Explained: The Patna HC’s striking down of quota hike to 65 percent

Why has the Patna High Court struck down the amendments in state reservation statutes that raised the proportion of reservations in the state to 65 percent? 

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IN a significant ruling, the Patna High Court has struck down 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 as ultra vires the Constitution of India and violative of the equality clause under Articles 14, 15 and 16 of the Constitution.

The Bihar legislature had enhanced the total reservations to 65 percent through the 2023 Amendment Act to the Bihar Reservation of Vacancies in Posts and Services (for Scheduled Castes and Scheduled Tribes and Other Backward Classes) Act, 1991.

A division Bench of Chief Justice K. Vinod Chandran and Justice Harish Kumar found that the state government could not demonstrate circumstances justifying the breach of the rule of 50 percent limit in reservations as held by a nine-judge of the Supreme Court in Indra Sawhney versus Union of India (1992).

Background

On June 6, 2022, the state government notified the caste survey. The survey was completed on August 5, 2023. The report was published on October 2, 2023. The caste-wise socio-economic report was brought out on November 11, 2023. The caste survey revealed that 98 lakh families in the state subsisted on a monthly income of ₹6,000.

Bihar has a total population of 13.07 crore of which 20.47 lakh are in government jobs. Of these 20.47 lakh people, 6.41 lakh persons (3.19 percent) are from the general category, 6.21 lakh persons (1.75 percent) are from the Backward Class category, 4.61 lakh persons (0.98 percent) are from the Extremely Backward Class (EBC) category, 2.91 lakh persons (1.13 percent) are from Schedule Caste category, 30,164 persons (1.37 percent) are from Schedule Tribe category and 3,715 persons (2.04 percent) are from Other Reported Castes.

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On the education front, among upper castes, 13.41 percent are graduates. Among Backward Classes, just 6.77 percent graduates, while only 4.27 percent of EBCs are graduates. Among Scheduled Castes, only 3.05 percent are graduates.

Based on the findings of the caste survey, the government tabled a Bill on November 11, 2023 to increase the percentage of reservations for Backward and Extremely Backward Classes, Scheduled Castes and Scheduled Tribes. The Bill was cleared by the Bihar's legislature. It resulted in an increase in total reservations from 50 percent to 65 percent.

What did the petitioners argue against the amendment?

A battery of senior lawyers argued against the Amendment Act. They made multi-fold arguments.

Firstly, they contended that the Bill was introduced in haste immediately after the report of the caste survey. Hence, no analysis of the data was carried out despite the Preamble of the Act referring to such an analysis.

Secondly, it was contended that the automatic escalation of the percentage for each and every caste referred to in the principle Act of 1991 was mechanically carried out without reference to the real facts and figures coming out of the caste survey.

It was submitted that though the land holding of every individual was one of the terms of reference in the caste survey, there was no analysis of the economic status of each community granted reservations, based on the details of the land holdings collected in the survey or an examination of the productive nature of such holding.

Thirdly, it was argued that the Preamble of the Amendment Act mentions a proportional representation having been attempted, as is the provision of reservations in elections to local bodies.

This, the petitioners argued, could not be made applicable to Article 16(4) of the Constitution which 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.

It was submitted that the concept of proportionate representation is alien to Article 15(4) and Article 16(4).

It was also argued that the economic criterion is an important index on which the percentage of reservation has to be considered, and this factor has been totally ignored while bringing out the amendment under challenge.

Also read: Sub-classification of Scheduled Castes: Homogeneity in forwardness, non-homogeneity in backwardness

Fourthly, it was argued that there can be no reservation granted beyond the 50 percent limit except in exceptional circumstances, as referred to in Indra Sawhney.

Fifthly, it was argued that the National Backward Commission was not consulted, which, according to the petitioners, is a mandate as per Article 338.

Lastly, it was contended that the data did not suggest a lack of adequate representation. It was argued that there was no recommendation made to a Backward Commission, either at the national level or that constituted within the state and the legislature too acted in haste and was adopted fully.

The petitioners argued that the data as revealed from the caste survey would make it imperative that certain castes are excluded from the backward communities. But rather than considering exclusion, further benefits have been granted to them, thus depriving other backward communities of such benefits and also impinging on the merit-based consideration.

The state defended the amendment tooth and nail

The Advocate General submitted that the "unique" caste survey carried out by the Bihar government was an exercise that would open new vistas and new dimensions redefining the philosophy of the social milieu.

"It would also tread a new path in achieving the goal of an egalitarian society and in its wake, of course, would bring forth new challenges, which are henceforth unknown," he argued.

Terming the enhancement of the reservation as exceptional in its own way, the Advocate General submitted that it could not be compared to the decision of the Supreme Court which dealt with 'Jat' and 'Maratha' reservations.

He contended that the ground raised— of a hasty decision— could not be validly put forth against the legislation.

He submitted that the constitutional validity of legislation could be challenged only on two grounds: lack of legislative competence and infraction of any fundamental rights or the provisions of the Constitution.

On this count, he submitted that petitioners made no arguments on these two aspects and that the petitioners had unnecessarily laboured only on the spelling mistakes in the Amendment Act and also the concept of proportionality, which the petitioners believe, is solely relied upon, for the subject enhancement of the reservation percentage.

Also read: Constitutional and legal implications of the Bihar caste survey

Referring to the decision in Indra Sawhney, the Advocate General argued that the decision itself held that the rule of 50 percent is not an inviolable rule.

The Advocate General also contended that the original Reservation Act had not been challenged and the challenge was only with respect to the amendment made, enhancing the percentage of the reservation to each of the marginalised categories as identified in the enactment.

The Attorney General also argued that the reference to the Mandal Commission and the parameters reckoned are not at all relevant since the Mandal Commission was with respect to the identification of backward communities.

He contended that the caste survey and the report prepared, based on a collection of empirical data, had not been challenged. The caste survey reached almost 12 crore people and the data was collected in real-time with every family being surveyed and only a negligible portion of the population not participating.

He argued that the State has the plenary sovereign power to legislate, which is not dependent on the recommendations of a Backward Commission; whether it be at the national or state level.

Court's ruling

The Bench said it was only concerned with the enhancement of reservation beyond the 50 percent limit, invoking the power under clause (4) of both Articles 15 and 16 of the Constitution in admissions to educational institutions and appointments to public employment.

Commenting on the caste survey report upon which the state government had relied to project inadequate representation of the various backward castes and the general category people, the Bench observed that only 1.57 percent of the total population is employed under the government and when we look at the proportion of the employees in each of the categories, as compared to the total population of each such category, definitely the open category has an edge with 3.19 percent representation.

But, the Bench added, when it compared the ratio of representation of the Backward Classes in government employment, which has to be computed from the total number of government employees, it found Backward Classes to be adequately represented.

Also read: Caste census: A controversy since 1910

"The Other Backward Classes have a presence of 621,481 out of a total of 2,049,370 government employees; which makes their representation 30.32 percent. Insofar as the extremely backward community, the percentage of representation is 22.53; for the Scheduled Castes, it is 14.19 percent; and for the Scheduled Tribes, it is 1.47 percent.

"The Backward Classes together occupy 1,404,374 posts out of a total 2,049,370 government employees, which is a whopping 68.52 percent of the total employees, which leaves the unreserved category with 31.48 percent of the total posts in government employment," the Bench observed.

The Bench also said that the percentage of backward communities in government employment is not sourced solely through appointments by virtue of reservation.

In the opinion of the Bench, backward communities were adequately represented in public employment, by virtue of reservation and also merit, which is an indication of one or other caste or community having reaped the benefits of reservations and the various beneficial welfare schemes implemented by the State in achieving an element of social capital.

The Bench thus held that there was no requirement for an enhancement of reservations, as adequate representation now exists.

The Bench also observed that the State should look into and objectively analyse as to which of the castes or communities within the Other Backward Classes and Extremely Backward Classes have more representation and which of them are more likely to be appointed on merit.

"This would give an indication of which of the castes or communities have in the past years reaped the benefits of affirmative action and beneficial schemes implemented for the upliftment of the poor and the marginalised," the Bench said.

"This inevitably takes us to the inference that exclusion and inclusion of castes or communities on the basis of development or the lack of it in the past years is an inextricably linked relevant consideration while enhancing the reservation percentage. But, still, the law is clear that even that would not permit breach or overreach of the 50 percent limit," the Bench added.

Commenting on the educational data found in the caste survey report, the Bench observed it could not find a large disparity among the various categories and it could not also discern either a case of proportionate representation or an adequate representation from the data.

Also read: Struggles of obtaining caste certificates: Reflections on the law of Gujarat

On the argument of the state government that Indra Shawney provides for the exception to breach the rule of 50 percent cap on reservations, the Bench observed that the exception is with respect to far-flung and remote areas.

The inhabitants of such areas, who remain out of the mainstream of national life due to the conditions peculiar and characteristic to them, were just candidates for a different treatment, even justifying a breach of the 50 percent rule.

The Bench observed that looking at the caste survey, it could not say that the situation in Bihar is of an extenuating nature for the reason of it being far-flung and away from the mainstream of national life.

"The caste survey, on the contrary, definitely paints a different picture from what was argued, insofar as the adequate representation in public employment is concerned. Bihar is neither a far-flung or remote area nor is it out of the mainstream of national life, which would have made an overbreadth of the 50 percent limit an imperative measure," the Bench ruled.

The Bench also rejected the argument of the Advocate General that the present was not the case concerning the inclusion or exclusion of a caste or community and the criterion of backwardness would not be a relevant consideration.

"Even in the case of enhancement, we found an objective analysis should take in the relevant aspects for a better understanding of the change in social milieu, aided actively by the long years of measures and schemes for the upliftment of the deprived, the marginalised and the downtrodden," the Bench held.

The Bench, in conclusion, rendered the following findings:

• Adequate representation is the core of both Articles 15(4) and 16(4).
• The exception provided to exceed the 50 percent limit was confined and restricted to extenuating circumstances and characteristically inherent aspects akin to far-flung areas, thus being kept away from the mainstream of national life. In Bihar, no such conditions exist. Nor does the Bihar government demonstrate the same.
• The state government has made no in-depth study or analysis before providing for enhancement of the reservation percentage. The state proceeded on the mere proportion of the population of different categories as against their numerical representation in government services and educational institutions. This is against the core principles of Articles 15(4) & 16(4).

The Bench, thus, quashed the amendment enhancing the reservation in breach of the limit of 50 percent.

Click here to read the order.