The Telangana State Council of Ministers is slated to meet on March 6, with a crucial agenda item regarding the proposed 42% reservations for Backward Classes (BCs) in the state. The government is reportedly contemplating a resolution -- if not a bill -- in the State Legislative Assembly, urging the union government to provide Constitutional protection for this proposal under the Ninth Schedule of the Indian Constitution. The government’s belief is that this provision would shield their proposed reservation increase from judicial scrutiny. However, a thorough examination of past judicial precedents paints a different picture.
The Constitutional and judicial limits of reservations
The Telangana government appears to base its argument on Article 243D(6) and T (6) of the Constitution, which allows state legislatures to make provisions for reservation of seats in local bodies for backward classes. While this provision is an enabling clause, it does not offer a carte blanche to exceed the 50% cap on reservations that has been established through judicial pronouncements over the years.
A recent Constitutional Bench judgement that set the tone for the 50% cap is K Krishna Murthy & Ors v. Union of India (2010). In this case, the Supreme Court reiterated that the upper limit for reservations for Scheduled Castes (SC), Scheduled Tribes (ST), and Other Backward Classes (OBC) should not exceed 50%. This was particularly important in the context of local self-government.
Moreover, a division bench presided by Justice P. Ghose (who is now heading a Commission that is probing the irregularities in Kaleshwaram Lift Irrigation Scheme), the then-Chief Justice of Andhra Pradesh High Court, in 2012, reaffirmed this limit in the context of local body elections, ruling that reservations should not exceed 50%, as set out in earlier decisions like Indra Sawhney (1992).
Justice Ghose’s decision was grounded in the Constitution and in the principles of equality and proportionality that the Constitution upholds.
Precedents: Upholding the 50% cap on quota
The 50% cap on reservations has been a consistent feature of Indian judicial decisions. Long before Justice Ghose’s ruling, in 1986, a bench of the Andhra Pradesh High Court, comprising Justices BP Jeevan Reddy, A Raghuvir, and M Jagannadha Rao, delivered a significant judgment in C Satyanarayana Reddy & Others v. State of Andhra Pradesh. The court upheld the 50% ceiling for reservations in the context of local body elections, marking an important step in defining the limits of reservation policies.
A more recent case, Vikas Kishanrao Gawali v. State of Maharashtra (2021), saw the Supreme Court further clarify this issue. The court directed that OBC reservations in local bodies could only be implemented to the extent that the total reservations (combining SC, ST, and OBC reservations) did not exceed 50%. This reiteration serves as a reminder that the 50% cap is not merely a suggestion but a judicially established principle, grounded in the Indra Sawhney decision of 1992.
The Ninth Schedule and judicial review: A misunderstanding?
Telangana’s move to introduce the 42% BC reservations under the Ninth Schedule of the Constitution raises a crucial question: Can inclusion in the Ninth Schedule shield such a law from judicial review?
The answer, as established in IR Coelho v. State of Tamil Nadu (2006), is no. In this landmark case, a nine-judge bench of the Supreme Court upheld the Basic Structure Doctrine, asserting that laws included in the Ninth Schedule after April 24, 1973 (the date of the Kesavananda Bharati judgment) are not immune from judicial scrutiny. The Court further emphasised that such laws can be challenged if they violate the Basic Structure of the Constitution, particularly concerning fundamental rights under Articles 14, 15, 19, and 21.
The Supreme Court ruled that any law inserted into the Ninth Schedule after this date must still pass the test of constitutionality, specifically the basic structure test. This means that even if Telangana succeeds in getting its proposed reservations included in the Ninth Schedule, it will still be subject to judicial review, particularly if it breaches constitutional principles like equality.
The case of other states: A warning for Telangana
The attempt by Bihar to increase its reservations beyond 50% to 65% was struck down by the Patna High Court in 2023. Similarly, several other states, including Maharashtra, Rajasthan, Haryana, Jharkhand, and Chhattisgarh, have also attempted to breach the 50% limit, only to be met with resistance from the judiciary.
Telangana may be under the impression that if 69% reservations are possible in Tamil Nadu, there is no reason why they cannot achieve similar levels. However, it is essential to note that Tamil Nadu’s reservation policy is currently under review by the Supreme Court, and while the state has secured an workable interim order allowing the continued implementation of 69% reservations, this is far from a final verdict. Therefore, any attempt to increase reservations to 63% in Telangana (as proposed with the 42% BC reservations) is fraught with legal risks, especially given the Supreme Court’s stance on the 50% cap.
Moreover, it needs to be reminded that not a single legislation was put in the Ninth Schedule for the last 35 years after 1991. The Ninth Schedule was historically used as a means to protect certain land reform laws from judicial scrutiny, but after the IR Coelho case (2006), the scope of its application has been severely restricted. If the Telangana government still wants to achieve its ambitious promise to BCs, it needs to overcome the judgments of the Supreme Court’s Constitutional Bench, such as the Indra Sawhney, and Krishna Murthy cases, which have consistently upheld the 50% cap and placed limits on the expansion of reservations.
K Ramkrishna Reddi
Former Advocate General, Telangana