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Supreme Court will not stay Tamil Nadu’s 69 p.c. quota law

New Delhi: The Supreme Court on Friday declined to stay the Tamil Nadu Backward Classes, Scheduled Caste and Scheduled Tribes (Reservation of Seats in Private Educational Institutions) Act, 2006, providing for 69 per cent reservation.

Justice Arijit Pasayat, heading a two-judge Bench, told senior counsel K.M. Vijayan, appearing for the Voice (Consumer Care) Council, “We will not grant stay, let the main petition itself be heard.”

Mr. Vijayan argued that Tamil Nadu was the only State which failed to implement the apex court directions in the 1992 Mandal judgment — to identify and exclude the creamy layer from among the backward classes. As the court, in the ‘OBC quota judgment’ this April, categorically stated the creamy layer should be identified, he wanted the Bench to issue a direction to Tamil Nadu to identify the creamy layer. He also prayed for an interim stay of the 2006 Act.

Following a representation made by senior counsel M.N. Rao, who is appearing for the State, the Bench, which included Justice Mukundakam Sharma, directed that this petition be tagged with the one questioning the validity of the Tamil Nadu Backward Classes, SCs and STs (Reservation of seats in educational institutions and of appointment or posts in the services under the State) Act, 1993. That petition is pending before a three-judge Bench headed by Chief Justice K.G. Balakrishnan.

Though the 1993 law has been included in the 9th Schedule of the Constitution (to keep it beyond judicial review), the 2006 Act is yet to be included therein. Mr. Vijayan said the 93rd Constitution Amendment enabled the States to provide for reservation in private educational institutions by introducing Clause (5) to Article 15. Subsequently Tamil Nadu enacted the new law, which was contrary to the Mandal judgment, he said.

The petitioner said the 93rd Amendment was introduced to overcome the judgment in P.A. Inamdar’s case, in which the court had categorically held that there should be no reservation in educational institutions run by the minorities or non-minority unaided institutions.

As for the Tamil Nadu law, the petitioner said, “Already the reservation in the State is excessive. The situation is that 94 per cent of the total seats go to the reserved category in which 80 per cent of the ‘open category’ seats are secured by persons belonging to the ‘other backward classes’, creating discrimination in admissions, which is prohibited under Article 29 (2).”

The petitioner sought a declaration that the 93rd Amendment and the consequent Tamil Nadu law were unconstitutional.

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