Reservations and Its Exceptions: The political push to breach the 50% cap

The Bihar government increased reservations for SC, STs, Backward Classes and Extremely Backward Classes (EBC) from 50 per cent to 65 per cent. (Representative image)

Apart from centre-state relations, independence of the judiciary and fundamental rights, it is reservation policy that has been under the judicial scanner most often.

Affirmative action to empower marginalised groups through better educational and employment opportunities along with wider political representation has been part of the policy toolkit of governments across the world. In India, it has taken the form of reservation for the Scheduled Castes and Scheduled Tribes (SC/ST), Other Backward Classes (OBC) and Economically Weaker Sections (EWS) in employment and education.

Ambedkar’s Position on Reservations

On the subject of reserving seats in Parliament and State Legislatures, Dr BR Ambedkar, Chairman of the Drafting Committee of the Constitution, wanted it to stay for 10 years. And in the case of reservation in educational institutions and employment, it is sometimes erroneously cited that he wanted it to last10 years only. However, he did not want it to continue for good.

According to Subhash Kashyap, former Secretary-General of the Lok Sabha and author of two important books ‘Our Constitution’ and ‘Our Parliament’,  Dr Ambedkar “was against reservation in perpetuity”.

According to an article published in The Hindu, Dr Kashyap was quoted as highlighting that “Dr. Ambedkar did not spell out too many things but on the point of reservation for SC and ST, he had said that 10 years is too short a period and it should be 40 years, but thereafter the Parliament should have no power to extend reservation by law. He was against reservation in perpetuity. He had said ‘I would not want that symbol to continue in Indian society forever'.”

Ten years or 40 years, the one thing certain was that reservation was not meant to go on forever. However, nearly 75 years after the enactment of the Constitution, reservations not only continue, but they have even been extended beyond the fixed ceiling.

Why Patna HC Struck Down Bihar’s Bill

In 2023, the Bihar government increased reservations for SC, STs, Backward Classes and Extremely Backward Classes (EBC) from 50 per cent to 65 per cent. With the increase, the reservation percentage in Bihar reached a total of 75 per cent.

However, on June 20, the Patna High Court held the new law increasing reservation as ultra vires and violative of the equality clause under Articles 14, 15 and 16 of the Indian Constitution.

The court primarily cited three reasons for its judgment which were: (1) there is a cap of 50 per cent for reservations (2) the reservation was based on a mere proportion to the population of backward classes (proportionate reservation) (3) the government did not conduct any analysis or in-depth study before increasing reservations.

Logic of The 50% Cap

Vinay Sitapati, Professor of Law and Politics at Shiv Nadar University, has contributed an important article in ‘The Oxford Handbook of the Indian Constitution’. In the article titled ‘Reservations’ he defines the various strands of the 50% 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.”

Various judgments by the Supreme Courts and the respective High Courts seek to engage in and address this balancing and harmonising act.

Coming to the issue of proportionality, the idea has been examined by the Supreme Court in the Indra Sawhney judgment. In the judgment, it was stated that  Justice Krishna Iyer and Justice Chinnappa Reddy in two landmark judgments had highlighted the fact that reading the Constituent Assembly debate it becomes evident that the provisions in the Constitution “do not support the construction of Article 16(4)) as empowering government to reserve posts for backward class of citizens in proportion to their population.”

Many Shades of Interpretation

There have been several interpretations of backwardness in the last 75 years and reservation has been accorded and extended to many caste groups whose “backwardness” has been highly contested.

Apart from the interpretation of backwardness, another issue related to the reservation policy that has gone through sharp legal scrutiny was the 50% ceiling on reservations brought in by the landmark Indra Sawhney judgment of 1992.

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

The 50% ceiling has been also interpreted by the apex court on various occasions with a recent one being the 103rd Constitutional Amendment which introduced a 10% reservation for the Economically Weaker Sections (EWS).

In November 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”.

Last year, then Minister of State for Social Justice Pratima Bhoumik, who was responding to a question from Rajya Sabha MP Subhas Chandra Bose Pilli on whether the government was planning to increase the percentage of reservation for the Other Backward Classes from 27% in the light of the Supreme Court’s judgment upholding the 103rd Amendment, made an important point. She said that the Supreme Court in Indra Sawhney case has decided that reservation under Articles 15(4) and 16(4) of the Constitution should not exceed 50% and at the same time clarified that the reservation given to the Economically Weaker Sections (EWS) has been provided by the government under the provisions of Articles 15(6) and 16(6), which were inserted vide the Constitution 103rd Amendment Act, 2019. Thus the 10% reservation given to EWS does not violate the 50% limit on reservation given under Articles 15(4) and 16(4).

The case settled two facts. The 50% 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% ceiling is flexible.

Pre-condition To Breach 50% Cap

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

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% 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% for that year. This modification essentially eliminated the 50% cap on reservations for backlog vacancies.

Exceptions and an Exception

It was the Indra Sawhney case that brought a 50% ceiling with some exceptions. With the EWS judgement, a new exception was created. There is no doubt that the EWS judgement opened up a way to breach the 50% ceiling if the reservation given is not caste-based.

Different political parties have demanded the removal of the 50% cap. The Congress in its 2024 Lok Sabha election 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. It had remarked, “To change the 50% limit is to have a society which is not founded on equality but based on caste rule”.

Due to political compulsions, political parties will continue with their attempt to breach the 50% rule. But they need to be reminded constantly that exceptions cannot be bigger than the rule.