A CAP THAT IS REFUSING TO FIT ALL HEADS

The Patna High Court's scrapping of Bihar's higher reservation cap has lobbed the ball back to Nitish Kumar. No one will be immune from the fallout at next year's assembly poll

- D M DIWAKAR

0N June 20, the Patna High Court set aside the amendment in Bihar's reservation policy that had been passed by the previous JDU-RJD government. The amendment, based on a caste survey, sought to enhance the total caste-based reservation in jobs to 65 percent. The high court went by the Supreme Court's 1992 decision to cap such reservation at 50 percent and struck down the Bihar amendment. Now, the JDUBJP led state government has challenged the decision in the Supreme Court. It is interesting to note that amid all this to and fro, Nitish Kumar has remained chief minister.

The Patna High Court's decision confused many observers not well-versed with legal nuances. Especially because Tamil Nadu has a provision for 69 percent reservation under the Ninth Schedule of the Constitution. Once any act is brought under this Schedule, which was introduced by the first constitutional amendment in 1951, it has some immunity under Article 31B from being legally challenged.

The TN quota was arrived at with changing caste and class calculations made by chief ministers M Karunanidhi and M G Ramachandran through the 1970s and 80s. We must also acknowledge the contribution of another former CM, K Kamaraj, who took the case to the then PM Jawaharlal Nehru to enable the state to take affirmative action by amending Articles 15 and 16 of the Constitution. Later, many similar provisions were enacted by other states and challenged in court. A plea on the TV reservation is still pending before the Supreme Court.