The Supreme Court on 7th November 2022, upheld the Constitutional Amendment that allows for reservations for economically weaker sections (‘EWS’) in public employment and higher education. Among other issues, one ground of challenge was that the 103rd Constitutional Amendment allowed States to reserve more than 50% of positions, which is a cap set by the Court in previous judgments.
Though it was one of the 4 main issues, little time was spent on it and previous judgments were applied without careful application. The origins of the 50% limit itself was always grounded in doubtful rationale. I will argue that the Court’s continued reliance on the 50% limit has no constitutional basis. In the EWS case, the Court not only fails to reconsider the limit, but the majority causes further confusion by making an irrational distinction between EWS and SEBC reservations. If my reading of what the judges intended to hold are correct, I submit that the Court’s 50% limit doctrine amounts to discrimination on the basis of caste. Or to put it simply, the 50% limit as it now stands is casteist.
I. Uncertain Foundations
The 50% cap on reserved seats is a rule declared by the Court. Until EWS, reservations were provided primarily for caste-based groups: Scheduled Castes, Scheduled Tribes and socially and educationally backward classes (SEBCs). Other reservations for women or persons with disability were horizontal (i.e. they were a part of each of the other categories) and so did not count for the purpose of the 50% limit. In practice, therefore, the 50% limit served to restrict caste and tribe reservations.
Broadly, three reasons have been provided by the Court since the rule’s purported origins in MR Balaji v State of Mysore. First, that provisions for reservations in the Constitution are ‘exceptions’ to the main rule on equality of opportunity, and an exception cannot overtake the rule. Second, that reservations must be balanced by concerns of efficiency and merit. Third, that reservations affects the equality of opportunity of other communities and so must be reasonably balanced against it.
The first rationale has been categorically overruled in NM Thomas, which held that reservations are a facet of equality and not an exception to it. Despite this, the argument is resurrected in a new form: by relying on Ambedkar’s speech in the Constituent Assembly which says reservation should be ‘confined to a minority of seats’. The crux of his speech was to explain how ‘backward’ would qualify who is eligible for reservations. So, was this meant to justify what has become the 50% limit? Even if it was, we are heavily cautioned against reliance on one Constitutional Assembly Member’s opinion on the text (see Kavanagh, Pepper v Hart and matters of constitutional principle (2005) LQR 98). Further, Ambedkar’s reasoning seems to be clashes with with the NM Thomas holding that they are not ‘inconsistent’ but are facets of the same principle of equality. A Court that has previously refused the explicit intention of the Assembly to defend constitutional values (the ‘due process of law’ cases) can assert its ruling in NM Thomas against Ambedkar’s purported intentions too. It is perhaps worth investigation how often Ambedkar’s quotes are used to restrict measures for the advancement of backward classes as opposed to supporting them. In the EWS judgment itself, the myth-busted claim (see Bhaskar, The Myth of the Ten-Year Limit on Reservations and Dr Ambedkar’s Stance (2022) Contemporary Voice of Dalit)that Ambedkar said reservations in public employment should be for a fixed and limited time is repeated in a concurring judgment.
The second concern of merit and efficiency is sometimes mentioned with no connection to the Constitution and at other times with reference to Article 335. Under Article 335, the State is obliged to take the claims of members of SC/STs to posts along with efficiency of administration. The logic often follows that if reservations are excessive, it would hamper efficiency. This claim has been cast in some doubt. A two-judge bench in BK Pavitra II, for example, has emphasised that the primary focus of Article 335 is to ensure that the claims of SC/ST members are considered, since that is the first phrase and the ‘consistent[] with… efficiency’ phrase comes second. Further, even if efficiency has equal or primary value under Article 335, judgments such as Pavitra II and Chinnappa Reddy J’s opinion in KC Vasanth Kumar has cautioned against presuming that more reservations result in hindering efficiency. Significant scholarly work on the question of merit has since made this reason shaky grounds for doctrine (see for example Thorat et al, Prejudice against Reservation Policies (2016) 51(8) Economic & Political Weekly 61).
The third rationale argues it is a ‘reasonable balance’. This explanation was explained in great detail in the Jaishri Laxmanrao Patil (2021) by two judges. The first approach by Bhushan J (which all five judges agreed with) was based on the ‘principle of reasonability’. Reading the Equality Code as a whole, Bhushan J borrows from Article 14 jurisprudence under which any classifying legislation must make a reasonable classification. This is generalised the idea that reservations must therefore have ‘reasonable’ limits and, qua Ambedkar, 50% is the limit of what is reasonable. It is also reasonable, he says, to avoid ‘caste rule’ and move towards ‘castelessness’. Each step of this argument is tenuous. Explicit and specific language usually takes precedence over general tests- so why should reservation give way to the reasonability doctrine. Moreover, if it is all about reasonableness, why not, as Sibal had argued before that bench, have a different limit for each State, based on the situation of the backward classes there and their population? Finally, if castelessness and equality are fundamental teleological values, what empirical proof does the Court have that this limit necessarily achieves it? What undergirds my critique is the simple fact that the Court’s logic here is ultimately based on premises it can never verify. It cannot know that this is reasonable, it only assumes it is and imposes it. In such cases of imperfect knowledge, as the argument has been made countless times before, governments and legislatures, not Courts, should take the call. This is something that only Bhat J addresses in his approach.
The second approach by Bhat J (with whom 1 other judge explicitly agreed) refuses to the ‘reasonableness’ approach and focuses only on a ‘just and principled balance’. It is not spelt out why, but since Bhat J also agrees with Bhushan J’s earlier reasoning, we can assume they are similar reasons. The only additional nuance is that Bhat J agrees that if the test was for reasonableness, the standard would be subjective satisfaction (Barium Chemicals). This means the State would have more leeway and the Court could look at what was reasonable on a case-to-case basis. This, according to Bhat J, would weaken the role of judicial review in favour of deference to the State. Bhat J does not establish why a lower standard would be wrong in law: why is strong judicial review necessary in this area? But either way, the standard is not as weak as posited. In the very same case, the Bench applied this standard to determine backwardness and unanimously struck down reservations for Marathas after careful analysis of the report which involved if the conclusions matched the data. Similarly, reservation in promotions policies have not been implemented for close to 2 decades as Courts continue to demand more intensive justifications (Jarnail Singh II). As currently applied, the standard is strong and substantive.
The only other obstacle remaining to overturn the 50% limit is that it has been applied consistently for decades and become a binding rule. This is not determinative as the Court can overturn its past decisions if there are good reasons to do so. In my above retelling of the limit’s normative justification, I have suggested that there might be such good reasons. The surviving justifications (efficiency and reasonable balance) are both difficult to sustain. The limit instead could unnecessarily fetter States’ power to enact policy. With an already shaky foundation for the doctrine, the EWS case has only caused further confusion.
II. A Befuddling Majority Opinion
The 103rd Amendment allows for special provisions including reservations to be made for EWS. Specifically, it states that the reservation for EWS will be ‘in addition to the existing reservation and subject to a maximum of ten per cent.’ Petitioners argued this breached the 50% limit. This is because ‘existing reservations’ at the Centre was already at 49.5% and several States were also just under 50% (or above it). By allowing a further 10%, the Amendment might have implicitly removed the 50% limit. The Court had 4 options on this issue.
- (1) Declare that the 50% limit has been implicitly removed, and then determine if any other kind of test should apply instead. This could be left completely to the State or subject to some standard of review like subjective satisfaction.
- (2) Declare that the Amendment implicitly tries to remove the 50% limit, but the 50% limit is part of the basic structure of the Constitution and so it cannot be removed. The Amendment will be struck down either wholly or in part.
- (3) Declare that the Amendment does not remove the 50% limit because the language is not explicit enough to remove it- ‘existing reservations’ does not need to refer to the quantum but the kind of reservations. So, even EWS reservations would still have to be below 50%.
- (4) Declare that the Amendment creates two different kinds of reservation for the purpose of counting limits. For EWS, the 50% limit does not apply (though there is a separate 10% limit) but it does apply for reservations for SC/ST and SEBCs.
Oddly, with little reasoning, the Court picked the least likely option (4). It is notable that only 11 of the 399 pages across 4 opinions in the case deal with this issue. This is despite the fact that in the order referring the matter to the Constitution Bench, the potential breach of the 50% limit was a key consideration. Both advocates who proposed issues on behalf of the petitioners- Sankaranarayanan and Wilson- listed this as one of the issues. However, AG Venugopal’s 3 issues omitted this (it is unclear if there was a reason for the omission) and the Court adopted those. Admittedly, less time was spent on this in oral hearings compared to the other aspects such as the use of economic criteria and the exclusion of SC/STs and SEBCs. However, written submissions on behalf of most petitioners do address this point. Regardless, while this background might help contextualise the sparse reasoning in the judgment, the reasoning itself should be subject to independent scrutiny.
Maheshwari J is the only judge writing for the majority who addresses the issue (pp. 136-146). He states that the 50% limit ‘obviously’ applies to reservations under Articles 15(4), 15(5) and 16(4), and not the new EWS reservations. There is a common joke that anytime one sees the word ‘obviously’ what follows will not be obvious at all and potentially false. In total, he makes 5 discrete points, which I will address in turn.
(1) Maheshwari J states that all decisions on the 50% limit were in respect of reservations existing before this amendment. The limit cannot be ‘overstretched’ to reservations provided for an entirely different class. Of course, earlier cases didn’t deal with the EWS reservations because EWS reservations didn’t exist. Taking the reasoning at its best, we may infer that Maheshwari J is relying on interpreting ‘in addition to existing reservations’ as a classifying phrase. It classifies between existing reservations to which the limit applies and EWS reservations to which a different limit of 10% applies. Textually, this is a difficult interpretation since the subject of the phrase is not the limit on reservations but the actual quantum of reservations itself (it is not ‘in addition to the existing limit on reservations’). Even doctrinally, if the 50% limit is accepted, then its rationale must apply across the Equality Code. The provision of EWS reservation and other reservations are exactly alike for the purposes of ‘efficiency’ and ‘reasonable balance’. So, there is no reason to change the explanation and create a classification where the text or doctrine does not support it.
(2) Maheshwari J states that the rule was not held to be inflexible and inviolable for all times to come. However, both Indra Sawhney and Jaishri Laxmanrao Patil have clarified that the rule is binding and absolute, with only narrow exceptions for those outside the national mainstream. If there is a departure from this ruling, it should come with more robust reasoning that engages with why past jurisprudence is wrong. If he does believe it is flexible for EWS reservations, it would be inconsistent to still hold that it applies inflexibly to SC/ST and SEBC reservations.
(3) Maheshwari J argues that Parliament always had the power to provide reservations to a new class/section, and the 50% limit is not an essential feature as he has described in other parts of his judgment. A mere modulation of how the limit applies does not damage the basic structure of this Constitution. It is true that the 50% limit is merely one specific rule based on the Court’s understanding of equality. It would be wrong to elevate that to the level of a basic feature, which is a fundamental principle usually pitched at a general level and found in multiple parts of the Constitution (Jaishri Laxmanrao Patil, among other cases). However, this does not explain why Maheshwari J only removes the rule’s application to EWS reservations and not others. It only justifies why it is not part of the basic structure of the Constitution.
(4) Maheshwari J also states that the ceiling limit is ‘apparently for the benefit of general merit candidates’. So, those who have existing reservations have no cause to object since the seats are taken from those in ‘general merit’ to provide for EWS. This is based on a misunderstanding of who is a ‘general merit candidate’. The Supreme Court has clarified multiple times that the unreserved positions are open for all: even those who can claim reservations. Those who can claim reservations can also claim ‘general merit’ seats. So, increasing reservations would ‘affect’ everyone. The new category exclusively for those who could not previously claim reservations reduces the number of seats open to those who can claim other reservations.
(5) Finally, Maheshwari J argues that if the 50% rule is inviolable, then SC/ST/OBC candidates cannot also argue for inclusion in EWS since they would be claiming a further 10%. Petitioners are allowed to and often make alternative arguments if one fails. But this can be reconciled if option (3) for this issue is selected, and all reservations including EWS could be under 50%. Instead, it appears that Maheshwari J ‘s opinions are coloured by his views on what current reservations seek to do revealed by his use of phrases like ‘possible harm’ to an ‘innocent class of competitors’. How can compensation for historic injustice result in harm? Who is innocent and who is guilty- where does this invented penal language come from?
III. The Dissent and Discrimination
The dissenting opinion by Bhat J in the EWS case provides a strong critique of the majority’s approach. Bhat J points out that if Maheshwari J’s approach is adopted, it allows Parliament introduce new amendments with more such classifications eating further into the open 50% and render the rule pointless (except, of course, for reservations for SC/ST and SEBCs). In principle, I am not opposed to exceptions to the 50% rule. However, this exception is supported neither by the text or the case law and violates the core principles of the Constitution. It allows forward castes to occupy any amount of space in reservations which other castes cannot.
In a thorough and careful exposition, Bhat J also holds that along with equality, principles of non-discrimination is a part of the basic structure of the Constitution. His reasoning squarely also applies to how the majority handled the 50% limit in this case. The Court is also a part of the State and is obliged to comply with the Fundamental Rights under the Constitution. Under Article 15 and 16, the State is explicitly prohibited from discriminating on the basis of caste. Caste has long been the starting point of what constitutes backward as recognised in Indra Sawhney. In this context, even if a Court is not willing to call it direct discrimination, it would definitely constitute indirect discrimination. To put it simply, the Court’s analysis of the 50% rule itself in this case itself is discriminatory and unconstitutional.
It might be said that this is not discrimination on the basis of caste since the Court has ‘another’ reason: to prevent ‘two bites at the cherry’: i.e. claiming reservations under two paths. First, the objective of preventing ‘two bites’ would only be connected to the question of who receives the benefit. The question of limits on these benefits, however, is not rationally connected to this. Second, those who belong to backward classes get a ‘second bite’ only because the ‘first bite’ is provided for historical wrongs, connected to caste. EWS reservations have a different rationale of addressing poverty. Each individual can have multiple intersecting identities (Patan Jamal Vali v State of Andhra Pradesh) and each of these must be considered separately as well as together. So, a poor person from a Scheduled Caste would be covered by both rationale and it would be wrong to take one of the measures away because the other disadvantage is addressed.
Conclusion
The EWS judgment has left the 50% limit in a messy doctrinal state. The doctrine has always been a strained judicial creation, but Jaishri Laxmanrao Patil attempted to provide some clarity (or at least stability) on its rationale. With this new classification on who the limit applies to, that reasoning is once again confused and muddied. The 50% limit is now a burden borne only by those belonging to oppressed castes, and takes on an explicitly casteist role in our Indian jurisprudence. If it should exist at all, it cannot continue to exist like this. The Court should appreciate any arguments that seek to review this particular holding (inter alia) in the EWS judgment.
This piece was written shortly after the judgment in early November 2022. Since then, at least 3 review petitions have been filed before the Court to reconsider the verdict. These petitions have not yet been decided as of the date of publication.
Mihir Rajamane 
Leave a comment