Arguments employed by the Supreme Court in its majority verdict to uphold the 10% economically weaker sections (EWS) quota for the “poorest of the poor” among forward castes can paradoxically become a stimulus for the backward classes to seek reservation over and above the 50% ceiling limit on the basis of the data published after the Bihar caste-based survey.
The EWS judgment had excluded the “poorest of the poor” among the Scheduled Castes, the Scheduled Tribes and the Other Backward Classes from the ambit of 10% quota.
The majority 3:2 judgment had held that the EWS quota did not breach the ceiling limit of 50% placed by the Indira Sawhney judgment on reservations as the State can make “special provisions from time to time in the march towards an all-inclusive egalitarian society”.
In his lead opinion for the majority on the Bench in the EWS quota case, Justice Dinesh Maheshwari (now retired) concluded that the 50% ceiling limit, though held attached to the constitutional requirements, was neither “inflexible nor inviolable for all times to come”. Further reservation by affirmative action by the State cannot be seen as damaging the Basic Structure of the Constitution. The judge agreed that a mathematical precision of 50% was difficult to follow in human affairs.
“In the case of proportional equality the State is expected to take affirmative steps in favour of disadvantaged sections of the society within the framework of liberal democracy,” Justice Maheshwari had quoted from the M. Nagaraj judgment.
The Bihar survey data released on Monday show that the Other Backward Classes and the Extremely Backward Classes together constituted 63% of the population of the State.
The EWS judgment showed that even the Indira Sawhney verdict had said the ceiling limit was not cast in iron. “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,” the court had said in the 1992 Indira Sawhney judgment.
The EWS order of November 2022 had cited a plethora of top court verdicts to buttress its case that the 50% limit could be crossed if necessary. In one of them, the N.M. Thomas case, the Supreme Court had said the 50% limit was only a “rule of caution and does not exhaust all categories”.
This ruling had observed that a “suitable reservation within permissible limits” would depend on the “facts and circumstances of each case and no hard and fast rule can be laid down”. Reservation cannot be reduced to a mathematical formula, the N.M. Thomas judgment had noted.
“Suppose for instance a State has a large number of backward classes of citizens which constitute 80% of the population and the government, in order to give them proper representation, reserves 80% of the jobs for them, can it be said that the percentage of reservation is bad and violates the permissible limits,” the top court had asked.
The EWS verdict had supported the view that all the courts needed to examine was whether reservation was so excessive as to become oppressive, leading to unfair exclusion.
The court in the Akhil Bharatiya Soshit Karamchari Sangh (Railway) case had described the 50% limit as only a “convenient guideline laid down by judges”.
“Every case must be decided with reference to the present practical results,” the court observed.
Justice Maheshwari had quoted Justice Chinnappa Reddy, who said that “for a court to say that reservations should not exceed 40%, 50% or 60% would be arbitrary and the Constitution does not permit us to be arbitrary”.
