The 100% reservation judgment: Continuing confusion in India’s Affirmative Action jurisprudence

Recently, a Constitution Bench of the Supreme Court ruled that the provision for 100% reservation of Schedule Tribes for the post of teachers in schools in scheduled areas, was unconstitutional.

The judgment raised many issues, but this article will mainly discuss how the Court dealt with the 100% reservation aspect and the discussion on merit/efficiency.

Quantum of Reservation

The appellants argued that reservations under Article 16 of the Constitution could not exceed 50% due to court decisions, and that 100% reservation is also against the wishes of the Constitution framers.

The respondents argued that the 50% rule can be relaxed in appropriate cases, like the one in hand. They further contended that Schedule V, which has provisions for administration of Scheduled Areas and Tribes, is a special class which has to be dealt with as a code in itself.

The Court held that Part 5 of Schedule V, which allows the Governor to modify the application of any law to schedule areas, does not override Fundamental Rights.

Regarding the 100% reservation rule, it relied on the Indra Sawhney judgment to emphasize that the founding fathers never envisaged reservation of all seats. The 50% limit is the rule, which can be relaxed in exceptional cases but with extreme caution.

It also relied on MR Balaji and M Nagraj, to reiterate that total reservations in favor of the disadvantaged could not exceed 50%. It held that 100% reservation for scheduled tribes was also discriminatory towards both the other disadvantages castes, and the open category.

This case continues the contradiction in India’s affirmative action jurisprudence. The 50% rule, which was first manifested in MR Balaji, seemed to be on the understanding of that time that Article 16(4) was an exception to Article 16(1). However, this changed with NM Thomas and later Indra Sawhney, which held that Article 16(4) was not an exception of Article 16(1), but a facet of it.

Then, the 50% limit seems to have no conceptual justification (see here for an elaborate discussion) and the Court in this case, like in the previous ones, fails to give an explanation.

Furthermore, the exact position of the Court in this judgment is even more confusing. It recognizes that Article 16(4) is not an exception to Article 16(1) but a part of equality (para 103). However, it subsequently cites R Chitralekha’s case and observes that reservation is an exception to the general rule and the quantum of reservation should not be excessive and societally injurious (para 116).

Hence, it is unclear as to what the Court means, since the above statements seem contradictory.

In addition to the uncertainty regarding the justification of the 50% limit, it is equally unclear as to what would be an exceptional situation permitting breach of the 50% limit.

One exception could have very well been the special provisions in the Constitution related to Schedule V areas, which the Court rejected. If the Court had held that 100% is excessive and used the principle of proportionality to reduce it, it would have been a different case. However, here, the Court was clear that the 50% mark cannot be breached even for scheduled areas governed by Schedule V. Then what could the exception be?

The Court mentions the case of Rakesh Kumar, where the 50% limit was breached for reservation in Panchayats. However, the Court correctly pointed out that this case was under Article 243D and not 16(4). Hence, it could not be an exception to the 50% limit.

There are two other instances where the 50% limit has been breached. First, the 69% reservation in Tamil Nadu,which is a special case since the law was placed in the Ninth Schedule by a constitutional amendment and its validity is still pending before the Apex Court.

Second, the 10% economic reservation, which is different, since it’s a constitutional amendment and hence is only subject to a basic structure challenge that is also pending in the Apex Court.

Hence, there is no clarity as to what are the exceptional circumstances to breach the 50% rule. In absence of a conceptual justification for the 50% limit, a convincing determination of these exceptional circumstances would continue to be difficult.

Merit/efficiency

The appellants also argued that if 100% reservations were provided, merit would be ignored and whittled down, which would lead to the standard of education being compromised. It seems that the Court accepted the argument. It observed that 100% reservations ignore merit, that it would weaken the merit and standard of education imparted in schools, and that the ideal approach is selection of teachers on merit (para 131).

Furthermore, its observations that merit cannot be denied in toto by providing reservations (para 133) and that a balance has to be maintained between affirmative action and merits (para 113), show that the Court accepted the appellant’s argument. Interestingly, the court made such observations even though it mentioned that Indra Sawhney laid down that reservations are not anti-meritarian (para 104, c).

Not long before, a two-judge bench of the Supreme Court had critiqued the concept of efficiency and merit in BK Pavitra v. Union of India. In that case, the Court critiqued the stereotypical assumption that candidates from categories of SC/ST are not efficient and observed,

“...the benchmark for the efficiency of administration is not some disembodied, abstract ideal measured by the performance of a qualified open category candidate.”

In that judgment, the Court challenged the standards that measure individual merit without consideration of their group affiliations to account for structural inequalities. Bhatia emphasized on the importance of this decision while observing that,

“...it joins an important tradition of judicial reasoning on affirmative action that does not take concepts of “merit” and “efficiency” as self-evident, but subjects them to critical evaluation, from the perspective of the original constitutional vision, noting how they are embedded within our social realities (and inequalities). This tradition of reasoning has, so far, been underdeveloped in our constitutional history – and today’s judgment marks an important milestone in its evolution.”

However, the approach of the present Constitution Bench is in stark contrast to the one in BK Pavitra’s Ccse. The Court’s repeated mention of terms like ignoring merits, weaken the merits, shows an approach that takes the idea of merit and efficiency as self-evident. The contrasting approach in both cases show the murkiness of the jurisprudence regarding merit/efficiency.

The author is a fourth year student at NALSAR University of Law, Hyderabad.