The flaws in the notion of meritocracy and the debate about affirmative action in India are back in focus after a Supreme Court bench on July 29 declined to stay a Patna High Court verdict striking down an increase in reservations in Bihar.

Meritocracy, in its ideal form, presupposes a level-playing field where individuals compete on equal terms. However, in a society marked by deep-seated inequalities, this is far from reality. Reservations are a means to level the playing field, providing marginalised communities with opportunities that have historically been denied to them.

The Patna High Court verdict on June 20 had struck down an increase in reservations in educational institutions and government jobs in Bihar to 65% from 50%. The state government had raised the quota in November 2023 on the basis of a caste survey notified the previous year.

The court had ruled that the Bihar Reservation of Vacancies in Posts and Services (Amendment) Act, 2023, and the Bihar (In Admission in Educational Institutions) Reservation (Amendment) Act, 2023, were unconstitutional. It was this verdict that the Supreme Court bench, headed by the Chief Justice of India, refused to stay.

These amendments aimed to increase reservations for members of the Backward Classes, the Extremely Backward Classes, Scheduled Castes and Scheduled Tribes.

Reservations in India have always been contentious, with debates centering around the balance between meritocracy and social equity. The Constitution, through Articles 15 and 16, provides for reservations as a means of promoting social equality and rectifying historical injustices.

However, the application of these provisions has often been met with resistance and legal challenges, particularly from those who view reservations as compromising meritocracy.

Patna verdict

The judgement by the Chief Justice of the Patna High Court has been criticised for its double standards, especially in its reliance on meritocracy and the 50% ceiling on reservations set by the Supreme Court in 1992 in the Indra Sawhney case.

Legal scholar Faizan Mustafa, in an article in The Indian Express, pointed out that the court ignored the unique demographic realities of Bihar that necessitated the increase in the reservation quota.

For one, the Bihar quotas were introduced after a comprehensive caste survey. This is in contrast to the 103rd Constitution Amendment Act in 2019, which introduced a 10% reservation for the Economically Weaker Sections from the upper castes without any empirical basis.

The 103rd Constitutional Amendment Act undermined the very basis of affirmative action, which is meant to address social backwardness – primarily caste-based inequalities, rather than economic disparities alone.

The Bihar caste survey, on the other hand, provides a data-driven rationale for increasing reservations, highlighting the stark socio-economic disparities of marginalised communities in the state.

The survey found that 42.93% of Scheduled Castes and 42.7% of Scheduled Tribes in Bihar are impoverished. Despite making up 63% of the population, Other Backward Classes and Extremely Backward Classes hold a slightly lower share in government jobs compared to the upper castes, who constitute only 15% of the population.

This data underscores the need for increased reservations to ensure equitable representation and opportunities for marginalised communities.

Judicial deference to the legislature

The Patna High Court’s refusal to defer to the state legislature, which had enacted the reservation amendments based on empirical data, is a departure from established legal principles. The Supreme Court has consistently held that there is a presumption of constitutionality regarding laws enacted by the legislature.

This principle of judicial deference is crucial in the context of affirmative action policies, where legislatures are often better positioned to assess and address the socio-economic needs of their constituencies.

The Patna High Court’s disregard for the empirical basis of the Bihar reservation amendments undermines this principle and sets a troubling precedent for judicial overreach.

A jurisprudence of convenience

The 50% reservation ceiling, first articulated in the MR Balaji versus State of Mysore case in 1963, has been inconsistently applied.

Justice Dinesh Maheshwari, in the Janhit Abhiyan versus Union of India case in 2022, had upheld the 10% reservation for economically-weaker sections exclusively for upper castes, despite the lack of empirical data, while emphasising the 50% ceiling for other reservations.

This selective application undermines the principle of substantive equality established in the Indra Sawhney versus Union of India case in 1992 capping caste-based reservation at 50%.

The 50% ceiling is often justified on the grounds of maintaining administrative efficiency and meritocracy, but its selective application suggests a deeper bias against caste-based reservations.

This bias is evident in the judiciary’s willingness to uphold reservations for economically-weaker sections without empirical support while striking down empirically-justified increases in reservations for marginalised communities.

Janus-faced approach

During the hearings on reservations for economically-weaker sections, the concept of merit was scrutinised but was not given significant weight by the majority of judges. Justice Dinesh Maheshwari deemed reservations for economically-weaker sections of the upper castes as justified, asserting their intrinsic merit.

This perspective overlooks the reality that merit is significantly influenced by economic and social factors that historically-disadvantaged lower castes have never had access to.

In the Supreme Court verdict on August 1 allowing sub-classifications within Scheduled Caste and Scheduled Tribe reservations, Justice Chandrachud observed that merit should be understood in terms of the social good of equality and inclusivity.

In the Bihar reservations case, this perspective was echoed by Chief Justice of the Patna High Court K Vinod Chandran, who cited the need for meritocracy and adherence to a 50% reservation ceiling.

By adhering rigidly to the 50% ceiling, the court overlooked the transformative potential of reservations as a tool for social justice and empowerment.

The ruling not only impacts the future of reservation policies in Bihar but also sets a precedent that could influence judicial interpretations of affirmative action across India.

The 2024 general elections saw marginalised Indians express their support for BR Ambedkar’s Constitution and the reservation policies it enshrines. They made it clear that they view reservations as a critical tool for social justice.

The debate over reservations is a question of social justice. The problem demands a comprehensive and empathetic approach that prioritises the needs and rights of marginalised communities. The Patna High Court’s verdict falls short of this standard.

Surendra Kumar is Assistant Professor of Constitutional Law and Philosophy at Ramaiah College of Law.