This article is written by Satyaki Deb, an LL.M. (IP) candidate from the Rajiv Gandhi School of Intellectual Property Law, IIT Kharagpur. 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.

It has been published by Rachit Garg.

Introduction

The nine-judge bench case of Indra Sawhney v. Union of India (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 percent 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 analyse the same at the altar of transformative constitutionalism, succeeding landmark Supreme Court cases on reservation and the present day’s socio-political stage.

Brief history and facts of Indra Sawhney v. Union of India

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.

The First Backwards Class Commission, also 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. In January 1979, the Janata Dal, headed by the then Prime Minister Moraji Desai, formed the Second Backwards Class Commission (Mandal Commission), which submitted its report in December 1980 to recommend steps for the upliftment of the SEBCs. 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.

But, 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 Memoranda (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, Globalisation) 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 

To the layman, the only issue before the Supreme Court was whether the Mandal Commission Report was valid or not. But in reality, the Apex Court was tasked with determining various complex issues that had far-reaching implications, and the broad 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).
• Definite parameters for the term “backward class of citizens”.
• The criteria to identify the backward class of citizens.
• Nature and extent of the reservations permissible.

Contentions raised by both parties in Indra Sawhney v. Union of India

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.
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 jeopardise the efficiency of the public administration system and would bring the same to a grinding halt.

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 had 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 the Mandal Commission and its report was formed under Article 340 with the assent and under the authority of the President of India.

Judgement of Indra Sawhney v. Union of India

The nine-judge bench of the Indra Sawhney case

On 16th November 1992 this judgement was delivered and the names of the justices 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.

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

This 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 overturned the decision in T. Devadasan v. India (1962) and affirmed the obiter dicta in State of Kerala v. N.M. Thomas (1975).

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 Constitution (First) Amendment Act, 1951] as compared to the phrase “backward classes of citizens” enshrined in Article 16(4).

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 Article16(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’. For further references in this regard, one may see paras 80, 81, 82, 121(3)(a) and 577 of the original judgement.

The criteria to identify the backward class of citizens

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 Section 16(4) meant social class and they justified the same by stating that the classification attempted by Section 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 Section 16(4) could be read as “caste.”

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. 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.

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.

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.

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 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 for subsequent promotions. Although, 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- defence 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.

Dissenting opinion in the case of Indra Sawhney v. Union of India

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 was not emanated 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.
2. Article 16(4) is an independent clause and not an exception to Article 16(1).
3. Article 16(4) is exhaustive in nature regarding reservations for backward classes only.
4. Article 16(1) permits reasonable classification and reservation for other classes.
5. The socially and educationally backward classes under Article 15(4) are different from the backward classes under Article 16(4).
6. Article 16(4) permits the sub-classification of backward classes into backward and more backward classes.
7. Creamy layers (socially advanced people) can be and must be excluded from backward classes for the purposes of reservation under Article 16(4).
8. 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.
9. There shall be no reservation in promotions.

Related post-Indra Sawhney scenario cases vis-a-vis the development of the 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.	Arijit 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 a necessity 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.	Arijit 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.
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 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.

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 till date? 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. Till 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

1. https://www.scobserver.in/reports/consequential-seniority-plain-english-summary-of-the-judgment-in-b-k-pavitra-v-union-of-india-ii/ 
2. http://www.ncbc.nic.in/User_Panel/UserView.aspx?TypeID=1161 
3. http://www.ncbc.nic.in/User_Panel/UserView.aspx?TypeID=1114 
4. https://www.scconline.com/blog/post/tag/indira-sawhney/ 
5. https://www.barandbench.com/columns/reservation-in-promotion-the-ball-is-again-in-the-governments-court