The story so far: The Supreme Court, while considering the validity of the reservation for the Maratha community in Maharashtra on March 8, decided that it will hear all the States on the 50% limit on total reservation imposed by the court in the Indra Sawhney case (1992). This is because the 16% quota for Marathas would take the total reservation in Maharashtra beyond the limit of 50%. Over the years, several other States, including Tamil Nadu, have passed laws that allow reservation going beyond 60%. The court is also keen on hearing the views of the States on the 102nd Amendment of the Constitution, by which the National Commission for Backward Classes was given constitutional status.

What are the quota-related issues on which the SC wants States’ views?

The five-member Constitution Bench headed by Justice Ashok Bhushan wants to decide whether the judgment in Indra Sawhney vs Union of India, known as the Mandal verdict, needs to be referred to a larger Bench or “requires a relook in the light of subsequent Constitutional amendments, judgments and changed social dynamics of society, etc.” This is because the earlier judgment had declared that reservation cannot exceed 50% in total. As Indra Sawhney was a decision by a nine-member Bench, a Bench of at least 11 judges will be needed to reconsider the question.

Also, the court wants to consider whether the reservation for Marathas effected through a 2018 Act (the Socially Economically Backward Class Act), and amended in 2019, is covered by the “exceptional circumstances” mentioned in the Indra Sawhney judgment, which had said the 50% limit can be exceeded in “certain extraordinary situations” as a special case. This relaxation, it said, was meant for people inhabiting remote and far-flung areas who are away from the mainstream of national life and who may have “conditions peculiar to and characteristic to them”.

The Bench will also examine whether the State government had made out a case warranting such an exception for Marathas based on the report of the Maharashtra State Backward Classes Commission headed by former Justice M.G. Gaikwad.

Last September, the Supreme Court stayed the implementation of the 2018 Maharashtra law granting reservation to Marathas in education and jobs.

Is there any other issue on the rights of States?

One of the issues that cropped up in the debate over the Maratha reservation is the effect of the 102nd Constitution Amendment introduced in 2018. This amendment grants constitutional status to the National Commission for Backward Classes and says the President would notify the lists of backward classes for all States in consultation with the Governors. This has raised apprehensions about whether the power of State governments to make inclusions and exclusions from the list of backward classes has been taken away.

Therefore, the court has framed important questions: whether the 102nd Amendment deprives States of the power to make laws for socially and educationally backward classes and confer benefits on them, whether the newly introduced Article 342A of the Constitution abridges the State legislatures’ power to enact laws under Articles 15(4) and 16(4), which respectively deal with special provisions for other backward classes and reservation in employment, and whether all this affects the federal structure of the Constitution.

Also read | States’ approval not needed for quota Bill

Any judgment on the Maratha reservation issue would inevitably have to deal with three issues — the 50% ceiling on total reservation, the power of States to determine who its backward classes are and confer benefits on them, and the legislative competence of State legislatures regarding backward classes after the introduction of the 102nd Amendment.

The court has decided that all States have a stake in the outcome, and therefore, it wants to hear their views.

What do past judgments say on a ceiling for quotas?

It was in M.R. Balaji vs State of Mysore (1962) that the Supreme Court first ruled that reservation, being a special provision for backward classes, should not normally exceed 50%. It held that the order earmarking 68% of seats in engineering, medical and other technical courses was a “fraud” on the Constitution. However, it added that it would not attempt to lay down in an inflexible manner what the proper percentage of reservation should be. “Speaking generally and in a broad way, a special provision should be less than 50%. The actual percentage must depend upon the relevant prevailing circumstances in each case,” it said.

The presumption behind the 50% rule was that equality of opportunity was the norm, and any special provision for socially and educationally backward classes or reservation for backward classes in public employment was an exception. However, in State of Kerala vs. N.M. Thomas (1975), the majority of the Bench disagreed with the proposition. It said the special measures in favour of backward classes in Articles 15 and 16 were not exceptions to the rule. On the contrary, these were an emphatic way of ensuring equality of opportunity — to the point of even making reservations. Justice S.M. Fazal Ali wrote that in his opinion, the 50% norm in Balaji was only a rule of caution and does not exhaust all categories.

In Indra Sawhney, even though most judges agreed that reservation was not an exception to the equality norm, the court ultimately laid down the 50% limit. “Just as every power must be exercised reasonably and fairly, the power conferred by Clause (4) of Article 16 should also be exercised in a fair manner and within reasonable limit — and what is more reasonable than to say that reservation … shall not exceed 50% of the appointments or posts…?” Citing Dr. B.R. Ambedkar’s opinion in the Constituent Assembly that reservation should be “confined to a minority of seats”, the Bench fixed the maximum permissible quota at 50%. At the same time, it said the strict rule could be relaxed in extraordinary situations given the country’s great diversity.

How will a judgment in this case impact reservation?

If the court, through a larger Bench, comes to the conclusion that the 50% ceiling is not a hard-and-fast rule and that it may be breached if a State’s backward class population is considered high, it would be a big boost for the affirmative action policies of various State governments. Not only would it enable the Maharashtra government to implement its quotas for Marathas to the extent of 16% reservation in education and jobs, but other States, such as Tamil Nadu, would also be able to preserve their present levels of reservations. For instance, Tamil Nadu has enacted a law to protect its 69% total reservation. As the Tamil Nadu law, which was subsequently included in the Ninth Schedule of the Constitution (by which the Act would be beyond judicial review on the ground of violation of anyone’s fundamental rights) has been separately challenged before the Supreme Court, the removal of the ceiling would be a major victory for the State.

Also read | Supreme Court defers hearing of challenge to T.N.’s 69% quota

The decisions would also have relevance to the legal challenge to the introduction of the 10% quota for the economically weaker sections among those who do not fall under any reservation category. By this move, the Centre has already exceeded the 50% limit, and at present, only 41% of seats or posts are meant for open competition in central employment and educational institutions.

Further, the Bench is also likely to decide on the question of whether backward classes should also be classified and determined only by the Centre, just as the list of Scheduled Castes is made by the Union government. As of now, only the President, or the Central government, can make modifications in the list of Scheduled Castes in respect of any State or Union Territory in the country. And this can be done only through a Parliamentary law. Article 342A, introduced through the 102nd Amendment, is similarly worded — it says that the President notifies the Backward Classes for each State or Union Territory in consultation with the Governor in the case of a State. It also says State governments must consult the National Commission for Backward Classes on all matters of policy concerning socially and educationally backward classes.