The government’s decision to provide 85 per cent reservation in jobs in Ladakh is bound to run into legal hurdles as it breaches a raft of Supreme Court judgments, including the nine-judge constitution bench ruling in the 1992 Indra Sawhney case that capped quota benefits at 50 per cent.

The Indra Sawhney judgment was delivered to address the implementation of the Mandal Commission’s recommendations that had suggested reserving 27 per cent of government jobs for OBCs.

The nine-judge bench ruling had made it clear that the 50 per cent quota cap could be breached only when the state demonstrated an “extraordinary” circumstance warranting such a violation.

However, despite the apex court verdict, states such as Tamil Nadu, Telangana and Maharashtra have breached the 50 per cent ceiling by extending the benefits beyond the permissible limits, the latest being the Union Territory of Ladakh.

On May 5, 2021, a five-judge constitution bench, while interpreting the Indra Sawhney judgment and the earlier 13-judge bench verdict in the Keshevananda Bharati case related to the powers of the legislature, executive and the judiciary, had ruled: “When the constitution bench in Indra Sawhney held that 50 per cent is upper limit of reservation under Article 16(4), it is the law which is binding under Article 141 and to be implemented.”

Under Article 141, the law declared by the Supreme Court is binding on all courts.

The five-judge bench had passed the verdict after quashing as “unconstitutional” the Maharashtra State Reservation (of seats for admission in educational institutions in the State and for appointments in the public services and posts under the State) for Socially and Educationally Backward Classes (SEBC) Act, 2018.

The impugned law had taken the total reservation to over 70 per cent.

“The SEBC Act, 2018, as amended in 2019, granting 12 per cent and 13 per cent reservation for the Maratha community in addition to 50 per cent social reservation, is not covered by exceptional circumstances as contemplated by the constitution bench in Indra Sawhney’s case,” the apex court had said.

The bench had rejected the Maharashtra government’s plea for revisiting the Indra Sawhney judgment, saying there was no need for it to be referred to a larger bench or to be reconsidered in the light of subsequent constitutional amendments, judgments and changed social dynamics of the society.

“The 50 per cent rule spoken in Balaji (another earlier case) and affirmed in Indra Sawhney is to fulfil the objective of equality as engrafted in Article 14 of which Articles 15 and 16 are facets. Fifty per cent is reasonable and it is to attain the object of equality. To change the 50 per cent limit is to have a society which is not founded on equality but based on caste rule,” the bench had said.

“We are of the considered opinion that the cap on percentage of reservation as has been laid down by constitution bench in Indra Sawhney is with the object of striking a balance between the rights under Article 15(1) and 15(4) as well as Articles 16(1) and 16(4),” it added.

It said the cap on quota percentage was aimed at achieving equality and striking a balance, which could not be said to be arbitrary or unreasonable.

The bench had observed that reservation for advancement of socially and educationally backward classes in public services was not the only means to bring about their welfare.

“The state ought to bring other measures, including providing educational facilities to the members of backward class free of cost, giving concession in fees, providing opportunities for skill development to enable the candidates from the backward class to be self-reliant,” it had said.