Patna High Court: In the present case, batch of writ petitions were filed challenging the enhanced reservation to 65% within the State of Bihar, irrespective of 50% limit prescribed in Indra Sawhney v. Union of India, (‘Indra Sawhney Case’). The Division Bench of K. Vinod Chandran*, CJ., and Harish Kumar, J., set aside the Bihar Reservation of Vacancies in Posts and Services (for Scheduled Caste, Scheduled Tribes and Other Backward Classes) Amendment Act, 2023 and the Bihar Reservation (in Admission to Educational Institutions) Amendment Act, 2023 (‘collectively ‘Amendment Acts’) as ultra vires the Constitution and violative of the equality clause under Articles , and of the .
Background
Petitioners submitted that the Amendment Acts and the enhancement in reservation, was built upon the Caste Survey, the results of which were published couple of days before the Amendment Bill was introduced in the Legislature. The Caste Survey notified on 06-06-2022 was completed by 05-08-2023 and the report was published on 02-10-2023. The caste wise socio-economic report was brought out on 07-11-2023 and the bill was tabled hastily on 09-11-2023. Hence, no analysis was carried out.
It was also submitted that the automatic escalation of the percentage for each and every caste referred to in the Bihar Reservation of Vacancies in Posts and Services (for Scheduled Castes and Scheduled Tribes and Other Backward Classes) Act, 1991, (‘Reservation Act’), was mechanically carried out without reference to the real facts and figures coming out of the Caste Survey. Though land holding of every individual was one of the terms of reference in the caste survey, there was no analysis of the economic status of each community granted reservation, based on the details of the land holdings collected in the survey or an examination of the productive nature of such holding.
Petitioners stated that the drafting was done casually, employing words without meaning, especially in the portion where the object of the amendment was proclaimed. The affirmative measure was wrongly termed a ‘major’ and for data, the word ‘date’ was used. The Legislation proceeded on the basis that the population of the State was divided into 85%; comprising of SCs, STs, and Backward Classes and the balance 15% alone from the unreserved category. The entire substratum of the amendment turned on the computation of reservation percentage available to the unreserved category; which was an exercise of determining proportionate representation. Thus, it was submitted that was patently illegal and irregular and there was no constitutional sanction for making such proportional reservation under Articles 15 and 16; akin to that made under Articles 243-D and 243-T.
Analysis, Law, and Decision
The Court took note of the Caste Survey and stated that only 1.57% of the total population was employed under the Government and while looking at the proportion of the employees in each of the categories, as compared to the total population of each such category, the Curt stated that definitely the open category had an edge with 3.19%. However, when the Court compared the ratio of representation of the backward classes in government employment, which had to be computed on the total number of government employees, it found the backward classes to be adequately represented in public employment, by virtue of reservation and merit; which was 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. Thus, the Court stated that there was no requirement for an enhancement of reservations, as adequate representation now existed and there was no valid ground for breach of 50% rule; which in any way was not permissible.
The Court stated that the State should introspect on the reservation percentage within the 50% limit as conceded to the various categories which could be based on proportionate representation within the reservation categories; and to exclude the ‘creamy layer’. The Court also stated that the State should look into and objectively analyze as to which of the castes or communities within the OBC and EBC have more representation and which of them were more likely to be appointed on merit as this would give an indication of which of the casts or communities have in the past years reaped the benefits of the affirmative action and the beneficial schemes implemented for the upliftment of the poor and the marginalized.
The Court relied on Indra Sawhney Case (supra) and K. Krishna Murthy v. Union of India, and opined that the exception provided regarding 50% limit was with respect to far flung and remote areas. The inhabitants of such areas, who remain out of the mainstream of national life and the conditions peculiar and characteristic to them, could lead to different treatment being meted out to them, even justifying a breach of the 50% rule. The Court stated that it did not find that similar situation existed 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 Court stated that the Caste Survey, on the contrary, painted a different picture from what was argued, insofar as the adequate representation in public employment. The State of Bihar was neither a far flung or remote area nor was it out of the mainstream of national life, making an overbreadth of the 50% limit an imperative measure.
The Court noted that no analysis was made of the data collected in the Caste Survey nor was any expert appointed to make analysis of the data collected and opined that an expert’s views or a reference to a legally constituted Commission, was not essential in every such exercise. The Court said it was worried that the Government or the Legislature did not do such exercise or analysis 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 was on proportionate representation in the services of the State and educational institutions, which was clearly not permissible under Articles 15(4) and 16(4).
The Court opined that the cap of 50% was a inviolable rule and the rule of 50% limit in reservation applied to the Backward Classes, SCs, and STs, which was equally applicable under Articles 15(4) and 16(4) and in the present case, there were no extenuating circumstance enabling the State to breach the rule.
The Court opined that adequate representation was the core of Articles and of the and the exception provided, to exceed the 50% limit, was confined and restricted to extenuating circumstances and characteristically inherent aspects akin to far flung areas thus being kept away from the mainstream of National life. The Court stated that these conditions did not exist and were not demonstrated in the present case.
The Court took note of the records and observed that the State attempted no in-depth study or analysis before providing for enhancement of the reservation percentage. The Court opined that the contention that the State proceeded on the mere proportion of population of different categories as against their numerical representation in government services and educational institutions, was against the core principles of Articles and of the . Thus, the Court held that in the present case the enhancement of reservations beyond the 50% limit was bad in law based on the principles of equality emanating from the .
The Court allowed the writ petitions and set aside the Bihar Reservation of Vacancies in Posts and Services (for Scheduled Caste, Scheduled Tribes and Other Backward Classes) Amendment Act, 2023 and the Bihar Reservation (in Admission to Educational Institutions) Amendment Act, 2023 as ultra vires the and violative of the equality clause under Articles , , and of the .
[Gaurav Kumar v. State of Bihar, Civil Writ Jurisdiction Case No. 16760 of 2023, decided on 20-06-2024]
*Judgment authored by: Chief Justice K. Vinod Chandran
Advocates who appeared in this case :
For the Petitioners: Gopal Shankaranarayan, Amit Srivastava, Mrigank Mauli, Sanjay Singh, P N Shahi, Senior Advocates; Abhinav Srivastava, Pawan Reley, Neeraj Gupra, Akshay Lodhi, Alok Abhinav, Nrupal A. Dingankar, Rajat Kumar, Brahmanand Kumar, Naman Sherstra, Shyam Kishore, Riwaz Rai, Devesh Kumar, Madhav Gupta, Vishal Sinha, Alok Kumar, Nirbhay Prashant, Samir Kumar, Sanket, Smriti Singh, Sauravh Singh, Navin Kumar Singh, Dhananjay Kumar Tiwary, Dinu Kumar, Ritika Rani, Vardaan Mangalam, Rudrank Shivam Singh, Bandana Singh, Dhananjay Kumar Tiwary, Dinu Kumar, Ritika Rani, Vardhan Mangalam, Amit Anand, Deeksha Singh, Vishal Kumar, Deep Shekhar, Ankur Govind, Raghvendra Kumar, Sanjay Kumar, Advocates; Vikas Kumar (In person), Gaurav Kumar (In Person).
For the Respondents: P. K. Shahi, AG; K. N. Singh, Additional Solicitor General; Kumar Priya Ranjan, CGC; Vikas Kumar, Amish Kumar, AC to AG; P. K. Shahi, Advocate General; Y.V. Giri, Janardan Pd. Singh, Senior Advocates; Manish Kumar, Sanjiv Kumar, R. Ranjan, Pranav Kumar, Shrishti Singh, Devashish Giri, Sandeep Kumar, Vibhuti Kumar, Rana Vikram Singh, Rajiv Ranjan Kr. Pandey, Advocates
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