Bihar quota struck down: what is the 50% ceiling that court relied upon?

• Patna High Court on Thursday set aside notifications by the Bihar government increasing reservation in government jobs and educational institutions from 50% to 65%.

History of the 50% ceiling for quotas

• The 50% ceiling was introduced by the Supreme Court in its landmark 1992 decision in Indra Sawhney v Union of India in order to ensure “efficiency” in administration.
• The 6-3 majority verdict that upheld the 27% quota for socially and economically backward classes (SEBC) set two important precedents
  • first, it said that the criteria to qualify for reservation is social and educational backwardness
  • Second, it reiterated the 50% limit to vertical quotas that the court had laid down in earlier judgments-:
  • M R Balaji v State of Mysore, 1963, and Devadasan v Union of India, 1964.
  • The 50% limit would apply unless in “exceptional circumstances”
• The Indra Sawhney ruling has been re-affirmed in a host of cases since then.
• But efforts to breach the 50% limit have also continued, in Bihar and other states, and gained significant political currency.

Legal challenge to ceiling

• The 50% limit is under challenge before the Supreme Court. Despite the pending challenge, laws that could breach the limit have been set aside by the courts.
• The only exception has been the 10% quota for the Economically Weaker Section (EWS) introduced in 2019.
• In November 2022, a five-judge Bench of the Supreme Court upheld the EWS quota, by stating that 50% ceiling applied only to SC/ ST and OBC quotas, and not to a separate quota that operated outside the ‘backwardness’ framework which was an entirely different class
• This observation has led to questions on whether the SC might reopen the Indra Sawhney question itself.
• Critics of the 50% ceiling argue that it is an arbitrary line drawn by the court, even as the legislature has consistently attempted to push back.

Principle of Equality

• An argument is made that breaching 50% would be antithetical to the principle of equality since reservations are an exception to the rule.
• Dr B R Ambedkar’s speech in the Constituent Assembly is often quoted as caution that reservations without qualifiers could “eat up the rule of equality”
• However, there is also a view that reservations are a feature of the fundamental right to equality, and part of the basic structure of the Constitution.
• In its ruling of 2022 upholding the 27% OBC quota in NEET, the SC had said that reservation is not at odds with merit but furthers its distributive consequences.
• This reframing of the question on substantive equality rather than formal equality will be tested when the SC takes up the Indra Sawhney question once again.

Reservation in other states

• The 76th constitutional amendment in 1994 inserted the Tamil Nadu reservation law breaching the 50% limit into the Ninth Schedule of the Constitution.
• The Ninth Schedule provides the law with a “safe harbour” from judicial review under Article 31A of the Constitution.
• Laws placed in the Ninth Schedule cannot be challenged for reasons of violating any fundamental right protected under the Constitution.
• In May 2021, a five-judge SC Bench unanimously struck down a Maharashtra law that provided reservation to the Maratha community as unconstitutional, holding that the quota limit could not exceed 50%.
• With the implementation of the Maratha quota, reservation in the state could have gone up to 68%.
• Similar to the Maratha issue are the cases of Patels in Gujarat, Jats in Haryana, and Kapus in Andhra Pradesh.