No Exceptional Circumstance In Bihar To Breach 50% Reservation Limit; Quota Merely Based On Population Proportion Impermissible : Patna High Court

The amendments had enhanced the reservations for the Scheduled Castes (SC), Scheduled Tribes (ST), Extremely Backward Class (EBC) and Backward Class (BC) to 65% from the existing 50%.

These amendments were challenged in a Public Interest Litigation (PIL) by the petitioners on grounds of violating the fundamental right of equality of opportunity in public employment and admissions to educational institutions under the Constitution of India. The respondent/State claimed that the increase in reservations was done in pursuance of the Caste Survey conducted by it, whose report was published on 02.10.2023.

The Division Bench of Chief Justice K. Vinod Chandran and Justice Harish Kumar examined Articles 15(4) & 16 (4) of the Constitution and pronounced that the amendments violate these provisions. Article 15(4) empowers the State to make any special provision for the advancement of SC, ST and any socially and educationally backward classes of citizens and Article 16 (4) provides that the State can reserve posts for any backward classes who are not adequately represented in the services of the State.

The Court provided the following reasons for striking down the amendments as unconstitutional: (a) there is a ceiling limit of 50% for reservations (b) the reservation was based on mere proportion to the population of backward classes (proportionate reservation) (c) State/respondent did not conduct any analysis or in-depth study before enhancing reservations under the amendment acts

Ceiling Limit of 50% in reservations

The Court relied on various judgments of the Supreme Court including Indra Sawhney vs. Union of India, 1992, M.R.Balaji vs. State of Mysore, 1962, M. Nagaraj v. Union of India, 2006 and Union of India v. Rakesh Kumar & Others, 2010, which laid down a ceiling of 50% for providing reservations. It noted that the decisions of the Apex Court make it clear that there should be a balance between the equality of opportunity available to citizens under Article 16(1) and the special provision for backward classes under Article 16(4). Further that Article 15(4) is akin to Article 16(4) and thus any reservations should be less than 50%.

The High Court noted that only under limited circumstances, the ceiling of 50% could be breached. It referred to Indra Sawhney where the Supreme Court held that the 50% limit in the reservation can be exceeded only to fill unfilled vacancies in the previous years i.e. carry forward any unfilled vacancies of past years. Additionally, reservations could exceed the given limit in areas which are remote and whose population is not within the mainstream of national life.

The Court held that the situation in Bihar does not disclose any extenuating circumstance to provide relaxation to the 50% limit. It said:

“We do not find ourselves persuaded to hold the situation in the State of Bihar, especially looking at the Caste Survey, to be of such extenuating nature for 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. The State of Bihar is neither a far flung or remote area nor is it out of the mainstream of national life making an overbreadth of the 50% limit an imperative measure.”

Reservation based on mere proportion to the population of backward classes

The Court considered that the enhancement of reservations in the amendment acts was done mechanically, by just taking into account the total population of the backward classes and the percentage of their representation in government services and educational institutions. It noted that the State only took into consideration the fact that the backward classes were a majority in the State and provided reservations proportionate to their population. The Court said:

“The only consideration that weighed with the legislature was that the backward classes constitute the major part of the population and that their representation in the various services and educational institutions are lesser in proportion than the unreserved category of government employees bear with their total population.”

The Court was of the view that providing proportionate reservation i.e. reservation based on the population of backward classes is violative of Articles 15(4) and 16(4) of the Constitution.

It held that for reservations under Articles 15(4) and 16(4), the relevant factor to be taken into consideration is 'adequate representation' and not proportionate representation. It relied on the Indra Sawhney judgment where it was held that Article 16(4) envisages adequate representation and not proportionate representation.

It noted that proportionate representation is only application for the reservation percentage applicable to the various groups coming within the backward classes. 

“…reservation, unless it is with respect to carry-forward vacancies has to be confined to 50% which has to be based on adequate representation; proportionate representation being applicable only insofar as the reservation percentage applicable to the various groups coming within the backward classes, i.e. OBCs, MBCs, SCs and STs,” it said.

Backward classes adequately represented

The Court did not agree with the contention of the respondent/State that there was an inadequate representation of backward classes as revealed from the Caste Survey Report. It stated that the report reveals that there is an adequate representation in government employment as well as educational institutions.

It observed, “…when we compare the ratio of representation of the backward classes in government employment, which has to be computed on the total number of government employees, we find the backward classes to be adequately represented.”

The Court further deemed that backward classes were represented adequately in government posts through reserved as well as general categories. It noted that “…the fact remains that backward communities are adequately represented in public employment, by virtue of reservation and also merit” The Court therefore stated that there was no requirement for an increase in reservations as adequate representation already existed.

Analysis before enhancing reservations

The Court was of the opinion that an enhancement in reservations requires an examination of the overall economic and social status of a caste. It asserted that an objective analysis needs to be done that takes into account the change in social milieu. In the present case, the Court stated that the respondent/State has not made any scientific analysis of the caste survey report.

While observing that it is not necessary to have an expert or to constitute a committee to recommend an increase in reservations, the Court raised concerns about the lack of analysis by the government or State legislature to justify the amendments. It was held:

“There was no scientific analysis conducted nor was any expert appointed to make analysis of the data collected. An expert's views or a reference to a legally constituted Commission, we have held, is not essential in every such exercise. What worries us is the fact of no such exercise or analysis having been done by the Government or the Legislature in bringing about the Amendment Acts. After the collection of data, there was a frog leap into the amendment enhancing the reservations beyond 50%, which we found was again on proportionate representation in the services of the State and educational institutions, clearly not permissible under Articles 15(4) & 16(4).”

Other observations

Referring to the concept of the 'creamy layer', the Court noted that a caste which has developed marginally or considerably would not require an enhancement in reservations as opposed to a caste which has not developed. It remarked, “Otherwise within the backward caste and most backward caste there would be situations in which one or more of the castes which had developed better than the others would continue to appropriate the benefits because of the social and financial capital they had achieved over the years.”

The Court also remarked that “the State should introspect on the reservation percentage within the 50% limit as conceded to the various categories which could be on the basis of proportionate representation within the reservation categories; which is also to say that the 'creamy layer' should be excluded.”

Conclusion

The Court reiterated that the cap of 50% is an inviolable rule for reservations to the backward classes. It said:

“The rule of 50% limit in reservation, thus, applies to the Backward Classes, Scheduled Caste and Scheduled Tribes, which is equally applicable under Article 15(4) and Article 16(4) and in the present case, we see no extenuating circumstance enabling the State to breach the rule…”

It thus struck down the amendments for violating the principle of equality under the Constitution.

Case title: Gaurav Kumar & Ors., vs. The State of Bihar, CWJC-16760/2023

Citation: 2024 LiveLaw (Pat) 45