In September 1991, an Office Memorandum issued by the then P.V. Narasimha Rao government reserved 10% of posts for ‘other economically backward sections…not covered by any of the existing schemes of reservations’. This decision was struck down by the Supreme Court’s nine-judge constitution bench in Indra Sawhney vs Union of India. The primary purpose of Article 16 of the constitution, the court held, is to ensure participatory justice, and not redistribution.
In paragraph 91 of Indra Sawhney, the majority of the judges made it clear that backwardness cannot be determined exclusively with reference to economic criteria. Under Article 16(4), an OBC must primarily be ‘socially’ backward, with educational and economic backwardness being used as a tool to determine social backwardness. The other criterion is that the group should be inadequately represented in public employment.
The Tamil Nadu law which provides 69% vertical reservations has been pending for consideration by the Supreme Court for several years. Unless the court overrules Sawhney, or finds exceptional circumstances, the chances of it being held constitutional are poor.
In Indra Sawhney, the Supreme Court held that vertical reservations should not ordinarily exceed 50% (paragraph 94A). This limit may appear arbitrary, but it makes sense if we understand that equality of opportunity is for every citizen, including those who do not belong to a backward class. Dr B.R. Ambedkar’s famous warning against “reservation…of such magnitude that the rule regarding equality of opportunity has been destroyed” should remind us of the dangers of excessive reservation.
In Indra Sawhney, the Supreme Court made it clear that Article 16(4) is exhaustive of any reservations made in favour of backward castes (paragraph 57). Therefore, the question is whether the Narendra Modi government will find succour under Article 16(1) for the purpose of reservation in favour of economically backward groups.
Article 16(1) guarantees ‘equality of opportunity’ in public employment to all citizens. It is a rule of substantive rather than formal equality, and therefore, allows the state to take affirmative action to ensure equality of opportunity for a group which will not be able to access it otherwise. Formal reservation in favour of a group under this provision will undermine the access of those groups who are already well-represented.
Therefore, Article 16(1) is used for affirmative action in favour of those categories of people who are either not backward or do not exhibit characteristics of a cohesive class – like women or persons with disabilities. These are called ‘horizontal’ reservations, as opposed to vertical reservations under Article 16(4).
In Union of India vs National Federation of the Blind and others (2013), 3% reservation for persons with disabilities as required under the Persons with Disabilities Act, 1995 was the issue. The Supreme Court held that the ceiling of 50% reservation mandated in Indra Sawhney applies only to reservation in favour of other backward classes under 16(4) of the constitution, (vertical), whereas reservation in favour of persons with disabilities is horizontal and under 16(1).
Gujarat high court’s 2016 verdict
In 2015, the Gujarat government relied on Articles 14, 15 and 16 and Articles 38, 39 and 46 of the constitution to justify its reservation for economically backward groups. It appointed a high-level committee consisting of five ministers by a government resolution dated August 13, 2015. This committee, headed by then minister for health and family welfare Nitin Patel, considered 225 representations and orally heard parties.
On October 7, 2015, the Gujarat government formulated a policy of providing financial aid to meritorious and needy students on merit-cum-means basis, irrespective of social categories. On April 5, 2016, another resolution extended similar benefits to diploma students aspiring to get admission to recognised degree courses. The Nitin Patel Committee recommended reservation of 10% in government services and for admission in educational institutions for economically weaker classes (with family income of less than Rs 6 lakh per annum). Based on this, the state government issued an ordinance to provide for reservations for economically backward groups. This was challenged before the Gujarat high court.
The judgment by the Gujarat high court was delivered by a bench of Justices R. Subhash Reddy (currently a judge in the Supreme Court) and Vipul M. Pancholi on August 4, 2006.
The ordinance aimed to provide a level playing field to weaker sections from unreserved categories without disturbing the reservation provided under Articles 15 and 16 of the constitution.
The state government claimed that earmarking 10% of seats for economically weaker classes is stricto sensu not reservation, but a further classification in general/open/unreserved category of citizens of the state. It also claimed that the state is enjoined to reach more deserving people and the task of finding the most deserving must necessarily be a matter of continuous evolution.
Article 46 says that state shall promote with special care, the educational and economic interest of the weaker sections of people. Article 14 permits reasonable classification with reference to general/open/unreserved category. The state government claimed that there are five other parameters wherein sons and daughters of various functionaries of different categories would not be entitled to benefit from the ordinance, even though their income may be less than Rs 6 lakh per annum. Thus it denied the allegation that the income criterion alone was taken into consideration.
The state government argued that the 50% ceiling limit mentioned in the Indra Sawhney judgment applied only to the reservations for SC, ST and SEBC groups. This ceiling was fixed by the Supreme Court in Balaji vs State of Mysore (1962). As the ordinance provides for only classification/categorisation amongst the open category to the extent of 10%, it cannot be construed as reservation, the government contended.
More justifications were advanced before the high court: No empirical study is required as the order was issued only for classification. Mere use of the word reservation in the ordinance per se does not and cannot have the consequence of ipso facto applying the entire mechanism underlying the constitutional concept of protective reservation.
The constitutional philosophy provided under the directive principles of the state policy as laid down under Articles 38, 39(b) and 46 of the constitution, which mandates the state to effect economic empowerment of weaker sections, was relied upon.
The state government advanced the fanciful argument that the ordinance is under Article 14 of the constitution, which does not require empirical study. Promoting the interests of economically weaker sections belonging to the unreserved category of citizens is the objective of the ordinance, it argued. Therefore, the test of homogeneous class is not applicable in the matter of classification under Article 14 of a larger category of citizens belonging to the unreserved category, it contended.
If economic criteria can be accepted for the purpose of creamy layer, why cannot it be the basis for identifying a class within the economically weaker section for giving the benefit of reservation, it asked.
Dismissing the state government’s contentions, the Gujarat high court held that its ordinance aimed at reservation and not classification. Apart from 15(4) and 16(4), there is no other power conferred on the state for effecting reservation in favour of any other category, more particularly the economically weaker sections of unreserved category, it held. In the absence of any specific provision which empowers the state to make such special provisions, under the guise of classification the state cannot put in place 10% reservation.
The unreserved category itself is a class, and it is not open for the state to effect reservations on the grounds that a part of this section is economically weak, the high court reasoned.
In Indra Sawhney, paragraph 799, the court held that a backward class cannot be determined only and exclusively with reference to economic criteria. It may be a consideration or the basis along with and in addition to social backwardness, but it can never be the sole criterion. Eight out of the nine judges on the bench concurred with this view. In paragraph 809 and 810, the bench held that reservation contemplated under clause (4) of Article 16 should not exceed 50%.
In paragraph 810, the bench held,
“while 50% shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people. It might happen that in far flung and remote areas the population inhabiting those areas might, on account of their being out of the mainstream of national life and in view of conditions peculiar to and characteristical to them, need to be treated in a different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out.”
The Gujarat high court held that as it did not find any such extraordinary circumstance for making a departure from the 50% rule, the ordinance could not be sustained.
In Ram Singh vs Union of India, the Supreme Court held that though caste may be a prominent and distinguishing factor for easy determination of backwardness, social groups who would be most deserving must necessarily be a matter of continuous evolution. The court also added that new practices, methods and yardsticks have to be continuously evolved, moving away from caste-centric definition of backwardness. This alone can enable recognition of newly emerging groups in society which would require palliative action, it reasoned.
The Gujarat high court, however, was reluctant to follow the Ram Singh ruling in the absence of any amendments to the constitution, and in view of the binding nature of the ratio laid down by the Supreme Court in Indra Sahwney.
The court also held that when equality is the rule of law under Article 14, a group cannot be created for the purpose of providing reservations unless a detailed scientific and technical study is carried out. Except by referring to representations based on which the Nitin Patel Committee has recommended the reservation, there is no other scientific data collected, it pointed out while quashing the ordinance.
In Atyant Pichhara Barg Chhatra Sangh vs Jharkhand State Vaishya Federation and Others (2006), while dealing with affirmative action under Articles 15(4) and 16(4) of the constitution, the Supreme Court held in paras 22 and 23:
“The State has failed to show any new circumstances except for a bald statement that the same was done after careful application of mind and due deliberation by the highest policy-making body, that is, the council of ministers. There are no materials or empirical data to indicate that the circumstances had been changed and the State has not undertaken any study, research or work. In such circumstances to merely suggest that the council of ministers had applied their minds and had reached a decision is arbitrary and unreasonable.”
The parallel with the Centre’s decision to introduce a similar reservation for the economically backward without the results of an empirical study in the public domain cannot be missed.
It is reported that the Modi government is toying with the idea of a constitutional amendment to change the basis of the Supreme Court’s judgment in the Indra Sawhney case. While parliament indeed has the power to amend the constitution, there is a likelihood that the Supreme Court may strike it down because it undermines a basic feature of the constitution – the right to equality of all the citizens.