In Bihar, reservation now at 75%. What about Supreme Court's 50% cap?

Bihar now has 75 per cent reservation in government jobs and educational institutes. This after the Bihar Assembly on Thursday passed a bill increasing reservation for deprived castes from 50 to 60 per cent in government jobs and educational institutions. Chief Minister Nitish Kumar said in the House, “Now reservations will be 75 per cent, including 10 per cent for economically weaker sections which the Centre introduced a few years ago and we, too, implemented in the state”. This development comes in the backdrop of a comprehensive caste survey conducted by the Nitish Kumar government. The Kumar government’s decision also takes Bihar’s reservation quota past the 50 per cent camp imposed by the Supreme Court. But what did the Supreme Court say about reservation? How have states responded? And will the Bihar government’s quota work? Let’s take a closer look: What did the SC say? As per The Wire, the apex court in its landmark 1992 judgment in the Indra Sawhney vs Union of India — popularly known as the Mandal Commission verdict – capped reservation for the backward class in government jobs and educational institutions at 50 per cent. The nine-judge bench of the court was at the time the largest ever constituted, as per News18. The apex court, while upholding a 27 per cent quota for backward classes, voided the government notification reserving 10 per cent of state jobs for economically backward classes among higher castes, as per the Drishti IAS website.

The court ruled that economic backwardness in itself cannot be a criteria for reservation.

The judgment also brought to the fore the concept of the ‘creamy layer’ – who would not receive reservation. The creamy layer was defined as: “Some members of a backward class who are socially, economically as well as educationally advanced as compared to the rest of the members of that community. They constitute the forward section of that particular backward class and eat up all the benefits of reservations meant for that class, without allowing benefits to reach the truly backward members”. The Supreme Court also stated that reservation for backward classes be only for initial appointments and ordered that they not apply to promotions. The 9-judge verdict handed down on 16 December 1992 stated, ”Reservation being an extreme form of protective measure should be confined to a minority of seats even though the constitution does not lay down any specific bar, the principle of balancing equality; reservation of any manner shall not exceed 50%”. What has happened since the verdict? Since the 1992 verdict, a bunch of states – Maharashtra, Telangana, Tamil Nadu, Haryana, Chhattisgarh, Rajasthan, Madhya Pradesh and now Bihar – have passed laws to let reservations exceed the 50 per cent cap, as per the Drishti IAS website.

The states have contended that the 50 per cent cap is not ‘sacrosanct.’

Then, in 2019, the Centre decided to give economically weaker sections (EWS) 10 per cent reservation. On 8 and 9 January, 2019, the Lok Sabha and Rajya Sabha cleared a bill that gave economically weaker sections (EWS) 10 per cent reservation in admissions and government jobs that excluded the poor among the SC/ST/OBC categories. The Bill, known as the 103rd Constitution Amendment of 2019, was signed by then president Ram Nath Kovind. [caption id=“attachment_13160262” align=“alignnone” width=“640”] The Bill, known as the 103rd Constitution Amendment of 2019, was signed by then president Ram Nath Kovind.[/caption] It allotted 10 per cent reservation for EWS over and above the existing 50 per cent reservation to SCs, STs, and Other Backward Classes (OBCs). That led to a flood of petitions being filed against the Bill. The Supreme Court in November 2022 in another landmark ruling upheld the 103rd Constitution Amendment of 2019. The five-just bench, led by then Chief Justice of India UU Lalit on his last day of presiding court proceedings, held 3:2 that the law is not discriminatory and does not violate the basic structure of the Constitution. Lalit and Justice S Ravindra Bhat, the two judges that ruled against it, held that due to the exclusion of poor of SCs, STs, and OBSs from its ambit the Amendment practices “constitutionally prohibited forms of discrimination". The Centre has itself argued before the court that the 50 per cent verdict is not ‘set in stone’. “The very preamble to the Constitution declares India to be a sovereign, socialist, secular, democratic republic where justice: social, economic and political, as well as equality of status and of opportunity are to be established in addition to promoting fraternity, assuring the dignity of individuals and unity and integrity of the nation. These solemn promises alone to the Constitution would require to provide for the upliftment of economically weaker sections,” Attorney General (AG) KK Venugopal told the apex court last year as per Hindustan Times. The Supreme Court also in November 2022 ruled that the 50 per cent cap is applicable only to the SC/ST and OBC categories and that the 10 per cent EWS quota is over and above the limit. Justice Maheshwari was quoted as saying by Deccan Herald, “Prescription of ceiling limit of 50 per cent, being apparently for the benefit of general merit candidates, does not provide any justified cause to the candidates standing in the bracket of already available reservation to raise any grievance about extra 10 per cent reservation for the benefit of another section of society in need of affirmative action.” “In any case, there is no question of violation of any such basic feature of the Constitution that the entire structure of equality of opportunity in Article 16 would collapse by this EWS reservation,” he added. [caption id=“attachment_13168312” align=“alignnone” width=“640”] Nitish Kumar said the rise in quotas in Bihar follows the caste survey[/caption] Justice Maheshwari also wrote that the 50 per cent cap would only apply to reservations in place prior to the 2019 amendment. “No decision of this court could be read to mean that even if the Parliament finds the necessity of another affirmative action by the State in the form of reservation for a section or class in need, it could never be provided,” he wrote.

But some experts have been critical of the cap.

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Vivek Kumar, professor at Jawaharlal Nehru University’s School of Social Sciences told The Quint the 50 per cent cap on reservation is an ‘artificial construct’. “This ceiling was broken when the government decided to give quota to the Economically Weaker Sections (EWS). Also, certain states like Karnataka, Kerala, and Tamil Nadu already have provisions for more than 50 percent reservation. But now, we’re looking for breaking of this ceiling at the Centre,” he added. Supreme Court advocate Colin Gonsalves, said the cap was made to strike a balance and amid a lack of proper data. “When the 50 percent cap was introduced, there was no reliable data to determine who or how many people comprise the backward classes. It was because of that uncertainty in the numbers and percentages of the backward classes that the Supreme Court on the basis of a rough calculation capped the reservations at 50 percent,” Gonsalves told the outlet. It is now likely that the cap will be challenged in court. What is the Bihar government saying? Kumar said, “The rise in quotas in Bihar follows the caste survey which was conducted after a consensus was reached among all the nine parties which have representation in this House”. “The survey has provided us with a comprehensive data. We will use it to introduce more measures for the uplift of socially, educationally and economically backward sections of society. I will be glad if the Centre, too, agrees to a caste census and hike reservations across the country,” said Kumar. As per the Bills, the quota for STs will be doubled, from one to two per cent, while for SCs it will be raised from 16 per cent to 20 per cent. For EBCs, the quota will be 25 per cent, up from 18 per cent, while for the OBCs it will rise from 12 per cent to 15 per cent. The JD(U) leader also took the opportunity to raise a fresh demand for grant of special status to Bihar, saying, “our land was so advanced in ancient times. It stagnated because of historical factors. We need some help to recover our lost glory”. With inputs from agencies