Patna High Court strikes down 65% quota in Bihar

News: Patna High Court has annulled the Bihar’s effort to increase the reservation percentages for Backward Classes (BC) to 18%, Extremely Backward Communities (EBC) to 25%, and Scheduled Castes and Scheduled Tribes to adjusted quotas, totalling 65% reservation.

Background of the case:

The government of Bihar made the decision to enhance reservations for Scheduled Castes (SC), Scheduled Tribes (ST), Backward Classes, and Extremely Backward Classes (EBC) after a caste-based survey revealed that these castes made up 84% of the state’s population. The action increased reservations in Bihar to 75% (65% for backward castes and 10% for EWS). A Public Interest Litigation (PIL) against this increase was subsequently submitted to the Patna High Court.

Patna High Court’s Arguments:

• The modifications were found to be in violation of Articles 14, 15, and 16 of the Constitution, which provides for freedom from discrimination on the grounds, inter-alia, of caste and provide equality before the law.
• The modifications violate the 50% cap imposed by the Supreme Court in the 1992 Indra Sawhney case.
• The state administration did not carry out a comprehensive analysis or in-depth investigation to support the necessity of the higher reservation.
• The court emphasised on the need to maintain a balance between affirmative action and constitutional restrictions on reservations.

Bihar Caste Census Survey:

• Bihar’s population has been recorded around 13.07 crore, surpassing the 10.41 crore figure recorded in the 2011 census.
• Hindus comprise 81.99% of Bihar’s population, while Muslims constitute 17.72%. The remaining population of Buddhists, Christians, Sikhs, Jains, and other religious groups is relatively small.
• Other Backward Classes (OBCs) and Extremely Backward Classes (EBCs) form more than 63% of Bihar’s population. EBCs, comprising 36.01% of the population, represent the most significant social group in the state, while OBCs account for 27.12%.
• Scheduled Castes (SCs) comprise 65% of Bihar’s population.
• Scheduled Tribes (STs) constitute 68% of the population, with a significant portion of the tribal population migrating to Jharkhand after the state’s division in 2000.
• The “unreserved” category represents 15.52% of Bihar’s population.

Supreme Court’s Indira Sawhney case:

A 9 judge Constitution Bench of the Supreme Court had categorically ruled that a backward class cannot be determined only and exclusively with reference to economic criterion. So, the economic criterion may be a consideration but in addition to other criteria like social backwardness, not as the sole criterion.

• The bench in its judgement declared 50% quota as the rule unless extraordinary situations “inherent in the great diversity of this country and the people” happen. Even then, the court stated that extreme caution is to be exercised and a special case should be made out.

Supreme Court’s Nagaraj case (2006):

The Constitution Bench ruled that equality is part of the basic structure of the Constitution, while upholding the reservation for SC/ST in Promotion. Further Supreme Court emphasised

• States need to collect quantifiable data on backwardness of SC/ST for giving quota in job promotion to SC/ST employees.
• State needs to collect quantifiable data on adequacy of representation of SC/ST in promotion.
• It shall not hurt the administrative efficiency.

Jarnail Singh vs Lachhmi Narain Gupta 2018 (Promotion of SC/ST):

• The Supreme Court verdict has denied referring the Nagraj Judgment to a 7-judge bench.
• The apex court also turned down the Centre’s plea that overall population of SC/ST be considered for granting quota to them as per a 1995 RK Sabharwal case judgement.
• They also said that states need not to collect quantifiable data on backwardness of SC/ST for giving quota in job promotion to SC/ST employees. However, other two conditions of Nagraj case — adequacy of representation of SC/ST in promotion and not to disturb administrative efficiency — holds the ground.
• The court also asked the government to examine the possibility of introducing creamy layer for SCs/STs by saying that if some sections bag all the coveted jobs, it will leave the rest of the class as backward as they always were.

Scholars’ opinions:

• Shashi Tharoor:

  • In a 2015 Jat reservation case, SC has asserted that as social groups are in a state of continuous evolution. New practices, methods and yardsticks must be continuously evolved for the State to uncover emerging forms of backwardness in an evolving society. Meaning the historical wrongs are passé; the Government needs to establish that a group of potential beneficiaries is suffering backwardness right now through a matrix of criteria like Economy, Caste, Gender, Sexual Orientation etc.
  • This fascinating philosophically opens up a proverbial can of worms for policymakers, which no government wants to touch.

• P Bhanu Mehta:

• He argues that discourse on reservations has been cynical politics and cynical policy.
• India needs effective forms of reservation or affirmative action, especially for Dalits. But our reservation policy, post Mandal, has more generally become a prime example of majoritarian politics, where the exigencies of politics and power rather than the ethical and moral claims drive entitlements.
• The proposal has one small silver lining. It can remove the stigma of reservation itself. As reservation has historically been associated with caste. But by including upper castes under the sign of reservation, it dissociates caste and the stigma of reservation.

• B R Ambedkar:

• In the Constituent Assembly had said that equality of opportunity would require reservation but in the “minority of the seats” and only in favour of “backward classes, who had not been represented in the state, so far”.

• Faizan Mustafa:

• He also argues that it changes the basic philosophy of the reservation in India. From the Poona Pact (1932) to the Constituent Assembly debates, reservation was talked about in the context of social and educational backwardness. The 103rd Amendment makes a departure by extending reservation to the economically disadvantaged.