Editorial: Revisiting the Mandal verdict

In 1992, a nine-member Constitution bench of the Supreme Court determined the judicial contours of the debate on reservation, by placing a cap of 50 per cent on quotas (Indra Sawhney vs Union of India). Citing Ambedkar and the Constituent Assembly, it held that reservation in a majority of seats “was never envisaged by our founding fathers”. At the same time, it left a loophole, stating that given the great diversity in this country, where people living in remote and far-flung areas could fall out of the mainstream of national life, a relaxation can be made. But it warned: “In doing so, extreme caution is to be exercised and a special case made out.”

That loophole and a combination of other reasons, some of them blatantly casteist and electoral, have led many States to promise and even implement quotas that breach the 50 per cent gap. The Centre has also thrown its hat in the ring, with the Narendra Modi government pushing through a constitutional amendment to provide 10 per cent reservation to economically backward sections. Given all of this, the Supreme Court has decided to look into the issue of whether the Indira Sawhney judgment (known popularly as the Mandal case) needs re-examination. While hearing a judicial challenge to a Maharashtra law providing quotas to Marathas, another issue of constitutional import will receive a review – the question is whether States may legitimately declare a particular caste as socially and economically backward, and therefore deserving of reservations in jobs and admissions. Under the 102nd amendment to the Constitution, it is the Centre that has the power to notify backward classes.

Today, a plethora of States have more than 50 per cent reservation. It is a common misconception to believe that Tamil Nadu is one of the very few States that have breached this limit, even if it is uniquely placed given that The Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of Seats in Educational Institutions and of Appointments or Posts in the Services under the State) Act, 1993, which reserves 69% of the seats in colleges and state government jobs, is protected in the Constitution’s Ninth Schedule. Given this, the plea that States should be allowed to express their views on both issues flagged by the court – the so-called ‘vertical’ 50 per cent limit and the impact of the 102nd amendment on our federal structure – is unexceptionable.

The big question of course is what all this is going to mean in the short term. The answer is not a whole lot. Both issues need to be examined by a constitutional bench, and the Indira Sawhney judgment will require a bench larger than the nine which passed it. Also, it is a sobering thought to keep in mind that the Supreme Court has only promised to look into these issues, which is not quite the same as formally referring them to a larger bench for hearing. But there is no doubting that the circumstances since 1992 have changed. However, what will emerge from all of this, and whether it will settle the competing political claims on reservations are, to understate the point, extremely moot questions.