The Tamil Nadu government has told the Madras High Court that 89% of the State’s population is already eligible for the 69% reservation provided in education and public employment, and therefore, the State cannot be compelled to implement the additional 10% reservation for others under the category of Economically Weaker Sections (EWS).
The submission was made in a counter-affidavit filed by the State to a public interest litigation petition filed in 2020 by Periya Nambi Narasimha Gopalan of Ambasamudram in Tirunelveli district. The litigant had sought a direction to the State government to implement the 10% EWS quota for admission to all higher educational institutions in the State.
In its reply, the government said that a 100% door-to-door enumeration of castes and communities in the State was carried out in 1983, following the directions issued by the Supreme Court on October 14, 1982, and that data was being used till now for providing reservation to the backward classes, most backward classes and denotified communities.
The data collected over a period of two years by the second Tamil Nadu Backward Classes Commission (popularly known as Ambasankar Commission), constituted in 1983, revealed that the proportion of socially and educationally backward classes in the State, including the most backward classes and denotified communities, was 68% of the total populace.
Similarly, the 2011 decennial census found the population of the Scheduled Castes and the Scheduled Tribes in Tami Nadu to be 20% and 1.1%, respectively. Therefore, around 89% of the total populace was covered by the existing provisions related to reservation in education and public employment, and only 11% remained uncovered, the government said.
Further, pointing out that Articles 15(6) and 16(6), inserted in the Constitution through the 103rd amendment with effect from January 14, 2019, only empower the Centre and the States to provide 10% EWS reservation, the Tamil Nadu government said: “Mere existence of power does not warrant the State to exercise it even without adequate supporting materials.”
It contended that only a decision, if any, taken by the State by exercising such constitutional power could be a subject matter of litigation and not otherwise. The government also pointed out that the 103rd constitutional amendment had been put to challenge, and it was pending before a five-judge Bench of the Supreme Court.
Further, a case seeking a similar direction, as sought in the present PIL, for implementation of 10% EWS reservation in Tamil Nadu was also pending before the Supreme Court, the government said.
History of reservation
The counter-affidavit, filed on behalf of the Higher Education Secretary, also recalled the history of reservation by stating that Article 16(4) of the Constitution, as originally approved by the Constituent Assembly, empowered the States to make any provision for the reservation of public posts in favour of any backward class not adequately represented in State service.
Thereafter, Article l5(4) was inserted by Parliament through a constitutional amendment, and it came into effect from June 18, 1951, empowering the States to make any special provision for the advancement of any socially and educationally backward class of citizens or the Scheduled Castes and the Scheduled Tribes.
Subsequently, Article l5(5) was inserted through the 93rd constitutional amendment in 2005, and it came into effect from January 20, 2006, empowering the States to make special provisions specifically for admission of socially and educationally backward classes of citizens and the SCs/STs to educational institutions.
In accordance with Articles 16(4), 15(4) and 15(5), the State legislature had enacted the Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of seats in educational institutions and appoints or posts in the services under the State) Act, 1993, and obtained presidential assent for it.
Similarly, the Tamil Nadu Backward Class Muslims (Reservation of seats...) Act, 2007; the Tamil Nadu Arunthathiyars (Special reservation of seats...within the reservation for the scheduled castes) Act, 2009, and the Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of seats in private educational institutions) Act, 2006, were enacted.
Asserting that the classification of SCs, STs and socially and educationally backward classes in the State had stood the test of time and judicial scrutiny, the government said that the reservation laws were enacted on the basis of the reports of various commissions and committees constituted from time to time.
It referred to the 1970 report of the first Tamil Nadu Backward Classes Commission (popularly known as Sattanathan Commission), the 1985 report of the second Backward Classes Commission (Ambasankar Commission), and also the 2007 and 2011 reports submitted by the then Backward Classes Commissions.
A reference was also made to a 2008 report submitted by the Justice M.S. Janarthanam Committee of Inquiry, constituted to examine the feasibility of granting internal reservation to the Arunthathiyars within the reservation meant for SCs. However, no such supporting material was available to implement the 10% EWS reservation, it said.
“The mere fact that 10% reservation for EWS, amongst the classes not covered by Articles 15(4) and 16(4), is implemented in several of the States and also by the Union Government cannot be the sole cause for implementation of similar reservation simplicitor in this State,” the counter-affidavit read.
When the case was listed for hearing before a Division Bench of Justices S.S. Sundar and N. Senthilkumar on Wednesday, a government counsel sought time till April 23 for the appearance of Advocate-General P.S. Raman. However, since the petitioner’s counsel, B. Jagannath, sought two more days of accommodation, the judges decided to hear the matter on April 25.
