Caste census could change cap on reservations set by Supreme Court in 1992

For decades now, the push for an increase in reservation, over and above a cap set by the Supreme Court in 1992, has come up against an immovable object in the form of constitutional courts.

But given that the courts have insisted on quantifiable data to justify state action, the caste census announced by the Union government on Wednesday could change things.

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In 1992, a landmark decision in the so-called Indira Sahwney case by a nine-judge bench of the Supreme Court laid down the rule that as a norm, reservation cannot exceed the 50% threshold. In the years since, laws by states and Centre providing reservation beyond this limit came to be challenged in the top court, and judicial decisions maintained the sanctity of the threshold. But even as the courts struck down these laws, they insisted on the need for benchmarks of backwardness and data on under-representation (if any).

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The Supreme Court itself has also played an active role in extending reservation for other backward classes to local bodies as well as for scheduled classes and tribes to promotions in government jobs.

In the 1992 case, the apex court was considering the constitutional validity of providing reservation to OBCs quantified at 27%, as recommended by the Mandal Commission, which estimated the OBC population to be 52% in the country.

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The court allowed reservation for OBCs with riders by seeking exclusion of the “creamy layer”-- those affluent among them based on income and other indicators--and placing a cap on total reservation to not exceed 50% except in “extraordinary” situations. This cap comprised 15% reservation to SCs, 7.5% to STs and 27% to OBCs.

In 2006, the Supreme Court considered petitions challenging the constitutional validity of Articles 16(4A) and 16(4B) in the Constitution providing reservation in promotion with consequential seniority in favour of scheduled castes and scheduled tribes.

The decision of the five-judge Constitution bench in M Nagaraj v Union of India case (2006) reiterated the ceiling limit of 50%, the concept of creamy layer, and went on to impose additional riders indicating that the state will have to demonstrate compelling reasons of “backwardness”, “inadequacy of representation” and “overall administrative efficiency” to justify reservation in public employment under Article 16, without which, it held, “the structure of equality of opportunity in Article 16 would collapse.”

In 2018, the court was required to consider whether the M Nagaraj decision needed to be reviewed. In its decision in Jarnail Singh v Lacchmi Narain Gupta, it accepted that in matters of promotion of SC/ST, states need not prove their backwardness, but required them to fulfil the other conditions to provide data justifying inadequate representation of SC/STs.

But the Supreme Court has also shot down efforts to expand the benefits of reservation -- it scrapped the then United Progressive Alliance (UPA) government’s decision to include Jats within the list of OBCs in the states of Bihar, Gujarat, Haryana, Himachal Pradesh, Madhya Pradesh, Delhi, Uttar Pradesh, Uttarakhand and certain districts of Rajasthan.

And , it scrapped a 2018 law by Maharashtra that extended the benefits of reservation to Marathas, on the grounds that this would make overall reservations in the state breach the 50% mark. That judgement also said only the Union government could define a socially and economically backward class (or SEBC). Following this decision, the Parliament had to amend Article 342A restoring authority to states and union territories to identify SEBCs.

In a 2021 judgement, the Supreme Court defined the protocol for states to provide reservation in local bodies -- a three step process that involved appointing a commission, gathering empirical data quantifying extent and backwardness of OBCs, and ensuring that total reservation in any local body seat does not exceed the 50% ceiling. This mandate led many state governments to first establish a commission.

Moving away from caste-based reservation, the Centre in 2019, brought the Constitution (One Hundred and Third) Amendment Act granting 10% reservation to economically weaker sections (EWS) belonging to the unreserved category of the population. This law was challenged before the top court and a five-judge Constitution bench upheld it in the Janhit Abhiyan v Union of India case (2022) by a 3:2 majority. While this meant breaching the 50% ceiling, the bench held that reservation based on economic criteria is constitutionally permissible.

The EWS reservation is one exception to the 50% rule -- Tamil Nadu’s 69% reservation is the only other, although this was achieved by placing the law, duly approved by the President, in the Ninth Schedule of the Constitution, which is now open to judicial review -- even as challenge to other state laws mandating reservation above 50% is pending consideration before the court.

The caste census, which is a scientific enumeration by the Union government , may well meet the criteria set by the Supreme Court.