Limit and excess: On the Patna High Court judgment and enhanced reservation
Creamy layer should be kept out, but the ceiling on quota is artificial
The Patna High Court judgment striking down enhanced reservation for various communities in employment and education marks yet another instance of the strict application of the 50% ceiling on total reservations by the judiciary. The verdict has invalidated the Nitish Kumar regime’s decision of last year to amend its quota law to raise Backward Classes (BC) reservation from 12% to 18%, that of Extremely Backward Communities (EBC) from 18% to 25%, and those of Scheduled Castes and Scheduled Tribes from 16% to 20% and 1% to 2%, respectively. This took the total reservation level to 65%. Applying judicial precedents that have now crystallised into a legal bar on reservations exceeding 50%, the court has inflicted a huge blow to the Bihar government’s plan to utilise its Caste Survey findings to expand its affirmative action programme. The government may have erred in its policy approach — armed with caste-wise population numbers — when its preamble to the amending law said it aimed to achieve “proportionate equality”. The court agreed with the petitioners challenging the increased quotas on a key point: that adequate representation does not mean ‘proportionate representation’, as clarified in the famous nine-judge verdict in Indra Sawhney (1992). If any attempt to raise the quota level earmarked for any section to be in proportion to the State’s population results in the total reservation percentage exceeding the permissible limit, it is liable to be unconstitutional.However, it is unfortunate that the court was so zealous about the reservation ceiling, that it rejected the State’s argument on the existence of special circumstances. Indra Sawhney did allow the quota ceiling to be exceeded in “extraordinary situations”. It suggested that the population living in remote or far-flung areas may require to be treated in a different way. The court seems to have taken that geographical remoteness is the only special situation to justify an enhanced quota and denied the benefit to Bihar. It is difficult to believe that a State which is backward in most parameters of human and social development should be denied the use of its executive and legislative power to expand its social justice programme. The court surely saw merit in the argument that there was no in-depth study before enhanced reservation was implemented. This raises the question whether the survey was indeed quite exhaustive when it gave a caste-wise break-up of the population and their economic conditions. While there may be a case for pruning the BC or EBC list based on the progress made over the last few decades, it might not be just to stymie every attempt to enhance the numerical representation of historically deprived sections on the ground that it exceeds the quota ceiling.