50% ceiling of reservation is not sacrosanct: Centre to Supreme Court
The Preamble of the Constitution provides for the upliftment of EWS, which, AG KK Venugopal emphasised, could be through reservations in educational institutions, posts in public employment, and a series of welfare measures that the State is bound to hold out for its weaker sections of society.
The 50% cap on reservation is “not sacrosanct”, attorney general (AG) KK Venugopal submitted in the Supreme Court on Tuesday, as the senior counsel defended the central law on 10% quota benefits to the economically weaker sections (EWS). The Union government’s position could change the paradigm that has governed reservations in India, preventing states from enforcing quotas that take the proportion above the 50% mark laid down in 1992 by the apex court.
According to the law officer, the Preamble of the Constitution provides for the upliftment of EWS, which, Venugopal emphasised, could be through reservations in educational institutions, posts in public employment, and a series of welfare measures that the State is bound to hold out for its weaker sections of society.
The AG, in his written submissions presented before a Constitution bench headed by Chief Justice of India (CJI) Uday Umesh Lalit, maintained that the 103rd Constitution Amendment of 2019 that provides 10% reservation for EWS is perfectly valid in relying on the economic criteria, which has been judicially affirmed as a relevant factor for determination of social and educational backwardness.
“The very preamble to the Constitution declares India to be a sovereign, socialist, secular, democratic republic where justice: social, economic and political, as well as equality of status and of opportunity are to be established in addition to promoting fraternity, assuring the dignity of individuals and unity and integrity of the nation. These solemn promises alone to the Constitution would require to provide for the upliftment of economically weaker sections,” stated the AG’s note on behalf of the Centre.
Venugopal’s submissions came in response to a bunch of petitions that have questioned the constitutional validity of the EWS quota on the grounds that not only does it breach the 50% ceiling on reservation fixed in the 1992 Indra Sawhney (famously known as Mandal Commission) case, but that it is also unconstitutional for considering economic status as the sole criterion for identifying backwardness. The nine-judge bench in the Indra Sawhney case had ruled that “reservation should not exceed 50%, barring certain extraordinary situations”.
{{/usCountry}}Venugopal’s submissions came in response to a bunch of petitions that have questioned the constitutional validity of the EWS quota on the grounds that not only does it breach the 50% ceiling on reservation fixed in the 1992 Indra Sawhney (famously known as Mandal Commission) case, but that it is also unconstitutional for considering economic status as the sole criterion for identifying backwardness. The nine-judge bench in the Indra Sawhney case had ruled that “reservation should not exceed 50%, barring certain extraordinary situations”.
{{/usCountry}}The AG, on his part, said that the question of applying the ceiling limit of 50% can never arise in view of insertion of a new clause in Article 15 in 2019 which now empowers the State to make special provisions for the betterment and development of EWS. He said that after the constitutional amendment, the bundle of “affirmative action towards weaker sections” would include the benefits to EWS as well.
{{/usCountry}}The AG, on his part, said that the question of applying the ceiling limit of 50% can never arise in view of insertion of a new clause in Article 15 in 2019 which now empowers the State to make special provisions for the betterment and development of EWS. He said that after the constitutional amendment, the bundle of “affirmative action towards weaker sections” would include the benefits to EWS as well.
{{/usCountry}}“All these provisions taken together would now have to be dealt with as one single approach of the State intended for the upliftment of the weaker sections of the society, which include all these three classes, namely socially and educationally backward classes, the Scheduled castes and Scheduled Tribes and now the economically weaker sections,” said Venugopal.
Responding to the challenge over the ceiling, the AG contended that it is for the court to decide what percentage of reservation has to be provided for these categories -- together or separately. “The 50% ceiling limit is not sacrosanct. The petition raised on this ground also deserves to be rejected,” he said.
The AG’s submissions come even as another Constitution bench in 2021 refused to consider scrapping the 50% ceiling as it quashed a Maharashtra law providing quotas for Marathas in jobs and education. Underlining that the 50% upper limit as fixed by the Indra Sawhney case follows principles of reasonability and equality, the bench unanimously said that “to change the 50% limit is to have a society which is not founded on equality but based on caste rule”.
There are three other states – Tamil Nadu, Haryana and Chhattisgarh -- that have passed similar laws exceeding the 50% reservation mark, and those decisions are also under challenge in the Supreme Court. The Tamil Nadu law was passed in 1994, and placed under the 9th schedule of Constitution that protects it from judicial review, although the state has had 69% reservation since 1989 and 68% since 1980. Last year, the Supreme Court agreed to hear a challenge to this law.
On Tuesday, the Constitution bench, which also included justices Dinesh Maheshwari, S Ravindra Bhat, Bela M Trivedi and JB Pardiwala, took the AG’s submissions on record while setting down the case for a detailed hearing starting September 13. The bench decided to put aside five working days spanning over 20 hours to complete the hearing in the matter.
Both sides will get two days each to argue while the fifth day has been reserved for rebuttal and rejoinders from the two sides. The five-judge bench will sit again on Thursday this week to finalise the issues to be adjudicated by the court. The court asked nodal advocates, Shadan Farasat and Kanu Agrawal, to keep the compilation of written submissions and case laws ready to facilitate smooth hearing.
In August 2020, the court referred to a five-judge Constitution bench a batch of petitions challenging the 103rd Constitution Amendment of 2019 that provides 10% reservation for EWS in government jobs and educational institutions.
The Union government, before a three-judge bench in 2020, defended the law, citing Article 46 of the Constitution, under which it has a duty to protect the interests of economically weaker sections as a part of state’s directive principles. On the challenge that the amendment violates the basic structure, the government argued that “to sustain a challenge against a constitutional amendment, it must be shown that the very identity of the Constitution has been altered”.
