Judiciary reminds the executive - "Give quantifiable data, for new reservations"

Reservations for jobs and education must be based on quantifiable data, which sadly is missing usually.

Judiciary reminds the executive - "Give quantifiable data, for new reservations"

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Read more on - Polity | Economy | Schemes | S&T | Environment

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• The story: The issue of reservations in jobs and education has always been a hotly debated one in India. The stark fact remains that while the SC and ST reservations have continued since the 1950s, and have population count as part of the decadal census, for almost all other types of reservations, the data backing up the claims are either non-existent, or approximate, or plain wrong. The judiciary has pointed this out, often.
• Madras HC in action: The Madras High Court has struck down the "Tamil Nadu Special Reservation of Seats in Educational Institutions including Private Educational Institutions and appointments or posts in the services under the State within the Reservation for the Most Backward Classes and Denotified Communities Act, 2021" as ultra vires the Constitution of India.

1. It quashed the 10.5% special reservation for Vanniyakula Kshatriyas within the overall 20% quota for MBC and DNC. This highlighted the importance of quantifiable data as a prerequisite for reservation in education and employment.
2. The Court ruled on petitions that challenged this Act for providing reservation on the basis of caste alone, and that the state had no quantifiable data to support the Act that provided 10.5% reservation to the Vanniyar caste alone within the 20% reservation for Most Backward Communities (MBC).

• Timeline of facts:

1. In 1994, the Tamil Nadu government enacted the "Tamil Nadu Backward Classes, Scheduled Caste and Scheduled Tribes (Reservation of Seats in Educational Institution and Appointments or Posts in the Services Under the State) Act, 1993, to protect the existing 69% quota and included the same in Ninth Schedule of the Constitution of India.
2. Out of the 69% of the reservation, 20% was reserved for the MBCs, 30% was reserved for Backward Communities (BC), 18% was reserved for Scheduled Castes (SC), and 1% for the Scheduled Tribes (ST).
3. As per the official notification, there are about 116 communities belonging to Most Backward Community and De- notified Communities, out of which, 93 are De-notified Communities and 23 are Most Backward Communities. As stated above, 20% reservation is fixed for all 116 communities under MBC by virtue of the 1994 Act.
4. In 2021, the TN Assembly passed a special Act which divided the ‘Most Backward Classes/Denotified Communities’ category into three parts. (i) Of the total, the largest share of 10.5% was given to the Vanniyakula Kshatriya and its various sub-castes. (ii) The MBC/DNC sub-division was to have 7% for DNCs and a section of MBCs, while the remaining 2.5% was meant for the rest of the MBCs. (iii) It was justified based on the report of Second Backward Class Commission which stated that the Vanniyar population was 13.01% of the then total population in 1983.
5. The state legislature's new law was challenged before the High Court (questioning the 10.5% reservation to the Vanniyar caste alone). It was thus a case of quota within quota.
6. The Advocate General (AG) defended the quota within quota and argued that the 2021 Act had not varied the reservation of 20% to MBC, but, within 20% reservation, it had only apportioned the reservation into three categories in proportion to their population and hence, there was no illegality in the impugned Act.
7. Another question is whether states can change backward classes list on their own, or not. The 102nd Amendment to the Constitution created the National Backward Class Commission (NBCC) and empowered the President to notify the backward classes list for each State. The Supreme Court had ruled, in the Maratha reservation case, that the Amendment took away the power of the States to notify or identify OBCs. Then came the 105th Amendment making it explicit that the States could make changes in their lists.

• Why court ordered thus: The legislation was challenged before the High Court which held it unconstitutional, citing the lack of adequate quantifiable data with the State government before the introduction of the law. The division bench of Justices M. Duraiswamy and Justice K. Murali Shankar rejected the argument of the AG and held:

1. The government did not wait for the report of a commission it had appointed earlier to gather quantifiable data to justify the State’s 69% total reservation.
2. The other ground was that the separate reservation for one caste amounted to discrimination against all the other castes in the same MBC category. Even the State BC Commission report 2011, which justified the 69% reservation for BC, MBC/DNCs and SC/ ST under the 1994 Act, did not give any community-wise break up of representation in government services.
3. Bench said: “The Constitution of India intended all the castes including the sub-castes, races and tribes mentioned in the list to be members of one group for the purpose of the Constitution of India and further, this group cannot be sub-divided for any purpose. Moreover, the Constitution of India intended that all the castes included in the Schedule under Article 341 would be “deemed to be” one class of persons”.
4. The bench also held that the State had no power to notify Socially Educationally Backward Classes (SEBC) after the 102nd Constitutional Amendment Act. It relied upon the decision of the Supreme Court in the Maratha reservation case in which it was held that only the Centre had the power under the 102nd Constitution Amendment to identify and list SEBCs, and not states.
5. The Tamil Nadu government argued that the Constitution (105th Amendment) Act, 2021, making amendments in Articles 338B, 342A and 366(26C), has preserved the State lists and the power of the states to identify and notify Backward Classes and thus, the power of the state for identification and notification of the Backward Classes, stated to be lost by virtue of the Constitution (102nd Amendment) Act, 2018, had been restored through the 105th Amendment to the Constitution.
6. The court overruled this and said that it was of the opinion that the Constitution (102nd Amendment) Act, 2018, came into existence on 11.08.2018 and the Constitution (105th Amendment) Act, 2021, was enacted on 19.08.2021 and whereas the impugned TN Act 8 of 2021 came to be enacted on 26.02.2021 and therefore, on the date of enactment of the impugned Act, the State Legislature has no power to enact such legislation and accordingly, the State Legislature has no competency to pass the impugned Act. (TN govt. got caught in dates!)
7. The high court questioned also when the original Act of 1994 was assented to by the President then how could the Governor have varied the list even if the Council of Ministers had advised his Assent to the impugned Act. The bench thus held the 2021 Act, without amending the Act of 1994 in the ninth schedule, an unconstitutional exercise.

• Major constitutional issues:

1. Violation of fundamental rights - The high court struck down the 2021 Act on the ground that it violated Articles 15(4), 16(4) and 14 of the Constitution, besides legislative incompetency. It said that reservation is permissible only for a class of citizens, and not on a caste basis.
2. Wrong classification - It said that the micro classification of MBC into (i) MBC(V), (ii) MBC and DNC and (iii) MBC was without any rational basis. The micro classification was arbitrary because there was no acceptable reason for the division. There is no material or data to differentiate MBC(V) from other MBC as a separate class.
3. Pure caste-based - It added the Act of 2021 sought to discriminate only on caste and it also provided caste-based reservation by treating one caste, viz., “Vanniakula Kshatriya” including ‘Vanniyar’, ‘Vanniya’, ‘Vannia Gounder’, ‘Gounder’ or ‘Kander’, ‘Padayachi’, ‘Palli’ and ‘Agnikula Kshatriya’, as a separate class while treating the similar castes differently. By doing so, discrimination was shown between one caste having 6 sub-castes and 115 other castes, as the impugned Act tried to give a higher proportion of reservation to one caste and deprive the others. Vanniyar caste who are issued with single caste certificate in the lists of MBCs is treated as a separate class, when the name of the caste in every other respect, the Vanniyar caste, is similar to other castes in the MBCs".
4. No data - The Court held that the Act of 2021 was passed by the State without any quantifiable data on population, socio-educational status and representation of the backward classes in the services and the sub-classification done by virtue of the Act solely based on population data, in the absence of any objective criteria, was illegal.
5. Adequate or proportionate - The Court referred to a series of judgments of the Supreme Court in Jarnail Singh vs. Lachhmi Narain Gupta (2018), Indra Sawhney & Ors. vs. Union of India & Ors. (1992) and Dr. Jaishri Laxmanrao Patil vs. The Chief Minister & Ors. (2021) to hold that adequate representation did not mean proportionate representation, and the impugned Act was an attempt to provide proportionate representation, which is against the decisions of the Supreme Court.

• State Backward Commission's stand: The first BC Commission (1969-70), headed by A.N. Sattanathan, talked of having a device for removing the top layers of the communities periodically (creamy layer concept). The second BC Commission headed by Ambasankar advocated compartmental reservation by grouping the BCs on the basis of backwardness. The concept of quota within quota is already in place in Tamil Nadu. In 1989, a new category called MBC and DNC was carved out of the BCs and given 20% exclusively from the then quantum of 50%. In 2007, Muslims in the BCs were provided with 3.5% reservation. In 2009, 3% reservation was provided for Arunthathiyars out of 18% quota for the SCs.
• What happens now: The State government may approach the Supreme Court, as any change in The State’s 1994 Act would require an amendment to that law as well as the President’s assent which may complicate the existing internal quotas given to BC Muslims and Arundhatiyars. The High Court had mentioned that these two quotas were backed by census data and valid recommendations, but it did not consider the question whether their introduction without an amendment to the 1994 Act or the President’s assent was valid.
• EXAM QUESTIONS: (1) Explain the reason detailed caste census is generally avoided by Indian governments. (2) What do we mean by "data-backed policymaking" in India? Explain. (3) Explain the reservation situation in Tamil Nadu. (4) What do we mean by the power of judicial review?

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