Bihar Reservation

What’s in this Article?

• Table of Contents
  • Why in news?
  • About 50% Reservations Rule
  • Why the Quota in Bihar Challenged?
  • Arguments For and Against Reservation
  • The Verdict of the Patna HC
  • Indira Sawhney Judgment and the Present Status of Reservation in India
  • Other States Crossing the 50% Limit
  • Constitution and Reservation
  • Important Judgements regarding reservation
  • Judicial Scrutiny of Reservation
  • Way Forward

• Why in news?
• In Short
• Patna High Court on Thursday set aside notifications by the Bihar government increasing reservation in government jobs and educational institutions from 50% to 65%.
• “It is to break the stranglehold of a few at the expense and to the detriment of the many that reservation to backward classes was envisaged.
  • But merit cannot be completely effaced and sacrificed at the altar of reparations.
  • This was the principle on which the 50% limit was laid down for reservations,” the High Court said.
• In Depth
• The order was passed by a division bench headed by Chief Justice K Vinod Chandran on petitions opposing the legislation brought by the Nitish Kumar government in November 2023.
  • Mr Kumar’s JDU was then allied to the RJD and the Congress. A month later, he switched to the BJP and became Chief Minister again. 
• Ritika Rani, one of the counsels appearing for the petitioners, told news agency PTI, “We had submitted that the amendments to the reservation laws were violative of the Constitution.
  • After hearing both sides, the court had reserved its judgement in March. Today, the final order has come.”
• In November last year, days after the Bihar Assembly unanimously passed the reservation Bill, the Nitish Kumar government had issued gazette notifications for raising the quota for deprived castes from 50 to 65 per cent in state government jobs and educational institutions.

• About 50% Rule
• The 50% rule, historically upheld by the Supreme Court, dictates that reservations for jobs or education in India should not exceed 50% of the total seats or positions.
• Initially established by a seven-judge bench in the 1963 M.R. In The Balaji case, reservations were considered an “exception” or “special provision” under the constitutional framework, thereby restricted to a maximum of 50% of available seats.
• However, the understanding of reservations evolved in 1976 when it was acknowledged that reservations are not an exception but a component of equality. Despite this shift in perspective, the 50% limit remained unchanged.
• A nine-judge bench in the Mandal commission case in 1990 reaffirmed the 50% limit and held that it is a binding rule, and not merely a matter of prudence. However, it is not a rule without exceptions
• States may surpass the limit in specific circumstances, notably to provide reservations to communities marginalized and excluded from the social mainstream, irrespective of geographical location.
• Moreover, the Supreme Court’s recent affirmation of the 103rd Constitutional Amendment validates an additional 10% reservation for Economically Weaker Sections (EWS).
• This means that the 50% limit applies only to non-EWS reservations, and States are permitted to reserve a total of 60% of the seats/posts including EWS reservations.

• Why the Quota in Bihar Challenged?
• Bihar had last year raised the quota for scheduled castes (SCs), scheduled tribes (STs), extremely backward classes (EBCs), and other backward classes (OBCs) in educational institutions and government jobs from 50% to 65%.
• This had been done after a caste survey showed that these groups formed roughly 84% of the state’s population.
• A clutch of petitioners challenged –
• The Bihar Reservation of Vacancies in Posts and Services (for SC, STs and OBCs) Amendment Act, 2023 and
• The Bihar Reservation (in Admission to Educational Institutions) Amendment Act, 2023.
• The petitioner argued that there was no scientific analysis of the caste survey data, and that the quota increase was based solely on the lack of proportionate representation in government jobs and educational institutions.

• Arguments For and Against Reservation
• For: The State Government had given this reservation due to a lack of adequate representation of these classes and not on a proportionate basis.
• Against:
• Together with the 10% EWS quota, the laws had pushed reservation in Bihar to 75%, well past the 50% ceiling set by the SC.
• After the caste survey, this decision of reservation was taken on the basis of the proportion of castes, and not on the basis of adequate representation in government jobs.
• The case of caste survey is currently pending for hearing in the SC.

• The Verdict of the Patna HC
• It set aside the Bihar government’s laws as ultra vires the Constitution and violative of the equality clause under Articles 14, 15, and 16.
• The HC said the enhancement of reservations beyond the 50% limit – as set by a nine-judge bench of the SC in 1992 – was “bad in law”.
• This is because it not only violates the principles of equality emanating from the Constitution, it fails to demonstrate any extenuating circumstance that could enable it to breach the 50% norm.

• Indira Sawhney Judgment and the Present Status of Reservation in India
• The SC’s 1992 judgement:
• From 1989-1992, the Government of India sought to implement the Mandal Commission’s recommendation of reservation (27%) for Other Backward Classes (OBCs).
  • In this context, the reservations under the Mandal Commission were challenged in the SC.
• In the Indra Sawhney vs Union of India or the Mandal judgement, a 9-judge Constitution bench of the SC (by a 6-3 majority) ruled that the total quota must never exceed 50%.
  • The apex court called this limit fair and reasonable (without giving any justification) and added that the 50% reservations rule may be deviated from in certain extraordinary situations.
• Present condition on reservation:
• Reservation for SCs, STs and OBCs in legislatures, higher education and public employment cannot exceed 50% of the total seats.
• However, some states (most notable is Tamil Nadu, where the reservation is 69%), the Union government and the SC itself have occasionally breached it over the years.

• SC’s observations in different cases:
• Maratha reservation: It resulted in the increasing of the total reservations in the state to 68% and was struck down by the SC in 2021 for violating the 50% ceiling established in its 1992 judgement.
• Economically Weaker Sections (EWS) reservation: A five-judge Constitution bench of the court upheld the quota last year by a 3:2 majority, stating that the 50% ceiling is flexible and it was only in the context of reservations for SCs, STs and OBCs.

• Other States Crossing the Limit:
• Other States that have already surpassed the 50% limit, even excluding the EWS quota, are Chhattisgarh (72%), Tamil Nadu (69%, under a 1994 Act protected under the ninth Schedule of the Constitution), and several north-eastern States including Arunachal Pradesh, Meghalaya, Mizoram and Nagaland (80% each).
• Lakshadweep has a whopping 100% reservations for Scheduled Tribes.
• Previous attempts by Maharashtra and Rajasthan have been struck down by the courts.

• Constitution and Reservation
• 77th Constitutional Amendment Act, 1995: The Indra Sawhney verdict had held there would be reservation only in initial appointments and not promotions.
  • However, addition of the article 16(4A) to the Constitution, empowered the state to make provisions for reservation in matters of promotion to SC/ST employees, if the state feels they are not adequately represented.
• 81st Constitutional Amendment Act, 2000: It introduced Article 16(4B), which says unfilled SC/ST quota of a particular year, when carried forward to the next year, will be treated separately and not clubbed with the regular vacancies of that year.
• 85th Constitutional Amendment Act, 2001: It provided for the reservation in promotion that can be applied with ‘consequential seniority’ for the government servants belonging to the SCs and STs with retrospective effect from June 1995.
• 103rd amendment to the Constitution (2019): 10% reservation for EWS (Economically Weaker Section).

Article 335: It says that the claims of SCs and STs shall be taken into consideration constituently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State.

• Some of the prominent laws (Article) framed for reservation policies:
• Article 15(5) – 93rd Amendment, 2006 – Provision of Reservation for Backward, SC, and ST classes in private educational institutions.
• Article 15(4) – 1st Amendment,1951 – Special provision for Advancement of Backward Classes.
• Article 16(3) – Reservation of posts in public employment on the basis of residence
• Article 16(4) – Reservation in public employment for backward classes.
• Article (330 – 342) – talks about special provisions for certain classes of society
• Article 45 – Under Directive Principles of State Policy, states have a duty to raise the standards of living and health of backward classes.
• Article 39 A – Under Directive Principles of State Policy – states have to ensure justice and free legal aid to Economically Backward Classes.

• Important Judgements regarding reservation
• Indra Sawhney Case (1992): Sets the limit for reservation as 50%.
  • It also nullified the provision of reservation in promotions and the concept of ‘Creamy layer’ was introduced.
• Nagaraj Case (2006): Affirmative action should be only to such an extent as not to compromise efficiency in administration.
• Jarnail Singh Case (2018): Reservation in promotions does not require the state to collect quantifiable data on the backwardness of the SCs and the STs.
• Janhit Abhiyan case (2022): Upheld the validity of 103rd Constitutional amendment for providing EWS reservation (10%) was upheld.

• Judicial Scrutiny of Reservation
• The State of Madras v. Smt.Champakam Dorairajan (1951) case was the first major verdict of the Supreme Court on the issue of Reservation.The case led to the First amendment in the constitution.
• The Supreme Court in the case pointed out that while in the case of employment under the State, Article 16(4) provides for reservations in favour of backward class of citizens, no such provision was made in Article 15.
• Pursuant to the Supreme Court’s order in the case the Parliament amended Article 15 by inserting Clause (4).
• In Indra Sawhney v. Union of India (1992) case the court examined the scope and extent of Article 16(4).
• The Court has said that the creamy layer of OBCs should be excluded from the list of beneficiaries of reservation, there should not be reservation in promotions; and total reserved quota should not exceed 50%.
• The Parliament responded by enacting 77th Constitutional Amendment Act which introduced Article 16(4A).
• The article confers power on the state to reserve seats in favour of SC and ST in promotions in Public Services if the communities are not adequately represented in public employment.
• The Supreme Court in M. Nagaraj v. Union Of India 2006 case while upholding the constitutional validity of Art 16(4A) held that any such reservation policy in order to be constitutionally valid shall satisfy the following three constitutional requirements:
• The SC and ST community should be socially and educationally backward.
• The SC and ST communities are not adequately represented in Public employment.
• Such reservation policy shall not affect the overall efficiency in the administration.
• In Jarnail Singh vs Lachhmi Narain Gupta case of 2018, Supreme Court holds that reservation in promotions does not require the state to collect quantifiable data on the backwardness of the Scheduled Castes and the Scheduled Tribes.
• The Court held that creamy layer exclusion extends to SC/STs and, hence the State cannot grant reservations in promotion to SC/ST individuals who belong to the creamy layer of their community.
• In May 2019 the Supreme Court upheld the Karnataka law that allows reservations in promotions for SCs and STs with consequential seniority.

• Way Forward
• Courts should reconsider the 50% reservation limit in light of shifting social dynamics, principles of equity, and the evolving socio-economic environment.
• They should also contemplate expanding the criteria for exceptions beyond social exclusion to encompass broader factors affecting historically disadvantaged communities, regardless of their location.

Additionally, a thorough review of the existing reservation policies is necessary to assess their effectiveness, impact, and alignment with contemporary societal needs.

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