“The Supreme Court has erred”: Former Madras HC judge K Chandru on EWS and Maratha reservations

SR Raghunathan/The Hindu
20 July, 2019

In January, Prime Minister Narendra Modi announced ten-percent reservation for the “economically weaker sections,” or EWS, of the populace. The pool of eligible citizens excludes members of the Scheduled Castes, the Scheduled Tribes and the Socially and Educationally Backward Classes—commonly referred to as the Other Backward Classes. The constituent assembly and several Supreme Court judgments have held that economic criterion cannot be the sole basis for granting reservation. But in one stroke, Modi overturned established constitutional principles underlying India’s reservation policy—primarily, that it is based on social, and not economic, backwardness.

Social backwardness does not arise from poverty. Till January, the Constitution only provided reservations to the SCs, the STs and the SEBCs—social groups that have historically been excluded or marginalised. This included groups that were considered “impure” in the past, that lived in remote and inaccessible areas, or that pursued their traditional occupations—such as farming and weaving—which made them socially and educationally backward.

But these cardinal principles were set aside in January, when the parliament passed the Constitution (One Hundred and Third Amendment) Act. The act amended Articles 15 and 16 of the Constitution to empower the Indian state to grant reservations to the EWS among socially advanced groups—including the upper castes. The Modi government invoked the new constitutional provision to grant ten-percent reservation for EWS, thereby raising the quantum of reservation in central government jobs and educational institutions to 60 percent—effectively setting aside a Supreme Court-mandated cap of 50 percent on reservations.

In Maharashtra, the reservation policy has been under the spotlight since last November, when the state’s Bharatiya Janata Party-led government enacted a law to grant 16-percent reservation for the Maratha community. In June this year, the Bombay high court upheld the law, though it reduced the quota to 12 percent in educational institutes and 13 percent in government jobs. The court upheld the judicial challenge even though the state’s reservation quota now exceeded 60 percent.

Both the reservation policies were challenged before the Supreme Court, which did not issue a stay order against either. In sharp contrast, the apex court had imposed a two-year stay when, in 1990, the VP Singh government sought to implement 27-percent reservation for the OBCs. The stay was finally lifted when a nine-judge bench of the court upheld the policy in Indra Sawhney vs Union of India. Likewise, in 2007, when the central government sought to introduce 27-percent reservation for the OBCs in central educational institutions, the court had stayed the policy for one year before it upheld its constitutionality.

What explains this dichotomy in the judicial response to reservation for the OBC and the EWS categories? Ajaz Ashraf, an independent journalist, interviewed K Chandru, a former judge of the Madras high court, to understand the court’s rationale and the law on reservations. “By amending Article 16 and providing a new category of economically weaker sections, the Modi government has rewritten the Constitution,” Chandru said.

Ajaz Ashraf: What principles does the Supreme Court follow when deciding whether to stay government policies or verdicts of high courts? The court stayed neither the ten-percent reservation nor the Maratha reservation.
K Chandru: In the matter of reservation for the SCs, the STs and the SEBCs, the Supreme Court’s decisions have always been inconsistent. These were not in tune with the true constitutional principles of “equality” on many occasions. It started with the [State of Madras vs] Champakam Dorairajan case, in 1951, in which the Supreme Court held that caste-based reservations were unconstitutional. After the uproar in the then Madras Presidency, the parliament introduced the first constitutional amendment, which guaranteed the fundamental right to reservation to the SEBCs.

In the matter of the SCs and the STs, there was a line of cases that put spokes in the wheel of social justice. The court first held that there cannot be reservation of one post. Likewise, backlog vacancies were not allowed to be filled up in one go. The main reason was just not the lack of understanding of the issue but even the social background of judges who adorned the higher judiciary. Every time the issue was only seen as an act of exception—and not that of a general rule.

The primary reason for all this is the judges’ lack of clear understanding of the issues relating to social justice, and the absence of a strong lobby for social justice among India’s jurists. Once, [the former Supreme Court] justice VR Krishna Iyer was quoted saying that “though there is one Supreme Court building on Tilak Marg, within it there are 26 Supreme Courts.” When Iyer made the statement, the court comprised 26 judges.

AA: But what are the principles followed by the Supreme Court in granting a stay? Why did the Supreme Court stay 27-percent reservation for OBCs in 1990, not the EWS and Maratha reservation?
KC: For the grant of interim order, there are normally three requirements—a prima facie case for grant of stay; whether balance of convenience is in favour of granting stay; and if the non-grant of stay will lead to irreparable loss or damage, which cannot be compensated. For example, in a case of demolition of a building allegedly constructed without following the rules, if the builder or residents seek a stay, a refusal of it will result in demolition of the building. Subsequently, if they win the case, the building cannot be rebuilt at the state’s expense.

In the Indra Sawhney case, the Supreme Court granted an interim stay at the time of admission. This was largely an outcome of agitations, particularly in north India, against the order issued by the government of VP Singh to implement the Mandal Commission report recommending 27-percent reservation for the OBCs. The interim stay postponed the implementation of reservation for the OBCs by two years. Ultimately, 27-percent reservation for the OBCs in government employment was upheld, but only with certain riders. The court introduced a 50-percent cap on reservation and also excluded institutions of higher learning from the reservation net. The court also introduced the concept of “creamy layer” among the OBCs. [The term refers to those among the OBCs whose parents have specified government jobs or income of certain level. The creamy layer cannot avail of reservation.] Till date, many states have not undertaken any exercise of identifying the creamy layer. The Supreme Court gave a cooling period of two years in the Indra Sawhney case by grant of stay, but refused to grant stay in the present cases of EWS reservation and Maratha reservation, leading to the impression that either they wanted its implementation or that the time [between admission of the case and the final judgment] will bring about a debate and possible consensus for future.

Certainly, the Supreme Court’s refusal to stay the EWS reservation gave an advantage to Prime Minister Narendra Modi in the 2019 [Lok Sabha] election. Perhaps similar advantage may go to the BJP-Shiv Sena alliance in the ensuing Maharashtra assembly election. Perhaps the stay was not granted as there seems to be consensus among the major political parties on the EWS and Maratha reservation. If at all there has been any opposition, it is only from the academia or from traditional groups known to advocate social justice.

But what has not been understood is that the implementation of these two orders will have a catastrophic effect. In our country, once something is offered by way of concession or facility, it is difficult to withdraw the same. Likewise, once students are admitted to educational institutions and jobs are filled up under the Maratha quota, what will happen to people who are already on the gaddi [government posts and seats in educational institutions] if the Supreme Court’s final decision is against the two government orders?

AA: Despite the Supreme Court upholding the OBC reservation in 1992, the court stayed the proposed reservations for OBCs in central educational institutions in 2007. How do we reconcile this dichotomy in the court’s approach to reservation for OBCs and that for the EWS and the Marathas?
KC: There is no method in the madness of granting interim orders. Therefore, you cannot find logic behind interim orders. It all depends on which bench is to hear what matter and their understanding—or lack of it. Many times precedents are not kept in mind. As Justice Potter Stewart [of the United States Supreme Court] once said, “Of late our judgments have become like railroad tickets—good for the day and for the trip.”

AA: In the 1968 case of Minor P Rajendran vs State of Madras, the Supreme Court had upheld the Tamil Nadu government’s decision to identify the backward classes in terms of caste and granting reservation to them. Given that this was an established principle of law in 1990, was the Supreme Court’s stay on the 27-percent OBC reservation justified?
KC: In the decisions of the Supreme Court, there has always been a lot of quibbling about caste versus class. [Referring to class as a category of people who are socially and educationally backward, and not class in economic terms.] It is too difficult to understand them except to note that the courts have so far held that a caste cannot be the sole indicator of a class. However, if other indices are applied, a caste can be generally qualified to be part of a class. These superficial observations led many states to include communities and castes in the reservation list—mainly having vote-banks in mind. For example, Chandrababu Naidu, as the chief minister of Andhra Pradesh, declared that five percent of the ten-percent EWS reservation will be for the Kapu community. However, his successor, Jaganmohan Reddy, argued that Naidu did not have the authority to break down the ten-percent quota in favour of a particular community.

AA: By introducing reservations on the basis of economic and not social backwardness, does the ten-percent reservation invoke new principles? A nine-judge bench of the Supreme Court had ruled in Indra Sawhney that reservation should be on the basis of social backwardness. Should the EWS and Maratha reservation policies have been stayed for this reason alone?
KC: The 103rd amendment is a clear restoration of the position that existed before the Champagam Dorairajan case. By amending Article 16 and providing a new category of EWS, the Modi government has rewritten the Constitution. [Previously,] the Supreme Court insisted upon the twin test of social and educational backwardness as the criteria for identifying a caste as eligible for reservation. The introduction of economic backwardness, at one stroke, has watered down the earlier principle. The cap of Rs 8 lakh per annum or 1,000 square-feet ownership of land as the criteria to avail of reservation would virtually make 80 percent of the population [eligible for it.]

But excluding the existing reserved communities from this net, it is clear that the quota for EWS is only meant for the upper castes, which, in fact, are not entitled to get ten-percent reservation even on population basis. It was a clear mechanism devised to win the 2019 parliamentary election, which Modi did successfully. By this new exercise, the government has exceeded the Indra Sawhney cap of 50-percent reservation. Reservation has now touched 60 percent. Prima facie, the Supreme Court should have seen the new game of exceeding the reserved quota beyond the 50 percent cap. The Supreme Court should have granted an interim order on the ten-percent reservation for the EWS and the Maratha quota. It should have had a speedy hearing on both issues so that the constitutional uncertainty looming over these two laws were removed.

AA: Tamil Nadu provides 69-percent reservation in the state, which was challenged in the Supreme Court for exceeding the 50-percent cap. Why has a verdict not been delivered in this case? What do you think does the delay suggests?
KC: In fact, several other states, such as Tamil Nadu, have exceeded the 50-percent cap in the matter of providing reservations in employment and admission to academic institutions. Tamil Nadu went one step ahead by including the state legislation into the Ninth Schedule—jocularly called the “laundry bag.” Any law that is included in the Ninth Schedule could not be questioned for violating Article 14 and 19 of the Constitution. However, an 11-member Supreme Court bench subsequently ruled in [the 2007 case of IR Coelho v State of Tamil Nadu] that the court has power to review any legislation added to the Ninth Schedule of the Constitution.

Thus, there was no difficulty in examining the Tamil Nadu law that increased reservation to 69 percent. The court did not grant an interim stay on the 69-percent reservation in a case filed by a non-governmental organisation. Yet, it curiously started giving interim orders in the matter of [reservations for] medical-college admissions. By a series of interim orders given year after year for 19 years, the court directed the state to calculate reservation at 50 percent and all those left out after the re-calculation were to be given admission. Finally, for some reason, the practice of granting interim orders was stopped in 2018. Thereafter, the petitioner was told to go to the state backward-class commission. This case has been before the Supreme Court for the last 22 years [and] is yet to see its finality. That is how Tamil Nadu was allowed to escape the 50-percent cap for the last three decades.

AA: The Maharashtra government constituted a distinct SEBC category comprising only the Maratha community despite the fact that the state already provided reservations for OBCs comprising castes that were determined to be socially and educationally backward. Isn’t this a contradiction? Should the Maratha quota have been stayed on this ground alone?
KC: Among the SEBCs in Tamil Nadu, there is separate reservation for Most Backward Classes. While the MBCs are entitled to 20-percent reservation, the backward classes—generally called OBCs—are eligible for 31-percent reservation. In the MBC category, there are as many as 108 communities. In reality though, only two major castes—Vanniyars in north Tamil Nadu and Thevars in south Tamil Nadu—have benefitted under this category. To justify this bifurcation, the state government relied upon reports of the [Tamil Nadu] Backward Class Commission. In the Maratha quota also, a similar justification has been upheld by the Bombay high court. However, reserving 13 percent in government jobs for Marathas and 12 percent in educational institutions for one group alone cannot be justified in the name of carving out a special group for reservation. The creamy-layer exclusion, as held in the Indra Sawhney case, has also not been provided for while reserving certain percentage of jobs and seats in educational institutions for the Marathas.

In the EV Chinnaiah [vs State of Andhra Pradesh] case, a constitutional bench held that an internal reservation within the quota prescribed for a particular class is not permissible, that too, by a state government. The Supreme Court held: “By the impugned legislation, the State has sought to re-group the homogeneous group specified in Presidential Notification for the purposes of reservation and appointments. It would tantamount to discrimination in reverse and would attract the wrath of Article 14 of the Constitution. It is a trite law that justice must be equitable. Justice to one group at the costs of injustice to other group is another way of perpetuating injustice.”

Instead of creating a quota within the quota, the Maharashtra government has engaged in a sleight of hand—it has carved out a separate category of SEBC even though the OBC category already exists in the state. Both the SEBC and OBC classes are one and the same—they belong to the same homogeneous class.

AA: Since the EWS among the upper-caste groups and the Maratha community will avail of reservations until the Supreme Court decides on these two cases, could this reality become a fait accompli to continue with the policies?
KC: The Supreme Court’s refusal to grant an interim order on the Maratha quota as well as the EWS quota will clearly lead to several complicated and inextricable problems. Under the EWS quota, genuine OBC candidates will not get accommodated. Under the Maratha quota, genuine non-Maratha candidates will be excluded and the Supreme Court cannot suitably compensate such victims.

One principle of law in the matter of interim orders is, as I have already explained, that an order resulting in an irreparable injury or such injuries that cannot be suitably compensated, the court must always grant a restraint order. By refusing to stay the ten percent for EWS and Maratha reservation, the Supreme Court has erred.

In case the Supreme Court rules against both the quotas, the authorities will face a lot of problems. Maybe the Supreme Court will adopt its time-tested method of “prospective overruling,” [which would mean the ruling would only apply to future cases,] which was invented by them to go in a time machine to get over legal difficulties.

This interview has been edited and condensed.