The Supreme Court’s decision, striking down Maharashtra’s special quota for the Maratha community and ruling out a review of the 50 per cent cap on reservation laid down in 1992, will have far-reaching implications. At the very least, it puts the political class across the country in a quandary.
Significantly, the five-judge Constitution bench saw no merit in a larger bench revisiting the statutory limit on reservation in educational institutions and jobs. It also found no ‘exceptional circumstances’ justifying the breach of the ceiling through an enabling legislation (the Maharashtra State Reservation for Socially and Educationally Backward Classes Act of 2018), which had been upheld by the Bombay High Court.
Given that the Centre exceeded the limit by announcing a quota of 10 per cent for economically backward sections (EWS) in 2019 and that several states have attempted to inflate quotas with the objective of wooing interest groups, the ruling comes as a setback for incumbent governments.
Indira Sawhney judgment
Earlier this year, while examining the Maratha quota law, the bench had expanded its ambit to consider whether the Indira Sawhney judgment (which fixed the 50 per cent ceiling) needed a fresh look. Notices were accordingly issued to all the states and Union Territories, who aired their views in court.
The ruling is of special interest to Tamil Nadu, which has enjoyed a 69 per cent quota since 1993, by virtue of the fact that its reservation law was placed within the ambit of the Ninth Schedule and therefore, beyond judicial review. Several petitions challenging the inclusion of the law in the Ninth Schedule as violative of Article 14 are currently being heard.
During the hearings by the five-judge bench, Tamil Nadu pleaded that the states be allowed to exercise discretion in the matter of reservation, as they alone could decide who deserved it and to what extent. If the ‘socially and educationally backward’ segment exceeded 50 per cent, the state should be allowed to accommodate them.
Emulating Tamil Nadu
Other political parties have sought to follow the Tamil Nadu’s example. Telangana Chief Minister K Chandrashekar Rao wanted similar protection for his reservation law, which raised quotas to 62 per cent. The LJP’s Chirag Paswan had demanded that reservation per se should enjoy the protection of the Ninth Schedule. All it would take, they pointed out, was the requisite Constitutional amendment. After all, Parliament has a history of passing laws to nullify SC rulings.
However, the SC has made it clear that inserting a new law into the Ninth Schedule does not mean that it will have blanket immunity from judicial review, if it is found to be violative of the basic structure of the Constitution. Wednesday’s judgment signals that the SC may not go along with a constitutional amendment allowing the states to exceed the 50 per cent cap.
Telangana and Maharashtra apart, the states affected include Rajasthan, Haryana, Chhattisgarh and Karnataka. In 2015, the SC had restrained the Rajasthan government from implementing a law to increase reservation to 68 per cent by hiking the OBC quota from 21 to 26 per cent and instituting an additional quota of 14 per cent for economically backward classes. The state has seen repeated agitations for reservation by the Gujjar community.
In 2016, Haryana sought to exceed the 50 per cent cap through a 10 per cent quota for the Jats and five other communities, as well as another 10 per cent for the economically backward, taking the total to 67 per cent. That was the year the state witnessed a violent pro-reservation stir led by the Jats. The Punjab & Haryana High Court stayed the new quotas.
Undeterred, the Chhattisgarh government, in 2019, brought in ordinances to increase quotas to a mind-boggling 82 per cent, which were promptly stayed by the high court. Karnataka, likewise, remains committed to breaching the 50 per cent limit, despite getting no joy from the courts.
Clutch of quota cases
The apex court is hearing a number of matters related to reservation, including the 103rd Amendment, which provides for the EWS quota. The points of law, other than the 50 per cent cap, include the application of economic criteria to determine backwardness and the rights of private, unaided minority educational institutions, which are compelled to admit students on criteria other than merit.
While the Indira Sawhney judgment had sought to balance affirmative action with the right to equality by limiting reservations to 50 per cent, politicians have found it irksome, in terms of catering to fractious quota-seekers. In recent years, historically well-off groups like the Patidars, Marathas and the Jats, fearing marginalisation, have demanded a slice of the reservation pie.
The obvious solution is to increase the size of the pie, which can be done in one of two ways – increase quotas beyond 50 per cent or extend reservation to the private sector. Both of these are a slippery slope and if politicians are allowed to have their way, reservation will end up as a zero-sum game - a fact that the apex court appears to have acknowledged.
The writer is a senior journalist with 35 years of experience in working with major newspapers and magazines. She is now an independent writer and author