Three quota storms that will hit the BJP—Karnataka, Chhattisgarh, Jharkhand

It will be electorally disastrous for the BJP to say that it will not allow SC, ST, OBC to get more reservation, especially in Jharkhand and Chhattisgarh.

Prime Minister Narendra Modi (File Photo/ANI)

Three state assemblies recently passed legislation to increase reservation in government jobs. All these laws breach the 50 per cent quota cap, once considered sacrosanct after the Indira Sawhney judgement of the Supreme Court in 1993, but quite precarious and unsettled now after the EWS judgment of the Supreme Court. But one of the three states to have passed such a legislation is Karnataka and that’s what can trouble the Union government as the state is being ruled by the BJP. The state is going to polls mid next year and the BJP is pinning too much hope on this Bill to garner SC and ST votes.

The Narendra Modi government and the BJP leadership have to take a view on whether it should allow the 50 per cent cap to go, especially in the case of SC, ST and OBC quota. The Centre has already implemented a 10 per cent EWS quota for the non-SC, ST, and OBC, thus taking the quota quantum to 59 per cent in central government jobs and educational institutions. Many states have followed suit. Whatever view the BJP takes will have political implications that can be too hot to handle.

Three quota conundrum

1. The Karnataka government tabled a Bill in the assembly to increase SC/ST quota. This Bill, after becoming an Act, will replace the October 2022 ordinancethat increased reservation for SCs from 15 per cent to 17 per cent and for STs from 3 per cent to 7 per cent. Karnataka Governor gave assent to the ordinance and the related notification was issued on 1 November 2022. This ordinance was brought to fulfil long-term demands of the SC, ST representative organisations. The ordinance takes reservation of the SCs and STs to their share in the state’s population. Before the promulgation of the ordinance, Karnataka used to provide 32 per cent reservation for OBCs, 15 per cent for SCs and 3 per cent for STs that adds up to 50 per cent. Now, total reservation for the SCs, STs and OBCs has reached 56 per cent.
2. The Chhattisgarh government has also tried to revise the reservation arithmetic in the state. The state assembly unanimously passed two Bills to take total reservation to 76 per cent. According to these amendments, there will be 32 per cent reservation for STs, 13 per cent for SCs, 27 per cent for OBCs and 4 per cent for EWS section. These Bills became a political necessity in September 2021 after the Chhattisgarh High Court set aside the previousRaman Singh government’s 2012 order to raise the ST quota from 20 per cent to 32 per cent, thus taking total reservation to 58 per cent. The OBCs in Chhattisgarh were complaining that their 14 per cent quota was too little. Bhupesh Baghel-led Congress government has taken care of these two issues by passing two Bills in the assembly. The Bills currently lie with Governor Anusuiya Uikey. The problem is again that 50 per cent cap.
3. The Jharkhand assembly recently unanimously passed a Bill that raises reservation across categories to 77 per cent. According to this Bill, reservationfor the STs would go up to 28 per cent (from 26 per cent), OBCs would get 27 per cent (up from 14 per cent), 12 per cent would be for the SCs (up from 10 per cent), and 10 per cent for the EWS. The Jharkhand government wants the Union government to bring the Bill under the 9^th Schedule of the Constitution to shield them from judicial scrutiny (It’s another matter that that immunity has now become almost invalid). This Bill is again stuck at the Raj Bhawan as Jharkhand governor Ramesh Bais sent it to the Attorney General of India for legal opinion.  

Ruling parties in all these states want the respective governors, and the Union government to agree to the reservation Bills which intend to take SC, ST, OBC reservation beyond the 50 per cent limit.

50 per cent limit, courts and Constitution

There is no specific limit or cap on reservation in the Constitution. Though the Constitution takes efficiency of administration into consideration while reserving jobs in administration. Article 355 states that “the claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts…”

50 per cent limit first came into picture as an advisory in 1962 judgment of the Supreme Court in M.R. Balaji And Others vs State of Mysore case: “Reservations under Arts. 15 (4) and 16 (4) must be within reasonable limits… Speaking generally and in a broad way, a special provision should be less than 50%. The actual percentage must depend upon the relevant prevailing circumstances in each case.”

This was later ossified by Indira Sawhney Judgement of the Supreme Court in 1993: “The reservations contemplated in Article 16(4) should not exceed 50 per cent. While 50 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.”  Last year, the Supreme Court struck down reservation for Marathas because it violated the 50 per cent limit on reservations as fixed by the Indira Sawhney Judgement.

Over the years, the 50 per cent limit had become a normative accepted idea. The disruption came this year in the EWS case. While delivering the majority judgment, Justice Dinesh Maheshwari stated that the 50 per cent ceiling was “not inflexible.”  On the basis of this, he ordered that the breaching of the said limit did not violate the basic structure of the Indian Constitution in any way. He also stated that “50 per cent limit applies only to the reservations envisioned by Articles 15(4), 15(5) and 16(4) of the Constitution of India.” These clauses are for SC, ST and OBC reservations only. By implication, the 50 per cent limit is not applicable for any other type of reservation.

The problem and the implications

The Union government may take the same position as the majority judgment of the Supreme Court in the EWS case says that the 50 per cent limit on SC, ST, OBC quota stands and thus any quota for these social groups beyond the 50 per cent limit is not permissible.

This will create two imminent problems. One, the Karnataka reservation Bill to increase SC-ST quota will fail this test. Karnataka BJP is placing too much hope on this Bill. Can the BJP afford this? Two, this may be politically incorrect and electorally disastrous for the BJP to say that it will not allow SC, ST, OBC to get more reservation, especially in states like Jharkhand and Chhattisgarh where the OBCs are presently getting only 14 per cent reservation.

If the Union government takes a position that the 50 per cent limit can be breached, then it can open a floodgate. This may alienate the upper caste voters of the BJP. This may also nullify the electoral gains of the EWS quota.

Not taking a position can be the third option. This may be the preferred way out for the government and the BJP.

Dilip Mandal is the former managing editor of India Today Hindi Magazine, and has authored books on media and sociology. Views are personal.

(Edited by Anurag Chaubey)