Bihar quota struck down: what is the 50% ceiling that court relied upon?

The 6-3 majority verdict that upheld the 27% quota for socially and economically backward classes (SEBC) set two important precedents — first, it said that the criteria to qualify for reservation is “social and educational backwardness”; second, it reiterated the 50% limit to vertical quotas that the court had laid down in earlier judgments (M R Balaji v State of Mysore, 1963, and Devadasan v Union of India, 1964). The 50% limit would apply unless in “exceptional circumstances”, the court said.

The Indra Sawhney ruling has been re-affirmed in a host of cases since then. But efforts to breach the 50% limit have also continued, in Bihar and other states, and gained significant political currency. During the Lok Sabha election campaign, Congress leader Rahul Gandhi promised a caste census and extension of reservation beyond 50%.

Legal challenge to ceiling

The 50% limit is under challenge before the Supreme Court. Despite the pending challenge, laws that could breach the limit have been set aside by the courts. The only exception has been the 10% quota for the Economically Weaker Section (EWS) introduced in 2019.

In November 2022, a five-judge Bench of the Supreme Court upheld the EWS quota in a 3-2 verdict that said the 50% ceiling applied only to SC/ ST and OBC quotas, and not to a separate quota that operated outside the ‘backwardness’ framework which was “an entirely different class”.

“Moreover…the ceiling limit…has not been held to be inflexible or inviolable for all times to come,” the majority opinion stated.

This observation has led to questions on whether the SC might reopen the Indra Sawhney question itself. In the minority opinion by two judges, there was a general refrain on whether it is permissible to breach the 50% ceiling since the issue is pending before the court. They sounded a “cautionary note” that “permitting the breach of the 50% rule as it were” could become a “gateway for further infractions, resulting in compartmentalisation”.

Critics of the 50% ceiling argue that it is an arbitrary line drawn by the court, even as the legislature has consistently attempted to push back.

On the other hand, an argument is made that breaching 50% would be antithetical to the principle of equality since reservations are an exception to the rule. Dr B R Ambedkar’s speech in the Constituent Assembly is often quoted as caution that reservations without qualifiers could “eat up the rule of equality”.

However, there is also a view that reservations are a feature of the fundamental right to equality, and part of the basic structure of the Constitution. In its ruling of 2022 upholding the 27% OBC quota in NEET, the SC had said that “reservation is not at odds with merit but furthers its distributive consequences”.

This reframing of the question on substantive equality rather than formal equality will be tested when the SC takes up the Indra Sawhney question once again, armed with the learnings from more than three decades of jurisprudence on reservations since the implementation of the report of the Mandal Commission.

Reservation in other states

The 76th constitutional amendment in 1994 inserted the Tamil Nadu reservation law breaching the 50% limit into the Ninth Schedule of the Constitution. The Ninth Schedule provides the law with a “safe harbour” from judicial review under Article 31A of the Constitution. Laws placed in the Ninth Schedule cannot be challenged for reasons of violating any fundamental right protected under the Constitution.

In May 2021, a five-judge SC Bench unanimously struck down a Maharashtra law that provided reservation to the Maratha community as unconstitutional, holding that the quota limit could not exceed 50%. With the implementation of the Maratha quota, reservation in the state could have gone up to 68%.

Similar to the Maratha issue are the cases of Patels in Gujarat, Jats in Haryana, and Kapus in Andhra Pradesh.