Quota: How Tamil Nadu is setting a bad precedent

Pursuant to the Supreme Court order of July 13, 2010, that if the Tamil Nadu government has to exceed 50% reservation for backward classes it has to place before the State Backward Classes Commission quantifiable data on backward communities for fresh determination of quota, the Commission, headed by retired high court judge, MS Janarthanam, submitted its report to chief minister J Jayalalithaa on July 8, 2011.

The Tamil Nadu government’s excessive quota regime from 1985 onwards; the Mandal rulings of November 16, 1992, fixing the overall reservation at 50% and its implementation only after excluding the creamy layer; and the Jayalalithaa-led AIADMK government’s pyrrhic victory in getting the Tamil Nadu Reservation Act of 1993 included in the Ninth Schedule of the Constitution (to keep reservation beyond judicial review) for continuing the state’s 69% reservation without elimination of the creamy layer; are all familiar stories.

That the judiciary took more than 15 years to pass an interim order on an important writ petition concerning usurpation by the state of citizens’ rights guaranteed by the Constitution, is symptomatic of a deeper and larger malaise. As fundamental rights should remain unhampered, correcting their distortions and erosions caused by egregious executive and legislative actions cannot wait till doomsday. If the delay on the part of the judiciary was thus palpably inexcusable — Tamil Nadu was breaching the equality provisions for a long time — there could not have been a better reason for the judiciary to order the state July 13, 2010, to immediately scale down the quota first to 50%, implement it only after elimination of the creamy layer and after judicial scrutiny of the findings of the commission reduce it to a more realistic figure.

Though the commission’s mandate was to examine quantifiable data and decide on the quantum of reservation and the need for elimination of the creamy layer, scrutiny of its report is likely to show that it has not honoured this mandate; for the issues which the apex court raised were examined by the Tamil Nadu first backward classes (Sattanathan) commission constituted in 1970 and the Tamil Nadu second backward classes (Ambasankar) commission constituted in 1982. The reports of these commissions had shown that the state’s backward classes require much less reservation, and as the reservation benefits were cornered by a small group elimination of the creamy layer was a socio-political imperative.

As the Tamil Nadu Backward Classes Commission was constituted under the Mandal rulings as a permanent commission with the limited mandate of entertaining, examining, and recommending upon requests for inclusion and complaints of over/under inclusion in the lists of OBCs, using it for a more complex and elaborate work as envisaged under Article 340 of the Constitution was avoidable. That apart, the Commission has been working as an appendage of the party in power, literally singing its song whose bread its chairman eats. This was evident from Janarthanam’s recommendation for separate reservation for Muslims and Christians by using misleading nomenclatures to circumvent the judiciary; and classification of Arunthathiyar as a separate category within the Scheduled Castes, though these were not part of the Commission’s mandate and against the Supreme Court’s decisions in the context of some other states.

The Jayalalithaa government has not placed the Janarthanam Commission report before the assembly, made it public, or subjected it to judicial scrutiny. Instead, on July 11, 2011, Jayalalithaa issued a government order that the 69% reservation will continue without elimination of the creamy layer, though the Supreme Court gave only one year’s time, till this July 13, 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, perpetrates a fraud on the Constitution, and sets a bad precedent for other states.

— The writer is a sociologist and commentator on public affairs