manupatra® 1993) Indra Sacohney v. Union of India B The Broad Issues Examined The Supreme Court nine-judge® Bench constituted for the first time to finally settle the legal position on reservations, delivered its judgment” on 16 November, 1992. Though the efficacy of the much-maligned Mandal Commission report was the topic of the day, in the heated publiccontroversy surrounding the passage of the decision in Indra Sucohiney v. Union of Indic, the issues before the Court did not centre around the validity of the Report but of the impugned memorandums and various other constitutional issues relating to the concept of compensatory discrimination itself. The broad issues raised before the Supreme Court revolved around the nature and scope of the constitutional provisions for reservations in public employment and the related concept of equality of opportunity in the same. These issues can be broadly classified under the following heads: (a) Scope and extent of Article 16 (1) and 16 (4) (b) Definitive parameters of the term "backward class of ci (©) The identification criteria applicable. (d) Nature and extent of reservation permissible. In this judgment, Chief Justice M. H. Kania and Justices M. N. Venkatachaliah, A.M. Ahmadi, B. P. Jeevan Reddy and P. B. Sawant? held the first Government Order as valid and enforceable, subject to the exclusion of the creamy layer from the notified SEBCs as per clause (i) of the second order on preference to the poorer sections and clause (ii) on 10 per cent reservations for the economically backward sections as invalid. Justice S.R. Pandian held the first Order as valid ins fofo and both clauses of the second as invalid, Justices T. K. Thommen, Kuldip Singh and R. M. Sahai" held both the Government Orders as invalid for want of convincing proof of proper identification of the Other Backward Classes"? by recourse to relevant criteria, Reservations and Constitutional Mandate — Scope and Extent of Article 16 (1) and 16 (4) The first major issue which had to be decided by the Bench was the scope and extent of the mandate granted under Article 16 (1) and 16 (4) to the State to make reservations. The Bench was of the opinion that both the clauses had the same scope of operation and their related observations were, that ‘clause (4) of Article 16 is not an exception to clause (1) of Article 16, Itis an instance of classification implicit in and permitted by clause (1) .. it must be read along with and in harmony with clause (1)." "The Bench thus overruled the decision in T. Devadasen 2. India,}4 and approved the dicta in State of Kerala v. N. M, Thomas.!5 a reservation issue has been 6. The largest Supreme Court bench, preceding this judgment, constituted to revi the seven judge bench which decided State of Kerala v. Thomas, AIK 1976 SC 499, 7. The Judgment constituted six separate judgements covering almost 911 pages. 8. Supra, nil. . 9. Common judgment by Justice Reddy on behalf of the majority and a concurring judgment by Justice Sawant. 10Separate judgment. 11 Common order but separate judgments. 12Hereinafter OBC 13. Held by the majority, vide paras 57, 121(2)(a), TA AIR 1964 SC 179. The Court in a 4-1 majority held that Art. 16(4) was in the nature of a provisio or exception to Art. 16(1), 15 AIR 1976 SC 490. The Court in a 5-2 majority held that even if the State didn’t adopt the reservation policy 50 as to clearly come under Art. 16(4), the scheme could be upheld under Art. 16() if the tests of reasonable classification and reasonable relaxation were applied positively. Art. 16(4) was not an exception to Art, 16(1)-Ymanupatra® 1993) Indra Sazohney v. Union of India B services of the State. Justice Sawant added that in order to constitute a backward class, the caste concerned had to be socially backward and i's educational and economic backwardness had to be on account of its social backwardness. Thus, the majority opinion concurred with the basic postulate enunciated by the Mandal Commission that both educational and economic backwardness was traceable back to social backwardness.” On the question of caste as a relevant and dominant criteria, the majority opined that caste was a "dominant factor or primary criterion in determining the backwardness ofa class of citizens” and that it did not offend Article 16(4). The reasoning advanced was that what Article 16(4) required was identification and not classification and hence any factor contributing to a class’s social and educational backwardness, which included caste as a dominant one, would naturally also supply the basis for identification.!® Thus, a caste could become a ‘backward class’ provided that the caste satisfied the test of backwardness and the test of inadequate representation, The minority however,differed radically. It was of the opinion that "class" under Article 16(4) could not be read as "caste" and that ‘not adequately represented in the services under the State” was the only test for the identification of a class under Article 16(4). A logical conclusion drawn from the same is that, in their view, social backwardness emanated from either educational or economic backwardness, a classical example of the "which-came-first, the-chicken-or-the-egg" syndrome. Economic Criteria While virtually all the judges recognised the relevance of caste for identifying social backwardness, all but Justice Kuldip Singh held the determination of backwardness only and exclusively with referenceo economic criteria as invalid. That explains the rejection by all but Justice Kuldip Singh of the 10 per cent reservations for the economically backward sections. His opinion is based on the conclusion that poverty, which breeds backwardness all around the class into which itstrikes and which invariably results in socio-economic and educational backwardness is the "culprit cause" of all kinds of backwardness, ‘The "Creamy Layer" exclusionary principle Departing from the well-established judicial principle of allowing the entire group identified to be eligible for reservation benefits, the bench for the first time (excluding Justice Pandian) evolved the "creamy layer exclusionary principle’, that is excluding the advanced sections of the OBCs from the benefits of reservation. Thus, Chief Justice Kania, and Justice Venkatachalaiah, Ahmadi and Jeevan Reddy observed: Ina backward class under clause (4) of Article 16, if the connecting link is the social ~ backwardness, it should broadly be the same in a given class. If some members are far too advanced socially (which in the context necessarily means economically and may also mean educationally), the connecting thread between them and the remaining class snaps. They would be misfits in the class...” 17, Report of the Second Backward Classes Committee (New Delhi: Government of India, 1980) 19 to 32; (heteinafier Mandal Commission). 18, See, Paras 83, 83A, 121(3)(b), 206, 231, 366, 412. 19. See, paras 86, 121(3)(d), 450-1.Wmanupatra® 1993) Indra Sawhney v. Union of Indie 7 offering the OBCs donations, exemptions, concessions, and such other facilit consistent with the maintenance of efficiency of the administration, to enable them to compete for career advancement. However, the bar on reservations in promotion seems to partially ignore the reality. Even though the OBC candidate will on paper, have the same carcer advancement options open to any other candidate, the invisible hand of the social stigma attached to his caste and social background would always be operating as an obstacle to the same. 3, Though the majority have on one hand observed that the rule of reservations cannot be called unti-meritarian, on the other, they have preferred, for various reasons, the exclusion of certain services and posts from this rule 4, Ordinarily,the reservations under Article 16(4) forall classes should not exceed 50 per cent, and that while in extraordinary situations, some relaxation in the strict rule may become imperative, in doing so, extreme caution has to be exercised and a special case, made out. of 5. Related to the 50 per cent rule is the directive of the majority,that for purpos« applying it, a year should be the unit and not the entire strength of the cadre, serv’ or the unit as the case may be; and though carry forward of unfilled reserved vacancies is not per se unconstitutional, the operation of such a rule should not result in the breach of the 50 per cent rule.2 In Conclusion: Judicial Pragmatism and Political Status Quo The Indra Sawhney case” has been a stormy two year mammoth joint venture, undertaken by the judiciary and the executive in an attempt to uphold the constitutional mandate, supporting and netessitating confirmative, compensatory, discriminatory state action in order to ameliorate the miserable plight of 52% of our populace which is "socially and educationally backward". The resulting judgment as expected,” upheld the vires of the first office memorandum, reading down the operation of clause (i) of the second, while invalidating clause (ii) of the latter. The Court upheld the orders as per the letter of the law, whilethe government pursued the same end result as per the dictates of the law of vote banks. Both succeeded in their separate endeavours. However, in the ultimate analysis itis the people of India who have suffered —the OBCs, the SC/ST, the forward classes —everyone. The Mandal Commission Report recommended a five-pronged strategem to combat the crippling social handicaps which included special educational facilities for OBC children, vocational training, financial assistance in upgrading the skills of the OBC artisans and major structural changes especially in land holdings patterns, inter alia. The government conveniently focussed on only one aspect, job reservations, and overlooked the other aspects of the recommendations, which involved long term planning and infrastructural expenditure and had no noticeable 25, Examples cited are defence services, all technical posts in research and development establishments, teaching posts of professors i medicine, engineering and other scientific supercialities, posts of pilots inter alia 26. The Bench thus overruled the Court's decision in Devadasan’s case, supra, n. 14, wherein the Court had in effect invalidated a Rule permitting the earry forward rule. 27. AIR 1993 SC 477. 28. See Supra,n. Bat p. 153. 29, Mandal Commission Report, Vol. 62