179. The next baffling question relates to the permissible extent of reservation in appointments.
180. It was for the first time that this Court in Balaji has indicated broadly that the reservation should be less than 50% and the question how much less than 50% would depend on the relevant prevailing circumstances in each case, Though in Balaji (AIR 1963 Supreme Court 649), the issue in dispute related only to the reservation prescribed for admissions in the medical college from the educationally and socially backward classes, scheduled castes and scheduled tribes as being violative of Article 15 (4), this Court after expressing its view that it should be less than 50% observed further that “the provisions Article 15 (4) are similar to those of Article 16 (4) …. Therefore, what is true in regard to Article 15(4) is equally true in regard to Article 16 (4) ….reservation made under Article 16(4) beyond the permissible and legitimate limits would be liable to be challenged as a fraud on the Constitution.” This decision has gone further holding that the reservation of 68% seats made in that case was offending Article 15(4) of the Constitution. To say in other words, Balaji has fixed that the maximum limit of reservation all put together should not exceed 50% and if it exceeds, it is nothing but a fraud on the Constitution. Even at the threshold, I may emphatically state that I am unable to agree with the proposition fixing the reservation for SEBCs at 50% as the maximum limit.
181. Mr. Jethmalani strongly articulated that the observation in Balaji that reservation under Article 16 (4) should not be beyond 50% is only an obiter dicta since that question did not at all arise for consideration in that case. Therefore, according to him, this observation is not a law declared by the Supreme Court within the meaning of Article 141 of the Constitution. He continued to state that unfortunately some of the subsequent decisions have mistakenly held as if the question of permissible limit has been settled in Balaji while, in fact, the view expressed in it was an obiter dicta. According to him, the policy of reservation is in the nature of affirmative action, firstly to eliminate the past inhuman discrimination and secondly to ameliorate the sufferings and reverse the genetic damage so that the people belonging to ‘backward class’ can be uplifted. When it is the main objective of clause (4) of Article 16 any limitation on reservation would defeat the very purpose of this Article falling under Fundamental Rights and, therefore, reservation if -the circumstances so warrant can go even up to 100%.
182. This view of Mr. Jethmalani has been fully supported by Mr. Siva Subramaniam appearing on behalf of the State of Tamil Nadu who pointedly referred to the speech of the Chief Minister of Tamil Nadu made in the Chief Ministers’ Conference held on 10th April 1992 and produced a copy of the printed speech of the Chief Minister, issued by the Government of Tamil Nadu as an annexure to the written submissions. It is seen from the said annexure that the Chief Minister has categorically emphasised the stand of the Government of Tamil Nadu stating that the total reservation for backward classes, scheduled castes and scheduled tribes is 69%; that it is but fair and proper that socially and educationally backward classes (alone) as a whole should be given at least 50% reservation for employment opportunities in Central Government services and its undertakings as well as for admission in educational institutions run by the Central Government. It has also been pointed out that in consonance with this avowed policy, the Tamil Nadu Legislative Assembly passed unanimously a resolution on 30-9-1991 urging the Government of India to adopt a policy of 50% reservation for the Backward Classes instead of 27% and to apply this reservation not only for employment opportunities in all Central Government departments and Public Sector Undertakings, but also for admission in all Educational Institutions run by the Central Government.
183. Mr. Rajiv Dhawan appearing in W. P. No. 1094/91 submits that the limits to the reservation in Article 16 (4) cannot be fixed on percentage but it must be with the ulterior objective of achieving adequate representation for ‘backward classes’.
184. I see much force in the above submissions and hold that any reservation in excess of 50% for ‘backward classes’ will not be violative of Articles 14 and/or 16 of the Constitution. But at the same time, I am of the view that such reservations made either under Article 16 (4) or under Article 16 (1) and (4) cannot be extended to the totality of 100%. In fact, my learned brother, P. B. Sawant, J. in his separate judgment has also expressed a similar view that “there is no legal infirmity in keeping the reservations under clause (4) alone or under clause (4) and clause (1) of Article 16 together exceeding 50 per cent” though for other reasons the learned Judge has concluded that ordinarily the reservations kept under Article 16 (1) and 16(4) together should not exceed 50% of the appointments in a cadre or service in any particular year, but for extraordinary reasons this percentage may be exceeded. My learned brother, B. P. Jeevan Reddy, J in his separate judgment has expressed his view that in given circumstances, some relaxation in the strict rule of reservation may become imperative and added tha in doing so extreme caution is to be exercised and a special case made out.
185. As to what extent the proportion of reservation will be so excessive as to render it bad must depend upon adequacy of representation in a given case. Therefore, the decisions fixing the percentage of reservation only up to the maximum of 50% are unsustainable, The percentage of reservation at the maximum of 50% is neither based on scientific data nor on any established and agreed formula. In fact, Article 16 (4) itself does not limit the power of the Government in making the reservation to any maximum percentage; but it depends upon the quantum of adequate representation required in the Services. In this context, it would be appropriate to recall some of the decisions of this Court, not agreeing with Balaji as regards the fixation of percentage of reservation.
186. The question of percentage of reservation was examined in Thomas (AIR 1976 Supreme Court 490) wherein Fazal Ali, J. not agreeing with Balaji (AIR 1963 Supreme Court 649) has observed thus :
“…..Clause (4) of Article 16 does not fix any limit on the power of the Government to make reservation. Since clause (4) is a part of Article 16 of the Constitution it is manifest that the State cannot be allowed to indulge in excessive reservation so as to defeat the policy contained in Article 16 (1). 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 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? The answer must necessarily be in the negative. The dominant object of this provision is to take steps to make in adequate representation adequate.”
187. Krishna Iyer, J. in the same decision has agreed with the above view of Fazal Ali, J. stating that…..the arithmetical limit of 50% in any one year by some earlier rulings cannot perhaps be pressed too far.”
188. Though Mathew, J did not specifically deal with this maximum limit of reservation, nevertheless tenor of his judgment indicates that he did not favour 50% rule.
189. Chinnappa Reddy, J. in Karmachari case 1981 (2) SCR 185 (supra) has expressed his view on the ceiling of reservation as follows :
“…..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 percent. There is no rigidity about the fifty percent rule which is only a convenient guideline 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 any one of the impugned orders and circulars ….”
190. Again in Vasanth Kumar (AIR 1985 Supreme Court 1495), Chinnappa Reddy, J. reiterates his view taken in Karmachari in the following words :
“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.”
191. I fully share the above views of Fazal, Ali, Krishna Iyer, Chinnappa Reddy, JJ. holding that no maximum percentage of reservation can be justifiably fixed under Articles 15 (4) and/or 16 (4) of the Constitution.
192. It should not be out of place to recall the observation of Hegde, J. in Hira Lal (AIR 1971 Supreme Court 1777) observing, “The extent of reservation to be made is primarily a matter for the State to decide. By this we do not mean to say that the decision of the State is not open to judicial review……..The length of the leap to be provided depends upon the gap to be covered.”
193. Desai, J. in Vasanth Kumar (AIR 1985 Supreme Court 1495) expressed his view that in dealing with the question of reservation in favour of Scheduled Castes, Scheduled Tribes as well as other SEBCs ‘Judiciary retained its traditional blindfold on its eyes and thereby ignored perceived realities”
[1] This article is an excerpt from the judgment of Indira Sawhney v Union of India 1993 (1) SCT 448