Indra Sawhney v Union of India (Supreme Court, 1992) — the Mandal Commission case

Every later reservation case, Nagaraj, Ashoka Kumar Thakur, Jarnail Singh, begins from the answers recorded here. The case fixes the 50 per cent ceiling, excludes the creamy layer, explains what "backward class" means in Article 16(4), and rules that clause (4) is a facet of equality rather than an exception to it.

The Mandal Commission was appointed by the Government of India in 1979 under Article 340 to investigate the conditions of the socially and educationally backward classes. It recommended that, besides the Scheduled Castes and Tribes, 27 per cent of Government jobs be reserved for the Other Backward Classes, which it put at nearly 52 per cent of the population, so that total reservation would come to 50 per cent. Nothing was done for a decade beyond two parliamentary discussions in 1982 and 1983. On 13 August 1990 the V.P. Singh Government issued an office memorandum accepting the recommendation and announcing 27 per cent reservation for the socially and educationally backward classes in civil posts and services under the Government of India; widespread disturbances followed. In 1991 the Narasimha Rao Government modified the memorandum in two respects: the poorer sections among the backward classes would get preference, and 10 per cent of vacancies would be reserved for other "economically backward sections" not covered by any existing scheme. Writ petitions challenged the memoranda.

Nine judges heard the matter and six opinions were delivered. Jeevan Reddy J. delivered the leading opinion for himself, Kania C.J., Venkatachaliah and Ahmadi JJ.; Pandian and Sawant JJ. concurred in separate opinions; Thommen, Kuldip Singh and Sahai JJ. dissented on several points.

The Court framed and answered a series of questions: whether Article 16(4) is an exception to Article 16(1); what "backward class of citizens" means and how such classes are to be identified; whether caste or economic criteria may be used; whether reservation may exceed 50 per cent; whether backward classes may be sub-classified; whether the creamy layer must be excluded; whether reservation may be made by executive order; and whether it may extend to promotion.

The Court's recorded answers, question by question:

1. "Article 16(4) is not an exception to Article 16(1). It is an instance of classification inherent in Article 16(1). Article 16(4) is exhaustive of the subject of reservation in favour of backward classes, though it may not be exhaustive of the very concept of reservation. Reservations for other classes can be provided under clause (1) of Article 16."
2. "The expression ‘backward class’ in Article 16(4) takes in ‘Other Backward Classes’, SCs, STs and may be some other backward classes as well. The accent in Article 16(4) is upon social backwardness." Social backwardness leads to educational and economic backwardness, all intertwined with low occupations. "A caste can be and quite often is a social class in India. Economic criterion cannot be the sole basis for determining the backward class of citizens contemplated by Article 16(4)."
3. "Even under Article 16(1), reservations cannot be made on the basis of economic criteria alone."
4. "The reservations contemplated in clause (4) of Article 16 should not exceed 50%. While 50% shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people." Far-flung and remote populations out of the mainstream may need different treatment, but "extreme caution is to be exercised and a special case made out." The rule is applied to a grade, cadre or service in a given year. "To the extent, Devadasan is inconsistent herewith, it is over-ruled."
5. "There is no constitutional bar to classification of backward classes into more backward and backward classes for the purposes of Article 16(4)", the distinction resting on degrees of social backwardness, with equitable distribution so that one or two classes do not eat away the entire quota. "For excluding ‘creamy layer’, an economic criterion can be adopted as measure of social advancement."
6. "A ‘provision’ under Article 16(4) can be made by an executive order. It is not necessary that it should be made by Parliament/Legislature."
7. "No special standard of judicial scrutiny can be predicated in matters arising under Article 16(4)."
8. "Reservation of appointments or posts under Article 16(4) is confined to initial appointment only and cannot extend to providing reservation in the matter of promotion." The decision was to operate prospectively, and existing reservations in promotion were allowed to continue for five years.

The compilations add the Court's further points: the Government of India was directed to specify the bases for excluding the socially advanced persons, the creamy layer, from the Other Backward Classes, within the time fixed; a member of a reserved category selected in open competition on merit is not counted against the reserved quota; reservations under clause (4) are "vertical", while reservations such as for the physically handicapped under clause (1) are "horizontal" and cut across them; carry-forward of unfilled reserved vacancies is permitted within the overall 50 per cent limit for the year; minimum standards may and, by reason of Article 335, should be prescribed; and certain posts, defence services, technical posts in research and development, professors and above, super-specialities, and pilots, should be left to merit.

On the 27 per cent reservation itself, the Court found it "well within the reasonable limits", the total with the Scheduled Castes and Tribes coming to 49.5 per cent.

Article 16(4) is a facet of the equality guaranteed by Article 16(1). "Backward class" is judged mainly by social backwardness, for which caste may be a criterion but not the sole one, and economic criteria alone will not do. Reservation under clause (4) is limited to 50 per cent save in extraordinary situations, must exclude the creamy layer, may be made by executive order, and, as the law then stood, could not extend to promotion.

Parliament inserted clause (4A) by the Seventy-seventh Amendment (1995) to permit reservation in promotion for the Scheduled Castes and Tribes, added consequential seniority by the Eighty-fifth Amendment (2001), and inserted clause (4B) by the Eighty-first Amendment (2000) to take carry-forward vacancies outside the 50 per cent ceiling. M. Nagaraj (2006) upheld those amendments on conditions, and Jarnail Singh (2018) adjusted one of them.