While the majority judgment is widely interpreted as having upended the quota ceiling that was till now held as inviolable, a careful reading shows that it has confined the 50% limit to quotas for SCs/STs/OBCs, while terming the EWS as beyond its pale. However, it has also termed the halfway limit as “not inflexible”, while discussing various Supreme Court orders, led by the landmark Indra Sawhney judgment, where judges have individually argued that the limit can be breached in “extraordinary situations”.
The impression post-EWS judgment is that the 50% bar can be crossed, but with a higher threshold. Shashank Ratnoo, an advocate specialising in reservation matters who also argued the EWS case, said, “A breach of 50% can be legitimised through a constitutional amendment under the rubric of extraordinary situation/circumstances.”
If states start petitioning the Centre for constitutional amendments to firewall their quota laws, the government would face a tough choice — a refusal would risk political costs in the form of antagonising interested social groups, while acceding to states’ pleas would not be easy as it would take quotas to unprecedented levels and seriously shrink the open category seats in jobs and education.
Within a week of the EWS judgment, several states have moved swiftly to increase local quotas. Bihar chief minister Nitish Kumar has demanded that the Centre remove the 50% ceiling while Jharkhand has raised the total state reservations to 77% by increasing the quantum for SCs/STs/OBCs.
On Sunday, two constituents of the ruling seven-party Mahagathbandhan in Bihar asked CM Nitish Kumar to bring a legislation in the assembly session, starting November 23, to raise the total reservation to 77% from the existing 50%. A demand has also been raised in Rajasthan that OBC quota should be increased from 21% to 27%.
Also, Rajasthan and Maharashtra have had their legal struggles against special measures adopted for Gujjar and Maratha communities.
The fresh spurt in quota initiatives in the wake of the EWS judgment is reminiscent of how states went on an overdrive after the EWS quotas were instituted by Modi government in January 2019. As reported by TOI on March 9, 2019, Madhya Pradesh and Rajasthan introduced the EWS reservations, and as they took the reservations beyond 50%, they used its cover to introduce separate legislations for caste quotas – while Rajasthan gave 5% reservation to Gujjar and four other castes, MP raised its OBC quota from 14% to 27%. In both cases, the total reservation went up to 64% and 70%, respectively, but later ran into a judicial blockade.