The Supreme Court is hearing pleas against the 50% cap on reservations but Tamil Nadu has had 69% reservation since 1990. Here’s how.

A collage of Karunanidhi and Jayalalithaa against the Supreme Court
news Reservation Monday, March 29, 2021 - 09:51

A five-judge Constitution Bench of the Supreme Court, for the past few days, has been holding hearings on a plea challenging the validity of the 2018 Maharashtra law granting reservation to Marathas in education and jobs. The court is also looking at whether the landmark 1992 judgement in Indra Sawhney case — also known as the Mandal verdict which caps quota at 50% — requires a re-look by a larger bench in light of subsequent Constitutional amendments, judgments and changed social dynamics of the society.

The plea has been filed against Maharashtra’s Maratha quota, which takes the total quantum of reservations above the permitted cap of 50%. Karnataka too wants to increase the quota and include castes like Panchamashalis under the system. As these states wait for the SC's verdict, the state of Tamil Nadu has managed to have 69% reservation since the 1990s. How? Here’s an explainer.

Up until 1971, Tamil Nadu’s total reservation had stood at 41%. When DMK’s M Karunanidhi took over as Chief Minister following the demise of Annadurai in 1969, he constituted the Sattanathan Commission to look into recommendations on improving the welfare of Backward Classes. It was based on the Commission’s recommendations that Karunanidhi increased the reservation for Backward Classes (BC) to 31% from 25% and for Scheduled Castes (SC) and Scheduled Tribes (ST) to 18% from 16%. This took the state’s total reservation to 49%.

Thereafter, in 1980 AIADMK’s MG Ramachandran further hiked reservation for BCs to 50%, taking Tamil Nadu’s total reservation to 68%. This, as The Hindu’s K Venkataramanan, reports was done after the AIADMK was defeated in the 1980 Lok Sabha Elections, paying the price for introducing an economic criterion to be eligible for reservation. MGR chose to scrap its ‘creamy layer’ and raise the reservation for Backward Classes. 

In 1989, when DMK swept to power, Chief Minister Karunanidhi created the Most Backward Classes (MBC) category, including castes like Vanniyars within this quota. The MBC quota, which falls within the 50% BC reservation, was fixed at 20%. 

Then based on a Madras High Court judgment in 1990, Karunanidhi separated reservation for Scheduled Castes and Scheduled Tribes. The 1% quota that was given for STs took Tamil Nadu’s overall reservation to 69%.   

Indira Sawhney case and TN’s legal battle 

In the year 1992, the Supreme Court delivered its judgment in the Indira Sawhney and others versus the Union of India and Others. The apex court held that the total reservations under Article 16(4) should not exceed 50 per cent. Article 16(4) states, “Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.”

Now, the state of Tamil Nadu government had 69 percent reservation — Backward Classes 26.5 per cent, Most Backward Classes/Denotified Communities 20 per cent, BC Muslims 3.5 per cent, Scheduled Castes 18 per cent and Scheduled Tribes (1 percent). 

The Tamil Nadu government under Jayalalithaa, shortly after, moved the Madras High Court citing admissions to schools and colleges and other educational institutions in the state for the academic year 1993-94. The High Court of Madras ruled that the Tamil Nadu government could continue its reservation policy as hitherto followed during that academic year but the quantum of reservation should be brought down to 50 percent during the next academic year, that is 1994-95. 

Then Tamil Nadu government filed a Special Leave Petition (SLP) against the order passed by the Madras High Court, asking that the reservation policy of the state government should be allowed to continue for the benefit of the Backward Classes. However, the Supreme Court passed an interim order reiterating that the reservation should not exceed 50 per cent in the matter of admission to educational institutions. 

As the state did not receive any reprieve from the courts, in November 1993, in a special Assembly session, a unanimous resolution was passed, to ask the Union government under Narasimha Rao to take steps to amend the Constitution so that the Tamil Nadu government can continue its policy of 69 percent, for the welfare and advancement of the backward classes.

The Tamil Nadu government then introduced a Bill, called the Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of Seats in Educational Institution and of appointments or posts in the Services under the State) Bill, 1993. The Bill was forwarded for President’s assent. The then Chief Minister J Jayalalithaa led a delegation of Tamil Nadu politicians across party lines to Delhi to hold talks with the Union government. She also insisted that the Tamil Nadu government’s Act should be brought under the Ninth Schedule of the Constitution, which ensured that it cannot be challenged in any court. 

Article 31B of the Constitution states that none of the Acts that are included under the Ninth Schedule nor any of the provisions “shall be deemed to be void, or ever to have become void,” and the Acts and provisions, “notwithstanding any judgment, decree or order of any court or tribunal to the contrary,” shall continue to be in force. 

The President's assent came, and this cemented the 69% reservation for Tamil Nadu. The Act was also brought under the Ninth Schedule of the Constitution. 

Over the years, there have been pleas that have been filed against the inclusion of the Act under the Ninth Schedule, stating that it is unconstitutional and is against Article 14 of the Constitution. The plea is currently in the Supreme Court, but the bench has said that it will decide on it only after the five-judge Constitution bench decides on the pleas over the Mandal verdict. 

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