Why HC verdict on quota is ammunition for RJD to take on Nitish Kumar

In a verdict that could have far-reaching political implications in Bihar, the Patna High Court, on Thursday (June 20), set aside two pieces of legislation passed by the erstwhile Nitish Kumar-led Mahagathbandhan government which had increased reservations in government jobs and educational institutions for backward classes, scheduled castes and scheduled tribes to 65 per cent.

Restoration of 50% ceiling on quota

A division bench of Patna High Court Chief Justice K Vinod Chandan and Justice Harish Kumar held the Bihar Reservation (for Scheduled Castes, Scheduled Tribes, and Other Back Classes) (Amendment) Act, 2023, and the Bihar (in admission in educational institutions) Reservation (Amendment) Act, 2023 as being violative of Articles 14 (equality before the law), 15 (prohibiting discrimination) and 16 (equal opportunity in employment) of the Constitution.

The high court’s decision effectively restores the caste-based reservation scheme in the state within the Supreme Court mandated 50 per cent ceiling limit. The verdict, however, will have no bearing on the 10 per cent quota granted through a central legislation and upheld by the Supreme Court for those belonging to the economically weaker sections (EWS).

Caste outreach via legislation

The two laws set aside by the high court had widened the affirmative action net in Bihar to 75 per cent (65 per cent for backward castes, SCs and STs and 10 per cent for EWS). A bunch of petitions filed before the court had prayed that the two laws, enacted in November 2023, shortly after the Bihar government published its first caste survey report, were in violation of the 50 per cent cap on reservations imposed by the Supreme Court and various provisions of the Constitution.

The two laws, along with the caste survey report, were showcased by Kumar and his then principal alliance partner, Lalu Prasad Yadav and Tejashwi Yadav’s RJD, as an irrefutable sign of their commitment towards the socio-economic emancipation of historically oppressed communities.

The BJP, then in the Opposition, had been forced to back the laws for the sake of political expediency as the two laws directly impacted a vast majority of Bihar’s electorate. However, many among the saffron party’s Bihar and central leaders, particularly those from the forward castes, had either struck discordant notes on widening of the reservation net or downplayed the benefits it could accrue to its intended benefits by dubbing the decision as being politically-motivated.

RJD set to weaponise verdict

Nitish, who eventually switched political allegiance and retained the chief minister’s chair after forming an alliance with the BJP, continued to back the rationale behind a caste survey and increase in reservation quota even as the Tejashwi-led Mahagathbandhan of the RJD, Congress and Left parties sought credit for the twin decisions through the course of the campaign for the recently concluded Lok Sabha polls.

While the legal battle over widening the reservation scheme is now expected to shift to the Supreme Court, the high court’s order could trigger a wave of political unrest in Bihar, which is scheduled for assembly polls towards the end of next year. The RJD, which performed below its expectations in the Lok Sabha polls but walked away with the highest vote share among all political parties in the state, is determined to use the high court verdict to mobilise public opinion against the ruling JD(U)-BJP alliance.

Warning against ‘social inequity’

Shortly after the high court pronounced its verdict, RJD MP and spokesperson Manoj Jha fired the first salvo obliquely claiming that the petitions challenging the two reservation-linked laws were politically motivated. Jha dubbed the verdict as “unfortunate” and said it would widen the schism of social inequity.

With the Narendra Modi-led NDA government’s stability at the Centre dependant on the support of an ideologically promiscuous and politically unpredictable Nitish, the RJD also believes that the high court verdict can be weaponised to create a rift between the JD (U) and the BJP, as the latter has historically been perceived as being anti caste-based reservations.

Demand to enlist laws under Ninth Schedule

“The government at the Centre has been formed because of Nitish Kumar’s support. I think it is important for the sake of preserving and protecting the socio-economic interests of a vast majority of oppressed communities of Bihar that he should prevail upon the central government to ensure that a strong legal defence of the these two laws is made when the matter reaches the Supreme Court and once these laws are legally restored, they should be given protection against any further legal challenge or review by being enlisted under Schedule Nine of the Constitution,” Jha told The Federal.

The RJD leader added that ever since the two laws were enacted and “more so after Nitish realigned with the BJP”, Tejashwi had been persistently demanding the enlisting of the two pieces of legislation under the Ninth Schedule and that “the situation that has arisen today is only because Tejashwi’s advice was not adhered to”.

Why the scrapped laws were crucial

The Bihar caste survey, released in October last year, had revealed that a staggering 63 per cent of the state’s population comprised backward castes (27.12 per cent backward castes and 36.01 per cent extremely backward castes). The scheduled castes in Bihar constitute 19.65 per cent of the population while scheduled tribes make up 1.68 per cent. Thus, the two laws directly impacted nearly 85 per cent of the state’s population.

With caste-based reservations being a hugely emotive issue in Bihar, the RJD and its allies believe that the high court’s verdict could be used by the Mahagathbandhan to redouble its campaign for social justice ahead of next year’s assembly polls.

Raja Ram Singh, a Kushwaha (backward caste) leader who won the recent Lok Sabha polls from Bihar’s Karakat seat as the CPI-ML candidate against BJP ally Upendra Kushwaha told The Federal that the Mahagathbandhan constituents would “discuss the high court verdict and decide the way forward” for a “battle that will be political, social and legal”.

Shift in backward caste vote

A senior leader of the Bihar Mahagathbandhan said that the increase in vote share of each of the alliance’s constituents in the Lok Sabha polls was “in a big way triggered by the realignment of some backward castes which traditionally voted for the JD(U) or the BJP, but shifted towards us because of our social justice plank... the poor defence for the increased reservation that the JD(U)-BJP government put up in the high court, which resulted in the laws being set aside, shows that Nitish, under the BJP’s influence, cannot guarantee the rights of the backward castes and Dalits... we will go to the people with this message.”

RJD sources say the court’s verdict will also help the party “reach out more aggressively” to those backward communities which “either voted for us in the past but had moved to the NDA eventually or those which we have not been able to attract so far”.

Nitish’s eroding support base

The verdict, a JD(U) MP admitted on condition of anonymity, does not augur well for Nitish, who owed his enviable political station, despite his frequent somersaults, to the considerable support he draws from non-Yadav OBCs and EBCs. “We may have won 12 of the 16 Lok Sabha seats we contested, but our base has been substantially eroded and our preliminary assessment of the result suggests this happened because a lot of our traditional vote bank shifted to the RJD or its allies because of the issues of social justice and employment that Tejashwi raised.”

The JD (U) MP added, “our vote share has come down by almost five per cent and if this continues, we will lose a lot more seats in the assembly polls... we know how the RJD project the high court judgment; Tejashwi will put the whole blame on our government by alleging that we did not fight the case well... the ordinary voters do not understand legal issues; they will only understand that their reservation is being snatched away just the way the INDIA parties had said it would if BJP comes to power and naturally, we being part of NDA will suffer electorally for this unless we are able to have the high court order stayed or reversed by the Supreme Court soon.”