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'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
5 May 2021 4:11 PM GMT
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
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"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....

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"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 Sawhney

One 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:

  1. There is no unanimity, in view of different reasoning adopted in six separate judgments delivered in the case
  2. Different judges from 1963 till date have spoken in different voice with regard to reservation under 15(4) and 16(4)  
  3. 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.
  4. 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.
  5. 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).
  6. 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).
  7. 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.
  8. 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.
  9. 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).
  10. 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: Unanimity

The 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 exist, for which extreme caution is to be exercised.

132. The above is the ratio of Indra Sawhney judgment.

Re: Different Opinions

151.We do not find any substance in the second ground of Shri Rohtagi that this Court's judgment of Indra Sawhney to be referred to a larger Bench.

152. The judgment of Indra Sawhney has been followed by this Court in a number of cases including at least in the following four Constitution Bench judgments: (1) Post Graduate Institute of Medical Education & Research, Chandigarh and others vs. Faculty Association and others; (2) M. Nagaraj and others vs. Union of India and others, 2006(8) SCC 212; (3) Krishna Murthy (Dr.) and others vs. Union of India and anoter 2010 (7) SCC 202 Which judgment though was considering reservation under Article 243D and 243T has applied 50% ceiling as laid down in Balaji. 133 (4) The Constitution Bench judgment of this Court in Chebrolu Leela Prasad Rao & Ors. vs. State of A.P. & Ors., 2020(7) Scale 162, reiterated the principle as referred and reiterated that outer limit is 50% as specified in Indra Sawhney's case.

Re: Ceiling of 50%

162.The 50% rule spoken in Balaji and affirmed in Indra Sawhney is to fulfill the objective of equality as engrafted in Article 14 of which Articles 15 and 16 are facets. The Indra Sawhney itself gives answer of the question. In paragraph 807 of Indra Sawhney held that what is more reasonable than to say that reservation under clause (4) shall not exceed 50% of the appointment. 50% has been said to be reasonable and it is to attain the objective of equality.
164.To change the 50% limit is to have a society which is not founded on equality but based on caste rule. 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. Thus, answer to the question posed is 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
170.The constitutional measures of providing reservation, giving concessions and other benefits to backward classes including socially and educationally backward class are all affirmative measures. We have completed more than 73 years of independence, the Maharashtra is one of the developed States in the country which has highest share in the country's GST i.e. 16%, higher share in Direct Taxes-38% and higher contribution to country's GDP, 38.88%. The goal of the Constitution framers was to bring a caste-less society. The directive principles of the State Policy cast onerous obligation on the States to promote welfare of the people by securing and protecting as effectively as it may social order in which social justice, economic and political shall inform all the institutions of the national life. Providing reservation for advancement of any socially and educationally backward class in public services is not the only means and method for improving the welfare of backward class. The State ought to bring other measures including providing educational 148 facilities to the members of backward class free of cost, giving concession in fee, providing opportunities for skill development to enable the candidates from the backward class to be selfreliant.
172.We have no doubt that all Governments take measures to improve the welfare of weaker sections of the society but looking to the increased 150 requirement of providing education including higher education to more and more sections of society other means and measures have to be forged. In view of the privatisation and liberalisation of the economy public employment is not sufficient to cater the needs of all. More avenues for providing opportunities to members of the weaker sections of the society and backward class to develop skills for employment not necessary the public service. The objectives engrafted in our Constituted and ideals set by the Constitution for the society and the Governments are still not achieved and have to be pursued. There can be no quarrel that society changes, law changes, people changes but that does not mean that something which is good and proven to be beneficial in maintaining equality in the society should also be changed in the name of change alone.

Re: Indra Sawhney applicability on Article 15(4)

188. Clause (4) of Article 15 is also a special provision which is nothing but reinstatement of the principles of equality enshrined in Article 14. The principles which have been laid down in paragraph 808 with respect to Article 16(4) are clearly applicable with regard to Article 15(4) also. In the majority judgment of this Court in Indra Sawhney, the Balaji principle i.e. the 50 percent rule has 162 been approved and not departed with. The 50 percent principle which was initially spoken of in Balaji having been approved in Indra Sawhney. We failed to see as to how prepositions laid down by this Court in Indra Sawhney shall not be applicable for Article 15. It has been laid down in Indra Sawhney that expression "Backward Class" used in Article 16(4) is wider that the expression "Socially and Educationally Backward Class" used in Article 15(5).

Re: Impact of Directive Principles of State Policy

197.We fail to see that how the measures taken under Article 15(4) and 16(4) shall in any manner can be read to breach Directive Principles of State Policy. Article 16(4) and 15(4) are also measures to ensure equality of status besides the equality of opportunity.

Re: TMA Pai Foundation

203. The 50 percent ceiling as put by this Court in St. Stephen's College case was struck off by T.M.A. Pai Foundation case to give effect to content and meaning of Article 30. The striking of the cap of 50 percent with regard to minority institutions is an entirely different context and can have no bearing with regard to 50 percent cap which has been approved in the reservation under Article 16(4) in the Indra Sawhey's case. 204. We thus are of the view that judgment of this Court in T.M.A. Pai Foundation case has no bearing on the ratio of Indra Sawhney's case.

Re: Constitutional 77th and 81st Amendment Act

206. The above Constitutional Amendment makes it very clear that ceiling of 50 percent "has now received Constitutional recognition." Ceiling of 50 percent is ceiling which was approved by this Court in Indra Sawhney's case, thus, the Constitutional Amendment in fact recognize the 50 percent ceiling which was approved in Indra Sawhney's case and on 178 the basis of above Constitutional Amendment, no case has been made out to revisit Indra Sawhney.

Re: 103rd Constitutional Amendment

208. It is submitted that in view of the 10 percent reservation as mandated by 103rdConstitutional amendment, 50 percent reservation as laid down by Indra Sawhney is breached. Shri Rohtagi has further submitted that the issue pertaining to 103rdConstitutional Amendment has been referred to a larger Bench in W.P. (Civil) No.55 of 2019, Janhit Abhiyan versus Union of India. In view of above, We refrain ourselves from making any observation regarding effect and consequence of 103rd Constitutional Amendment.

Re: Extraordinary circumstances

In Paragraph 810 of Indra Sawhney judgment it was observed thus: "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."

 214. We thus are of the view that extraordinary situations indicated in paragraph 810 are only illustrative and not exhaustive but paragraph 810 gives an indication as to which may fit in extra ordinary situation.

Re : Principle of stare decisis

220. What was said by Constitution Bench in Indra Sawhney clearly binds us. Judgment of Indra Sawhney has stood the test of time and has never been doubted. On the clear principle of stare decisis, judgment of Indra Sawhney neither need to be revisited nor referred to larger bench of this Court.

Justice Ravindra Bhat, in his judgment (concurring on this issue) made the following observations:

23. The salience of the issue under consideration is that equality has many dimensions. In the context of Articles 15 (4) and 16 (4,) and indeed the power of classification vested in the state, to adopt protective discrimination policies, there is an element of obligation, or a duty, to equalize those sections of the population who were hitherto, "invisible" or did not matter. The reach of the equalizing principle, in that sense is compelling. Thus while, as explained by this court in Mukesh Kumar v. State of Uttarakhand21 there is no right to claim a direction that reservations should be provided (the direction in that case being sought was reservation in promotions in the state of Uttarakhand), the court would intervene if the state acts without due justification, but not to the extent of directing reservations.22Equally, the states' obligation to ensure that measures to uplift the educational and employment opportunities of all sections, especially vulnerable sections such as scheduled castes and STs and backward class of citizens, is underscored- not only in Article 15 (4) but also by Article 46, though it is a directive principle.23 It is wrong therefore, to suggest that Indra Sawhney did not examine the states' obligations in the light of Directive Principles; it clearly did- as is evident from the express discussion on that aspect in several judgments.

Indra Sawhney and the concept of balance

25. A constant and recurring theme in the several judgments of Indra Sawhney was the concept of balance. This expression was used in two senses- one, to correct the existing imbalance which existed, due to past discriminatory practices that kept large sections of the society backward; two, the quest for achieving the balance between the guarantee of equality to all, and the positive or affirmative discrimination sanctioned by Article 15 (4) and 16 (4)

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

34. Upon examination of the issue from this perspective, the ceiling of 50% with the "extraordinary circumstances" exception, is the just balance- what is termed as the "Goldilocks solution"- i.e. the solution containing the right balance that allows the state sufficient latitude to ensure meaningful affirmative action, to those who deserve it, and at the same time ensures that the essential content of equality, and its injunction not to discriminate on the various proscribed grounds (caste, religion, sex, place of residence) is retained. This court in M. Nagaraj v. Union of India41observed that "a numerical benchmark is the surest immunity against charges of discrimination." 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 (under Articles 15 and 16).


Case: Dr Jaishree Laxmanrao Patil v Chief Minister [CA 3123 of 2020]
Coram : Justices Ashok Bhushan, L Nageswarar Rao, S Abdul Nazeer, Hemant Gupta and S Ravindra Bhat
Citation : LL 2021 SC 243


Reservation In Public Services Not The Only Method For Improving Welfare Of Backward Classes; State Should Bring Other Measures : Supreme Court


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