The Indian Constitution promises social justice and permits the state to make special provisions in favour of the underprivileged. Governments of all political parties, including the BJP, have tried to expand reservation — more out of electoral compulsion than due to constitutional principles. However, a closer look at the judicial response to these reservation policies demonstrates that our judiciary, through the “strict scrutiny” doctrine, has been quick to nullify such policies with respect to Jats, Gujjars, Marathas, Patidars and Muslims. The judiciary has seemed more concerned with “merit” and “efficiency in administration”.

An 87-page judgment by Chief Justice K Vinod Chandran and Justice Harish Kumar of the Patna High Court struck down 65 per cent reservation in Bihar. This expansion was based on the much-discussed Caste Survey of 2023. The verdict is consistent with the jurisprudence of the Supreme Court. It is a setback for the Congress party, which has promised a Caste Survey in all states, removal of the 50 per cent upper limit of reservations and giving a proportionate share to the Other Backward Classes. The High Court did opine that the only consideration that the Nitish Kumar government weighed in with was that the Backward Classes constitute a major part of the state’s population and their representation is not proportionate in the unreserved category.

The judgment has categorically rejected the “proportionate representation” of Backward Classes and held that the term “proportionate” is alien to Articles 15 and 16. The expression “proportionate representation” has been used in Articles 330(2), 243D and 243T with respect to the representation of Scheduled Castes and Tribes in the Lok Sabha, panchayats and municipalities, respectively.

Article 16 uses the term “inadequacy of representation”.........

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