BJP's Bihar Bind: Supporting 'Jitni Aabadi, Utna Haq'

On 20 June, the Patna High Court struck down two laws pertaining to reservations.

Passed in November 2023, the two amendments raised the share of reservation for scheduled castes (SCs), scheduled tribes (STs), other backward classes (OBCs), and extremely backward classes (EBCs) in government jobs and educational institutions from 50 per cent to 65 per cent.

The High Court found that the amendments violated Articles 14, 15, and 16 of the Constitution.

The Bihar government had passed the amendments based on the idea of proportional representation, as per which the share of a community in jobs and educational institutions should be in accordance with their share in population.

However, the court said this type of argument goes against the core principles of Articles 15(4) and 16(4) of the Constitution.

"Politically, they (the Bihar government) presented it like hissedari (equity) and bhagidari (participation), which means that reservation for a caste has to be based on its proportion in the total population, which cannot be the case. Proportional representation is contemplated only for political reservations and not for those under Articles 15 and 16," Kumar Abhishek, a Supreme Court advocate, said.

The Bihar government introduced the proportionality criterion after the caste survey. Based on this metric, the government passed the law, reserving 65 per cent seats for non-generals.

However, when the court put its investigative lens on the data, it found that OBCs, SCs, and STs — the groups that were given reservation under the amendment — already had a share of 68.52 per cent in government jobs, 3.52 per cent above the desired share in law.

The change in law was apparently violative of the Indra Sawhney judgement, which capped the reservation ceiling at 50 per cent. The escape clause, as it were, in that judgement was that it provided the bandwidth to take reservations beyond 50 per cent in 'exceptional circumstances'.

Though there is no clear-cut definition for it, ‘exceptional circumstances’ are generally those that are a hindrance to fulfilling goals articulated in the preamble of the Constitution.

Despite this understanding, the Nitish Kumar government went ahead with the change in law. Multiple factors underline it.

For one, the state government followed the precedent set by multiple states that sought to raise the ceiling in the past. Tamil Nadu, Telangana, Andhra Pradesh, Madhya Pradesh, Haryana, Rajasthan, Chhattisgarh, Maharashtra, and, more recently, Jharkhand have made this attempt.

For them to survive scrutiny by the judiciary, these laws need to be added to the ninth schedule of the Constitution. Laws under this schedule are generally not challenged. However, in the I R Coelho judgement, the apex court held that even laws under the ninth schedule are subject to judicial review. Still, the threshold for reviewing these laws is higher than normal.

No wonder, days after passing the law, the state government proposed to the Modi government at the Centre to put these laws under the ninth schedule. The central government did not accede to the demand.

With so much incoherence and trouble on the technical front, it seems as if passing such a law was more of a political move than a policy one for the Nitish Kumar government.

After all, the legislation was brought in only two days after the caste survey report was put in the public domain. Such haste only indicates anxiety on the part of Chief Minister Nitish Kumar.

Kumar was a crucial backbone of the Indian National Developmental Inclusive (INDI) Alliance. Through the caste survey and these amendments, he wished to extrapolate his image as a champion of social justice in Bihar all across the country. It was supposed to counter the rise of Prime Minister Narendra Modi’s popularity as a crusader of welfarism.

More particularly, in Bihar, he wanted to secure the numero uno position for himself in an intra-alliance competition with Tejashwi Yadav, then the deputy chief minister of Bihar.

Despite being principally against it at the Centre, the Bihar unit of the Bharatiya Janata Party (BJP) extended its support to both the survey and the amendments. The party did not have an alternative as it was in survival mode in the state.

Seven months after the laws were passed, the party is back to square one. Despite a change of guard in the state unit and having two deputy chief ministers in the state cabinet, the momentum is with Janata Dal (United).

The BJP's individual decline in the 2024 general election has made it more dependent on Kumar for running a coalition government. Samrat Choudhary, the party's state president and deputy chief minister, has said that the Bihar government will challenge the Patna High Court's decision in the Supreme Court.

Meanwhile, Tejashwi Yadav has appealed to introduce reservations in the Ninth Schedule.