# INDRA SA \VHNEY AND ORS. ETC. ETC v. UNION OF INDIA AND ORS. ETC. ETC

- **Citation:** [1992] Supp. 2 S.C.R. 454
- **Court:** Supreme Court of India
- **Decided:** 1992-11-16
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/indra-sa-vhney-and-ors-etc-etc-v-union-of-india-and-ors-etc-etc-11850
- **Pages:** 554

## Headnote

A
INDRA SA \VHNEY AND ORS. ETC. ETC.
v.
UNION OF INDIA AND ORS. ETC. ETC.
NOVEMBER 16, 1992
B
(M.H. KANIA, 0., M.N. VENKATACHALIAH, S. RATNAVEL
c
PAJ'!DIAN, DR. T.K. THOMMEN, AM. AHMADI, KULDIP SINGH,
P.B. SAWANT, R.M. SAHAI AND B.P. JEEVAN REDDY, JJ.)
Constitution of India, 1950:
Article 16(4}-'Provision'-Whether to be made by the Parliament/Legislature-Making such a provision by executive orde,-.Legality of.
Constitution of India, 1950:
Article 16(1)(4}-Whether Article 16(4), an exception to Article 16(1),
D whether clause( 4) exhaustive of special provisions to be made in favour of
'backward class of citizens' or in favour of all sections, classes or groups--
Whether reservations to be made under clause ( 1) or whether it only permitted
extending concession.
E
F
Constitution of India, 1950:
Art.icle 16(4)-
11Class
11
, "Backward ·class of citizens
11
,
"Communities'~
11
Castes'~
11class of citizens"-iVot adequately represented in the senJices under
the State--Reasons for not using the word tlcaste" or
1Castes
11-Constrnction--Backward class of citizen-ldentijication-Procedure-'Means test'
whether to be applied-''Creamy layer'4ffect of-Backwardness whether to
be social and economical-Whether a class to be situated similarly to the
Scheduled Caste/Tribe for being qualified as a Backward Class.
Constitution of India, 1950:
Articles 15, 16-:Backward c/asses-ldentification--Criteria.
G
Constitution of India, 1950:
Articles 15, 16-:Backward classes-Classification into backward and
more backward-Legality of.
Constitution of India, 1950:
H
Articles 15, 16-Reservation-50% rule in Balaji-£ffect of-50% rule
454
...
INDRA SAWHNEY v. U.0.l.
455
whether includes all types of reservations under Article 16 or those reservaA
tions made under Article 16( 4 j-f'rocedure to apply 50% rnle-Devadasan
whether good law.
Constitution of India, 1950:
of
Article 16(4}-f'rovision for reservation in promotiun matters-Legality B
Constitution of India, 1950:
Articles 14, 15, 16, 38(2), 46, 333-Reservation whether anti-meritanConstrnction of Article 16 in the relevancy of Articles 333, 38(2), 46.
Constitution of India, 1950:
Articles 14, 15, 16, 226, 3"}-[dentification of backward classes and
fu:ation of percentage of reservations-Judicial review-Scope of
Constitution of India, 1950:
Articles 14, 15, 16-'Poorer sections' of backward classes and
others-Distinction made in the Memorandum dated 25.9.1991-Validity of
Constitution of India, 1950:
Articles 14, 15, 16, 341>--Memorandum dated 25.9.1991-l?.eservation
c
D
of 10% of the posts in favour of "other economically backward sections" of E
the·people, not covered under the existing schemes of reservation-Validity
of--Lists of State Governments identifying SEBCs!OBC,--EffecrWhether
appointing Commission to identify OBCs necessary.
Comparative Law-{f.S. Constitution Fourteenth Amendment-Section
1 and Title VI of the Civil Rights Act, 1964, read with Articles 14, 15, 16,
F
Constitution of India, 1951>-Reservation of seats or vacancies or appoint111ents or posts-Reasonable reservation in America-ldeas still in the process
of evolution.
The Central Government appointed a Backward Class Commission
(popularly known as Kaka Kalekar Commission) under Article 340 of the G
Constitution on January 29, 1953. The Commission was required "to
investigate the conditions of socially and educationally backward classes
within the territory of India and the difficulties under which they labour
and to make recommendations as to the steps that should be taken by the
Union or any State to remove difficulties and to improve their conditions." H
A
B
456
SUPREME COURT REPORTS (1992] SUPP. 2 S.C.R.
The Commission submitted its report on March 30, 1955. According
lo the Commission, the criteria for identifying the backward classes,
under Article 15(4) would be their traditional occupation and.profession,
the percentage of literacy or the gener!ll education advancement made by
them; the estimated population of the community; the distrib

## Text

_Characters 0–39,978 of 1,313,264. This is a partial read: ask again with offset=39978 for what follows._

A
INDRA SA \VHNEY AND ORS. ETC. ETC.
v.
UNION OF INDIA AND ORS. ETC. ETC.
NOVEMBER 16, 1992
B
(M.H. KANIA, 0., M.N. VENKATACHALIAH, S. RATNAVEL
c
PAJ'!DIAN, DR. T.K. THOMMEN, AM. AHMADI, KULDIP SINGH,
P.B. SAWANT, R.M. SAHAI AND B.P. JEEVAN REDDY, JJ.)
Constitution of India, 1950:
Article 16(4}-'Provision'-Whether to be made by the Parliament/Legislature-Making such a provision by executive orde,-.Legality of.
Constitution of India, 1950:
Article 16(1)(4}-Whether Article 16(4), an exception to Article 16(1),
D whether clause( 4) exhaustive of special provisions to be made in favour of
'backward class of citizens' or in favour of all sections, classes or groups--
Whether reservations to be made under clause ( 1) or whether it only permitted
extending concession.
E
F
Constitution of India, 1950:
Art.icle 16(4)-
11Class
11
, "Backward ·class of citizens
11
,
"Communities'~
11
Castes'~
11class of citizens"-iVot adequately represented in the senJices under
the State--Reasons for not using the word tlcaste" or
1Castes
11-Constrnction--Backward class of citizen-ldentijication-Procedure-'Means test'
whether to be applied-''Creamy layer'4ffect of-Backwardness whether to
be social and economical-Whether a class to be situated similarly to the
Scheduled Caste/Tribe for being qualified as a Backward Class.
Constitution of India, 1950:
Articles 15, 16-:Backward c/asses-ldentification--Criteria.
G
Constitution of India, 1950:
Articles 15, 16-:Backward classes-Classification into backward and
more backward-Legality of.
Constitution of India, 1950:
H
Articles 15, 16-Reservation-50% rule in Balaji-£ffect of-50% rule
454
...
INDRA SAWHNEY v. U.0.l.
455
whether includes all types of reservations under Article 16 or those reservaA
tions made under Article 16( 4 j-f'rocedure to apply 50% rnle-Devadasan
whether good law.
Constitution of India, 1950:
of
Article 16(4}-f'rovision for reservation in promotiun matters-Legality B
Constitution of India, 1950:
Articles 14, 15, 16, 38(2), 46, 333-Reservation whether anti-meritanConstrnction of Article 16 in the relevancy of Articles 333, 38(2), 46.
Constitution of India, 1950:
Articles 14, 15, 16, 226, 3"}-[dentification of backward classes and
fu:ation of percentage of reservations-Judicial review-Scope of
Constitution of India, 1950:
Articles 14, 15, 16-'Poorer sections' of backward classes and
others-Distinction made in the Memorandum dated 25.9.1991-Validity of
Constitution of India, 1950:
Articles 14, 15, 16, 341>--Memorandum dated 25.9.1991-l?.eservation
c
D
of 10% of the posts in favour of "other economically backward sections" of E
the·people, not covered under the existing schemes of reservation-Validity
of--Lists of State Governments identifying SEBCs!OBC,--EffecrWhether
appointing Commission to identify OBCs necessary.
Comparative Law-{f.S. Constitution Fourteenth Amendment-Section
1 and Title VI of the Civil Rights Act, 1964, read with Articles 14, 15, 16,
F
Constitution of India, 1951>-Reservation of seats or vacancies or appoint111ents or posts-Reasonable reservation in America-ldeas still in the process
of evolution.
The Central Government appointed a Backward Class Commission
(popularly known as Kaka Kalekar Commission) under Article 340 of the G
Constitution on January 29, 1953. The Commission was required "to
investigate the conditions of socially and educationally backward classes
within the territory of India and the difficulties under which they labour
and to make recommendations as to the steps that should be taken by the
Union or any State to remove difficulties and to improve their conditions." H
A
B
456
SUPREME COURT REPORTS (1992] SUPP. 2 S.C.R.
The Commission submitted its report on March 30, 1955. According
lo the Commission, the criteria for identifying the backward classes,
under Article 15(4) would be their traditional occupation and.profession,
the percentage of literacy or the gener!ll education advancement made by
them; the estimated population of the community; the distribution of the
various communities throughout the State or the concentration in certain
areas and the s.ocial position which a cc;>mmunity occupied in the caste
hierarchy. It also stated that the causes of educational backwardness
amongst the educationally and backward communities were (i) traditional
apathy for education on account of social and ~nvironmental conditions
or occupational handicaps; (ii) poverty and lack of educational instituC tions in rural areas and (iii) living in inaccessible areas.
In the enclosing letter addressed to the President, the Chairman of
the Commission stated that effecting reservations and other remedies on
the basis of caste would not be in the interest of society and country; that
if the principle of caste is eschewed altogether, to make it would be
. D possible to help the ·extremely poor and deserving members of all the
communities and that preference ought, to be given to those who come
from traditionally neglected social classes.
E
F
The Central Government did not take any action on the report.
On August 14, 1961, the Central Government wrote to the State
Gove:-nments to choose their own criteria for defining backwardness.
Various State Governments thereupon app3inted Co!Dmissions for
identifying backward classes. Later they issued orders identifying the
Socially and Educationally Backward Classes and reserving certain percentage of posts in their favour. In Centra.1 services, reservations were
made in favour of Scheduled Castes and Scheduled Tribes but not in
favour of other backwards classes.
On January 1, 1979 the Second Backward Classes Commission
G
und~r the Chairmanship of Sh. B.P. Manda!, popularly known as Manda!
Commission, was appointed under Article 340 of the Constitution of
India, to investigate the conditions of Socially and Educationally backward
Classes· (SEBCs) within the territority of India and to determine the
~
.
criterfu for defining the SEBCs.
H
The report was submitted on December 31, 1980. The Commission
,_
INDRA SAWHNEY v. U.O.l.
457
evolved 11 Indicators or criteria for determining social and educational A
backwardness, grouping them under three broad heads, i.e., Social,
Educational and Economic. The Social indicators were given a weightage
of 3 points each; the Educational Indicators 2 points each and the
Economic Indicators l point each.
The Commission according to its report, adopted a multiple approach for preparing the lists of OBCs for all the States and Union
Territories. The main sources examined for preparing these lists were: (i)
soci~-eduq1tional field survey (ii) sensus reports of 1961 (iii) personal
knowledge gained through its extensive tour of the country and (iv) lists
of OBCs notified by the various State Govts. It applied difficult tests for
identifying OBCs among Hindus and non-Hindus. It recommended 27%
reservation in favour of"OBCs.
The Manda! Commission Report was laid before each House of
·parliament. It was discussed in 1982 and again in 1983 in the Parliament.
Vide Office Memorandum dated 13th August, 1990, the Government
of India considering the . recommendations of the Mandal Commission,
extended and provided for certain benefits in the services of the Union and
their Public Sectors Undertakings, in favour of the socially and educationB
c
D·
ally backward classes. The Office Memorandum provided (i) tliat 27% of E
the vacancies in civil posts and services under the Government of India to
be reserved for SEBCs., (ii) that the aforesaid reservation was to apply
to vacancies to be filled by direct recruitment; (iii) that candidates belonging to SEBCs recruited· on the basis of merit in open competition on the
same standards prescribed for the general candidates not to be adjusted
against the reservation quota of 27%; (iv) that the SEBCs would comprise
F
the castes and communities common to the lists prepared by the Commission and L'ie State Governments; and (v) that the reservation to be effected
from 7.8.1970 prospectively .
. The issuance of the Memorandum dated 13th August 1990 caused G
wide-spread protest. Law and order was disturbed and private and public
properties damaged. Some young people lost their lives by self-immolation.
Writ petitions were filed in this Court challenging the Memorandum
dated 13th August 1?90 along with applicatfons for staying the operation
of the Memorandum; This Court allowed the applications for stay.
H
458
SUPREME COURT REPORTS (1992] SUPP. 2 S.C.R.
A
Following the general election held in the first half of 1991, the
B
Government at the Centre changed. The new Government issued another
Office Memorandum dated 25th September 1991 modifying the Memorandum dated 13th Augnst 1990.
The Memorandum dated 25th September 1991 was issued in order to
enable the poorer sections of the SEBCs to receive the benefits of reservation
on a preferential basis and to provide reservation for other economically
backward sections of the people not covered by any of the existing schemes of
reservation. The Memorandum provided (i) that within the 27% of the
vacancies in civil posts and services under the Government oflndia reserved
for SEBCs, preference to be given to candidates belonging to the poorer
C sections of the SEBCs and in case sufficient number of such candidates were
not available, the vacancies to be filled up by the other SEBC candidates; and
(ii) that 10% of the vacancies in civil posts and services under the Government oflndia to be reserved for other economically backward sections of the
people, not covered by any of the existing schemes of reservation.
D
E
Though it is stated in the Memorandum, that the criteria for determining the poorer sections of the SEBCs or the other economically backward sections of the people not covered by any of the existing schemes of
reservation will be issued separately, till the date of the judgment by this
Court, the Ceutral Government did not evolve the economic criteria.
The Writ Petitions were beard originally by a Constitution Bench
presided by the then Chief Justice of India. The Constitution Bench
referred the petitions to a Special Bench of Nine Judges to finally settle
the legal position relating to reservations in an authoritative way.
F
The petitioner in W.P.No. 948 of 1990 contended that caste was a
prohibited ground of distinction under the Constitution and it co•tld not
be the basis for determining backward classes referred to in Article 15 ( 4);
that the Mandal CommJssion treated the expreSBion "backward classes" as
synonymous with backward castes and identified backward classes ignor·
G ing other considerations like poverty; that if half of the posts were
reserved for backward classes, it would seriously jeopardise the efficiency
of the administration, educational system, and all other services resulting
in backwardness of the entire nation; that merit would disappear by
deifying backwardness; that Article 16(4) was broader than Article 15(4);
that the .xpression "backward class" in Article 16(4) was not limited to
H "socially and educationally backward classes" in Article 15(4).
_,
INDRA SAWHNEY v. U.0.1.
459
The petitioner in writ petition No. 930 of 1990 submitted that the A
'provision' contemplated by clause (4) of Article 16 could be made by the
Legislature alone and not by the executive or any other authority; thatBalaji
was not correctly decided; that since the provision made under Article 16(4)
affected the fundamental rights of other citizens, such a provision could be
made only by the Parliament/Legislature; that if the power of making the
"provision" was given to the Executive, it would give room for any amount of B
abuse; that backwardness under Article 16(4) should be determined on the
basis of social, educational and economic backwardness; that the authority
appointed to identify backward classes was first to settle the criteria or the
indicators for determining backward classes and then to apply the criteria to
each and every group in the country and it was not permissible to start with
castes to determine whether a caste was a backward class; that since castes c
did not exist among Muslims, Christians, and Sikhs, caste could never be the
basis ofindentification.
The petitioner in W.P. No. 972 of 1990 urged that survey to identify
backward classes should be from individual to individual and not to be D
caste .. wise.
The petitioner (W.P.No. 1061 of 1990) submitted that the only basis
for identifying backward classes would be occupation~um-means; that a
secular socialist society could never countenance identification of backward E
classes on the basis of caste which would only perpetuate and accentuate
caste differences.and generate antagonism and antipathy between castes.
The petitioners submitted that some members of the designated
backward classes were highly advanced socially as well as economically
and educationally; that they constituted the forward section of that parF
ticular backward class and that they were lapping up all the benefits of
reservations meant for that class, Without allowing the benefits to reach
the truly backward members of that class and with them a class could not
be treated as backward; that the resenation of appointments or posts
contemplated by Article 16(4) was only at the stage of entry i~to State G
senice, i.e., direct recruitment; that providing for reservation thereafter
in the matter of promotion amounts to a double reservation; that if such
a provision was made at each successive stage of promotion i! would be a
case of res~nation being provided that many times; that by providing
reservation in the matter of promotion, the members of a- re~erved
category would generate acute heart·burning and cause inefficiency in H
460
SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.
A
administration; that the caste-based approach adopted by the Commission divided the nation into a forward section and a backward section;
that the Commission was ~ctuated by malice towards upper castes !ind its
report was unbalanced, unjust and unconstitutional.
B
The respondent-Union of India urged that the reservation provided
for by Article 15(4) was not in favour of backward citizens, but in favour
of backward class of citizens; that what was to be identified was backward
class of citizens and not citizens who could be classified as backward; that
groups based on religion, race, caste, place of birth etc. could form a class
of citizens and if that class was backward there could be a reservation in
C favour of that class of citizens; that caste was relevant consideration to
determine backward class; that Article 16(2) prohibited discrimination
only on any or all of the grounds mentioned therein; that if reservation
was made in favour of backward class or citizens, the bar contained in
Article 16(2) was not attracted, even if the backward classes were identified with reference to castes, as the backward classes were not adequately
D
represented in the services of the State; whether a backward class was
represented adequately in the service under the state is a question of fact
and was within the domain of the executive decision; that adequacy in .
representation did not mean representation at the lowest level alone, but
at all levels in the administration; that plain words of the Constitution
E should be given their due meaning and that there was no warrant for
cutting down their ambit on the basis of certain suppositions with respect
to interpretation of clauses (I), (2) and (4) of Article 16.
The State of Bihar contended that backward castes in Article 16(4)
meant only the members of Shudra caste and the out-Castes (Panchamas)
F
referred to as Scheduled Castes; that the expression "backward classes"
did not refer to any current characteristic· of a backward caste save and
except paucity or inadequacies of representation in the apparatus of the
Government; that poverty was not a necessary criterion of backwardness;
that it was for the State to determine who were the backward classes and
H was not a matter for the Court; that the decision of the Government was
G not judicially reviewal as it was extremely limited • to the only question:
whether the exercise of power was a fraud on the Constitution.
Respondent·Srinarayana Dharma Paripalana Yogam submitted
that Articles 16(4) and 15(4) occupy different fields and serve different
H purposes; that while Article 15(4) contemplated positive action program~
INDRA SAWHNEY v. U.0.1.
461
mes. Article 16(4) enabled the State to undertake schemes of positive A
discrimination; that the social and educational backwardness which was
the basis of identifying backwardness under Article 15(4) was only partly
true in the case of 'backward class of citizens' in Article 16(4); that the
expression "any backward class of citizens" in Article (16(4) has to be
understood in the light of the purpose of the said clause; that the
Scheduled Castes!fribes were to be beneficiaries of Article 16(4), there
was no reason why caste not to be an exclusive criteria for determining
beneficiaries under Article 16(4); that Article 16(4) contemplated with
group protection and not individual protection.
The Communist Party of India, an Intervenor contended that caste
plus poverty plus location plus residence to be the basis of identification
and not mere caste; that a national concensus was essential to introduce
reservations for 'other backward classes' under Article 16(4).
B
c
The State of Tamil Nadu contended that the backward classes to be
identified only on the basis of caste and no economic criteria be adopted D
for the purpose; that economic criteria may be employed as one of the
indicators for identific~tion of backward classes; that once a backward
class was identified, there was no question of excluding any one from that
class on the basis of income or means or on any other economic criterion.
The State of Kerala submitted that caste furnished a perfectly scientific basis for identification of backward classes.
Respondent-All India Federation of Backward Classes, Scheduled
Castes, Scheduled Tribes and Religious Minorities submitted that caste to
be the sole criteria for determining backwardness; that the Shudras and
Panchamas to be given a share in the governance of the country to assure
their dignity and to instill in them a sense of confidence and a spirit of
competition.
E
F
The Respondents urged that once a class was identified as a backward class after applying the relevant criteria Including the economic one, G
it was not permissible to app.Iy the economic criteria once again and
sub-divide a backward class into two sub-categories; that the argument of
'Creamy layer' was but a mere ruse, a trick to deprive the backward
classes .of the benefit of reservations.
On the questions:-
H
462
A
B
c
SUPREME COURT REPORTS [1992) SUPP. 2 S.C.R.
"l (a) Whether the 'provision' contemplated by Article 16(4) must
necessarily be made by the legislative wing of the State?
(b) Ir 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 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/concesD
sions?
3(a) What does the expression 'backward class of citizens' In
Article 16(4) means?
(b) Whether backward classes can be identified on the basis and
E
with reference to caste alone?
F
G
(c) Whether a class, to be designated as a backward class, should
be situated similarly to the S.Cs. & S. Ts.?
(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?
4(a) Whether the backward classes can be identified only and
exclusively with reference to 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 categorised into
H
backward and more backward categories?
INDRA SAWHNEY v. U.0.1.
463
6. To what extent can the reservation be made? (a) Whether the A
50% rule enunciated in Ba/aji 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 cau be provided under Articles 16?
(c) Further while applying 50% rule, ifany, whether an year should
be taken as a unit or whether the total strength of the cadre should
be looked to?
(d) Whether Devedasan was correctly decided?
7. Whether Article 16 permits reservations being provided in the
matter of promotions?
B
c
8. Whether reservations are anti·meritian? To what extent are D
Articles 335, 38(2) and 46 of the Constltntion 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 E
identification or a demonstrably unreasonable percentage?
10. Whether the distinction made in the second Memorandum
between poorer sections of the backward classes and others per·
missible 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 schemes of the reservations made by the
Office Memorandum dated 25.9.1991 permissible under Article
16.".
Disposing of the Writ Petitions and Transferred Cases, This Court,
F
G
(Constituting M.H. Kania, CJ., M.N. Venkatachaliah, S. Ratnavel
Pandian, Dr. T.K. Thommen, A.M. Ahmadi, Kuldlp Singh, P.B.
Sawant, R.M. Sahai and B.P. Jeevan Reddy, JJ • Majority View: H
A
B
c
D
E
F
464
SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.
Per B.P. Jeevan Reddy, J. on his behalf and or behalf of M.H.
Kania, CJ., M.N. Venkatachaliah, A.M. Ahmadi, JJ. Per. S. Ratnavel Pandian and P.B. Sawant, JJ partly concuning, Dr. T.K.
Thommen, Kuldip Singh and R.M. Sahai, JJ. (Dissenting).
HELD : Per Majority View (B.P. Jeevan Reddy, J. on his behalf and
on behalf of M.H. Kania, CJ., M.N. Venkatachaliah and A.M. Ahmadi, JJ.)
.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.
[692-H; 693-A]
Per S. Ratnavel Pandian, J. (Concuning)
Any provision under Article 16(4) is not necessarily to be made by
the Parliament or Legislature. Such a provision could also be made by an
Executive order. [778-B]
Per br. T.K. Tbo~men,J. (Concuning)
It is open to the State to adopt any valid affirmative action programme,
otherwise than by reservation, for amelioration of the disabilities of all
disadvantaged persons, including backward classes of citizens. (820-B]
Per Kuldip Singh, J. ( Concuning)
The Brother Judges have held that the reservations can be provided
by the Parliament, State Legislatures, statutory mies as well as by way of
Executive Instructions issued by the Central Government and the State
Governments from time to time. (853-G]
The Executive Instructions can be issued only when there are no
statutory provisions on the subject. Executive Instructions can also be
issued to supplement the statutory provisions when those provisions are
G silent on the subject of reservations. These propositions of law are unexceptionable. (853-H)
Any Executive Instruction [issued under Articles 16(4), 73 or 162)
providing reservations, which goes contrary to statutory provisions or the
mies under Article 309 or any other statutory rules, shall not be operative
H to the extent it is contrary to the statutory provisions/mies. (854-A)
)
\. I
fNDRA SAWHNEY v. U.O.I.
465
Per P.B. Sawant, J. (Concurring)
The provision for reservation in the services under Article 16(4) can
be made by an executive order. (938-D]
Per Majority view.
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. (696-F, GI
Per S. Ratnavel Pandian, J. (Concurring)
Article 16(4) of the Constitution is neither an exception nor a
proviso to Article 16(1). It is exhaustive of all the reservations that can be
made in favour of backward cl3ss of citizens. It has an overriding effect
A
B
c
on Article 16(1) and (2). (777-E]
D
No reservation can be made under Article 16(4) for classes other
than backward classes. But under Article 16(1) reservation can be made
for classes, not covered by Article 16(4). (777-F]
Per Dr. T.K. Thommen, J. (Partly dissenting)
It is open to the State to adopt valid classification and make special
provisions for the protection of classes of citizens whose comparative backwardness the State has a mandate to redress by affirmative action program·
mes. Any such programme must be strictly tailored to the constitutional
requirement that no citizen shall be excluded from being considered on the
basis of merits for any public employment except to the exteni that a valid
reservation has been made in favour of backward classes of citizens. (815-F]
E
F
The Constitution prohibits discrimination on grounds only of
religion, race, caste, sex, descent, place of birth, residence or any of them. Any G
discrimination solely on any one or more of these prohibited grounds will
result in invidious reverse discrimination which is imperimissible. None of
these grounds is the sole or the dominant or the indispensable criterion to
identify backwardness which qualifies for reservation. But each of them is, in
~onjunction with factors such as poverty, illiteracy, demeaning occupation,
malnutrition, physical and intellectual deformity and like disadvantages, a H
466
SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.
A
relevant criterion to identify socially and educationally backward classes of
citizens for whom reservation.is intended. [815-G-H; 816-A]
B
Reservaiim contemplated under Article 16 is meant exclusively for
backward classes of citizens who are not adequately represented in the
services under the State. [816-B]
Only such classes of citizens who are socially and educationally
backward are qualified to be identified as backward classes for the purpose of reservation under Article 15 or Article 16, their backwardness
must have been either recognised by means of a notification by the PresiC dent under Article 341 or Article 342 declaring th~ to be. Scheduled
Castes or Scheduled Tribes, or, on an objective consideration, identified
by the State to be socially and educationally so backward by reason of
identified prior disc.riminalion and its continuing ill-effects as to be com·
parable to the Scheduled Castes or the Scheduled Tribes. In the case of
the Scheduled Castes or the Scheduled tribes, these conditions are, in
D view of the notifications, presumed to be satisfied. [816-B-D]
In the case of the other backward classes of citizens qualified for
reservation, the burden is on the State to show that these .classes have
been subjected to such discrimination in the past that they are reduced to
E a state of helplessness, poverty and the consequential social and educational backwardness as in the case of the Scheduled Castes and the
Scheduled Tribes. [816-D, El
F
G
Reservation is meant exclusively for the Harijans, the Girijans, the
Adivasis, the Dalits or other like "depressed" classes or races or tribes most
unfortunately referred to in the past as the "untouchables" or the "outcastes"
by reason of their being born in what was wrongly regarded as low castes and
associated with what was equally wrongly treated as demeaning occupations,
or any other class of citizens amicted by like degree of poverty and degrada·
lion caused by prior and continuing discrimination and exploitation,
whatever be their professed faith, "religion" or caste. These classes of
citizens, segregated in slums and ghettos and affiicted by grinding poverty,·
disease, ignorance, ill-health and backwardness, and hunted by fear and
anxiety, are the constitutionally intended beneficiaries of reservation, not
because of their castes or occupations, Which are merely Incidental facts of
history, but because of their backwardness and disabilities stemming from
H identilied past or continuing inequities and discrimination. [816-E-G]
.'
INDRA SAWHNEYv. U.0.1.
467
Members of the Scheduled Castes or the Scheduled Tribes do not A
lose the benefits of reservation and other affirmative action programmes
intended for backward classes merely by reason of their conversion from
the Hindu or the Sikh or the Buddhist religion to any other religion, and
all such persons shall continue to be accorded all such benefits until such
time as they cease to he backward. (816-H; 817-A]
B
Identification of backward classes for the purpose of reservation
with reference to historical discrimination and its continuing ill effects is,
however, subject to the overriding condition that no person whose means
exceeded a predetermined economic level should be entitled to the protection of reservation, however, backward he may he socially and educationC
ally. He may, however be considered for the benefits of other affirmative
action programmes, but in doing so his comparative affiuence in relation
to other backward class candidates may be a relevant c~nsideration to
exclude him. (817-B, CJ
Per Kuldip Singh, J. (Conculring with R.M. Sahai, !.)
Article 16(1) and Article 16(4) operate in the same field. (849-G]
Article 16(4) is exhaustive of the State-power to provide reservations
in State services. (849-G]
Protective discrimination, short of reservations, which satisfy the
tests of reasonableness, is permitted under Article 16(1). No reservation
of any kind can be made for any class or category whether backward or
non-backw3rd under Article 16(1). (849-H; 850-E]
Per P.B. Sawant, J. (Conculring with Majority View)
Clause (4) of Article 16 is not an exception to clau~e (1) thereof. It
only carves out a section of the society, viz., the backward class of citizens
D
E
F
for whom the reservations in services may be kept. The said clause is
exhaustive of the reservations of posts in the senices so far as the G
backward class of citizens is concerned. It is not exhaustive of all the
reservations in the services that may be kept. The reservations of posts In
the services for the other sections of the society can be kept under clause
(1) of that Article. (936-F]
Per. R.M. Sabal, J. (Dissenting)
H
468
SUPREME COURT REPORTS I 1992] SUPP. 2 S.C.R.
A
Article 16(4) being part of the scheme of equality doctrine it is
B
c
exhaustive of reservation, therefore no reservation can be made under ·
Article 16(1).
Constitutional law bar under Article 16(2) against State for not
discriminating on race, religion or caste is as much applicable to Article
16(4) as to Article 16(1) as they are part of the same scheme and serve
s~me constitutional purpose of ensuring equality. [1005-E]
Reservation being extreme form of protective measure or affirmative
action it should be confined to minority of seats. [1006-C]
Per Majority View:-
The expression 'backward class' in Article 16(4) takes in Other Back·
ward Classes', S.Cs., S.Ts. and ma;- be some other backward classes as well.
The accent in Article 16(4) is upon social backwardness. Social backwardD ness leads to educational backwardness and economic bacI<.wardness. They
are mutually contributory to each other and are inter-twined with low
occupations in the Indian society. 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). The weaker
sectlons referred to in Article 46 do include S.E.3.Cs. referred to in Article
E 340 and covered by Article 16(4). [696-H; 697-A]
F
Even under Article 16(1), reservations cannot !>e made on the basis
of economic criterion alone. [697-B]
Per S. Ratnavel Pandian, J. (Concurring)
The expression, "backward class of citizens" occurring in Article
16(4) is neither defined nor explained in the Constitution. However, the
backward class or classes can certainly be identified in Hindu Society with
reference to castes along with other criteria such as traditional occupaG lion, poverty, place of residence, lack of education, etc. and in ccmmunities where caste is not recognised by the above recognised and
accepted criteria except caste criterion. [777-G]
In the process of identification of backward class of citizens under
Article 16(4) among Hindus, caste is a primary criterion or a dominant
H
factor though lt~is not the sole criterion. [777-H; 778-A)
INDRA SAWHNEY v. U.0.1.
469
Per Dr. T.K. Thommen, J. (Dissenting)
The validity of the impugned Govt. orders providing for reservation
of posts depends on co!'vincing proof of proper identification of backward
classes of citizens by recourse to relevant criteria, such as poverty, illiteracy, disease, unhygienic living condi~ions, low caste and consequential
isolation, and in accordance with correct principles, i.e. with reference to
the continuing ill effects of historical discrimination resulting in social
and educational backwardness comparable to that of the Scheduled Castes or the Scheduled Tribes, and inadequate representation of snch classes
of citizens in the services under the State, bot subject to the overriding
condition that all those persons whose means have exceeded a predetermined economic level shall be denied reservation. Amoniist the aforemen-
. tioned backward classes of citizens correctly identified to be qualified for
reservation, preference may be ligitimately extended to the comparatively
poorer or more disadvantaged sections. [819-A-F]
A
B
c
Reservation Of seats or posts solely on the basis of economic backD
wardness, i.e. without regard to evidence of historial discrimination finds
no justification in the Constitution. [819-GJ
Once a class of citizence is identified on correct principles as backward for the purpose of reservation, the "m~ns test" must be strictly and
uniformly applied to exclude all those persons in that class reaching above E
the predetermined economic level. [817-D]
Per Kuldip Singh, J. (Concuning with R.M. Sahai, !.)
The expression 'backward class of citizens" under Article 16(4) does
not mean the same thing as the expression "any socially and educationally
backward classes of citizens" in Article 15(4). [837-A]
A class which is adequately represented in the State-services cannot
be considered a backward class. A class may not be backward even if it
F
has inadequate representation in the State-services, but once it secures G
adequate representation in the State-services it no longer remains backward. It is not possible to read the expression "not adequately represented" in Article 16(4) in relation to "any backward class." [841-D, E]
Under the Constitution the "backward class" which bas been identified for preferential treatment is the "socially and educationally backH
•
470
SUPREME COURT REPORTS (1992] SUPP. 2 S.C.R.
A
ward class". Article 16(4) does not provide job-reservations for the backward classes. That is why the expression "socially and educationally backward" has not been used therein. The classes of citizens to be identified
under Article 16(4) are those who are not adequately represented in the
services under the State. [841-A-C]
B
c
'Class' under Article 16(4) cannot be read as 'caste'. Castes cannot
be adopted as collectivities for the purpose of identifying the "backward
class" under Article 16(4). [822-C]
Occupation (plus income or otherwise) or any other secular collectivity can be the basis for the identification of "backward classes". Castecollectivity is unconstitutional and as such not permitted. [822-C, DJ
A backward class for the purpose of Article 16(4) can be identified
solely on the basis of economic criteria. [853·F]
D
Per P.B. Sawant, J.
E
The backward class of citi7.ens referred to in Article 16(4) is the
socially backward class of citizens whose educational and economic backw~rdness is on account of their social backwardness. A caste by itself may
constitute a class. However, in order to constitute a backward class the
caste concerned must be socially backward and its educational and
economic backwardness must be on account of its social backwardness.
[936-G, H; 937·A]
The economic criterion by itself cannot identify a class as backward
F
unless the economic backwardness of the class is on account of its social
backwardness. [937-A]
No reservations of posts can be kept in services under the State
based exclusively on economic criterion either under Article 16(4) or
G under Article 16(1). [937-D]
The weaker sections mentioned in Article 46 are a genus of which
backward class of citizens mentioned in Article 16(4) constitute a species.
Article 16(4) refers to backward classes who are not adequately repre·
sented in the services, and not for all the weaker sections that the reserH vations in services are provided under Article 16(4). [937-B, CJ
INDRA SAWHNEY v. U.0.1.
471
Per R.M. Sahai, J. (Dissenting)
A
Reservation under Article 16(4) being for any class of citizens and
citizen having been defined in Chapter 11 of the Constitution includes not
only Hindus, but Muslims, Christians, Sikhs, Buddhists, Jains etc., the
principle of identification has to be of universal application so as to
extend to every community and not only to those who are either converts B
from Hinduism or some of whom to carry same occupation as some of the
Hindus. [1006-A, B)
Social and educational backward class under Article 340 being narrower in import than backward class in Article 16(4) it has to be construed in
restricted manner. And the words, "educationally backward
11 in this Article C
cannot be disregarded while determining backwardness. [1005-H)
ldentificatioin or backward class by caste is against the Constitution. [1005-E)
Identification or a group or collectivity by any criteria other than D
caste, such as, occupation-cum-social-cum-educational-cum-economic
criteri~· ending in caste 1nay not be invalid. [1005-G]
The prohibition is not mitig"ated by using the word, 'only' in Article
16(2) as a cover and evolving certain socio-economic indicators and then
applying it to caste as the identification then suffers from the same vice. E
Such identification is apt to become arbitrary as well as the indicators
evoived and applied to one community may be equally applicable to other
community which is excluded and the backward class of which is denied
similar benefit. [1005-F]
Economic backwardness may give jurisdiction to State to reserve,
F
provi.ded it can find out m.echanism to ascertain inadequacy of repre·
sentation of such class. But such group or collectivit)' does not fall under
Article 16(1). [1006-F]
Per Majority View:
G
There is no constitutional bar to classification of backward classes
into more backward and backward classes for the puposes or Article 16(4).
The distinction should be on the basis of degrees of social backwardness. In
case of such classification however, it \l'ould be advisable. nay, necessary. to
ensure equitable distribution amongst the various bacirn'ard classes to avoid
lumping so that one or two such classes do not eat away the entire quota lI
472
SUPREME COURT REPORTS (1992] SUPP. 2 S.C.R.
A
leaving the other backward classes high and dry.