The Ceiling on Reservation
Chapter Forty-Three
Syllabus topic 3, "Right to equality : privatisation and its impact on affirmative action".
Pages 196 to 199 of 304
In one line
Fifty per cent is a judge-made rule, not a constitutional text, and in 2022 the Court held it is not inflexible and does not govern reservation made outside the backward-class provisions.
In the wording a student can write in an exam: no provision of the Constitution fixes any limit on the extent of reservation. The fifty per cent rule is judicial, and it rests on the proposition that reservation is an instance of the classification permitted by article 16(1) rather than an exception to it, so that it cannot be carried to a point at which the rule of equality of opportunity is destroyed rather than qualified. In Indra Sawhney v. Union of India the Court held that reservations under article 16(4) should not exceed fifty per cent, that fifty per cent shall be the rule subject to relaxation in extraordinary situations made out with extreme caution, and that the rule applies to each year and not to the total cadre strength. In Janhit Abhiyan v. Union of India the Court held that the ceiling is itself not inflexible and in any case applies only to the reservations envisaged by articles 15(4), 15(5) and 16(4).
Where the rule comes from
The Constitution says nothing about a percentage. The rule is derived, and the derivation is worth setting out because it explains both the rule and its limits.
Step one. Article 16(1) guarantees equality of opportunity. Article 16(4) permits reservation.
Step two. If article 16(4) were an exception to article 16(1), it would have to be construed narrowly, but there would be no arithmetic limit in principle: an exception is as wide as its terms.
Step three. But article 16(4) is not an exception. Indra Sawhney holds it is an instance and an illustration of the classification inherent in article 16(1). It is therefore an application of the equality guarantee, not a departure from it.
Step four. An application of a guarantee cannot destroy the guarantee. If reservation took every post, equality of opportunity would not have been qualified, it would have been abolished. So there must be some point at which the exercise ceases to be an application of article 16(1) and becomes its negation.
Step five. The Court fixed that point at a majority of the posts, on the reasoning that reservation must leave the general field as the rule and the reserved field as the qualification.
The rule is therefore a structural limit derived from the character of article 16(4), not a number found in the text. That is exactly why it could later be held not to bind a reservation made under a different provision.
What Indra Sawhney actually held
Facts. Indra Sawhney v. Union of India, AIR 1993 SC 477, decided 16 November 1992 by nine judges. Challenges to the implementation of the Mandal Commission's recommendations.
The Ceiling on Reservation
Held, in the answers relevant here:
"The reservations contemplated in Clause (4) of Article 16 should not exceed 50%." But the Court immediately qualified it: while fifty per cent shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people. In far-flung and remote areas the population may, on account of being out of the mainstream of national life, need to be treated differently, and some relaxation of the strict rule may become imperative. In doing so extreme caution is to be exercised and a special case made out.
"The rule of 50% should be applied to each year." It cannot be related to the total strength of the class, category, service or cadre.
Devadasan was overruled to the extent inconsistent with the judgment.
Why it matters. Two things are usually got wrong. The rule was stated with an exception built in from the start, so a State that makes out a special case for an extraordinary situation is not defying Indra Sawhney but using it. And the rule operates on the year's vacancies, which is an arithmetical point with real consequences for carry-forward.
Article 16(4B) and the carry-forward problem
The year rule creates a practical difficulty. If reserved vacancies in a year go unfilled for want of candidates, and are carried forward to the next year, the next year's reservation may exceed fifty per cent even though each year's original quota did not.
Parliament answered by the Eighty-first Amendment, inserting article 16(4B): unfilled reserved vacancies of a year, carried forward to any succeeding year, are to be considered as a separate class and are not to be considered together with the vacancies of the year in which they are being filled for determining the ceiling of fifty per cent.
So the ceiling survives in form while the arithmetic that would have enforced it is set aside by the Constitution itself. An answer that notices this is making a real point about how the ceiling has been eroded by amendment rather than by decision.
What Janhit Abhiyan changed
Facts. Janhit Abhiyan v. Union of India, decided 7 November 2022 by five judges. Challenge to the 103rd Amendment, which inserted articles 15(6) and 16(6) permitting up to ten per cent reservation for economically weaker sections in addition to existing reservations. One ground was that this breaks the fifty per cent ceiling, which the petitioners said had become part of the basic structure, relying on the repeated affirmation of the rule in more than fifty decisions over sixty years.
The Ceiling on Reservation
Held. By 3:2 the amendment was upheld. On the ceiling:
Reservation for economically weaker sections of citizens up to ten per cent. in addition to the existing reservations does not result in violation of any essential feature of the Constitution of India and does not cause any damage to the basic structure of the Constitution of India on account of breach of the ceiling limit of fifty per cent. because, that ceiling limit itself is not inflexible and in any case, applies only to the reservations envisaged by Articles 15(4), 15(5) and 16(4) of the Constitution of India.
Why it matters. Two distinct propositions, and both should be stated. The ceiling is not inflexible, which confirms and widens the qualification Indra Sawhney had itself included. And it applies only to reservations under articles 15(4), 15(5) and 16(4), so a reservation resting on a different enabling clause is outside it altogether. That second proposition is the one that decides cases: it means the arithmetic must be done separately for the backward-class reservations and for the EWS reservation.
The corollary, which the petitioners pressed and lost, is that the fifty per cent rule is not part of the basic structure. That is now the position, and a book that says otherwise is out of date.
Where the ceiling stands today
Stated as a working rule for a problem.
Reservations under articles 15(4), 15(5) and 16(4) should not exceed fifty per cent, applied to the year's vacancies, subject to relaxation in an extraordinary situation for which a special case is made out with extreme caution.
Carried-forward vacancies under article 16(4B) are a separate class and are not counted for the ceiling in the year they are filled.
Reservation under articles 15(6) and 16(6) for economically weaker sections is outside the ceiling.
The ceiling is not part of the basic structure, so Parliament may provide for reservation beyond it by amendment.
A worked example
A State provides, for direct recruitment in a year with one hundred vacancies: twenty-seven per cent for other backward classes, sixteen per cent for Scheduled Castes, eight per cent for Scheduled Tribes, ten per cent for economically weaker sections, and a further six per cent carried forward from the previous year's unfilled Scheduled Tribe vacancies. Total reserved posts in the year: sixty-seven.
Do the arithmetic the way the law does it, not the way it looks.
The article 16(4) group is 27 plus 16 plus 8, which is fifty-one per cent. That exceeds the ceiling by one point, and the State must justify it as an extraordinary situation with a special case made out, or reduce it.
The Ceiling on Reservation
The carried-forward six per cent is excluded by article 16(4B): unfilled reserved vacancies carried forward are a separate class and are not counted together with the year's vacancies for the ceiling.
The EWS ten per cent is outside the ceiling altogether on Janhit Abhiyan, because the ceiling applies only to reservations under articles 15(4), 15(5) and 16(4).
So the figure to test is fifty-one, not sixty-seven. A candidate who argues that sixty-seven per cent is plainly unconstitutional has not done the analysis, and will be answered by the two exclusions.
The remaining argument. Even fifty-one requires justification, and a State relying on an extraordinary situation must show it: remoteness from the mainstream of national life, or comparable circumstances, established by material and not asserted.
Quick revision
- No provision of the Constitution fixes a percentage. The rule is judicial and structural.
- The derivation: article 16(4) is an instance of article 16(1), and an application of a guarantee cannot destroy it.
- Indra Sawhney: fifty per cent is the rule, subject to relaxation in extraordinary situations with extreme caution and a special case made out, applied to each year's vacancies and not to cadre strength.
- Article 16(4B): carried-forward unfilled reserved vacancies are a separate class and are outside the ceiling for the year they are filled.
- Janhit Abhiyan: the ceiling is NOT inflexible, and applies ONLY to reservations under articles 15(4), 15(5) and 16(4).
- The fifty per cent rule is not part of the basic structure.
Test yourself
1. Where does the fifty per cent rule come from, given that no article states it? Set out the derivation.
2. What qualification did Indra Sawhney itself attach to the rule, and to what does the rule apply?
3. What does article 16(4B) do, and why does it matter for the ceiling?
4. State the two propositions about the ceiling in Janhit Abhiyan and explain the practical effect of the second.
5. Is the fifty per cent rule part of the basic structure? What follows from the answer?
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.