Is Article 16 (4) an exception of article 16 (1) or not

Indra Sawhney and Others v. Union of India

Bench: Justice M Kania, JusticeM Venkatachaliah, JusticeS R Pandian, JusticeT Ahmadi, JusticeK Singh, JusticeP Sawant, JusticeR Sahai and JusticeB J Reddy

Issue:

• The classification in the Office Memorandum was based on the caste or economic basis?
• Is Article 16 (4) an exception of article 16 (1) or not?
• Are the backward classes in Article 16 (4) similiarto SEBCS in Article 15 (4) or not?
• Is making any provision under Article 16(4) for reservation “by the state” have to be made by the legislatures of a state or by law made by parliament?
• Is distinguishing between backward and more backward classes, right?

Facts:

• In 1979, the Government of Sri Morarji Desai appointed a commission i.e. Second Backward Classes Commission (Mandal Commission)under Article 340 of the Constitution to identify and study the Socially and Economically Backward Classes(SEBC)in India and suggests chemes and programs for their development.
• The commission submitted its report in December 1980 and said that there are 3743 classes as SBEC and asked the government to reserve 27% seats in government jobs.
• After that due to internal disturbance, the government collapsed and was not able to implement the recommendation of Mandal Commission. The Congress party headed by PM Smt. Indira Gandhi came to be the new elected government but, even the Congress government did not execute the recommendation of Mandal Commission till 1989.
• In 1989 theJantaparty again came to power and issued an Office Memorandumin order to execute the commission report. In the meantime, the passing of commissions reportstirred the nation into unrest and an oppositionto reservation resulted in unrest for three months that resulted in loss of life and property.
• In the October of 1990 a writ petition was filed by Supreme Court Bar Association contesting the validity of Office of Memorandum. A five-judge benchwas appointed to the petition until it was transferred.
• Again, the government of Janta party was fallen and the Congress government headed by P.V. Narasimha Rao issued an Office Memorandum in September of 1991 and made two changes i.e.,

1. By introducing an economic criterion to grant reservation within 27% of Government Jobsand
2. Reserved 10% vacancies for SEBC.

• The case was referred to a 9 Judge bench who then issued a notice to the government. Asking criteria for 27% reservation. But the Government. of India failed to explain the criteria

Argument raised by Appellant:

• Article 16(4) is not an exception to 16(1),it only shapes out a section for the backward class for whom the reservations might be kept. The clause is exhaustive for backward class of citizens and it is not exhaustive of all the reservations in the services that may be kept. The reservations for other classes can be kept in clause (1).
• The backward class referred are the socially backward class of citizens who are educationally and economically backwardness due to their social backwardness. A caste by itself may constitute a class. The weaker sections in Article 46 comprise a genus and the backward class of citizens mentioned in Article 16(4) arethe species to that genus. No reservation based just on economic criteria under any article.
• If the reservation exceeds under both the articles exceeds 50% it must be due to some reason and that reason must be defined.
• Article 16(4) allows to classify groups in backward and more backward classes but it must be on the ground of economic background. The reservations in the services under Article 16(4) can be made by an executive order.
• There is no need of judicial review when reservations under Article 16(4) is in question. The judicial review is available only in case of identification of the backward classes and unreasonable percentage for them.

Argument raised by Respondent:

• The petitioner contended that this report was based on the census report of 1931 is wrong as the Report states that it does not have even a remote link with the identification of OBCs. But it is only on the basis of the countrywide socio-educational field survey and the census report of 1961 for the identification.
• The Commission did notignore the factual position and found fault in relying on 1931 census and was made clear by the commission in its report.
• The commission only used the census report of 1931 to gain an idea of the communitywise population.
• The Commission after thorough consideration of the social, educational and economic backwardness of various classes had submitted its Report defining various classes to be treated as OBCs.

• The Report wants 52% reservation for OBCs in all the posts in the Central Government with their ratio. But, legal limitation of reservation is 27%.
• If the report of commission is implemented then it will result in the sub-standard replacing the standard and morale of appearing student will fall is totally false as the object of Article 16(4) is to ensure equality of opportunity in matters of public employment and give adequate representation to those who have been placed in a very discontent position from time immemorial on account of sociological reasons. The report is just trying to help state fulfil its duty.
• Though equal protection clause forbids the State from making unreasonable discrimination but it requires the State to give equal opportunities to those, placed unequally.

Judgment:

The 9 judges Constitution Bench of the Supreme Court held that the backward classes in Article 16(4) can be identified only by the caste system & not only on economic basis. The Article 16(4) is not an exception of Article 16(1) and it is a classification. The backward classes in Article 16(4) are not similar to socially & educationally backward classes in article 15(4). Upper layer must be left out from the backward classes.

Article 16(4) allows classification of backward classes into backward & more backward classes.A backward class can’t be identified on the basis of economic criteria. In any case the reservation shall not exceed 50%. The permanent Statutory body shall examine complains of over – inclusion and under – inclusion. It was held by majority that there is no need to express any opinion on the work done by the commission.Any dispute that arises due to the new criteria shall be raised in the Supreme Court.