With 69% quota, Tamil Nadu hub of politico-legal battle on affirmative action
In the backdrop of the Supreme Court seeking the views of states to re-examine the 50% cap on reservation, all eyes are on Tamil Nadu—which is not only among the seven states that breach the cap by providing 69% reservation based on caste in public employment and educational institutions, but is a pioneer in the most expansive affirmative action programme in India.
Both the major Dravidian parties—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, with late chief minister J Jayalalithaa playing an important role in providing legislative support to the 69% reservation in the 1990s.
In 1992, the Supreme Court ruled that reservation cannot exceed 50% in Indra Sawhney versus Union of India, based on which the Madras high court 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,” says 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) Act, 1993, now known as the Tamil Nadu Act, 1994 to keep its reservation limit intact at 69%.
Jayalalithaa then led a delegation to Delhi and urged the central leadership, which resulted in the then President Shankar Dayal Sharma giving his assent to the Bill in a month. The late AIADMK leader and former CM also ensured a special legal protection by bringing the legislation under a constitutional amendment under the Ninth Schedule to ensure that its validity could not be challenged judicially (for violating Articles 14 and 19 of the Constitution).
However, the Supreme Court, 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 of the Constitution, and so the Tamil Nadu law that increased reservation to 69% is open to review. “The Supreme Court said the court has got the power of 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 not only had OBC reservations but had exceeded the 50% cap,” says Chandru.
The composition of the 69% reservation in Tamil Nadu is the following: Backward Caste (BC) are eligible for 30% reservation (26.5% + 3.5% internal reservation for Muslims). In the 1990s, BC Muslims were part of the BCs, but this was carved as a separate sub-category during DMK regime in 2007. Most Backward Caste (MBCs) are eligible for 20% reservations, broken down into 10.5% for Vanniyars, 7% for Denotified Communities (which constitute 28 castes) and 2.5% for others (41 castes). Scheduled Castes in the state have 18% reservations, and Scheduled Tribes one per cent, taking the total upto 69%.
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. This announcement came hours before the Election Commission announced poll dates for Tamil Nadu as the AIADMK was under pressure from its ally, the PMK, which has been demanding a separate quote 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 scaled it down settling for an internal reservation. Previous chief ministers hadn’t heeded the PMK’s demand. Palaniswami too says 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 the 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. “It’s debatable whether this reservation will hold good in the eyes of the law as courts have rejected such reservations in the past.”
Besides the political imperatives dictating the reservation policy, there is also legal uncertainty. The petitions challenging the Tamil Nadu law, on the grounds that open category students were at a disadvantage since reservation in admissions were being carried out in an increasing number of seats, have been long-pending in the Supreme Court
“Every year, petitions are filed with respect to medical college admission that if the state follows the Indra Sawhney judgement, they (students) would have received a seat which was denied because of the 1993 law. Supreme Court, then, started passing curious orders to calculate the difference between the two caps—so each year, among whoever is left out, about 40-50 students would 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 Supreme Court. There isn’t a scientific approach on deciding on what is important.” Seshadri says.
The AIADMK says that the party will continue to fight for the 69% reservation to uphold the social justice fabric of the state. “[Former Tamil Nadu chief minister] MG Ramachandran had increased the state’s 50% reservation to 68% which Amma [Jayalalithaa] sealed at 69%. Legal challenges have been present and Tamil Nadu has been a forerunner in challenging it,” says AIADMK spokesperson Vaigaichelvan.
The AIADMK’s ally, the BJP, at the Centre announced 10% reservation for Economically Weaker Section (EWS) in 2019 which the state has not accepted as a reservation policy. The state passed a resolution in the assembly that EWS certificates will be provided only for those applying to Central government and Central institutions. The DMK and DK challenged the EWS in court. “Economic status is fungible, that is if someone is a poor man tomorrow, he may become a millionaire and billionaire overnight. But this is not the case for socially and educationally backward people—their status cannot change overnight,” says 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 Tamil Nadu’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.”
DMK has also criticised the AIADMK for rushing the internal reservation for Vanniyars as an electoral move.
“Reservation combined with several educational institutions being opened across the state by both DMK and AIADMK governments has ensured upward mobility and high social development indices in Tamil Nadu. This has helped produce first generation diploma holders and degree holders since the 1990s who are children of daily-wage workers,” says consultant and independent researcher in the social development sector Geetha Narayanan. “But we need more sociological research to understand who truly requires reservation as the creamy layer in various castes (the land-holders and power-holders) is repeatedly benefitted.”