The Nitish Kumar-led Bihar government has introduced 75 per cent reservation in government jobs and educational institutions, including 10 per cent reservation for Economically Weaker Sections (EWS). This development was, to a certain extent, anticipated subsequent to the Bihar government's release of the results from the caste survey. The survey underscored that around 85 per cent of Bihar's populace belongs to socio-economically marginalised segments.
The increase in reservations by the Bihar government reignites the conversation surrounding the ‘50 per cent ceiling’ on reservations set by the Supreme Court (SC). In 1963, in the case of MR Balaji and others v. State of Mysore, the SC, for the first time, came with a 50 per cent ceiling on reservations.
The SC held that reservations introduced under Article 15(4) must adhere to the principle of reasonableness. It further held that while it is not possible to predicate the exact permissible percentage of reservations, it can be stated in a general and broad way that they should be less than 50 per cent.
Is SC's 50% Reservation Cap Reasonable?
In 1975, another five-judge bench of the SC in the NM Thomas Case, considering all the decisions relating to the 50 per cent ceiling, concluded that the percentage of reservation should be contingent upon the specific facts and circumstances of each case, emphasising the impracticality of establishing a universal and rigid rule. The matter of quotas was deemed too complex to be simplified into a mathematical formula applicable uniformly across all cases.
Later, in 1992, a nine-judge constitution bench of the SC in the Indra Sawhney (Mandal Commission case) held that reservations, being an extreme form of protective measure or affirmative action, should be confined to a minority of seats and should not exceed 50 per cent in any manner, barring extraordinary circumstances.
Furthermore, the SC held that the authority to implement reservations should be exercised judiciously and within reasonable bounds. It explicitly stated that no provision for reservation or preference should be pursued so vigorously as to undermine the fundamental principle of equality.
There is no stipulated 50 per cent limit on reservation in the Constitution. The SC, in both the Balaji and Indra Sawhney cases, did not provide a rationale for or explain the basis on which it arrived at the 50 per cent ceiling.
As a consequence, since its creation, various states have strongly contested the ceiling on reservations, stating that the 50 per cent limit on reservations was not cast in stone (Permanently fixed or firmly established) and is an artificial creation of the judiciary, which needs a review considering the social demography.
State-Wise Reservation Push Met By SC's Resistance
Shortly after the pronouncement of the Indra Sawhney judgment, the state of Tamil Nadu took the lead in challenging the prescribed reservation limit. In 1993, the State's Assembly enacted the Tamil Nadu Backward Classes, Scheduled Castes, and Scheduled Tribes Act to bypass the Indra Sawhney judgment and keep its reservation limit intact at 69 per cent.
The Act was later added to the Ninth Schedule of the Indian Constitution, ensuring it cannot be challenged in any court unless it violates the basic structure of the Constitution. However, a petition challenging this reservation has been pending before the SC since 2012, contending that it violates the basic structure of the Constitution.
It is noteworthy that several states in the Northeast, including Arunachal Pradesh, Manipur, Meghalaya, Mizoram, Nagaland, and Sikkim have more than 50 per cent reservation in government jobs and educational institutions.
This is grounded in the Constitution's heightened autonomy granted to these Northeastern states for governance in the interest of their indigenous communities.
Over the years, several states have tried to emulate Tamil Nadu's approach but have failed to meet with limited success. In 2018, the Maharashtra Assembly passed a legislation that allocated a 16 per cent reservation in higher education admissions and public service employment to the Maratha community, increasing the total reservations in these domains in the state to 68 per cent.
However, the SC invalidated this law in 2021 for contravening the 50 per cent cap. Previously, the Odisha government faced setbacks when the Orissa HC invalidated its efforts to expand the quota of reserved seats for OBCs in state government jobs in 2017 and urban local body elections in 2018, citing the same grounds. In 2022, the Chhattisgarh HC nullified a 2011 enactment by the Chhattisgarh Legislative Assembly, which sought to increase reservations in the state to 58 per cent, again citing a breach of the 50 per cent ceiling. The Chhattisgarh government appealed to the SC, which, in May, granted an interim stay on the HC’s decision, providing temporary relief to the government pending the SC’s final ruling.
Reservation for EWS: A Means For Affirmative Action?
In 2019, the Union government dealt a significant challenge to the 50 per cent reservation cap by enacting the 103rd Constitution Amendment Act. This amendment introduced a 10 per cent quota in government jobs and educational institutions for members of the upper castes based on economic criteria, once again surpassing the 50 per cent limit.
The reservation for EWS was subsequently validated by a five-judge constitution bench presided over by Justice UU Lalit. The SC, while affirming the EWS quota, asserted that reservation serves as a tool for affirmative action by the state, aiming for inclusivity. It emphasised that reservations for EWS do not infringe upon the basic structure of the Constitution, as the 50 per cent ceiling limit is not rigid and immutable for all times.
Notably, the Court highlighted that none of its decisions should be construed to imply that even if the Parliament deems another affirmative action necessary, such as reservation for a specific section or class, it could never be implemented.
While the Indra Sawhney judgment does not institute a categorical prohibition on the percentage of reservations, states are obligated to substantiate exceptional justifications when surpassing the 50 per cent threshold.
Pushing the Envelope for Caste-Based & EWS Reservation
The implementation of 75 per cent reservations in Bihar is anticipated to encounter legal scrutiny, compelling the government to present evidence to the Court substantiating the presence of extraordinary circumstances warranting the breach of the prescribed ceiling.
According to the Bihar caste survey report, OBCs constitute 27.1 per cent, EBCs constitute 36 per cent, and SCs and STs constitute 19.6 per cent and 1.6 per cent, respectively, collectively comprising approximately 84.3 per cent of Bihar's total population.
These findings support the Bihar government's position, offering empirical validation of the socio-economic disadvantage and underrepresentation of marginalised communities in governmental employment and educational institutions.
(The author, previously a LAMP Fellow (2019-20), is pursuing an LLM from the University of Windsor, Canada and is also a Graduate Fellow at the Transnational Law and Racial Justice Network. He tweets @shubhamkumarrml. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)
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