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The Supreme Court has recently observed that the Constitution Bench judgment of this Court in Indra Sawhney neither needs to be revisited nor referred to a larger Bench for consideration. The Constitution Bench of Justice Hemant Gupta, Justice Nageswara Rao, Justice Ashok Bhushan, Justice S. Abdul Nazeer & Justice Ravindra Bhat unanimously agreed on this aspect however Justice S Ravindra Bhatt in his concurring judgement gave separate reasons. 

“What was held by the Constitution Bench in Indra Sawhney on the relevance and significance of the principle of stare decisis clearly binds us. The judgment of Indra Sawhney has stood the test of the time and has never been doubted by any judgment of this Court. The Constitution Bench judgment of this Court in Indra Sawhney neither needs to be revisited nor referred to a larger Bench for consideration.”, observed Justice Ashok Bhushan.

Further in his separate but concurring judgement, Justice S Ravindra Bhatt observed that, “Given the general common agreement about the existence of an outer limit, i.e. 50%, the petitioner’s argument about the incoherence or uncertainty about the existence of the rule or that there were contrary observations with respect to absence of any ceiling limit in other judgments (the dissenting judgments of K. Subbarao, in T. Devadasan v Union of India , the judgments of S.M. Fazal Ali and Krishna Iyer, JJ. in State of Kerala v N.M. Thomas13 and the judgment of Chinnappa Reddy, J. in K.C. Vasanth Kumar v. State of Karnataka14) is not an argument compelling a review or reconsideration of Indra Sawhney rule.”

One of the issues which arose for consideration while the Bench was adjudicating the appeals arising from a common judgement of the Bombay High Court regarding the Constitutionality of Maharashtra State Reservation (of Seats for admissions in Educational Institutions in the State and appointments in the Public Services and posts under the State) for Socially and Educationally Backward Classes (SEBC) Act, 2018 was whether judgment in case of Indra Sawhney v. Union of India [1992 Suppl. (3) SCC 217] needs to be referred to a larger bench or require re-look by the larger bench in the light of subsequent Constitutional Amendments, judgments and changed social dynamics of the society etc.

The Court on the aspect of Senior Counsel Mr Mukul Rohatgi’s submission that there was no unanimity in view of different reasons being adopted in six separate judgements, the Court while relying on the Apex Court judgement in Rajnarain Singh vs. Chairman, Patna Administration Committee, Patna and another, AIR 1954 SC 569 to cull out the method of determining the majority view observed that the decision of the Court in a case where there are several opinions, on which there is the greatest common measure of agreement is the decision of the Court.

“The majority opinion, the ratio of judgment of Indra Sawhney as expressed by the majority is one which is expressed in paragraphs 809 and 810 of the judgment of Justice B.P. Jeevan Reddy & therefore it cannot be accepted that the majority opinion of Indra Sawhney is that 50% can be breached.”, the Bench observed.

With regards to different judges from 1963 speaking in different voice with regard to reservation under 15(4) and 16(4), the Bench observed that The judgment of Indra Sawhney has been followed by this Court in a number of cases including at least in the following four Constitution Bench judgments in Post Graduate Institute of Medical Education & Research, Chandigarh and others vs. Faculty Association and others; M. Nagaraj and others vs. Union of India and others, 2006(8) SCC 212; Krishna Murthy (Dr.) and others vs. Union of India and another 2010 (7) SCC 202 & in Chebrolu Leela Prasad Rao & Ors. vs. State of A.P. & Ors., 2020(7) Scale 162, where it reiterated the principle as referred and reiterated that outer limit is 50% as specified in Indra Sawhney's case.

With regards to the aspect that the very basis of fixing the ceiling of 50% has gone & that neither Article 16(4) nor Article 15(4) contained any percentage, the Court observed that Parliamentary enactment clearly indicated that law declared by Indra Sawhney in paragraphs 839, 840 and 859 was being understood as a law and being implemented. 

“This reinforced the Court’s view that the ceiling limit of 50% for reservation as approved by Indra Sawhney's case is a law within the meaning of Article 141 and is to be implemented by all concerned.”

On the submission that Indira Sawhney judgement was on Art 16(4) & therefore it’s ratio could not be applied with regards to Art 15(4), the court noted that, 

“Clause (4) of Article 15 is also a special provision which is nothing but reinstatement of the principles of equality enshrined in Article 14. The principles which have been laid down in paragraph 808 with respect to Article 16(4) are clearly applicable with regard to Article 15(4) also. In the majority judgment of this Court in Indra Sawhney, the Balaji principle i.e. the 50 percent rule has been approved and not departed with. The 50 percent principle which was initially spoken of in Balaji having been approved in Indra Sawhney. We failed to see as to how prepositions laid down by this Court in Indra Sawhney shall not be applicable for Article 15. It has been laid down in Indra Sawhney that the expression “Backward Class” used in Article 16(4) is wider than the expression “Socially and Educationally Backward Class” used in Article 15(5).”

Justice S Ravindra Bhatt while differing on this aspect observed that, “So far as the argument that Indra Sawhney was concerned only with reservations under Article 16(4) is concerned, this Court is inclined to accept the submissions of the petitioner. The painstaking reasoning in various judgments, in Indra Sawhney, including the judgments of Pandian and Sawant, JJ. would show that almost all the previous precedents on both Article 15(4) and 16(4) were considered.”

“We fail to see that how the measures taken under Article 15(4) and 16(4) shall in any manner can be read to breach Directive Principles of State Policy. Article 16(4) and 15(4) are also measures to ensure equality of status besides the equality of opportunity.”, the Court with regards to the submission that the Judgement did not consider the impact of DPSP’s while interpreting Art 14, 16(1) & 16(4).

With regards to the Court’s submission that the Constitutional 77th & 81st Amendment Act by inserting Art 16(4)(A) & 16(4)(B) had the effect of undoing the part of the judgement in Indira Sawhney, the Court said that, 

“Constitutional Amendment makes it very clear that the ceiling of 50 percent “has now received Constitutional recognition.” Ceiling of 50 percent is ceiling which was approved by this Court in Indra Sawhney’s case, thus, the Constitutional Amendment in fact recognize the 50 percent ceiling which was approved in Indra Sawhney’s case and on the basis of above Constitutional Amendment, no case has been made out to revisit Indra Sawhney.” 

The Court refrained itself from observing anything with regards to the submissions that the 103rd Constitutional Amendment was a clear pointer of overruling the 50% ceiling for reservation under Art 15(4) & Art 16(4). Additionally, the Court also observed that the situations indicated in paragraph 810 were only illustrative and not exhaustive but paragraph 810 gives an indication as to which may fit in an extraordinary situation. 

Further, Justice S Ravindra Bhatt while observing that 50% limit required reconsideration observed that, “The state legislatures and executives are a product of contemporary democratic processes. They not only are alive to the needs of the society, but are rightfully entitled to frame policies for the people. Given the absence of any caste census, but admitted growth of population, there can be no doubt that the proportion of the backward classes has swelled, calling for greater protection under Articles 15 (4) and 16 (4). Also, every generation has aspirations, which democratically elected governments are bound to meet and consider, while framing policies.”

Case Title: Jaishri Laxmanrao Patil V. The Chief Minister & Ors.