INDIRA SAWHNEY V.

UNION OF INDIA

Submitted by: Submitted to:

SHREYA VERMA DR. ATUL KUMAR TIWARI

Roll number – 145 Associate Professor (Law)

Semester III

Enrollment No.- 160101144

Section B

B.A. LL.B. (Hons)

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW

 TABLE OF CONTENTS

TABLE OF AUTHORITIES 3

ABSTRACT 4

INTRODUCTION 4

BACKGROUND 5

LEGAL ISSUES 9

CONTENTION OF THE PARTIES 11

Arguments on behalf of Petitioners 11

Arguments on behalf of Respondents 11

DECISION OF THE COURT 12

REASONS UNDERLYING THE JUDGEMENT 13

SIGNIFICANCE IN LEGAL EDUCATION 14

 ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my teachers Dr. Atul Kumar Tiwari

and Ms. Ankita Yadav who gave me the golden opportunity to do this wonderful project on

the topic INDIRA SAHWNEY vs UNION OF INDIA, and also helped me in doing a lot of

research and I came to know about so many new things I am really thankful to them.

Secondly, I would also like to thank my parents and friends who helped me a lot in finishing

this project within the limited time. THANKS AGAIN TO ALL WHO HELPED Me
 Table of Authorities

Cases

Indira Sawhney v. Union of India AIR 1993 SC 477 (Para 26) 11

Karmachari Sangha v. Union of India AIR 1981 SC 298 13
M.R. Balaji v. State of Mysore AIR 1963 SC 649 5
P. Rajendran v. State of Madras AIR 1968 SC 1012 5
Plessy v Fergussion 163 US 537 (1896 14
State of Kerala v. N.M. Thomas AIR 1976 SC 490 6
State of Madras v.Champakam Dorairajan [1951] S.C.R. 525 5
T. Devedasan v. Union of India AIR 1964 SC 179 5

Treatises

Zia Mody, Ten Judgements that changed India at 60 3

Journal

P.P Rao* and Ananth Padmanabhan ,Legislative Circumvention of Judicial Restrictions on

Reservations: Political Implications, 2013) NLSIR (Spl. Issue) 53(September 13, 2017) 15
Reva B. Siegel, Discrimination in the Eyes of the Law: How Color Blindness Discourse
Disrupts and Rationalizes Social Stratification, 88 Cal. L. Rev. 77 (2000) 14
Vinay Reddy, Prospective Overruling need for a new look, 10 Stud Adv (1998) 90
(September 13, 2017) 15

Constitutional Assembly Debates

Volume X, Constitutional Assembly Debates, Speech by KM Munshi 12

Contemporary Constitutional Law Blog

Gautam Bhatia, Reservation, Equality and the Constitution, IndianConLawPhil 4

 ABSTRACT

This case comment is based on the landmark case in India on reservations: Indira Sawhney v.
Union of India. This case analysis seeks to study the evolution of affirmative action
jurisprudence with special focus on the judgement in the aforementioned case. Reservations
in India have been the source of several tensions and altercations, and have a huge bearing
on the politics of the subcontinent. The case comment will analyse how the judiciary outgrew
its fixation on colour-blind theory and went on to embrace a variant of group-subordination
theory. It will look at the reasoning the court gave in reaching its conclusion, and how a few
crucial issues were inexplicably ignored or not explained by the court. An understanding of
the case’s effect on the definition of equality as an important part of legal theory will also be
attempted. Furthermore the aftermath of the case, in the context of legislative circumvention
of parts of its judgement and the benefits and problems of prospective overruling done in this
case will also be briefly touched upon.

INTRODUCTION

India’s policy of reservations is an issue that almost every Indian born post-independence
ponders over, criticizes, utilizes, or suffers from at some stage in life1. In the recent past the
outrage, and rioting over granting of reservations to Jats in Haryana and Patels in Gujarat, has
given fresh impetus to discussions concerning caste-based affirmative action in India. Hence
it becomes important to revisit the case of Indira Sawhney which laid down a somewhat
concrete law on reservations in India, thereby lending clarity to the several disparate
conclusions of the jurisprudence preceding it.

Reservations have had a chequered political history in the context of public employment and
admissions to higher educational institutions2. Government jobs and education in government
schools is touted to open to the youth, the floodgates of prosperity and standing in society.
Therefore any attempt to curtail or facilitate such access is bound to lead to some confusion
and political bickering. However the reservation for OBCs recommended by the Mandal
commission, and accepted by the VP Singh government, led to serious backlash and
culminated in the judgement in this case.

1
Zia Mody, Ten Judgements that changed India at 60
2
Ibid
Although Article 14 of the Constitution gives to all people the right to equality before the
law, Article 16(4) allows the state to make ‘any provision for the reservation of appointments
or posts’ in favour of backward classes not represented adequately in services under the state.
Article 46, a directive principle of state policy, sets out that the state must promote the
educational and economic interests of SCs and STs. Article 340 authorizes the President to
form a commission to make recommendations for improving the conditions of backward
classes. Articles 341 and 342 lay down the procedure to ascertain which castes and tribes
should be considered as SCs and STs, respectively.

Equality as envisioned by our founders was necessarily a colour-blind concept, one that
sought to treat individuals, as individuals, and not as part of any group3. There is some hint of
it in the Constitution, where Article 14 reads:

The State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India Prohibition of
discrimination on grounds of religion, race, caste, sex or place of birth

The word ‘any person’ hints at an individualistic bent, based on the notion of colour-
blindness and equality of individual qua individual. Furthermore affirmative action was
supposed to be a temporary provision(original plan was for 10 years), which sought to level
the playing field by providing reservation on the basis of groups, so as to realise a society
where caste and other divisions lose their significance4.

However this proposal of founders and their core belief in colour-blindness underwent a volte
face, through several judgements over the course of five decades. Indira Sawhney is one of
the seminal judgements, which sought to settle, somewhat successfully the constitutional
question of reservations.

BACKGROUND

It is worthwhile to read the case of Indira Sawhney in the context of the several Supreme
Court decisions, which had explained the nature of reservations in India. The course of
jurisprudence developed over two theories, which will be discussed later in this case

3
Gautam Bhatia, Reservation, Equality and the Constitution, IndianConLawPhil (September 13, 2017)
https://indconlawphil.wordpress.com/2014/01/19/reservations-equality-and-the-constitution-i-origins/
4
Constitutional Assembly Debates, Volume XI, Speech by Dr. BR Ambedkar
comment. Here it is worth drawing a timeline of the various judgements that led up to this
case.

State of Madras v.Champakam Dorairajan5 the question of apportioning of seats between

castes and religious groups in colleges of Madras was in question. It is noteworthy that
Article 15(4) which provides for reservation of seats in Higher Education for socially and
economically backward classes did not exist then. The court turned down the state’s
argument that the source of affirmative action was Article 46 by saying it would make Article
16(4), which provides for reservation of backward classes in government employment
redundant. It invalidated the reservation for violating article 15(1)6 and 29(2)7.

M.R. Balaji v. State of Mysore8 similarly the question of validity of 68% reservation for
backward classes in professional educational colleges was in question. Here it is noteworthy
that Article 15(4) providing for reservation of seats for backward classes in higher education
was introduced by then, by the form of an amendment. The court ruled that such reservation
could not go beyond 50 % of the seats, because 15(4) was supposed to be an exception for
Article 15(1), whereas a reservation of 68 % made it a rule, rather than an exception.
Furthermore the reliance on caste only to make such an affirmative action policy was void in
that it did not take into account other religions.

In T. Devedasan v. Union of India9 the question of ‘carry forward rule’ was brought before
the Supreme Court, wherein unfilled seats of a year were to be converted to general seats, and
the reservation of same number of seats was to be carried over to the next year. The court
held it was unconstitutional in that such ‘carry forward rule’, may result in a reservation
beyond 50 % of the population. Here J. Subba Rao”s dissent is worth noting, wherein he says
16(4) is not an exception of 16(1), rather it is an emphatic expression of affirmative action.
He relies on Article 14, to say in that 16(4) provides for reasonable classification it is not a
mere exception to Article 16(1).

5
State of Madras v.Champakam Dorairajan [1951] S.C.R. 525
6
Prohibition of Discrimination on grounds of sex, religious, caste and birth
7
No citizen shall be denied admission into any educational institution maintained by the State or receiving aid
from the state
8
M.R. Balaji v. State of Mysore AIR 1963 SC 649
9
T. Devedasan v. Union of India AIR 1964 SC 179
Further P. Rajendran v. State of Madras10, allowed for reservation on caste-lines and did
not hold it against the spirit of Article 15(1) or 16(1) insofar as the caste so selected had been
selected taking into account its social and economic backwardness. That is to say caste was
held to be a class of citizens.

A sea change in the jurisprudential question of reservation came with the State of Kerala v.
N.M. Thomas11 case. Here the court did a volte-face from the stare-decisis and repudiated it
5:2. Article 16(4) was no longer considered to be an exception to Article 16(1). With the
backing of Article 14, and the doctrine of reasonable classification, it became an emphatic
statement of the group subordination theory12. But the court stuck with check of Article 16(2)
that caste alone could not be the basis of reservation. Having said that the court held Schedule
Caste could be called backward classes. The bench rendered a fractured verdict, with a clear
majority emerging in key issues, but no clear majority opinion in other related issues.

Therefore the ambiguity of the judicial understanding, coupled with the problem presented
before the court in the memoranda giving force to the Mandal report, led to the constitution
of a 9 judge bench in Indira Sawhney, the largest ever to hear a reservation case.

FACTS OF THE CASE

The government of India under Article 340 of the Constitution of India constituted the
Second Backward Class Commission on January 1, 1979 under the chairmanship of Shri B.P.
Mandal, and this commission was popularly known by his name. The commission
commenced its work on March 21, 1979 and submitted its reports on December 31, 1980.
The terms of the reference of the Commission were:

(i) To determine the criteria for defining the socially and educationally backward
classes;
(ii) To recommend steps to be taken for the advancement of the socially and
educationally backward classes of citizens so identified;
(iii) To examine the desirability or otherwise of making provision for the reservation
of appointments or posts in favour of such backward classes of citizens which are

10
P. Rajendran v. State of Madras AIR 1968 SC 1012
11
State of Kerala v. N.M. Thomas AIR 1976 SC 490
12
Supra note 3
 not adequately represented in public services and posts in connection with the
affairs of the Union or of any State; and
(iv) Present to the President a report setting out the facts as found by them and making
such recommendations as they think proper.
The Commission submitted its reports in two parts and the 1961 census was used to
prepare the list of OBC population in the country. A similar report was prepared earlier in
1953 and submitted in 1955; known as the Kaka Kelkar Commission but this was kept in
cold storage because of not being accepted by the Government. The Mandal Commission
was constituted twenty-four years later; and the Government headed by Prime Minister
V.P. Singh issued an Official Memorandum to extend the reservation for Socially and
Economically Backward Classes based on the Mandal Commission’s Report. This
memorandum provided for reserving 27% of seats for SEBS’s in addition to the those
already reserved for SC’s and ST’s. SEBS’s were to comprise Caste and Communities
common to the State-wise list in the Mandal Commission. Reservation was to extend to
public sector banks and financial institutions.

This memorandum met with widespread protests, self-immolations and damage to private
property which led to the filing of writ petitions in the Supreme Court. A three judge
bench comprising of Ranganath Mishra, CJ, and K.N. Singh and M.H. Kania, JJ. who
refused to interfere as the matter was a political one. The court made an appeal to the
citizens that the matter was being looked into. The situation was worsening and petitions
were again filed and a Five Judge Bench in the Supreme Court stayed this order till
further notice. The central government changed and in 1991 the Official Memorandum
was modified in these terms-

(i) Introducing the economic criterion in grant of reservation by giving preference to

the poorer sections of the SEBC’s in the 27% quota.
(ii) Reserving another 10% of the vacancies in the civil services for Other
Economically Backward sections not covered by any of the existing schemes of
reservation.
Indira Sawhney, a journalist,33 filed a public interest litigation (PIL) stating that these
memorandums were not constitutionally valid. This PIL was clubbed with several other
writ petitions, also challenging the constitutionality of the office memorandums under
Article 16 and other provisions of the Constitution. A nine-judge bench of the Supreme
Court—which was, at the time, the largest bench ever constituted to hear a reservations
case—sat in judgement over the constitutionality of the office memorandums and the
constitutional boundaries of India’s reservation policy in general. This bench after hearing
the matter, and challenging the constitutionality, validity and enforceability of the
impugned Official Memorandum, by a 6:3 decisions, upheld the notification subject to
certain conditionalities and prerequisites. The leading judgement in this case is by B.P.
Jeevan Reddy, J. (for M.H. Kania, C.J. and M.N. Venkatachaliah, A.M. Ahmadi and
himself), with S. Ratnavel Pandian and P.B. Savant, JJ. concurring by their separate
judgements. The dissenting minority is constituted by Dr. T.K. Thommen, Kuldip Singh
and R.M. Sahai, JJ., each one delivering his separate judgement.

LEGAL ISSUES

This bench discussed various issues in the leading judgement of Jeevan Reddy, J, the
most important of which were:

1. (a)Whether the ‘provision’ contemplated by Article 16(4) must necessarily

be made by the legislative wing of the State?
(b) If the answer to clause (a) is in the negative, whether an executive
order making such a provision is enforceable without incorporating it into
a rule made under the proviso to Article 309?
2. (a) Whether clause (4) of Article 16 is an exception to clause (1) of Article
16?
(b) Whether clause (4) of the Article 16 is exhaustive of the special
provisions that can be made in favour of ‘backward class of citizens’?
Whether it is exhaustive of the special provisions that can be made in
favour of all sections, classes or groups?
(c) Whether reservations can be made under clause (1) of Article 16 or
whether it permits only extending of preferences/ concessions?
3. (a) What does the expression ‘backward class of citizens’ in Article 16(4)
means?
(b) Whether backward class can be identified on the basis and with
reference to caste alone?
(c) Whether the backwardness in Article 16(4) should be both social and
educational?
 (d) Whether the ‘means test’ can be applied in the course of identification
of backward classes? And if the answer is yes, whether providing such a
test is obligatory?
(e) Whether a class to be designated as a backward class, should be
situated similarly to the SC’s/ST’s?
(f) Adequacy of representation in the services under the state.
4. (a) Whether the backward classes can be identified only and exclusively
with reference to the economic criteria?
(b) Whether a criteria like occupation-cum-income without reference to
caste altogether, can be evolved for identifying the backward classes?
5. Whether the backward classes can be further categorized into backward
and more backward categories?4
6. To what extent can the reservation be made?
(a) Whether the 50% rule enunciated in Balaji 13 is a binding rule or only a
rule of caution or rule of prudence?
(b) Whether the 50% rule, if any, is confined to reservations made under
clause (4) of Article 16 or whether it takes in all types of reservations
that can be provided under Article 16?
(c) Further while applying 50% rule, if any, whether an year should be
taken as a unit or whether the total strength of the cadre should be
looked to?
(d) Whether Devdasan14 was correctly decided?
7. Whether Article 16 permits reservations being provided in the matter of
promotions?
8. Whether reservations are anti-meritarian? To what extent are Articles 335,
38(2) and 46 of the Constitution relevant in the matter of construing
Article 16?
9. Whether the extent of Judicial Review is restricted with regard to the
identification of Backward Classes and the percentage of reservations
made for such classes to a demonstrably perverse identification or a
demonstrably unreasonably percentage?

13
Supra note 8
14
Supra note 9
 10. Whether the distinction made in the second Memorandum between ‘poorer
sections’ of the backward classes and others permissible under Article 16?
11. Whether the reservation of 10% of the posts in favour of ‘other
economically backward sections of the people who are not covered by any
of the existing sections of the reservations’ made by the Office
Memorandum, permissible under Article 16?
12. The concept of positive action and positive discrimination.
13. Desirability of a permanent statutory body to examine complaints of over-
inclusion/ under-inclusion.
14. Should the matter go back to Constitution Bench to go into the defects of
the Mandal Commission Report?

CONTENTION OF THE PARTIES

Arguments on behalf of Petitioners

Firstly, the recommendations made by the Mandal Commission according to the petitioners
were reigniting caste passions and further dividing the society on the basis of caste. The evil
of caste which the founding fathers sought to annihilate is being given fresh blood by this
move

Secondly, the Report was based in the census of 1930 and therefore could not be considered a
reliable data for designing policies of affirmative action. A fresh commission under Article
340 should be constituted and tasked with the job of carrying out a fresh survey.

Thirdly, if the recommendations of the Commission were implemented, it would result in the
sub-standard replacing the standard and the reins of power would pass from meritocracy to
mediocrity.

Fourthly, it will be in demoralization and discontent and that it would revitalize caste system,
and cleave the nation into two - forward and backward - and open up new vistas for
internecine conflict and fissiparous forces, and make backwardness a vested interest.
 Arguments on behalf of Respondents
Firstly, backward classes have been identified only on the basis of the country-wide socio-
educational field survey and the census report of 1961 particularly for the identification of
primitive tribes, aboriginal tribes, hill tribes, forest tribes and indigenous tribes.

Secondly, if the memoranda are declared void it will result in negation of the just claim of the
SEBCs to avail the benefit of Articles 16(4) which is a fundamental right.

Thirdly, the Report wanted to reserve 52% of all the posts in the Central Government for
OBCs commensurate with their ratio in the population. However, in deference to legal
limitation it has recommended a reservation of 27% only even though the population of
OBCs is almost twice this figure.

Fourthly, equal protection' clause prohibits the State from making unreasonable
discrimination in providing preferences and facilities for any section of its people,
nonetheless it requires the State to afford substantially equal opportunities to those, placed
unequally, which the memoranda justly seek to achieve.

DECISION OF THE COURT

The court was called upon to address eight major questions, which the court took upon itself
to examine further under sub-issues15. The judgement rendered by the court on those several
issues, six of the seminal decisions are given below:

1. The court held that Article 16(4) was not an exception to the rule of 16(1) but was
rather an emphatic statement of affirmative action and that 16(4) was the conclusive
and exhaustive source of all reservation powers for backward classes in the Indian
Constitution.
2. In identifying backward classes, the court accepted ‘caste’ as a good enough place to
start, and SCs and STs were acknowledged to be ‘backward classes’ despite their
nomenclature.
a. The executive was instructed to lay down a creamy-layer doctrine to exclude those
who were not bound by the common threads of backwardness. However no such
creamy lawyer was necessary in case of SCs and STs.

15
Indira Sawhney v. Union of India AIR 1993 SC 477 (Para 26)
 3. The court broadly held that 50% was to be the proportion of the reserved seats. It
upheld Devedasan’s verdict only to the extent that reservation by carry-forward rule
should not go above 50 %.
4. Reservation in matters of promotions in government service was declared
unconstitutional. However this was to be applied prospectively
5. Asked for equitable apportionment of seats of backward category between less
backward and more backward.
6. It declared 10 % reservation of seats for ‘other economically backward sections’ void.
7. The court accordingly held parts of the impugned memoranda, inconsistent with its
judgement void.

REASONS UNDERLYING THE JUDGEMENT

With the coming of the judgement, the theory of colour-blindness ceased to be the dominant
theory under the Indian Constitution, instead group-subordination theory emerged as the new
grundnorm on which constitutionality of reservations was determined. This explains the
philosophical basis of the judgement in general. However other nuanced constitutional and
philosophical reasons must be discussed according to the issues for consideration.

1. In deciding whether 16(4) was an exception to 16(1) the court relied on the judgement
given by the majority in NM Thomas16. Whereby, 16(4) given its phrasing ‘Nothing
in the article’ is an emphatic statement of affirmative action, and therefore not an
exception to the same. The court read Article 16(4) on the basis of Article 14, thereby
concluding that reasonable classification which is permissible under Article 14 and
implicit in Article 16(1) was manifested in Article 16(4), thereby conferring a
constitutional basis to the group-subordination theory (equality of groups qua groups).
Furthermore Constitutional Assembly Debates amply reiterate the idea of correcting
‘Historical Wrongs’ which backward sections of the society were subjected to17.
Furthermore in deciding if Article 16(4) was an exhaustive source of all reservations,
the court relied on the majority decision in NM Thomas and the broad interpretation
of the word ‘any provision; in Article 16(4), which the court held was broad enough
to account for all reservations.

16
Supra note 11
17
Volume X, Constitutional Assembly Debates, Speech by KM Munshi
 2. In deciding why caste connotes ‘class’ in the context of Article 16(4), the court again
relied on Constitutional Assembly debates, particularly on Ambedkar’s speech quoted
in Para 28. To the court, Ambedkar’s use of the word ‘communities’ and not ‘caste’
meant that the reservation was supposed to be made cutting across religious lines.
Furthermore given the diversity of India, it would have been unlikely that a narrow
construct of caste would have been connoted by the founders. Furthermore caste is
itself a horizontal division of society, marked by notions of pollution and purity, and
is not antithetical or severable from class. Therefore caste could be a reasonable
ground for reservation, by the virtue of it being a socially homogenous class. (Para
82).
3. In propounding the creamy lawyer doctrine, the court goes into the core of what
makes affluent sections of backward classes ineligible for reservation. Several
common traits interalia socio-economic standing bind these classes together, ensuring
that they comprise the same class. When these connecting threads are snapped due to
the fact that some members of the class become more socially advanced, they must
cease to be a part of that class. However, inexplicably the court kept Scheduled Caste
and Scheduled Tribe out of the ambit of this rule of creamy layer.(Para 86)
4. In deciding the upper cap for such reservation, the court settled at a broad rule of
50%. The logic for its arrival at this conclusion is a little skewed in that the court had
already held 16(4) to be independent of 16(1) and that the former was no longer an
exception to the latter. Therefore the 50 % doctrine, a corollary of that reasoning must
also be declared bad law. Not so, says the court. Here the court says reservations must
stay within reasonable limits and the interests of backward communities must be
balanced against the whole community. (Para 96)
5. Accordingly the court invalidates the rule laid down in Devedasan, which invalidated
the carry-forward rule, insofar as such carry-forward, does not go above 50 % in any
year. (Para 98)
6. Reservation in Promotions were held void as the court reasoned that this would lead
to a feeling among the open category that only people from reserved category could
advance in promotions. This would lead to a feeling of disheartedness among open
category and complacency among reserved category, which would lead to sacrifice of
efficiency. The court relied on Karmachari Sangha 18 to reach this conclusion.

18
Karmachari Sangha v. Union of India AIR 1981 SC 298
7. In deciding why 10% reservation for economically backward classes was not
constitutional, the court said this could not be brought under Article 16(4), and was
antithetical to 16(1), in that it discriminated holders of property of wealth in
appointment to public service.
8. Accordingly inconsistent clauses providing for 10 % reservation for economically
backward classes was declared unconstitutional.
 SIGNIFICANCE IN LEGAL EDUCATION

“In the view of the Constitution, in the eye of the law, there is in this country no
superior, dominant, ruling class of citizens. There is no caste here. Our Constitution in
color-blind and neither knows nor tolerates classes among citizens. In respect of civil
rights, all citizens are equal before the law. The humblest is the peer of the most
powerful. The law regards man as man and takes no account of his surroundings or of
his color when his civil rights as guaranteed by the supreme law of the land are
involved…. the arbitrary separation of citizens, on the basis of race, while they are on a
public highway, is a badge of servitude wholly inconsistent with the civil freedom and
the equality before the law established by the Constitution. It cannot be justified upon
any legal grounds”
The colour-blind theory of equality is inherently suspicious of any form of classification of
people into historical constructs, even when it is done with the intent of uplifting the
downtrodden19. The theory founds its most famous mention in the dissenting opinion of
Justice Harlan in Plessy v Fergussion20. Justice Harlatan says

This quote is particularly important in that the case in question had upheld segregation in
public practices.

At the heart of this theory is not just the distaste for classification, but also a fervent
individualistic notion, which seeks equality of individual qua individual. It is against all
forms of affirmative action. As stated above there is a tinge of this theory to be found in the
language of Article 14 and 16 and their emphasis on ‘Individual’, which is not merely
superfluous21. Moreover the idea of a sunset time for the affirmative action programmes, of
ten years, emphasised by Ambedkar himself lends legitimacy to this assumption. Seen in this
context, the phasing out of affirmative action hints at the larger goal of a colour blind society,
where the state refuses to ascribe any individual to a particular group.

A series of cases preceding N.M. Thomas, upheld this theory, but N.M. Thomas
fundamentally altered this understanding of equality in India. It brought in a theory called the
group subordination theory, which sought to alleviate historical wrongs done to groups. This

19
Reva B. Siegel, Discrimination in the Eyes of the Law: How Color Blindness Discourse Disrupts and
Rationalizes Social Stratification, 88 Cal. L. Rev. 77 (2000)
20
Plessy v Fergussion 163 US 537 (1896)
21
Supra note 3
theory dominated the majority views in Indira Sawhney as well. Justice Ray’s judgement in
N.M. Thomas reiterated in Indira Sawhney sums up the basic tenet of this theory

“The rule of differentiation is enacting laws differentiating between different persons

or things in different circumstances. The circumstances which govern one set of
persons or objects may not necessarily be the same as those governing another set of
persons or objects so that the question of unequal treatment does not really arise
between persons governed by different conditions and different sets of
circumstances. “

Indira Sawhney is crucial therefore, in that it brought to the fore a theory which sought to
alter the structural inequalities which mire Indian society. Another noticeable factor here is
the legislative ‘Legislative circumvention of judicial restriction’.22 Following the judgment in
Indira Sawhney, the government brought in the 77th Amendment Act, which introduced
Article 16(4)(A) which circumvented the restriction imposed on reservation of promotion.
Furthermore, notwithstanding the law so declared, the State of Tamil Nadu has provided for
reservation to the extent of 69%, which is far in excess of the limit of 50% permitted by the
court in Indra Sawhney case. The State of Tamil Nadu not only obtained the assent of the
President to the Tamil Nadu Backward Classes, Scheduled Castes and Schedules Tribes
(Reservation of Seats in Educational Institutions and all appointments or posts in the Services
under the State) Act, 1993 but also got it inserted as item 257-A in the Ninth Schedule. This
is a crucial example of legislative overruling of judicial decisions, which is pervasive in
Indian Jurisprudence.

Another theme of importance to legal theory is the use of prospective overruling in this case.
Prospective overruling is a tool which allows the court to make omelette without breaking
any eggs23. But the overuse of prospective overruling may lead courts to complacency.

Hence the judgement of Indira Sawhney is one of the most pertinent cases in Indian law, and
is ranked my many as one of the top ten judgements that changed India.

22
P.P Rao* and Ananth Padmanabhan ,Legislative Circumvention of Judicial Restrictions on Reservations:
Political Implications, 2013) NLSIR (Spl. Issue) 53(September 13, 2017)
23
Vinay Reddy, Prospective Overruling need for a new look, 10 Stud Adv (1998) 90 (September 13, 2017)
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