'To Change 50% Reservation Limit Is To Have A Society Which Is Not Founded On Equality But Based On Caste Rule': SC Refuses To Revisit Indra Sawhney Judgment

"To change the 50% limit is to have a society which is not founded on equality but based on caste rule" , the Supreme Court observed in its judgment in Maratha Quota case while reiterating that reservation under Article 16(4) should not exceed 50% except when there are extraordinary circumstances."The democracy is an essential feature of our Constitution and part of our basic structure. If the reservation goes above 50% limit which is a reasonable, it will be slippery slope, the political pressure, make it hardly to reduce the same.", the Constitution Bench (Judgment authored by Justice Ashok Bhushan) observed while holding that it does not find any good ground to revisit Indra Sawhney or to refer the same to a larger Bench.Justice S. Ravindra Bhat, in his separate (but concurring on this point) judgment, observed that, to dilute the 50% benchmark further, would be to effectively destroy the guarantee of equality, especially the right not to be discriminated against on the grounds of caste. The court observed that the percentage of 50% has been arrived at on the principle of reasonability and achieves equality as enshrined by Article 14 of which Articles 15 and 16 are facets.Reasons for not revisiting Indra SawhneyOne of the issues considered by the Constitution bench was whether judgment in case of Indra Sawhney v. Union of India [1992 Suppl. (3) SCC 217] needs to be referred to larger bench or require re-look by the larger bench in the light of subsequent Constitutional Amendments, judgments and changed social dynamics of the society etc.?The contention raised seeking revisit of Indra Sawhney are as follows:There is no unanimity, in view of different reasoning adopted in six separate judgments delivered in the caseDifferent judges from 1963 till date have spoken in different voice with regard to reservation under 15(4) and 16(4) The Balaji has held that Article 15(4) is an exception to Article 15(1) which theory has not been accepted by this Court in N.M. Thomas as well as Indra Sawhney, the very basis of fixing the ceiling of 50 percent has gone. Shri Rohtagi submits that the Constitution of India is a living document. The ideas cannot remain frozen, even the thinking of framers of the Constitution cannot remain frozen for times immemorial.Neither Article 16(4) nor Article 15(4) contains any percentage. The Court cannot read a percentage i.e. 50 percent for effecting reservation under Article 15(4) and Article 16(4), providing a ceiling by number is cutting down the Constitutional provisions of Part-III and Part-IV.Judgment of Indra Sawhney is a judgment on Article 16(4) and not on Article 15(4), hence, the ratio of judgment cannot be applied with regard to Article 15(4).The judgment of Indra Sawhney does not consider the impact of Directive Principles of State Policy such as Article 39(b)(c) and Article 46, While interpreting Article 14, 16(1) and 16(4).11- Judge Bench judgment in T.M.A. Pai judgment indicates that the ceiling of 50 percent is no longer available to be relied on even for purposes of Article 15 and Article 16.Constitutional 77th and 81st Amendment Act inserting Article 16(4)(A) and Article 16(4)(B) have the effect of undoing in part the judgment of Indra Sawhney and thus mandating a re-look.103rd Constitutional Amendment by which 10 percent reservation have been provided for Economically Weaker Sections in addition to reservation given under Article 15(4) and 78 Article 16(4) is a clear pointer of overruling of 50 percent ceiling for reservation under 15(4) and 16(4).The extraordinary circumstances as indicated in paragraph 810 of Indra Sawhney's case is not exhaustive, far flung and remote areas mentioned therein are only illustrative. There may be other exceptions where states are entitled to exceed the 50 percent ceiling limit.The judgment authored by Justice Ashok Bhushan examines in detail the above grounds raised. The following are some of the relevant observations made in the judgment in this regard. Re: UnanimityThe court held that the majority opinion in Indra Sawhney is that normally reservation should not exceed 50% and it is only in extra-ordinary circumstances it can exceed 50%. What can be the extra-ordinary circumstances have been indicated in paragraph 810.130. Alternatively if we again look to the opinion in all six judgments, we notice : (a) Justice B.P. Jeevan Reddy (for himself and three other Judges) held in paragraph 809 that the reservation contemplated in clause (4) of Article 16 should not exceed 50%. (b) Justice Thommen, Justice Kuldip Singh and Justice Sahai in their separate opinion held that reservation under Article 16(4) should not exceed 50%. 131. Thus greatest common measure of agreement in six separate judgments delivered in Indra Sawhney is that: (i) Reservation under Article 16(4) should not exceed 50%. (ii) For exceeding reservation beyond 50% extraordinary circumstance as indicated in paragraph 810 of the judgment of Justice Jeevan Reddy should...

'To Change 50% Reservation Limit Is To Have A Society Which Is Not Founded On Equality But Based On Caste Rule': SC Refuses To Revisit Indra Sawhney Judgment

Ashok Kini

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