1. Introduction

In a democratic country like India, there are many number of backward castes and classes. These castes and classes have to be protected, as they are being discriminated and had suffered a lot from the exploitation of the upper castes. So the State to bring equality among the backward classes of citizens and upper classes, reservation policy is being adopted.

In the year 1977 when the Janata Party came into power, headed by V.P.Singh as the Prime Minister. The Government appointed the Second Backward Classed Commission and its Chairman was B.P.Mandal. This Commission was formed on 20 December 1978. This commission was called Mandal Commission. It submitted its report on 31 December 1980. The caste data used by the Mandal Commission were based on the census report of 1931. It boldly submitted that 52% of the country's population comprised of Backward Classes. The Commission proposed the following overall scheme of reservation for Other Backward Classes:-

1) Candidates belonging to Other Backward Classes recruited on the basis of merit in an open competition should not be adjusted against their reservation quota of 27%.
2) The 27% reservation should also be made applicable to promotion quota at all levels.
3) Reserved quota remaining unfilled should be carried forward for a period of three years and de-reserved thereafter.
4) Relaxation in the upper age limit for direct recruitment should be extended to the candidates of Other Backward Classes in the same manner as done in the case of Scheduled Castes and Scheduled Tribes.
5) The roster system for each category of post should be adopted by the concerned authorities in the same manner as presently done in respect of Scheduled Castes and Scheduled Tribes candidates.

In Indra Sawhney v. Union of India, the Supreme Court was asked to pronounce on the constitutional validity of two office memoranda of the Central Government. One of them, which was initially brought before the Court, was issued on 13th August, 1990. Implementing partially the Mandal Commission Report, it reserved 27% vacancies in civil posts and services under the Government of India to be filled by direct recruitment from the socially and educationally backward classes (SEBCs). Before the Court could decide the validity of this memorandum the other memorandum was issued on 25th September, 1991. It provided for preference to the poorer sections of Socially and Educationally Backward Classes (SEBCs) in respect of 27% reservation made by the first memorandum and also made additional reservation of 10% vacancies for 'other economically backward sections of the people' who were not covered by any existing schemes of reservation. The first memorandum stated: 'the Socially and Educationally Backward Classes (SEBC) would comprise in the first phrase the castes and communities which are common to both the lists in the report of the Mandal commission and the State Government's list. In the present study an attempt has been made to criticize the judgment of the above case. The first chapter gives the introduction which is above. The second chapter deals with the issues involved in this case. The third chapter deals with the judgment of the case. The fourth chapter criticizes the judgment of the case. And lastly, the fifth chapter gives the conclusion.

2. Issues involved in the case

There were eight issues involved in the case:
a) Whether Article 16(4) is an exception to Article 16(1) and would be exhaustive of the right of reservation to posts in services under the State.
b) What would be the content of the phrase backward classes in Article 16(1) of the Constitution and whether caste by itself could constitute a class and whether economic criteria by itself could identify a class for Article 16(4) and whether backward classes in Article 16(4) would include the Article 46 as well.
c) If the economic criteria by itself could not constitute a backward class under Article 16(4), whether reservation of posts in services under the State based exclusively on economic criteria would be covered by Article 16(1) of the Constitution.
d) Can the extent of reservation to posts in the services under the State under Article 16(4) or, if permitted under Article 16(1) and 16(4) together, exceed 50% of the posts in a cadre or service under the State, or exceed 50% of the appointments in a cadre or service in any particular year and can such extent of reservation be determined without determining the inadequacy of representation of each class in different categories and grades of services under the State.
e) Does Article 16(4) permit the classification of backward classes into backward class and most backward classes or permit classification among them based on economic or other considerations.
f) Would making 'any provision' under Article 16(4) for reservation 'by the State' necessarily have to be by law made by the legislatures of the State or by law made by Parliament or could such provisions be made by an executive order.
g) Will the extent of judicial review be limited or restricted in regard to the identification of backward classes and the percentage of reservations made for such classes, to a demonstrably perverse identification or a demonstrably unreasonable percentage.
h) Would reservation of appointments or posts 'in favour of any backward class' be restricted to the initial appointment to the post or would it extend to promotions as well.

3. Judgment of the Case
It was a nine judge bench which heard the case; there were six assenting judges and three dissenting judges. The six assenting judges were M.H.Kania (C.J.), JJ. M.N.Venkatachaliah, S.Ratnavel Pandian, A.M.Ahmadi, P.B.Sawant, and B.P.Jeevan Reddy. The dissenting judges were JJ. Dr. T.K.Thommen, Kuldip Singh, and R.M.Sahai. The Honourable judges observed as below:-

(1)(a) It is not necessary that the 'provision' under Article 16(4) should necessarily be made by the Parliament/ Legislature. Such a provision can be made by the Executive also. Local bodies, Statutory Corporations and other instrumentalities of the State falling under Article 12 of the Constitution are themselves competent to make such a provision, if so advised.
(b) An executive order making a provision under Article 16(4) is enforceable the moment it is made and issued.
(2)(a) Clause (4) of Article 16 is not an exception to clause (1). It is an instance and an illustration of the classification inherent in clause (1).
(b) Article 16(4) is exhaustive of the subject of reservation in favour of backward class of citizens, as explained in this judgment.
(c) Reservations can also be provided under clause (1) of Article 16. It is not confined to extending of preferences, concessions or exemptions alone. These reservations, if any, made under clause (1) have to be so adjusted and implemented as not to exceed the level of representation prescribed for 'backward class of citizens'.
(3)(a) A caste can be and quite often is a social class in India. If it is backward socially, it would be a backward class for the purposes of Article 16(4). Among non-Hindus, there are several occupational groups, sects and denominations, which for historical reasons are socially backward. They too represent backward social collectives for the purposes of Article 16(4). (b) Neither the Constitution nor the Law prescribes the procedure or method of identification of backward classes. Nor is it possible or advisable for the court to lay down any such procedure or method. It must be left to the authority appointed to identify. It can adopt such method /procedure as it thinks convenient and so long as its survey covers the entire population, no objection can be taken to it. Identification of the backward classes can certainly be done with reference to castes among, and along with, other occupational groups, classes and sections of people. One can start the process either with the occupational groups or with castes or with some other groups. Thus one can start the process with the castes, wherever they are found, apply the criteria (evolved for determining backwardness) and find out whether it satisfies the criteria. If it does - what emerges is a "backward class of citizens" within the meaning of and for the purposes of Article 16(4). Similar process can be adopted in the case of other occupational groups, communities and classes, so as to cover the entire populace. The central idea and overall objective should be to consider all available groups, sections and classes in society. Since caste represents an existing, identifiable social group/class encompassing an overwhelming majority of the country's population, one can well begin with it and then go to other groups, sections and classes.

(c) It is not necessary for a class to be designated as a backward class that it is situated similarly to the Scheduled Castes/ Scheduled Tribes.
(d) 'Creamy layer' can be, and must be excluded.
(e) It is not correct to say that the backward class of citizens contemplated in Article 16(4) is the same as the socially and educationally backward classes referred to in Article 15(4). It is much wider. The accent in Article 16(4) is on social backwardness. Of course, social, educational and economic backwardness are closely inter-twined in the Indian context.
(f) The adequacy of representation of a particular class in the services under the State is a matter within the subjective satisfaction of the appropriate Government. The Judicial scrutiny in that behalf is the same as in other matters within the subjective satisfaction of an authority.
(4)(a) A backward class of citizens cannot be identified only and exclusively with reference to economic criteria.
(b) It is permissible for the Government or other authority to identify a backward class of citizens on the basis of occupation-cum-income, without reference to caste, if it is so advised.
(5) There is no constitutional bar to classify the backward classes of citizens into backward and more backward categories.
(6)(a) & (b) The reservations contemplated in Clause (4) of Article 16 should not exceed 50%. 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 main-stream of national life and in view of the conditions peculiar to and characteristic of 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.
(c) 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.
(d) Devadasan v. Union of India (AIR 1964 SC 179) was wrongly decided and is accordingly overruled to the extent it is inconsistent with this judgment

(7) Article 16(4) does not permit provision for reservations in the matter of promotion. This rule shall have only prospective operation and shall not affect the promotions already made, whether made on regular basis or on any other basis. The decision on this question shall operate only prospectively and shall not affect promotions already made, whether on temporary, officiating or regular/ permanent basis. It is further directed that wherever reservations are already provided in the matter of promotion - be it Central Services or State Services, or for that matter services under any Corporation, authority or body falling under the definition of 'State' in Article 12 - such reservations may continue in operation for a period of five years from this day. Within this period, it would be open to the appropriate authorities to revise, modify or re-issue the relevant rules to ensure the achievement of the objective of Article 16(4). If any authority thinks that for ensuring adequate representation of' 'backward class of citizens' in any service, class or category, it is necessary to provide for direct recruitment therein, it shall be open to it to do so. It would not be impermissible for the State to extend concessions and relaxations to members of reserved categories in the matter of promotion without compromising the efficiency of the administration.

(8) While the rule of reservation cannot be called anti-meritarian, there are certain services and posts to which it may not be advisable to apply the rule of reservation.
(9-10) The distinction made in the impugned Office Memorandum dated 25th September, 1991 between 'poorer sections' and others among the backward classes is not invalid, if the classification is understood and operated as based upon relative backwardness among the several classes identified as Other Backward Classes.
(11) The reservation of 10% of the posts in favour of 'other economically backward sections of the people who are not covered by any of the existing schemes of the reservation' made in the impugned Office Memorandum dated 25-9-1991 is constitutionally invalid and is accordingly struck down.
(12) There is no particular or special standard of judicial scrutiny applicable to matters arising under Article 16(4).
(13) The Government of India and the State Governments have the power to, and ought to, create a permanent mechanism - in the nature of a Commission - for examining requests of inclusion and complaints of over-inclusion or non-inclusion in the list of O.B.Cs. And to advise the Government, which advice shall ordinarily be binding upon the Government. Where the Government does not accept the advice, it must record its reasons therefore.
(14) In view of the answers given by the majority judges herein and the directions issued herewith, it is not necessary to express any opinion on the correctness and adequacy of the exercise done by the Mandal Commission . (Para 121 of the Judgment)

4. Critical analysis on the case
The policy of reservation creates an obligation on the part of the State to treat everyone with equal respect and concern and in this sense the policy of reservation serves the principle of equal treatment . But in the present case, the 50% reservation policy does not create any corresponding individual right in favour of the members of the beneficiary groups. Because majority of the population is backward. It is 52% of the population in India is backward. So the reservation should be given equal to their population i.e., 52% or more than 52%.

The Mandal Commission itself made revelations. According to its statistics, the forward castes estimated at 25.5% of the population made up 78.34% of employees of Central Ministers and Departments; the Scheduled Castes and Scheduled Tribes together were 16.83% and Backward Classes were 4.83%. In Class-I these figures were 90.23% for forward classes, 7.18% for Scheduled Castes and Scheduled Tribes and 2.59% for Other Backward Classes. But the Other Backward Classes were 52% of the population . So the total population of the Scheduled Castes and Scheduled Tribes and Other Backward Classes will be 74.5%. So the 50% reservation will not be enough and it must be more than 50% percent or the reservation must be equal to population of the Backward Classes.

Second criticism against the case is the 50% reservation policy can be overridden. It so happened when the Tamil Nadu State Legislature passed a statute [The Tamil Nadu Backward Classes, SC & ST (Reservation of Seats in Educational Institutions and Appointments or posts in the service under the State) Act, 1993] providing for 69% of reservation. It got this law in the 9th Schedule of the Constitution of India by 76th Amendment.

5. Conclusion
To quote Justice Gajendragadkar's view in Balaji v. State of Mysore, "it is obvious that unless the educational and economic interests on the weaker sections of the people are promoted quickly and liberally, the ideal of establishing social and economic equality will not be attained". In the present case, the Supreme Court is limiting the reservation to 50%. This will not be worth on the part of the Supreme Court to limit the reservation because as the majority of the population of India is backward. According to the statistics other backward classes including scheduled castes and scheduled tribes constitute 74.5% of the population. So the by providing reservation only to 50% to the backward classes will deprive the rest 24.5% backward class population from reservation. So the reservation must be more than 50% or equal to the population of the backward classes. This will promote equality in the country.