K. Vinod Chandran, CJ. – Equality of opportunity pitted against reparations for long years of deprivation of equality, has been the subject of judicial discourse while adjudicating affirmative action; introduced both by the Central and State Governments within this country. One of such affirmative action exceeding the 50% limit; as prescribed by a 9 Judge Constitution Bench in Indra Sawhney vs. Union of India, 1992 Supp (3) SCC 217, enhancing reservation to 65% within the State of Bihar, is challenged in these batch of writ petitions. The State has brought in such reservation based on the Caste Survey, which found the majority of the population within the State, belonging to the marginalized and deprived communities of Backward & Extremely Backward Classes, Scheduled Castes and Scheduled Tribes. The petitioners cry foul on the perceived sacrifice of merit, thus, frustrating the fundamental right of equality of opportunity in public employment & admissions to educational institutions, guaranteed under Part III of the Constitution of India.

2. Shri Mrigank Mauli, learned Senior Counsel led the arguments for the petitioners which commenced with the statement that the entire edifice of the Amendment Act and the enhancement in reservation, is built upon the Caste Survey, the results of which were published just a few days before the Amendment Bill was introduced in the Legislature. The Caste Survey notified on 06.06.2022 was completed by 05.08.2023 and the report published on 02.10.2023. The caste wise socioeconomic report was brought out on 07.11.2023 and the bill was tabled hastily on 09.11.2023. There was hence, no analysis carried out despite the Preamble of the Act referring to such an analysis. The automatic escalation of the percentage for each and every caste referred to in the Bihar Reservation of Vacancies in Posts and Services (for Scheduled Castes and Scheduled Tribes and Other Backward Classes) Act, 1991, (hereinafter referred to as ‘Reservation Act’), was mechanically carried out without reference to the real facts & figures coming out of the Caste Survey. It is specifically argued that though land holding of every individual was one of the terms of reference in the caste survey, there was no analysis of the economic status of each community granted reservation, based on the details of the land holdings collected in the survey or an examination of the productive nature of such holding.

3. The Preamble was read over to us which according to the learned Senior Counsel speaks of a proportional representation having been attempted, as is the provision of reservation in elections to local bodies. It is pointed out that such proportional representation, confined to SC and ST, as coming out from 243D and 243T, based on Article 330(2) cannot be imported automatically into Article 16. Article 16(4) specifically speaks of adequate representation as the yardstick to determine the benchmark, for providing reservation in appointments in posts, to any backward class of citizens. Though the word ‘adequate’ is not employed in Article 15(4), the Hon’ble Supreme Court has held it to be a valid basis for understanding the social and educational standards of backward class of citizens and of the SC and ST. The economic criteria hence, is an important index on which the percentage of reservation has to be considered which has been totally ignored while bringing out the present amendment. It is also pointed out that the rejoinder of the petitioner makes a better analysis of the facts and figures coming out of the caste survey; which also would belie the contention of the State in support of enhancement of the percentage of reservation.

4. Referring to the Preamble, the learned Senior Counsel also points out the casual manner in which drafting was carried out, employing words without any meaning, especially in the portion where the very ob