BY the Constitution (76th Amendment) Act of 1994, Parliament included the Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of seats in educational institutions and of appointments or posts in the services under the State) Act, 1993, in the Ninth Schedule. The Act, which provides for 69 per cent reservation, runs counter to the Supreme Court ruling in the Mandal case that reservation should not exceed 50 per cent. There was an intensive debate over the constitutionality of inserting this significant non-land reform law in the Ninth Schedule and keeping it beyond judicial review.
Voice (Consumer Care) Council, a non-governmental organisation, challenged the legality of the Act in the Supreme Court in 1994. A nine-Judge Bench heard the public interest petition along with other similar petitions in the I.R. Coelho case. Following the January 11 judgment laying down broad principles on the subject, a Division Bench of the Supreme Court will now hear this petition. Whatever the outcome of the case, written submissions in the I.R. Coelho case on behalf of the Dravidar Kazhagam (D.K.), an intervener, throw considerable light on the merits of the Act and its insertion into the Ninth Schedule.
Unlike the Gudalur Janmam Estates Act, 1969, and the West Bengal Land Holding Revenue Act, 1979 (both have been challenged in the I.R. Coelho case), which were struck down by the courts before their inclusion in the Ninth Schedule, no court had taken a decision on the validity of the Tamil Nadu Act at the time of its inclusion in the Ninth Schedule. Therefore, the issues raised in the reference in the I.R. Coelho case do not arise insofar as the Tamil Nadu Act is concerned.
The D.K. has submitted that the validity of the 76th Amendment - and the Tamil Nadu Act - can be tested only on the grounds that its provisions could damage or destroy the basic structure of the Constitution. Its validity cannot be tested with the touchstone of fundamental rights as the Act has been placed under the Ninth Schedule, making it immune from the legal challenge on the grounds that it violates fundamental rights.
The D.K. has maintained that the Act is not inconsistent with and does not violate fundamental rights; it is a welfare measure aimed at social upliftment and effectuating the underlying principles and spirit of Articles 14, 15, 16 and 21 of the Constitution in Part III apart from Articles 38, 39, 41 and 46 in Part IV, dealing with the Directive Principles of State Policy and the goals and ideals set out in the Preamble.
The D.K. has pointed out that the Scheduled Castes (S.C.s) comprise 19.2 per cent of the population, the Scheduled Tribes (S.T.s) 1 per cent and the Backward Classes (B.C.s) 67.8 per cent, bringing the total population belonging to these categories to 88 per cent. The reservation proposed in the Act include 18 per cent for the S.Cs, 1 per cent for S.Ts, 30 per cent for the B.C.s and 20 per cent for the Most Backward Classes. Therefore, it said, 69 per cent reservation could not be held to be an unreasonable measure.More importantly, reservation in Tamil Nadu existed prior to the Supreme Court judgment in the Mandal case. Tamil Nadu has provided 68 per cent reservation since 1980, and with the addition of 1 per cent for S.Ts in 1990 it went up to 69 per cent. Thus, the Tamil Nadu Act only protected and confirmed the existing norms.
In Indira Sawhney and others vs Union of India, the Supreme Court held that in exceptional situations, the limit of reservation may exceed 50 per cent. The D.K. has argued for reconsideration of the ceiling fixed by the court as it is not based on any scientific study or principle. "A ceiling of 50 per cent reservation in effect results in 50 per cent reservation for the forward castes, which is not permissible in law," it said.
The D.K. has brought out a crucial infirmity in the challenge to the Tamil Nadu Act. Under Article 31 C, no law giving effect to the policy of the State in securing all or any of the Directive Principles enshrined in Part IV shall be deemed to be void on the grounds that it is inconsistent with or takes away or abridges any of the rights conferred by Article 14 or Article 19. The proviso to Article 31 C reads: Where such law is made by the Legislature of a State, the provisions of this Article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent.
The Tamil Nadu Act has been passed to secure the principles in Part IV, and it has received the assent of the President in terms of this Article. Therefore, it is entitled to the protection of Article 31 C, and cannot be challenged on the grounds that it violates Articles 14 or 19, the D.K. argues.
The D.K. maintains that the ceiling of 50 per cent was not an issue even in the Mandal case, as the Office Memorandum of the Central government only fixed 27 per cent reservation for OBCs, thus keeping the overall quantum of reservation within 50 per cent (including 15 per cent for the S.C.s and 7.5 per cent for the S.T.s). Therefore, there was no justification for the Court to impose a ceiling of 50 per cent, it has argued.
V. VenkatesanCOMMents
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