Revisiting Indra Sawhney case (1992)

Udayan Hazarika

(The writer can be reached at udayanhazarika@hotmail.com)

The recent decision of the Supreme Court (March 8) to revisit one of the greatest leading cases of our times concerning reservation in government jobs namely Indra Swahni Vs Union of India (1992) has raised many eyebrows – as this would necessitate constitution of as large as a Constitution Bench of eleven judges. This decision of the Apex Court came in the wake of hearing of the appeal case against the famous Maratha Quota filed by J. Laxman Rao Patil (Jaishri Laxmanrao Patil vs. Chief Minister & Ors) seeking stay of the operation of Bombay High Court Order. A similar petition was also filed by Shri Sanjeet Shukla representing "Youth for Equality" in 2019 has recently been taken up by the Apex Court for hearing. The appellants' contentions are that the Socially and Educationally Backward Classes (SEBC) Act 2018 enacted by the Maharashtra Government to grant reservation to the Maratha Community in jobs (13% reservation) and education (12% reservation) has exceeded the 50 per cent ceiling limit on reservation as fixed by the top court in its judgement in the Indra Sawhney case. On March 8, the top Court framed five questions to be taken up by the five-Judge Constitution Bench which also includes the query "whether the Indra Sawhney verdict needs a relook by a larger constitutional bench in view of the "subsequent Constitutional amendments, judgments and changed social dynamics of the society."

The SEBC Act of 2018 provides for 16 per cent reservation to the Maratha community which takes the total reservation proportion to 62 per cent in Government jobs and 65 per cent in case of reservation of seats in the educational institutions. This was challenged in the Bombay High Court highlighting the breaching of 50 per cent cap of reservation and also challenging that after 102nd Constitutional amendment, the State Government has no power to enact such legislation as the matter of conferring scheduled tribe status to a particular community exclusively now rests with the President of India and the Parliament. High Court however did not go into the details of State Government's power but in the matter of crossing the limit of 50 per cent cap, it observed that (June 2019) the 50 per cent cap imposed by Indra Swahney case by the Apex Court can be relaxed in exceptional circumstances. Thus, in other words the High Court had upheld the Maratha quota but left it to the Government to decide on the proportion. Hence, the two appeals as quoted above.

The capping of the proportion of reservation is a complex matter as it requires a strong basis. So far, many States are depending on the Census data to fix the quota for reservations where 50 per cent limit has already been crossed in the States like Tamil Nadu, Chhattisgarh etc. Already there has been strong resentment over the Supreme Court decision to reopen the Indra Swahney case. A further enhancement of the proportion of reservation will automatically mean a reduction in the proportion meant for merit based recruitment. To understand the actual backdrop under which the Apex Court in 1992 examined the issue of providing reservation to the extent of 27 per cent to the OBC and capping the total reservation at 50 per cent, we need to go back to the recommendations of the Mandal Commission.

The Mandal Commission was set up in 1979 by the Morarji Desai government which was chaired by B.P. Mandal, a former Chief Minister of Bihar. The Commission was entrusted to identify the socially or educationally backward classes of India and to consider reservations as a means to address caste inequality and discrimination. The commission submitted its report on 31st December 1980 recommending inter alia 27 per cent reservation for jobs under the Central government for the members of OBCs. The recommendations of the report however was not implemented till 1990, the year in which the VP Singh-led government had decided to implement the recommendations and accordingly made an announcement in the Parliament. Immediately after the announcement, the Government issued an Office Memorandum declaring 27 per cent reservation of jobs for the people belonging to OBCs. However, this was challenged in Court by a senior advocate Indra Sawhney.

A nine-judge Constitution bench had taken up the case of Indra Sawhney Vs Union of India. The judgement of the case was pronounced on 16th November 1992 which elaborately explains the Constitutional provisions inherent under Article 14, 15 and 16. It opened up a new vista in the matter of reservation of jobs for backward classes of people in India. Of the several critical aspects, which it covered in the judgement, one important was the fixation of ceiling limit for reservation. It was necessary at that time to make spaces for reservation for the people belonging to other backward classes (OBCs) and more other backward classes (MOBCs / Special OBCs). Till that time the proportion of reservation for SC and STs was carried out in tune with the proportion of population of SC and STs in the State concerned. It was easy to get the population data pertaining to SC and ST from the census registrars. But till that time, no scientific enumeration of the caste based population was done by the Register General of Census Operations. The RGI last recorded caste based census in 1931 which was incomplete and the definition of caste used in the Census was also not correct. It enumerated only few castes. Mandal Commission recorded 3743 nos of castes comprising 52 per cent of India's population and the Supreme Court subsequently ordered that the Government move to reserve 27 per cent reservation in government for OBC is in order but it should be in exclusion of the creamy layer i.e. socially advanced section among them. The court also directed to evolve criteria to identify the creamy layer.

Now the Apex Court has already issued notices to all the State Governments giving seven days time to come up with their views on the capping of the reservation limit and issues of seminal importance including States' view on amended Article 342A that deals with power of the President to notify a particular caste as Socially and Educationally Backward Class and power of Parliament to change the list. The situation in Assam in this respect is peculiar and not synonymous to other States. In Assam the basis of our reservation for tribal communities is territorial. We have a separate schedule for the tribes living in Hill areas of Karbi angling and Dima Hasao Autonomous Councils and that of the tribes living in plains of Brahmaputra and Barak valley. Although total tribal population in the State is 12.4 per cent (2011) the State has kept a cushion of almost 2.6 per cent giving reservation to 15 per cent of the ST population.

This year being the Census year, the Census of India was supposed to conduct caste census as per decision of the Government of India. The enumeration of the castes has been avoided by successive Governments since 1951 – the first census after independence when the Sardar Patel decided not conduct caste census which indeed was a big mistake. Had the total OBC population was known at that time, our reservation policy would have taken a separate form. At this juncture therefore it is not desirable to enhance the quota limit till a caste census is conducted and the strength of the OBC population is known for all time to come.