The 50 per cent Lakshmana Rekha

TRS government vows 12 per cent quota for Muslims and tribals. Reservations cannot be opposed on the ground of merit or efficiency as Constitution itself allows such positive discrimination in favour of unequals. However, it is equally erroneous to frame a policy of affirmative action through protective discrimination, completely undermining the principles of merit and efficiency. Thus, the 50 per cent Lakshmana Rekha is socially justified and constitutionally valid

The Telangana Chief Minister, K Chandrashekar Rao, has announced that his government will legislate for reservations for Muslims and tribals. The promise is to accord 12 per cent quotas for them. Setting aside the discussion on the merits of such legislation, the fundamental question that needs to be answered is how it would overcome the judicially interpreted constitutional stipulation that reservations should not exceed 50 per cent.

The rationale for imposing 50 per cent rule is based on the relationship between affirmative action in the form of protective discrimination and the equality provisions of Indian Constitution. Vinay Sitapati in the section on reservation in The Oxford Handbook of The Indian Constitution (edited by Sujit Choudhary et al, 2016) terms this as one of balance between competing Constitutional principles of formal equality, social justice and efficiency.

Article 16(4) permits reservations as being an exception to the Constitutional principle of right to equality enshrined in Article 16(1). Since the exception cannot be greater than the rule, the reservations cannot exceed 50 per cent. H M Seervai in Constitutional Law of India (vol 1, Universal Book Traders) and Anirudh Prasad in Reservation Policy and Practice in India: A Means to an End (South Asia Books) describe this as Ambedkar constitutional vision.

Constitution enunciates a right to equality. It is the cornerstone of Indian Constitution. Article 16(4) calling for reservations is in fact a continuation of Article 16(1) that guarantees equality. The logic behind Article 16(4) is that unequals cannot be treated equally and, therefore, deserve affirmative action in favour of them. Therefore, it is wrong to read the reservations provisions of the Constitution as independent of or superior to equality provisions. Thus reservations provisions cannot limit the equality provisions, but can only be an extension of it.

In a majority judgement, the Supreme Court in the famous Indra Sawhney Case articulated that balancing various provisions of the Constitution meant that total quotas could not cross 50 per cent in any given year. The Telangana government often refers to Tamil Nadu to justify its decision to increase the total quotas in the state above the judicially stipulated 50 per cent limit.

The apex court limits reservations to 50 per cent through Indra Sawhney Case verdict. But, Tamil Nadu has 69 per cent reservations. The Indra Sawhney Case posed a threat to the Tamil Nadu reservation formula. To protect these reservations, Parliament placed Tamil Nadu quota legislation in the Ninth Schedule of the Constitution. Laws placed in the Ninth Schedule were considered to be immune from judicial review till the later day Constitutional interpretation by the Supreme Court.

However, a recent verdict by the apex court held that even the laws in the Ninth Schedule are subject to judicial review if they violate the basic structure of the Constitution.

Given the political arithmetic in present Parliament, even if Telangana government wants, its reservation law cannot be placed under the Ninth Schedule. Even if the state government succeeds in convincing the Centre to do so, it is still not immune to judicial review.

The Constitutional principles of equality, social justice and efficiency in public administration should be balanced. The Constitution clearly articulates equality. The provisions related to reservations are aimed at promoting social justice without detriment to the concept of equality.

Article 335 of the Constitution balances its vision of social justice in the form of reservations with the objective of maintaining efficiency of public administration. The limit of 50 per cent on the total reservations is placed to ensure this balance between what seems to be mutually contradictory yet complementary Constitutional provisions.

Article 335 states: “The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State.”

Any form of protective discrimination in the form of reservations may promote social justice but would have an adverse impact on merit and efficiency which is also a Constitutional vision. Therefore, it is imperative to ensure that one Constitutional provision does not dominate the other.

Reservations cannot be opposed on the ground of merit or efficiency as Constitution itself allows such positive discrimination in favour of unequals. However, it is equally erroneous to frame a policy of affirmative action through protective discrimination completely undermining the principles of merit and efficiency. Thus, the 50 per cent Lakshmana Rekha is socially justified and constitutionally valid.

Caste and class overlap in India to a significant extent. The marginalised castes are marginalised classes. Reservations address the caste-based inequalities. Yet, caste and class are not synonymous. There are other forms of inequalities too. For instance, there are economically backward sections among upper castes even as compared to some of the marginalised caste families.

While accepting the greater similarity between caste and class to justify the reservations despite Constitutional vision of equality, the exception to the principle of caste-class similarity cannot also be ignored that too after the seven decades of social and economic development and decades of implementation of reservations.

Reservations policy fails to address other forms of inequalities that transcend caste. Therefore, limiting reservations to 50 per cent would prevent further accentuation of other forms of inequalities that transcend caste.

The Articles 15(4) and 16(4) of the Constitution that enable the state to provide reservations for certain classes are special provisions as enunciated in the said articles itself. In M R Balaji verdict, the Constitutional bench of the Supreme Court held that special provision must be within reasonable limits.

A special provision is not a provision which is exhaustive in character, so that in looking after the advancement of those classes, the state would be justified in ignoring altogether the advancement of the rest of the society. It is because the interests of the society at large would be served by promoting the advancement of the weaker elements in the society.

If a provision which is in the nature of an exception completely excludes the rest of the society that clearly is outside the scope of such a provision of the Constitution, it would be extremely unreasonable to assume that in enacting Articles the Parliament intended to provide that where the advancement of the Backward Classes or the Scheduled Castes and Tribes was concerned, the fundamental rights of the citizens constituting the rest of the society were to be completely and absolutely ignored. A Special provision must be within reasonable limits. The interests of weaker sections of society which are a first charge on the state and the Center have to be adjusted with the interests of the community as a whole. Special provision should be less than 50per cent.

But, those who defend reservation over and above the limit of 50 per cent can argue that 85 per cent of Telangana population belongs to the classes eligible for reservations and, therefore, enforcing any limit of 50 per cent is unwarranted. But, the apex court in Indra Sawhney case stated that the special provisions contemplating reservations only “speaks of adequate representation and not proportionate representation.“ The court further observed: “Adequate representation cannot be read as proportionate representation.”

The Indra Sawhney Judgment held that the provision conceived in the interest of certain sections of society should be balanced against the guarantee of equality which is a guarantee held out to every citizen and to the entire society. 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 implementation of reservations in India is beset with many inadequacies and anomalies. Despite judiciary pronouncing creamy layer to exclude the forward among the backward from the purview of reservations, the policy is hardly implemented given the character of Indian economy and society. Political populism and compulsions of electoral democracy make it almost impossible to review the policy of reservation for a possible exclusion of any caste.

Despite vociferous demand from certain quarters for sub-categorisation, there has not been any breakthrough.
Thus, the manner in which the policy of reservations was actually executed makes the balancing act much more essential. However, there can be exceptions to this rule of 50 per cent limit. The apex court in Indra Sawhney case itself appreciated such extraordinary circumstances that make limit unwarranted.

The court said, “While 50 per cent 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 main stream 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.”

But no such special case can be made out for Telangana to cross the rule of 50 per cent. From the above discussion, the irresistible conclusion that follows is that the reservations contemplated in Clause (4) of Article 16 should not exceed 50 per cent. Indian jurisprudence reveals that ignoring this caution may make the legislation vulnerable to judicial rejection.