Why Patna HC striking down Bihar’s quota hike is a huge setback for Nitish govt

The Patna High Court’s ruling on June 20 striking down the Bihar government’s decision to raise reservations in government jobs and educational institutions from 50 per cent to 65 per cent has come as a significant legal challenge to the Nitish Kumar administration.

In November 2023, the Nitish-led mahagathbandhan (MGB) government, which had Tejashwi Yadav’s Rashtriya Janata Dal (RJD) and Congress as partners, had raised the state’s reservation quota to 75 per cent, including the 10 per cent quota for the economically weaker sections (EWS).

The Patna High Court, however, has set aside the Bihar Reservation of Vacancies in Posts and Services Amendment Act, 2023 and the Bihar Reservation (in Admission to Educational Institutions) Amendment Act, 2023 “as ultra vires the Constitution and violating the equality clause under Articles 14, 15 and 16”.

Other than the EWS quota that was left unchanged, the state government had increased the quantum of reservations to 20 per cent for the Scheduled Castes, 2 per cent for Scheduled Tribes, 18 per cent for Other Backward Classes (OBCs), and 25 per cent for Extremely Backward Classes (EBCs).

Besides triggering a debate, as the two state laws had gone beyond the permissible limits of reservations in India, particularly in view of the “50 per cent” limit prescribed by the Supreme Court, it also raised eyebrows in the backdrop of the established legal explanation that “adequate” representation of the oppressed classes in government jobs does not necessarily mean any “proportionate representation”.

The Nitish government had increased the reservation based on last year’s caste survey, which established the overwhelming majority of EBCs and OBCs together accounting for 63.13 per cent of the total population of over 130 million (OBCs 27.12 per cent, EBCs 36.01 per cent).
Legal experts, however, believe that though a state can exceed the 50 per cent limit in exceptional circumstances (for instance, to provide reservations to those from far flung areas of the country seen outside mainstream of society), it cannot align the quantum of reservation in proportion to the population of the reserved classes. This is because the only valid aim behind reservations is to secure “adequate” representation and not “proportionate” representation.

As Nitish had left the MGB alliance to join the National Democratic Alliance (NDA) in January, the ruling alliance had placed high hopes on the expanded quota to earn electoral goodwill.
Having seen their Bihar Lok Sabha seat tally fall from 39 in 2019 to 30 of 2024, the ruling NDA appeared to be working to cover gaps in their caste support base in the run-up to next year's assembly elections. The increased reservation was a major tool that the NDA wanted to use to win the support of the majority.

The Nitish administration had positioned the quota increase as a measure to enhance social justice and representation. As Bihar moves towards assembly elections, the court’s decision may have significant political ramifications since it may create a lack of enthusiasm among OBC and EBC supporters in the ruling alliance.
The NDA had also been pinning high hopes on this expanded reservation bracket to assert their social justice credentials, besides usurping Tejashwi’s employment narrative with fresh appointments ahead of the assembly polls.

However, the Patna High Court verdict can turn the tables. The state government that was moving with speed to conduct government recruitments in various departments to wrest Tejashwi’s advantage of job creation will be hamstrung because they can no longer offer the 65 per cent reservation bracket to numerically significant communities while making fresh recruitments.

No wonder, Tejashwi has seized the opportunity in the wake of the Patna High Court judgment. The RJD leader, who is also leader of the Opposition in the Bihar assembly, has attacked the BJP’s credentials, describing them as anti-reservation and recalling how the saffron party had made every effort to halt “our (MGB) government's caste-based survey”.

Tejashwi has reminded that the previous Bihar government, in which he was deputy chief minister, had made the caste-based survey report public and subsequently increased the reservation limit to 75 per cent, besides sending it to the BJP-led central government to be included in the 9th Schedule of the Constitution.

“On December 10, 2023, during the Eastern Regional Council meeting chaired by Union home minister Amit Shah in Patna, we also requested to include it in the 9th Schedule. However, even after six months, the BJP government has not done so. This demonstrates the BJP is against caste-based census and reservations. We consistently demanded this throughout the Lok Sabha elections,” Tejashwi said.

Tejashwi has urged the state to immediately approach the Supreme Court for a legal remedy. “Otherwise, the RJD will appeal to the Supreme Court. We also request our honourable chief minister to meet the prime minister along with an all-party delegation so that we can strongly present our case for including it in the 9th Schedule,” he said.

It will be a major challenge for the state government to prove that reservation expansion by the Bihar government falls within the exception carved out in the Mandal Commission case. The state government has maintained that they have increased the quantum of reservations in view of the results of the caste census. But then, the Supreme Court has earlier held that the State cannot fix the quantum of reservation simply in proportion to the population of the reserved classes. This is because securing “adequate” representation does not mean “proportionate” representation.

The 9th Schedule of the Constitution includes a list of central and state laws that cannot be challenged in courts. While Centre still has the option of placing Bihar's laws in the 9th schedule of the Constitution, so that it is guaranteed immunity from legal scrutiny. It remains to be seen if the Narendra Modi government would do so before the Bihar government approaches the Supreme Court.

Subscribe to India Today Magazine