The Supreme Court in Indra Sawhney vs Union of India case in 1992 placed reliance upon the speech of Dr B R Ambedkar in the Constituent Assembly, where he had said reservation must be confined to a minority of seats. On the other hand, the respondents argued that when the population of OBCs is more than 50 percent of the total population, the reservation in their favour (excluding SCs and STs) can also be 50 percent.
The apex court, however, pointed out that it was concerned about adequate representation and not proportionate representation. Adequate representation cannot be read as proportionate representation. “These articles speak of reservation of seats in Lok Sabha and the State Legislatures in favour of STs and SCs proportionate to their population, but they are only temporary and special provisions. It is therefore not possible to accept the theory of proportionate representation though the proportion of population of backward classes to the total population would certainly be relevant.”
From this point of view, the 27 percent reservation provided in favour of backward classes is well within the reasonable limit. Together with reservation in favour of Scheduled Castes and Scheduled Tribes, it comes to a total of 49.5 percent. In this connection, reference may be had to the Full Bench decision of the AP High Court striking down the enhancement of reservation from 25 to 44 percent for OBCs. The said enhancement had the effect of taking the total reservation under Article 16 (4) to 65 percent.
The apex court had further said the principle aim of Article 14 and 16 is equality and equality of opportunity and that Clause (4) of Article 16 is but a means of achieving the very same objective. “It is relevant to point out that Dr Ambedkar himself contemplated reservation being ‘confined to a minority of seats’. No other member of the Constituent Assembly suggested otherwise. It is, thus clear that reservation of a majority of seats was never envisaged by the founding fathers.”
The irresistible conclusion that follows is that the reservations contemplated in Clause (4) of Article 16 should not exceed 50 percent. While 50 percent quota 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. In this connection it is well to remember that the reservations under Article 16(4) do not operate like a communal reservation. It may well happen that some members belonging to, say SCs get selected in the open competition field on the basis of their own merit; they will not be counted against the quota for SCs; they will be treated as general category.
Hence, the equality principle underlying Article 14 is the basis for holding that reservation should be limited to 50 per cent. In Indra Sawhney vs Union of India and others, a bench of 3 judges of the Supreme Court made the following observation: “The Preamble to the Constitution emphasises the principle of equality as basic to our constitution”. In Keshavananda Bharati vs State of Kerala, it was ruled that even constitutional amendments which offended the basic structure of the Constitution would be ultra vires the basic structure. Chief Justice Sikri laid stress on the basic features enumerated in the Preamble and said there were other basic features too which could be gathered from the Constitutional scheme. Equality was one of the basic features referred to in the Preamble.
Exceeding 50 per cent reservation is contrary to the dictum laid down by the apex court in Indra Sawhney vs Union of India and also MR Balai Vs State of Mysore – 1963. Further, equality is part of the basic structure of the Constitution and giving more than 50 per cent reservation deprives not only forward castes, but also meritorious candidates from reserved category. Further, the argument that all the states are in favour of providing reservation beyond 50 per cent, according to their needs and the Acts passed by them, is of no relevance.
If a constitutional amendment breaches the “core” of the Constitution, it would have crossed over forbidden territory. This aspect would undoubtedly fall within the realm of judicial review. Therefore, the argument that all the State Legislatures agreed with one voice for providing reservation beyond 50 per cent is of no relevance.
(Writer A Subba Rao in an advocate in the Supreme Court of India)