WHY THE 50% CAP ON RESERVATIONS IS ARBITRARY: ANALYZING THE MARATHA RESERVATION CASE

This article has been authored by Yachana Gupta, a first year student at NALSAR University of Law, Hyderabad.

Introduction

The Supreme Court of India, on 5th May, 2021, struck down the Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act, 2018 (“The Act”) in the case of Jaishri Laxmanrao Patil v. Chief Minister, and upheld the 50% ceiling on the reservation, affirming the validity of 102nd Constitutional amendment.

The Act

The Act grants reservation to the Maratha community in public education and employment. In Maharashtra, the reservation quota was 52% before the introduction of the Maratha quota. The Act initially granted 16% reservation to the Maratha community, which was later reduced to 12% by the Bombay High Court. This additional quota for Martha community took the reservation to 64%. This reservation was first challenged in Bombay High Court, in the case ofJishri Laxman Rao v. The Chief Minister of State of Maharashtra, Mantralaya and Anr, which was upheld by the Court. The rationale behind the Court’s judgment was that the classification of the Marathas as SEBCs “complies with the twin test of reasonable classification permissible under Article 14 of the Constitution of India, namely, (a) intelligible differentia and (b) rational nexus to the object sought to be achieved”, and thus, the reservation qualifies as an “exceptional circumstance” justifying crossing of the limit of 50% reservation as set out in Indra Sawhney's case. The Act was then challenged in the Supreme Court in the case of Jaishri Laxmanrao Patil v. Chief Minister.

Who are the Marathas?

The Marathas are historically defined as warriors. They are basically an agrarian community, which is politically dominating in Maharashtra. An overwhelming 12 of the 18 Chief Ministers belong to this community, and more than 60% of the members from Legislative Assemblies of Maharashtra have been the Marathas since 1962. Further, they own over 75% of the land in the State just as 86 of the 105 sugar factories besides controlling about 55% of educational institutions and over 70% of cooperative bodies.

Issues Dealt by the Supreme Court

1. Whether Indira Sawhney v. Union of India (“Indira Sawhney”) needed a reconsideration, considering the changed legal and social circumstances?

2. Whether the Maratha reservation qualified as ‘extraordinary circumstances’ as propounded in Indira Sawhney?

3. Whether the government of Maharashtra and the Gaikwad report (the report headed by Justice M. C. Gaikwad (rtd) concluded that the Marathas needed reservation) made out a case for this quota to be considered in the said ‘extraordinary circumstances’?

4. Whether States were deprived of their right to identify ‘backward classes’ in the backdrop of the 102ndConstitutional amendment (102nd amendment inserted a new Article 338B in the Constitution which provides for NCBC (National Commission for backward classes), its composition, mandate, function and various officers, and Article 342A which deals with power of the President to notify a particular caste as SEBC and the power of the Parliament to change the list).

5. Whether States’ power to legislate in relation to “any backward class” under Articles 15(4) and 16(4) is anyway abridged by Article 342(A) read with Article 366(26)(c) of the Constitution of India?

6. Whether the Article 342(A) while assigning President the power to identify the socially and educationally backward classes, in any way affected the federal structure of the Constitution of India?

This article restricts itself with the first issue, that is, whether Indira Sawhney and the 50% rule propounded therein needed a reconsideration?

50% Ceiling and it’s Arbitrariness

The rule of 50% cap on the reservation was first expressed by the Supreme Court in M. R. Balaji v. State of Mysore. In this case, the Court upheld that reservation under Article 16 (4) of the Constitution of India cannot surpass the limit of 50%. This came in the backdrop when the Court believed in the concept of formal equality (Formal equality involves equal status for all members of society regardless of social background, that is, ‘affirmative actions’ are perceived as antithetical to ‘equality of opportunity’), and considered that Article 16 (4) was merely an exception to Article 16 (1) of the Constitution of India. It was even termed as ‘caste-blind’ vision of equality because of its indifference to the inevitable link between an individual’s ‘personal characteristics’ (caste, gender, religion, economic background, etc.) and the resulting ‘personal qualities’ (merit). This was manifested in the various judgments of the Court. For example, in General Manager, Southern Railway v. Rangachari, the Court took a very parochial view of Article 16 (4) of the Constitution of India and held that “It is common ground that Art. 16(4) does not cover the entire field covered by Art. 16(1) and (2)”, and thus, “conditions of service relating 'to employment such as salary, increment, gratuity, pension and the age of superannuation’ there can be no exception even in regard to the backward classes of citizens.” This ‘formal equality’ vision was further reaffirmed in T. Devadasan v. Union of India, where the Court declared the ‘carrying forward’ of the vacant reserved seats as unconstitutional because the “excessive reservation permitted by it almost destroys the guarantee contained in Article 16 (1).” Consequently, the reservation was merely an ‘exception’ and could not be more than 50%.

A new vision of equality was brought forth in State of Kerala v. N. M. Thomas. The Court denied the view that Article 16 (4) was merely an exception to Article 16 (1) of the Constitution of India, rather it was “one of the methods of achieving equality embodied in Article 16(1).” The Court observed that affirmative actions are not antithetical to equality of opportunity under Article 16 (1) of the Constitution of India (substantial equality), instead of acknowledgement of existing institutional and structural inequalities is an important requisite for any equality to materialise. That said, reservation was meant to achieve substantive equality, and any quantum of reservation thus should be measured against the prevailing backwardness of a particular community. To already fix the quantum of reservation (in this case, 50% limit) without realising the backwardness, is nothing but ‘formal equality in the adulterated form’.

In the momentous case of Indra Sawhney v. Union of India (Mandal Commission case), the Court reaffirmed the 50% rule and upheld the validity of N. M. Thomas. That is to say, the Court believed in substantial equality but only when it does not exceed 50% (except in “extraordinary circumstances”). Now, this seems quite contradictory for to uphold both the 50% rule (formal equality) and N. M. Thomas (substantial equality) seems like nothing but a compromise. To relegate substantial equality to a number is just another way of upholding ‘formal equality in the adulterated form’. To illustrate this point, if in a society, more than 50% of the population is disadvantaged and we still cling to 50% rule, then that is not substantial equality because substantial equality requires one to look at the disadvantage, no matter what the percentage may be. The very foundation of substantial equality is recognizing the disadvantage experienced by some communities and further remedying that. To define it by a number is to deceive the very purpose of it, which neither was envisioned by the constitutional makers nor is supported by the Constitution.

Conclusion

This article has been authored by Yachna Gupta, a first year student at NALSAR University of Law, Hyderabad. he same and ruminate over the issue critically, but unfortunately, the Court’s stance of further reaffirming 50% rule alludes that the constitutional vision of substantial equality is yet to be realised.