunity to all citizens guaranteed under clause (1) of Article 16. This landmark judgement cleared this significant confusion by announcing that these two clauses needed to be studied in harmony with each other and that clause (4) is not an exception clause. This was held by the majority in paras 57, 121(2)(a) of the judgement.

Thus, this judgement affirmed the obiter dicta in State of Kerala v. N.M. Thomas (1975), where the majority rejected the argument that Article 16(4) is an exception to Article 16(1) and stated that clause (4) of both Article 15 and 16 are instructions to the State to make positive efforts to enforce the principle of equality which is laid down in Article 14, 15 and 16.

Coming to the extent of Article 16(4), the expression “special provisions” not only implies reservations but also includes preferences, concessions and exemptions. The Supreme Court considered the reservations to be the highest form of the special provision, whereas preferences, concessions, exemptions, and relaxations are the lesser forms. The Court observed that the provision made by the State can extend to preferences, concessions and exemptions under Clause (4) of Article 16 if the State thinks that its purpose is to facilitate the proper and complete effectiveness of the reservation.

Definite parameters for the term “backward class of citizens”

Laying down the boundaries of the term “backward class of citizens” was another achievement of the Hon’ble Bench in the Indra Sawhney case. This becomes more significant for two reasons, namely- it limits the identification criteria applicable in identifying the same and it differs from the phrase “socially and educationally backward classes of citizens” enshrined in the subsequently introduced Article 15(4) [introduced vide the Constitution (First) Amendment Act, 1951] as compared to the phrase “backward classes of citizens” enshrined in Article 16(4).

The Court referred to the following in order to define the term “backward class of citizens”.

1. Various observations of the judges in landmark cases of the Supreme Court of India.
2. Various words such as class, castes, communities, etc. are used in various legislations or executive orders before the commencement of the Constitution.
3. The debates of the Constituent Assembly, especially the speeches of Dr. B.R. Ambedkar, however, the Court noted that this consideration is just for reference purposes and not conclusive.
4. The effects of the caste system, which is evidently practised in Hindu society, on other religions, like Christians, Muslims, etc., even though the non-Hindu religions do not recognise caste.
5. The impact of the caste system even today refers to the instances of his identity, endogamy, irrespective of a person’s higher studies, going abroad, earning more money or being employed in a higher post or office.
6. The interrelationship and nexus among caste, occupation and poverty in both urban and rural areas.

In this context, the majority held that from the word ‘class’ the following could not be concluded, that:

1. “class” was antithetical to “caste”, or
2. a caste could not be a class, or
3. a caste as such could never be taken as a backward class of citizens.

It was further held that the word ‘class’ in Article 16(4) meant ‘social class’ and not ‘Marxist class’. The Constitutional makers were prudent enough to not use the term ‘caste’ in Section 16(4). Thus, the majority Bench decided that a caste could be defined as a social class — ‘a socially and occupationally homogeneous class’. In this context, the Supreme Court observed that “we are not saying it (caste system) ought to be encouraged. It should not be. It must be eradicated. That is the ideal – the goal. But any programme towards betterment of these sections-classes of society and any programme designed to eradicate this evil must recognise this ground reality and attune its programme accordingly. Merely burying our heads in the sand – Ostrich-like – wouldn’t help. One cannot fight his enemy without recognizing him.”

For further references in this regard, one may see paras 80, 81, 82, 121(3)(a) and 577 of the original judgement.

Not necessary to be both socially and educationally backward

With regard to the question of whether the backward classes are both socially and educationally backward, the Supreme Court firmly stated that the ‘class’ mentioned in Article 16(4) is a social class by looking at the context or purpose of the provision. If we look at the pre-independence era, only people belonging to upper castes were engaged in administrative activities and people belonging to Scheduled Castes, Scheduled Tribes, and other similar backward classes along with Muslims and Christians had no place in such activities. This imbalance is sought to be removed by reserving a few posts in public services for people belonging to the backward class, thus, leading to enactment of the said provision. The said provision does not have any qualifying words to ensure it is an inclusive provision unlike Article 15(4) because of which the word “backward classes” includes Scheduled Tribes, Scheduled Castes and all other backward classes of citizens including the socially and educationally backward classes. This made a way to make Article 16(4) much wider than Article 15(4) so that whoever does not fall under the “socially and educationally backward class” in the later provision may belong to the “backward class” as contemplated in the former provision. Because of this reasoning, the Court refused to accept that the ‘class’ in Article 16(4) shall qualify to be backward both socially and educationally.

Classification of classes as backward class and more backward class

The Supreme Court decided that there is no constitutional or legal prohibition on the State to classify a particular class as backward and more backward and, hence, such classification will not be invalid if done reasonably. The reasoning behind allowing such classification by the Court is similar to that of a creamy layer. That is, among various backward classes, a few classes, for instance, goldsmiths, are advanced when compared with other backward classes. If everyone is provided with the same reservations, the more backward classes may suffer and less backward classes would acquire the benefits of such reservations. To prevent this injustice, the Court permitted the Commission and the State to decide upon the matter as to sub-classification of classes into backward classes and more backward classes. If it is an arbitrary classification, the same can be challenged in the court requiring its intervention in the matter.

For example in this regard, refer to Para 92A of the original judgement.

The criteria to identify the backward class of citizens

Before giving its view on the criteria to identify the backward classes of citizens, the Supreme Court made it clear that the said task is on the Commission or Authority which is appointed for such purpose. However, the Court also clarified beforehand that if such authority uses caste among Hindus and occupation among non-Hindus as a basis to identify the backward classes, it shall not for this reason be unconstitutional or unlawful. If a caste as a whole is backward, it can be a basis to determine the backwardness of a class. Therefore, there is no uniform and standard procedure or method to be adopted. In the end, what the Court requires is that the procedure adopted by the authority concerned for such a purpose should adopt a fair and adequate procedure and the entire population should be covered. The Supreme Court also held that the issue of wrong identification or no identification of a particular caste or class by the authority concerned would be heard in a court of law.

The criteria used to identify the backward class of citizens can be better understood when studied under the following heads:

Class-caste nexus

The majority of the Indra Sawhney Bench was of the opinion that “class” in Article 16(4) meant social class and they justified the same by stating that the classification attempted by Article 16(4) was not on the basis of caste but on the ground that the caste is found to be a backward class and inadequately represented in the public administration system. Thus, the majority agreed with the Mandal Commission that the social backwardness was indeed because of the educational and economic backwardness of the caste and that such social backwardness was attributable to the caste. In other words, “class” under Article 16(4) could be read as “caste.”

By this, the Court did not obligate the State to consider caste to determine the backwardness of a class. The Court just stated that considering caste as a factor is valid and the State is allowed to do so if it is in its opinion that the caste is backward as a whole. To the question of whether an occupation and income without any reference as to the caste be a criteria to determine the backwardness of a class, the Court answered in the affirmative. The Court observed that “Indeed, this test in the Indian context is broadly the same as the one adopted by the Mandal Commission. While answering Question 3(b), we said that identification of backward classes can be done with reference to castes along with other occupational groups, communities and classes. We did not say that that is the only permissible method. Indeed, there may be some groups or classes in whose case caste may not be relevant to all. For example, agricultural labourers, Rickshaw pullers/drivers, street hawkers etc. may well qualify for being designated as Backward Classes.”

All this led to the laying down of the two-fold test by which reservation can be provided based on caste. In other words, if the following two criteria are met, then caste can be the dominant factor in determining backward classes for the purpose of reservations as per the Mandal Commission Report. The tests are as follows:

• The test of backwardness.
• The test of inadequate representation.

The justification that was given for stating that caste can be the dominant factor in the determination of the backward class is that Article 16(4) requires identification and not classification and thus any factor that was causing social and educational backwardness of a class of citizens can be the basis for identification. So, if caste is made the dominant basis for identifying backward classes, then Article 16(4) is not disturbed. In addition to this, the Court also held that the circumstances of the people of a particular caste need not be similar to that of the circumstances of Scheduled Castes and Scheduled Tribes, unlike Article 15(4). For further references in this regard paras 83, 83A, 121(3)(b), 206, 231, 366 and 412 of the original judgement may be referred to.

The test of inadequate representation

The State may provide reservations to those who are backwards as well as inadequately represented in public services. Whether a class is adequately represented or not depends upon the subjective satisfaction or the opinion of the State, which can be formed based on the materials it has or appoint a Commission to get more material for the purpose of having knowledge of the current scenario before drawing an opinion. The said opinion of the State, i.e., executive, can be challenged and the Court can exercise judicial review, which was ruled by the Supreme Court in the case of Barium Chemicals Ltd. & Anr. v. Company Law Board & Ors. (1967).

Economic criteria

The majority of the Bench refused to recognise economic criteria as the sole determining factor of backwardness. That is the reason the ten percent reservation of economically backward sections was rejected by the majority Bench. However, the economic criteria can be an additional factor to categorise a class as a backward class along with the consideration of social backwardness.

The “Creamy Layer” exclusionary principle

The “Creamy Layer” exclusionary principle is another feat of the majority Bench of Indra Sawhney.  By virtue of this principle, the advanced sections of the OBCs were excluded from the benefits of the reservation. The justification that was provided in this regard is that when some members of the OBCs have advanced significantly socially (which in the context necessarily means economically and may also mean educationally), they would be misfits in the class as then the connecting thread between them and the remaining class snaps. In other words, a person belonging to a backward class on whom reservations are provided to uplift them is already socially, educationally and economically forward and will not be qualified to say that he fits to be in such class which is categorised as having person backwards in various aspects because one of the characteristic feature of ‘class’ is having common traits among a group of persons. If people, who belong to a backward class but are advanced much, are excluded from ‘the backward class’, then such a ‘class’ will be a compact one and the truly backward people will enjoy the fruits of reservations.

But as a corollary to this “Creamy Layer” exclusionary principle came the dire possibility of taking away with one hand what was given by the other. So, there was a necessity to have a drawing line to exclude the creamy layer from the benefits of reservation without jeopardising the non-creamy layers. Hence, to this end, a duty was imposed on the Centre and the states to evolve the said basis for the exclusion of the creamy layer within a time period of four months and six months, respectively, and to subsequently implement the same. To follow this order, the government formed the Ram Nandan Prasad Committee to evolve the required criteria for the exclusion of the creamy layer. It sought to exclude the following: 

“i. Persons holding constitutional posts.

ii. Class I officers of the All India Centre and Slate services.

iii. If both parents are Class II officers, children are not eligible.

iv. Those with a gross annual income of Rs. 1 lakh and above in the non-governmental sector.

v. Property holders based on the extent of land holdings.”

Nature and extent of the reservations permissible

The Supreme Court dealt with the following issues. 

1. Whether the 50% rule is mandatory to be followed by the State in providing reservations to the backward classes?
2. If the 50% rule can be breached by the State, under what circumstances?
3. Would the 50% rule be applied to all forms of reservations? 

The Court referred to observations of a few Justices in the landmark cases like Balaji, Devadasan, Thomas, Vasant Kumar and Karamchari Sangh before answering the said question.

The 50% rule and exceptional circumstances

The Supreme Court clearly decided that the reservations of seats in public services in favour of backward classes of citizens should not exceed 50%. In this regard, the Court also distinguished between adequate and proportionate representation and clarified that Article 16(4) talks about adequate representation. Through the principle of adequate representation, the State can able to decide such classes, whose members are less in public and administrative services or completely outside the public services, whereas the principle of proportionate representation is mostly used for the purpose of Articles 330 and 332 of the Constitution of India, which deals with reservation of seats in the Lok Sabha and State Legislative Assemblies respectively in favour of Scheduled Tribes and Scheduled Castes as per their respective population.

In addition to this, this rule is applied only to reservations, not to other forms like exemptions, concessions, etc. The rule of not breaching 50% shall also be applicable to the ‘carry forward rule’.

However, the Court also allowed the State to transgress the set-out limit in exceptional circumstances, which are easily predicted in a diverse society like India. Nevertheless, the State shall cautiously transgress the 50% rule. And, the year will be considered as a unit for applying 50% rule, not the total strength of the cadre because if the case is the latter one, the open category candidates will suffer a lot especially when there is a shortage of applicants from backward classes.

The Court also clarified that this is not a communal reservation and the person belonging to a backward class could be able to secure a seat without any help of the reservation conferred on him by the State will not be considered against the quota reserved for such class, thus, he will be deemed to be open category candidate.

Vertical and horizontal reservations

There are two types of reservations, namely:

1. Vertical reservation
2. Horizontal reservation

Horizontal reservations are provided by the State because of which equal opportunity is provided not only to the backward classes but also to other categories of disadvantaged citizens such as women, veterans, transgender persons, and persons who are differently disabled. These reservations are also called “inter-locking reservations”, which means that they will cut across vertical reservations. The Court provided an example for better understanding. It stated, “Suppose 3% of the vacancies are reserved in favour of physically handicapped persons… if he belongs to S.C. category he will be placed in that quota by making necessary adjustments.”

Distinguish between vertical and horizontal reservations

Basis of differentiation	Vertical reservation	Horizontal reservation
Meaning	When a specific number of seats in services are specially reserved, it is called vertical reservations	When no special reservation is made, but a preference is made in favour of certain categories of disadvantaged citizens such as women, veterans, transgender persons, and persons who are differently disabled, it is called horizontal reservations
Provided under which provision	Article 16(4) of the Constitution of India	Article 16(1) of the Constitution of India
Example	Reservations provided to Scheduled Castes, Scheduled Tribes and Other Backward Classes	Reservations for women, differently-abled persons, etc.

Reservations in promotion

After looking into the contentions made by both parties to the petition, the Court decided to give a final decision on the issue of reservation in promotion. The Court in General Manager, Southern Railway v. Rangachari (1961) decided that reservation would be allowed if the ground for promotion is merit to ensure representation of backward-class candidates in higher stages of public services as well. However, if the ground is anything other than merit such as seniority, then there will be no reservations provided. The Supreme Court in the present case agreed with the reasoning given by the petitioners that such reservation may result in disinterest among reserved candidates as there is lesser competition because they should only compete among themselves, not with every candidate. The Court answered the question of reservation in promotion by reading Article 16(4) along with Article 335 of the Constitution of India, which deals with Claims of Scheduled Castes and Scheduled Tribes to services and posts and held that there shall be no reservations in case of promotions as it affects the efficiency of the administration.

Later, in 1995, Clause (4A) was added to Article 16 by way of the Constitution (Seventy-seventh Amendment) Act, 1995. To know more about this, click here.

No reservations in technical posts

The Supreme Court advised the State by referring to Article 335 to not make reservations in certain technical posts in which duties entrusted are to be performed in the interest of the public at large and, therefore, require a high level of competency, efficiency and skill to perform the functions attached to the post. The Court provided a few examples for technical posts. Those are

1. Defence Services including all technical posts therein but excluding civil posts. 
2. All technical posts in establishments engaged in Research and Development including those connected with atomic energy and space and establishments engaged in the production of defence equipment; 
3. Teaching posts of Professors – and above, if any. 
4. Posts in super specialities in Medicine, engineering and other scientific and technical subjects.
5. Posts of pilots (and co-pilots) in Indian Airlines and Air India. 

The above list is just illustrative and not exhaustive. However, the Court explicitly stated that “it is advisable”, thus, it is not a compulsion imposed on the State to be bound to comply with the same. The Court clarified by stating that the Government of India has the authority to decide on the matter of not making any reservations.

Other economically backward sections of the people

The issue of a 10% quota in favour of other economically backward sections of the people who are not covered in any governmental schemes mentioned in O.M., i.e., the open category candidates, is raised before the Court. The Court held that this quota is constitutionally impermissible.

Brief principles with respect to the extent of the reservations

The following principles were evolved in this landmark case regarding the nature and extent of reservations permissible under the Indian Constitution:

1. It was held that there was no legal or constitutional bar to the sub-classification of OBCs. Hence, if on the basis of the degrees of social backwardness, classification is done, then separate quotas of reservations would have to be kept for each class of backward classes.
2. Reservations based on the dominant identifying factor of caste are permissible but should be restricted to initial appointments only and not to subsequent promotions. However, without compromising the efficiency of administration, the States may offer donations, exemptions, concessions, etc. to enable the OBCs to compete for the advancement of their career.
3. The rule of reservations cannot be called anti-meritarian but as and when necessary there can be an exclusion of this rule to certain posts and services (for example- defense services).
4. The reservation granted under Article 16(4) should not cross fifty percent. Only in exceptional circumstances can this strict rule be transgressed, but only when an extraordinary or special case is made out and only with the application of extreme caution.
5. While applying the fifty percent rule, a year is to be considered as a unit and not the entire strength of the cadre or service. Moreover, the “carry forward rule” is not per se unconstitutional, but even when such a rule is applied for unfilled reserved vacancies, the fifty percent ceiling limit should not be breached.

Legislative and executive power to make reservation provisions and judicial power to review them

The Supreme Court referred to the definition of “State” in Article 12, where it evidently conveyed that not just the Central or State Government, but also local and other authorities being under the control of the Central Government are deemed to be State, and the definition of “law” in Article 13(3)(a), where the words like ‘order’, ‘bye-law’, ‘rule’ and ‘regulation’ appears, to answer the issue of the competent authority to legislate on the reservation provisions. By such references, the Court decided, agreeing with the decision in the Balaji case, that the reservation provisions can be made by even executive authorities, apart from the Central and State Governments. The reasoning given by the Court is that it is hardly possible to make provisions which suit every institution and service only by the legislative bodies. Therefore, it is fair to allow the executive and local and other authorities to decide on the matters of such provisions suitable to their circumstances.

Judicial review by the court

One of the issues is whether the judicial review over matters relating to Articles 15(4) and 16(4) is limited or restricted. The Court clarified that the answer to this question will depend upon the nature of various aspects, namely, subject matter, rights affected, legal and constitutional provisions applicable, etc. Because the political executive is elected by the majority of the people, the Court would presume that the State knew the state of affairs and will of the people and confer due weightage. The Court, thus, concluded stating “More than this, it is neither possible nor desirable to say. It is not necessary to answer the question as framed.”

Permanent statutory body to take up complaints

The power to decide castes or classes to whom reservations will be conferred is on the State. Naturally, there will be complaints as to such a decision by the State. With the same anticipation, the Court desired to have a permanent statutory body comprising experts, whether official or non-official, that can be constituted under Article 16(4) read with Article 340 of the Constitution to take up complaints from the public about whether the inclusion was wrong or omitted and to redress such grievances. The Court observed that the body shall have the following powers.

1. It shall be empowered to hear the complaints, make enquiries and issue orders as it thinks fit.
2. The suggestion or opinion of the body shall be binding on the government. If not accepted, the government must provide the reasons for the same.
3. The government must first ask the body for its recommendation, before including any caste or class.

Therefore, the Court directed to constitute the body at both central and state levels on immediate effect i.e., within four months. The procedure to be followed will be decided by the Government of India and State Governments concerned

Dissenting opinion in the case of Indra Sawhney v. Union of India and Ors. (1992)

The dissenting opinion in the Indra Sawhney case was given by Justices Dr. T.K. Thommen, Kuldip Singh and R.M. Sahai. The significant portions of the dissenting opinions in this landmark case are laid down in a simple manner as follows:

• The minority opinion was that all types of reservations came under the purview of Article 16(4) and that no reservation was permissible under Article 16(1). This was against the majority view, which believed that Article 16(4) included within its parameters reservation for backward classes only and not the very concept of reservations.
• Justices Thommen, Kuldip Singh, and R.M. Sahai observed that “class” under Article 16(4) could not be read as “caste”. In other words, they refused to consider caste to be the dominant identifying parameter for backwardness. 
• There was a radical difference of opinion between the majority and the minority with regard to the identification of a class under Article 16(4). The minority was of the opinion that inadequate representation should be the only parameter for the identification of a class under Article 16(4). In other words, it can be said that the minority was of the view that either educational or economic backwardness was leading to social backwardness and that such social backwardness did not emanate primarily because of caste. This can be said to be a classic case of ‘which-came-first, the-chicken-or-the-egg’ syndrome, that is, which caused social backwardness first- caste factor or poor education and economic factors?
• Justice Kuldeep Singh’s minority opinion was based on the reasoning that it was poverty that envelopes a class in backwardness and this “culprit cause” of poverty was the invariable reason leading to socio-economic and educational backwardness. In other words, he opined that economic criteria should determine backwardness.
• Justice Pandian disagreed with the majority opinion on the sub-classification of OBCs based on the degree of social backwardness and keeping separate quotas of reservations for the sub-classes of OBCs.

Brief summary of the Indra Sawhney judgement

The landmark Indra Sawhney judgement is a lengthy piece of judgement and for the ease of the readers, the crux of the judgement is summarised as follows:

1. Under Article 16(4), backward classes of citizens can be identified on the basis of caste and not just on an economic basis. Economic criteria cannot be the sole identifying factor for backwardness under Article 16(4). Also, in order to prevent the abuse of power, the identifying examination to determine backwardness should be an objective one and not a subjective one.
   1. Article 16(4) is an independent clause and not an exception to Article 16(1).
   2. Article 16(4) is exhaustive in nature regarding reservations for backward classes only.
   3. Article 16(1) permits reasonable classification and reservation for other classes.
   4. The socially and educationally backward classes under Article 15(4) are different from the backward classes under Article 16(4).
   5. Article 16(4) permits the sub-classification of backward classes into backward and more backward classes.
   6. Creamy layers (socially advanced people) can be and must be excluded from backward classes for the purposes of reservation under Article 16(4).
   7. Reservations shall not exceed 50 percent and even for the purpose of application of the carry forward rule (by which unfulfilled vacancies are filled in the upcoming year), the 50 percent ceiling should not be breached.
   8. There shall be no reservation in promotions.

Other cases after the Indra Sawhney judgement vis-a-vis the development of reservation jurisprudence based on Indra Sawhney

The Indra Sawhney judgement has been substantially disliked by political opportunists and a lot of water has flown down the riverbed of reservation jurisprudence since this landmark case law was pronounced in 1992. Lots of subsequent cases have taken place and constitutional amendments to counter judicial pragmatism have been brought in – all of them bearing more or less direct connections with this precedent case law. The significance of this landmark case law is etched in all these subsequent case laws and constitutional amendments. For a better understanding of the same, the significant post-Indra Sawhney cases and constitutional amendments are briefly portrayed as per their timeline in a tabular and analytical form below to the extent they are connected with the Indra Sawhney case and interconnected with each other:

Sl.No	Case Laws	Judgement
1.	R. K. Sabharwal v. State of Punjab (1995)	It was held by the Supreme Court that the reservation should be determined on the basis of the number of posts in the cadre and not on the basis of vacancies.The basic principle of post-based reservation is that the number of posts filled by reservation for any category in a cadre should be equal to the quota prescribed for that category.
The 77th Constitutional (Amendment) Act, 1995 (w.e.f. 17.06.1995)This Amendment was passed to nullify the reservation ban of the Indra Sawhney judgement on promotions of reserved category people.By this Amendment, Article 16(4A) was inserted, which gave the government constitutional sanction to give reservation in promotions to SCs/STs as long as the SCs/STs, in the opinion of the state, are insufficiently represented in the services of the state.
2.	Ajit Singh v. State of Punjab (1996)	The ‘catch-up rule’ was advocated in this judgement, thereby reiterating Union of India v. Virpal Singh Chauhan (1995).This rule became necessary for the post-constitutional recognition of reservations in promotions.By the virtue of this rule, a general candidate who was promoted after SC/ST candidates because of reservation in promotions for SC/ST, will regain his seniority back if he was senior in the lower cadre.
3.	Ajit Singh v. State of Punjab (1999)	It was held that Article 16(4) and (4A) are only enabling provisions.The rule of doing away with inadequate representation under Article 16(4) must not adversely affect the efficiency in administration as envisaged under Article 335 of the Indian constitution.In this case, a clarification is requested as to the validity of the decision in Ajit Singh’s (1996) case as confusion is created due to the deviation made in Jagdish Lal vs. State of Haryana (1997).
4.	Indra Sawhney v. Union of India (2000)	The Supreme Court said that it was not acceptable that once a backward class would mean always a backward class.It was further said that refusal to exclude the creamy layer from the reservation is a blatant violation of Articles 14, 16(1) and 16(4).The principle of efficiency of administration as envisaged under Article 335 of the Constitution was stressed upon.
The 81st Constitutional (Amendment) Act, 2000  (w.e.f. 09.06.2000)This constitutional amendment was ushered in to facilitate reservations in promotions and for this end, Article 16(4B) was inserted.Through Article 16(4B), the ‘carry-forward rule’ was introduced by virtue of which unfulfilled vacancies were carried forward to subsequent years and were treated as a separate class and this permitted the breach of the 50 percent reservation limit of the Indra Sawhney.Significantly enough, though the unfulfilled vacancies were made a separate class vide Article 16(4B) to breach the 50 percent ceiling limit, this clause also ended up giving constitutional status to the 50 percent ceiling limit prescribed in Indra Sawhney.
The 82nd Constitutional (Amendment) Act, 2000  (w.e.f. 08.09.2000)In the same year of 2000, another constitutional amendment was brought in and this time a proviso was added to Article 335 of the Constitution.By virtue of this proviso, the government became empowered to relax and lower qualifying marks and standards of evaluation for the reservation of SCs/STs in promotion notwithstanding the efficiency of administration requirements mandated by Article 335. Thus, all Supreme Court rulings like the judgement in Vinod Kumar v. Union of India (1996) stressing on non-relaxation of qualifying marks for reservation in promotion to maintain administrative efficiency was undone with this constitutional amendment.
The 85th Constitutional (Amendment) Act, 2005  (w.e.f. 08.09.2000)By this constitutional amendment, Article 16(4A) was amended and the words “consequential seniority” were inserted into it. By virtue of this rule, the reserved candidates who have enjoyed reservation in promotion retain seniority over the general category candidates in subsequent promotions.This nullified the catch-up rule propounded in Union of India v. Virpal Singh Chauhan (1995) and Arijit Singh v. State of Punjab (1996).
5.	M. Nagaraj v. Union of India (2006)	The 77th, 81st, 82nd, and 85th Constitutional Amendments were upheld in this landmark case.The theory of guided power containing three controlling factors was laid down by which the Court would strike down any excessive reservation policies that were leading to reverse discrimination and that overall administrative efficiency must be maintained.The three controlling factors envisaged by the five-judge Bench of the M. Nagaraj case to prevent excess reservation are as follows:The 50 percent ceiling limit must not be breached (quantitative factor).There must be a creamy layer exclusion for reservation in promotion (qualitative factor).The state must show by collecting due data that there is indeed backwardness and inadequate representation.
6.	Jarnail Singh v. Lachhmi Narain Gupta (2018)	It was held that states need not collect quantifiable data as per M.Nagaraj case to show backwardness as that would violate the precedence of the Indra Sawhney case but the inadequacy of representation must be shown by quantifiable data.The creamy layer exclusion principle for reservation in promotions for SC/Sts was upheld by the five-judge Bench in this case.
7.	B.K.Pavitra v. Union of India (2019)- II	The consequential seniority principle introduced by the 2018 Karnataka Reservation Act was upheld overturning B.K.Pavitra I because the State of Karnataka was successful in showing quantitatively by data that indeed SC/STs were inadequately represented and that their reservations for promotions would not prejudice administrative efficiency.It was further held that the creamy layer exclusion principle of the Jarnail Singh case was for reservation in promotions and not for consequential seniority.
8.	Dr. Jaishri Laxmanrao Patil v. The Chief Minister (2021)(The Maratha Reservation case)	It was held unanimously that there was no need to visit the ratio laid down by the landmark Indra Sawhney case.The 50 percent ceiling limit under Article 16(4) must not be breached unless there are extraordinary circumstances as envisaged in the Indra Sawhney case.
The 103rd Constitutional (Amendment) Act, 2019  (w.e.f. 14.01.2019)By virtue of this constitutional amendment, Clause (6) was inserted into both Articles 15 and 16. Clause (6) of Article 15 provides reservations to economically weaker sections for admission to educational institutions, whether public or private, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of Article 30. The amendment aims to provide reservations to those who do not fall in Article 15(5) and 15(5) i.e., effectively, SCs, STs and OBCs.Clause (6) of Article 16 enables the State to make any provision like reservation of posts in public services in favour of economically weaker sections of citizens, shortly termed as “EWS”. However, the quota fixed shall be subjected to the limit of 10% in addition to the existing reservation i.e., 50%. This clause is an enabling provision.
9.	Janhit Abhiyan v. Union of India (2022)	The Supreme Court held that the 103rd Constitution Amendment, which permits the State to make special provisions in relation to admission to private unaided educational institutions in favour of economically weaker sections (EWS) of citizens candidates. is not a violation of the basic structure of the Constitution.

Conclusion

After studying the case analysis of the landmark Indra Sawhney case in detail, it is needless to say that reservation is an extremely sensitive issue and despite sincere attempts by this article, the complexities of the same cannot be untangled into simpler versions. As seen in the above discussions, the canvas of reservation issues based on caste has witnessed a lot of developments in the last three decades. From the violent protest days against Mandal Commission implementation thirty years ago, the questions still remain- how far have the backward people progressed todate? How long do they still need reservations? To what extent and how long should reservations in promotions continue besides initial appointments based on reservations? The National Commission for Backward Classes (NCBC) has now constitutional status by virtue of The Constitution (One Hundred and Second Amendment) Act, 2018. Various government departments and NGOs are working tirelessly to uplift the backward classes of people. But it appears that the above-unanswered questions are willfully kept unanswered. To date, where our constitutional values have evolved for the better in general, there are many villages in India where people will ask you your caste before interacting with you, there are still multiple incidents of caste-based violence where the backward classes have been beaten black and blue for their castes. Three decades of Indra Sawhney and still the story of two Indias continues. On one side there is judicial pragmatism and on the other side there is political opportunism; on one side there are alleged reverse discrimination victims having anti-reservation sentiments, and on the other side Dalit beatings continue. Is the social stigma of casteism too deeply ingrained in India to ever get rid of caste-based reservations? Tomorrow’s young India can indeed be the example where people get recognised strictly based on their work and not caste. Let this dream not be turned into a utilitarian one by political opportunism.

References

• https://www.scobserver.in/reports/consequential-seniority-plain-english-summary-of-the-judgment-in-b-k-pavitra-v-union-of-india-ii/ 
• http://www.ncbc.nic.in/User_Panel/UserView.aspx?TypeID=1161 
• http://www.ncbc.nic.in/User_Panel/UserView.aspx?TypeID=1114 
• https://www.barandbench.com/columns/reservation-in-promotion-the-ball-is-again-in-the-governments-court 

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