THE MANDAL COMMISSION CASE: INDRA SWAHNEY V. UNION OF INDIA
The Mandal Commission was appointed by the government in 1979 under Article 340 of the Constitution. The objective of the Commission was to investigate the conditions of socially and educationally backward classes. The Commission in its findings held that apart from Scheduled Caste and Scheduled Tribes, Other Backward Classes (OBCs) constitute nearly 52% of the population. On this basis the Commission recommended that 27% of the government jobs should be reserved so that total reservation for SCs, STs and OBCs amounts to 50%.
This report was accepted in 1999 and the Central Government issued an office memorandum accepting the Mandal Commission recommendation. The government announced 27% reservation for socially and educationally backward classes in vacancies in civil posts and services under the Government of India. Subsequently the government modified the memorandum in 1991 in two respects; firstly, the poorer sections among the backward classes would get preference over other sections and secondly, 10% of the vacancies would be reserved for other ‘economically backward sections’ who are not covered by any other existing reservation scheme.
These memorandums were challenged before a bench of 9 judges in Supreme Court in Indra Sawhney v. Union of India, AIR 1993 SC 477. Scope and extent of Article 16(4) was examined thoroughly by Supreme Court. Majority opinion of the court is summarized as follows:-
1. Backward class of citizen in Article 16(4) can be identified on the basis of caste and not only on economic basis but caste alone cannot be the basis for consideration.
2. The court made it clear that ‘backward classes’ cannot be identified solely on the basis of economic criteria. Thus, the court struck down economic criterion for reservation on the ground that Article 16(4) does not mention it.
3. Article 16(4) is not an exception to Article 16(1). It is an instance of classification. Reservation can be made under Article 16(1). Article 16(1) is a facet of Article 14. Court overruled its decision in Balaji v. State of Mysore to the extent it held that Article 16(4) is an exception to Article 16(1).
4. Backward classes in Article 16(4) are not similar to socially and educationally backward in Article 15(4). Article 16(4) does not use the qualifying words ‘socially and educationally backward classes’. Certain classes may not qualify for Article 15(4) but they may qualify for Article 16(4). Court overruled Balaji’s decision on this point in which it was held that backward classes of citizens under Article 16(4) is same as socially and educationally backward classes.
5. The court held that ‘creamy layer’ must be excluded from the benefit of reservation. Such exclusion will benefit truly backward classes and would serve the purpose of Article 16(4). The court directed the government to lay down standards for exclusion on the basis of ‘creamy layer’.
6. Article 16(4) permits classification of backward classes into backward and more backward classes.
7. Reservation shall not exceed 50 percent. In extra-ordinary situations it may be relaxed in favour of people living in far flung and remote areas of the country. The court divided the total reservation into ‘vertical’ and ‘horizontal’. The court ruled that the reservation in favour of SCs, STs and OBCs under Article 16(4) is ‘vertical’ reservation whereas reservation made in favour of physically handicapped etc. [under Article 16(1)] can be referred as ‘horizontal’ reservation.
8. Court overruled Devadasan v. Union of India (1964) and held that ‘carry forward’ rule is valid provided it should not result in breach of 50% rule.
9. Court held that reservation under Article 16(4) cannot be made in promotions. Under Article 16(4) reservation is permissible only at the entry stage of the service.
10. Reservation under Article 16(4) can be provided not only by the Parliament or State Legislature but also through an executive/administrative order by the ‘State’ as contemplated under Article 12. The provisions made by the executive order under Article 16(4) become effective and enforceable by itself without it being enacted into a law made by the legislature.
11. No reservation can be provided outside Article 16(4) in favour of ‘backward classes’. Reservation for other classes may be provided under Article 16(1).
12. Not only should a class be a backward class, it should also be inadequately represented in the services under the State. This matter lies within the subjective satisfaction of the State under Article 16(4). However, there must be some material upon the basis of which the opinion is formed by the State.