Supreme Court Rules Out Quota As Fundamental Right: What It Means For Political Parties, Educational Institutions In Tamil Nadu

Yesterday (11 June), the Supreme Court rejected a batch of writ petitions that challenged the Union government’s decision to not grant 50 per cent reservation to Other Backward Classes (OBCs) in Tamil Nadu medical colleges, saying reservation is not a fundamental right.

A Supreme Court bench comprising Justices L Nageswara Rao, Krishna Murari and S Ravindra Bhat wondered “whose fundamental rights are being violated? Article 32 is available only for violation of a fundamental right. We assume you are all interested in fundamental rights of the citizens of Tamil Nadu".

Almost all major political parties in Tamil Nadu, including the Dravida Munnetra Kazhagam (DMK), All India Anna Dravida Munnetra Kazhagam (AIADMK), Marumalarchi Dravida Munnetra Kazhagam (MDMK), Pattali Makkal Katchi (PMK), Communist Party of India (CPI) and CPI-Marxist (CPI-M) had petitioned the apex court for ensuring 50 per cent reservation to OBCs in the state.

They moved the Supreme Court following reports that the 50 per cent OBC reservation quota in medical colleges was not being followed.

According to Tamil Nadu government’s petition filed in the apex court, it had surrendered all-India quota seats meant for OBCs to the Centre but the latter filled the seats with general candidates.

Tamil Nadu’s charge against the Centre was that it was neither following the 50 per cent quota for OBCs fixed in the state nor the 27 per cent quota fixed by the Union government. The state told the apex court that last year, only 17.61 per cent of seats reserved for OBCs was filled up.

Backing Tamil Nadu government’s plea, the ruling AIADMK argued that OBCs have been under-represented in the all India quota system in medical seats, be it undergraduate, diploma or postgraduate courses.

Seeking an injunction on filling postgraduate seats under the National Eligibility cum Entrance Tests (NEET), the DMK said it was opposing the denial of implementation of 50 per cent OBC policy of the state.

While dismissing the petitions, the judges asked all the disputing parties to first approach the Madras High Court.

Political parties which moved the Supreme Court for implementing the 50 per cent reservation for OBCs should consider themselves lucky since the judges just stopped with their observation that reservation is not a fundamental right.

Why? Let us look at the reality of the situation in Tamil Nadu.

The state reserves a total of 69 per cent of seats in educational institutions for Backward Castes (BCs), Other Backward Classes (OBCs), Scheduled Castes (SCs) and Scheduled Tribes (STs).

A legislation passed in the Tamil Nadu Assembly in 1994 provides for 26.5 per cent reservation to BCs, 3.5 per cent to Backward Muslim castes, 20 per cent to OBCs defined as Most Backward Castes, 15 per cent to SCs, 3 per cent to a sub-community of SCs and 1 per cent to STs.

The Tamil Nadu government, in an effort to protect its reservation policy, got the law included in the Ninth Schedule of the Constitution, which disallows its judicial review. The Supreme Court, however, said that such legislation can be reviewed.

The legislation was included in the Ninth Schedule to overcome a 1993 Supreme Court ruling that capped reservation quota at 50 per cent.

A petition filed by senior advocate K M Vijayan against the 69 per cent reservation for medical college seats in the Supreme Court has been pending for nearly 26 years now.

Vijayan has been in the news more for the murderous assault made on him by a group of people near Chennai airport, when he was on his way to New Delhi, the day before his petition against the 69 per cent reservation was scheduled to come up for hearing in the Supreme Court.

A probe by the Central Bureau of Investigation (CBI) implicated the late AIADMK leader and former state minister S D Somasundaram but all the accused in the case were acquitted in August 2012 by a local court.

In the case against the 69 per cent reservation, the apex court every year has been passing an interim order asking the Tamil Nadu government to create additional seats to ensure that meritorious students who would have got admission if reservation did not exceed 50 per cent are not left out.

These additional seats are in addition to the seats sanctioned for each medical college. In reality, the 50 per cent reservation cap is being implemented.

Tamil Nadu political parties are lucky because the Supreme Court bench, which took up their petitions, did not refer either to the 1993 cap it ordered on reservations or the pending case filed by Vijayan.

The parties have now moved the Madras High Court as suggested by the Supreme Court but it remains to be seen if their petitions can be entertained given the above facts.

As such barring medical colleges and employment in government departments, the 69 per cent reservation matters little in the state.

Ironically, the Tamil Nadu government is yet to implement the 10 per cent reservation for the economically backward in the state brought in by central legislation.

Except for the Bharatiya Janata Party (BJP), which is ruling at the Centre, almost all parties which have stakes in Tamil Nadu politics petitioned the apex court in ensuring 69 per cent reservation in medical colleges.

With elections to the state assembly due in a year’s time, all these parties want to be seen as protecting 'social justice' in the state.

Unfortunately, all these parties are trying to sweep under the carpet the reality that exists regarding reservation.

The other issue with these political parties is that despite their call for “social justice”, atrocities against SCs continue in the state. Ironically, many times, backward caste communities such as Nadars, Thevars, Vannyiars and Gounders indulge in such acts.

It is anyone’s guess if efforts to make the 69 per cent reservation an emotional issue will yield results in Tamil Nadu at this point of time.