Context: The Supreme Court on Monday decided to examine whether the 1992 verdict by a nine-judge bench capping quota at 50% needed to be revisited in view of subsequent constitutional amendments and changed social dynamics. Supreme Court (SC) may examine the 50% reservation cap set by the Mandal case ruling of 1992(Also known as Indra Sawhney case). The decision was taken during the examination of the constitutional validity of the Maratha reservation policy of the Maharashtra government. In this episode we will discuss and analyse all aspects of this issue.

• During the hearing, the SC asked states whether they are in favour of extending caste-based reservation beyond the 50 percent limit set by the Indra Sawhney case. Since the inception of the Indra Sawhney case, the conditions of society changed a lot. This necessitated the review of the 50% quota cap on the reservation by the Indra Sawhney case.

What is the Maratha reservation policy?

• In 2018, the Maharashtra government enacted a law,  it provides 16 per cent reservation to the Maratha community in jobs and admissions. The law termed the Maratha community as a socially and educationally backward class. However, the Maratha reservation violated the 50% ceiling mentioned in the Indra Sawhney case.
• The law was challenged in Bombay High Court. After recommendations of the State Backward Classes Commission, the Bombay High Court upheld the constitutional validity of the Act. But the Bombay High Court reduced the Maratha reservation to 12-13% (Instead of 16%) as mentioned in the State Backward Classes Commission.
• However, an appeal was filed in the Supreme Court. The Supreme Court during the case said that it will look into the capping of 50 percent reservation quota to be revisited or not.

Constitutional provisions regarding reservation

• The Preamble of the Indian Constitution provides for “social, economic and political justice”. This aims to create a society without discrimination. Reservation to the weaker section of the society is an aspect of Social Justice.
• Part XVI of the Indian Constitution deals with the reservation of Scheduled Castes (SCs) and Scheduled Tribes (STs) in Central and State legislatures.
• Article 15(4) and 16(4) of the Indian Constitution enables the Government to reserve seats in government services. This is provided for the advancement of any Socially or Educationally Backward Classes of citizens (SEBCs) or the members of the SC and STs.
• Article 330 and 332 has provisions for specific representation through the reservation for SCs and STs. These reservations provided both in Parliament and in the State Legislative Assemblies respectively.
• Article 243D and Article 233T provides for the reservation of seats in every Panchayat and Municipalities respectively for SCs and STs.

Reservation in India
Under the powers conferred by Article 340, President appointed a B. P. Mandal headed backward class commission in 1978. The Commission suggested a 27% reservation in government jobs for the Other Backward Classes(OBCs). As 52 percent of the country’s population consisted of OBCs.
The recommendations of the Mandal Commission were accepted in 1990 and implemented. By this, the reservation in India raised to 49.5 per cent.

• 22.5% reservation for SCs and STs (7.5% for STs, 15% for SCs)
• 27% of seats are reserved for the OBCs

In 1991, the government enacted provisions for the reservation of 10% of jobs for economically weaker sections (EWS) among higher caste people. But, in the Indra Sawhney case or Mandal Case, the supreme court struck down this provision. Further the case also provides for the maximum reservation of 50%

• The government under the 103rd Constitution Amendment Act, 2019 again provided a 10% reservation for the EWS in India. The Act amended Article 15 and 16.
• So at present, the total reservation stands at 59.5 per cent. Few State governments also provide the reservation over and above 59.5 per cent. This is a clear violation of the 50% reservation capped in the Indra Sawhney case of 1992.

Few Examples for reservation above of 50 percent ceiling
The State and Central governments enacted laws that violate the reservation ceiling. They are,

• 103rd Constitution Amendment Act, 2019: By enabling 10% reservation for the EWS the law violated the 50 percent ceiling.
• The Tamil Nadu Backward Classes, SCs and STs Act, 1993: By this Act, the Tamil Nadu government provided 69 per cent of reservation in educational institutions and jobs in the state government. The State further get the ascent of President and placed this law in Schedule IX of the Constitution.

Note: Laws placed in the Ninth Schedule cannot be challenged in court for the violation of fundamental rights. The Court in the I R Coelho v State of Tamil Nadu case held that the Laws in Ninth Schedule can be challenged for the violation of the basic structure of the Constitution. The Supreme court is yet to decide the case of Tamil Nadu reservation law.

Haryana and Chhattisgarh have also passed laws that exceeding the 50 per cent reservation mark. These laws also challenged in the Supreme Court.
Apart from these legislations, there are many protests from various parts of India demanding special reservation above the 50 per cent limit. Few examples are,

• Patels in Gujarat,
• Jats in Haryana,
• Kapus in Andhra Pradesh.

Judicial interventions on reservation policy

1) State of Madras v. Smt.Champakam Dorairajan (1951) case: In this case, the court held that the caste-based reservations violate provisions of Article 15(1). Article 15(1) provides for non-discrimination of State against citizens on the grounds only of religion, race, caste, sex, place of birth or any of them.

• This resulted in the First Constitutional Amendment. The Parliament amended Article 15 to include provisions of reservation under Article 15(4).

2) M R Balaji v State of Mysore case 1963 and Devadasan v Union of India case 1964: In these cases, the court held that the efficiency of public administration is essential. Further the court asked the government to maintain the reservation to 50%

3) Indra Sawhney vs Union of India Case 1992: In this, the court held that the reservation should not exceed 50 per cent in total, unless in exceptional circumstances. Further, the Court held to remove the creamy layer among OBCs from the reservation. Apart from that, the Court also held that there should not be reservation in promotions.

• But the government enacted the 77th Constitutional Amendment Act(CAA) to provide reservation for SCs and STs in Promotion(Article 16(4A)).

4) M. Nagaraj vs Union of India case 2006: In this, the court upheld the 77th CAA. But the court also mentioned certain conditions to be maintained in such reservation. Such as,

• The reservation policy shall not affect the overall administrative efficiency
• Reservation is applicable only when the SCs and STs are not adequately represented in public employment.

Arguments in support of 50 percent quota revision

• Inadequate representation of people: The OBCs alone represent 52 per cent of the total population. The SCs and STs and OBCs combined represent more than two-thirds of the population. But they received only 49.5 per cent of the reservation.
• Reservation leads to Inclusion: The reservation policy led to inclusive development. It is because of the Reservation policy many unrepresented sections of society are now getting due recognition in jobs and educational institutions. By moving beyond the 50% limit there will be more inclusivity in jobs and educational institutions.
• Facilitate Social justice: The expansion of the 50 per cent reservation limit will promise equality and social justice enshrined under various provisions of the Indian constitution. Such as preamble, Article 14 etc.

Arguments Against the revisit of 50 percent quota

• Reservation can lead to political vulnerability: India is a diverse society having a number of Castes. Expanding the reservation policy might act as a political instrument in hands of political parties. They can use the caste-based reservation for electoral gains. The state government at present also providing job reservation in the Private sector also.
• Not completely successful: Caste-based reservation policy in India is not completely successful in bringing up the weakest members of the SEBCs. The reservation policy benefitted well-off sections of people in reserved categories. If the reservation is widened then it will be beneficial to the well-off’s, not the intended beneficiaries.
• Against meritocracy: By increasing the reservation limit above 50 per cent, the overall efficiency of government jobs and educational quality might be compromised. Further, it can lead to deterioration in these sectors in the long run.

Suggestions

• The government have to subclassify the Backward Classes like in Tamil Nadu, Andhra Pradesh, West Bengal etc. This will provide the benefit to intended beneficiaries. Since the government has already appointed Justice G Rohini Panel on Sub-categorisation of OBCs.  The Panel has to fast pace the sub-classification process.
• The government have to remove the well-off sections from the reservation policy. This can be achieved by analysing the reservation policy based on a citizen’s conditions rather than community-based reservations.
• Apart from that, the government also understands that the reservation policy is a temporary measure in the direction of social inclusion. Social inclusion can be achieved by better education policies, enhancing the skill development of backward communities, not by providing more reservations.

Road Ahead

• In conclusion, Reservation is a temporary policy measure introduced by the constitutional makers that cannot be misunderstood. Providing more and more reservation gradually is itself not a permanent solution. Further, Social Justice has to achieve without compromising efficiency in the long run. So, it is time for the government to move beyond reservation based on caste alon.
• In other words, the issue is not so much of historical backwardness as it is of access to education. So, if SC is to do complete justice, it needs to link reservations to, essentially, education or income; the two, as it happens, are interlinked. And, to ensure that reservations have an automatic end-by date as well as only the deserving get them, it must put ‘creamy layer’ criterion in place for all groups; if anyone whose parents have availed of any form of reservation no longer qualifies for reservation, for instance, this will ensure the more under-privileged get a chance the next time around. Given the role of politicians as well as the courts in the reservation mess, this is probably their best shot at making amends.