Maratha Backward Community Reservation Case: Supreme Court Fixed Upper Limit at 50%.

Saji Koduvath, Advocate.

The vibrant Constitution of India and the brave voters made India triumph in the line of democracy. But, over-ambitious politicians and irrational legislatures have been enacting laws with oblique motives; and it led interference of courts, many a time. The hopeless Legislatures and hapless executive make the court a monster. The pronouncement of the Constitution Bench of our Apex Court, on May 5, 2021, in Maratha Backward Community Reservation Case (Jaishri Laxmanrao Patil v. Chief Minister, Maharashtra) is its latest example.

Backward Community Reservation

Article 16(4) of the Constitution of India speaks as to making provisions for the reservation in favour of backward class of citizens. This provision provides for ‘adequate’ representation of such class. The Maharashtra State Reservation (of seats for admission in educational institutions in the State and for appointments in the public services and posts under the State) for Socially and Educationally Backward Classes (SEBC) Act, 2018 provided for 16% reservation to Maratha and 5% reservation to 52 Muslim Communities. This reservation policy in the 2018 (SEBC) Act is challenged in Jaishri Laxmanrao Patil v. Chief Minister, Maharashtra.

The Crux of the Dispute

Can the reservation ‘exceeded 50 per cent’ was the crux of the dispute in this case. The Constitution of India does not fix any upper limit. Previous decisions of the Apex Court, including the nine-judge bench decision in Indra Sawhney, spoke that reservation should not exceed 50%.

The State of Maharashtra and other parties who stood up for the Maratha reservation argued that there were grounds for revisiting Indra Sawhney and that the matter should be referred to a larger Bench.

The Court was also required to deliberate on ‘exceptional’ circumstances, contemplated by the Constitution Bench in Indra Sawhney’s case, for granting ‘special’ reservation to Maratha community, exceeding the pivotal 50% limit.

Findings of the Court (Jaishri Laxmanrao Patil v. Chief Minister, Maharashtra)

The Most important question in the Maratha Reservation Case was answered unanimously by the Constitution Bench – reservation shall not exceed 50%.

Ashok Bhushan, J. wrote judgment for himself and Justice Abdul Nazeer; Justices Nageswara Rao, Hemant Gupta and Ravindra Bhat wrote separate judgments.

Apart from relying on the previous binding decisions, the court seriously delved into the question whether the top limit at 50% was constitutionally valid and judiciously reasonable. Pointing out the necessity of striking a balance in this subject, the Apex Court predicated that a classless society was the primary aim of the Constitution and that the steps that would draw the nation inclined to a class-based society should be evaded. The Court also gave due importance to the speech of Dr. Ambedkar in the Constituent Assembly on 30^th November, 1948 wherein he said that the reservation ‘must be confined to a minority of seats’.

The main arguments raised by the advocates who supported the SEBC Act of 2018 were the following:

The concept of equality will differ from State to State.
There cannot be a strait Jacket formula.
Reservation should not be stopped at 50 per cent when it relates to affirmative action by the State.
Limiting access to education to 50 percent will cause more problems than solved.
It is the State which has to look at the relevant percentage to be followed in a particular case.

The verdict is founded on doctrines of ‘equality’ and ‘reasonableness’

Rejecting the arguments of the State and others who supported the impugned 2018 SEBC act, Ashok Bhushan, J. fastened ‘objective of equality‘ and ‘reasonableness‘ with the matters placed for judicial consideration; and it was depicted, from where the 50% rule came, as under:

“161 … … We need to answer the question from where does 50% rule come from?
162. The 50% rule spoken in Balaji and affirmed in Indra Sawhney is to fulfill the objective of equality as engrafted in Article 14 of which Articles 15 and 16 are facets. The Indra Sawhney itself gives answer of the question. In paragraph 807 of Indra Sawhney held that what is more reasonable than to say that reservation under clause (4) shall not exceed 50% of the appointment. 50% has been said to be reasonable and it is to attain the objective of equality. In paragraph 807 Justice Jeevan Reddy states: ‘807. We must, however, point out that clause (4) speaks of adequate representation and not proportionate representation. …. …. Just as every power must be exercised reasonably and fairly, the power conferred by clause (4) of Article 16 should also be exercised in a fair manner and within reasonable limits — and what is more reasonable than to say that reservation under clause (4) shall not exceed 50% of the appointments or posts, barring certain extraordinary situations as explained hereinafter.’
163. In paragraph 808, Justice Jeevan Reddy referred to speech of Dr. Ambedkar where he said that the reservation should be confined (to a minority of seats). The expression ‘minority of seats’ when translated into figure the expression less than 50% comes into operation.”

Previous Decisions relied on

(i) M.R. Balaji v. State of Mysore: AIR 1963 SC 649

The trailblazing decision of the Apex Court on the subject of reservation is M.R. Balaji v. State of Mysore. It was definitely held that the unreasonable application of Articles 15(4) and 16(4) would subvert the object of reservation. the Constitution Bench, while considering the an Order of the State of Mysore that reserved 68% of the seats (and only 32% remained available to the merit pool) in Engineering and Medical Colleges and in other technical institutions, under Article 15(4) , Justice P B Gajendra Gadkar stated as under:

“Reservation should and must be adopted to advance the prospects of the weaker sections of society, but in providing for special measures in that behalf care should be taken not to exclude admission to higher educational centres to deserving and qualified candidates of other communities. A special provision contemplated by Article 15(4) like reservation of posts and appointments contemplated by Article 16(4) must be within reasonable limits. The interests of weaker sections of society which are a first charge on the States and the Centre have to be adjusted with the interests of the community as a whole. The adjustment of these competing claims is undoubtedly a difficult matter, but if under the guise of making a special provision, a State reserves practically all the seats available in all the colleges, that clearly would be subverting the object of Article 15(4). In this matter again, we are reluctant to say definitely what would be a proper provision to make. Speaking generally and in a broad way, a special provision should be less than 50%; how much less than 50% would depend upon the present prevailing circumstances in each case…”

The argument of the advocates who supported the impugned 2018 SEBC act that reservation cannot exceed 50 per cent was not the ratio of judgment of Balaji, was not accepted.

(ii) T. Devadasan v. Union of India: AIR 1964 SC 179

Gajendragadkar, J. applied the 50% rule adumbrated in M R Balaji (supra) pointing out the principle of ‘striking a reasonable balance’ as well as ‘efficiency of administration’ as under:

“It is also true that the reservation which can be made under Article 16(4) is intended merely to give adequate representation to backward communities. It cannot be used for creating monopolies or for unduly or illegitimately disturbing the legitimate interests of other employees. In exercising the powers under Article 16(4) the problem of adequate representation of the backward class of citizens must be fairly and objectively considered and an attempt must always be made to strike a reasonable balance between the claims of backward classes and the claims of other employees as well as the important consideration of the efficiency of administration;….”

(iii) State of Kerala v. N.M. Thomas, (1976) 2 SCC 310

Taking note of the fact that clause (4) of Article 16 does not fix any limit on the power of the Government to make reservation, Fasal Ali, J. held as under:

“A suitable reservation within permissible limits will depend upon the facts and circumstances of each case and no hard and fast rule can be laid down, nor can this matter be reduced to a mathematical formula so as to be adhered to in all cases. Decided cases of this Court have no doubt laid down that the percentage of reservation should not exceed 50 per cent. As I read the authorities, this is, however, a rule of caution and does not exhaust all categories. Suppose for instance a State has a large number of backward classes of citizens which constitute 80 per cent of the population and the Government, in order to give them proper representation, reserves 80 per cent of the jobs for them, can it be said that the percentage of reservation is bad and violates the permissible limits of clause (4) of Article 16? The answer must necessarily be in the negative. The dominant object of this provision is to take steps to make inadequate representation adequate.”

Justice Krishna Iyer concurred with the opinion of Justice Fazal Ali as under:

“I agree with my learned Brother Fazal Ali, J., in the view that the arithmetical limit of 50 per cent in any one year set by some earlier rulings cannot perhaps be pressed too far.”

Senior advocates stood for the impugned 2018 SEBC Act strenuously relied on this decision to support their arguments.

(iv) Akhil Bharatiya Soshit Karamchari Sangh v. UoI, (1981) 1 SCC 246

Without belittling the authority of M.R. Balaji v. State of Mysore, Justice O. Chinnappa Reddy held in this decision as under:

“There is no fixed ceiling to reservation or preferential treatment in favour of the Scheduled Castes and Scheduled Tribes though generally reservation may not be far in excess of fifty per cent. There is no rigidity about the fifty per cent rule which is only a convenient guideline laid down by Judges.”

(v) K.C. Vasant Kumar v. State of Karnataka, (1985) supp. (1) SCC 714

Justice O. Chinnappa Reddy reiterated his views on this subject further as under:

“All that the Court would finally say (in Balaji) was that in the circumstances of the case before them, a reservation of 68 per cent was inconsistent with Article 5(4) of the Constitution. We are not prepared to read Balaji [M.R. Balaji v. State of Mysore, AIR 1963 SC 649 : 1963 Supp (1) SCR 439] as arbitrarily laying own 50 per cent as the outer limit of reservation. ……”

In this decision, Justice E S Venkataramiah held the opinion that the 50% rule in Balaji was not unsettled by the majority decision in N M Thomas.

(vi) Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217

In the celebrated decision, Indra Sawhney, one among the main findings by Seven out of Nine Judges (Justices Ratnavel Pandian and PB Sawant, in minority) was that the reservations could not exceed 50%. In the leading Judgment, Justice Jeevan Reddy held as under:

“808. It needs no emphasis to say that the principle aim of Article 14 and 16 is equality and equality of opportunity and that Clause (4) of Article 16 is but a means of achieving the very same objective.”
“810. While 50% shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people. It might happen that in far-flung and remote areas the population inhabiting those areas might, on account of their being put of the mainstream of national life and in view of conditions peculiar to and characteristical to them, need to be treated in a different way, some relaxation in this strict rule may become imperative.”

The main hurdle for the advocates who supported the SEBC Act of 2018 in the Maratha Reservation case (Jaishri Laxmanrao Patil v. Chief Minister, Maharashtra ) was the authoritative decision in Indra Sawhney. The argument of the Senior Counsel, Mukul Rohatgi and Kapil Sibal, that the ‘reservation at 50 per cent’ was not an issue in Indra Sawhney, was not accepted.

(vii) M. Nagaraj v. Union of India, (2006) 8 SCC 212

50% rule in Indra Sawhney case is scrupulously followed in subsequent decisions. the Constitution Bench held in M. Nagaraj v. Union of India as under:

“120……In addition to the above requirements this Court in Indra Sawhney [1992 Supp (3) SCC 217] has evolved numerical benchmarks like ceiling limit of 50% based on post-specific roster coupled with the concept of replacement to provide immunity against the charge of discrimination.
122. We reiterate that the ceiling limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse.”

(vii) Ashoka Kumar Thakur v. Union of India, 2008(6) SCC 1

Justice R V Raveendran, in Ashoka Kumar Thakur v. Union of India, criticised the present system of ‘aspiring backwardness instead of forwardness’ in strong words. Justice Raveendran observed as under:

“Caste has divided this country for ages.
It has hampered its growth.
To have a casteless society will be realisation of a noble dream.
To start with, the effect of reservation may appear to perpetuate caste.
The immediate effect of caste-based reservation has been rather unfortunate.
In the pre-reservation era people wanted to get rid of the backward tag—either social or economical.
But post reservation, there is a tendency even among those who are considered as “forward”, to seek the “backward” tag, in the hope of enjoying the benefits of reservations.
When more and more people aspire for “backwardness” instead of “forwardness” the country itself stagnates.
Be that as it may. Reservation as an affirmative action is required only for a limited period to bring forward the socially and educationally backward classes by giving them a gentle supportive push.
But if there is no review after a reasonable period and if reservation is continued, the country will become a caste divided society permanently.
Instead of developing a united society with diversity, we will end up as a fractured society forever suspicious of each other.
While affirmative discrimination is a road to equality, care should be taken that the road does not become a rut channel in which the vehicle of progress gets entrenched and stuck.
Any provision for reservation is a temporary crutch aid.
Such crutch by unnecessary prolonged use, should not become a permanent liability.
It is significant that the Constitution does not specifically prescribe a casteless society nor tries to abolish caste.
But by barring discrimination in the name of caste and by providing for affirmative action Constitution seeks to remove the difference in status on the basis of caste.
When the differences in status among castes are removed, all castes will become equal.
That will be a beginning for a casteless egalitarian society.”

In Ashoka Kumar Thakur v. Union of India, (supra), Justice Dalveer Bhandari has also laid down that ‘balance should be struck’ to ensure that reservation would remain ‘reasonable’.

Difference in opinion

The majority of the Judges in the Maratha Reservation case (Justices Nageswara Rao, Hemant Gupta and Ravindra Bhat) observed that the Constitution 102^nd Amendment (introduced Article 342A of the Constitution) took away the rights of the States to identify backward classes in each State, and the powers of the States to legislate in relation to ‘any backward class’ under Articles 15(4) and 16(4). But the Judgment of Ashok Bhushan, J. (wrote also for Justice Abdul Nazeer J.) took a contra view. The divergent views on this point did not affect the finding on the main issue on the extent of reservation – at 50%.

Conclusion

In the Maratha Reservation Case (Jaishri Laxmanrao Patil v. Chief Minister, Maharashtra ), the Apex Court pointed out that ‘what was said by Constitution Bench in Indra Sawhney clearly binds’ the Court. It was further found that the ‘Judgment of Indra Sawhney has stood the test of time and has never been doubted’. And, finally declared that the ‘judgment of Indra Sawhney neither need to be revisited nor referred to larger bench‘.

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Maratha Backward Community Reservation Case: Supreme Court Fixed Upper Limit at 50%.

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