SHOULD THE 50 % LEGAL CEILING ON RESERVATION BE RECONSIDERED?

THE CONTEXT: Recently, the Bihar government released the data of its caste survey. The data showed that the Other Backward Classes (OBCs), Scheduled Castes (SCs) and Scheduled Tribes (STs) together account for about 84% of the population. This has reopened the debate on whether the 50% legal ceiling on caste-based reservation should be removed.

CONSTITUTIONAL PROVISIONS RELATED TO RESERVATION:

• 77^th Constitutional Amendment Act, 1995: The Indra Sawhney verdict had held there would be reservation only in initial appointments and not promotions. However, addition of the Article 16(4A) to the Constitution, empowered the state to make provisions for reservation in matters of promotion to SC/ST employees, if the state feels they are not adequately represented.
• Indra Sawhney & Others vs Union of India, 1992: The judgement on Indra Sawhney case was passed on 16 November, 1992. It was a nine-judge verdict which decisively laid down several landmark propositions such as 50% threshold in reservations.
• 81^st Constitutional Amendment Act, 2000: It introduced Article 16(4B), which says unfilled SC/ST quota of a particular year, when carried forward to the next year, will be treated separately and not clubbed with the regular vacancies of that year.
• 85^th Constitutional Amendment Act, 2001: It provided for the reservation in promotion can be applied with ‘consequential seniority’ for the government servants belonging to the SCs and STs with retrospective effect from June 1995.
• 102^nd, 103^rd and 104^th Amendments: In the last couple of decades, there have been several amendments to the constitution like the 102nd amendment, 104th 10% reservation for EWS  was made by the 103^rd amendment to the Constitution.

WHAT IS 50% CEILING ON RESERVATION?

• The 50% ceiling came out in one judgment M.R. Balaji, 1962, the court said maybe there has to be some limit.
• In T. Devadasan case, it extended the limit to government jobs as well and said that it did not want to take away equality of opportunity, guaranteed under the Constitution.
• The ceiling of 50% on reservation set by the Supreme Court in the Indra Sawhney case in 1992.
• However, the bigger pushback came in the Mandal case, where the judiciary essentially elevated the principle [50% limit] almost to a status of a fundamental right. Earlier, the reservation was meant to be only for SCs and STs. It was the Mandal Commission case that brought Other Backward Classes (OBCs) under reserved category.
• Notwithstanding the judgement passed by the Supreme Court, since 1992, many states have passed laws breaching this limit of 50%, such as Maharashtra, Telangana, Rajasthan and Madhya Pradesh. Besides, Tamil Nadu, Haryana and Chhattisgarh have also passed similar laws, causing them to exceed the 50% reservation mark.
• 50% Reservation Not a Law: Although the limit of 50% is not set by any statute but it is laid down by the apex court and hence was binding to all the authorities. However, the judgement itself said that in exceptional circumstances, the percentage can be increased. The issue that arises with the ‘exceptional circumstance’ is whether it actually exists in a given case or not, and if yes, then by how much can the limit be exceeded?

REASONS FOR EXTENSION OF 50% CEILING ON RESERVATION:

• Already crossed the limit: As, the total reservation in almost 80% of the states/UTs has already crossed the 50% ceiling limit, extension for reservation is needed. 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%.
• Breach by EWS reservation: Even government initiative not following the 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.
• Flexible constitution to adapt to changing circumstances: 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. 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.

ISSUES:

• Issue of caste-based mobilization: There is a risk that political parties or caste groups will take the slogan to mean specific caste-based mobilization.
• Formation of Caste identities: Increasing the ceiling of the reservation will lead to further popularization of caste identities and a fragmented polity.
• Exploitation for electoral politics: There may be potential that people, political parties, or individuals with vested interests will exploit this for electoral politics.
• Challenges in Defining OBCs: OBCs are an administrative category and encompasses diverse castes, necessitating sub-categorization with conceptual ambiguities. Thus, challenges may arise in defining OBCs.
• Political and Social Implications: Sub-categorization may have political repercussions and prompt debates on the inclusion of certain castes.

THE WAY FORWARD:

• Reconsideration of the ceiling: 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.
• Balancing the Reservation and Merit: While giving reservation to the communities, the efficiency of the administration has to be looked upon as well. Reservation beyond the limit will lead to the ignorance of the merit, which will disturb the entire administration.

THE CONCLUSION:  There is a need to reconsider the limit imposed on reservation ceiling but with reasonable criteria and it should be aimed at improving the socio-economic conditions of the marginalized.

PREVIOUS YEAR QUESTIONS

Q.1 The reservation of seats for women in the institution of local self-government has had a limited impact on the patriarchal character of the Indian political process”. Comment. (2019)

Q.2 Whether the National Commission for Scheduled Castes (NCSC) can enforce the implementation of constitutional reservation for the Scheduled Castes in the religious minority institutions? Examine.(2018)

MAINS PRACTICE QUESTION

Q. “There is a need to do away with the ceiling imposed by the Indra Sawhney judgement in the context of prevailing socio political and constitutional realities.” Argue.

Note: Please refer to Mains Focus article of ‘Bihar Caste Survey: A Welcome Step’ for more on the news.

SOURCE: https://www.thehindu.com/opinion/op-ed/should-the-50-legal-ceiling-on-reservation-be-reconsidered/article67413516.ece