INDIRA SAWHNEY V.

UOI AIR 1993 SC 477 (MANDAL CASE) (9 JUDGE BENCH)

1. The case examined the scope and extent of Art 16(4) and upheld the decision of the Union

Govt to reserve 27% seats in Govt. jobs for the OBC (Other Backward Class) provided that

creamy layer among them are eliminated; Reservation is confined to only initial

appointments and not promotions and total reservation shall not exceed 50%.
2. However, the Court struck down another govt. notification reserving 10% govt. jobs for

economically backward classes among the higher castes. The court held that caste

backwardness is relevant but not economic backwardness.

3. As there is already a 22 % reservation for the SC and ST in govt jobs, the decision of the

State to provide 27% reservation to the OBC is valid as cumulatively the reservation amounts

to 49 % i.e. less than 50 %.

4. The court also held that a provision can be made under Art 16(4) by the legislature by

enacting a law or by an executive order. However, the court opined that reservation by an

executive order may not be invalid but since it was being made for the first time in services

under the Union, propriety demands that it should be laid before the Parliament to lay down a

healthy convention.
5. A permanent statutory body be appointed to examine the complaints of over-inclusion and

under-inclusion.
6. The Court also ruled that :
Backward class of citizens in article 16(4) can be identified on the basis

of Caste and not only on economic basis. The word class as used in the Art

16(4) is in sense of a social class and is not antithesis to caste. The term

class guarantees protection to all communities, groups, classes, or section

found to be backward. In India, caste can often be considered as a social

class and if it is backward socially, it is protected under Art 16(4). However,

caste alone cant be the criteria to determine backwardness. There are several

classes among non-Hindus, Christians, Muslims, etc and if they are backward

socially, then they are entitled to reservation.

Article 16(4)is not an exception to Article 16(1)but an independent clause.

Reservation can be made under Article 16(1) on the basis of reasonable

classification. Thus the court overruled Balaji case ruling and approved
 Thomas case. Article 16(4) is exhaustive of the subject of reservation in

favour of backward classes. But, reservation can be made for other classes

under Article 16(1). Art. 16(1) permits making of reservation of

appointment/posts only in exceptional situations and wherein the State is

called upon to do so in public interest (e.g. reservation for ward of military

personnel, political sufferers or any other class except for backward class.
Backward classes in Art 16(4) are not similar to Socially and

Educationally Backward Classes in Art 15(4). Article 16(4) is much wider

and takes in SC/ST and OBCs including SEBC. Thus certain classes might

not qualify for reservation under Art 15(4) but might qualify for the

protection of Article 16(4). Moreover, the backwardness contemplated by art

16(4) is mainly social. It need not be both social and educational as required

under Article 15(4). (Balaji overruled)

Creamy layer (socially advanced person) must be excluded from

Backward classes. For determining creamy layer, economic criteria can be

adopted (income limit) as a measure of social advancement. The govt. should

review the criteria and if a class reaches a state of progress where no

reservation is necessary, that class should be deleted.

Article 16(4) permits classification of backward classes into backward

and more backward class. This step will ensure that advanced sections of

backward classes might not take all the benefits of reservation. (Balaji

Overruled).
Backward class of citizen cannot be identified only and exclusively with

reference to economic criteria as the objective of Art 16(4) is not to eradicate

poverty. Therefore, social, economic and educational backwardness may be

taken into account. Economic backwardness may give jurisdiction to to State

to reserve, provided it is able to ascertain the inadequate representation of the

class in question. Poverty alone cannot be the basis of classification.

Reservation not to exceed 50%. This rule is to applied every year. Moreover,

the requirement of 50% limit is not related to Total strength of the class in
 question in the relevant sphere. (Affirmed Balaji and overruled Thomas case).

The court further held that Art 16(4) speaks of adequate representation and

not the proportionate representation. Therefore, the adequacy is not to be

determined on the basis of overall numerical strength of the Backward class

in the service but instead their representation at different levels of

administration and in different grades has to be taken into account. Moreover,

for the application of this 50% rule a year should be taken as a unit.
Carry forward rule is valid but subject to 50% ceiling. Reservation

exceeding 50% in a single year would be unconstitutional.

No reservation in promotion. The application of Art 16(4) is limited to

initial appointment only and does not extend to matters of promotions

though the term appointment as used in the Article includes appointment by

direct recruitment or by promotion or by transfer. The court held that once the

advanced classes and disadvantaged classes are made equal and bought into

one class, then conferring any further benefit would amount to treating equals

as unequal and may lead to resentment which can further affect the efficiency

in administration. Art 16(4) is to be read along with art 335.

Indira Sawhney II v. UOI (AIR 2000 SC 498)

This case involves the State of Kerela which devised a mechanism to circumvent the requirement of

excluding creamy layer as given out in the initial Indira Sawhney case judgement. The state had passd

an Act called The Kerela State Backward Classes (Reservation of appointments or posts in Services)

Act, 1995 which laid down that as there were no socially advanced categories in any backward

classes in the State, everyone was entitled to reservation under Article 16(4). Thus the Act had

become a tool enforcing the vested interests of those belonging to Creamy Layer. The State govt.

never conducted any exercise to identify creamy layer in the State. Therefore, when the matter was

presented before the Apex court, it directed the Kerela High Court to setup a committee under the

chairmanship of retired High court judge to identify the creamy layer in the State.
The supreme Court held that the law was discriminatory and was in defiance of Rule of Law, a basic

structure of the Constitution. The act was pronounced violative of Art 14, 16(1) and 16(4) and

therefore unconstitutional.

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POST MANDAL JUDGEMENT DEVELOPMENTS:

4 major amendments were made to the Constitution so a s to subvert the ruling of the Mandal

case.
77th Amendment Act,1995: The amendment sought to remove the difficulty created by the

Mandal judgement in which the court had held that reservation could not be allowed in

promotions. The amendment added a new clause 4A to Art. 16 which empowered the

State to provide reservations in promotions in govt. jobs in favour of SC/ST classes which in

the opinion of the State are not adequately represented in the Services under state. In Ashok

Kumar Gupta v. State of U.P. (1997) the court held that Right to promotion is ordinarily a

statutory right and not a fundamental right. But after this amendment, the conjunctive effect

of Art. 16(4A) when read along with Art. 16(1) and 16(4) is to guarantee a right to promotion

as a fundamental right to such SC/ST classes which are not adequately represented in the

services of the State (keeping in mind the efficiency of the administration).

81st Amendment Act, 2000: It added a new clause (4B) to the Article 16 which ended the

50% ceiling on reservation for SC/ST and OBC (combined) in the backlog vacancies which

could not be filled due to non-availability of eligible candidates of these classes in the

previous years. This new clause provided that unfilled vacancies are to be treated as a

separate class and filled in successive years and cannot be considered together with vacancies

of any year in which they are being filled up even if the ceiling of 50% limit (as imposed by

the Mandal judgement) is breached.

82nd Amendment, 2000: In the S. Vinod Kumar v. UOI (1996) the court held that the

lowering of standard and qualifying marks for reserved categories is contrary to Art 335 and

the spirit of Mandal judgement. Thus, the earlier position was that Art 16(4) was to be read in

light of Art 335 which provided that claims of SC/ST should be taken into consideration,

keeping in mind the efficiency of administration. The reservation should not be

 unreasonable and should be balanced with the interests of general public. However, this

amendment permitted the relaxation in qualifying marks and standard of evaluation in

both, job reservation and promotions, for SC/ST by adding a proviso clause in the Art

335.
85th Amendment, 2001: Amended the clause 4A (inserted by 77amendment) of Art 16 and

substituted for the words in matter of promotion to any class with the words in matters of

promotion with consequential seniority, to any class. It meant that promotion will be given

to SC and ST with retrospective effect from 17 th June 1995. Earlier, the court had ruled in the

Mandal case and other judgements( Ajit singh juneja v. State of Punjab etc.) on promotion the

govt. servants belonging to SC/ST category will not have the benefit of consequential

seniority. The rule of reservation gave accelerated promotion but it did not give accelerated

consequential seniority. Thus the courts in earlier decisions had held that a reasonable

balancing of the rights of unreserved candidates and reserved candidates will be ensured by

following the Catch up Rule. According to it, if a senior general candidate at a particular

level reaches the next level, before the reserved candidate at that next level goes further up

to next higher level, in that case the seniority at that next level has to be modified by placing

such a general candidate above the reserved candidate. However, the effect 85 th amendment is

that when reserved candidates are promoted earlier to general candidates, their seniority in the

new cadre would rank from the date of their joining on promotion and this seniority would

not be wiped out after the promotion of unreserved candidates from their respective dates of

promotion and that the unreserved candidates would remain junior to reserved candidates.

The constitutional validity of the above 4 amendments was contended in the case:

M . NAGRAJ V. UOI, AIR SC 2007 71

1. The five judge bench unanimously upheld the validity of the Constitutional amendments

observing that the clauses inserted were only of the nature of enabling provisions meaning

that these provisions only enable or authorise the State to act but do not confer any
 fundamental right on the citizens. The court also confirmed that clause 4A only applied to SC

and ST. The clause 4A has been carved out of clause 4 of Art 16 therefore clause 4A will be

governed by two compelling requirements of Article 16(4) : a) backwardness, and b)

inadequacy of representation. Thus, if these two reasons exist only then can the enabling

provision come into force. The state can make provision for reservation only if the above two

circumstances exist.
2. The court also held that clause 4B of Article 16 (treating unfilled reserved vacancies as a

separate class which can breach the 50% limit) is an enabling provision. The court also

confirmed the validity of proviso clause inserted in Article 335 in relaxing the qualifying

marks of the SC/ST candidates.

3. The court held that these enabling provisions cannot obliterate(violate)the constitutional

requirements which are backwardness and inadequate representation keeping in mind the

overall efficiency of State administration. These requirements are retained in the clauses.
4. The court held that Social Justice is one of the branches of Justice and is primarily concerned

with distribution of benefits and burdens. The basis of distribution is the area of conflict

between rights, needs and means.

5. Formal equality means that the law treats everyone equal. It therefore exists in Rule of law.

Proportional equality means egalitarian equality and it expects the State to take affirmative

action in favour disadvantaged sections of the society within the framework of democratic

polity. Thus, proportional equality is equality in fact whereas formal equality is equality in

law.
6. Doctrine of reasonable classification is read into the concept of equality under Article 14 by

various court decisions. It gives a discretionary power to legislate in favour of certain class of

people to promote egalitarian equality (by treating those under similar circumstances as a

class). Mere conferment of discretionary power is not bad but its arbitrary exercise is. This is

the theory of guided power. Thus, even if the discretionary power so conferred on the State

is arbitrarily exercised, it would be corrected by the courts. Therefore, the enabling provisions

so incorporated in Article 16 merely confer the discretionary power (and its arbitrary use is

checked by the requirements of backwardness, inadequate representation and Article 335).

7. Constitutional law is a law of evolving concept. The device of enabling provision allows the

State to identify such new and evolving concepts and also provide mechanism to assimilate

them in the constitution.

8. The court also held that Art 16(4) confers no fundamental right to reservation but is merely

an enabling provision itself. These provisions empower the State to identify and recognize

the compelling interest. If the state has quantifiable data to show backwardness and

inadequacy of representation then the State (keeping in mind limit of Art 335)has a

discretion to provide for reservation. Therefore, to say that Art 16(4A) and (4B) flow from

or have been carved out of Article 16(4) is to necessarily imply that clause 4A and 4B are also

of enabling nature like article 16(4). Thus, as long as the parameters of article 16(4)

(backwardness+ inadequacy + efficiency in administration) are retained in the enabling

provision as controlling factors the courts cannot declare the enabling provisions as invalid.
9. The court also ruled that principle of sub classification as provided in clause 4A of article 16

is valid as it is inspired by the Indiara sawhney judgement in which the court has observed

that in order to avoid lumping of OBC, SC and ST which would make OBC take away all the

vacancies leaving SC and ST high and dry. Therefore, the State is entitled to categorize and

sub classify the SC and ST on one hand and OBC on the other.
10. The court also opined that the catch up rule is not a concept implicit in Art 16(1) to Art

16(4). The concepts of catch up rule or consequential seniority are not constitutional

requirements or limitations. They are judicially evolved concepts to control the extent of

reservation derived from service jurisprudence. They do not form a part of basic structure of

the constitution so as to be beyond the amending power of Parliament. It cannot be said that

inclusion of consequential seniority has led to abrogation of mandate of Art 16(4).

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