Indra Sawhney v. Union of India
Supreme Court of India · 16 November 1992 · 9 judges
The Court upheld 27% reservation for Other Backward Classes under Article 16(4) subject to exclusion of the creamy layer, set a normal 50% limit, barred reservation in promotions prospectively, and struck down the 10% economic quota.
Facts
The Second Backward Classes Commission (Mandal Commission), appointed under Article 340, reported on 31 December 1980. By Office Memorandum dated 13 August 1990 the Government of India reserved 27% of vacancies in civil posts and services for socially and educationally backward classes, to be filled by direct recruitment, the classes being the castes and communities common to the Commission's list and the State lists. Writ petitions challenged it and this Court stayed it. A further Memorandum of 25 September 1991 gave preference within the 27% to the poorer sections of those classes and reserved another 10% for other economically backward sections not covered by any existing reservation scheme. A Constitution Bench referred the matter to a Bench of nine Judges to finally settle the law on reservations, and counsel framed eight questions for decision.
Questions before the Court
- Is Article 16(4) an exception to Article 16(1), and is it exhaustive of reservation in public employment?
- What is a backward class of citizens under Article 16(4): can a caste be such a class, can economic criteria alone identify one, and must the creamy layer be excluded?
- Can reservations exceed 50%, and does Article 16(4) permit reservation in promotions?
- Are the Office Memoranda of 13 August 1990 and 25 September 1991, including the 10% reservation on economic criteria, valid?
What the Court held
- Article 16(4) is not an exception to Article 16(1) but an instance of the classification inherent in it. It is exhaustive of reservation for backward classes, and reservations for other classes can be made under Article 16(1). Kuldip Singh and Sahai, JJ. held that no reservation can be made under Article 16(1).
- A caste can be, and often is, a social class in India; if socially backward, it is a backward class under Article 16(4), and identification may begin with castes. The accent is on social backwardness; economic criteria alone cannot identify a backward class. Kuldip Singh and Sahai, JJ. held caste-based identification unconstitutional; Kuldip Singh, J. accepted purely economic identification.
- The creamy layer, the socially advanced persons in a backward class, must be excluded, and an economic criterion may be used as a measure of social advancement. Backward classes may be sub-classified into backward and more backward on degrees of social backwardness. Pandian, J. alone held that no section could be excluded until Government decides.
- Reservations under Article 16(4) should not exceed 50%, save in extraordinary situations, such as far-flung and remote areas, needing a special case and extreme caution. The rule applies to appointments in each year, not to cadre strength, and Devadasan was overruled so far as inconsistent. Pandian, J. held there is no ceiling.
- Article 16(4) does not permit reservation in promotions. This operates prospectively; existing promotion reservations may continue for five years. Concessions and relaxations in promotion remain permissible. Ahmadi, J. expressed no opinion on this point, upholding the Union's preliminary objection.
- The 1990 Memorandum is valid subject to exclusion of the creamy layer, which the Government must specify within four months. The preference for poorer sections is valid only if read as a classification by degrees of social backwardness. The 10% reservation for other economically backward sections is invalid. Kuldip Singh, J. would have upheld it.
Why it matters
A nine-Judge Bench settled the law on reservation in public employment. The majority held that caste can be the basis of identifying a backward class, required exclusion of the creamy layer, fixed 50% as the normal limit on Article 16(4) reservations calculated year-wise, held that Article 16(4) does not extend to promotions, and held that economic criteria alone cannot found reservation. It overruled Devadasan to the extent inconsistent, and directed permanent bodies to examine inclusion and exclusion in backward class lists.
In the Court's words
Copied from the official judgment; each passage links to its page.
“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.”
“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 sections referred to Article 46 do include S.E.B.Cs. referred to in Article 340 and covered by Article 16(4). (3) Even under Article 16(1), reservations cannot be made on the basis of economic criteria alone.”
“There is no constitutional bar to classification of backward classes into more backward and backward classes for the purposes of Article 16(4). The distinction should be on the basis of degrees of social backwardness. In case of such classification, however, it would be advisable - nay, necessary - to ensure equitable distribution amongst the various backward classes to avoid lumping so that one or two such classes do not eat away the entire quota leaving the other backward classes high and dry. For excluding 'creamy layer', an economic criterion can be adopted - as an indicium or measure of social advancement.”
“The rule of 50% should be applied to each year. It cannot be related to the total strength of the class, category, service or cadre, as the case may be. (Para 96) (d) Devadasan was wrongly decided and is accordingly over-ruled to the extent it is inconsistent with this judgment.”
Provisions interpreted
Related judgments
- Distinguished in E.V. Chinnaiah v. State of Andhra Pradesh (2004)
- Explained in Janhit Abhiyan v. Union of India (2022)
- Explained in State of Punjab v. Davinder Singh (2024)
Case and bench
- Parties
- Indra Sawhney v. Union of India
- Case
- Writ Petition (Civil) No. 930 of 1990
- Decided
- 16 November 1992
- Bench
- M.H. Kania, CJ., M.N. Venkatachaliah, S. Ratnavel Pandian, Dr. T.K. Thommen, A.M. Ahmadi, Kuldip Singh, P.B. Sawant, R.M. Sahai, B.P. Jeevan Reddy
- Opinions
- Six separate opinions. Jeevan Reddy, J. wrote for Kania, CJ., Venkatachaliah, Ahmadi, JJ. and himself; Sawant, J. agreed with its conclusions and directions in paras 122 to 124, and Pandian, J. upheld the 1990 Office Memorandum but differed on creamy layer and the 50% rule. Thommen, Kuldip Singh and Sahai, JJ. held both Office Memoranda unenforceable.
Questions on this case
10 questions in live Law Maker papers mention this case. A few from free papers:
Question 1 · Landmark Judgments Practice Set 1
In Indra Sawhney v. Union of India (1992), what did the nine-Judge Bench hold about the 'creamy layer' among the backward classes for reservation under Article 16(4)?
- A. It cannot be excluded, because caste alone determines backwardness for the purposes of Article 16(4)
- B. It may be excluded only from promotions, and never from initial appointments to posts
- C. Its exclusion is a policy matter for Parliament alone and is not open to judicial review
- D. It can and must be excluded, on the basis of social advancement and not merely economic criteria
Show the answer
D. It can and must be excluded, on the basis of social advancement and not merely economic criteria
The majority answered that the 'creamy layer' can be, and must be, excluded from the backward classes, the exclusion being based on social advancement; income or property may be used only as a measure of such advancement. The exclusion applies to the class as identified for Article 16(4), not only to promotions.
Question 2 · Landmark Judgments Practice Set 1
In State of Punjab v. Davinder Singh (judgment of 1 August 2024), a seven-Judge Bench held that sub-classification of the Scheduled Castes for reservation is permissible and overruled:
- A. M. Nagaraj v. Union of India
- B. Indra Sawhney v. Union of India
- C. Jarnail Singh v. Lachhmi Narain Gupta
- D. E.V. Chinnaiah v. State of A.P.
Show the answer
D. E.V. Chinnaiah v. State of A.P.
The seven-Judge Bench held that sub-classification within the Scheduled Castes is constitutionally permissible and that the holding in E.V. Chinnaiah (2005), that such sub-classification is impermissible, is overruled. The majority drew support from Indra Sawhney, which had allowed backward classes to be sub-classified.