Maratha Reservation Case and the 50% limit on reservation: A chance to remove the ambiguity?

The Supreme Court recently announced that it will conduct day-to-day hearings from September 1 to decide the appeal against the Bombay High Court’s judgment upholding the constitutional validity of the reservation granted to the Maratha community under 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.

What is interesting is that the SEBC Act had provided reservation to the Maratha community in admissions to educational institutions and for appointment to government jobs to the extent of 16% (this percentage was brought down to 12% in education and 13% in jobs by the High Court), over and above the reservation already provided to the Scheduled Castes, Scheduled Tribes, and the Other Backward Classes, thus bringing the percentage of the total seats reserved to well over 50%.

The High Court also held that the Maharashtra government had been successful in establishing an extraordinary situation to justify breach of the 50% limit on reservation.

This article will trace the evolution of the 50% rule through the Court’s decisions and argue that the High Court had erred in allowing the Maharashtra government to breach this rule.

Evolution of the 50% limit doctrine

In the early jurisprudence on reservation, the Court had held that Articles 15(4) and 16(4) of the Constitution of India are exceptions rather than extensions to the equality principle ,and they cannot override the main provisions, i.e. Articles 15(1) and 16(1). This approach led to the Court holding that a special provision like that of reservation should not be used to reserve a majority of seats, and broadly speaking, reservation should be restricted to less than 50% of total seats.

The position was changed by the Court in State of Kerala and ors v. NM Thomas and ors., wherein it was declared that Article 16(4) is not an exception but an elaboration/extension of the equality principle contained in Article 16. Thus, in appropriate cases the extent of reservation may be as high as even 80%.

The position changed after the Second Backward Classes Commission, popularly known as Mandal Commission, prepared its report and gave recommendations for reservations for the SC/ST community to the extent of 22.5% and to the OBC community to the extent of 27%. This was because the Commission found the SC/ST community to constitute 22.5% of the population, while OBCs constituted 52% of the population.

After this report was implemented, a constitutional challenge was raised against it, which led to the most important judgement on the issue of reservation, i.e., Indra Sawhney v. Union of India. In this case, a nine-judge Bench of the Supreme Court held that Article 16(4) only talked about adequate reservation and not proportionate representation. Principle of proportionate representation could be acceptable only in Articles 330 and 332 of the Constitution and that too for a limited period.

Three judges - Justices TK Thommen, KN Singh, and RM Sahai, held that reservations can in no circumstances exceed 50%. Justice Jeevan Reddy authored a judgment for himself and three other judges (Chief Justice MH Kania, and Justices MN Venkatachaliah and AM Ahmadi) in which he held that,

“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 out 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. In doing so, extreme caution is to be exercised and a special case made out.”

Justice SR Pandian, in his opinion, concurred with Jeevan Reddy J’s judgment. On a holistic reading of the different opinions, the ratio that is culled out is that 50% limit on reservation is the rule, and this rule has only one exception, which is the ‘far flung and remote area’ exception. This exception means that, when the state finds that the population in certain remote areas is out of the mainstream of national life, it can provide reservation in excess of the 50% limit.

The Court had an opportunity to expound on the ‘far flung and remote area’ exception in Union of India v. Rakesh Kumar, wherein it was faced with the question as to whether 50% reservation in a three-tier panchayat system for the Scheduled Tribes was permissible. In this case, the exception was allowed, keeping in mind that the area in question was a ‘Scheduled area’. Even in this case, the 50% limit was in fact held to be a rule, but seeing the facts and circumstances of the particular case, the exception was allowed. However, in this case, the Court was dealing with reservation under Article 243 and not Articles 15 or 16.

High Court’s view in the Maratha reservation case

Coming back to the Maratha judgment, the High Court held that even though there is a 50% limit on reservation, the same can be breached by the State in any ‘extraordinary situation’. The High Court heavily relied on SV Joshi v. State of Karnataka and interpreted the ratio of this case to mean that the State can implement reservation in excess of 50% limit, provided it collects quantifiable data showing the prevalent ‘extraordinary situation’.

The High Court determined the ‘quantifiable data’ requirement and presence of the ‘extraordinary situation’ was shown by the findings of the Gaikwad Commission. The Commission had found that 85% of Maharashtra comprised backward classes, leading to the High Court to hold that, “if 85% of people are backward and they get only a reservation of 50%, it would be travesty of justice.” Thus, the High Court allowed the government to exceed the 50% limit on reservation for the entire state of Maharashtra.

This reading of SV Joshi is flawed. In this case, the Court was tasked with determining the constitutional validity of reservations crossing 50% in the state, and in a short judgement, the Court held that since the state had not shown the quantifiable data supporting the need for the reservation, the same had to be struck down. In this case, the Court relied on M Nagaraj v. UOI and Ashoka Kumar Thakur v. UOI ,and interpreted the ratio of these cases to mean that, “if a state wants to exceed 50% reservation, then it is required to base its decision on quantifiable data.”

This is not the correct interpretation of Nagaraj and Ashoka Kumar, as in Nagaraj, the Court had expressly held that,

“...the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance of Article 335. It is made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling-limit of 50% or obliterate the creamy layer or extend the reservation indefinitely.”

This position had been reiterated in Ashoka Kumar and thus SV Joshi is per incuriam and the High Court’s reliance on it is untenable.

Conclusion

In conclusion, it is submitted that:

a. The 50% limit on reservation is a constitutional rule, with one exception, that in certain far flung areas, owing to the great diversity of the country, there might be occasions to breach this rule. This rule has been reiterated in numerous cases.

b. The Court has elaborated on the exception to the rule in the Rakesh Kumar case allowing the reservation to cross 50% in the case of reservation in a ‘scheduled area’. Scheduled areas are special areas comprising a large majority of the backward community, and thus these areas have been held to fall within the “far flung and remote area” exception.

c. SV Joshi is not an authority on allowing reservation in excess of the 50% limit, and the High Court’s reliance on it is incorrect.

The High Court in its judgment, has allowed the reservations to exceed the 50% constitutional limit in the entire state of Maharashtra. In no circumstances can an entire state be equated with ‘a far flung and remote area’ to allow such a breach. The Court has time and again reiterated the 50% rule, most recently in a constitution bench judgement, in Chebrolu Leela Prasad v. State of AP.

This time, the Court has the chance to set in stone the exception to the rule and remove all ambiguity once and for all.