On Monday, the Supreme Court refused to pass interim orders to stay the operation of the 10% quota for the economically weaker sections among the upper castes. The reservation policy was enforced following a Constitution amendment by Parliament on January 12, which received the assent of the president the following day.

Since then, a clutch of petitions have challenged the validity of the law. Their primary contention is that the quota breaches a basic feature of equality in the Constitution. They have argued that the Supreme Court in earlier judgements has ruled that a 50% limit on quotas was required under the basic structure of the Constitution, to protect the equality clause.

On Tuesday, the Centre filed an affidavit in the Supreme Court defending the law, stating that the 50% limit imposed will apply only to reservations made under Articles 15(4), 15(5) and 16(4) of the Constitution and not under Articles 15(6) and 16(6), the new provisions to enable income-based quota that were included in the Constitution with January’s amendment.

Essentially, the Centre stated that the 50% ceiling will only apply to caste-based reservations for the “socially and educationally backward” sections.

Article 15(4) enables the government to make special provisions to promote the advancement of “socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes”. Article 15(5), introduced through the 93rd Amendment in 2005, enables the state to implement provisions to provide quotas in private and aided educational institutions for the socially and educationally backward. Article 16(4) is the provision that allows caste-based reservations in employment.

Unequals as equals

However, the Centre’s reading of the law and the earlier judgements of the Supreme Court is misleading.

First, in the 1992 judgement of Indra Sawhney vs Union Of India, which reinforced the 50% ceiling on quotas, the Supreme Court asserted that the 50% limit is essential to protect equality. This was because, the court argued, when reservations cross 50%, it upsets the balance between the reserved and the unreserved categories, thereby having an impact on the promise of equality guaranteed under the Constitution. In the 2006 Nagaraj vs Union of India judgment, the court indicated that this 50% ceiling that protects equality is part of the basic structure of the Constitution.

When the Centre states that the 50% rule will not apply to the 10% quota, it is basically arguing that the 50% limit is confined to reservations for the “socially and educationally backward” sections, which is implemented primarily as caste-based reservations.

However, though the 10% quota is presented as based on economic parameters, it has a caste element to it as it excludes Scheduled Castes, Scheduled Tribes and Other Backward Classes already covered in the existing 50% quota. It is essentially a reservation for the economically weaker among upper castes and bars all others from accessing 10% of the open category quota that would otherwise be available to them.

In the affidavit, the Centre has argued that the Indra Sawhney judgment will not apply to the 10% quota for two reasons. One, unlike the implementation of the Mandal Commission recommendations, which was done in 1990 through an office memorandum, the 10% quota was effected through a constitutional amendment. The Supreme Court, in the Indra Sawhney judgment, did not have the opportunity to test these provisions as they were enacted only in 2019, whereas that judgment, imposing the 50% ceiling, was delivered in 1992.

However, whether it is an amendment to the Constitution or an office memorandum, the basic test is whether the 10% quota is constitutional or not.

If the 50% quota limit is part of the basic structure of the Constitution, as indicated in the M Nagaraj case, the Centre cannot pass an amendment that violates this basic structure. There are differing opinions on whether the 50% quota is indeed part of the basic structure and this will perhaps be the most crucial point of contention when the hearing in the case eventually begins.

In the Indra Sawhney judgement, Justice Jeevan Reddy made a crucial observation. Writing the leading opinion, Reddy said that “treating unequals as equals is the greatest injustice”.

The Centre will have justify that it is not treating unequals as equals through the 10% quota. This is because in case of reservations for the Other Backward Classes, the eligibility now is a combination of social, educational and economic backwardness as the creamy layer among the Other Backward Classes have been excluded from the ambit of reservations.

However, in case of the recent 10% quota, the eligibility is merely on an economic basis, without much regard for social and educational backwardness. This means, the Other Backward Classes are forced to prove their backwardness and economic weakness whereas the upper castes, who are not backward socially or educationally, can access affirmative action merely by proving economic difficulties. This is clearly treating unequals as equals and is a test for the equality clause beyond the 50% limit question.

Should 10% quota be stayed?

Another question that arises from the challenges to the 10% quota is if the Supreme Court should stay the operation of the reservation policy till its constitutionality is decided.

In case of the Mandal Commission recommendations, the Supreme Court in 1990 first stayed the office memorandum that enabled its implementation and then sent the matter to a Constitution bench to test its validity.

In the case of the 10% quota, the Supreme Court on Monday said it was at the moment not inclined to pass interim orders. It then asked the Centre to file replies, which it has done. Given the nature of the case, it is likely that the court will send the matter to a Constitution bench.

It is important that the court stays the operation of the quota till its constitutionality is decided as the issue is politically sensitive. Once a quota is implemented, it will be very difficult to take it back as it will be bound to lead to protests by the people who lose out. If the operation of the quota is not stayed, it could become a fait accompli, just as in the case of the Aadhaar, the 12-digit identification number. By the time the Supreme Court decided on Aadhaar’s constitutionality in September, the majority of Indians were already covered under the scheme.