50% cap on reservation

Context:

● Recently, the Supreme Court has decided to examine whether its nearly three-decade-old judgment, which fixed reservation for the marginalised and the poor in government jobs and educational institutions at 50%, needs a relook.

● In 1992, a nine-judge Bench of the court had declared that that reservation cannot exceed 50% in total, except in “extraordinary circumstances”. However, over the years, several states such as Maharashtra and Tamil Nadu have crossed the 50% limit and passed laws that allow reservation over 60%.

Probable Question:

1. The cap of fifty percent on quota for the      marginalised and the poor in government jobs and educational institutions      needs a relook. Critically Analyse.

About Indra Sawhney vs Union of India case (1992):

● In 1979 the Second Backward Classes Commission was set up by the President under Article 340.

● In December 1980, the Second Backward Classes Commission, headed by B.P. Mandal, better known as the Mandal Commission, gave its report. It recommended 27% reservation for Other Backward Classes (OBCs), in addition to the previously existing 22.5% reservation for SC/STs.

● The government accepted the recommendation and provided the 27% reservation for Socially and Educationally Backward Classes.

● However, the government’s decision for the reservation of socially and educationally classes was challenged in the Supreme Court.

● In 1991, a government-provided provision for an additional reservation of 10% for other economically backward sections.

● A nine-judge Bench of the Supreme Court pronounced a 6:3 majority verdict in the Mandal Commission case, upholding the 27% quota in the first OM, but struck down the 10% quota based on economic criteria.

● The majority judgment held that “a backward class cannot be determined only and exclusively with reference to the economic criterion”. It may be a consideration or basis along with, and in addition to, social backwardness, but it can never be the sole criterion. It said backward classes could be identified on the basis of caste.

● The Bench also laid down that reservation does not cross the 50% limit, unless a special case was made out for extraordinary situations and peculiar conditions to relax the rule.

● The court held that the ‘creamy layer,’ the advanced sections of the backward classes should be excluded from the reservation and asked the government to evolve suitable criteria to exclude the ‘creamy layer’.

Past judgments on a ceiling for quotas:

● In M.R. Balaji vs State of Mysore (1962), the Supreme Court first times ruled that reservation, being a special provision for backward classes, should not normally exceed 50%. It held that the order earmarking 68% of seats in engineering, medical and other technical courses was a “fraud” on the Constitution. However, it added that it would not attempt to lay down in an inflexible manner what the proper percentage of reservation should be. “Speaking generally and in a broad way, a special provision should be less than 50%. The actual percentage must depend upon the relevant prevailing circumstances in each case.

● The presumption behind the 50% rule was that equality of opportunity was the norm, and any special provision for socially and educationally backward classes or reservation for backward classes in public employment was an exception. However, in the State of Kerala vs. N.M. Thomas (1975), the majority of the Bench disagreed with the proposition. It said the special measures in favour of backward classes in Articles 15 and 16 were not exceptions to the rule. On the contrary, these were an emphatic way of ensuring equality of opportunity — to the point of even making reservations.

● In Indra Sawhney case, even though most judges agreed that reservation was not an exception to the equality norm, the court ultimately laid down the 50% limit. “Just as every power must be exercised reasonably and fairly, the power conferred by Clause (4) of Article 16 should also be exercised in a fair manner and within the reasonable limit — and what is more reasonable than to say that reservation … shall not exceed 50% of the appointments or posts...?” Citing Dr B.R. Ambedkar’s opinion in the Constituent Assembly that reservation should be “confined to a minority of seats”, the Bench fixed the maximum permissible quota at 50%. At the same time, it said the strict rule could be relaxed in extraordinary situations given the country’s great diversity.

Way forward:

● If the court, through a larger Bench, comes to the conclusion that the 50% ceiling is not a hard-and-fast rule and that it may be breached if a State’s backward class population is considered high, it would be a big boost for the affirmative action policies of various State governments.

● The decisions would also have relevance to the legal challenge to the introduction of the 10% quota for the economically weaker sections among those who do not fall under any reservation category. By this move, the Centre has already exceeded the 50% limit, and at present, only 41% of seats or posts are meant for open competition in central employment and educational institutions.

● The impact of access to education on the upward socioeconomic mobility of households must be taken into consideration. PRICE analysis of household incomes shows that reserved category households, headed by individuals with higher educational attainment, reported higher incomes than general category households headed by less-educated persons.

● The demand for reservation of unreserved categories who perceive themselves as backwards will continue to grow, making raising the 50% cap seem like a political imperative.

● The government must thus push education support for certain communities, otherwise raising the cap every now and then will make reservation meaningless.