THE 50% CEILING: BULWARK OF SUBSTANTIVE EQUALITY OF

OPPORTUNITY

INTRODUCTION

The Constitution of India aspires to secure equal opportunity for all its citizens. Articles

15(1), 15(2), 16(1), and 16(2) embody and concretise this vision of equality by prohibiting

discrimination and guaranteeing equality of opportunity to all citizens. On the other hand, the

Constitution also recognises that colour-blind equality will only perpetuate the discrimination

and disadvantage faced by the historically depressed and socially backward classes of

individuals, making equal opportunity all but a hollow promise. Accordingly, the equality

code has been augmented with explicit provisions for affirmative action, such as Articles

15(4) and 16(4), to abide by the principle of individual equality in its deepest sense and

secure substantive equality of opportunity for all. Reservations in public education and

employment are instances of such affirmative action.

The Indian State has actively shaped the reservation policy through its wide legislative,

executive, and constitutional amendment powers. Although the Judiciary has largely deferred

to the State in such matters, it has taken a few steps to check the violation of constitutional

values and prevent the attempts of various governments to weaponize reservation policy by

using it to gain political patronage. The 50% ceiling is one such step. Recently, this ceiling

has come under renewed scrutiny since the Supreme Court has used it to quash the

reservations granted to the Maratha community in Maharashtra.

In this context, the wide powers of the State and the limited scope of judicial review vis-à-vis

the reservation policy, along with the shifting jurisprudence on the 50% ceiling, give rise to a

complex web of questions. For instance, what are the principles guiding the reservation

policy under the equality code? How has the Judiciary used its powers to uphold these

1
principles? What is the 50% ceiling and how has it evolved over the years? How has the 50%

ceiling been applied? And most importantly, does the 50% ceiling protect or hinder the

equality guaranteed by the Constitution? These are some of the questions that I will answer

through this essay.

In Part 1 of this essay, I analyse the values guiding the equality code contained within Part III

of the Constitution. I argue that the code requires harmonisation of the dual objectives of

substantive equality of opportunity – creating a level playing field and breaking cycles of

disadvantage linked with group association. In Part 2, I trace the origin of the 50% ceiling,

which was introduced as a judicial attempt to harmonise the aforementioned objectives, and

its evolution from an impenetrable ceiling to a flexible policy directive. I argue that in so

evolving, the ceiling has shifted away from its earlier formalistic conceptualisation of

equality towards a more substantive understanding of equality of opportunity. In Part 3, I

argue that the ceiling is no longer a straight-jacket formula for determining the permissible

quantum of reservations by analysing some of the judgments where it has been applied.

Accordingly, I submit that the current version of the 50% ceiling is flexible and provides for

reservations higher than 50% if so required. In Part 4, I argue that the ceiling achieves the

harmonization required by the equality code by mandating the State to develop reservation

policies per constitutional values and ensuring such compliance through judicial review. In

Part 5, I address the various criticisms of the 50% ceiling with a specific focus on the

argument that it is an instance of judicial overreach. I argue that the Judiciary has guarded the

usurpation of reservation policies by majoritarian urges and that the 50% ceiling has played a

major role in doing so. Then, I demonstrate the instrumental role of the ceiling in

safeguarding the interests of several communities against the backdrop of majoritarian

reservation policies, in Part 6. Finally, I conclude by submitting that the 50% ceiling has

2
protected the equality guaranteed by the Constitution and is hence, an indispensable part of

the equality code.

1. EQUALITY AND THE INDIAN CONSTITUTION

While the principle of equality is a fundamental tenet of most democratic societies today, it

remains an elusive concept when it comes to widespread agreement on its meanings and

aims.1 For some, equality means treating everyone alike; for others, equality inheres in the

equality of outcomes; and, for some others, equality may revolve around the equality of

opportunity.2 These three categories are not exhaustive of all the different ways equality has

been conceived, but they do reflect the underlying frameworks of the equality codes of most

jurisdictions today.3

Increasingly, jurisdictions have combined elements from various conceptions of equality to

form their equality codes and reinforce their constitutional values, since no one conception

can claim to be the ultimate basis for grounding all anti-discrimination measures.4 It is

apposite to say, then, that “the choice between (such) formulations and conceptions is not one

of logic but of values and policy.”5 Accordingly, we must look at the values and policy

directives contained within the Constitution to determine the values and policy which should

guide the equality code and its concomitant anti-discrimination measures.

1
Sandra Fredman, Discrimination Law (2nd ed., OUP 2011) 1 (hereinafter, ‘Fredman’); IM Young, Justice and
the Politics of Difference (Princeton University Press 1990).
2
ibid; See B Hepple, ‘The Aims of Equality Law’ [2008] 61 Current Legal Problems 1 – 22.
3
Fredman 1 -25.
4
Fredman 2.
5
ibid.

3
The Preamble to the Constitution secures to all its citizens equality of status and opportunity.6

Article 16 builds upon this promise by granting to all citizens the fundamental right to

equality of opportunity in matters of public employment.7 Thus, it is quite evident that the

drafters of the Constitution selected ‘equality of opportunity’ as the cornerstone for

incorporating and promoting equality within the Indian society.8 This foundation has been

supplemented by certain elements of the ‘equality of outcomes’ doctrine to ensure that

substantive equality of opportunity is achieved.9 I will now analyse the significance of these

principles and their application within the Constitution.

Equality of Opportunity is an idea that people ought to be able to compete on equal terms,

i.e., it is about genuinely open competition, devoid of any barriers, prejudices, or

preferences.10 In this regard, it also recognises that equal competition against the background

of past and structural discrimination can perpetuate disadvantage, i.e., true equality cannot be

achieved if individuals begin the race from different starting points.11 Accordingly, this

conception of equality aims to equalize the starting points for all – instead of treating

everyone alike or seeking to equalize the end results.12 This is usually done by taking

remedial measures to ensure that individuals from “all sections of the society have a

genuinely equal chance of satisfying the criteria for access to a particular social good”,13 such

6
The Constitution of India 1950, Preamble.
7
The Constitution of India 1950, Art. 16.
8
See Chandrachud J. in Indira Nehru Gandhi v. Raj Narain 1976 (2) SCR 347.
9
Williams, ‘The Idea of Equality’ in P Laslett and WG Runciman (eds.), Philosophy Politics and Society
Second Series (Blackwell 1965) (hereinafter, ‘Williams’); The Constitution of India 1950, Arts. 15(4), 16(4).
10
Richard Arneson, ‘Equality of Opportunity’ in Edward Zalta (eds.), Stanford Encyclopaedia of Philosophy
(Summer 2015); Andy Mason, ‘Equal Opportunity’ (Encyclopaedia Britannica, 2019).
11
Sandra Fredman, ‘Substantive Equality Revisited’ [2016] 14(3) International J. of Constitutional Law 712.
12
Williams, pp 125 – 126; Fredman 18.
13
ibid.

4
as ensuring universal education, equal access to public facilities, etc., and providing certain

exemptions/relaxations for individuals belonging to the deprived sections of the society to

bring them on an equal footing with the others.14

However, there are a few problems with the formal conception of equality of opportunity.

First, it traditionally rejects policies that aim to correct imbalances in the society through

reservations/quotas for benefitting individuals belonging to deprived sections.15 Second,

while this model may remove obstacles in the path of advancement of such deprived sections,

it does not guarantee that this will lead to greater substantive fairness in the resulting access

to a particular social good.16 Third, it may perpetuate the existing criteria of merit, which

often reflect and reinforce the extant patterns of disadvantage.17 Hence, formal equality of

opportunity can only be a partial basis for grounding an equality code that aims to achieve

substantive equality.18

Being cognizant of these limitations, the drafters supplemented the equal opportunity model

with some features of equality of outcomes. Article 16(4) is a prime example of such

supplementation; the drafters provided for reservations to ensure greater substantive fairness

in the resulting access. In doing so, they had to choose the objective of such reservations, i.e.,

whether reservations should lead to proportionate representation of backward classes or

something else. Proportionate representation is about equal outcomes and requires that the

14
ibid.
15
Williams 110; Fredman 18.
16
ibid. For example, mandatory qualification requirements for a particular job will continue to exclude those
who lack these requirements as a result of past discrimination.
17
B Hepple, ‘Discrimination and Equality of Opportunity – Northern Irish Lessons’ (1990) 10 OJLS 408, 411;
Fredman 236. For example, merit criteria which stresses on continuous work history will be detrimental to
women since they may have to temporarily leave the workforce to bring up children.
18
Fredman 19.

5
spread of backward classes in educational institutions/workforce should reflect their

proportions in the population as a whole.19

The drafters rejected proportionate representation as the objective for reservation policies, as

is made explicit by comparing the phraseology of Article 16 with Articles 330(2) and 332(3),

which provide for proportionate representation of SCs and STs in legislative bodies.20 I

believe that the reasons for such rejection were that a) proportionate representation

completely subordinates the right to individual equality through its utilitarian emphasis on

outcomes,21 b) it does not necessitate any fundamental re-examination of the structures

perpetuating discrimination,22 and c) it is a mathematical impossibility since the Indian

society is finely sliced into thousands of castes, sub-castes, and related identifiers.

Instead, the drafters chose ‘adequate representation’ of backward classes as the objective of

reservations under the equality code.23 I submit that this was the correct decision since

adequate representation does not affix any inflexible norms for determining the quantum of

reservations.24 Under it, quotas can be expanded or contracted as per the specific needs of the

backward classes, without having to adhere to the strict limits of population proportions.25

Accordingly, the percentage of seats reserved for a particular backward class can be more

than its share in the population if the State is of the opinion that it has not been adequately

19
Fredman 15 – 16.
20
See The Constitution of India 1950, Arts. 16(4), 330(2), and 332(3).
21
Fredman 18: Utilitarianism correlates to a socio-legal conception where the overemphasis on results, and the
principle of distributing equal proportions of a resource, can mask the unfairness inherent in the process of
achieving these results.
22
Fredman 16, For example, women who achieve positions in the workplace may do so “by conforming to
“male” working patterns, contracting out their childcare obligations to other women, who remain as underpaid
and undervalued as ever.”
23
See The Constitution of India 1950, Art. 16(4).
24
See Kailash Jeenger, ‘Reservation is About Adequate Representation, Not Poverty Eradication’ (The Wire, 18
May 2020) <https://thewire.in/law/supreme-court-bench-reservation> accessed 29 June 2021.
25
ibid; Reddy J. in Indra Sawhney v Union of India AIR 1993 SC 477.

6
represented in the services and vice-versa.26 The reservation for Scheduled Tribes in the

north-eastern states provides a good example of the State’s discretion in this regard - while

69% and 94% of the population belongs to STs in Arunachal Pradesh and Mizoram

respectively, 80% of the seats have been reserved in both these states to achieve adequate

representation of the ST candidates.27 Such adequate representation ensures that backward

classes can access State power and share it with the upper classes,28 redressing past

disadvantage, opening up new perspectives on decision making, casting light on several

structural assumptions, and enhancing the store of social knowledge.29

Equality, then, is about creating a level-playing field whilst breaking the cycle of

disadvantage linked to status or group association, as per the Constitution. Harmonization of

these dual objectives has made the co-existence of equality of opportunity and strong

affirmative action possible in India, creating a framework conducive to achieving substantive

equal opportunity.

2. THE ORIGIN AND EVOLUTION OF THE 50% CEILING

In an attempt to harmonise the aforementioned objectives of substantive equal opportunity,

the Judiciary introduced the 50% ceiling on reservations. The ceiling first appeared in M.R.

Balaji v. State of Mysore30 and has been a permanent fixture of reservation jurisprudence ever

since. Its meaning, however, has not remained static; changes in the Judiciary’s understanding

of substantive equal opportunity have led to several modifications to the ceiling over the

26
See Iyer J. in State of Kerala v. N.M. Thomas 1976 (2) SCC 310; ibid.
27
See State of Arunachal Pradesh v. Solien Phukan 2007 (4) GLT 321.
28
Supra 26.
29
Fredman 259, 266 -268; Action Travail des Femmes v. Canadian National Railway Co. [1987] 1 SCR 1114.
30
M.R. Balaji v. State of Mysore AIR 1963 SC 649.

7
years. These constant changes necessitate that the evolution of the 50% ceiling be traced to

identify its contemporary meaning and scope. Accordingly, I will now scrutinize the key

judgments that have shaped the 50% ceiling.

As noted above, the Supreme Court first introduced the 50% ceiling in M.R. Balaji v. State

of Mysore (‘Balaji’).31 In Balaji, a 5-judge bench dealt with the challenges against State of

Mysore’s order reserving 68% seats in educational institutions for backward classes. The

Court held that the reservation of 68% seats is inconsistent with the special provisions

authorised by Article 15(4) since it completely ignores the interests of the other citizens in the

society. The Court, upon equating 15(4) and 16(4),32 held that reservations under these

Articles must be within reasonable limits, i.e., the interests of the weaker sections of the

society have to be adjusted with the interests of the community as a whole. It held that,

“(s)peaking generally and in a broad way, a special provision should be less than 50%; how

much less than 50% would depend upon the relevant prevailing circumstances in each

case.”33

The Court reasoned that the State should not provide for unreasonable, excessive, or

extravagant reservations under Article 16 because that would have the effect of destroying the

equality of opportunity contained in 16(1), and would also eliminate general competition in a

large field.

31
ibid.
32
ibid p.37.
33
ibid p.34.

8
A year later, another 5-judge bench, by a 4:1 majority, held that the ‘carry-forward rule’34 is

unconstitutional since it allows the State to reserve more than 50% of the vacancies in a

particular year, in T. Devadasan v Union of India (‘Devadasan’).35

Interpreting Balaji, the court held that, “(a) proviso or an exception cannot be so interpreted

as to nullify or destroy the main provision. To hold that unlimited reservation of

appointments could be made under cl. (4) would in effect efface the guarantee contained in cl.

(1) or at best make it illusory.”36 It reasoned that the method evolved by the State to reserve

seats under 16(4) must strike a balance between the claims of the backward classes and

claims of other classes to effectuate the guarantee under 16(1).

In summary, the 50% limit in Balaji and Devadasan was based on the premise that Articles

15(4) and 16(4) are exceptions to Articles 15(1) and 16(1), and that there must be a limit on

these exceptions.

However, Justice Subba Rao dissented in Devadasan and held that the carry-forward rule

would not amount to a violation of 16(1) unless it is “established that an unreasonably

disproportionate part of the cadre strength is filled up with the said Castes and Tribes.”37 He

held that the expression ‘nothing in this article’ employed in 16(4) “is a legislative device to

express (drafters’) intention in a most emphatic way that the power conferred thereunder is

not limited in any way by the main provision but falls outside it. It has not really carved out

an exception, but has preserved a power untrammelled by the other provisions of the

34
See The Constitution of India 1950, Art. 16(4B); The State can ‘carry-forward’ reserved seats for backward
classes that remain unfilled to the subsequent years.
35
T. Devadasav v. Union of India AIR 1964 SC 179.
36
ibid p.18.
37
ibid p.31.

9
Article.”38 Accordingly, he interpreted the 50% ceiling adopted in Balaji to be a workable

guide and not an inflexible rule of law.39

This was the first instance where a Supreme Court judge was treating the reservation

provisions as an expression of the larger equality principle, and not as an exception to it.

Accordingly, it marked a shift in the constitutional understanding of equal opportunity and

the 50% ceiling.

The shift continued in 1975 when a 7-judge bench, in State of Kerala v. N.M. Thomas

(‘N.M. Thomas’),40 heard challenges against a rule which temporarily exempted SC & ST

employees from passing the qualifying tests mandated for being promoted from the Lower to

the Upper Division Clerk level. The Court held that such an exemption was constitutionally

valid.

While 5 of the 7 judges did not explicitly comment on the 50% ceiling since the impugned

rule did not provide for any reservations, the majority held that 16(4) was an “emphatic

restatement” of 16(1). The other 2 judges, Justices Fazal Ali and Krishna Iyer approved

Justice Subba Rao’s previous dissent and expressed doubt on the rigidity of the 50% limit on

reservations.

Justice Ali held that 16(1) permits classifications and is akin to Article 14 which “implicitly

permits classification in any form provided certain conditions are fulfilled.”41 Hence, 16(4),

which is a specific form of classification, is not an exception to 16(1) and is rather a part and

38
ibid p.26.
39
Relying upon the dissent of Justice Wanchoo in General Manager, Southern Railway v. Rangachari AIR 1962
SC 36.
40
State of Kerala v. N.M. Thomas 1976 (2) SCC 310.
41
ibid p.185.

10
parcel of 16(1). Accordingly, he held that the State is empowered to make reservations under

16(4) provided that the following conditions are strictly met;

- That the class for which reservation is made must be socially and educationally

backward.

- That the class for which reservation is made is not adequately represented in the

services under the State.

- That the reservation should not be made at the cost of efficiency.

- That the reservation must not be too excessive so as to destroy the very concept of

equality.

While explaining the last condition, he observed that the 50% ceiling was largely a rule of

caution and did not exhaust all categories.

Justice Iyer concurred with Justice Ali and held that 16(4) is an “illustration of

constitutionally sanctified classification”42 under Article 16 and “reconciles the claims of

backward people and the opportunity for free competition the forward sections are ordinarily

entitled to.”43

However, since the legality of the 50% ceiling was not in question in N.M. Thomas, the

opinions of Justices Ali and Reddy against the impenetrable ceiling were obiter.

Consequently, the 50% ceiling as envisaged in Balaji and Devadasan continued to operate

even after these judgments, despite a marked shift in the constitutional understanding of the

nature of Articles 15(4) and 16(4).

42
ibid, p.136.
43
ibid; However, Iyer J. later upheld the constitutionality of the 50% ceiling later in Akhil Bharatiya Soshit
Karamchari Sangh (Railway) v. Union of India (1981) 1 SCC 246.

11
This changed in 1992, when a 9-judge bench was called upon to decide the validity of the

executive orders reserving 27% seats for Other Backward Classes (OBCs),44 in Indra

Sawhney v Union of India (‘Indra Sawhney’).45 In this context, the Court also reconsidered

the meaning and the constitutional validity of the 50% ceiling in light of the opinions

expressed in Balaji, Devadasan, and N.M. Thomas.

Seven out of nine judges clearly held that 16(4) is a facet of 16(1), and it was declared that

“the view taken by the majority in Thomas is the correct one”.46

Justice Jeevan Reddy, writing for himself and Justices Kania, Venkatachaliah and Ahmadi,

held that the power conferred by 16(4) should be exercised in a “fair manner and within

reasonable limits”.47 He held that the protection under 16(4) has to be harmonised with the

guarantee of equality enshrined in 16(1). He also observed that 16(4) envisages adequate, and

not proportionate, representation and that the drafters of the Constitution never intended to

reserve a majority of the seats. Accordingly, he held that reservations contemplated under

16(4) should not generally exceed 50%, unless an extraordinary situation exists.48 The

opinion called for “extreme caution” to be exercised and a “special case made out” when

providing high reservations.49

In a similar vein, Justice Sawant held that “the reservations kept both under Article 16(1) and

16(4) together should not exceed 50 per cent of the appointments in a grade, cadre or service

44
See Aneesha Mathur, ‘Mandal Commission Report, 25 years later’ (The Indian Express, 01 September 2015)
<https://indianexpress.com/article/india/india-others/sunday-story-mandal-commission-report-25-years-later/>
accessed on 29 June 2021.
45
Indra Sawhney v Union of India AIR 1993 SC 477.
46
M.H. Kania, C.J., M.N. Venkatachaliah, S.R. Pandian, A.M. Ahmadi, Kuldip Singh, P.B. Sawant, and B.P.
Jeevan Reddy, JJ.
47
Supra 46, 299.
48
ibid.
49
ibid.

12
in any particular year. It is only for extraordinary reasons that this percentage may be

exceeded. However, every excess over 50 per cent will have to be justified on valid grounds

which grounds will have to be specifically made out.”50 Accordingly, the 50% ceiling could

be breached if the State could make out a special case of the existence of extraordinary

circumstances to justify such breach.

Therefore, the Court first materially changed the meaning of the 50% ceiling, from

impenetrable to flexible, and then upheld its constitutional validity. NM Thomas and Indra

Sawhney explicitly rejected the exception paradigm of Balaji and Devadasan, and redesigned

the 50% ceiling as a flexible one to reflect this rejection.

In the wake of Indra Sawhney, several constitutional amendments were made to override the

Court’s holdings concerning reservations in promotions.51 Through one such amendment, the

legislature introduced Article 16(4B) which allowed the application of the ‘carry-forward’

rule to reservations in promotions.52 Accordingly, the State could now carry forward unfilled

vacancies from previous years and provide for reservations in promotions exceeding 50% of

the total seats opened.

Such amendments were challenged before a 5-judge bench in M. Nagaraj v Union of India

(‘Nagaraj’),53 including the amendment which introduced Article 16(4B).54 The Court upheld

the validity of this amendment by holding that it does “not obliterate any of the constitutional

requirements, namely, ceiling-limit of 50% (quantitative limitation), the concept of creamy

layer (qualitative exclusion), the sub-classification between OBCs on one hand and SCs and

50
ibid 305.
51
77th [Article 16(4A)], 81st [Article 16(4B)}, 82nd [Proviso to Article 335], and 85th [Consequential
Seniority] Constitutional Amendments.
52
Supra 34.
53
M. Nagaraj v Union of India (2006) 8 SCC 212.
54
Supra 34.

13
STs on the other hand”55 since unfilled vacancies are a separate class of vacancies and are not

to be considered the same as vacancies of the particular year in which they are being filled up

to determine and apply the 50% ceiling.

However, in so doing the Court opined that the State must see that its reservation provision

does not lead to excessiveness and should collect ‘sufficient’56 “quantifiable data showing

backwardness of the class and inadequacy of representation of that class in public

employment.” This echoes the concern of misuse of the powers under 16(4) to provide

reservations which functioned less as instruments to redress inequality and more as a ploy for

vote-bank politics,57 and seems to be in line with Justice Reddy’s appeal for the exercise of

“extreme caution” and the requirement of “special case made out” before providing high

reservations, in Indra Sawhney.58

Perusing these judgments makes it clear that the 50% ceiling has come a long way – from its

origins in Balaji and Devadasan, rooted in a formalistic conceptualisation of equality, to

Indra Sawhney and Nagaraj, which together expanded the scope of substantive equal

opportunity within the equality code.

Before Indra Sawhney, the rule was simple – reservations will always be less than 50% per

Articles 15(4) and 16(4), how much less would depend on the given circumstances. The

Court in Indra Sawhney turned this interpretation on its head by holding that there can be

certain extraordinary situations where more than 50% of the seats can be reserved – the 50%

ceiling was no longer impenetrable. Nagaraj took this a step further by upholding the

55
ibid 278.
56
Instances of determining if the data is sufficient can be found in BK Pavitra v. Union of India AIR 2019 SC
2723 and Jaishri Laxmanrao Patil v. Chief Minister, Maharashtra C.A. No. 3123 of 2020 (Supreme Court).
57
Supra 49; See Ashoka Kumar Thakur v. Union of India (2008) 6 SCC 1.
58
Supra 49.

14
constitutional validity of the carry-forward rule, which was previously viewed as antithetical

to the 50% ceiling (even in Indra Sawhney).

Having understood the evolution of the 50% ceiling, I will now look at some of the cases

where it has been applied to understand its true import.

3. 50% CEILING AND THE EXTRAORDINARY CIRCUMSTANCES

Justice Reddy had noted in Indra Sawhney that, “it might happen that in far-flung and remote

areas the population inhabiting those areas might, on account of their being out of the

mainstream 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 (‘50% ceiling’) may

become imperative.”59 Accordingly, several relaxations to the 50% ceiling have been made

for classes of people living in remote areas of country. The following sub-sections provide

examples of such relaxations.

North-Eastern States and Andaman & Nicobar Islands

In Arunachal Pradesh, Meghalaya, Mizoram, and Nagaland, 80% of State Government jobs

have been reserved for individuals belonging to STs.60 Such high reservation has been

provided keeping in mind that STs comprise a majority of the population in all these states.61

Similarly, the Supreme Court in Parents Association v. Union of India has upheld the

reservation of 70% of the seats in educational institutions for several classes of residents in

59
Supra 45, p.810.
60
Supra 27; See Notifications of the respective State Legislatures/Governors: Arunachal Pradesh -
https://www.arunachalpradesh.gov.in/wp-content/uploads/extraordinary_gazette/1548230977_494%20EOG%20
No.%20494%202018%20Adve%20Refomrs.pdf; Meghalaya -
http://megpns.gov.in/gazette/2013/06/13-06-13-IIA.pdf; Nagaland -
https://dpar.nagaland.gov.in/reservation-of-80-of-all-appointments-or-posts-under-the-govt-of-nagaland-clarifica
tion-thereof/.
61
ibid.

15
Andaman & Nicobar Islands.62 The Court observed that the high reservation was justified due

to the absence of educational opportunities for the concerned classes over several decades,

given the remoteness and underdevelopment of the area.63

Hence, high reservations provided to residents of the above-mentioned states and islands fit

Justice Reddy’s conceptualisation of ‘extraordinary circumstances’ satisfactorily since these

groups inhabit far-flung and remote areas and are virtually out of the mainstream of national

life. This might also explain why the reservations in the North-eastern states have not faced

any major judicial challenges despite years of operation.

Fifth Schedule Areas

Although the 50% ceiling relates to Articles 15 and 16, its principles have been applied to

decide several cases relating to local self-government under the Fifth Schedule of the

Constitution.64 These cases dealt with state legislations reserving more than 50% of the seats

for ST candidates in the Panchayats of Scheduled Areas,65 enacted to give effect to the

Panchayats (Extension to Scheduled Areas) Act, 1996 and Articles 243D and 243T of the

Constitution.66

While 243D and 243T only provide for proportionate representation, the state legislations

provided reservations which were often more than the proportion of STs in the total

62
Parents Association v. Union of India AIR 2000 SC 845.
63
ibid.
64
See Ashok Kumar Tripathi v. Union of India 2000 (2) MPHT 193; Union of India v. Rakesh Kumar (2010) 4
SCC 50.
65
See The Constitution of India, Art. 244.
66
The Panchayats (Extension to Scheduled Areas) Act, 1996; The Constitution of India 1950, Arts. 243D and
243T.

16
population.67 Therefore, on a plain application of the text of 243D and 243T, these

reservations should have been invalidated. However, the Court took into consideration the

criteria for declaring any area as a “Scheduled Area” under the Fifth Schedule, including

preponderance of tribal population and marked economic backwardness of the area as

compared to neighbouring areas,68 and invoked the ‘extraordinary circumstances’ proviso to

the 50% ceiling in its application of 243D and 243T. Accordingly, it validated the high

percentage of reservation in Scheduled Areas. 69

While doing so, the Court added a caveat that when providing such high reservations, the

State is also responsible to account for the interests of the other deprived classes, in Union of

India v. Rakesh Kumar (‘Rakesh Kumar’).70

Apart from cases dealing with reservation in local self-government in Scheduled Areas, the

Court has also dealt with a case concerning employment under Article 16 in such areas.71 In

Chebrolu Leela Prasad Rao v. State of Andhra Pradesh (‘Chebrolu Leela’),72 the Supreme

Court overruled the Andhra Pradesh Governor’s order reserving 100% of the posts of

teachers for ST candidates in Scheduled Areas of the state. 73

Invalidating such complete reservation, the Court held that “by providing hundred percent

reservation to the scheduled tribes has deprived the scheduled castes and other backward

67
ibid.
68
Ministry of Tribal Affairs, Government of India, ‘Declaration of the Fifth Schedule’
<https://tribal.nic.in/Clm.aspx> accessed on 29 June 2021.
69
Supra 64.
70
Supra 64: Rakesh Kumar.
71
Chebrolu Leela Prasad Rao v. State of Andhra Pradesh (2020) SCC Online SC 383.
72
ibid.
73
ibid.

17
classes … of their due representation.”74 It held that “a reservation that was permissible by

protective mode, by making it hundred percent would become discriminatory and

impermissible. The opportunity of public employment could not be denied unjustly to the

incumbents, and it was not the prerogative of few. The citizens had equal rights, and the total

exclusion of others by creating an opportunity for one class was not contemplated by the

founding fathers of the Constitution of India.”75

Accordingly, it is logical to say that the Court was not opposed to the high reservations

provided to STs in Scheduled Areas in Chebrolu Leela, but was against the complete

exclusion of all the other classes, including SCs & OBCs, residing in these areas. This is in

line with the Court’s caveat in Rakesh Kumar where it had held that the State must account

for the interests of the other deprived classes while making reservations for STs in these

areas.

The position that emerges out of these decisions is that Scheduled Areas come under the

‘extraordinary circumstances’ proviso to the 50% ceiling and therefore, more than 50% of the

seats can be reserved for the disadvantaged communities, especially the STs, in such areas. In

formulating any reservation policy, the interests of the other backward classes have to be

taken into consideration. These instances also indicate that the 50% ceiling is very flexible

and provides for higher reservations than 50% if the circumstances necessitate so – the 50%

ceiling is no longer a “Lakshmana Rekha”.76

Equipped with this understanding of the flexible nature of the 50% ceiling, I will now begin

analysing whether this ceiling protects or hinders equality.

74
ibid p.127.
75
ibid p.134.
76
In modern Indian parlance, Lakshmana Rekha refers to a strict convention or a rule - never to be broken.

18
 4. 50% CEILING AS THE GOLDILOCKS SOLUTION

Given reservations’ ameliorative function, the following questions often crop up in

determining how a reservation policy should be formulated: ‘Why should we not reserve all

the seats?’ and ‘Why cap reservations at all?’. 77

As noted before, substantive equal opportunity is premised on genuinely open competition.78

While reserving some seats helps address the various societal barriers inhibiting equal

opportunity, reserving all the seats is antithetical to open competition and is hence, against the

constitutional conception of equality.79 The underlying objective of constitutional

reservations is not to achieve group equality qua groups, but to achieve substantive equality

of opportunity among individuals.80 In this light, reservations are only a means to the end of

achieving equal opportunity, and not an end in themselves.81 Accordingly, reservations must

be capped at the point beyond which they shed their complementary character and begin

abating equal opportunity.

Nevertheless, determining the capping point of reservations is a tall order, one which requires

a deeper appreciation of the nature and objectives of reservations and a careful consideration

of the effects of a reservation policy on both the beneficiaries and the non-beneficiaries.82

Care must be taken that the reservation policy provides candidates belonging to backward

classes a genuine chance of competing on an equal footing with other better-placed

77
See AP Sen, Inequality Re-examined (OUP 1992).
78
Supra 10.
79
ibid; Supra 6; Supra 7.
80
See Marc Galanter, Competing Inequalities: Law and the Backward Classes in India (OUP 1984); Gautam
Bhatia, ‘State of Kerala v. NM Thomas and the Transformation of Equality’ (Indian Constitutional Law &
Philosophy, 01 February 2014) <https://indconlawphil.wordpress.com/tag/affirmative-action/> accessed on 29
June 2021 – “the use of groups is a convenient mechanism to achieve the end goal of individual equality”.
81
See Fredman 278.
82
Fredman 279 – 334.

19
candidates.83 Care must also be taken that categories of candidates are not effectively

excluded from the public education and employment by virtue of their group association.84

Accordingly, it can be said that the act of determining the capping point is a balancing act –

one which balances the various elements of substantive equality of opportunity.85

The various elements of equal opportunity, such as open competition, remedial measures, and

affirmative action, must be balanced with each other to achieve substantive equality of

opportunity.86 Since balance is highly context-specific, the right balance of these elements

would differ from region to region depending upon their unique circumstances.87

Accordingly, the legitimacy of any capping point should be determined by testing whether it

is able to achieve such varying balance(s).

Then, the question is ‘Whether the 50% ceiling achieves this balance?’

The erstwhile version of the 50% ceiling interpreted reservations as an exception to equality

of opportunity and capped them at 50% because exceptions cannot override the rule.

Accordingly, the Court in Balaji and Devadasan held that reservations must remain below

50% at all times. While Constituent Assembly Debates suggest that 16(4) was indeed

envisaged as an exception to the general principle laid down by 16(1) read with 16(2),88 such

an interpretation is rooted in an extremely formalistic conceptualisation of equality and

83
See Rudolf Heredia, Taking Sides: Reservation Quotas and Minority Rights in India (Penguin Books, 2012)
(hereinafter, ‘Heredia’).
84
ibid.
85
Supra 10; Fredman 16.
86
Ibid; Reddy J. in Indra Sawhney, Supra 45 180.
87
ibid.
88
Parliament of India, Constituent Assembly Debates, Vol. VII, 30th November 1948 (Speech of Dr. BR
Ambedkar); P. Rao and Ananth Padmanabhan, ‘Legislative Circumvention of Judicial Restrictions on
Reservations: Political Implications’ [2013] NSLIR Special Issue 53, 68.

20
thereby fails to recognise that 16(1) itself permits reservations and preferential treatment.89

Hence, the previous version of the 50% ceiling did not achieve the right balance.

After Justice Subba Rao’s dissent,90 the Court started tweaking the 50% ceiling to reflect the

true nature of reservations within the equality code. As noted before, the Court in Indra

Sawhney held that the ceiling was flexible and exceptions can be made to breach the 50%

limit. This was further substantiated by the Court in Nagaraj, where it upheld the

constitutionality of the carry-forward rule.

Post these judgments, the rule no longer operates as an automatic bar on any legislation

which reserves more than 50% of the seats. Rather, it signifies the point beyond which the

Judiciary may ask the State to demonstrate why such high reservation is required and

accordingly, determine whether such reservation is excessive by exercising intermediate

scrutiny through judicial review.91 Hence, legislations reserving more than 50% of the seats

are no longer invalidated for simply providing high reservations under the current rule; they

are invalidated if there exist no ‘extraordinary circumstances’ to justify reservations higher

than 50%.

As a result of this shift, the 50% ceiling now serves as a directive for the State to develop and

implement its reservation policies. Through the ceiling, the State has been alerted that it

cannot wantonly reserve seats since it can be asked to provide its reasons for providing such

high reservations. By doing so, the Judiciary has sought to remind the State that it must also

take into account the interests of those who have been excluded while providing reservations

to a particular class.92

89
Supra 39: 16(4) is an emphatic restatement of 16(1) and seeks to make explicit what is already implicit in it.
90
Supra 37.
91
See Supra 56; Gautam Bhatia, ‘Ashoka Kumar Thakur and Tiers of Scrutiny’ (Indian Constitutional Law &
Philosophy, 15 June 2021) <https://indconlawphil.wordpress.com> accessed on 29 June 2021.
92
See Bhat J. Supra 46, pp. 18 – 22; Supra 66.

21
In that sense, such policy directives are largely similar to the approach of South African

Constitutional Court, which requires the State to demonstrate ‘genuine ameliorative

purpose’93 behind its reservation measures and that these measures are reasonably likely to

achieve the end of advancing the interests of those who have been disadvantaged by unfair

discrimination, i.e., arbitrary, capricious, blatantly preferential methods are invalidated

through judicial review.94

Accordingly, the rule does not present any straightjacket formula for determining the

permissible quantum of reservations applicable across the entire country. Instead, it mandates

the State to develop a reservation policy for any given group or region which balances the

need for reservations with the guarantee of open competition. Additionally, it empowers the

Court to look at the unique circumstances of the given groups or regions and determine

whether high reservations are required to ensure their adequate representation. Together these

factors help the current version of the 50% ceiling achieve the balance required to ensure

substantive equality of opportunity. Consequently, Justice Bhat was right in terming the

current version of the 50% ceiling as the “Goldilocks solution” – not too large, not too small,

but just right.95

5. CRITICISMS OF THE 50% CEILING

Several commentators have criticised the 50% ceiling on a variety of fronts, by deeming it as

an arbitrary judicial innovation, an instance of judicial overreach, and an interpretative

93
Fredman 270; See R v Kapp 2008 SCC 41 (Canadian Supreme Court).
94
Minister of Justice v. Van Heerden 2004 (6) SA 121 (CC) pp. 38 - 41; ibid.
95
Supra 92, p.21.

22
checkerboard solution, among other things.96 I will summarise such substantive criticisms

against the 50% ceiling in this section and will then analyse their soundness.

The primary criticism against the 50% ceiling is that it affixes a straight-jacket formula to

determine the quantum of reservations across the country, without taking into account the

specific extent of group disadvantage in a particular region.97 Ergo, the flat figure of 50% is

against the notion of substantive equality.98 This, however, is a mis-conceptualisation since

the present version of the rule does not affix an impenetrable ceiling on the quantum of

reservations and rather provides a flexible policy directive for the State’s reservation policies,

as has been noted in the previous sections.

Additionally, it is also argued that the 50% ceiling is “just a subtler way of rephrasing the

exception paradigm” as propounded in Balaji and Devadasan.99 Gautam Bhatia summarises

this argument well by stating that, “the 50% rule and Article 16(4) being an exception to

Article 16(1), are joined at the hip. If one goes, the other must necessarily go.”100 However,

the current version of the rule explicitly rejects the defining feature of the exception paradigm

by not treating the 50% ceiling as a “Lakshmana Rekha” and making available reservations

above 50%. Furthermore, this argument is premised on the assumption that only those

constitutional values, or the constituents of such values, that are exceptions to each other have

to be balanced against each other. This is an erroneous assumption since constitutional values

96
See Justice Nagmohan Das, ‘The clamor for reservations signals a deeper crisis elsewhere’ The Hindu
Magazine (Mohali, 01 July 2010) 4; Alok Prasanna Kumar, ‘Revisiting the Rationale for Reservations’ [2016]
51(47) EPW 10; Gautam Bhatia, ‘A Critique of the Supreme Court’s Maratha Reservation Judgment – I:
Equality’ (Indian Constitutional Law & Philosophy, 06 May 2021)
<https://indconlawphil.wordpress.com/2021/05/06/a-critique-of-the-supreme-courts-maratha-reservation-judgm
ent-i-equality/> accessed on 29 June 2021.
97
ibid: Das J. and Kumar.
98
ibid.
99
Supra 96: Bhatia
100
ibid.

23
and constituents of rights are balanced against each other all the time without them being

deemed as exceptions in constitutional law scholarship and jurisprudence.101 Hence, it would

be appropriate to say that while the erstwhile 50% ceiling was joined at the hip with the

exception paradigm, the current version is not.

Another criticism of the 50% ceiling is that it is purely a judicial invention, without any

textual backing.102 Under Articles 15 and 16, the State has been empowered to determine

those backward classes of citizens who are inadequately represented in public education and

employment and accordingly, reserve seats for them to remedy such inadequate

representation, i.e., “the marker of inadequacy of representation is a matter within the

subjective satisfaction of the State”.103 Moreover, the Constitution does not define these

backward classes and rather, delegates the task to the State.104 These Constitutional provisions

are relied upon to argue that only the State has been entrusted with the task of determining

adequate representation under Articles 15 and 16 and hence, any attempt by the Judiciary to

interfere with the State’s decision-making is an instance of judicial overreach. Accordingly, it

is argued that the State should be given a free hand to pick the percentage as per the need and

requirement of a particular community or region and the Judiciary should not have any power

to pick a percentage.

This limb of criticism against the 50% ceiling is very potent since it attacks the very source of

the 50% ceiling and thereby threatens to de-legitimise it entirely. Hence, this criticism needs

to be addressed holistically if the constitutional validity of the 50% ceiling has to be upheld.

101
See Alexander Aleinikoff, ‘Constitutional Law in the Age of Balancing’ [1987] 96(5) Yale LJ 943; Robert
Alexy and Julian Rivers, A Theory of Constitutional Rights (OUP 2009).
102
Supra 96.
103
See Suresh Kumar Gautam v State of UP (2016) 11 SCC 113; State of Punjab and Hira Lal 1970 (3) SCC
567.
104
Supra 23.

24
Is 50% ceiling a judicial overreach?

I submit that the primary reason for reckoning the 50% ceiling as an instance of judicial

overreach is the underlying sentiment that the Legislature, an institution that represents the

will of the majority of the people, should make all decisions related to reservations, and the

Judiciary, an institution which does not have any elected representatives, should not have any

say in this highly subjective political decision.105 This sentiment stems from an understanding

of democracy as a principle that “emphasises preference aggregation and supports majority

will”.106 However, this is a flawed conceptualisation of the Indian democracy since it reduces

the Judiciary to a mere spectator of the State’s unfettered exercise of discretionary powers.

Accordingly, I submit that there are three primary reasons why the State’s reservation policies

should be subject to judicial oversight.

Powers of Judicial Review

While drafting the Constitution, members of the Constituent Assembly ensured that the

Indian Judiciary is given sufficient power to strike down legislative attempts to abridge

fundamental rights guaranteed by the Constitution.107 Consequently, the Supreme Court and

the High Courts have been given wide powers of judicial review to test whether a

legislative/executive action is contrary to provisions of the Constitution,108 with a special

105
Heredia 186.
106
Vinay Sitapati, ‘Reservation’ in Sujit Chaudhary et al. (eds.), The Oxford Handbook of Constitutional Law
(OUP 2006).
107
See Jonathan Rajan, ‘The Strong and The Weak: Locating India’s Reservation Dialogic in Mark Tushnet’s
Dichotomy’ [2020] 14(2) NUALS LJ 85.
108
The Constitution of India 1950, Arts. 32 and 226.

25
emphasis on the fundamental rights contained in Part III.109 The question, then, is not if

powers of judicial review exist, but if they exist in the context of Articles 15 and 16.

The text of Articles 15 and 16 suggests that the dual questions of ‘determining who the

backward classes are’ and ‘what would comprise adequate representation of such classes’ are

within the subjective satisfaction of the State.110 Accordingly, it is up to the State to determine

the backward classes for whom special provisions, including reservations, have to be made

and how these provisions have to be implemented.111 Hence, the powers of the State under

these articles are of very wide amplitude.

This, however, is not to say that the State’s powers under Articles 15 and 16 are absolute and

unfettered. Constituent Assembly Debates make clear that while the powers under these

articles are very wide, they are still subject to judicial review. In this regard, Dr. Ambedkar

stated that “What is a backward community"? Well, I think anyone who reads the language of

the draft itself will find that we have left it to be determined by each local Government. A

backward community is a community which is backward in the opinion of the Government

… If the local Government included in this category of reservations such a large number of

seats, I think one could very well go to the Federal Court and the Supreme Court and say that

the reservation is of such a magnitude that the rule regarding equality of opportunity has been

destroyed and the court will then come to the conclusion whether the local Government or the

State Government has acted in a reasonable and prudent manner.”112 Reading this in

conjunction with Article 32(1) demonstrates that the Supreme Court and the High Courts

have the power to review any act of the State making special provisions under Articles 15 and

109
The Constitution of India 1950, Art. 13(2); Justice (Retd.) Ruma Pal, ‘Seperation of Powers’ in Sujit
Chaudhary et al. (eds.), The Oxford Handbook of Constitutional Law (OUP 2006).
110
See Arpita Sarkar, ‘Judicial Review of Reservation in Promotion: A Fading Promise of Equality in Services
guaranteed by the Indian Constitution’ [2018] 11 NUJS LR 213.
111
ibid.
112
Supra 88: Speech of Dr. BR Ambedkar.

26
16 against the touchstone of fundamental rights and constitutional values.113 Hence, the

arguments against the Judiciary’s constitutional competence to review the validity of

reservations made under Articles 15 and 16 are not well-founded.

Judiciary as the guardian against majoritarian propensities

As noted above, the legislature and the executive branches have the power and the

responsibility to reserve seats for people belonging to backward classes in India. Accordingly,

these branches have to utilise their significant fact-finding abilities and develop flexible

assessment procedures to develop the most appropriate reservation policy and identify its

beneficiaries.114 While this has happened to some extent over the decades, the vote bloc

potential of reservation policies has opened them to widespread abuse to benefit certain

political blocks.115 Vinay Sitapati notes that “As numerically significant but socially and

educationally disadvantaged groups have begun to exercise political power in India, they

have used reservations through elected representatives to gain educational and professional

power. These are groups …. working in concert to form a majority, and then pushing their

collective will through elected institutions.”116

OBCs comprise a major chunk of the population, with estimates placing them between 33%

to 52% of the total population,117 making them an effective interest group in the Indian polity.

Accordingly, majoritarian urges, spearheaded by these groups and their various sub-groups,

113
See Clark Cunningham & M. Menon, ‘Race, Class, Caste...? Rethinking Affirmative Action’, [1997] 97
Michigan LR 1296 (hereinafter, ‘Cunningham and Menon’); The Constitution of India 1950, Art. 32(1).
114
ibid, 1306.
115
ibid; See Sunita Parikh, The Politics of Preference: Democratic Institutions and Affirmative Action in the
United States and India, (University of Michigan Press, 1997).
116
Supra 106, 771.
117
SS Negi, ‘Reply to SC daunting task for Government’ The Tribune (New Delhi, 10 June 2006); Surjit Bhalla,
‘36% population is OBC, not 52%’ Business Standard (New Delhi, 14 June 2013).

27
have driven the reservation policy in India.118 That the Parliament and most state legislatures

have extended OBC beneficiaries and quotas, with increasing majorities and diminishing

rounds of debate, over the years is indicative of such majoritarian urges driving the

reservation policy.119 Such majority rule is not an aberration but a feature of the Indian

electoral system.120

Against this backdrop, the role of the Judiciary as the guardian of the fundamental rights of

the minorities becomes even more pronounced.121 Such protection against majoritarian urges

requires the Court to ask the State to demonstrate inadequate reservation and/or

backwardness, instead of deferring to the State any and all matters related to reservation

policies and their beneficiaries.122

Consequently, the Judiciary has evolved concrete jurisprudence to check the political abuse

of reservation policies for political patronage, side-stepping the constitutionally embedded

weaknesses in the electoral reform mechanisms, without violating the separation of functions

envisaged by the Constitution.123 It has done so by establishing policy directives, such as the

50% ceiling, which strive to incorporate objectivity and transparency in the reservation

policies. These directives serve as guidelines for the State to develop constitutionally valid

reservation policies, while the State retains full control over determining the policy and its

beneficiaries through its legislative fiat.124

118
Sujit Choudhary, ‘How to Do Constitutional Law and Politics in South Asia’ in Mark Tushnet and Madhav
Khosla (eds.), Unstable Constitutionalism: Law and Politics in South Asia (Cambridge University Press 2015);
Rajeev Dhavan, Reserved! How Parliament Debated Reservations, 1995–2007 (New Delhi: Rupa&Co., 2008).
119
ibid.
120
Supra 53, p.245; Christopher Jaffrelot, India’s Silent Revolution: The Rise of the Lower Castes in North India
(New York: Columbia University Press, 2003).
121
Cunningham and Menon, 1306 - 1307.
122
Supra 118.
123
Supra 121.
124
Supra 106.

28
Judiciary as the Legitimiser of Reservations

The misuse of reservation policies to benefit certain political blocks has fomented public

distrust against these policies.125 This has stemmed from the fact that neither the legislature

nor the executive have functioned as neutral decision-making mechanisms for deciding which

groups “deserve” reservations and in what percentages.126 In the absence of any neutral

decision-maker, the reservation programme has been characterised as a “crude political

struggle between groups seeking favoured status.”127 As a result, all the actions of the State

relating to reservations, irrespective of their underlying intentions, have become suspect in

the eyes of the public, diminishing the overall legitimacy of the reservation programme.128

The Judiciary is the closest thing to a neutral arbiter for shaping the reservation programme in

the Indian context and has hence, played a major role in bolstering the legitimacy of the

State’s political decisions.129 Profs. Cunningham and Menon aptly note that “In 1990,

proposed executive action to expand reservations led to widespread protest and urban unrest;

yet when the Supreme Court two years later approved most of the proposed changes,

[through its decision in Indra Sawhney] public acceptance was equally widespread.”130

Hence, the Judiciary plays an important of legitimising the reservation policies of the State

due to its perception as the only neutral arbiter involved in shaping the reservation

programme.

125
Cunningham and Menon, 1306.
126
ibid, 1300.
127
ibid.
128
ibid.
129
ibid, 1307.
130
ibid, 1307.

29
From the discussion above, it becomes clear that the Judiciary has the power to review the

State’s reservation policies under Articles 15 and 16, and that the exercise of such power

through issuing policy directives is valid and indispensable. Ultimately, the role of the

Judiciary is to further substantive equality by supporting the State’s measures that use status

to achieve substantive equality and shun those measures which are purely politically

motivated and/or encroach upon the rights of others. This can be ensured by requiring the

State to demonstrate that its measures are based on objective data of backwardness and

inadequate representation, rather than political obligations, assumptions, or generalisations.

The Indian Courts, through their policy directives and related judicial scrutiny, have done just

that.

6. 50% CEILING IN THE AGE OF MAJORITARIAN RESERVATION

POLICIES

When a seat is reserved for a particular class of individuals, all other classes are excluded

from vying for that seat. Hence, as more and more seats are reserved for a particular class, the

corpus of seats available for all the other classes diminishes. It is apposite to say then that as

the reservation pie grows larger, in effect, it becomes a method of exclusion rather than

inclusion.131

On the other hand, all candidates can vie for unreserved seats and even when a reserved

candidate obtains an unreserved seat, it is not counted against the total reserved seats for that

131
Narayan Ramachandran, ‘Time to Review India’s Reservation Policies’ (mint, 01 October 2018)
<https://www.livemint.com/Opinion/OMjluNQsw48JDqZqtzKnXL/Opinion--Time-to-review-Indias-reservation
-policies.html> accessed on 29 June 2021.

30
particular community.132 Today, numerous reserved category candidates are competing for

and increasingly securing unreserved seats, given the operation of policies aimed at

ameliorating their socio-economic backwardness.133 Accordingly, the following seats are

available to the candidates in the present system;134

Category Reserved Seats Total Seats Available

Scheduled Castes 15% 65.5%

Scheduled Tribes 7.5% 58%

Other Backward Classes 27% 77.5%

Unreserved N/A 50.5%

While the reserved seats for SC and ST candidates are in proportion to their total population,

the seats for OBC candidates are not. The primary reason for this is that the levels of

backwardness vary for SCs, STs, and OBCs and therefore, they require varying degrees of

reservation to ensure their adequate representation.135 To this effect, evolving different

standards of reservation policies for the OBCs on one hand and SCs & STs on the other has

been held to be a constitutional requirement.136

132
See RK Sabharwal v. State of Punjab (1995) 2 SCC 745.
133
See Ishwar Bhat, Law and Social Transformation (Eastern Book Company, 2020).
134
Figures are for Central Public Education and Employment Opportunities. All states have their own
reservation quotas.
135
See State of Punjab v Davinder Singh (2020) 8 SCC 1.
136
Supra 53.

31
However, some argue that OBCs should be provided proportional reservations, in line with

SCs and STs.137 Beneath the surface of these demands and arguments for more quotas is the

sentiment that each group deserves its share of resources, and that share ought to be

proportionate to its numbers.138 Accompanying such demands are the demands of various

‘forward’ castes to be recognised as OBCs too, in order to obtain the benefits of reservations

through political mobilization.139 Consequently, there has been a sharp increase in the number

of centrally notified OBCs, increasing from 1257 in 1993 to 2297 in 2006.140 As the number

of OBC beneficiaries is rising, the demands for increasing the quotas for these communities

are rising too.141 Hence, this process of increasing demands for reservation has become

cyclical.

L.R. Naik, the only Dalit member in the Mandal Commission, had noted that OBCs are of

two categories – the landowning OBCs (“Intermediate Backward Classes”) and the artisan

OBCs (“Most Backward Classes”).142 He noted that these two categories are “not at the same

degree or level of social and educational backwardness” since the landowning classes are

significantly better-off, both economically and socially, than their artisan counterparts.143 In

several states, these landowning classes yield significant socio-political power too, such as

137
See Mridul Kumar, ‘Reservations for Marathas in Maharashtra, [2009] 44(14) EPW 4; Ashwini Deshpande
and Rajesh Ramachandran, ‘Dominant or Backward? Political Economy of Demand for Quotas by Jats, Patels,
and Marathas’, [2017] 52(19) EPW.
138
Shyam Babu, ‘Times Face-off: Is it time to lift the 50% ceiling on total reservation?’ The Times of India
(New Delhi, 26 March 2021).
139
Mayank Tewari, ‘Tribes of OBCs growing in leaps’ Hindustan Times (New Delhi, 28 May 2006); Supra 137.
140
ibid.
141
ibid; Supra 137.
142
Chandra Bhan Prasad, ‘Mandal’s True Inheritors’ (Times of India, 12 April 2006)
<https://timesofindia.indiatimes.com/edit-page/mandals-true-inheritors/articleshow/1486250.cms> accessed on
29 June 2021.
143
ibid.

32
the Yadavs in Uttar Pradesh and the Jats in several North-western states.144 Recently, the

Marathas in Maharashtra and Patidars in Gujarat, both landowning classes with significant

political power in their respective states, have claimed to be backwards too and hence,

eligible for reservations under Articles 15 and 16. 145

Given their political influence, these classes have successfully persuaded successive

governments to grant them special, and often exclusive, reservations.146 When added to

existing reservations, such special reservations take the total quantum of reservations beyond

50%. Upon such increase, the seat distribution often looks as follows;

Category Reserved Seats Total Seats Available

Scheduled Castes 15% 49.5%

Scheduled Tribes 7.5% 43%

Other Backward Classes 27% 62.5%

“Intermediate Backward 10 - 15% 77.5%

Classes”

Unreserved N/A 35.5%

Hence, granting proportional reservation to politically mobilised OBCs/‘IBCs’ is detrimental

to the interests of all other classes. Here, SC and ST candidates will be additionally

disadvantaged by such an increase in OBC reservations since the State will have no room to

144
Supra 137.
145
Supra 137.
146
Supra 106; Supra 120: Jaffrelot.

33
provide additional reservations to SC and ST candidates even if the circumstances necessitate

so.

Furthermore, among the OBCs too, only a select few will be able to take advantage of the

increased number of seats.147 Naik “fear(ed) that the safeguards recommended for (OBCs’)

advancement will not percolate to the less unfortunate sections among them” given the wide

gap between the conditions of the landowning and the artisan classes.148 These fears have

actualised since IBCs have been able to corner most of the benefits for themselves, leaving

little to nothing for the Most Backward Classes.149

Therefore, increasing reservations for IBCs, who have effectively used their numerical power

to develop into powerful political blocks, will only benefit a select few among the OBCs and

will have a detrimental impact on the most backward groups of the society along with the

unreserved groups. In this context, protection of the interests of these non-IBC classes

necessarily requires the Judiciary to take concrete steps to prevent the usurpation of

reservation policies by majoritarian urges. These concrete steps must be pragmatic if they are

to prevent inroads into the constitutional desideratum of equality of opportunity. The 50%

ceiling is one such concrete step.

The ceiling requires the State to take into account the interests of non-beneficiaries of a

reservation policy and thwarts governments’ efforts to weaponize reservation policies for

their political interests. Such safeguards are imperative in light of political mobilizations, and

not redressal of backwardness, driving reservation policies today.

147
Supra 133, 496.
148
Supra 142.
149
Sujit Choudhry, (ed.), Constitutional Design for Divided Societies: Integration or Accommodation? (OUP,
2008).

34
Hence, by pre-empting unidimensional reservation policies and thwarting attempts at

weaponizing reservations, the ceiling effectively safeguards the interests of the minorities

who are likely to be side-lined or marginalised by the normal functioning of the political

process.

CONCLUSION

I have demonstrated that the 50% ceiling is not an impenetrable ceiling (‘Lakshmana

Rekha’), invalidating all legislations which reserve more than 50% of the seats. Rather, it

operates primarily as a policy directive to help the State develop reservation policies that are

in accordance with the Constitutional objective of achieving substantive equality of

opportunity. Through the ceiling, the Judiciary has created a space for itself to review any

reservation policy of the State which provides for high reservations to certain classes of

people. This helps ensure that the tool of reservations does not become an exercise in

distributing political patronage among certain castes. Given that majoritarian urges and

electoral compulsions have increasingly emerged as the driving force behind several

reservation policies today, such power of review ensures that the Judiciary is able to

safeguard minorities’ fundamental right to equality of opportunity effectively.

In doing so, the ceiling does not usurp the State’s powers to develop and implement

reservation policies under Articles 15 and 16 but limits the amount of power to ensure that

these reservation policies do not violate constitutional values and policy directives. The

ceiling reminds the State that it must develop policies that appropriately balance open

competition and reservations. Therefore, the 50% ceiling promotes equality by ensuring that

reservation policies are implemented in a way that bolsters substantive equality of

opportunity.

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