After the 127th Constitutional Amendment Bill got the President’s assent, many have argued against the 50% ceiling on reservation. The same, as discussed in the piece, exposes the fallacies of the legislature and judiciary. Armaan Siddiqui asks why is there such denial for the exceeding reservations in states and UTs. Armaan also questions the Supreme Court’s resolve for being stuck on the Indra Sawhney judgment, which set the 50% ceiling on reservation.
By Armaan Siddiqui, a law student from the Faculty of Law, Jamia Millia Islamia, New Delhi
Recently, during the monsoon session of the parliament, the 127th Constitutional Amendment Bill 2021 was passed unanimously from both houses of the parliament. In a week, it also received the assent of the President.
The newly added clause (3) in Article 342 empowers Indian states and union territories to identify and specify the Socially and Economically Backward Classes or Other Backward Classes(OBCs).
Basically, this was done to restore the powers of states/UTs and maintain the country’s federal structure. Therefore, through this amendment, the parliament has sent a strong message of federalism. Many called the Bill historical, for it is touted to benefit 671 castes of the country.
However, this Bill was put forward in the parliament to overturn the verdict pronounced by the Constitutional bench of Supreme Court in Dr Jaishree Laxmanrao Patil v. Chief Minister & others, commonly known as Maratha’s quota case.
In the case, the Apex court interpreted the 102nd Constitution Amendment Act 2018, which inserted Article 338B and 342A (with two clauses). While upholding the validity of the 2018 Act, the court by 3:2 majority held that states no longer have the power to specify and identify Socially and Economically Backward Classes (SEBCs).
After introducing the 2018 Act, the court observed that such power lies with the President and parliament, and the states can only make recommendations to the President as per Article 338B.
In June, the government filed a review petition, which the Apex court dismissed. Therefore, the government had to come up with the 127th Constitutional Amendment Bill 2021 to restore the power of States/UTs.
Negligence by Legislature
102nd Constitutional Amendment Bill 2018, introduced to reconfigure the powers of the President and the National Commission for Backward Classes, was sent to the select committee. The latter expressed its concern over the uncertain language of the Bill.
The select committee suggested that the central government insert a clarificatory clause that this Bill does not take away the power of States/UTs to prepare their own list of Socially and Economically Backward Classes.
Members of the select committee indicated that the Bill had only mentioned the ‘Central List’ under the newly added Article 342, leading to misinterpretation and confusion. However, the central government refused to do the same by stating that States/UTs power will remain status quo.
When the 2018 Act was introduced in the parliament, several opposition Members of the Parliament also pointed out that the Bill should clarify that it does not scrap the power of States/UTs. But, unfortunately, the Bill got passed and received the President’s assent without the insertion of any such clarification.
Unlike the 2018 Bill, this time, the parliament provided a clarification regarding the same within the 127th Constitutional Amendment Bill 2021. If such clarification had been made earlier through a clause, the present situation would not have arisen.
Therefore, it can be said that the 127th Amendment Bill was only brought out of compulsion to clarify the status of states/UTs, which remain unchanged even after passing the 102nd Constitutional Amendment Act 2018.
While speaking at an event on August 15, 2021, the Chief justice of India, N.V. Ramana, also criticised the country’s law-making process and lack of parliamentary debate. He asserted that due to such ambiguities in legislation, the courts could not point out the primary purpose for which the laws are made.
Misinterpretation by Supreme Court
However, the parliament cannot be solely blamed for such ambiguity. The Supreme court had also made several mistakes while interpreting the 2018 Act.
At the outset, the Constitution bench of the Supreme court should not have ignored the legislative or Parliamentary intent, as reflected in the reports of the Select Committee, in the debates and discussion in both the houses, Lok Sabha and Rajya Sabha. The court must consider parliamentary intent of utmost importance and should have applied the same in letter and spirit. This should be done especially in cases when the court is dealing with Constitutional Amendment.
Justice Bhushan and Justice Nazeer, in the dissenting opinion, had rightly interpreted the intent of the parliament. They took the view that through the insertion of Article 342A, the parliament did not intend to deprive the power or authority of states/UTs in identifying any community as SEBCs.
Unfortunately, however, dissenting opinion of the judgement could not become operative as the majority believed that the 2018 Act had mandated a single central list of SEBCs for each state/UTs. Eventually, this took away the states’ powers to prepare and make separate lists of SEBCs.
Secondly, the 5-judges bench was also dealing with revisiting Indra Sawhney’s judgement which was answered negatively by the court. But it was under Indra Sawhney v Union of India, State Backward Class Commission was created, and there the states were given the power to prepare their own list of OBCs. Therefore, the state list was already in existence, but the court, while upholding Indra Sawhney’s judgement, failed to comply with its own verdict in this particular case.
While interpreting ‘Central List’ under Article 342A, the Apex court could have pronounced that the 2018 Act will only apply and be limited to the extent of Central agencies, Central entities. Therefore, it will not affect entities and organisations that are under the direct control of state/UTs. But, unfortunately, the court was not successful in doing so.
50% Ceiling on Reservation: Time to Extend It?
In Indra Sawhney v Union of India, the 9-judges bench by 6:3 majority held that the carry-forward rule could be applied but only up to 50%, and this limit can only be relaxed in case of extraordinary or exceptional circumstances. Therefore, the states cannot breach the 50% ceiling while granting reservation to the backward classes of the society.
The 5-judges bench of the Supreme court unanimously struck down the Maratha State Reservation for Socially and Educationally Backward Classes (SEBCs) Act 2018, which extended 16% reservation to the Maratha community in public employment and education.
The total reservation in the State became 68% crossing the 50% ceiling, and there were no exceptional or extraordinary circumstances, the court held. Therefore, the Act violated the principle of equality as enshrined under Articles 14 and 16 of the Indian Constitution.
However, when the 127th Constitutional Amendment Bill 2021 was introduced in the parliament, the opposition also raised the ‘50% ceiling’ on reservation issue, urging the government to increase the limit constitutionally.
It is because of the 50% cap requirement and not the implementation of the Bill that the legislation would render meaningless. Proper utilisation of the 127th Amendment Bill would not be possible in such circumstances.
Reasons For Extending the 50% Ceiling on Reservation
First, the total reservation in almost 80% of the states/UTs has already crossed the 50% ceiling limit. For example, in Chhattisgarh, the total reservation is 82%, including EWS quota, Madhya Pradesh 73%, Nagaland 80%, Mizoram 80% etc. In most of the States, the total reservation ranges around 60-65%.
The parliament should understand the consequences that the people of such states could come across in the future if the court struck down reservations given to their communities because of the 50% limit.
In addition, on January 07, 2019, the Government of India enacted the 103rd Constitutional Amendment Act 2019, which provides 10% reservation to the Economically Weaker Sections of the society.  The 2019 Amendment Act itself introduces the reservations exceeding the 50% cap resulting in a breach of the Indra Sawhney judgement.
Another example is Rajasthan, where the total reservation has already surpassed the cap. Initially, in Rajasthan, there was 16% reservation for SC, 12% for STs and 21% for OBCs. Further, after including 5% reservation for Most Backward Classes and 10% for the EWS category, the total reservation in the State was 64%. Likewise, in Bihar and Haryana, the total reservation is 60% after including the 10% EWS quota.
Indra Sawhney’s judgement is almost a 30-year-old law, and the judgement itself laid down that in certain extraordinary or exceptional circumstances, such a limit could be relaxed. Therefore, given a clear requirement for an increase, why won’t the SC budge?
Parliament or Supreme Court itself should reconsider the 1992 judgement so that the other backward communities who are not eligible to enjoy the fruits of the reservation because of the 50% limit could experience it.
The Constitution of India is a flexible and living document. The framers of the Indian Constitution had inserted the provision to have a document that can be legally amended from time to time according to changing needs and circumstances of the nation. Therefore, the prevailing circumstances demand that the 1992 judgment be revisited as a court’s ruling cannot remain constant and irreplaceable.
Since Indra Sawhney’s verdict has been pronounced, parliament has made several changes in different parts of the Constitution to nullify the effect of the 1992 verdict. For instance, the 77th Constitutional Amendment Act inserted Article 16(4)(A) providing reservation in promotion.
Another example is the 81st Constitutional Amendment Act that inserted Article 16(4)(B), providing that the 50% rule will only apply in case of fresh vacancies and the vacancies remaining due to the carry-forward rule will be dealt with separately. Thus, both these amendments overturned in part the verdict of Indra Sawhney. So, likewise, the 50% ceiling on reservation must also be reconsidered.
We have frequently seen that laws made by states providing reservations to different backward classes get ruled out by the court as they surpass the 50% ceiling limit. For instance, the Rajasthan government gave 5% reservation to ‘Gujjar’ as ‘Special Backward Class’ . But, the Rajasthan High Court struck it down, citing the 50% limit on the reservation. Accordingly, laws made by many states are either declared unconstitutional or are facing legal challenges.
There has been a trend of passing the laws without analysing them thoroughly, thereby creating chaos and confusion in recent times.
Therefore, it’s essential now more than ever to rigorously scrutinise all laws before the majority government monopolise their passing. In addition, the debates and discussions in both the Houses should be constructive without partisan inclinations.
The legislature should be aware of the real motive, intent and purported impact of the law staged for passing. Unfortunately, due to the absence of such elaborative debates and discussions in the House, the judiciary cannot comprehend the legislative intent and object behind the newly passed laws.
Moreover, based on the above arguments, the Supreme Court should look into the issue of the 50% ceiling on reservation themselves. If we stay stuck on a single judgment, many social affirmative actions, initiated with the intent of eradicating unemployment, discrimination and other disparities, might go down the drain.
Thus, there is a need to reconsider the cap/limit imposed on each State. But, it is also crucial to reason why the limit must be surpassed. The same should be done, considering the social structures that reimpose disparities, which could be different for different states.
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