Should Reservations Exceed The 50% Cap?

The leader of the opposition in Bihar has declared that if voted to power, their alliance would increase reservation to 85%. 

• In another development, the Supreme Court has issued notice to the Union government on a petition demanding the introduction of a ‘system’ similar to the ‘creamy layer’ for reservations among the Scheduled Castes (SC) and Scheduled Tribes (ST).

Constitutional Provisions on Reservation

• Equality and Special Provisions: Articles 15 and 16 guarantee equality in education and public employment but also empower the state to make special provisions for OBCs, SCs, and STs.
• Present Reservation Structure: At the central level, OBCs enjoy 27%, SCs 15%, STs 7.5%, and EWS 10% reservation, making the total 59.5%.
  • Variation Across States: States follow different reservation percentages depending on their demographic realities and specific policies.

Judicial Pronouncements on Reservation

• Balaji versus State of Mysore (1962) : The Supreme Court noted that reservations under Articles 15 and 16 for backward classes should be ‘within reasonable limits’ and should be adjusted with the interests of the community as a whole. 
  • The court further ruled that such special provisions for reservation should not exceed 50%. 
    • This is seen as an endorsement of formal equality where reservations are seen as an exception to equality of opportunity and hence cannot exceed 50%.
• State of Kerala versus N. M. Thomas (1975): The Court ruled that reservations are not exceptions but a continuation of equality; however, it did not rule on the validity of the 50% ceiling.
• Indra Sawhney Case (1992): A nine-judge bench upheld the 27% OBC quota, reaffirmed the 50% ceiling except in exceptional situations, and introduced the concept of the ‘creamy layer’ within OBCs.
• Janhit Abhiyan Case (2022): The Court upheld the validity of the 10% EWS quota, recognised economic criteria as a ground for reservation, and clarified that the 50% limit applies only to backward class quotas.
• State of Punjab versus Davinder Singh (2024): Four judges of a seven-judge Bench impressed upon the Central government the need to frame suitable policies for the exclusion of ‘creamy layer’ in SC and ST reservations. 
  • However, the Central government in a cabinet meeting in August 2024 reaffirmed that the ‘creamy layer’ does not apply to reservations for SCs and STs.

Competing Arguments on Reservation Policy

• Ambedkar’s Caution: Ambedkar justified reservations but emphasised they should be confined to minorities so that equality of opportunity is preserved.
• Demand for Higher Quotas: There is a growing demand to raise reservation beyond the 50% ceiling in proportion to the population of backward classes, which necessitates a caste census.
• Unfilled Vacancies: Around 40–50% of reserved seats for OBCs, SCs, and STs in central government jobs remain vacant, showing ineffective implementation.
• Concentration of Benefits in OBCs: The Rohini Commission found that 97% of OBC reservation benefits went to about 25% of sub-castes, while nearly 1,000 communities had no representation.
• Concentration in SCs/STs: Similar unequal distribution exists among SCs and STs, but these groups currently have no creamy layer exclusion unlike OBCs.
• Criticism of Creamy Layer for SCs/STs: Critics argue that applying a creamy layer to SCs and STs may worsen backlog vacancies, which could later be converted into unreserved seats, depriving these groups of rightful representation.
  

Way Forward

• Constitutional Limitation: Increasing reservation up to 85% may be viewed as violating the fundamental right to equality of opportunity.
• Need for Substantive Equality: Affirmative action remains essential to uplift historically marginalised and underprivileged communities.
• Role of Census 2027: The caste enumeration in the 2027 Census should form the basis for wide-ranging consultations with all stakeholders to determine a suitable level of reservation.
• Sub-Categorisation of OBCs: There is a need to implement sub-categorisation among the OBCs as per the Rohini Commission report based on Census data.
• Two-Tier System for SCs/STs: With respect to SCs and STs, as demanded in the plea before the Supreme Court, a ‘two-tier’ reservation system may be considered.
  • Under such a scheme, priority would be given to more marginalised sections before extending it to those who are relatively well-off within those communities. 
  • These measures would ensure that benefits of reservation reach the more marginalised among the underprivileged in successive generations.
• Beyond Reservation Measures: Given the limited scope of public sector employment, reservation alone cannot satisfy societal aspirations.
  • The government must actively promote skill development and employment-generation programmes to enable young people to secure meaningful livelihoods.

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