Legal Correspondent

Higher quota is a historical necessity: affidavit

New Delhi: Even as the Supreme Court reiterated that all quotas for weaker sections should not exceed 50 per cent, the Tamil Nadu Government has maintained that this ruling is not applicable to it.

Citing historical reasons, the State in its affidavit filed on Thursday defended the enactment of a law to provide 69 per cent quota to the Scheduled Castes/Scheduled Tribes and Other Backward Classes in jobs and educational institutions.

A nine-judge Constitution Bench will hear from October 30 the constitutional validity of the Tamil Nadu Reservation Act as well as its inclusion in the Ninth Schedule (to keep it beyond judicial review). It will also examine the validity of inclusion of several such laws by other States and the Centre.

Immune from review

In response to the petition filed by the Voice (Consumer care) Council, the State asserted that after the Act was included in the Ninth Schedule "it is immune from judicial review." No part of the basic structure of the Constitution including judicial review or the position of the judiciary under the Constitution was damaged or destroyed by such immunity. The Constitution did not give the judiciary unlimited scope for judicial review.

The State said the need for providing reservation for socially and educationally backward people was felt even during the British period. "The evolution of the provision for reservation in the erstwhile Madras Presidency and the present Tamil Nadu right from 1927 had been noted in the Indra Sawhney [Mandal] case itself."

In 1981, reservation was fixed at 68 per cent and in 1990 at 69 per cent. As per the 1991 census, the percentage of the SC/ST and Backward Classes in the total population of the State was 88, but reservation was provided only for 69 per cent.

Exception

The ruling on the 50 per cent limit as per the Mandal judgment would not apply to Tamil Nadu as in the same verdict, an exception was provided for peculiar facts and circumstances. Quoting the relevant portion, which said "while 50 per cent shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people," the affidavit wanted the court to take into consideration the historical necessity for providing reservation higher than the 50 per cent ceiling.

"Prescribing a rigid 50 per cent ceiling in the matter of reservation would be contrary to the very spirit of the Constitution and the objectives sought to be achieved by the Constitution. Any stipulation which has the effect of directly or indirectly ensuring the dominance of the upper classes and more privileged sections to the detriment of the speedy uplift of the downtrodden and underprivileged classes would be against the very spirit of the Constitution."

Only when the socially and educationally backward and most backward classes were granted opportunities would they be able to compete with those who already had a competitive advantage.

"It is the firm belief of the State that in the absence of such an opportunity at the level of entry into educational institutions, the dream of equality envisaged by the Constitution makers will never be fulfilled," it said.

"Neither the Tamil Nadu Reservation Act nor its inclusion in the Ninth Schedule is unconstitutional, violative of any of the provisions of the Constitution or destructive of the basic structure of the Constitution as enunciated by the court in the Keshavananda Bharti' case," the affidavit said and sought dismissal of the petition.

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