The Fifty Per Cent Conundrum: A Need To Revisit The Indra Sawhney Case

Aamir Hussain, National Law School of India University, Bengaluru (NLSIU)

ABSTRACT

Decided in 1992 by a nine-judge bench, Indra Sawhney v. Union of India is a landmark case that inter alia fixed the limit for reservation in public employment at fifty per cent. Clause (4) of Article 16 envisages reservation in public employment for backward classes of citizens. In its judgement, the Supreme Court emphasized that Article 16(4) is not an exception but an emphatic restatement of Article 16(1) which enshrines equality of opportunity in matters of public employment. This article problematizes the Indra Sawhney case and highlights the inconsistency between the Court’s reasoning in terms of the relationship between Article 16(4) and Article 16(1) and its decision to cap reservations at fifty per cent. Additionally, in the decades following this judgement, several states have breached this limit and various legislations have been enacted that have the effect of watering down this judgement. This merits that the Indra Sawhney case is revisited and the fifty per cent cap be reconsidered by a larger bench of the apex court.

Keywords: Affirmative action, Backward classes, Constitution, Equality of opportunity, Reasonable classification, Reservation, Substantive equality.