Opinion: Constitutional hurdles of BC reservations

Hyderabad: The move towards implementing 42% reservations for Backward Classes (BC) appears to be progressing cautiously with legal considerations in mind. Key aspects of this initiative include expediting the law-making process to avoid delays and ensuring proper legislation for BC reservations, similar to the SC and ST reservation bills. The state cabinet discussed this matter for nearly six hours before deciding to determine BC reservations based on caste census data.

• In Telangana, the state assembly has introduced a bill titled "Backward Classes, Scheduled Castes, and Scheduled Tribes (Reservation of Seats in Educational Institutions, Appointments in State Services, and Local Bodies) Bill, 2025," which increases reservations for BCs to 42%.

• The reservation for BCs in local bodies is being increased from 23% to 42%.

• Another bill increases the reservation for SCs from 10% to 17%.

• For STs, the reservation is raised from 6% to 7%.

• Based on population data, the BC population is expected to rise from 50% to 52%. With BC reservations reaching 42%, SCs at 15%, and STs at 10%, the total reservations will reach 67%.

• The bill is proposed to be included under the Ninth Schedule of the Constitution. However, under the Kesavananda Bharati case, such inclusion may become controversial, potentially leading to a Supreme Court challenge.

• Additionally, in 2017, a bill was passed to increase Muslim reservations from 4% to 12% and ST reservations from 6% to 10%, but it has yet to receive Presidential approval. The old bill was recently withdrawn.

• If these reservations are implemented, the total quota will reach 66-67%, and with further increases for SCs and STs, it may touch 70%. The Supreme Court has set a cap of 50% on reservations, which could lead to legal challenges. Despite this, all political parties have unanimously taken this bold decision.

Initially, SC and ST quotas were included as per the Constitution, but it became evident that many communities were still backward. Consequently, those who were not SCs or STs but were socially and educationally backward were legally categorized as Other Backward Classes (OBC). The Supreme Court has upheld this classification multiple times. However, the lack of proper data has previously hindered BC reservation laws.

Based on the Caste Survey

A social, economic, educational, employment, and caste survey conducted between November and December 2024 found that 56.33% of the population was backward, including Hindus, Muslims, and Christians from SC and ST backgrounds. The basis of the ‘classification’ of the BCs caste survey. The proposal aims to allocate 42% of reservations to education and employment and extend this percentage to government contracts and infrastructure projects. The Government could pass the legislation by taking all the political parties, including the opposition.

It's Law! Not GO:

An executive order of the Government is enough; rather than relying on executive orders, the Telangana government intends to legally secure these 42% reservations through a special law. The opposition is unlikely to resist the bill, ensuring unanimous approval in the state assembly. That was what proved. Moreover, the government plans to place the law under the Ninth Schedule of the Indian Constitution to shield it from judicial review.

A clear legal strategy was worked out. Unlike previous governments that used reservation policies for political gains, Telangana appears to be taking a more thoughtful approach. Many past reservation laws were struck down by the Supreme Court within a decade. Voters may have realized that constitutional loopholes have been misused in the past. The Telangana government, however, is trying to craft legally sustainable legislation.

Constitutional questions

The Supreme Court ruled that sub-categorization within SC and ST quotas is constitutionally valid. However, a mere court ruling is insufficient. The Constitution provides for reservations to ensure equality, but laws and policies must be carefully crafted and legally sound. Enabling provisions, legal decisions, constitutional mandates, and implementable laws are all different aspects.

The introduction of bills for 42% BC reservations and SC reservations in Telangana requires further discussion on their consequences. Declaring this move as purely historic without evaluating its legal sustainability is premature. The state assembly has introduced these bills to extend reservations in education, jobs, and local governance institutions.

Regardless of the constitutional provisions and legal precedents, all decisions must align with Supreme Court rulings. The 50% cap on reservations for India was established through the 1992 Indra Sawhney case. In Tamil Nadu, a 69% BC reservation was upheld, leading some to argue that exceeding 50% is possible. However, Tamil Nadu achieved this by removing the creamy layer from reservations, which later caused political consequences.

Legal challenges to exceeding the 50% reservation cap have emerged in multiple states, including Bihar, Haryana, Jharkhand, Chhattisgarh, Rajasthan, and Maharashtra. In 2023, the Patna High Court struck down an increase from 50% to 65% in Bihar. While Telangana’s 42% quota is within limits, exceeding 50% could lead to legal complications, going up to 70%.

The Andhra Pradesh High Court, in the 1986 case of C. Satyanarayana Reddy vs. State of Andhra Pradesh, ruled that reservations in local bodies must not exceed 50%. Since Telangana was part of Andhra Pradesh at that time, this ruling remains relevant. Article 243D(6) and 243T(6) of the Indian Constitution allow reservations in local governance, but Supreme Court judgments have repeatedly emphasized the 50% cap. Thus, while Telangana’s BC reservation law is an ambitious step, its long-term viability depends on legal scrutiny and judicial approval, especially on the 50 percent cap and surpassing the Ninth Schedule.

Hurdle of Ninth Schedule

Minister for BC welfare Ponnam Prabhakar, though effectively steered through, whether CM Revanth Reddy realizes the excessive BC reservations and the Ninth Schedule. The Governments, both Centre and States, believe they make Constitutional amendments which can be shielded from the unconstitutional laws. The Constitution of India in 1950 never thought that the Parliament would make more than 100 amendments, and each resulted in challenges before the Supreme Court. After independence, India faced the challenge of implementing land reforms and abolishing the Zamindari system, which was crucial for socio-economic development. However, these reforms were challenged in court on the grounds of violating fundamental rights. Whenever Parliament comes up with an ‘amendment’, they advance the excuse that national ‘development’, the general public, etc. In the First Amendment itself, they wanted a sword and shield against the Supreme Court. Then starts the litigation at the supreme level.

It is claimed that the Ninth Schedule was incorporated into the Indian Constitution by the First Amendment Act of 1951 to protect certain laws, particularly those related to land reforms and the abolition of the Zamindari system, from judicial review.

Article 31B: Is there a "protective umbrella"?

The Ninth Schedule, along with Article 31B, was introduced to provide a "protective umbrella" to these laws, shielding them from judicial scrutiny and ensuring their implementation. This article, added along with the Ninth Schedule, specifically protected certain laws or enactments, unlike Article 31A, which extended protection to "classes" of laws. The Ninth Schedule initially focused on land reform laws, but its scope expanded over time, including other subjects.

Basic structure ‘comes in the way’

While Article 31B initially aimed to exclude judicial review, the Supreme Court later ruled in I.R. Coelho v. State of Tamil Nadu (2007) that laws in the Ninth Schedule could still be subject to judicial review if they violated the basic structure of the Constitution. The Ninth Schedule currently contains a list of central and state laws that are protected from judicial review, although this protection is not absolute and can be challenged if the laws violate fundamental rights or the basic structure of the Constitution.

Kesavananda Bharati

Simply placing laws under the Ninth Schedule does not guarantee protection from judicial review. The Supreme Court has the authority to examine laws even under the Ninth Schedule, as clarified in the landmark 1973 Kesavananda Bharati case. The court ruled that even if laws are added to the Ninth Schedule, they must comply with the fundamental structure of the Constitution, which includes fundamental rights such as equality (Article 14), protection against discrimination (Article 15), and freedom of speech (Article 19).