Indra Sawhney v. Union of India

Article 16(1) guarantees equality of opportunity in public employment. Article 16(4) allows the State to reserve appointments and posts for backward classes that are not adequately represented in its services. Reservation itself was not new. Chhatrapati Shahu Maharaj of Kolhapur gave reservation in 1902, and Mysore State did so on the Miller Committee's recommendations (committee formed in 1918). The First Backward Classes Commission, set up in 1953 under Kaka Kalelkar, was never implemented.

In 1979 the Morarji Desai government set up the Second Backward Classes Commission under Article 340, headed by B. P. Mandal. Its report, submitted on 31 December 1980, recommended 27% reservation for O.B.C.s in government jobs. The Janata Party government had fallen in 1979, and the Congress governments that followed did not implement the report.

The Janata Dal government of Prime Minister V. P. Singh came to power in 1989. Through an office memorandum dated 13 August 1990, it implemented 27% O.B.C. reservation in central government jobs. Large protests, for and against, broke out across the country, with violence in many places.

While the challenge was pending in the Supreme Court, the P. V. Narasimha Rao government issued another office memorandum on 25 September 1991. It made two changes. First, within the 27%, poorer sections among O.B.C.s would get preference. Second, an additional 10% reservation would go to economically backward people not covered by any existing scheme. With 22.5% for S.C.s and S.T.s, total reservation reached 59.5%.

The matter first went to a five-judge bench and was then referred to a nine-judge bench.

1. Can caste by itself be a class, or are economic criteria alone enough to identify backwardness?

2. Is Article 16(4) an exception to Article 16(1), or an example of classification within Article 16(1)?

3. Can backward classes be divided into backward and more backward?

4. Can economic or other considerations be used in reservation?

5. Is reservation in promotion permissible?

Petitioners: Caste-based reservation would strengthen the caste system, against the goal of a welfare State. It would leave eligible people behind and lower the standard of administration. The effect of the Mandal Commission report was like rewriting the Constitution.

Government: Reservation gives backward classes their rightful claim and continues the recommendations of earlier commissions. These communities had suffered injustice for centuries. This affirmative action, meaning active steps to bring backward classes to a position of equality, was the first step toward correcting that injustice.

On 16 November 1992, the nine-judge bench decided the case by a 6:3 majority. Justice B. P. Jeevan Reddy wrote the majority opinion. Justices T. K. Thommen, Kuldip Singh and R. M. Sahai dissented. The Court held:

1. Backward classes cannot be identified on economic criteria alone. Caste is a relevant factor, and a caste can itself be a class if it is socially backward. The purely economic 10% reservation of September 1991 was therefore struck down.

2. Article 16(4) is not an exception to Article 16(1). It is an example of the reasonable classification already contained in Article 16(1).

3. Backward classes under Article 16(4) are different from, and wider than, the socially and educationally backward classes under Article 15(4).

4. The creamy layer must be excluded. Members of a backward class who have advanced socially and economically should not get reservation, so that the benefit reaches the truly needy.

5. Backward classes may be sub-classified into backward and more backward.

6. Total reservation should generally not exceed 50%. Exceptions are allowed only in extraordinary situations, such as populations in remote areas cut off from the mainstream.

7. There can be no reservation in promotion, because Article 16(4) applies only to initial appointment. This part of the ruling was made prospective. Existing reservation in promotion was allowed to continue for five years.

The Court also gave practical directions. The government was to fix creamy layer criteria, and objections to those criteria could be raised only before the Supreme Court, not before any High Court or tribunal. A permanent body was to be set up to handle complaints about including or excluding communities from the backward class lists.

Constitution of India, Article 16(1); Article 16(4); Article 15(4); Article 340; Article 16(4A) (added later by the Seventy-seventh Amendment, 1995); Constitution (One Hundred and Third Amendment), 2019 (E.W.S. reservation, later development); Office Memorandum dated 13 August 1990; Office Memorandum dated 25 September 1991; National Commission for Backward Classes Act, 1993

This case is the foundation of reservation law in India. The creamy layer concept, the 50% ceiling, caste as a class and sub-classification all come from it.

Later developments respond to it:
- The Seventy-seventh Amendment (1995) added Article 16(4A) to allow promotion reservation for S.C.s and S.T.s.
- M. Nagaraj v. Union of India (2006) upheld Article 16(4A) subject to data-based conditions.
- The B. K. Pavitra cases (2017 and 2019) dealt with Karnataka's consequential seniority laws.
- Mukesh Kumar v. State of Uttarakhand (2020) held that reservation in promotion is not a fundamental right.
- Jaishri Laxmanrao Patil (2021, Maratha reservation) refused to reconsider Indra Sawhney and reaffirmed the 50% limit.
- Janhit Abhiyan (2022) upheld 10% E.W.S. reservation by 3:2 and held that the 50% ceiling does not apply to it.

A subtle point: purely economic reservation failed in 1992 because it did not fit within Article 16(4). In 2019 Parliament added new clauses to the Constitution itself, creating a separate basis for E.W.S. reservation.

Hypothetical: Prince and Farhan both belong to the same O.B.C. community and apply for a central government post. Prince's parents are senior officers with high incomes. Farhan's family is poor and socially disadvantaged. Under the Indra Sawhney rule, Prince falls in the creamy layer and cannot claim O.B.C. reservation, but Farhan can.

Hypothetical: A State wants to raise its total caste-based reservation to 65% without showing any extraordinary circumstances. Following Indra Sawhney, the increase would generally be invalid because it crosses the 50% ceiling.