7 min readJun 22, 2024 10:26 AM IST
First published on: Jun 21, 2024 at 08:34 PM IST
The Indian Constitution promises social justice and permits the state to make special provisions in favour of the underprivileged. Governments of all political parties, including the BJP, have tried to expand reservation — more out of electoral compulsion than due to constitutional principles. However, a closer look at the judicial response to these reservation policies demonstrates that our judiciary, through the “strict scrutiny” doctrine, has been quick to nullify such policies with respect to Jats, Gujjars, Marathas, Patidars and Muslims. The judiciary has seemed more concerned with “merit” and “efficiency in administration”.
An 87-page judgment by Chief Justice K Vinod Chandran and Justice Harish Kumar of the Patna High Court struck down 65 per cent reservation in Bihar. This expansion was based on the much-discussed Caste Survey of 2023. The verdict is consistent with the jurisprudence of the Supreme Court. It is a setback for the Congress party, which has promised a Caste Survey in all states, removal of the 50 per cent upper limit of reservations and giving a proportionate share to the Other Backward Classes. The High Court did opine that the only consideration that the Nitish Kumar government weighed in with was that the Backward Classes constitute a major part of the state’s population and their representation is not proportionate in the unreserved category.
The judgment has categorically rejected the “proportionate representation” of Backward Classes and held that the term “proportionate” is alien to Articles 15 and 16. The expression “proportionate representation” has been used in Articles 330(2), 243D and 243T with respect to the representation of Scheduled Castes and Tribes in the Lok Sabha, panchayats and municipalities, respectively.
Article 16 uses the term “inadequacy of representation”. The High Court rightly relied on Indra Sawhney (1992) in which the SC had observed that “adequate representation cannot be read as proportionate representation”. But then inadequacy is indeed related to the poor proportion of representation of any backward class and the impugned reservation was not really proportionate as Scheduled Castes, Scheduled Tribes and backward castes constitute 84.46 per cent of Bihar’s population. And the SC has acknowledged in Indra Sawhney itself that “proportion of population of backward classes to the total population would certainly be relevant”. Is it not a fact that prior to extending EWS reservation on the eve of the 2019 general elections, no survey was done to examine the inadequacy of representation of the EWS category? True, the policy was brought in through a constitutional amendment, which restricted its judicial scrutiny only on the basis of “basic structure”. However, Janhit Abhiyan (2022) is a unique pronouncement in which the consistent judicial approach of strict scrutiny was diluted.
The other major ground for striking down the Bihar reservation amendment is the breach of the 50 per cent upper ceiling for reservation. In M R Balaji (1962), the SC came up with the judicial innovation of the 50 per cent limit, holding it per se violative of the right to equality. It has been consistently followed in a catena of judgments such as Devadasan (1964), N M Thomas (1976) and Indra Sawhney (1992). But even Indra Sawhney said that this limit need not be religiously adhered to in far-flung or remote areas or in areas that remain out of the mainstream of national life.
The High Court refused to accept that Bihar is not in the national mainstream. Bihar has indeed been at the epicentre of national politics. But the government did not inform the court that Bihar has the lowest per capita income (less than $800) in the country — 30 per cent of what the average Indian earns — and the highest fertility rate. Only 12 per cent of its population lives in urban areas compared to the 35 per cent national average. The state’s college density is the lowest in the country and every third person lives below the poverty line. These are compelling reasons. In fact, one was surprised by the apex court’s judgment in the EWS case (2023), applying the sacrosanct 50 per cent upper ceiling for reservation only for SCs, STs and OBCs, and not the EWS category.
The High Court has rightly observed that the recommendation of the National Backward Classes Commission or the State Backward Classes Commission was not necessary but its insistence on the so-called “analysis” of the Caste Survey and consultation with the experts would in the future put additional restraints on the government’s affirmative action policies. Indra Sawhney (1992) did refer to consultation with experts led by sociologist M N Srinivas (who, along with two other experts, Yogender Singh and B K Burman, disowned the report). But since Mandal’s 11 yardsticks of backwardness had been approved by the SC, there was no need for experts’ inputs after the massive exercise of surveying a population of 11 crore. The government was well within its rights to act on the report and then the assembly unanimously passed the amendment enhancing reservation. Even the BJP, which had opposed the Caste Survey, supported the reservation amendment.
The 50 per cent rule is justified in the name of efficiency and merit. The Patna High Court too observed that “merit… cannot be sacrificed completely”. No scientific or empirical research has proved that SC/ST/OBC employees, in the performance of their duties, are less efficient than employees recruited under the general category. Justice Chinnappa Reddy in Vasanth Kumar (1985) demolished the efficiency argument when he stated that “efficiency is very much on the lip service of the privileged whenever reservation is mentioned. Efficiency, it seems, will be impaired if reservation exceeds 50 per cent; efficiency, it seems, will suffer if the carry forward rule is adopted; efficiency, it seems, will be injured, if the rule of reservation is extended to promotional posts.” He went on to say that “the underlying assumption that those belonging of upper castes and classes who are appointed to non-reserved posts because of their ‘presumed merit’ naturally perform better than those who have been appointed to reserved posts and the clear stream of efficiency would be polluted by the infiltration of latter into the sacred precincts is a vicious assumption, typical of superior approach of elitists classes.”
Justice Chandrachud in B K Pavitra II (2019) observed that we need to redefine our notions of merit in terms of a more inclusive and plural society. Merit cannot lead to exclusion. He rightly held that the transformative vision of the Constitution cannot be buried by the myths around “merit”. Merit must be measured in terms of social good.
The writer is vice-chancellor of Chanakya National Law University, Patna. Views are personal.
The High Court rightly relied on Indra Sawhney (1992) in which the SC had observed that “adequate representation cannot be read as proportionate representation”. (File Photo) 
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