The Tamil Nadu Backward Classes Commission has missed the opportunity to revisit the State's reservation policy in a way that could have stopped affluent castes from cornering quotas

In the land of Periyar E.V. Ramasamy, founder of the Self-Respect Movement and the Dravida Kazhagam through which he worked for eradication of the caste system, caste is still the worst scourge.

If caste still persists as a pervasive social evil in a society which had militant anti-caste movements, and a minuscule group of the affluent castes has been cornering the state's patronage and access to its opportunity structure, it is because of the vested interest in caste of the so-called Dravidian parties which have been ruling Tamil Nadu since 1967. This vested interest is most viciously promoted by the State's aggressive reservation politics since the 1970s.

The State's overall reservation shot up from 41 per cent during 1954 to 1970 to 49 per cent in 1971 to 68 per cent in 1985 to 69 per cent in 1990. The number of castes included in the Backward Classes' list, not counting Scheduled Castes and Scheduled Tribes, rose from about 181 in 1970 to 222 in 1980 to 251 in 2011 (the clubbing together of several cognate castes makes the actual number much higher). The State's population included in the Backward Classes' list (including the Most Backward Classes) is now 67 per cent, besides 19 per cent SCs and 1 per cent STs.

Egregious

This treatment of 87 per cent population as BCs is egregious, particularly when seen in the context of the argument by majority of the judges (of the nine-judge Bench) in the Mandal rulings ( Indra Sawhney v. Union of India) of November 16, 1992 that reservation for all is reservation to none. But in Tamil Nadu, politicians have scant respect for such arguments and scant concern for phasing out reservation and ushering in a casteless egalitarian society. Even as politicians need caste the most to stay in politics, production of the certificate for claiming any BC, MBC, SC, ST benefit is a sad and stark reminder of the caste of the claimant as the certificate invariably contains the caste name of the person. This has driven the State to a vicious circle of forcing the majority of its people to relive caste through the very policy which is intended to erase it from their minds; and to an irrational dead end of political diatribes and policy distortions as evident from the 2011 report of the Tamil Nadu Backward Classes Commission prepared at the instance of the Supreme Court.

Even as the judicial delay of 17 years in deciding on the validity of the Tamil Nadu Reservation Act 45 of 1994 — which for political expediency was included in the Ninth Schedule under Article 31B by the P.V. Narasimha Rao led Congress Ministry at the Centre — enabled the Tamil Nadu government to persist with its specious quota law, the Supreme Court did not express any opinion on the validity of the Act while disposing of on July 13, 2010 the long pending writ petitions against this law.

The report ‘Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data' by the Tamil Nadu Backward Classes Commission, headed by retired High Court judge, M.S. Janarthanam, is in response to the court's direction to the State government to place all quantifiable data before the Commission and, on the basis of such data the Commission will decide the quantum of reservation in the light of the parameter laid down by the Court that if a State wants to exceed 50 per cent reservation it is required to base its decision on quantifiable data.

But the report is not based on any quantifiable data; it is verbal jugglery, full of frills and dubious information. Justice Janarthanam's predilection as a staunch supporter of reservation has set the tone of the report as evident from the Foreword to it, which begins thus:

“Came the threat to distort and dismantle the massive inclusive growth — the State had attained — by pursuing the policy of reservation in pre and post Constitution eras — to the level of raising the eyebrows of other States in the shape of judgment in Indra Sawhney, emerging from the Apex Court ... The State of Tamil Nadu, in rather a bid not to get the inclusive growth affected, brought an enactment — Tamil Nadu Act 45 of 1994 — in the year 1993 to protect, preserve and maintain 69 per cent reservation ... The vested-interest sections, unable to bear the brunt of such growth in the State, knocked at the doors of the Supreme Court by resorting to writ proceedings throwing a challenge to the Constitutional validity of the said Act, in 1994. Despite the stay of operation of the Act prayed for, fortunately, no stay was granted, and the 69 per cent reservation was continued to be in operation for about seventeen years, developing and fostering inclusive growth to an astonishing level.”

The Foreword is followed by 13 chapters in 188 pages. These chapters clearly show that the report has hardly any bearing on the Commission's mandate. Among other things, it questions the judiciary for its Mandal rulings, portrays it as an interloper in state policy, and overturns its mandate to the Commission.

A case in point is paragraph 5.9: “The function of the judiciary is to adjudicate and not to legislate. The addition of the concept of creamy layer in either Article 15(4) or Article 16(4) by the Supreme Court can, by no stretch of imagination, be construed as an act of adjudication but that will tantamount to an act of legislation, that too not an ordinary legislation, but a constitutional amendment.”

The Commission had a rare opportunity of revisiting the reservation site by comparing the employment and educational status of the BCs in 1980-81 as available in the Tamil Nadu Second Backward Classes (Ambasankar) Commission report with corresponding data after about three decades. The Commission did not use this opportunity.

On creamy layer

Stating that the Tamil Nadu Act 45 of 1994 has been in existence for 17 years since 1994; and all these years, neither the BCs nor the MBCs availed of the entirety of benefits intended for them, the report claims that the need for the application of creamy layer exclusion in Tamil Nadu does not at all arise for consideration. But the data collected by the Ambasankar Commission clearly showed the continuing monopoly of the benefits by certain groups even about three decades ago.

In July 2000 Chief Minister M. Karunanidhi tabled in the Assembly the Tamil Nadu government's White Paper on job reservation. The Janarthanam Commission report does not even refer to this.

Going by this White Paper (and another source for 1992) of the State government employees, the percentage of BCs, ranging from 61-55 to 55-46 in groups A+B and C+D in 1992/1999, was well above the 30 per cent reservation fixed for them; whereas the corresponding figures for the MBCs, the lower strata of the BCs, eligible for 20 per cent reservation, were 10-16 and 13-15. The representation of the SCs and the STs, eligible for 18 per cent and 1 per cent reservation, was broadly similar to that of the MBCs. That is, 9-13 and 20-18, and 1-0.4 and 1.5-1 respectively.

Tamil Nadu Chief Minister J. Jayalalithaa to whom Justice Janarthanam submitted the report on July 8, 2011 has not placed the report before the Assembly or made it public; and has not subjected it to judicial scrutiny. Instead, on July 11, 2011 Ms Jayalalithaa issued a Government Order that the 69 per cent reservation will continue without elimination of the creamy layer, though the Supreme Court gave only one year, till July 13, 2011, for the status quo. Continuing the status quo without a thorough judicial scrutiny of the report and the Supreme Court's approval defies the court order.

Partisan and misleading reports by commissions entrusted with the task of fact-finding are deleterious for policymaking, and people's faith in the judiciary and the commissions appointed by it. The Janarthanam Commission's report is in this dubious category.

(The writer was a Professor of Sociology at the Madras Institute of Development Studies. Email: prk1949@gmail.com)