50% Cap on the Reservation

Content:

Questions to be Taken Up by the Bench 

• The Supreme Court sought response from all the states and Union Territories on whether the 50% cap on reservation in government jobs and educational institutions could be re-examined by a larger Bench. 
• The question of review has arisen in the view of subsequent constitutional amendments and the socio-economic changes in the society. 
• Also, many states, including Tamil Nadu and Maharashtra, have since made their own laws, raising the limit to 60% or thereabouts.

The Supreme Court has set out the following questions of law for its consideration:

• Whether the 1992 judgment by the nine-judge bench of the Supreme Court in Indra Sawhney needs to be reconsidered by a larger bench?
• Whether Maratha reservation comes under the ambit of Indra Sawhney judgment?
• Whether the 102nd Constitutional amendment prevents state legislatures from legislating on SEBCs in their respective states?
• Whether the 102nd amendment affects the federal structure of the Constitution?

50% Rule: Origin and Evolution 

• In 1979, the Janata Party government constituted the Second Backward Classes Commission – popularly known as the Mandal Commission after its chairman, the Bihar MP Bindheshwar Mandal – with the mandate to identify India’s socially or educationally backward classes.
• At the time, India already had reservations for Dalits and Adivasis. 
• The Mandal Commission’s report, submitted in 1980, called for giving reservation to the Other Backward Classes, a vast conglomeration of castes that broadly fit the “shudra” category of the caste system. 
• Soon after the report was submitted, however, the Congress returned to power and it was put in cold storage.
• It took a decade and another non-Congress government, this time led by VP Singh, to implement the Mandal Commission’s recommendations, sparking a storm of protests and a petition to the Supreme Court which came to be known as the Indra Sawhney case.
• Ruling on the petition, the court partially accepted the government’s new policy, allowing for 27% reservation for the Other Backward Classes, but put in a crucial rider: socially and economically advanced individuals among the Other Backward Classes will not be covered. 
• The court also held that the share of jobs, or educational or legislative seats reserved for different communities cannot together exceed 50%.
• In Indra Sawhney vs Union Of India, 1992, the court capped caste-based reservation, ruling that “no provision of reservation or preference can be so vigorously pursued as to destroy the very concept of equality”.
• Supreme Court held that the reservation under Articles 15(4) and 16(4) should not exceed 50% 
• However, the bench did indicate that in exceptional circumstances, reservation could be extended.
•  The judgement also established the concept of qualitative exclusion, such as “creamy layer”
•  The creamy layer applies only to OBCs.The creamy layer criteria were introduced at Rs 1 lakh in 1993 and revised to Rs 2.5 lakh in 2004, ₹4.5 lakh in 2008 and ₹6 lakh in 2013, but now the ceiling has been raised to ₹8 lakh (in September 2017).

Arguments for 50%  rule:

• Far from correcting historical injustices, reservations have become a competitive subdivision of shrinking opportunities. 
• While merit doesn’t factor in socio-economic inequalities that prevent many people from attaining their potential, no society can progress if merit gets the short shrift. 
• Slowing economic growth and success of various groups in enlisting under OBC/ SC/ ST categories and easing creamy layer ceilings have created social divides that can’t be solved – but may be worsened – by more reservations.
• In that respect, Indra Sawhney attempted to balance the right to equality and state’s prerogative for socio-economic justice with the 50% cap.

Should it be done away?

• In an underdeveloped country like India, pretty much every community can be shown to be backward in some absolute sense. 
• However, quota gains for it can only be at the expense of some other community, perhaps even more backward. 
• This fundamental reality is papered over when Centre and states pander to quota demands. From inclusionary ideals, reserving the majority of opportunities for special groups has morphed into a means of exclusion. .
• The Indra Sawhney judgment cap of 50% on reservations is already very high. 
• It behoves SC to crack the whip in this regard, and bring errant governments in line.