The Supreme Court sought responses from all states on whether the 50% ceiling limit on reservation needs to be reconsidered.

Debate: The 50% Cap

• The ceiling was imposed by a nine-judge Constitution Bench in the Indira Sawhney case in 1992, wherein the court strictly held that reservation cannot exceed 50%.
• However, the bench did indicate that in exceptional circumstances, reservation could be extended.

A case for Maratha Reservation

• The court is set to examine whether the Maharashtra State Backward Classes Commission had made up a case of “extraordinary circumstances” of deprivation suffered by the Maratha community.
• In fact, the Bombay High Court had, in June 2019, reduced the quantum of reservation for Marathas from the 16% recommended by the Gaikwad Commission to 12% in education and 13% in employment.
• The ruling was challenged before a Supreme Court Bench, which referred it to a larger Constitution Bench.

Challenges to the Maratha quota

There are two main constitutional questions for the court to consider in the challenge to the Martha quota law.

1. The first is whether states can declare a particular caste to be a socially and educationally backward class.
2. The second is whether states can breach the 50% ceiling for “vertical quotas” set by the Supreme Court.

What is the Indra Sawhney Case?

• In 1979, the Second Backward Classes Commission (Mandal Commission) was set up to determine the criteria for defining the socially and educationally backward classes.
• The Mandal report identified 52% of the population at that time as “Socially and Economically Backward Classes” (SEBCs) and recommended 27% reservation for SEBCs in addition to the previously existing 22.5% reservation for SC/STs.
• In 1990, when the V P Singh led-government set out to implement the Mandal report, it was challenged in court amidst widespread protests against the move.
• The case came up before a nine-judge Bench and a 6:3 verdict was delivered in 1992.

What did the verdict say?

• The court upheld the office memorandums that essentially implemented the Mandal report.
• The majority opinion said the executive orders mandating 27% reservation for backward castes were valid.
• It held that the reservation was made not just on the basis of caste, even if it appears so, but on the basis of objective evaluation of social and educational backwardness of classes.
• The inclusion in the list of Backward Classes is very much warranted by Article 15(4).

Precedents set by the judgment

The landmark Indra Sawhney ruling set two important precedents.

1. The court said that the criteria for a group to qualify for reservation are “social and educational backwardness”.
2. It also reiterated the 50% limit to vertical quotas it had set out earlier. The court said this 50% limit will apply — unless in “exceptional circumstances”.

How does the Maratha reservation relate to the Indra Sawhney case?

• Based on the 102nd Amendment to the Constitution, which gives the President powers to notify backward classes, the court will have to look into whether states have similar powers.
• Also, since this power flows from the Constitution, whether the President is still required to comply with the criteria set by the Supreme Court in the Mandal case.
• The relevance of the Indra Sawhney criteria is also under question in another case in which the validity of the 103rd Amendment has been challenged.
• The 103rd Amendment, passed in 2019, provides for 10% reservation in government jobs and educational institutions for the economically weaker section in the unreserved category.
• Since the Indra Sawhney verdict gives a pass to a breach of the 50% quota rule only in exceptional circumstances, the court will have to test if the Maharashtra law qualifies to be an exception.

Rising aspirations for backwardness!

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

Have any other states breached the 50% ceiling before?

• States have breached the 50% ceiling before and intend to bring more reservation. A notable example is in Tamil Nadu.
• Its Act of 1993, reserves 69% of the seats in colleges and jobs in the state government.
• However, this was done by amending the Constitution, to place the law in the Ninth Schedule after the Indra Sawhney judgment.

How does the Ninth Schedule come to the picture?

• The Ninth Schedule provides the law with a “safe harbour” from judicial review under Article 31B of the Constitution.
• Laws placed in the Ninth Schedule cannot be challenged for reasons of violating any fundamental right protected under the Constitution.
• However, when the Tamil Nadu law was challenged in 2007 (I R Coelho v State of Tamil Nadu), the Supreme Court ruled that while laws placed under Ninth Schedule cannot be challenged on the grounds of violation of fundamental rights.
• However, they can be challenged on the ground that it violates the basic structure of the Constitution.
• A later Bench was to decide whether the Tamil Nadu law itself (breaching the 50% ceiling) violates basic structure, based on the I R Coelho verdict. The Bench has not yet been set up.

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