A 'wall' that is hard to breach

Three visions of equality

Vinay Sitapati, Professor of Law and Politics at Shiv Nadar University, Chennai, in an article in The Oxford Handbook of the Indian Constitution titled 'Reservations' elaborately defines the various strands of the 50 percent rule.

He writes; "The logic of the 50 per cent rule is based on three different visions of the relationship between affirmative action and the equality provisions of the Indian Constitution. The first vision is what I term one of ‘balance’ between competing constitutional principles of formal equality, social justice, and efficiency. One consequence of this vision is to see Article 16(4)—which permits reservations in employment—as being an exception to the formal equality provision of Article 16(1)."

He makes a very pertinent point when he writes, "Since the exception cannot be greater than the rule, reservations could not exceed 50 per cent. This was the vision of the framers of the Constitution such as BR Ambedkar—as the legal scholars HM Seervai and Anirudh Prasad point out. It was also the vision in early Supreme Court judgments such as Balaji."

According to Sitapati, the second vision is to see the Constitution as enunciating the principle of substantive equality. Under this vision, Article 16(4) is merely an elaboration of 16(1), which includes within it the idea that unequals cannot be treated equally. Seen this way, reservations do not limit the equality provisions of the Constitution, but merely elaborate upon them. Therefore, a 50 per cent limit has no constitutional justification. This second vision is seen in the Supreme Court judgments of NM Thomas and ABSK Sangh (Railways).

And, then he finally concludes that the third vision, "articulated in Indra Sawhney, seeks—in a style ubiquitous to Indian jurisprudence—to harmonise these two visions into a third one. In this case, the majority judgment held that Article 16(4) was merely an elaboration of 16(1). But it also held that balancing various provisions of the Constitution meant that total quotas could not cross 50 per cent in any given year. The effect of Indra Sawhney has been to reiterate the principle of NM Thomas with the consequences of Balaji. Since the percentage of central reservations for SCs and STs is 22.5 per cent, this has meant that OBC reservations cannot exceed 27 per cent bringing the total to 49.5 per cent."

Impact of the EWS judgement

There have been states like Tamil Nadu that continue to have 69 percent reservation as it is protected by the Constitution’s Ninth Schedule. Several states breached the 50 percent rule in the last two decades and in the majority of cases, the move was held unconstitutional.

The 50 percent ceiling has been interpreted by the apex court on various occasions. The most recent one is the 103rd Constitutional Amendment which introduced a 10 percent reservation for the Economically Weaker Sections (EWS). In January 2022 Supreme Court Constitution Bench by a 3:2 majority upheld the validity of the 103rd Constitutional Amendment.

The court while upholding the constitutional validity of the amendment held that "Reservations for EWS does not violate basic structure on account of 50 per cent ceiling limit because the ceiling limit is not inflexible."

The case settled two facts that the 50 per cent ceiling put by the Supreme Court was only in the context of reservations under Articles 15(4), 15(5) and 16(4) dealing with reservations for Scheduled Castes, Scheduled Tribes and Other Backward Classes; and second, that the 50 per cent ceiling is flexible.

So, it becomes evident that if a new category is given a reservation and if that leads to the breach of the 50 per cent cap, it can still be held constitutional, if it meets certain conditions that were enunciated in Indra Sawhney's judgment.

Carveout from the 50 percent cap allowed in exceptional cases

In Indra Sawhney, the court listed such exceptional cases. It said, "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 differently, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out."

Another exception was regarding the backlog vacancies in respect to which the court held that the 50 percent limit in the reservation can be exceeded to fill unfilled vacancies in the previous years. The 81st Constitutional Amendment institutionalised this judgment by adding a new clause (4B) to Article 16 of the Constitution of India which gave the states the authority to treat unfilled reserved vacancies from one year as a separate class of vacancies to be filled in the following year or years.

The new provision stated that such vacancies must not be included in the vacancies of the year in which they are filled, to calculate the overall vacancy reservation ceiling of 50 per cent for that year. This modification essentially eliminated the 50 per cent cap on reservations for backlog vacancies.

It was the Indra Sawhney case that brought a 50 per cent ceiling with some exceptions. With the EWS judgement, a new exception was created.

Different political parties, ranging from the Indian National Congress (INC) which is the second largest political party in India to All India Majlis-e-Ittehadul Muslimeen (AIMIM) which has only one elected Member of Parliament, all of them have demanded the removal of the 50 per cent cap. The INC in its 2024 Lok Sabha elections manifesto promised the removal of the 50 per cent reservation cap if voted to power.

Here, it is important to recall what the apex court had said in 2021: "To change the 50 percent limit is to have a society which is not founded on equality but based on caste rule".