Saturday, June 22, 2024

Bihar law increasing reservation for SCs, STs & OBCs to 65%, violates Articles 14, 15, 16 of Indian Constitution: Patna High Court

Drawing on  the decision of 9-Judge Constitution Bench of the Supreme Court in Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217, Patna High Court's bench of Chief Justice K. Vinod Chandran and Justice Harish Kumar 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 Constitution and violative of the equality clause under Articles 14, 15 and 16 of the Constitution, on June 20, 2024. The 87-page long judgement was authored by Justice Chandran.  

The Court concluded that the enhancement of reservations beyond the 50% limit is bad in law based on the principles of equality emanating from the Constitution, as laid down by the wealth of precedents which are equally binding on the Court and the State. The Court referred to the the 50% rule brought in by the verdict in Indra Sawhney case, which has been accepted by the Union Parliament while introducing clause (4-A) in Article 16, and which has been upheld in K. Krishna Murthy v. Union of India, (2010) 7 SCC 202.

The High Court drew from the decision in Jaishri Laxmanrao Patil v. State of Maharashtra, (2021) 8 SCC 1 is relied on, which reaffirmed the maximum of 50% in reservations as laid down in Indra Sawhney case; binding under Article 141. The prayer for reference of Indra Sawhney case to a larger bench was rejected clearly finding that the thumping majority of five judges out of nine was in favour of the reservations being limited to 50% while three dissenting judges held that reservation can only be lesser than 50%. Only one of the judges differed from this and found it possible even above 50%. 

It was found that M. Nagaraj v. Union of India, (2006) 8 SCC 212 also did not lay down any ratio that ceiling of 50% reservation can be exceeded by showing contemporary data regarding backwardness. The Commission which approved the reservation in excess of 50%, impugned in the cited decision, was found to have completely misconstrued the ratio of a number of Constitution Bench decisions, while taking the view that ceiling of 50% can be breached merely on the basis of quantifiable data. The decision in M. Nagaraj case was factored in where tests were laid down to judge the validity of affirmative action, which the impugned legislation herein fails to pass. The mere existence of power to implement an affirmative measure cannot justify an over-breadth, especially when there is a breach of the 50% limit.

The has recorded that there was absolutely no thought or deliberation, which went into such excessive reservation being granted and there was not even a reference to the Backward Commission constituted by a statute.  The National Backward Commission was not been consulted, which has a mandate as per Article 338 of the Constitution.

It also noted that the 50% reservation has a history of 120 years, it having been first legitimized by Rajarshi Sahoo Maharaj of Kolhapur who brought in quotas in the appointments to the government; a full 48 years before independent India adopted the Constitution. 

It was pointed out that equality forms a basic structure of the Constitution and to breach the 50% limit in granting reservations would cause interference to the basic structure.

Among other things the senior counsel of the petitioner referred to proofing error in the preamble of the amendment Act wherein "The affirmative measure has been wrongly termed a ‘major’ and for data, the word ‘date’ has been used."

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