The Supreme Court of India delivered a historic judgment on January 20, 2022, in Neil Aurelio & Ors vs Union of India and Ors , upholding the constitutional validity of 27 per cent reservation for the Other Backward Classes (OBCs) in the All India Quota (AIQ) for undergraduate and postgraduate medical and dental courses (MBBS and BDS/M.S., M.D. and MDS). The seats for the AIQ are contributed every year by the States from the medical and dental colleges run by them. The AIQ concept has been in practice since 1986 as per the judgment of the Supreme Court. Every State has to contribute 15 per cent of seats in graduate and 50 per cent of seats in postgraduate courses of its medical and dental colleges. The total number of seats pooled would provide opportunities to the students to pursue their studies in any State irrespective of their place of domicile.
In 1986, reservation for the Scheduled Castes (S.Cs) and the Scheduled Tribes (S.Ts) in education was in vogue only in certain States. But in the AIQ contributed by the States, the reservation policy for the S.Cs and the S.Ts was not adhered to. It deprived candidates from these categories from getting their share in the seats. When a petition sought reservation in the AIQ for S.Cs and S.Ts in 2007, the Supreme Court gave a direction to provide reservation for students from these categories.
There was no reservation for the Other Backward Classes (OBCs) though the OBC seats were contributed by the States to the AIQ. The States contributing seats to the AIQ have been implementing OBC reservation in the medical and dental colleges run by them. But it was not extended to the OBCs in the AIQ. No action was taken by the Union government to set this right.
In 2006, the 93rd Constitutional Amendment was effected enabling reservation for the OBC/S.C./S.T. students in Central educational institutions and private institutions except those run by the minorities. The OBC reservation was extended to Central educational institutions such as the All India Institute of Medical Sciences (AIIMS) and Jawaharlal Institute of Postgraduate Medical Education and Research (JIPMER). The spirit behind the reservation provisions of the Constitution and the practices consequential to them were not understood by the Union government. It never tried to understand them or perhaps misunderstood them and remained reluctant. This deprived the oppressed sections of their rights.
Since the 2008-09 academic year, the Union government had been implementing reservation for OBCs in Central medical educational institutions but denied OBC reservation in the AIQ, even when the contributing States were already implementing the reservation policy in their respective States. The denial of OBC reservation in the AIQ had become routine for the Union government despite consistent demands by the States.
Tamil Nadu’s challenge
Tamil Nadu became the forerunner in challenging the denial of reservation for OBCs in the AIQ. The Dravidar Kazhagam (D.K.), which pioneered the social justice movement, convened an ‘all-party meeting’. It was resolved to file writ petitions in the court individually and seek legal remedy. Accordingly, the D.K. filed a writ petition before the Madras High Court on June 4, 2020. The Dravida Munnetra Kazhagam (DMK), the Marumalarchi Dravida Munnetra Kazhagam (MDMK), the Pattali Makkal Katchi (PMK), the Communist Party of India (CPI), the Communist Party of India (Marxist), and the Viduthalai Chiruthaigal Katchi (VCK), and a few social organisations filed writ petitions in the Supreme Court, which directed them to file petitions first in the Madras High Court. Later, the All India Anna Dravida Munnetra Kazhagam (AIADMK) also filed both as the ruler of the Government of Tamil Nadu and as a political party. It was argued that the Saloni Kumari case (2015), relating to OBC reservation in the AIQ, was pending in the Supreme Court and hence the Madras High Court could not deal with the petitions. It was clarified that the grounds for the Saloni Kumari case were different and that the Madras High Court might proceed with the petitions relating to OBC reservation. The court held that OBCs were entitled to reservation in the AIQ. Through an interim order dated July 27, 2020, the court directed the formation of a committee with the representation of the Union Ministry, the Medical Council of India and the Tamil Nadu government to work out, within three months, a scheme to provide reservation for the OBCs in the AIQ. The court, after the receipt of the report, decided that OBC reservation in the AIQ had to be provided from the 2021-22 academic year.
Later, the notification for admission in the AIQ was published by the Union government without mentioning the reservation for the OBCs. The DMK filed a contempt of court petition in the Madras High Court. In the meantime, writ petitions were filed in the apex court challenging the subsequent notification by the Union Ministry specifying OBC reservation in the AIQ. The DMK impleaded itself in this case. By then, the DMK had won the Assembly election, and its president M.K. Stalin assumed office as Chief Minister, in May 2021.
The Supreme Court’s latest verdict in January 2022 (supra) is that OBC reservation in the AIQ is constitutionally valid. The petitions filed in Tamil Nadu ended a long-drawn legal struggle. It ensured reservation for the OBCs in the AIQ not only for Tamil Nadu but for all the States.
At every stage in the legal battle, the reluctance of the Union government led by the Bharatiya Janata Party (BJP) was exposed. In every reply to the notices of the courts, it tried to specify some point or the other with the intention of deterring OBC reservation in the AIQ. The BJP’s stance is not unusual as it cannot deviate from the stand of its ideological mentor, the Rashtriya Swayamsewak Sangh (RSS), which is against the principle of reservation for the oppressed. The untiring efforts put in by Stalin ensured success in the legal battle to secure OBC reservation in the AIQ.
Significant verdict
The judgment of the apex court in January 2022 upholding OBC reservation in AIQ is unique. It is a landmark victory for the social justice cause of the Dravidian movement. The basis of the reservation policy and the perspective in which it has to be understood have been discussed consistently in a scientific way by the representatives of the movement quoting scholarly works on affirmative action. Providing reservation to oppressive sections was also seen as a form of discrimination by the critics of reservation. The anti-reservationists used to say that discrimination in any form is contrary to the doctrine of equality and equal opportunities. Hence, the judgment specified: “Equality of opportunity admits discrimination with reason and prohibits discrimination without reason.”
It recalled and emphasised that the policy of reservation was a positive measure by quoting several judgments of the Supreme Court. It said: “….special provisions (including reservation) made for the benefit of any class are not an exception to the general principle of equality. Special provisions are a method to ameliorate the structural inequalities that exist in the society, without which, true or factual equality will remain illusory.”
Another frequent argument against the reservation policy is that ‘merit’ is the casualty. The judgment aptly explained that equality and equal opportunities are not aimed at bringing mere ‘formal equality’ but ‘substantive equality’. It argued that the binary of merit and reservation had now become superfluous once the court had recognised the principle of substantive equality. It referred to the spirit of the Constituent Assembly and the purpose for which social justice through reservation was adumbrated in the Constitution.
The Supreme Court explained that the oppressed sections have to compete with the historically privileged sections that have been endowed with ‘social and cultural capital’. The disadvantaged classes have to overcome the barriers created by these unique social capital that has accrued to the forward classes. The features of social capital such as communication skills, accent, books or academic accomplishments, which have been inherited by the privileged classes, are not available to the competing oppressed sections.
“Performance in competitive examination or admission in higher educational institutions does not require a great degree of hard work and dedication but it is necessary to understand that ‘merit’ is not solely one’s own making. The rhetoric surrounding merit obscures the way in which family, schooling, fortune and a gift of talents that the society currently values aids in one’s advancement… A contribution of family habitus, community mileages and inherited skills work to the advantage of individuals belonging to certain classes, which is then classified as ‘merit’ reproducing and reaffirming social hierarchies.” The court dismissed the repeated arguments that Articles 15(4), 15(5) and 16(4) are only enabling provisions and cannot be equated with the fundamental rights by stating: “The principles applied for interpreting Article 16 are also to be used for the interpretation of Article 15. Articles 15(4) and Article 15(5) are nothing but a restatement of the guarantee of the right of equality stipulated in Article 15(1).”
These narratives and interpretations of the Supreme Court are only illustrative and not exhaustive of its judgment and would remain as guidelines and references to decide reservation-related cases in future.
It is not just a verdict but a benchmark to protect the constitutional mandate of social justice.
History of social justice in Tamil Nadu
Social oppressions had been prevailing for many centuries even before the arrival of British and other political conquerors. The history of social justice in Tamil Nadu is older than even the Indian constitutional history of social justice. Governmental initiatives on the dispensation of social justice date back to 1921. The First Communal G.O. was issued by the Justice Party government, which had to operate with limited power under the diarchical form of governance in the Madras province of British India. The Second Communal G.O. issued in 1922 was also not implemented and remained on paper.
During the First Ministership of Dr P. Subbarayan in 1928, which was supported by the Justice Party and by the initiative of Muthiah Mudaliar, the Minister representing Justice Party, the Third Communal G.O. got implemented for the representation of all communities, including Brahmins, in the provincial government jobs. From then onwards, the principal of communal representation got an impetus in employment and education.
The bureaucracy had earlier been the exclusive domain of a few of upper castes. The Brahminical hegemony in all spheres of life put brakes on the moves of the Justice Party to secure social justice. More than the Justice Party, it was the positive counter move of the Self-Respect Movement of E.V. Ramasamy, known as Thanthai Periyar, since 1925 which kept the momentum on. Periyar joined the Congress Party in 1919 with the idea of achieving the goal of communal representation. Even when the Indian National Congress and the Justice Party were opposite political poles, Periyar, though he was a Congressman, was in favour of all the moves of the Justice Party and its socially progressive policies, including communal reservation.
A sociopolitical culture was established by Periyar’s Self-Respect Movement, even while the popular support base of the Justice Party was shrinking. Every political party that assumed power in Tamil Nadu had to adhere to the principle of communal reservation as a means for social justice. The Congress Ministry that assumed office with Omandur P. Ramasamy as the Premier under provincial autonomy brought exclusive reservation for the “Backward Classes” in the Communal G.O. Because of this move and other socially progressive measures that were given legal sanctity, Omandur P. Ramasamy was ridiculed by the anti-social justice hegemony as ‘beardless Ramasamy’ (implying that was the only feature that differentiated him from Periyar). Periyar and his organisation are non-political, avoiding elections and the aspiration to capture power. The land has been tuned to the principle of social justice by the D.K., the new name given by Periyar in 1944.
Setback to Communal G.O. set right
After the Constitution came into effect in January 1950, the Communal G.O., which was more than two decades old then, was challenged in Madras High Court by Champakam Dorairajan, a Brahmin. The challenge was that the Communal G.O. was against the equality clause enunciated in the Constitution. Without applying for an MBBS course, she had petitioned that the Communal G.O. had deprived her of admission in a medical college. The Madras High Court held that the Communal G.O. was ultra vires of the Constitution. On appeal, the Supreme Court confirmed the verdict of the High Court.
Periyar revolted against these judgments stating that communal reservation was the basic right of the oppressed sections. He conducted Statewide agitations continuously. The DMK also joined the struggle under the leadership of C.N. Annadurai, popularly known as Arignar Anna. The Tamil Nadu unit of the Congress party, led by K. Kamaraj, reported the turmoil to Prime Minister Jawaharlal Nehru. Nehru paved the way for amending the Constitution for the first time. Article 15(4) was inserted in it to sustain the policy of communal reservation.
The first amendment enabled reservation not only for the OBCs, S.Cs and S.Ts in Tamil Nadu but also extended it to the rest of the States. Thus, Periyar and his movement remained as the prime force enabling the dispensation of reservation to the whole of the country after Independence.
In Tamil Nadu the reservation in jobs and education was fixed at 25 per cent for the OBCs and 16 per cent for the S.Cs and the S.Ts put together during Congress rule.
In 1963, in Balaji vs State of Mysore , the apex court said the total quantum of reservation should not exceed 50 per cent. The ceiling it mentioned was only by way of obiter dictum and not an order for adherence. In 1971, the reservation was enhanced to 31 per cent for OBCs and 18 per cent for the S.Cs and the S.Ts under the DMK rule by Chief Minister Kalaignar M. Karunanidhi.
In 1979, M.G. Ramachandran as the Chief Minister of Tamil Nadu introduced an economic criterion for reservation, fixing the income ceiling of Rs.9,000 a year for OBCs to get reservation. Reservation based on an economic criterion is ultra vires of the Constitution, which approves backwardness only on social and educational basis. Even at the time of the First Constitutional amendment, the idea of introducing an economic criterion for reservation was deeply discussed and debated. The economic status of a person is not fixed and is ever-changing. The supporters of economic criterion in Parliament secured only five votes, whereas the opposing forces got 243 votes.
The Constitution speaks of reservation only for the socially and educationally backward classes explicitly in Articles 15(4) and 340. With respect to reservation, it is stated clearly that backwardness has to be reckoned only on social and educational basis. Parliamentary debates have clarified the spirit of Article 15(4) on social and educational backwardness and have highlighted the irrelevance an economic criterion in the matter.
Foreseeing the damage likely to be caused to OBC reservation by the ‘income ceiling’ of the Tamil Nadu State government, the D.K. started an agitation for the withdrawal of the order, and campaigned against the ‘income ceiling for OBC reservation’.
Chief Minister M.G. Ramachandran, popularly known as MGR, adamantly refused to take note of the the intricacies of the concept of social justice. The D.K., the DMK, the CPI, the IUML and a few leaders of the Congress were on a continuous war path against the G.O. Many OBC associations were persuaded by the D.K. to participate in the agitation by highlighting the reservation benefits that the children from OBC communities would gain. It organised a massive agitation against the order, burnt copies of the G.O. and sent the ashes to the Tamil Nadu government secretariat as a mark of protest.
Elimination of ‘economic criterion’
In the parliamentary elections held in 1980, MGR’s AIADMK faced a rout, securing only two of the 39 Lok Sabha seats in Tamil Nadu. The Chief Minister realised that something had gone wrong. His senior party colleagues pointed out that the reason for the defeat was his G.O., which went against the policy of communal reservation, the fundamental fabric of Tamil Nadu.
MGR immediately convened an all-party meeting to discuss the subject. The D.K. had an opportunity to participate in it and explain the intricacies of the issue. It explained why the G.O. fixing an income ceiling for OBC reservation was meaningless. For instance, if an OBC government servant earns in a year less than Rs.9,000, his children would be eligible to get reservation benefits. If the same person is transferred to Chennai city, he would earn more through city allowances. His total annual income would then exceed Rs.9,000, depriving his children of reservation benefits. The flexible nature of economic status is ultra vires of the Constitution and hence, was not included in the formulation of reservation policy.
Enhancement exceeding fifty per cent
MGR was convinced, and a few days later the G.O. on income ceiling was withdrawn. Besides, MGR enhanced the OBC reservation from 31 per cent to 50 per cent. The total reservation in Tamil Nadu became 68 per cent (50 per cent for OBCs plus 18 per cent for S.Cs and S.Ts). With the exclusive 1 per cent for the S.Ts, the total percentage rose to 69 per cent in 1989.
It was a historic turning point in the history of social justice. The hesitation on the part of the rulers to enhance the reservation above 50 per cent is unwarranted. The impediment was removed by enhancing the reservation for OBCs to 50 per cent in Tamil Nadu. The State, with the ideological strength of Periyar’s movement, had shown the way to the rest of the States. However, some States have not enhanced the limit beyond 50 per cent because of a lack of awareness about its significance or hesitation to take such a bold step.
The Mandal milestone
The implementation of the Mandal Commission recommendation of 27 per cent reservation for OBCs in Union government jobs and its upholding by the apex court was the next milestone on the path of social justice.
The Mandal Commission, constituted as per Article 340 during the Janata Party rule in 1979, presented its report to the Congress government in 1980. The recommendations remained on paper without any follow-up. Continuous demand was made by the social justice forces for tabling the report in Parliament and for accepting its recommendations. The D.K. cnducted 16 agitations and held 42 conferences at the all-India level to bring the Mandal recommendations to the limelight.
In 1990, Prime Minister V.P. Singh implemented one of the recommendations, that is, 27 per cent reservation for OBCs in the jobs of Union government and its undertakings. Karunanidhi, then Chief Minister of Tamil Nadu, played a major role in having the Mandal report implemented As usual, the Office Memorandum announcing its implementation was challenged in the apex court. Ultimately, the constitutional validity of reservation for OBCs was upheld in Indra Sawhney vs Union of India . But exceeding the scope of the legal challenge, the apex court pronounced that the total reservation must not exceed 50 per cent. The 50 per cent ceiling on reservation is nowhere mentioned in the Constitution. The total reservation of 69 per cent in Tamil Nadu faced a threat.
At this juncture, J. Jayalalithaa was the Tamil Nadu Chief Minister. The D.K. suggested the way out to protect 69 per cent reservation.
The D.K.’s advocacy was: Article 31(C) provides power to the States to legislate and protect 69 per cent reservation. An exclusive legislation may be enacted by getting the assent of the President of India. In order to protect the proposed Act, with retrospective effect it may be placed in the Ninth Schedule as per Article 31(B), and 31(C) of the Constitution and remain immune to judicial review. Such placement of the Act requires a Constitutional Amendment to be made by Parliament.
The D.K.’s suggestion was accepted by Jayalalithaa. The State Legislative Assembly was exclusively convened for the purpose and the Bill was passed unanimously by all the legislature parties. A delegation of parties led by the Chief Minister and the author as the D.K. general secretary met Prime Minister P.V. Narasimha Rao to apprise him of the significance of the Bill. His intervention to get the President’s assent for the Bill was sought. The Bill turned Act was placed in the Ninth Schedule through the 76th Constitutional Amendment in 1994. All the parties in Parliament unanimously accepted the move of Tamil Nadu. Constitutional protection for 69 per cent reservation in Tamil Nadu became a reality. The D.K., and Tamil Nadu, the land of Periyar, ensured the enactment of an exclusive legislation seeking to implement the reservation policy with retrospective effect and due constitutional amendment. This towering achievement took place in 1994, but its significance was not properly understood in political circles. Since 1980 through G.Os and from 1994 through an exclusive enactment, 69 per cent reservation has been under implementation in Tamil Nadu. Many States which have realised the need to enhance total reservation beyond 50 per cent in their respective States consider the Tamil Nadu Act as a model. This includes a few States ruled by the BJP and its allies.
K. Veeramani is president, Dravidar Kazhagam.
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