As SC considers referring Indra Sawhney judgment to larger bench, a look back at implications of landmark verdict

The Supreme Court on Monday said it would also hear arguments on the issue of whether the landmark 1992 judgement in the Indra Sawhney case should be re-looked at and referred to a larger bench. The verdict in the case of the Indra Sawhney vs Union of India— also known as the Mandal verdict — capped reservations at 50 percent . On Monday, the apex court Bench comprising Justices Ashok Bhushan, L Nageswara Rao, S Abdul Nazeer, Hemant Gupta and S Ravindra Bhat said it would commence hearing in matter from next Monday. The court has asked the states to file a brief note of written submissions on the issue. The apex court has also sought responses from states on whether legislatures are competent to declare a particular caste to be socially and educationally backward for grant of quota. The Supreme Court’s action come in the context of a batch of pleas challenging the validity of the Maratha reservation law. The ongoing legal battle in the top court has brought back into focus the Indra Sawhney judgment, which has often been a part of heated debates on quota-related policies in India. Here is a look at the case and its implications. Background The genesis of the debate was in 1980, when the Second Backward Classes Committee, headed by BP Mandal, submitted its report. The report recommended 27 percent reservation for Other Backward Classes (OBCs) and 22.5 percent for the Scheduled Castes/Scheduled Tribes. The Central government, however, acted on the report a decade later, by issuing an office memorandum (OM), providing 27 percent vacancies for Socially and Educationally Backward Classes to be filled by direct recruitment. The announcement sparked large-scale protests across the country, which contributed to the fall of the then VP Singh government. A petition against the memorandum was filed in the Supreme Court. Shortly afterwards, the Centre issued a second memorandum notifying an additional reservation of 10 percent for other economically backward sections. A nine judge bench headed by Justice BP Jeevan Reddy heard the case in the Supreme Court. Judgment The Supreme Court, in a 6:3 verdict, upheld the 27 percent quota for SEBCs, but struck down the 10 percent quota based on economic criteria. It held that “a backward class cannot be determined only and exclusively with reference to economic criterion”. “It (economic condition) may be a consideration or basis along with, and in addition to, social backwardness, but it can never be the sole criterion,” the court held, as noted by an article in The Hindu. The judgment also laid down that the extent of reservation should not cross the 50 percent limit, unless a special case was made out for extraordinary situations and peculiar conditions to relax the rule. It also told the Centre to evolve to exclude the ‘creamy layer’ from the ambit of reservation for backward classes. The court said, “Just as every power must be exercised reasonably and fairly, the power conferred by Clause (4) of Article 16 should also be exercised in a fair manner and within reasonably limits – and what is more reasonable than to say that reservation under Clause (4) shall not exceed 50 percent of the appointments or posts, barring certain extraordinary situations…” Article 16 of the Constitution deals with equality of opportunity in public employment, and Clause 4 under it reads, “Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.” The court also held, “Duty of State to protect against deprivation due to poverty should not be confused with State’s obligation to treat everyone uniformly and equally without discrimination.” The 50 percent cap on reservation is arguably the most-discussed part of the verdict. Interestingly, as noted in an article in The Wire, in 2015, Prime Minister Narendra Modi had referred to the judgment at a Bihar poll rally, and said anyone promising reservations beyond the cap was being “dishonest”. In 2018, the Centre enacted the 102nd Constitution amendment Act, which inserted Article 338B (deals with the structure, duties and powers of National Commission of Backward Class) and 342A (power of the President to notify a particular caste as Socially and Educationally Backward Class (SEBC)) and the power of Parliament to change the SEBC list. These amendments form the legal justification for the Socially and Educationally Backward Classes (SEBC) Act, 2018, of Maharashtra, which was enacted to grant reservation to people of the Maratha community in the state in jobs and admissions. The Bombay High Court, while upholding the law in June 2019, had held that 16 percent reservation was not justifiable and the quota should not exceed 12 percent in employment and 13 percent in admissions. The high court had, however, said that the 50-percent cap on total reservations imposed by the Supreme Court could be exceeded in exceptional circumstances. Several other states have also exceeded the 50 percent limit on reservations. These include Tamil Nadu (69 percent), Haryana (67 percent) and Telangana (62 percent). It is this 50 percent cap that may be reconsidered by the Supreme Court if the ongoing case is referred to a larger bench. With inputs from PTI