With the Jharkhand Assembly passing a Bill this week to raise the total reservation for Scheduled Castes (SC), Scheduled Tribes (ST) and Other Backward Classes (OBC) in State government posts to up to 77% in the backdrop of a Supreme Court Constitution Bench’s majority ruling in the Economically Weaker Section (EWS) case that the 50% cap on reservation was not sacrosanct, this has paved the way to give new life to the argument of several other States fighting to increase reservations for Socially and Economically Backward Classes (SEBC) beyond the 50% mark.
The Hemant Soren-led government in Jharkhand on Friday passed an amendment to raise the reservation for SCs, STs and OBCs in State government positions. Without directly referring to the Indra Sawhney judgment of 1993, the Bill passed in Jharkhand Assembly noted that the 50% ceiling set out in the judgment never explicitly prohibited the breaching of the limit.
This was upheld earlier this week by the five judge Constitution Bench of the Supreme Court in the EWS case, where the majority judgment held that the limit is “not inflexible or inviolable”. However, in the same Bench’s minority view, penned by Justice Ravindra Bhat, it was noted that allowing this would in effect “seal the fate” of laws like that of Tamil Nadu’s reservation law (allowing 69% quota), which is pending before the top court.
Now, after the Jharkhand Assembly’s move and the EWS judgment on this aspect, other States like Madhya Pradesh, Chhattisgarh and Karnataka are likely to get a fresh impetus to argue for extending reservations for Backward Classes beyond the 50% limit.
In Madhya Pradesh, the State government has from the get-go been arguing that the ceiling in the Indra Sawhney judgment was not sacrosanct, to defend their 2019 Ordinance that raised reservation for OBCs from 14% to 27% — thereby taking total reservation for SCs, STs, OBCs and EWS to 71%. However, this Ordinance was challenged in the Madhya Pradesh High Court, where it remains pending, and where the government has maintained that it is empowered to breach the 50% limit.
Advocate Rameshwar Singh Thakur, special counsel for the Madhya Pradesh government in the High Court, told The Hindu, “The EWS judgment is further strengthening what we have been arguing before courts. The Indra Sawhney judgment does not say that the ceiling is permanent. Beyond this, the five fudge decision that reaffirms this will only help our case.”
In addition, the Chhattisgarh Government is fighting to raise reservations for OBCs to 32%, which will take total reservations in the State to 58%. After the Chhattisgarh High Court struck down the 2012 legislation, the Bhupesh Baghel-led Congress government this year went to the Supreme Court challenging this decision, in the hopes that they will be allowed to breach the 50% limit as well.
Further, the Karnataka Government too announced this year that it is looking to raise reservations in the State for SCs and STs, which will increase total reservations for SCs, STs, and OBCs to 56%.
Before the EWS judgment once again affirming that the Indra Sawhney decision does not specifically bar a breach of the 50% limit, State governments considered that the only way to raise reservations was through a Constitutional amendment that included their legislations in the Ninth Schedule, like the Tamil Nadu government’s 69% reservation law was in 1994.
In fact, even in the Bill passed by the Jharkhand Assembly this week, the recommendation was to amend the Ninth Schedule of the Constitution accordingly, and this option was mulled upon by the Karnataka Government as well.