This chart presents a basic overview of the arguments made by the main petitioners and the respondents: the State of Maharashtra, the Union of India and all other States.
Issue | Petitioners | Respondents | Options before the Court |
---|---|---|---|
1. Does Indra Sawhney lay down a 50% limit on reservations? | Yes | No | If the rule applies, then the second and third issue must be considered. If it does not apply, the Court does not need to refer the issue to a larger bench: the SEBC Act will not be struck down on this ground. |
1.1 Is there a majority? | Yes, at least 8 out of 9 judges agreed that there must be some form of 50% limit. Judgments are read such that the most minimal form of the rule for which a majority exists will be applicable. | No, the judges speak in different voices. 3 judges lay down a limit without exceptions, 4 judges lay down a rule with some exceptions, 1 judge lays down a rule with broader exceptions and 1 judge denies the rule. | |
1.2 Is it a binding precedent? | Yes, the question was explicitly addressed by the bench in Indra Sawhney. Around 50 cases and 70 judges have applied the rule at various points. Most notably, M Nagraj affirms the rule in 2007. | No, a rule is only binding precedent if it was necessary to decide a case on its facts. Indra Sawhney struck down economic reservations on other grounds. So, the reservations it dealt with were less than 50% and the 50% limit was not necessary to decide the case. | |
2. If the 50% limit applies, are Maratha reservations within the scope of 'exceptional situations' to justify breaching it? | No | Yes | If the SEBC Act falls within the scope of 'exceptional situations', it will not be upheld. If it does not, it will be struck down. |
2.1 What is the scope of 'exceptional situations' or 'extraordinary circumstances'? | An exception to the 50% limit should be made with great caution, such as for communities in 'far-flung areas' who are outside the national mainstream. This was the view of 4 judges in Indra Sawhney. | Remote communities in far-flung areas are not the only ones who are given an exception to the 50% limit. That was merely an illustrative example, and the scope is broader. | |
2.2 Are Marathas an exception? | No, they are in fact a dominant community: politically, educationally, socially and economically. They have a large representation in legislatures, the State Cabinet, co-operative boards, agricultural marketing boards, etc. | Yes. First, they are 30% of the State population which makes it the largest backward community. Second, if they compete with OBCs, other communities will lose their reservations. With such a large proportion of backward classes, the 50% limit must be breached. | |
3. If the 50% limit applies, is there reason to reconsider it? | No | Yes | If there is a reason to reconsider it, then the issue will have to be referred to a larger bench, mostly of 11 judges. If there is no reason to reconsider it, then the rule will apply. Unless the SEBC Act is within the scope of 'exceptional situations' as above, it will be struck down. |
3.1 Is there a change in law? | The 103rd Amendment which provides for reservations for economically weaker sections does not affect the 50% limit. It can be interpreted as applying within the existing framework. | The 103rd Amendment provides for reservations for economically weaker sections 'in addition to' existing reservations. Parliament was aware they were breaching the 50% limit. | |
3.2 Is there a change in circumstances? | Groups nowadays gain reservations through 'political ransom' and this must be limited by the 50% rule. | Social dynamics change over time. The Constitution and Indra Sawhney recognised the need for periodic review of reservations. | |
3.3 Was the limit wrongly decided in the first place? | The rule strikes a necessary balance between equality of opportunity and the 'special provision' of reservations. BR Ambedkar had supported the rule in the Constituent Assembly. It is also necessary to maintain efficiency and merit. | The rule artificially restricts the scope of reservations provided for by the Constitution. Each State has different demographics and considerations- even 50% may be too high in some places. Reservations are not an 'exception' to equality of opportunity, but a facet of it. | |
4. Does the 102nd Constitutional Amendment affect States' Powers to Identify SEBCs? | Yes | No | If the 102nd Amendment does take away States' powers, then the SEBC Act is unconstitutional and can be struck down. If it does not, then the SEBC Act is valid. |
4.1 Does it take away power because the Amendment introduces Articles for SEBCs that 'mirror' those for SCs/STs? Identification of SCs/STs are only done by the Centre. | Yes, the provisions introduced by it very closely mirror the provisions in place for SCs/STs. Rules of interpretation require that when the language is similar, it should be interpreted similarly. So, SEBCs can only be identified by the Centre now. | No, the provisions are similar, but there are some significant differences. The most important one is that the Article for SEBCs says that Parliament may amend the 'Central List' for SEBCs. | |
4.2 Does the use of the phrase 'Central List' mean that only the Centre has powers to identify SEBCs? | Yes, the term 'Central List' was used without any mention of another List. It uses the term 'Central' because that was the term used for the List in the past. It indicates that only this List will remain, while other Lists will not. | No, the term 'Central List' was used to indicate that the Amendment only affects the Union's power to change their Central List. It leaves State Lists unaffected. | |
4.3 To what extent do other parts of the Amendment and the Constitution indicate that it aimed to take States' powers to identify SEBCs? | The Amendment introduced a National Commission for Backward Classes (NCBC). This has the power to recommend identification of SEBCs. The NCBC also has the power to supervise States in various manners. SEBCs can be identified by the Union after consulting the States. This indicates that the aim of the Amendment was to create a uniform method of identifying SEBCs. | The NCBC has broader powers to promote the upliftment of backward classes. It does not affect pre-existing States' powers. States derive their power of identification from Articles 15 and 16. It is also implicit in the States power to legislate on their State Public Services. An Amendment cannot take away these powers unless it does so clearly. | |
4.4 To what extent can the Rajya Sabha's Select Committee Report be used to determine whether the Amendment sought to take States' powers to identify SEBCs? The Report had pointed out that a Union Minister had assured that the Amendment would not take States' powers. | It should not be considered. 'External aids' for interpreting Amendments, such as material from parliament must be used with caution. The intention of every member cannot be known. The Report is produced only by a small part of the legislature. It was also produced by the Rajya Sabha after the Lok Sabha had already passed the Amendment. There were some dissents in the Report, which indicated the fear that States' powers would be taken by the Amendment. | It can be considered. 'External aids' are an aid to interpretation. They show the intent of the legislature. Select Committees are 'mini-parliaments' and carry great weight. The Report did not have 'dissents', but only additional opinions. The Minister's assurance was relevant. | |
Petitioner (separate issue) | Respondent (original petitioners, Union of India) | ||
5. If the 102nd Amendment does take away States' powers to identify SEBCs, is it Unconstitutional? | Yes | No | If the 102nd Amendment is unconstitutional, then the any changes it made do not come into affect. The SEBC Act will stand on this ground. If it is constitutional, and the Court interprets it as taking away States' powers to legislate as above, then the SEBC Act will be struck down. |
5.1 Is the amendment procedurally invalid? Article 368 requires half the States to ratify any Constitutional Amendment that affects States' rights. | Yes. The Amendment directly affects implicit powers the States have always enjoyed. These are contained in Articles 15 and 16. The power to legislate on SEBCs was implicit in the power to legislate on State public services. | No. The Amendment does not affect any legislative power of the States. It only changes a small part of the States' power to identify SEBCs. States still have the power to decide the quantity and implementation of reservations. | |
5.1 Does it violate the basic structure of the Constitution? | Yes. The Amendment takes away the power of the States to identify SEBCs. The original Constitution had envisioned that States would have this power. This was an essential part of federalism in the Constitution. By taking away the power, the Amendment affects the federal structure of the Constitution. | No. An amendment violates the basic structure if it has impacts the whole scheme, not amends a part of it. The Amendment takes away only the power to identify SEBCs from the States. The States never had this power for SCs/STs earlier. So, the change does not affect the federal structure of the Constitution. It complies with it. |