Caste-based reservation was established by the British Raj and pursued by independent India. It covers higher education, public sector employment and legislative representation, endeavoring to Dalits, Adivasis and Other Backward Classes. In Indian politics, few things have been more controversial than this policy of agreeable action whose outlines have been framed not only by politicians but also the judiciary.
Most importantly, the Supreme Court has put a 50% limitation on reservation. As such, any efforts by the people’s representatives to lengthen reservation to new groups is inevitably baffled by this rule.
What is the 50% rule?
In Indra Sawhney vs Union Of India, 1992, the court limited caste-based reservation, adjudicating that “no provision of reservation or preference can be so vigorously pursued as to destroy the very concept of equality”.
Since this Court has consistently held that the reservation under Articles 15(4) and 16(4) should not increase 50% and the States and the Union have by and large welcomed this and it should be held as constitutional prohibition and any reservation beyond 50% would be subjected to be struck down.
The rule introduced, In 1979, the Janata Party government shaped the Second Backward Classes Commission generally known as the Mandal Commission after its chairman, the Bihar MP Bindheshwar Mandal with the directive to recognise India’s socially or educationally backward classes.
At the time, India already had reservations for Dalits and Adivasis. The Mandal Commission’s report, tendered in 1980, called for giving reservation to the Other Backward Classes, an extensive miscellany of castes that mainly fit the “shudra” category of the caste system. Soon after the report was tendered, however, the Congress reinstated it to power and it was put in cold storage.
It took a decade and another non-Congress government, this time led by VP Singh, to execute the Mandal Commission suggestions, sparking a storm of protests and a petition to the Supreme Court which came to be known as the Indra Sawhney case.
Adjudicating the petition, the court relatively trusted the government’s new policy, allowing for 27% reservation for the Other Backward Classes, but put in an essential rider: socially and economically promoted individuals among the Other Backward Classes will not be covered. The court also held that the share of jobs, or educational or legislative seats reserved for different communities cannot together increase 50%.
Now the question arises, ‘Why 50%?’
The Other Backward Classes, as recognized by the Mandal Commission, make up about 52% of India’s population as per the 1931 Census, the last recountion of castes in the country. The court, however, did not deal with the question of population while ruling that although reservation was fine, it must be limited.
“Just as every power must be utilised appropriately and impartially, the power conferred by Clause (4) of Article 16 should also be utilised in a impartial manner and within appropriate limits and what is more appropriate than to say that reservation under Clause (4) shall not exceed 50% of the appointments or posts, excepting certain extraordinary situations as explained hereinafter.”
The court has never elucidated why 50% is “reasonable” when the Other Backward Classes alone are at least 52% of the population. In any case, the 50% limitation meant the Other Backward Classes secured 27% share in the reservation pie while Dalits and Adivasis together got 22.5%, bringing the total to 49.5%.
Reservation for backward class aspires to accomplish the social motivation of sharing in services which had been controlled by few of the forward classes. To bridge the gap, thus, the affirmative actions have been upheld as the social and educational difference between the two classes furnished a reasonable basis for classification. Same cannot be said for rich and poor. Indigence cannot be a rational basis for classification for public employment. Any legislative action or executive action proposing inequality between rich and poor has been held to be suspect.
Duty of State to protect against destress due to poverty should not be muddled with States function to treat everyone uniformly and equally without discrimination. Protection against application of law due to distinction in economic condition, cannot be equated with classification based on disproportion in wealth. Former is in the realm of justice and fairplay whereas latter is equal protection to which every one is entitled. In the former unjust application of law may be cured by removing the offending part and thus apply the law uniformly to rich and poor. Whereas in the latter the classification has to be justified on the nexus test. Poverty may have relevance and may furnish valid justification while dealing with social and economic measures. Any legislation or executive measure undertaken to remove disparity in wealth cannot be suspect but a classification based on economic conditions for purposes of Article 16(1) would be violative of equality doctrine.
Also read about Contempt of Court
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