Does The 50% Limit on Reservations in Indra Sawhney Hold Good? (Part II)

The subsequent developments after the Indra Sawhney judgment call into question whether the 50% rule still holds the same water.

In 2018, the Maharashtra government passed the Socially and Educationally Backward Classes Act, 2018.  This law sought to introduce 16% reservations for Marathas in State services and higher education and took the total reservation to beyond 50%. The petitioners who challenged this law have sought to rely on the 50% rule. The rule requires the percentage of seats reserved to remain below 50%. Meanwhile, the respondents have sought to overturn the rule, or carve out a broad exception to it.

In the previous post, we looked at the rationale behind the rule and its development prior to Indra Sawhney. In this post, we break down the Indra Sawhney judgment and trace subsequent developments.

From 1989-1992, the Government sought to implement the Mandal Commission’s recommendation of reservation for Other Backward Classes (OBCs). There was a large amount of political turmoil. In this context, the reservations under Mandal Commission were challenged in Court. The issue was referred to a nine-judge bench of the Supreme Court in Indra Sawhney v Union of India. Among various other issues, the majority in the case held that the 50% rule did apply.

However, the State of Maharashtra, last month, has questioned the outcome of the judgment. They rely on Article 145(5) of the Constitution which requires that every judgment must have ‘the concurrence of a majority’. Based on this, they argued that the nine-judge bench had not delivered a majority and a minority on the 50% rule in particular. Instead, there were at least 3 different articulations of the rule. Either way, the judgments had left a grey area on how the rule should be applied.

Three judges have been categorical in stating the 50% rule. Thommen J said the number of seats reserved ‘must at all times remain well below 50%’. According to Kuldip Singh J ‘under no circumstances’ should reservations go beyond 50%. Sahai J noted that ‘reservation of any manner’ cannot cross 50%.

Justice Jeevan Reddy’s judgment was written on behalf of himself and three other judges: Kania CJI, Venkatachaliah and Ahmadi JJ. He held that the 50% rule does apply. However, there might be ‘extraordinary situations’ where it could be exceeded. He noted particularly communities that were outside the national mainstream and have special circumstances peculiar to them.

Justice Sawant’s judgment cites Ambedkar and says that ‘ordinarily’ reservations should not exceed 50%. But in particular circumstances, if valid grounds are made out, then it may be permitted. Justice Sawant is often placed in the same group as Jeevan Reddy J. However, the respondents in the Maratha Reservation case have pointed out that his understanding of exceptional circumstances might be broader.

All these judgments have relied on reasons laid out in our earlier post, such as Ambedkar’s speech, efficiency and the need for balance. Some judgments also noted that Article 16(4) only provides for ‘adequate’ representation and not proportional representation.

Pandian J firmly dissents. He holds that the 50% rule was never binding. It was only ‘obiter’ (a non-binding remark) in Balaji, the case in which this rule was born. This argument has been adopted by the respondents, as they challenge the correctness of Indra Sawhney.

A secondary question the States have raised in the case is whether the rule applies only to reservations in employment (Article 16(4)) or other reservations (Article 15(4)) or both. Thommen and Pandian JJ (dissenting) are the only ones who have mentioned Article 15(4) with respect to the 50% rule. Sawant J only notes that Balaji is an Article 15(4) case, without saying much about its application. The rest of the judges in Indra Sawhney restrict their discussion to Article 16(4).

The court in Jaishri Laxmanrao Patil v State of Maharahstra is now left with the task of interpreting this judgment and the rule. Bhat J, during the hearings, has pointed out that a majority of judges need not say the exact same thing. In Kesavananda Bharti v Union of India, 13 judges had written 11 varying judgments. The outcome of that verdict was determined by looking at the ‘greatest common factor’. However, whether this approach will be taken for the 50% rule will remain to be seen.

The State of Jharkhand has also argued that the 50% rule was not a binding precedent in Indra Sawhney either. Since the case did not deal with reservations exceeding 50%, the remarks regarding the rule were not binding for future decisions. They ask why a ‘balance’ requires such an arbitrarily decided figure as a rule. A discretionary approach should be adopted for each State. However, various cases have applied this rule since Indra Sawhney. Most notably, in M Nagraj v Union of India, a seven-judge bench applied it in the context of reservations in promotions.

In 2019, Parliament passed the 103rd Constitutional Amendment Act which provides for a ‘maximum’ of 10% of reservations for economically weaker sections, ‘in addition to the existing reservations’. This phrasing once again cast doubt on the 50% rule, since Parliament might have intended to change it. The interpretation and validity of the Amendment is pending before the Court. The outcome of that case is likely to affect, or be affected by, the decision taken by the bench in this case.

The Court is left with the difficult job of interpreting a complex judgment, and potentially recasting the reservation regime in India. However, while the importance of the case cannot be understated, as a five-judge bench, the most it can do is refer it to a larger bench. The litigious path to upsetting Indra Sawhney is still long.