Indra Sawhney v. Union of India is the case every establishment officer half-remembers. It is invoked for the fifty per cent ceiling, for creamy layer, and for the proposition that there is no reservation in promotion — one of which Parliament has since reversed. It is worth knowing precisely what was decided, because the parts that survive are still the framework within which every roster operates.

The case and the bench

Decided on 16 November 1992, reported at 1992 Supp (3) SCC 217. The lead matter was Writ Petition (Civil) No. 930 of 1990, challenging the Office Memorandum of 13 August 1990 implementing the Mandal Commission's recommendation of twenty-seven per cent reservation for Other Backward Classes.

The Bench was of nine judges: Kania CJ, Venkatachaliah, Pandian, Thommen, Ahmadi, Kuldip Singh, Sawant, Sahai and Jeevan Reddy JJ. Six opinions were delivered. Jeevan Reddy J wrote the plurality for himself, Kania CJ, Venkatachaliah and Ahmadi JJ; Pandian and Sawant JJ concurred in the result separately; Thommen, Kuldip Singh and Sahai JJ dissented. The twenty-seven per cent reservation was upheld six to three.

What was decided

A caution about how the judgment is summarised

Secondary accounts routinely give a clean vote split for each individual proposition — "six to three on the fifty per cent rule", and so on. Those tallies do not survive checking. The six-to-three figure is the result on the twenty-seven per cent reservation, not a count on every issue.

On the fifty per cent question specifically the Bench fragmented differently from the main result. The three dissenting judges treated the ceiling as absolute; the plurality allowed an exception for extraordinary situations; Sawant J allowed exceptions on valid grounds; and Pandian J rejected a fixed ceiling altogether as resting on obiter in M.R. Balaji. If you need to state a position on the ceiling in a noting, state the outcome and the principle, not a vote count.

What Parliament reversed

The bar on reservation in promotion did not survive as law for long. Within three years the Constitution (Seventy-seventh Amendment) Act, 1995 inserted Article 16(4A), enabling reservation in promotion for the Scheduled Castes and Scheduled Tribes. The 81st, 82nd and 85th Amendments followed, each addressing a further consequence.

This is why an establishment officer cannot work from Indra Sawhney alone. The judgment states the position as at 1992. Three of its practical conclusions were altered by constitutional amendment within a decade, and the validity of those amendments was then tested in M. Nagaraj, dealt with in Part 12.

What still stands

The fifty per cent ceiling remains good law. It was tested squarely in the Maratha reservation case, Dr. Jaishri Laxmanrao Patil v. Chief Minister, Maharashtra, decided on 5 May 2021 by a Constitution Bench, which unanimously declined to refer Indra Sawhney to a larger bench, held that a clear majority in Indra Sawhney supported the ceiling, and struck down the Maharashtra legislation for failing to establish the extraordinary circumstances that might justify exceeding it.

The creamy layer principle for OBCs stands, and is administered through the income and status test in the Department of Personnel and Training's Office Memorandum of 8 September 1993. That test was the subject of a significant Supreme Court decision in March 2026, dealt with in the next paragraph.

The rule that economic criteria alone cannot identify a backward class under Article 16(4) also stands. EWS reservation does not contradict it, because EWS does not rest on Article 16(4) at all — it rests on Article 16(6), a separate clause inserted for the purpose, and the Court in Janhit Abhiyan treated it as a distinct class rather than as a backward class identified economically.

The creamy layer test after Rohith Nathan (2026)

In Union of India v. Rohith Nathan, decided on 11 March 2026, the Supreme Court held that paragraph 9 of the clarificatory letter of 14 October 2004 — which had folded the salary income of employees of public sector undertakings and the private sector into the income and wealth test — cannot override the parent Office Memorandum of 8 September 1993. A clarificatory instruction cannot introduce a substantive condition that the parent policy does not contain.

The practical effect for an establishment applying the creamy layer test is direct. Income from salaries and from agriculture is not to be clubbed into the income and wealth test. Creamy layer status cannot be determined on income brackets alone without reference to the categories of posts and the status parameters in the 1993 Office Memorandum. And treating the children of employees of public sector undertakings differently from the children of Government servants in equivalent grades was held to amount to hostile discrimination. Where equivalence of posts in a public sector undertaking has not been notified, that is now the department's difficulty rather than the candidate's.

Sub-classification: Davinder Singh (2024), and what it did not decide

In State of Punjab v. Davinder Singh, decided on 1 August 2024 by a Bench of seven judges, the Court held by six to one that States may sub-classify within the Scheduled Castes to give preferential treatment to more disadvantaged sub-groups, overruling E.V. Chinnaiah. Sub-classification must rest on quantifiable data of relative backwardness and inadequate representation, is open to judicial review, and a State cannot reserve the whole of the SC quota for one sub-group.

What Davinder Singh did not decide. Four judges observed in separate concurrences that the creamy layer principle should be applied to the Scheduled Castes and Scheduled Tribes. Two were silent and one dissented. The question was not before the Court, and those observations are obiter. Petitions seeking creamy layer exclusion within SC and ST are pending, and the Union Government has opposed them, taking the position that the concept was developed in the context of the Other Backward Classes and that any change is for Parliament under Articles 341 and 342. As matters stand, creamy layer does not apply to SC and ST in direct recruitment. Do not record otherwise in a noting.

Frequently Asked Questions (FAQ)

Q1. Is the fifty per cent ceiling applied to vacancies or to cadre strength?

Indra Sawhney applied it to the vacancies of a year. Under the post-based roster the constraint also appears in a second form: not more than fifty per cent of the posts in a cadre may be held by reserved-category candidates at any one time, computed after excluding those appointed on their own merit. Backlog vacancies filled under Article 16(4B) sit outside the year's ceiling as a separate class.

Q2. Does the creamy layer test apply to SC and ST candidates?

Not in direct recruitment. The creamy layer test under the Office Memorandum of 8 September 1993 applies to the Other Backward Classes. Petitions seeking to extend the principle to SC and ST are pending before the Supreme Court and the Union Government has opposed them. Four judges commended the idea in separate opinions in Davinder Singh in 2024, but the point was not before the Court and those observations are obiter.

Q3. Was the ten per cent EWS quota not struck down in Indra Sawhney?

A ten per cent quota for other economically backward sections was struck down in 1992, but that quota was made under Article 16(4), and the Court held that a backward class under that clause cannot be identified on economic criteria alone. EWS reservation rests on Article 16(6), inserted by the 103rd Amendment in 2019 specifically to create a separate basis, and was upheld in Janhit Abhiyan in 2022.

Q4. How should a noting cite Indra Sawhney safely?

Cite the outcome and the principle rather than a per-issue vote count. It is safe to say that the twenty-seven per cent reservation was upheld six to three by a Bench of nine judges on 16 November 1992, that the Court laid down a ceiling of fifty per cent, that creamy layer must be excluded from the OBCs, and that Article 16(4) was held not to extend to promotion — noting that the last was altered by the 77th Amendment.

Related Reading

Next: From vacancies to posts, the 1995 judgment that reshaped every roster in the Central Government. Part 1 covered the constitutional clauses.