Chennai: The Supreme Court, while examining the constitutional validity of the Maratha reservation a day ago, also sought views of the states like Maharashtra and Tamil Nadu to reexamine the 50% cap on reservation. Tamil Nadu is among the seven states that breaches the cap by providing 69% reservation based on caste in public employment and educational institutions.
Dravidian majors, Dravida Munnetra Kazhagam and All India Dravida Munnetra Kazhagam (AIADMK) and their ideological parent body — the Dravida Kazhagam (DK) — have fought for reservation as a measure of social justice. The reservation policy had been in operation since the 1920s through executive or government orders and late chief minister J Jayalalithaa played an important role in providing legislative support to the 69% reservation.
In 1992, the Supreme Court ruled that reservation cannot exceed 50% in the Indra Sawhney versus Union of India or the Mandal judgement, based on which the Madras HC had directed the state to bring it down to 50% in the 1994-95 academic year. “There was a fear in Tamil Nadu that it will be affected by the Mandal commission, which was challenged by Indra Sawhney (1992) case,” said retired justice of Madras high court K Chandru.
In 1993, the assembly under Jayalalithaa passed the Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of Seats in Educational Institutions and Appointments or Posts in the Services under the State) Bill, 1993, now known as the Tamil Nadu Act, 1994, to keep its reservation limit intact at 69%.
Following the passage of the Bill, Jayalalithaa had led a delegation to Delhi in 1994 and urged the central leadership, which resulted in then President Shankar Dayal Sharma giving his assent to the Bill in a month. To ensure special legal protection to the legislation, she brought it under the Ninth Schedule through a constitutional amendment, giving it immunity from judicial review. However, the SC in a case in 2007 (IR Coelho v State of Tamil Nadu) ruled that the court has power to review any legislation added to the Ninth Schedule making the Tamil Nadu law that increased reservation to 69% open to review. “The SC said the court has got the judicial review even to see whether the inclusion (of a law to the Ninth schedule) is valid or not. By this time, several other states had OBC reservations exceeding the 50% cap,” said Chandru.
In Tamil Nadu, the 69% reservation includes Backward Caste (BC) 30% (26.5% + 3.5% internal reservation for Muslims. In the 90s, BC Muslims were part of the BCs which was made separate during the DMK regime in 2007), Most Backward Caste (MBC) 20% (10.5% for Vanniyars, 7% for Denotified Communities (28 castes) and 2.5% for others (41 castes), Scheduled Castes 18% (15%+ Arunthathiyars 3%) and Scheduled Tribes 1 %.
“First, we need identifiable data to justify the reservations. In fact, the Sachar Commission recommended reservation for Muslims stating that they’re not in the army or any high position and the government agreed with the report but it is not being implemented. Only electoral gains are considered and ad-hoc decisions are being made by various states. In TN, Muslims have a 3.5% reservation,” Chandru said.
Under the existing 20% MBC quota, the AIADMK government led by chief minister Edappadi Palaniswami announced on February 26 that the Vanniyar community will be allocated 10.5% internal reservation. The announcement came hours before the election commission announced polls dates for Tamil Nadu as the AIADMK was under pressure from its ally, the PMK who have been demanding a separate quota for Vanniyars, their core vote bank, for close to four decades.
The PMK revived this demand in the run up to the assembly elections slated for April 6 but settled for an internal reservation. Previous chief ministers had not heeded to the PMK’s demand. Palaniswami, too, said that the Bill was passed temporarily based on the Justice Janarthanan Committee (who was heading the backward classes’ commission until 2018) and that the reservation slab would be modified by justice A Kulasekaran Committee appointed in December 2020 to collect quantifiable data on caste, communities and tribes. The last caste-based census was conducted in 1983.
“This will open a Pandora’s box. Now every caste and community will start demanding a share for themselves,” says political commentator Sriram Seshadri, adding, “It’s debatable whether this reservation will hold good in the eyes of law as courts have rejected such reservations in the past.”
The petitions challenging the Tamil Nadu law citing that open category students were at a disadvantage have been long-pending before the Supreme Court.
“Initially the 1993 law was challenged by senior advocate K M Vijayan, who was attacked by the DK group. The SC did not grant a stay and hasn’t examined the validity of the reservation for the last 27 years. Every year, petitions would be filed with respect to medical college admission that if the state follows the Indra Sawhney judgment they (students) would have received a seat that was denied because of the 1993 law. So, the SC started passing curious orders to calculate the difference between the two caps — so each year, of whoever is left out, about 40-50 students used to get admitted through interim orders. This went on for 19 years. Even before the Maratha reservation case, the Tamil Nadu case was there before the SC. There isn’t a scientific approach on deciding on what is important,” said Chandru.
The AIADMK maintains that the party will continue to fight for the 69% reservation to uphold the social justice fabric of the state. “MGR had increased the state’s 50% reservation to 68% which Amma sealed at 69%. Legal challenges have been presented before the state and Tamil Nadu has been a forerunner in challenging them,” says AIADMK spokesperson Vaigaichelvan.
After the BJP-led central government announced 10% reservation for Economically Weaker Section (EWS) in 2019, the DMK and DK had challenged the move in court. “Economic status is fungible, that is, if someone is poor tomorrow, he may become a millionaire or billionaire overnight. But this is not the case for socially and educationally backward people — their status cannot change overnight,” said advocate and DMK spokesperson A Saravanan. “This is the precise reason why we oppose EWS and we always stick to social and educational backwardness to be the criteria for determining or giving reservation. There is no need to re-examine TN’s current 69% reservation as one formula will not fit all. We have this formula based on the number of communities and how backward they are. This decision can’t be made from Delhi, which is impinging on state autonomy,” Saravanan added.
The DMK has also criticised the AIADMK for rushing the internal reservation for Vanniyars as an electoral move.