The Supreme Court striking down the Maharashtra State Reservation for Socially and Educationally Backward Classes Act, 2018, extending reservation to the Maratha community, may have consequences for the reservation policy in Tamil Nadu. The Constitution Bench held that reservation in excess of the 50% ceiling is unconstitutional.
“The reservation policy of Tamil Nadu, both vertical and horizontal, is under a cloud, and there is uncertainty,” said K. Chandru, a retired judge of the Madras High Court.
He pointed out that while the State’s Act providing for 69% total reservation had been included in the Ninth Schedule of the Constitution, the Supreme Court, in I.R. Coelho vs the State of Tamil Nadu , had ruled that even such a law could be subjected to judicial review.
Petitions questioning the validity of the Tamil Nadu reservation law of 1994, which has been included in the Ninth Schedule to put it outside the purview of judicial review, have been pending in the Supreme Court for years.
Mr. Chandru said the basic argument was that the 69% reservation was not scientifically evolved.
On the recently introduced sub-quota in the Most Backward Classes category for the Vanniyars, the Denotified Communities and other MBCs, he said: “After the State Backward Classes Commission made the recommendation, the State government created internal reservation. The State government gave an ad hoc 10.5% reservation for the Vanniyars, 7% for the Denotified Communities, and the remaining 2.5% to be shared by as many as 49 communities. If small reservations for several categories are added, the total reservation stands at 80%,” he said.
As for PMK MP Anbumani Ramadoss’s demand for a caste-wise census and reservation for communities in proportionate to their population, Mr. Chandru said that constitutionally, proportionate reservation was not possible. He said reservation was an affirmative action, but “what is an exception has become a general rule”.
The other aspect of the recent judgment that would impact the powers of the State is the court’s interpretation of the 102nd Constitution Amendment, under which the National Backward Classes Commission was established, and the President was given the power to notify a Central List of socially and educationally backward classes (SEBCs) in relation to all States and the Union Territories.
The court ruled that the list notified by the President will be the only list of SEBCs, and only Parliament can make inclusions and exclusions.
Former Additional Solicitor-General and DMK MP P. Wilson said another amendment should be made to the Constitution to offset the court’s ruling that, he argued, invaded the power of the State governments to identify their SEBCs.
“The Supreme Court has said the Centre and the President alone have the power to include communities in the backward classes list. But the State governments, under Articles 15 and 16, have already been given the right to decide on reservation and its quantum. Only the State governments know which classes are backward and which are not. Why are you suspecting it now?” he said.
Asked how one could justify reservation for a particular community if it was done with a political motive, Mr. Wilson wondered what was the guarantee that the Centre stand’s on the issue was non-political.
Letter of dissent
He also referred to the long letter of dissent by DMK MP Kanmozhi, when she was on a select committee that went into the Bill introducing the 102nd Amendment. She had highlighted that the proposed amendment, through the insertion of Article 342A, would have the effect of divesting the States of the power that they had hitherto exercised to identify SEBCs.
“The Supreme Court has said her dissent has come true,” Mr Wilson said.
PMK advocates’ wing leader K. Balu said the Supreme Court order could not be compared with the situation in Tamil Nadu. “Even the Mandal Commission had said the Marathas were a forward community. In Tamil Nadu, we have followed compartmental reservation.
“The reservation for the Arundathiyars and the Muslims was made on the recommendation of the State Backward Classes Commission. Moreover, the 69% quota has been included in the Ninth Schedule,” he explained.
Mr. Balu recalled the Supreme Court’s ruling, dated August 28, 2020, declaring that States had the right to decide on reservation as well as sub-classification of the communities benefiting from it.
On the Supreme Court’s rulings in the past that the quantum of reservation had to be based on quantifiable data, Mr. Balu said the Justice Kulasekaran Commission, established to compile caste-wise data in the State, would come up with the data.