Reservation Judgements: An overemphasis on merit

Source-This post on Reservation Judgements: An overemphasis on merit has been created based on the article “Faizan Mustafa writes on Patna High Court reservation ruling: An overemphasis on merit Constitutional Provisions and Judicial Interpretation” published in “The Indian Express” on 22 June 2024.

UPSC Syllabus-GS Paper 2- Indian Constitution—Historical Underpinnings, Evolution, Features, Amendments, Significant Provisions and Basic Structure.

Context The Patna High Court annulled the Bihar govt’s notification increasing reservation from 50% to 65% for backward classes, scheduled castes, and tribes in government jobs and educational institutions. This expansion was based on the much-discussed Caste Survey of 2023.

The Indian Constitution promises social justice and allows the state to make special provisions for underprivileged groups. However, courts have often nullified expanded reservation policies for various groups (Jats, Gujjars, Marathas, Patidars, Muslims) using the “strict scrutiny” doctrine. The judiciary has prioritized “merit” and “efficiency in administration” in their decisions in the recent past.

Why did Patna High Court strike down 65% reservation?

1) The judgment firmly dismissed the idea of “proportionate representation” for Backward Classes, stating that this concept is not supported by Articles 15 and 16. Article 16 mentions “inadequacy of representation.” The High Court cited the Supreme Court’s ruling in Indra Sawhney (1992), where it stated that “adequate representation” should not be interpreted as “proportionate representation.”

2) Bihar reservation amendment exceeds the 50% reservation limit. The Supreme Court introduced this limit in M R Balaji (1962), considering it discriminatory under the right to equality. This principle has been upheld in subsequent rulings like Devadasan (1964), N M Thomas (1976), and Indra Sawhney (1992).

3) The 50% reservation rule is defended on grounds of efficiency and merit. The Patna High Court also noted that “merit cannot be entirely sacrificed.”

4) The proposed reservation was not proportionate given that Scheduled Castes, Scheduled Tribes, and backward castes constitute 84.46% of Bihar’s population. The Supreme Court acknowledged in Indra Sawhney that the proportion of backward classes to the total population is relevant.

5) Indra Sawhney implied that strict adherence to the 50% limit is not necessary in remote or less developed areas. The High Court rejected the idea that Bihar is outside the national mainstream, highlighting its significant role in national politics.

6) The court observed that there was no analysis of the Caste Survey and consultation with the experts before increasing reservation.

Read more– Issues associated with Calcutta High Court’s judgement on reservation policies in India

What are the issues with this judgement as per the author?

1) Inconsistencies in policy implementation– Before extending reservation to the EWS category, no survey was conducted to assess their underrepresentation. However, the Janhit Abhiyan (2022) Supreme Court decision represents a departure from the typical strict scrutiny approach in judicial rulings where it allowed breach of 50% limit.

2) Neglect of Bihar’s socio-economic context – The government overlooked Bihar’s significant challenges in court, such as its lowest per capita income (less than $800), highest fertility rate, and lowest college density in the country. These factors present strong arguments.

3) Expert Consultation in Affirmative Action Policies– The requirement for analyzing the Caste Survey and consulting with experts could impose additional constraints on the government’s affirmative action policies in the future.

4) Over emphasis on Merit and Efficiency- There is no scientific or empirical evidence that supports the notion that SC/ST/OBC employees perform less efficiently than those recruited under the general category. Justice Chinnappa Reddy countered the efficiency argument in Vasanth Kumar (1985) case challenging the assumption that upper caste individuals appointed based on presumed merit naturally outperform those appointed through reservations.

Way forward

Justice Chandrachud in B K Pavitra II (2019) observed that we need to redefine our notions of merit in terms of a more inclusive and plural society. Merit cannot lead to exclusion. Merit must be measured in terms of social good.

Question for practice

Why did Patna High Court strike down 65% reservation? Highlight the issues with this judgement?