It was President of United Kingdom Supreme Court, Lady Hale (Chief Justice), in a conversation with Associate Justice Ruth Bader Ginsberg who said once, “As a Judge when I hear the petitioner first, I am convinced about the their case. And when I hear the respondent, I am convinced with their case. What do I then do? I have to then apply my mind to the case advanced on both sides, and come to my own conclusion based on the facts and the precedents applicable to it, if any”. I was reminded of it, when I heard the arguments head from a whole host of petitioners, including State of Tamil Nadu, AIADMK, DMK , a former Union Minister, Communists and the Union of India and the Medical Council of India, on 17th July, 2020, before the First Bench of the Madras High Court, comprising Chief Justice A P Sahi and Justice Senthilkumar Ramamurthy. They heard out both sides, thanks to the request made by the Supreme Court, a week or so ago, to hear the case.
The case related to reservations for Other Backward Classes (OBCs in under graduate and post graduate courses in medicine). Reservation in India is a touchy and dicey subject. And in Tamil Nadu, it is a hot potato. It is minefield, so to say. One cannot readily or easily take sides without falling foul of political cleavages. Historically, the constitutional courts have been perceived to be political institutions and such cases illustrate it like no other.
The stand of the Union of India had to be akin to walking the tightrope. Constitution matters. Reservation matters. Political interest matters. And Tamil Nadu matters even more. The job of the Additional Solicitor General pursuing the cause of Union of India does not come easy. He or she cannot take a stand which could/would be seen to be partisan, more so, in these Pandemic times. The ASG has to be cautious and guarded, yet allowed to be constitutional. Of course, the stand of UOI as revealed from the written affidavits before the Court have to be espoused.
The Union of India had taken a cautious path. It was not confrontational. It could not be. The issue was whether in the matter of 15% of medical seats in UG/PG courses in Tamil Nadu’s medical colleges, given away to the Pan India quota, reservations as in TN would attach to the seats? Hitherto, reservation did not attach as they went to the all India pool. Only for those left over, the State reservation rules applied. This was the bone of contention with the State and political parties accusing UOI of dishonest intentions and denying the State citizens its right to the reservation largesse of 50% for OBCs and a 69% reservation pool in all for all categories, uniquely Tamilian. They said the benefit was denied to almost 2580 seats over the years.
UOI took the safe stand that they ‘proposed’ to give the benefit of such reservation, as in the State and they had no objections in principle for the cause advanced. They strategically left it to the ASJ to dexterously wade through this minefield. As to what ‘proposed’ meant and what the law on the surrender, transfer or contribution of 15% of the seats meant in the overall scheme of things vis a vis the MCI Regulations and the multiple judgments of the top court.
The petitioners vehemently contended that reservation was attached to the ‘seats’. When the States gave up 15% of seats as mandated by apex court, it was not a case of sacrificing the reservation attached to it. The 15% was State specific and it was therefore reservation inclusive as in the State. The MCI law was also clear that the procedure for allotment of seats shall be in due deference to the reservation law in the State. They relied on a whole host of decisions beginning with Pradeep Jain (SC-1984) the leading light to the latest direction of the Supreme Court requesting the high court not to wait for disposal of Salon Kumari (SC) pending before the apex court.
As they built their case brick by brick, it seemed and sounded as if the ‘seats’ must be with reservation and the denial of such State benefit for the past several years was apparently wrong. The TN State which had acquiesced in this dispensation, as the other States/Union Territories, had suddenly woke up after NEET phenomenon and with elections due in 2021, the politicians went to court straight. As the Chief Justice succinctly summed up their arguments for good order and understanding, it seemed as though it was an open and shut case and the UOI may have to yield on the ‘proposal’ to make it a reality.
Until the ASJ got up to argue (sorry, he sat and did so, as it was on Videoconferencing and this author had the privilege of following the proceedings, as a keen and avid student of law) on the law as it stood. Of course, the lawyer for Medical council of India made a brief submission that the relevant provisions, if read, as they ought to be read, meant that the case of the petitioners’ was weak. Yes, the provisions were not happily worded, but he pointed out that they have been properly implemented thus far. It was intriguing to note that MCI Regulations made it clear that the law of the land in the matter of medical seats would be duly ‘subject to the law as laid down by the supreme court’. Well, that is unique. A statute acknowledging that the law will be applicable as continuously tweaked by the apex court. One wonders if there is any other legislation of its kind in India and even any other democratic ethos, where a provision suggests that the law made by the legislature/executive will be implemented subject to how the supreme court interprets it. Uniquely Indian.
The ASG pointed out that the entire concept of the 15% surrender/transfer/contribution of state quota of seats, to the all India pool cannot be read divorced from the historical perspective. The policy as it emerged with regard to medical college admissions in particular, thanks to the beginning and continuous tweak from the top court. It was clear that huge importance was placed on medical admissions and NEET also must be read contextually, The Supreme Court was quite anxious to infuse requisite merit into medical admissions even while bowing to the reservation mandate from Parliament and the State legislations. It was a balance that the top court had to strike between the competing interests without falling foul of any of them. He submitted that UOI was ad idem with the States’ cause in principle. It was only that it had to bow to what the apex court had said over the years.
The surrender/transfer/contribution, whatever it be called or construed as, that 15% quota, the bottom line was that it had been perceived to go to the nation’s pool with a commonality of purpose for a uniform and consistent approach. ASG politely urged that if the ‘seats’ were attached with reservation, as superficially addressed, then the very purpose of creating the all India pool may be defeated. With each State having a different set of reservation rules and percentages, the all India pool will get skewed in its application, in each State. The creation of the all India pool would eviscerated. Therefore, ASG urged it made sense that UOI and States understood that the state wise reservation did not apply to the surrendered seats. ASG took the court through a series of verdicts from Pradeep Jain (1984-SC) to Dr.Dinesh Kumars 1 and 2 (1985, 1986-SC) and a few more as in Rajeswaran (2003), possibly directly on the issue at stake. I say no more.
The entire case was heard on Videoconferencing platform. Ordinarily, in physical courts, there could and would have been repeated interventions from many a side. Here the administrator had the mute option which gives absolute reign for the lawyer on his legs or rather on seat. It therefore provided uninterrupted opportunity to present one’s cause without being taken in circles. It was a fascinating debate. In fact, the learned Chief Justice asked, at least a couple of times, why the matter could not be sorted by the apex court itself, where it may truly belong. The contestants said that the apex court has specifically requested the High court to resolve it for now. Obviously, whichever way the result goes, it may land in the apex court ultimately. Is there any doubt over that?
Truth to tell, such disputes in Court may have raised the hackles of contestants and even the assembled. The atmosphere would have been heated. One word here or one word there, by any of the parties may have been a two minute take away and blown up with a controversy. Nothing of the sort happened because it was a free flowing dialogue and debate on the digital platform. And possibly media was not fully represented. Surely, as the learned judges are ruminating to decide the dispute, it would be unbecoming of this author to second guess or pronounce it.
But, for an avid listener with a legal background, the flow of the wind could be detected as the court exchanges always do. That shall have to remain under wraps in the name of sub judice. This is not the United States of America where one could fearlessly speculate on the way a judgment was going or ought to go. How one wishes one had the licence?
(Narasimhan Vijayaraghavan-author is practising advocate in the Madras High Court)
