‘The fight for reservation is not over’

ON July 27, the Madras High Court created history when it ruled that there was no impediment, constitutional or legal, for extending the benefit of reservation to Other Backward Classes (OBCs) under the all-India quota (AIQ) of seats in State government-run medical and dental colleges in Tamil Nadu. It asked the Centre to constitute a committee to arrive at the percentage of seats and address other issues relating to the OBC quota from the next academic year. The Medical Council of India (MCI) argued against reservation in AIQ seats, relying on a rather strange logic that since the Supreme Court had created the AIQ in 1984, only it could give an order in the matter.

The significant verdict was delivered by Chief Justice Amreshwar Pratap Sahi and Justice Senthilkumar Ramamoortrhy, on a batch of writ petitions filed by the State government, the ruling All India Anna Dravida Munnetra Kazhagam (AIADMK), the Dravida Munnetra Kazhagam (DMK), the main opposition party in the State, and a host of others. The prayer was uniform: 50 per cent reservation for OBCs in 15 per cent of undergraduate and 50 per cent of postgraduate seats in the AIQ in State-run government colleges.

Tamil Nadu’s has a long history of fighting for and providing reservation. Both the DMK and the AIADMK, which have ruled the State alternately for over five decades now, have been in the forefront of the fight for reservation in jobs and education as a measure to ensure social justice. The State has taken steps to create reservation within the reserved quota in some cases. It is a pioneer in extending reservation to the OBCs, Most Backward Classes (MBCs), Backward Classes (B.Cs) and other special categories of people. These measures were based on the socio-economic conditions of the people and have helped contribute to the development of a social fabric whose fundamentals rest on equity in education. The Supreme Court laid down in Indira Sawhney vs Union of India (1992), or the Mandal judgement, that the total quantum of reservation should not exceed 50 per cent, but Tamil Nadu had been approaching the apex court every year since then for a breather—and had obtained it—to protect 69 per cent reservation in the State. Later, a constituional amendment gave legal sanctity to this.

Thangam Thennarasu, DMK leader and former Education Minister, who is well-versed in theoretical and contemporary issues facing the State, said the High Court verdict was a victory for the DMK and its leader, M.K. Stalin, as the party had been raising the issue ever since the AIQ came into force. A Member of Legislative Assembly representing Tiruchuli constituency, he said that whenever a problem arose with regard to reservation in any sphere, particularly education, the DMK had always been the first political party to take up the issue and ensure that the rights of the oppressed and the backward classes were established. Thennarasu, who was Minister for School Education in the erstwhile DMK government, said the fight for reservation was in a continuous mode because the forces opposed to it were constantly trying to undo the gains made for the people by the DMK. He said that despite several differences, most of the political parties in Tamil Nadu had steadfastly remained on the same page with respect to the issue of reservation when it mattered. Thennarasu, who is DMK’s Virudhunagar North district secretary, said the party remained extremely vigilant in the case of reservation, and that was why Stalin directed that a caveat be filed before the Supreme Court. In this interview to Frontline , he traces the history of reservation in Tamil Nadu and places the current court battle in context. Excerpts:

In the OBC quota case, what was the main contention of the DMK and other political parties that demanded reservation in the AIQ for medical seats?

The Supreme Court permitted reservation in the AIQ, “including” reservation for Scheduled Caste/Scheduled Tribe, in the Abay Nath case on January 31, 2007. The line of judgments in Pradeep Jain and thereafter on AIQ stands modified by Abay Nath & Ors vs University of Delhi & Ors . While this is the reality, the Central government, using the 2006 Central Act, implemented 27 per cent reservation for OBC, 10 per cent for the economically weaker sections [EWS] and 5 per cent for persons with disabilities [PwD] in AIQ seats contributed by Central educational institutions without approaching the Supreme Court in view of the order in the Abay Nath case before the 2019 Lok Sabha election. But, the position of the government changes only in the case of OBC reservation. In the Gulshan Prakash case [2009] the Supreme Court held that the Abay Nath case’s clarification relating to reservation applied to seats in AIQ only. The ratio laid down is that the State has complete control over reservation and Central reservation does not apply to seats surrendered by the State. This is the most important issue that had to be raised.

The four MCI and Dental Council of India [DCI] notifications enabled application of State-specific reservation in medical and dental seats. Hence, the State reservation of 69 per cent under the TN Reservation Act 45 of 1994 shall stand automatically applied. The regulations never categorised seats as ‘All India Quota seats or States filled up seats’ for the purpose of reservation. The Director General of Health Services [DGHS], under these regulations, is to hold counselling for AIQ and is an agent /trustee to handle seats contributed by the State to AIQ. The DGHS has just that role and cannot dictate to a State government or the Central government in the matter of reservations or reduce or deny the same after enabling MCI and DCI regulations granting State-specific reservation in all seats without any demarcations.

The problem here is the DGHS overstepping its remit. Although the DGHS is not applying the 50 per cent OBC reservation formula to the seats contributed by the State to the AIQ, contrary to the orders of the Supreme Court in the Gulshan Prakash case, it has been currently applying a wrong reservation scheme to State-surrendered seats in Tamil Nadu insofar as reservation to S.C./S.T./PwD is concerned. Such wrong application of reservation by the DGHS is illegal and against the MCI and DCI regulations and the State’s reservation policy.

What was the crux of the argument of the DMK and other parties?

The total reservation granted by the Central government in Central educational institutions is as follows: S.C. 15 per cent; S.T. 7.5 per cent; OBC 27 per cent and EWS 10 per cent. After the EWS category was added (and there is a long discussion on the whys and ifs of this), the total in the reserved quota exceeded the 50 per cent mark and now stands at 59.5 per cent. Thus, when Central government grants more than 50 per cent of reservation, it is not proper to dictate terms to the State government to restrict all reservation to 50 per cent. Such a stand of the Central government runs counter to the principles of natural justice, is certainly against the letter and spirit of the federal structure established under the Indian Constitution, and is in violation of the MCI and DCI regulations. It has to be remembered that medical and dental education seats are State resources. The principle of reservation as per the Tamil Nadu Act applies to the seats surrendered by the State to the AIQ. It is a fact that the State seats do not get de-reserved merely because it is in the hands of the DGHS while it is handling the AIQ as these seats are filled in State educational institutions only. In fact, if the State-contributed seats are not filled up by the DGHS after the second round of counselling , it comes back to the State to be filled up by it. Hence, the character of the seat as the State seat is not lost merely because it is handled by the DGHS under a scheme because there is no law that dereserves the seat in the hands of the DGHS. Such an interpretation is against the letter and spirit of Article 15 and is impermissible in law. Reservation is a means to achieve equality. Social justice is a fundamental right and equally economic empowerment is a fundamental right to the disadvantaged people of India. Right to reservation backed by reservations laws is certainly a fundamental right. The Central government gave 10 per cent reservation for the EWS category while for OBC candidates, for the past four years, it is not abiding by its own affidavit filed before the Supreme Court.

The High Court has ordered the formation of a committee to look into the issue of granting reservation from next year. Is the issue settled now?

We will be watchful. If there is an appeal on the part of the MCI, then we will have to again fight it in the Supreme Court. It is easy to settle this issue right here in the High Court, if the AIADMK and the BJP want to. The BJP government just needs to direct the MCI to not go in for an appeal.

Is there any difference in stance between the AIADMK and the DMK on the issue?

On the question of reservation, both parties have been on the same page. But in this case, it was clear that the AIADMK had some hesitation in taking on the issue at hand, possibly because it is beholden to the BJP. This is the issue of a State’s rights. The AIADMK, which runs the government, should have been the first one to fight for it in all fora possible—courts, legislature and even the streets—when the need arose. Take NEET for example. They did not fight. In this [AIQ] case, it was Stalin who took the issue seriously and fought all the way and finally got this verdict. Like all other issues, this is not a single day’s battle, and the fight is not yet over. Every time there is an assault on the rights of the State, we need to stay together and fight as one. The problem in this case was some political parties thought that it was better to fight for 27 per cent reservation, instead of Tamil Nadu’s right of 69 per cent. This is a wrong approach; 69 per cent is what we have arrived at after a long fight stretching over decades. Why should we settle for anything else? We see the fruits of this move in society, and we need to preserve it because of what it has achieved for Tamil society.

Both the DMK and the AIADMK accuse each other of politicising this issue. Why does this happen when they are largely on the same page?

The problem here is the BJP. If the BJP so wishes, there was no need to go to court. When we filed a writ, the BJP could have said that this was a fact and agreed to implement the reservation. What is the MCI? Or the DCI? Are these bodies outside the control of the Central government? No, right? When that is the case, why is the Central government not directing both the bodies to implement the reservation as it exists in each State? What stops the BJP? This is clearly a case of double standards of the BJP.

The AIADMK is an ally of the BJP. The Chief Minister, the Deputy Chief Minister and others routinely meet the Prime Minister and several other Ministers of the Union Cabinet. Why is it that they are unable to press this issue, though they keep saying that they will preserve reservation? This is actually the problem with the AIADMK. They adopted the same stand on NEET. Finally, they let down the entire State.

Tamil Nadu has a long history of fighting for reservation. The Communal Order of 1921 and the subsequent attempts at affirmative action are public knowledge. Where and when does the struggle begin? Why is it important? And where is it now?

This has been a long-drawn-out fight and it still continues. Tamil Nadu’s struggle for reservation is spread over three centuries and pre-dates our independence struggle—19th century, 20th century and the current struggles in the 21st century. Each generation has a major history and context of why the fight happened and how it progressed. The first recorded instance of a fight is in 1854. A survey at that time found that one community, which constituted about 3.5 per cent of the population, was occupying all positions of power. There are instances where members of one family occupied all positions of government power in a given geography. In 1854, a government order, numbered 138, was issued, which directed that key positions in a district should be distributed among communities. You can say that the seeds of the concept of reservation were sowed at that time. The Census of 1871 reaffirmed these facts.

Subsequently, there were efforts to distribute government positions on the basis of the ratios of the populations of communities. In 1891, Iyothee Thassa Pandithar, the pioneering anti-caste activist, managed to highlight the problems faced by the S.Cs, and set in motion a thought process on the need to address the issues of those who were ostracised in society. All this crystallised in 1916, when Sir P.T. Theagarayar, one of the founders of the Justice Party, brought out the non-Brahmin manifesto when the party was formed. This was the first time that a formal demand for reservation was voiced.

The Justice Party was the precursor of the Dravidian movement. In 1920, the first Justice Party government was formed. Soon after, the first legal attempt at reservation was made via the communal G.O. The G.O. held that students from the oppressed sections should be given reservation in educational institutions. In 1928, again, after Justice Party came to power, Muthiah Mudaliar was responsible for consolidating all the thoughts and actions of the movement until then, and a comprehensive communal G.O. No. 1021 was brought for reservation in jobs, too. This G.O. was in operation until India attained freedom. In 1950, this G.O. was struck down by the Supreme Court, with the ruling that the Indian Constitution did not provide for reservation on the basis of caste.

A large section in the Indian National Congress backed this move. After the reservation was denied to the oppressed classes, a massive agitation was launched by the pioneers of the Dravidian thought and movement. ‘Periyar’ [E.V. Ramasamy] launched an agitation and gave a call to observe August 14 as ‘vaguppurimai naal’ [reservation rights day]. C.N. Annadurai [the founding father of the DMK, who later became Tamil Nadu Chief Minister] wrote on the issue and began a campaign on how rights of the oppressed classes were snatched away.

At this time, Congress leader K. Kamaraj, endorsed the struggle, which became a shot in the arm for the movement. So, on one side, there was a powerful campaign launched by Periyar and Annadurai, and on the other, there was a section within the Congress that endorsed the stand of these two leaders. The series of agitations attracted the attention of New Delhi and a constitutional amendment was enacted in 1951 for reservation on the basis of caste. In independent India, this was a major turning point. Soon after Kalaignar [M. Karunanidhi] assumed office as Chief Minister, the Sattanathan Commission was constituted to study the situation of the B.Cs and make appropriate recommendations. On the basis of the Commission’s report, the government increased the reservation quota of the B.Cs in educational institutions and government employment from 25 per cent to 31 per cent and for the S.Cs from 16 to 18 per cent. Karunanidhi appointed, for the first time, a Minister for Backward Classes.

The M.G. Ramachandran [MGR] government, which succeeded the DMK government, changed the community-based reservation into economic status-based reservation. MGR capped the upper income limit at Rs.9,000 per annum for reservation. But after his party lost the 1980 Lok Sabha election, many in the party claimed that the change in the reservation policy was responsible for the defeat. MGR took this view seriously and increased the reservation to 50 per cent for the B.Cs. Representatives of some communities approached the court, and the court directed the State to appoint an independent body to study the order. The independent body, headed by an Indian Administrative Service officer, gave a report in favour of the government.

To cut the long story short, there were two developments at this juncture. One is the demand for implementation of the Mandal Commission recommendations, and two, the Vanniyar agitation in Tamil Nadu, led by Dr S. Ramadoss. MGR passed away [in 1987] and the Kalaignar [Karunanidhi] Ministry took charge in 1989. Kalaingar [Karunanidhi] as the Chief Minister introduced 20 per cent reservation for the MBCs. Later, during the chief ministership of J. Jayalalithaa, the total percentage of reservation was increased to 69, which was challenged in the court. Finally, because of combined efforts, a constitutional amendment was moved to secure 69 per cent reservation. This is not there in any other State. Only people of Tamil Nadu have the privilege of this provision. Here, B.Cs enjoy 26.5 per cent reservation, MBC 20 per cent, Muslims 3.5 per cent, S.Cs 18 per cent and S.Ts 1 per cent. Within the S.C. reservation, Kalaignar provided 3 per cent reservation to the Arundhadhiyar community—who are among the most backward among the S.Cs. Now, there is a new criterion, the EWS, for whom there is a 10 per cent reservation.

Why are political parties opposed to the creamy layer concept?

Economic prospects change with time but the social status of a person does not change. Economic indicator fluctuates. MGR brought a criterion of Rs.9,000 annual income for reservation in 1980. This was opposed because economic situation can never be a measure. You can only have a classification for socially and educationally deprived sections.

The word ‘economic’ was sought to be included during Jawaharlal Nehru’s time. It was rejected then. We have had this debate since then. I am exasperated; how many times and across how many decades should we have the same arguments over and over again. Taking into account all the recent policies of the Centre on education—EWS reservation, the New Education Policy [NEP] and NEET—do you think the government is serious about upholding the hard-fought gains of reservation and education for the deprived sections?

It does not appear so. In the NEP for example, there is simply no mention of reservation. Why is this? I can only conclude that this is because the BJP is not concerned about social justice or uplift of the depressed and poorer sections of society. If you do not have any interest in social justice, then any policy that is drawn up will not benefit the backward and depressed classes.