Time to review 50% cap on quota? Supreme Court asks states

If the Supreme Court's five-judge bench accepts that the judgment in Indra Sawhney case should be modified, the case will have to be referred to an 11-judge bench.

The Supreme Court on Monday said the issue of whether it is time to scrap the 50% ceiling on reservations in educational institutions and jobs needs to be answered in the context of the “changed social dynamics of the society” and recent constitutional amendments, and sought the views of the states — a radical departure from the legal precedent that has, for three decades now, held the ceiling as inviolable.

The Supreme Court said a decision on reviewing the 50% ceiling on reservations in educational institutions and jobs needs to be answered in the context of the “changed social dynamics of the society”(HT PHOTO)

Any attempt to increase the ceiling is loaded with political significance — various states (ruled by governments of varying hues) have sought, in vain until now, to do this to address the grievances of one politically important constituency or other. The court’s observation itself, came in a case where a reservation for Marathas in Maharashtra caused a breach in the ceiling.

Almost 30 years after a nine-judge bench in the Indra Sawhney case (famously known as the Mandal Commission case) imposed the ceiling of 50% on total reservation, a five-judge bench agreed to examine whether the 1992 ruling should be reconsidered in the wake of various states providing for quota exceeding 50% and the central government framing a law in 2018 for reservation to economically and socially backward classes.

Terming it a matter of “seminal importance”, the five-judge bench, headed by justice Ashok Bhushan, issued notices to all states and sought their views on review of the mandate laid down in the Indra Sawhney case, which ruled that “reservation should not exceed 50%, barring certain extraordinary situations.” Further, the 1992 judgment barred reservation solely on economic criterion.

If the five-judge bench accepts that the judgment in Indra Sawhney case should be modified, the case will have to be referred to an 11-judge bench because only a bench of larger composition can modify a previous judgment of the Supreme Court.

The court’s move was endorsed by voices from across the political spectrum.

Former minister in the Bihar state cabinet and senior Bharatiya Janata Party leader Prem Kumar supported the idea of revisiting the 1992 judgement in “the larger social interest.” Nalin Kohli, national spokesperson of BJP and a Supreme Court lawyer, said: “Being an issue of significance, the apex court has in its wisdom deemed it fit to implead the states as the outcome of the final judgment may have far reaching implications across the country.”

The Rashtriya Janata Dal’s chief spokesperson and Bihar MLA Bhai Birendra said that quota should be increased in proportion to the increased share of the backward communities in the population while Janata Dal (United) leader Neeraj Kumar said that the reservation facility should be aimed at improving the socio-economic conditions of the marginalised in keeping with their standing in the caste-based census.

Spearheading the demand for Jat reservation in Haryana, Yashpal Malik, national president of the All India Jat Aarakshan Sangharsh Samiti (AIJASS), said: “The Supreme Court hearing will also have a direct impact on long pending demands for Jat reservation under the Other Backward Classes category in Haryana, which has been stayed by the Punjab and Haryana high court.”

On Monday, the bench, which also comprised justices L Nageswara Rao, S Abdul Nazeer, Hemant Gupta and S Ravindra Bhat, framed a total of six questions, including the one on review of the 50% ceiling, while considering the constitutional validity of a 2018 Maharashtra law that sought to provide reservation to the Maratha community in jobs and admissions, a move that would take total reservations in the state in excess of 50%. .

Based on a report by the Maharashtra State Backward Commission and using the window of “extraordinary situations” in the Indra Sawhney case, the state law provided 16% reservation to the Maratha community in addition to the existing 50% quota. But the Bombay High Court, by its judgment in June 2019, brought down the reservation to 12%in admissions to educational institutions and 13% in jobs.

The high court judgment was challenged in the Supreme Court in a clutch of petitions, which said the Maratha quota law should be struck down since it transgressed the judicially-fixed ceiling of 50%. In September 2020, the implementation of the Maratha quota was stayed by the apex court through an interim order after highlighting that the Maharashtra government had breached the 50% ceiling on reservation by its new law.

Apart from the issue of total reservation, the five-judge bench has decided to also examine whether the Backward Commission’s report meets the criterion of “extraordinary situations” under the Indra Sawhney ruling in giving quota benefits to the Maratha community.

The apex court also agreed to ascertain whether states could add any community in the reservation after the central government’s 102nd constitutional amendment, by which Article 342A was inserted to authorise the President for specifying the “socially and educationally backward classes” (SEBCs) in all states and union territories after consultation with the Governor concerned. This virtually empowered the central government to identify SEBCs even in states and UTs.

“Whether, Article 342A of the Constitution abrogates states’ power to legislate or classify in respect of “any backward class of citizens” and thereby affects the federal policy / structure of the Constitution of India?” read one of the questions framed by the bench.

On this point, attorney general KK Venugopal, representing the Centre, and senior advocate Mukul Rohatgi, appearing for the Maharashtra government, submitted that since interpretation of Article 342A will affect all states, they should also be heard.

Agreeing with this, the bench said it will begin hearing all states, starting March 15, and wrap up the arguments, preferably, by March 25.

In addition to Maharashtra, there are three other states, Tamil Nadu, Haryana and Chhattisgarh, which have passed similar laws, causing them to exceed the 50% reservation mark. Those decisions are also under challenge in the Supreme Court. Three days ago, the top court said it will take up the challenge to Tamil Nadu’s 69% quota law after deciding the Maratha quota case. The 69% quota in the state pre-dates the Indra Sawhney judgement, one reason why it is extant.

The bunch of cases on the Maratha quota was referred to a five-judge bench in September 2020 when the top court also stayed the implementation of the state law in jobs and education. The Maharashtra government later filed an application before the five-judge bench, seeking vacation of the stay on implementation of the quota but the court said that its order would continue until the issues are finally decided.