Bihar data can reopen debate on SC’s 50% quota ceiling in 1992

Despite the Indra Sawhney ruling, the idea of breaching the 50% limit for reservation has had political currency. However, even as Indra Sawhney ruling is under further challenge, several legislations that could breach this limit have been blocked by the judiciary — with the exception of the 10% EWS quota in 2019.

A nine-judge bench with a 6:3 majority, the Indra Sawhney ruling upheld the 27% reservation for socially and economically backward classes (SEBC). In doing so, the court set important precedents. It set social and educational backwardness as the criteria for a group to qualify for reservation and also reiterated the 50% limit – unless in, “exceptional circumstances”.

The 76th Constitutional amendment in 1994, inserted the Tamil Nadu reservation law breaching the 50% limit — The Tamil Nadu, Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of Seats in Educational Institutions and of Appointments or Posts in the Services under the State) Act-1993 — into the Ninth Schedule of the Constitution.

The validity of that law, and whether its inclusion in the Ninth Schedule by a constitutional amendment while its basic structure is under challenge, is pending before a Constitution bench of the Supreme Court.

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 Constitution bench of the SC unanimously struck down the Maharashtra law, which provides reservation to the Maratha community, as unconstitutional, holding the total quota limit would exceed 50%. With the implementation of the Maratha quota, reservation 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.

In November last year, a five-judge bench of the Supreme Court upheld the 10% EWS quota, which also breached the 50% ceiling. In a 3:2 ruling, the majority opinion bypassed the Indra Sawhney rule by holding that the ceiling was for backward classes and the EWS quota provided reservation for “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 had stated. However, two judges, who wrote the minority view, sounded a “cautionary note” that “permitting the breach of the 50% rule” could become a “gateway for further infractions, resulting in compartmentalisation”.