Patna High Court Striking Down Bihar Govt’s Hike In Reservation Quota Poses Many Questions

Patna High Court striking down Bihar government’s hike of reservation quota for Dalits, backward castes and tribals to 65% in jobs and education has certainly not come as a surprise nor has been shocking. It was well perceived that like any other affirmative action meant for the upper mobility of the Dalits and poor, this too would have to undergo strict legal scrutiny.

The Mahagathbandhan government in November 2023 had decided to raise reservation quotas for Dalits, backward classes and tribals from 50 to 65 per cent. The cabinet decision was nevertheless to the liking of the upper castes of the state and a number of BJP leaders and supporters moved the Patna High Court to scrap the order. The alliance government, which had JD(U), RJD, CPI(ML) and Congress as its members had resolved to amend the policy and raise the reservation following a comprehensive survey of castes which gave a fresh estimate of the population of SCs, STs, OBCs and extremely backward classes (EBCs) in Bihar.

The government decision was not whimsical. This nature of actions always has a political orientation and dynamics, but it would be an act of naïveté to look at the move through the narrow prism of politics. In this particular case it was the exigency of empowerment of dalits and poor and boosting their economic status that had motivated the government to increase the reservation.

Pursuing the politics of inclusive empowerment has always faced the challenges and resistance from the landed gentry and upper castes. The BJP and RSS have always been opposed to reservation. It is still fresh in the memory of the people how the rightist BJP and RSS had opposed the Mandal Commission recommendation and organised violent protest across the country. Even in 2015 the RSS chief Mohan Bhagwat had observed that policy of reservation ought to be reviewed, obviously implying that he was opposed to reservation.

RSS and BJP knew that the political forces supporting reservation would gain politically and help electorally. Actually the INDIA bloc performing so incredibly in the Lok Sabha election owes to this element. The poor, adivasis and Dalits have come to realise that the BJP and RSS were opposed to them on class line and it was mere electoral compulsion that forced them treat as equals

A Division Bench headed by Chief Justice K Vinod Chandran passed the order on a bunch of petitions which had opposed the legislation. However, the court ought to have taken a holistic view of the changing economic contour in the country and needs of the Dalits, SC and Adivasis for their upward mobility. Law is for promoting and protecting the interest of the people. It is a fact that the quantum of poverty and number of poor are shooting up and it has multiplied many times during the last ten years.

Some concrete steps ought to be initiated in terms of economic moves to bridge the chasm. Judiciary must interpret the law and act under the ambit of Constitution, but it is also a bare fact that Constitution does not endorse economic disparity and poor are forced to become poorer.

The petitioners claim that the amendments violated Articles 14, 16 and 20 of the Constitution. Let us take a look at these Articles. While Article 14 reads: “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”, Article 16 prohibits discrimination in employment in any government office. The government can allow reservation for any community if they are not adequately represented in service or posts under the State.

Has the court before striking down the amendment verified or collected empirical data whether the Dalits, SC and Tribals are adequately represented in service and they longer require reservation? Caste is a reality as it manifests the class interest. Upper caste and landed gentry would certainly dislike the idea of giving more share of power and affluence to these people. These poor in true sense imbibe the class interest of the deprived and those who are outside the periphery of the economic and social empowerment.

It was after the refusal of Modi government to undertake a headcount of the social groups other than SCs and STs as part of the census that Bihar government was forced on October 2 last year to come out with its report on a caste survey. The survey was quite revealing. Around 90 per cent of the population, which consists of the Dalits, OBCs, Adivasis and minorities are denied their rights and have no say in the decision-making process and they are poor.

It is worth mentioning that the Supreme Court’s cap on reservations at 50 per cent had already been breached with the introduction of 10 per cent quotas for economically weaker sections (EWS) belonging to the upper castes by the Centre and replicated by states. Together with the quotas for EWS, reserved seats in the state rose to 75 per cent of the total population.

Significance of this issue could be gauged from the simple fact that Congress leader Rahul Gandhi turned it into a major political and ideological issue by projecting it as “five pillars of justice”. While leading Bharat Jodo Nyay Yatra he had said that five pillars of justice would give strength to the country. They are justice for youth, justice for women, justice for farmers, justice for labourers, and justice in terms of participation.

This promise of empowering the poor has in fact caught the imagination of the Dalits, Sc, ST and minorities which eventually helped the Congress and INDIA bloc to resurge as the effective counter to Rightist forces and their philosophy in the recent Lok Sabha election. BJP was against reservation was also manifest in its refusal to concede the demand of the Bihar government to place the amended reservation laws in the Constitution’s Ninth Schedule under which includes a list of Central and state laws that cannot be challenged in courts.

In 1992, the Supreme Court capped reservations for the backward classes at 50 per cent. But the seven judge bench of apex court on February 7, 2024 had also observed that reservation for Scheduled Castes and Scheduled Tribes (SC/ST) was consistent with the need to maintain efficiency in administration. The dubious intentions of Modi of not providing reservation to Dalits, Sc Tribals and minorities is also manifest in the observation of Modi who while electioneering has said the Congress had designs to provide reservations to Muslims from the quotas earmarked for the Scheduled Castes (SCs) and Scheduled Tribes (STs).

The bare fact is Indian administrative system and government apparatus is aligned against the lower castes. Even Rahul had asserted that the country’s 90 per cent population including the Dalits, OBCs, tribal communities and the minorities does not have representation in the country’s narrative and power structure. Gandhi said his party aims to ensure the participation of the country’s 90 per cent population in the country’s progress. Undeniably the political compulsion made him to express this view, but at the same time it cannot be denied that if the system had worked in consonance to the needs of the poor, he would not got the opportunity to say this.

The rightist forces represented by RSS and BJP have their one point programme to serve the interest of the upper caste, rich and feudal lords and in their quest they would prefer to keep the poor and dalits under subjugation and continue to exploit them. It is not that the Bihar government had opened the chest for the Dalits and poor. According to 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%

Patna High Court striking down the enhanced reservation quota nevertheless strongly endorses the demand for an Economic financial survey to find out who holds how much of the country’s resources. How much share the OBC, Dalit, minority, tribals and the poor general caste have. (IPA Service)