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Recently, a 5-judge constitutional bench of the Supreme Court of India struck down The Maharashtra State Reservation for socially and Educationally Backward Classes (SEBC) Act, 2018. The disputed Act provided 16% reservation to the Maratha community in education and public jobs, resulting in a gross quota of 66% reservation in Maharashtra. This was against the general rule of 50% cap on reservation and thus challenged in the Supreme Court. The Court framed three main issues to test the constitutionality of SEBC Act- First, does the 50 percent quota limit (subject to “extraordinary circumstances”), as articulated by some of the judges in the Indira Sawhney decision, warrant reconsideration? Second, was the impugned Act right in granting the Maratha community reservations? Third, after the 102nd Constitutional Amendment, were the various states competent to recognize socially and educationally backward groups within their territories, or does that authority now rest solely with the federal government?
On the third point, the bench ruled in favour of exclusive central competence by a 3:2 majority and clarified that states can no longer identify SEBCs for the purposes of reservation. On the second question, if Marathas merit reservations at all, the bench unanimously concluded that the Maratha community does not meet the reservation criteria. According to the bench, the Marathas are a powerful forward class who are well integrated into national life. The Maratha group has sufficient representation in public service, as shown by data gathered by the M.G. Gaikwad commission, on the basis of whose study the state legislature adopted legislation to reserve 16 percent quota in government employment and education for Marathas, in addition to the 50 percent ceiling cap set by the Supreme Court in the Indra Sawhney case. Based on these two conclusion, the court decided the first issue that 50% limit does need reconsideration in the case.
If the Marathas do not deserve reservations at all, there is no point in questioning whether they merited more than the 50 percent limit set by the nine-judge bench in the Indra Sawhney case. However, the bench went to great lengths to explain denying reservations to Marathas on the grounds that they do not meet the criteria of an “extraordinary condition” as articulated in Indra Sawhney. The biggest point of the Maratha reservations decision is that the Indra Sawhney 50 percent limit will be strictly applied and any exception will have to be absolutely exceptional. This blog will focus on the issue of 50% reservation cap issue of Maratha reservation judgment exclusively and try to establish the case against the court’s observation.
An overview of 50% limit doctrine
The “50 percent rule” was first time formulated in the case of M.R. Balaji V. State of Mysore. The Supreme Court held that reservations under Article 16(4) should not exceed 50%. during the M.R. Balaji case, the Indian Supreme Court observed that article 14, article 15(1), and article 16(1) represented a “caste-blind” view of equality, in which classification was impermissible on denied categories like caste, colour, gender, etc. By making reservations, Article 16(4) created a particular exception to Article 16(1). As a result, formal equality of opportunity was the rule, and reservation was the exception. Reservations had to be set at 50%, so the exemption could not “swallow up” the law.
This interpretation of equality, however, was reversed by a seven-judge Apex Court bench in State of Kerala v N.M. Thomas. The apex court ruled that Clause (4) seems to be an exception, but upon closer inspection, it is a “constitutionally sanctified designation.” As a result, Article 16 Clauses (1) and (4) are “coincide,” rather than an exception. Whereas Article 16(1) guarantees equality of opportunities for all people “in matters relating to jobs or election to any office under state,” Article 16(4) establishes a system or instrument to ensure equal opportunity for all by ensuring that certain parts of society, including the backward classes, are not left behind in a democratic society. Thus, the 50% cap rule established in Balaji case, was no longer justifiable.
It was the judgment of Indira Sawhney v union of India, which made the matter ambiguous. It confirmed both N.M. Thomas and the 50 percent rule (essentially subject to “extraordinary circumstances”). These two views are incompatible because, by definition, the 50 percent law must stand or fall with the proposition that Article 16(4) is an exception to Article 16(1). When you agree that Articles 16(1) and 16(4) all represent a vision of fundamental equity, the 50 percent law seems completely illogical. Substantive equity necessitates a consideration of deprivation, and if more than half of a given population is disadvantaged, there is no need to limit affirmative action to 50%.
Analyzing the court’s judgment
While deciding the Maratha reservation case, the Supreme Court denied revisiting the Indira Sawhney case on many grounds. It also did not consider the reasoning of N. M. case on the ground that only two judges opined on 50% rule. Honorable Justice Bhusan explained in his judgment that article 15(1) and article 16(1) of the Constitution are inserted to achieve substantive equality, while articles 15(4) and article 16(4) are engrafted to achieve the protective equality. However, it was already established from previous cases that 50% rule and article 16(4) are connected due to being an exception of article 16(1). If one is being detached, the other should also be reconsidered. Further, the court failed to provide the difference between substantive and protective quality and the signification of this difference.
While deciding Maratha judgement, the court considered the fact that majority in Indira Sawhney had decidedly ruled in favour of the 50 percent ceiling. However, the majority in Indira Sawhney also upheld the rules established by N.M. Thomas, and the two propositions are conflicting. This is why a larger bench’s call for reconsideration of the 50 percent provision was reasonable. The court determined that Indira Sawhney was founded on the principle of “balance” – that is, “balancing” equality of opportunity and reservations. A “balance” in the context of a 50 percent quota, on the other hand, is simply a more nuanced way of rephrasing the “exception” paradigm. It is not balanced in any way if 20% of a community oppresses 80% of the population, but quota is set at 50%. As a result, the term “balance” clearly follows the conclusion in the premise.
The court, however, held that even if this was accurate, it would not be a justification for granting reservation because it was not an “extraordinary circumstance” under the Indira Sawhney decision. The statement that 80-85 percent of the population was “backward” (as the Gaikwad Commission stated) would not be grounds for increasing the reservation above 50%, certainly needed more explanation.
When it comes to the 50% reservation policy, Maratha judgment shows the bench’s profound misunderstanding of the real existence of reservations. Rather than viewing reservation as a constitutionally mandated legislative instrument for ensuring that excluded minorities get their fair share of education and jobs, the Court views them as a tool community economic and social upliftment and welfare.
This case decision is also likely to impact the implications of this approach for EWS (reservations for economically weaker sections). If EWS reservations are solely enforced under the 50 percent cap, and the 10 percent EWS reservations displace a portion of the 50 percent, the current 50 percent reservations for backward groups will be reduced to 40 percent in order to include a 10 percent quota for Savarnas. This will be a violation of the fundamental aim of reservations in the Indian constitution, which is to give a fair share to economically marginalized, traditionally discriminated minorities and to protect institutions that serve all of its citizens. Needless to mention, such a possibility is unlikely. The Maratha reservation decision emphasises the need to determine with sufficient evidence that granting reservations to economically disadvantaged parts of dominant groups is a “extraordinary condition” that requires violation of the 50 percent cap in order for EWS to be enforced above the 50 percent backward classes reservation (including SC. ST). Such data, including a caste census, simply does not exist today.
ABOUT THE AUTHOR
Harshita Dixit is a second year Law student at Rajiv Gandhi National University of Law, Patiala
Content Picture Credit: Picpedia.org
Kindly note that the views and opinions expressed are of the author and not of the Indian Journal of Law and Public Policy.