Machibet777 Bet How will 50% quota cap affect the state that has 69%

The Supreme Court decision annulling the Maharashtra law for fixing exclusive quota to the Maratha community has once again reopened the debate on crucial issues relating to reservation, such as the ceiling on reservation and the exclusive power of the Centre to include communities in the list of backward classes. The decision has not only refused to accept exclusive caste based quota for reservation and also emphasise the need to have an overall ceiling of 50% of all types of reservation as mandated by its earlier judgment on the Mandal commission.The decision on Maratha quota has also turned its light on reservations in states like Tamil Nadu and Karnataka as these two states have reservation percentage of above 50% cap fixed by the Supreme Court in Indra Sawhney’s case (1992). The challenge to the increased percentage of reservation in Tamil Nadu is pending before the Supreme Court. medium82459102Tamil Nadu has been the torchbearer in the matter of reservation. Before Independence, the Madras government had introduced communal reservation based on castes and communities, wherein seats will be reserved for brahmins, non brahmins, Christians, Muslims and scheduled castes. The introduction of the Constitution of India (1950) and particularly the equality clause under Article 14 and nondiscrimination based on religion and caste under Article 15(1) and 16(1) posed a challenge to the archaic law that was in existence for three decades. The Madras high court and the Supreme Court struck down the communal order as unconstitutional (Champakam Dorairajan, 1950).This led to an agitation which made the Centre bring the first constitutional amendment introducing an enabling provision in Article 15, wherein the power to make special provision for advancement of any socially and educationally backward classes (SEBC) of citizens as well as scheduled castes and scheduled tribes was introduced. But various states prepared a list of SEBCs and also included different castes into the list of OBCs, many with vote banks in mind.When the Mandal commission was implemented by the V P Singh government and for the first time a reservation for OBCs in central services was facilitated that the order was put to judicial review. A larger bench of nine judges in Indra Sawhney’s case (1992) upheld the introduction of reservation for OBCs, but nevertheless put a cap of total reservation at 50%. Knowing that some advanced communities within the backward class may corner the benefit of reservation, it also introduced the concept of “creamy layer”, by which the affluent among the OBCs should be denied the benefit of reservation. medium82459058The indiscriminate inclusion of any communities into the SEBC list also had another problem — several communities which are most backward within the list of SEBCs were seeking for internal reservation, so that a few communities which are politically dominant were able to corner all the benefits of reservation.Therefore, TN while fixing the reservation for backward communities at 50% created a niche for Most Backward Communities (MBCs) with a separate reservation 20%. This resulted in a total reservation 69%. But the Mandal judgment was a red herring and to get over the same, it was decided to bring in a special legislation and also get it included in the IXth Schedule of the Constitution to ward off any challenge based on fundamental rights. Thus the 1994 Act providing for 69% reservation in public employment and educational institutions was passed. The law was challenged before the Supreme Court and it has been pending for 27 years.Increased lobbying and succumbing to vote bank politics, the state also started introducing internal reservation within the BC and MBC reservations. The beneficiary in TN were the backward Muslims who work 3.5% within the 30% BC reservation. Within the scheduled castes, Arunthathiyinar were given 3.5% internal reservation within the 18%. This is also a subject matter of challenge and is pending consideration by the courts since the past two decades. medium82459066In 2004, the Supreme Court in a matter relating to provision for internal reservation for scheduled castes held that it is not open to the state to make internal reservation among the scheduled castes. If they found that any community within the reserved list corners all the benefits due to their historical dominance, then the only way is to exclude them from the list of scheduled castes by a constitutional amendment to the President’s list (Chinnaiah, 2004). This decision has once again opened the decisions of various states.Ahead of the recent state assembly election, the AIADMK government had introduced an internal reservation of 10.5% for the vanniyar community (which is largely represented by the PMK and 7% for the thevar community and the balance of 2.5% to be shared by as many as 49 communities. This law is yet to be implemented. It is also stated that the population census will be taken to identify the strength of each caste and the percentage in this new law will be altered accordingly. If any such decision has to be made in terms of law, it not only requires a constitutional amendment, but also will have a different perspective on the issue of reservation.Adding to the confusion, the BJP government had brought in the exclusive quota of 10% for the economically weaker sections by amending the Constitution with its 102nd amendment (2018). This had increased the total number of percentages of vertical reservation in each state. In TN it has increased the vertical reservation to 79%. With small reservations for several categories, the total reservation stands at 80%. This will only mock the equality clause provided under Article 14 and also will be in utter breach of Indra Sawhney’s case.Against this backdrop and with elections in mind, the quota for the Maratha community was introduced. The Supreme Court judgment indicates the 50% cap cannot be violated under any circumstances and by virtue of Article 342A, the states cannot make any inclusion/ exclusion from the list of OBCs and it shall be the exclusive responsibility of the Centre.The decision may be opposed by the states on the ground of erosion of federal principles and may pressure the Centre to remove the cap. However, the Supreme Court should immediately undertake judicial review of all the cases relating to reservation cases pending before it and finally decide the issue of fixing a cap on reservation, the legality of the reservation for economically weaker sections, the legality of internal reservation within the list of SEBCs/ SCs and also the power of preparing a list of OBCs. Otherwise decisions by smaller benches may tend to be ignored and at times by the law’s delay the settled principles may be violated by different states.The writer is a retired judge of the Madras high court