Bihar moves top court against HC quota hike order

The Bihar government has approached the Supreme Court challenging the Patna high court decision striking down the law enhancing caste-based reservation to 65% in jobs and admissions and argued that the caste survey carried out by the state adequately satisfies the parameters required to breach the 50% ceiling on reservation set by the top court in the 1992 Indra Sawhney judgment.

The Patna high court on June 20 decided a clutch of petitions challenging the Bihar Reservation of Vacancies in Posts and Services (for Scheduled Caste, Scheduled Tribes and Other Backward Classes) Amendment Act, 2023 and Bihar Reservation (in Admission to Educational Institutions) Amendment Act, 2023 and held the two laws to be violative of Articles 14 (equality), 15 (right against discrimination), and 16 (right against discrimination in employment) of the Constitution of India.

ALSO READ| The Patna HC judgment on reservation and its implications on future quota policies

In its appeal filed through advocate Manish Kumar, the Bihar government told the top court the Indra Sawhney judgment held that the 50% reservation ceiling can be breached if there are “exceptional circumstances”. The state said that these exceptional circumstances were provided by the Bihar Caste Survey, an exercise conducted by the state to ascertain social and educational backwardness among scheduled castes, scheduled tribes, backward classes (BC), extremely backward classes (EBC), other castes and general category. The survey findings published in October last year found that these groups formed roughly 84% of the state’s population.

“The Amendment Acts were passed pursuant to the Bihar Caste Survey 2022-23, which clearly satisfy the social test parameters affirmed by this Court to breach the 50% ceiling of reservation,” the appeal said, adding, that such an exercise was not conducted by the Maharashtra government at the time when a five-judge bench struck down the Maratha quota law in 2021.

“Bihar is the only State which carried out this exercise and published its caste survey report on socio-economic and educational conditions of entire population,” the state told the top court. It further added that the HC failed to note this aspect and held that the two Acts endeavour to provide proportional representation when the aim of the Acts under challenge is to provide “adequate representation” to backward classes by enhancing the reservations to 65% from the existing 50%.

The state further argued that the HC exceeded the scope of judicial review by determining that the representation of backward classes in government services was adequate when this is to be determined by the state .

“In the presence of relevant material for such satisfaction (caste survey), the state’s decision cannot be challenged on grounds of propriety, reasonableness, and sufficiency,” the state submitted, seeking to set aside the HC decision.

The HC judgment pronounced by a bench of chief justice K Vinod Chandran and justice Harish Kumar struck down the legislations as “bad in law” for violating the 50% ceiling set by the nine-judge bench of the top court in Indra Sahwney.

It said, “There is no requirement for an enhancement of reservations, as adequate representation now exists and there is no valid ground for breach of 50% rule, which in any way is not permissible.”

It further held, “The fact remains that backward communities are 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 reservation and the various beneficial welfare schemes implemented by the state in achieving an element of social capital.”

Tamil Nadu, at present, has a law providing for 69% reservation for identified classes. Although a challenge to this law remains pending before the top court, it has been saved so far on the ground that the law received a presidential assent in 1993 and was also put in the Ninth Schedule of the Constitution, which provides only limited scope of judicial review.