The Bihar Assembly on November 9 unanimously passed the “Bihar Reservation Amendment Bill” to increase reservation for Backward Classes (BCs), Extremely Backward Classes (EBCs), Scheduled Castes (SCs) and Scheduled Tribes (STs) from the existing 50% to 65%. Together with the 10% quota for the Economically Backward Class (EWS), the Bill will increase reservation in Bihar to 75%, surpassing the 50% ceiling set by the Supreme Court (SC). This comes in the backdrop of the “Bihar Caste-based Survey 2022” released on October 2, revealing that EBCs comprise 36% and BCs 27.1% of the state’s 13.1 crore population.
Breaching the 50% limit
The cap of 50% was imposed by the SC in Indra Sawhney vs Union of India (1992) based on the need to balance the equality of opportunity required under Article 16(1) and the mandate under Article 16(4) for adequate representation of BCs. The rationale behind this was that “no provision of reservation or preference can be so vigorously pursued as to destroy the very concept of equality”. However, in certain extraordinary situations, the judgment allowed for an exception to this strict rule, but only after ‘exercising extreme caution’ and a ‘special case’ is made out.
Elaborating further in M. Nagaraj vs Union of India (2006), the SC stated that quantifiable data is required as evidence of the exceptional circumstances in which the 50% limit is to be breached.
This is not the first time that a state has attempted to breach the 50% limit. Many states -- Tamil Nadu, Telangana, Maharashtra, Haryana, Rajasthan, Chhattisgarh and Madhya Pradesh -- have passed legislation in the past to sidestep this limit. Additionally, the 10% EWS reservation brought by the Centre in 2019 as the 103rd constitutional amendment has also exceeded the set limit, but was upheld constitutionally valid by the SC in Janhit Abhiyan vs Union of India. Surpassing the limit is tenable because the 50% cap in itself was never deemed to be absolute and unqualified in the Indra Sawhney judgment.
Therefore, the pertinent question is not whether the 50% limit on reservations holds good, but rather whether the quantifiable data relied upon by the states is accurate and reliable enough to make a case for an ‘extraordinary situation’ demanding higher reservations. Also, will these expansions genuinely benefit the backward and oppressed classes or are they merely vote-bank politics at the cost of society, economy and polity?
Based on questionable caste census
The findings of the Bihar caste census, especially in so far as the percentage composition of the SCs and the Forward Castes (FCs) are concerned, seem to be prime facie inconsistent with estimated decadal growth rates as compared to the 2011 census data, while keeping the Total Fertility Rate (TFR) for various communities in mind. For instance, the findings suggest that the SCs make up 19.65% of the population of Bihar, whereas this number stood at 15.91% in the 2011 census. This suggests a growth of 23.6% for the community, within a span of merely 12 years. This growth seems improbable when put in the context of the fact that between the census of 2001 and 2011, the SC population in Bihar grew marginally, i.e., from 15.7% in 2001 to 15.9% in 2011, despite the TFR being higher between 2001 and 2011, than at present, i.e., 4.78 during 2005-06 and 3.48 during 2019-21, as per NFHS data.
Similarly, the final data for the forward castes contain three Muslim castes, i.e., Sheikh, Pathan and Syed, alongside four Hindu castes. The data suggests that out of the 15.5% population constituted by the forward castes, nearly 1/3rd can be attributed to the three Muslim castes. This means that around 5% of the population of Bihar is constituted by forward-caste Muslims, whereas forward-caste Hindus constitute only 10% of the population of the state. This appears to be statistically improbable, as the population of Bhumihars (a socio-politically dominant FC group) alone had been pegged at around 5% of the total population during the 2015 Bihar Legislative Assembly elections. Thus, given the questions surrounding the veracity of the findings of the caste census, relying upon the same to justify the “special case” clause laid down in Indra Sawhney to breach the 50% ceiling opens the Bill to judicial scrutiny.
Does breaching the ceiling truly secure social justice?
Even if the findings of the Bihar caste census were to be accepted in an unqualified manner, the larger question remains whether the reservation is a means of attaining social justice or a political end goal in itself. The recent report of the Rohini Commission has already tried to question the utility of vertical reservations in the traditional sense and has suggested horizontal sub-reservation within OBCs instead. The findings of the commission showed that 97% of all jobs and education seats have gone to 25% of OBC castes, and 24.95% of these jobs and seats have gone to just 10 OBC communities. As many as 983 OBC communities, i.e., 37% of the total, were found to have zero representation in jobs and educational institutions.
Thus, even if the Bihar bill were to be allowed to operate as an exception to the 50% ceiling rule, it might go down in the annals of history as a political zero-sum game that only ended up bolstering the lion’s share of reservation benefits enjoyed by politically dominant castes.
(The authors are researchers at the Centre for Constitutional Law and Governance (CCLG) at RGNUL, Patiala)