Manas Dasgupta
NEW DELHI, June 20: In a big setback to the Bihar Chief Minister Nitish Kumar, the Patna High Court on Thursday struck down the 65 per cent reservation in government jobs and education that was introduced last year after a state-wide caste survey.
The state government’s move to increase the reservation quota for the backward Classes (BC), Extremely Backward Classes (EBC), Scheduled Caste (SC) and Scheduled Tribe (ST) from 50% to 65% in educational institutions and government jobs had taken the reservation in Bihar past the 50 per cent cap mandated by the Supreme Court.
On November 7, 2023, the Nitish Kumar-led then Mahagathbandhan government had raised the Bihar quota slab to 65 per cent. With this, reservation in the state effectively became 75 per cent when the 10 per cent quota for economically weaker sections (EWS) was taken into consideration.
A division bench of HC Chief Justice K Vinod Chandan and Justice Harish Kumar set aside the government’s notifications, saying that it is “infringing upon right to equality.” After the High Court’s judgement, senior JDU leader and minister Ashok Choudhary said the state government would study the judgment and challenge it in the Supreme Court.
A Public Interest Litigation (PIL) petition was filed in the Patna High Court on November 27, 2023, challenging the decision of the Bihar Government to increase reservation in the State from 50% to 65%. The PIL plea has been filed by Gaurav Kumar and others.
In this case, after completing the hearing on the petitions filed by Gaurav Kumar and others, the decision was reserved on March 11, 2024, which was pronounced on Thursday. A Division Bench of Chief Justice K.V. Chandran had a long hearing on the petitions of Gaurav Kumar and others.
Advocate General P.K. Shahi argued on behalf of the State Government. He had told the court that the State Government had given this reservation due to a lack of adequate representation of these classes. The State Government had not given this reservation on a proportionate basis. In these petitions, the law passed by the State Government on November 9, 2023, was challenged. In this, 65% reservation was given to SC, ST, EBC and OBC, while only 35% of posts could be given to general category candidates in government service.
Advocate Dinu Kumar had told the court in previous hearings that cancelling 10% reservation for EWS (Economically Weaker Sections) in the general category is against Section 14 and Section 15(6)(b) of the Indian Constitution.
Mr Dinu had said 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. He had argued that the Supreme Court had imposed a restriction of 50% on the limit of reservation in the Indira Sawhney case. The case of caste survey is currently pending for hearing in the Supreme Court.
In this, the decision of the State Government was challenged in the Supreme Court on the basis that the State Government had increased the limit of reservation in government jobs from 50% to 65%.
The Bihar Assembly on November 9, 2023, unanimously passed a Bill to increase reservation for Backward Classes, Extremely Backward Classes, Scheduled Castes, and Scheduled Tribes from the existing 50% to 65%. Together with the 10% Economically Backward Class (EWS) quota, the Bill had pushed reservation in Bihar to 75%, well past the 50% ceiling set by the Supreme Court.
According to the legislation, named the Bihar Reservation Amendment Bill, quota for Extremely Backward Classes (EBC) was raised from the existing 18% to 25%; for Backward Classes (BC) from 12% to 18%; for Scheduled Castes (SC) from 16% to 20%; and for Scheduled Tribes (ST), the quota has been doubled, from 1% to 2%. The existing 3% reservation for BC women has been scrapped.
Governor Rajendra Vishwanath Arlekar approved the Bills on November 18, 2023, followed by the State Government issuing its notification in the gazette on November 21, 2023.
The advocate for the petitioner told the High Court that the quota raise infringed upon right to equality and other norms.”
The petition had demanded the quashing of Bihar Reservation of Vacancies and Posts in Services (for Scheduled Castes, Scheduled Tribes and Other Backward Classes) (Amendment) Act 2023, arguing that the Constitution talked about “adequate representation, not proportionate representation.”
The petitioner also argued that when the Supreme Court had quashed similar decisions in the past, it was not prudent on part of the state government to raise the quota cap.
Ritika Rani, one of the counsels appearing for the petitioners, said, “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.”
Responding to the high court ruling, RJD’s Rajya Sabha MP Manoj Kumar Jha said it was an “unfortunate” development. “Such rulings prolong the journey towards the destination of social justice. We remember Tamil Nadu had to struggle for many years, we will do the same. But we must see what is the social background of these petitioners, who is controlling them from behind the curtains. We saw the same thing during the caste survey,” he said.
The RJD leader stressed the party’s demand to put reservation under the ninth schedule of the Constitution to shield it from court orders. “The NDA government is in power now, courtesy Nitish Kumar. He should go to the higher court and secure the rights of a big population.”
