Parliament of India passed Constitution (One Hundred and Third Amendment) Act, 2019 which came into effect on 14 Jan 2019. Through this amendment, Parliament amended Article 15 and 16 of the Constitution of India by adding two new clauses viz., clause (6) to Article 15 with Explanation and clause (6) to Article 16; and thereby, the State has been empowered, to provide for a maximum of ten per cent reservation for “the economically weaker sections” of citizens other than “the Scheduled Castes”, “the Scheduled Tribes” and the non-creamy layer of “the Other Backward Classes”.
The amendment was challenged before Supreme Court, and one of the challenges to the amendment was that in Indra Sawhney v. UOI (1992), the Supreme Court has fixed the limit of reservation to 50% and as this amendment provides further 10% amendment beyond 50%, it violates the 50% rule, set in Indra Sawhney Case.
The Court’s Answer to this challenge
The court said that, the argument regarding the cap of fifty per cent. is based on all those decisions by this Court which were rendered with reference to the reservations existing before the advent of the amendment in question. The fifty per cent. ceiling proposition would obviously be applied only to those reservations which were in place before the amendment in question.
No decision of Supreme Court could be read to mean that even if the Parliament finds the necessity of another affirmative action by the State in the form of reservation for a section or class in need, it could never be provided. As noticed herein below, the decisions of this Court are rather to the contrary and provide that flexibility within which the Parliament has acted for putting in place the amendment in question.
While answering on petitioners’ argument, the court referred following decisions-
In M.R. Balaji and Ors. v. State of Mysore and Ors: 1963 Supp (1) SCR 439, the Constitution Bench of Supreme Court, while considering whether sixty per cent. reservation in engineering and medical colleges and other technical institutions was appropriate, observed as under: –
“…It is because the interests of the society at large would be served by promoting the advancement of the weaker elements in the society that Art. 15(4) authorises special provision to be made. But if a provision which is in the nature of an exception completely excludes the rest of the society that clearly is outside the scope of Art. 15(4)….
Speaking generally and in a broad way, a special provision should be less than 50%; how much less than 50% would depend upon the relevant prevailing circumstances in each case…”
In T. Devadasan v. Union of India, (1964) 4 SCR 680 : AIR 1964 SC 179, constitutionality of carry forward rule was challenged on the ground that it violated fifty per cent. limit. The majority relied upon M.R. Balaji and observed that the ratio of the said decision pertaining to Article 15(4) equally applied to the case at hand pertaining to Article 16(4); and held that reservation of more than half of the vacancies was invalid. The Court struck down the carry forward rule by holding that 16(4) was a proviso to 16(1), in the following words: –
“……In the case before us 45 vacancies have actually been filled out of which 29 have gone to members of the Scheduled Castes and Tribes on the basis of reservation permitted by the carry forward rule. This comes to 64.4% of reservation. Such being the result of the operation of the carry forward rule we must, on the basis of the decision in Balaji’s case hold that the rule is bad…..
……Further, this Court has already held that cl. (4) of Art. 16 is by way of a proviso or an exception to cl. (1). A proviso or an exception cannot be so interpreted as to nullify or destroy the main provision. To hold that unlimited reservation of appointments could be made under cl. (4) would in effect efface the guarantee contained in cl. (1) or at best make it illusory….”
As noticed, the case of State of Kerala v. N.M. Thomas, (1976) 2 SCC 310 arose in the context of constitutionality of the rules contained in the Kerala State and Subordinate Services Rules, 1958, by which the State Government was empowered to grant exemption to SC/ST candidates from passing qualifying test for departmental exam. In that case, two learned judges opined about the rule of ceiling limit thus: –
Fazal Ali, J.
“191…….. As to what would be a suitable reservation within permissible limits will depend upon the facts and circumstances of each case and no hard and fast rule can be laid down, nor can this matter be reduced to a mathematical formula so as to be adhered to in all cases. Decided cases of this Court have no doubt laid down that the percentage of reservation should not exceed 50%.
As I read the authorities, this is, however, a rule of caution and does not exhaust all categories. Suppose for instance a State has a large number of backward classes of citizens which constitute 80% of the population and the Government, in order to give them proper representation, reserves 80% of the jobs for them, can it be said that the percentage of reservation is bad and violates the permissible limits of clause (4) of Article 16?……….
Krishna Iyer, J.
143…….I agree with my learned Brother Fazal Ali, J. in the view that the arithmetical limit of 50% in any one year set by some earlier rulings cannot perhaps be pressed too far. Overall representation in a department does not depend on recruitment in a particular year, but the total strength of a cadre. I agree with his construction of Article 16(4) and his view about the ‘carry forward’ rule.”
The other Judges did not specifically deal with the fifty per cent. rule but the majority judges agreed that Article 16(4) was not an exception to 16(1).
In Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India and Ors.: (1981) 1 SCC 246, several concessions and exemptions granted by the Railway Board in favour of SCs/STs came to be challenged. Therein, the opinions as regards percentage of reservation came to be expressed as under: –
Chinnappa Reddy, J.
“135… There is no fixed ceiling to reservation or preferential treatment in favour of the Scheduled Castes and Scheduled Tribes though generally reservation may not be far in excess of fifty per cent. There is no rigidity about the fifty per cent rule which is only a convenient guide-line laid down by judges.
Every case must be decided with reference to the present practical results yielded by the application of the particular rule of preferential treatment and not with reference to hypothetical results which the application of the rule may yield in the future. Judged in the light of this discussion I am unable to find anything illegal or unconstitutional in anyone of the impugned orders and circulars….”
In K.C Vasanth Kumar v State of Karnataka, (1985) Supp SCC 714, two learned Judges stated slightly different conclusions as regards this ceiling limit of fifty per cent. and the effect of the decision in N.M. Thomas as follows: –
Chinnappa Reddy, J.
“57. ……The percentage of reservations is not a matter upon which a court may pronounce with no material at hand. For a court to say that reservations should not exceed 40 per cent 50 per cent or 60 per cent, would be arbitrary and the Constitution does not permit us to be arbitrary. Though in the Balaji case, the Court thought that generally and in a broad way a special provision should be less than 50 per cent, and how much less than 50 per cent would depend upon the relevant prevailing circumstances in each case, the Court confessed:
“In this matter again, we are reluctant to say definitely what would be a proper provision to make.” All that the Court would finally say was that in the circumstances of the case before them, a reservation of 68 per cent was inconsistent with Article 15(4) of the Constitution. We are not prepared to read Balaji as arbitrarily laying down 50 per cent as the outer limit of reservation……….
58. We must repeat here, what we have said earlier, that there is no scientific statistical data or evidence of expert administrators who have made any study of the problem to support the opinion that reservation in excess of 50 per cent may impair efficiency. It is a rule of thumb and rules of the thumb are not for judges to lay down to solve complicated sociological and administrative problems. Sometimes, it is obliquely suggested that excessive reservation is indulged in as a mere vote-catching device.
Perhaps so, perhaps not. One can only say “out of evil cometh good” and quicker the redemption of the oppressed classes, so much the better for the nation. Our observations are not intended to show the door to genuine efficiency. Efficiency must be a guiding factor but not a smokescreen. All that a court may legitimately say is that reservation may not be excessive. It may not be so excessive as to be oppressive; it may not be so high as to lead to a necessary presumption of unfair exclusion of everyone else.
149. After carefully going through all the seven opinions in the above case, it is difficult to hold that the settled view of this Court that the reservation under Article 15(4) or Article 16(4) could not be more than 50% has been unsettled by a majority on the Bench which decided this case.
I do not propose to pursue this point further in this case because if reservation is made only in favour of those backward castes or classes which are comparable to the Scheduled Castes and Scheduled Tribes, it may not exceed 50% (including 18% reserved for the Scheduled Castes and Scheduled Tribes and 15% reserved for “special group”) in view of the total population of such backward classes in the State of Karnataka……..”
In Indra Sawhney v. Union of India (1992), Jeevan Reddy, J., speaking for the majority, though made it clear that reservation contemplated by Article 16(4) should not exceed fifty per cent., yet left that small window open where some relaxation to the strict rule may become imperative in view of the extraordinary situations inherent in the great diversity of our country.
As an example, it was pointed out that the population inhabiting far-flung and remote areas might, on account of their being out of the mainstream of national life and in view of the conditions peculiar to them, need to be treated in a different way. However, a caveat was put that a special case has to be made out and extreme caution has to be exercised in this regard. The relevant observations read as under: –
“809. From the above discussion, the irresistible conclusion that follows is that the reservations contemplated in clause (4) of Article 16 should not exceed 50%.
810. 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 in a different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out.”
In M. Nagaraj and Ors. v. Union of India and Ors.: (2006) 8 SCC 212 while interpreting Article 16 (4-A) and (4-B) and while considering the extent of reservation, the expression “ceiling limit” came to be employed by this Court while underscoring the concept of “proportional equality”.
Paragraph 102 of the said decision, which had been reproduced hereinabove in the discussion pertaining to reservation, could be usefully re-extracted along with other relevant passages as under: –
“102 …… Clauses (1) and (4) of Article 16 are restatements of the principle of equality under Article 14. Clause (4) of Article 16 refers to affirmative action by way of reservation. Clause (4) of Article 16, however, states that the appropriate Government is free to provide for reservation in cases where it is satisfied on the basis of quantifiable data that Backward Class is inadequately represented in the services. Therefore, in every case where the State decides to provide for reservation there must exist two circumstances, namely, “backwardness” and “inadequacy of representation”.
As stated above, equity, justice and efficiency are variable factors. These factors are context-specific. There is no fixed yardstick to identify and measure these three factors, it will depend on the facts and circumstances of each case. These are the limitations on the mode of the exercise of power by the State…….. If the State concerned fails to identify and measure backwardness, inadequacy and overall administrative efficiency then in that event the provision for reservation would be invalid.……
Equality has two facets – “formal equality” and “proportional equality”. Proportional equality is equality “in fact” whereas formal equality is equality “in law”. Formal equality exists in the rule of law. In the case of proportional equality the State is expected to take affirmative steps in favour of disadvantaged sections of the society within the framework of liberal democracy.
104…..As stated above, be it reservation or evaluation, excessiveness in either would result in violation of the constitutional mandate. This exercise, however, will depend on the facts of each case…..
121. The impugned constitutional amendments by which Articles 16(4-A) and 16(4-B) have been inserted flow from Article 16(4). They do not alter the structure of Article 16(4). They retain the controlling factors or the compelling reasons, namely, backwardness and inadequacy of representation which enables the States to provide for reservation keeping in mind the overall efficiency of the State administration under Article 335.
These impugned amendments are confined only to SCs and STs. They do not obliterate any of the constitutional requirements, namely, ceiling limit of 50% (quantitative limitation), the concept of creamy layer (qualitative exclusion), the sub-classification between OBCs on one hand and SCs and STS on the other hand as held in Indra Sawhney, the concept of post-based roster with inbuilt concept of replacement as held in R.K. Sabharwal.
122. We reiterate that the ceiling limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse.”
In K. Krishna Murthy (Dr.) and Ors. v. Union of India and Anr.: (2010) 7 SCC 202, as noticed, this Court rejected the challenge to the Constitution (Seventy-third Amendment) Act, 1992 and the Constitution (Seventy-fourth Amendment) Act, 1992 which had inserted Part IX and Part IX-A to the Constitution thereby contemplating the powers, composition and functions of the Panchayats (for rural areas) and Municipalities (for urban areas). In the present context, the passage referring to the ceiling aspect of reservation in regard to local self-government could be re-extracted as under: –
“82……(iv) The upper ceiling of 50% vertical reservations in favour of SCs/STs/OBCs should not be breached in the context of local self-government. Exceptions can only be made in order to safeguard the interests of the Scheduled Tribes in the matter of their representation in panchayats located in the Scheduled Areas……”
In Dr. Jaishri Laxmanrao Patil v. Chief Minister and Ors.: (2021) 8 SCC 1, Bhat, J. after analysis of Indra Sawhney said as follows: –
“10. A careful reading of the judgments in Indra Sawhney v. Union of India, clarifies that seven out of nine Judges concurred that there exists a quantitative limit on reservation-spelt out at 50%. In the opinion of four Judges, therefore, per the judgment of B.P. Jeevan Reddy, J., this limit could be exceeded under extraordinary circumstances and in conditions for which separate justification has to be forthcoming by the State or the agency concerned.
However, there is unanimity in the conclusion by all seven Judges that an outer limit for reservation should be 50%. Undoubtedly, the other two Judges, Ratnavel Pandian and P.B. Sawant, JJ. indicated that there is no general rule of 50% limit on reservation.
In these circumstances, given the general common agreement about the existence of an outer limit i.e. 50%, the petitioner’s argument about the incoherence or uncertainty about the existence of the rule or that there were contrary observations with respect to absence of any ceiling limit in other judgments (the dissenting judgments of K. Subba Rao, in T. Devadasan v. Union of India, the judgments of S.M. Fazal Ali and Krishna lyer, JJ. in State of Kerala v. N.M. Thomas and the judgment of Chinnappa Reddy, J. in K.C. Vasanth Kumar v. State of Karnataka) is not an argument compelling a review or reconsideration of Indra Sawhney rule.”
In the said decision, Bhushan, J. observed as under: –
442. The above constitutional amendment makes it very clear that ceiling of 50% “has now received constitutional recognition”. Ceiling of 50% is ceiling which was approved by this Court in Indra Sawhney case, thus, the constitutional amendment in fact recognises the 50% ceiling which was approved in Indra Sawhney case and on the basis of above constitutional amendment, no case has been made out to revisit Indra Sawhney.”
The court’s conclusion
After referring the above cases, the court reached on the conclusion that,
50% ceiling limit, though held attached to the constitutional requirements, has not been held to be inflexible and inviolable for all times to come. Reasons for this are not far to seek. As mentioned hereinbefore, reservation by affirmative action is not having trappings of any such essential feature of the Constitution, collectively enumerated by Kesavananda and successive decisions, that its modulation with reference to any particular compelling reason or requirement could damage the basic structure of the Constitution.
In another view of the matter, the prescription of ceiling limit of fifty per cent., being apparently for the benefit of general merit candidates, does not provide any justified cause to the candidates standing in the bracket of already available reservation to raise any grievance about extra ten per cent. reservation for the benefit of another section of society in need of affirmative action. In any case, there is no question of violation of any such basic feature of the Constitution that the entire structure of equality of opportunity in Article 16 would collapse by this EWS reservation.”
Janhit Abhiyan v. Union of India (2023)