THE BIHAR RESERVATION CASE

ABSTRACT

The Indian constitution guarantees social justice to every citizen and permits the state to make special provisions in favour of the underprivileged. However, in a landmark judgment on June 20 – Gaurav Thakur vs State of Bihar, 2024, the Patna High Court struck down the Bihar government’s decision to implement a 65% reservation policy in government jobs and educational institutions. The court’s decision has sparked widespread debate and discussion, given its significant implications for the state’s socio-economic landscape.

This judgement was in response to a PIL filed in the Patna High Court on November 27, 2023, challenging the decision of the Bihar government to increase the reservation in the state from 50% to 65%. In the present article, I would be comprehensively covering the entire reservation issue with regard to the state of Bihar.

BACKGROUND

Caste-based discrimination remains widespread in many areas of India. Conducting a caste census can help identify disadvantaged groups, bringing them to the forefront of policy-making by understanding the distribution of various caste groups as targeted policies can then be framed to address social inequalities and uplift marginalized communities. The Congress had promised a caste survey for all the states to look into the matter of reservation and give a proportionate share to the backward classes. However, majority of the times, the various political parties have tried to expand reservation more out of electoral compulsion than due to constitutional principles.

THE CASTE SURVEY, 2023

In a landmark move, Bihar released the findings of the first-ever caste census in 2023 since the country’s independence in 1947, shedding light on state’s demographic composition. The data collection for the survey began on 7 January 2023 and the data was released on 2 October 2023.

 Here are a few significant findings of the Bihar caste survey:

1. POPULATION SHARE OF DIFFERENT CASTES

• The scheduled castes, the scheduled tribes and other backward castes constitute 84.46% of Bihar’s population,
• Among families from the SC communities, constituting 19.6% of the total population in the state, 42.9% are poor and among the ST population, comprising a minuscule 1.68% of the state’s population, 42.7% are poor.
• Among SCs, Musahars have the worst socio-economic conditions. About 54.5% of the 8 lakh families of Musahars are poor. Of the Bhuiyan community, 53.5% of families are poor. Similarly, more than 50% of families from Dom and Bhogta communities are living in poverty.
• Among the families classified as Other Backward Classes (OBCs), constituting 27% of the state’s population, 33.16% are poor and among families classified as Extremely Backward Classes (EBCs), constituting 36% of the state’s population, 33.5% are poor. 
• Among the OBCs, the dominant Yadav caste has reported the highest poor population, with one third of the Yadav community, who constitute 14.26% of Bihar’s population, being poor. 
• Among the upper caste families, who constitute 15.5% of the population, 25.09% are poor.
• As far as the Muslims living in the state are concerned, 32% of the Shershahbadi and 31.4% of the Dhuniya communities, both classified as EBCs, are poor.

2. GOVERNMENT REPRESENTATION OF DIFFERENT CASTES 

• The survey highlights that while the upper caste constitutes just 15% of the total state population, it is over represented in government jobs.
• Bihar has a total population of 13.07 crore people, out of which 20.47 lakh persons are in government jobs, out of whom 6.41 lakh persons are from the upper castes, 6.21 lakh persons are from the OBC communities, 4.61 lakh persons from the EBC communities, 2.91 lakh persons from the SC communities and the rest 30,000 persons are from the ST communities.

3. ACCESS TO EDUCATION

• As found by the survey, the backward castes of the state are lagging behind the upper castes in the arena of education as well. 
• Among the upper castes, 13.4% are graduates whereas the percentage stands at a meagre 4.27% in EBC communities and 3.05% in SC communities.

1. LABOURERS AND MASONS

• The survey highlights that only 11.4% population of the upper castes are labourers and masons, whereas 13.7% of BCs, 18.6% of EBCs, 21.4% of SCs and 18.5% of STs are working as labourers and masons.

DECLARATION OF INCREASE IN RESERVATION

In response to these findings, and given the existence of certain other facts, notably, Bihar having the lowest per capita income (less than $800) in the country, which is only 30% of what an average Indian earns, and 34.13 percent of all families in Bihar surviving on less than ₹ 6,000 per month, only 12% of the state’s population living in urban areas compared to the national average of 35% with every third person living below the poverty line and the state’s college density being the lowest in the country, the state government decided to grant certain welfare benefits for members of poor families, by increasing the reservation for all the backward communities in education and government jobs. 

Consequently, the Bihar Government issued gazette notifications for raising the quota to 75% after the Governor of Bihar Rajendra Arlekar, on November 17 gave his assent to two bills – The Bihar Reservation of Vacancies in Posts and Services (For Scheduled Castes, Scheduled Tribes and Other Backward Classes) (Amendment) Act 2023, and The Bihar (In Admission in Educational Institutions) Reservation (Amendment) Act 2023, increasing the quantum of reservations in government jobs and education in the State to 75%, including 20% for Scheduled Castes, 2% for Scheduled Tribes, 18% for Other Backward Classes, and 25% for Extremely Backward Classes, and 10% for economically weaker sections.  

Earlier, in 1978, Karpoori Thakur, the then Chief Minister of Bihar had introduced the 26% reservation model in Bihar, for the backward classes in the Government jobs. In this layered reservation regime, Other Backward Classes got 12%, Most Backward Class got 8%, women got 3%, and economically backward classes (EBWs) from among the upper castes got 3% reservation in state government jobs. Later in 2019, the EWS reservation was also implemented.

However, the 2023 decision had raised serious questions about the permissible limits of reservation in India. A PIL was filed challenging the constitutional validity of the decision on the grounds that:

• it violated the fundamental rights of the other people,
• and led to a breach of the upper ceiling of 50% reservation set by the Supreme Court in Indira Sawhney vs Union of India, 1992.

The PIL was filed in the Patna High Court, seeking immediate stay on the implementation of the two acts.

WHAT IS THE 50% UPPER CEILING?

M.R. BALAJI AND OTHERS VS STATE OF MYSORE, 1968

The rule was laid down for the first time in the case of M. R. Balaji vs State of Mysore, 1968. The instant case relates to an order issued by the state of Mysore on July 26, 1958 that 75% of the seats in educational and governmental institutions shall be reserved for people who fall within the definition of socially and educationally backward communities and for the scheduled castes and scheduled tribes. Further on July 31, 1962, the state passed another order under Article 15(4) under which, the backward classes were divided into two categories, backward classes and more backward classes and the order reserved 68% of the scats in the engineering and medical colleges and other technical institutions for the educationally and socially backward classes and Scheduled Castes and Scheduled Tribes, and left only 32 per cent seats for the merit pool.

The order was therefore challenged by 23 petitioners under Article 32 who contended that had the reservations not been made in the impugned order, they would’ve been entitled to admission in the respective colleges for which they had applied.

It was consequently held that the impugned order was a fraud on the constitutional power conferred on the State by Article 15(4) and the same be quashed. Reservation should and must be adopted to advance the prospects of weaker sections of society, but while doing so, care should be taken not to exclude admission to higher educational centres of deserving and qualified candidates of other communities. Reservations under Arts. 15 (4) and 16(4) must be within reasonable limits. The interests of weaker sections of society, have to be adjusted with the interests of the community as a whole. Speaking generally and in a broad way, a special provision should be less than 50%. The actual percentage must depend upon the relevant prevailing circumstances in each case. It is extremely unreasonable to assume that where the advancement of the backward classes or the Scheduled Castes and Tribes were concerned, the fundamental right of the citizens constituting the rest of the society were to be completely and absolutely ignored. Thus, while making adequate reservation under Art. 16(4), care should be taken not to provide for unreasonable, excessive or extravagant reservation.

INDIRA SAWHNEY VS UNION OF INDIA, 1992

Later in Indira Sawhney vs Union of India, 1992, the 50% reservation rule was reiterated. In 1979, the Second Backward Classes Commission (Mandal Commission) was set up to determine the criteria for defining the socially and educationally backward classes. The Mandal report identified 52% of the population at that time as “Socially and Economically Backward Classes” (SEBCs). It thus recommended 27% reservation for SEBCs in addition to the previously existing 22.5% reservation for SC/STs. In 1990, the V P Singh-led government set out to implement the Mandal commission recommendations. This was challenged in court amidst widespread protests against the move. The Indra Sawhney case came up before a nine-judge Bench and a 6:3 verdict was delivered in 1992.

The court upheld the 50% reservation rule laid down in MR Balaji case, and held that reservation shall not exceed 50%, moreover, reservation in promotions shall not be allowed. Most importantly, the Court held that 50% rule is a binding rule and not merely a rule of caution or a rule of prudence.

Therefore, as can be seen, the government’s decision clearly breached the limit set by the Supreme Court, and it was on this ground that the concerned PIL was filed.

The petitioners contended that proportional representation, confined to SC and ST, based on Article 330(2) cannot be imported automatically into Article 16. Article 16(4) specifically speaks of adequate representation as the yardstick to determine the benchmark, for providing reservation in appointments in posts, to any backward class of citizens.

WHAT HAS THE PATNA HIGH COURT HELD?

The court thereby held that the “current initiative is constitutionally impermissible, particularly since the State’s argument is based on proportional representation. Not every community seeks government jobs, and proportional representation, in any case, exceeds the constitutional framework. Affirmative action is meant to compensate for prolonged deprivation, but it should not undermine or significantly diminish merit.”

It was further reiterated that the only valid aim behind reservations is to secure “adequate” representation of the depressed classes, which is different from “proportionate” representation and adequate representation is central to both Articles 15(4) and 16(4) and the 50% limit on reservations was reaffirmed by various decisions. 

The exception to exceed the 50% limit, as was laid down in the mandal commission case was restricted to extenuating circumstances, such as areas isolated from the mainstream of national life. These conditions clearly did not exist and were not demonstrated in the instant case, as Bihar has indeed been at the epicentre of national politics.

Further, the records showed that the State did not conduct an in-depth study or analysis before increasing the reservation percentage and had based the enhancement on the mere proportion of the population of different categories relative to their numerical representation in government services and educational institutions. This argument contradicted the core principles of Articles 15(4) and 16(4). 

Consequently, the enhancement of reservations beyond the 50% limit was held to be legally untenable, violating the principles of equality. 

Therefore, the Bihar Reservation of Vacancies in Posts and Services (for Scheduled Caste, Scheduled Tribes, and Other Backward Classes) Amendment Act, 2023, and the Bihar Reservation (in Admission to Educational Institutions) Amendment Act, 2023, were both set aside as ultra vires the Constitution and in violation of the equality clause under Articles 14, 15, and 16.

CONCLUSION

Therefore, a closer look at the judicial response to the reservation policies demonstrates that our judiciary has carefully applied the ‘strict scrutiny’ doctrine to lay greater emphasis on merit and efficiency in administration. On the political front, it is a set-back for the congress party which had promised a caste survey for all the states, removal of the 50% upper limit and giving proportionate share to the backward classes.

As the legal and political landscape evolves, this ruling represents a crucial moment in India’s ongoing pursuit of equality and opportunity for all citizens. It highlights the complexities of balancing affirmative action with merit-based selection processes and emphasizes the need for fairness and transparency in state policies. The impact of the Patna High Court’s decision will resonate throughout Bihar and beyond, influencing discussions on socio-economic equality and the role of reservations in fostering inclusive growth.

FREQUENTLY ASKED QUESTIONS

1. What were the arguments presented by the Bihar government in favour of the 65% reservation? And how did the court respond to the arguments?

The Bihar government argued that the higher reservation percentage was necessary to address historical injustices and social inequalities faced by backward classes in the state. They contended that the socio-economic conditions of these communities warranted an exception to the 50% cap. However, the court acknowledged the socio-economic challenges faced by backward classes but maintained that any deviation from the 50% cap required extraordinary justification and evidence, which the Bihar government failed to provide in the instant case.

2. What are the broader implications of this ruling for reservation policies in India? 

The ruling reinforces the judiciary’s commitment to the constitutional principles governing reservations and may influence other states in considering similar policies. It highlights the need for a balanced approach that addresses social justice while respecting constitutional limits.

3. Are there any other cases where the court has applied the 50% reservation rule?

Yes, there have been several such cases. For instance, in Chebrolu Leela Prasad v State of A.P, 2020, the Supreme Court considered whether 100% reservation in favour of Scheduled Tribes can be considered as reasonable classification under Article 16(1) of the Indian Constitution. In response to these, the Supreme Court held that providing 100% reservation to Scheduled Tribes is not permissible as per the Indian Constitution. Further, the court observed that 100% reservation would be unfair, unreasonable, and irrational.

Further, in 2018, the Maharashtra government enacted the Socially and Educationally Backward Classes (SEBC) Act, 2018, providing for reservations for the Maratha community, which led to total reservations exceeding 50%. In Jaishri Laxmanrao Patil v. Chief Minister, 2021, the Supreme Court struck down the SEBC Act, holding that the Maratha community did not constitute an extraordinary circumstance warranting a breach of the 50% cap. The court reiterated the importance of adhering to the 50% limit to maintain the balance between affirmative action and equality.

BY:

ARSHITA JINDAL

UNIVERSITY INSTITUTE OF LEGAL STUDIES

PANJAB UNIVERSITY