The Madras High Court on Wednesday approved the recent notification of the Centre providing 27 per cent reservation to OBC (other backward class) candidates for admission in Central medical colleges under the all-India quota (AIQ).
Rejecting a plea for more reservation for Tamil Nadu, the Bench said the reservation of AIQ seats for admission to the under-graduate, post-graduate and diploma medical and dental courses across the States must be uniform. Logically, if the seats are given to candidates across the country, there cannot be reservation to one extent in one State and to another extent in a different one, it said.
The Bench said the concept of reservation that appears to have been addressed by the Constituent Assembly while framing the Constitution may have been turned on its head by repeated amendments and the veritable re-invigoration of the caste system – and even extending it to denominations where it does not exist – instead of empowering citizens so that merit may ultimately decide matters as to admission, appointment and promotion.
“To the extent that 27 per cent of the seats available for admission in Central educational institutions is reserved for OBC candidates other than the creamy layer, and such figure having been arrived at upon empirical studies being conducted, the provision of 27 per cent reservation for OBC candidates in addition to the approved reservation for scheduled caste and scheduled tribe candidates as indicated in the notification of July 29, 2021 may be permissible subject to the formal approval of the Supreme Court,” said the First Bench of Chief Justice Sanjib Banerjee and Justice P D Audikesavalu.
The Bench was closing a contempt petition from the ruling DMK seeking to punish the Central government officials concerned for not implementing an order of the High Court issued in July 2020. Last year, the then Chief Justice AP Sahi-led Bench, in its order, suggested, among other things, the constitution of a committee to provide the terms of implementation of reservation as claimed by the petitioners. It said the panel can also fix the percentage of reservation.
Contending that the order was not complied with, the DMK filed the present contempt application.
The Bench, however, said the inclusion of a further 10 per cent by way of vertical reservation for economically weaker sections (EWS) would require the approval of the Supreme Court. To this extent, the reservation for the EWS, as indicated in the July 29 notification, has to be regarded as impermissible till such approval is obtained.
Closing the petition, the Bench pointed out that since the committee had been constituted as per the orders of the First Bench of the Madras High Court dated July 27, 2020 and it had given its opinion and the Union government, or its appropriate agencies, had acted on its basis albeit not exactly in terms of the recommendations, no case of wilful or deliberate violation of the said order can be said to have been made out.
“The notification of July 29, 2021 issued by the Union as a consequence of the order dated July 27, 2020, appears to be in order insofar as it provides for reservation for scheduled castes, scheduled tribes and OBC categories. The horizontal reservation provided in such notification for people with disabilities also appears to be in accordance with law,” the Bench held.
However, with regard to 10 per cent reservation for EWS, the Bench observed:”The additional reservation provided for economically weaker sections in the notification of July 29, 2021 cannot be permitted, except with the approval of the Supreme Court in such regard.”
The Bench added that the in-principle approval of the Supreme Court for providing reservation for OBC candidates under AIQ for medical admission in the State is apparent from its order dated October 26, 2020. To such extent, the provision made for 27 per cent reservation in such regard appears to be permissible, since the apex court approved the implementation of reservation for OBC candidates beginning from the academic year 2021-22 by the same order.
In support of its stand that the reservation cannot exceed more than 50 per cent, the Bench referred to the Supreme Court judgement in the Indra Sawhney case, which stated that the quota cannot exceed the cap cent unless there are exceptional circumstances. If the dictum is confined to vertical reservation, as it should be, it would imply that the cap of 50 per cent ought not to be breached.
Notwithstanding the 103rd Amendment to the Constitution not having been made at the time the judgement in the Sawhney case was pronounced, it is submitted (with due deference to the fact that the issue is pending consideration before the Constitution Bench) there may be a case for horizontal reservation cutting across the unreserved and reserved categories for the economically weaker sections.
For one, even if a common reasonable yardstick were to be applied, economically weaker sections would be found to exist across the board. This may suffice to cater to the perceived need for the uplift of the EWS without there being a conflict with the dictum in Indra Sawhney. However, the decision in such regard has to be left for another day and at an exalted level, the Bench said.
Rather than the caste system being wiped away, the present trend seems to perpetuate it by endlessly extending a measure that was to remain only for a short duration to cover the infancy and possibly, the adolescence of the Republic. Though the life of a nation/state may not be relatable to the human process of aging, but at over-70, it ought, probably, to be more mature, the Bench added.