On November 1, the Madras High Court struck down the Tamil Nadu government’s Act 8 of 2021, which gave 10.5% sub-quota reservation to Vanniyars under the Most Backward Classes (MBC).
In its order, the court said the impugned enactment had been passed by the State without any quantifiable data on population, socio-educational status and representation of the backward classes in services. The sub-classification done by virtue of the impugned Act, solely based on population data and in the absence of any objective criteria, is “illegal in the eyes of law and in violation of the Constitution of India”, it added.
Though the court said the lack of quantifiable data was one of the main reasons to quash ‘Tamil Nadu Special Reservation of Seats in Educational Institutions Including Private Educational Institutions and of Appointments or Posts in the Services under the State’, within the Reservation for the Most Backward Classes and Denotified Communities Act, 2021, the order discussed various other aspects of reservation that throw light on several issues.
Reservation based on class vs caste
The order starts with the basic facts on reservation, from the time of its inception in 1921, and the first case the country witnessed against reservation — State of Madras vs Champakam Dorairajan — in the Supreme Court, after the implementation of the Constitution of India in 1950. The SC had quashed caste-based reservation, holding that only class-based reservation is permissible. Since then, only class-based reservation is followed, both by the Central and State governments.
Till 1989, Backward Classes (BCs) were provided with 50% reservation. Then through GO 242, dated March 28, 1989, the Tamil Nadu government divided the reservation for BCs into two categories, by giving vertical reservation of 30% to 132 BCs and 20% to MBCs with 109 castes, which is now increased to 117 castes including Vanniyars.
What successive Commissions proposed
The first BC commission was set up by the Union government on January 29, 1953, which submitted its report on March 30, 1955. In its report, the commission categorised 2,399 BCs, out of which 837 were MBCs.
In 1969, the State government appointed its first BC commission, headed by AN Sattanathan. In its report submitted in 1970, the Sattanathan Commission recommended that 33% of the posts under the State government be reserved for OBC candidates. Following that, the State enhanced the reservation for OBCs from 31% to 50% in 1980, both in government employment and education. It also provided 18% reservation to Scheduled Castes (SCs) and Scheduled Tribes (STs).
In 1982, the State appointed the second BC commission, headed by JA Ambashankar. That commission conducted a caste-wise socio-economic and educational survey in 1983 across the State and submitted its report in 1985.
It is interesting to note that only in 1992, following the reservation granted to OBCs by the Union government challenged in the SC by the Indra Sawhany vs Union of India case, that the Union and State governments started to have permanent BC Commissions. They were directed not to exceed 50% reservation in normal circumstances.
The root of the current problem
In 2012, the State BC commission recommended a proposal to divide the 20% MBC/DNC (Denotified Communities) reservation into: 10.5% for one caste (Vanniyars), 7% for 68 DNCs, 25% for other MBCs (so, 93 castes in total), and 2.5% for other 22 MBCs.
“Justice MS Janarthanam also suggested to the government to make a specific reference to the said Commission to make recommendations for separate reservation for Vanniyar caste,” said the order. Based on that, the government issued GO 35, on March 21, 2012, to sub-categorise the MBC.
In order to do that sub-categorisation, the Madras High Court, in 2015, ordered the BC commission to furnish a report. But the report was not submitted. Meanwhile, on July 8, 2020, the then AIADMK government constituted a new BC commission, which again has not filed a report till the date. Also, the Commission headed by Justice A Kulasekaran to collect quantifiable data on the castes, communities and tribes of the State is yet to submit its report.
Amid these developments, the 102nd Constitutional Amendment made in 2018 said: “The powers of Legislative Assembly to include and exclude BC has been ousted and bestowed with Parliament under Article 342-A of the Constitution.” Citing this amendment, many petitioned the High Court to strike down the Vanniyar reservation law.
Arguments of the State
Tamil Nadu has argued that “the process of consultation for sub-classification within the MBC was started as early as the year 2012, when the State BC commission was issued additional terms and reference for this purpose”. It also based that on “adequate authenticated data on population of the MBC and DNC enumerated by the State BC commission in 1983”.
“The caste-wise population data disclosed by the Ambashankar Commission is the only authenticated data available as of now before the State, and such data can be used effectively to plan for sub-classification within backward classes of citizens in proportion to the respective communities or groups,” the government said.
It also cited Kerala’s case to support its side. “Certain classes of people grouped together for ethnologic and socio-cultural similarity finding place in a single entry on the list of MBCs can very well be stated to be a social class for the purpose of sub-classification. Similar such exercise has already been done in the State of Kerala amongst OBCs, wherein from and out of one list of OBCs for the State, eight categories within OBCs were sub-classified for grant of reservation in turns,” it said.
The State has stressed that in the past, when it sub-classified BCs to provide separate reservation to BC Muslims, no legal hurdle arose. It also argued that until the Presidential Notification of Socially and Educationally Backward Classes for the State is published under Article 342 A(1), it cannot be stopped from making a piece of legislation with the existing BC, MBC and DNC lists.
Arguments put out by the petitioners
One of the main arguments put forth by the counsels representing the petitioners is that the reservation Act has been hurriedly and hastily enacted without application of mind.
“To say the Padayachi community in the whole State has been included in Part MBC (V) in Serial No.1…But the Padayachi community (Vellaiyankuppam in Cuddalore district and Tennore in Trichy district) had been included in Serial No 47 of DNC. Similarly, 25 MBCs have been included in Part-MBC and DNC, and 22 other MBCs have been included in the Part-MBC list. There is no material or data in the objects and reasons of the impugned Act as to how the said 25 MBCs are found to be similar to the said 68 DNCs,” the counsel said.
It is also claimed that when Ambashankar submitted his report, the majority of the members were not in support of the data and hence it cannot be relied upon.
What the court observed
Underlining the case of Dr Jaishri Laxmanrao Patil vs Chief Minister and Others, 2021, the High Court said the State government has no power to modify the Socially Educationally Backward Classes (SEBC) list. It added that the existing SEBC list can be used to avoid any vacuum but that doesn’t mean the State can do any sub-classification.
The court observed that in treating Vanniakula Kshatriya’s Vanniyar, Vanniya, Vannia Gounder, Gounder or Kander, Padayachi, Palli and Agnikula Kshatriya as separate castes, while treating similar castes differently, there is a discrimination between one caste having six sub-castes and 115 other castes.
To counter the argument that when BC Muslims were given sub-quota there was no legal hurdle, the court said that the Ambasankar Commission report was not the basis for internal reservation to Muslims under BCs and preferential reservation for Arunthathiyars. In both cases there was a separate report with quantifiable data including the population data, it added.
“In every decennial Census, Muslims and SC population data were collected and their backwardness and non-representation have been studied in separate reports. In both the cases, it is class legislation with seven separate castes with seven separate serial numbers in the list of castes which had been grouped together as a sub class and provided different treatment based on the intelligible differentia with rational nexus of channelizing the affirmative action to the unreached sections of the class,” the order said.
It is pertinent to note that the State has not taken a policy decision to modify the reservation after consulting the National Commission for Backward Classes as mandated by Article 338-B of the Constitution, the order reads.
“Now, there are 38 districts in the State of Tamil Nadu as on date. As per the report of the Sattanathan Commission, 1970, the population of Vanniyars is higher in the north districts of Chengalpattu, South Arcot (present day Cuddalore, Kallakurichi and Villupuram), North Arcot (present day Vellore and Tiruvannamalai), Salem, Dharmapuri, Tiruchirappalli and Thanjavur districts and their population is very thin in the southern districts. In most of the districts in the State, the Vanniyar community population is very less and in such a case, if 10.5% reservation is given to the Vanniyar caste all over the State, it would prevent the other MBCs from getting admissions in educational institutions and posts in government employments.
“In other words, the candidates from Vanniyars would automatically get selected in the education institutions or for government employment without there being any competition. On the other hand, the candidates of other MBCs would find it difficult, for the reason that their reservation would be decreased from 20% to 9.5%,” the court noted.
The court en fin said adequate representation does not mean proportionate representation but the Vanniyar Reservation Act is an attempt to provide proportionate representation. It also treats Vanniyars as only one caste entry in the list of castes and it is not the list of seven castes as claimed by the government. It means, though the government intended to group the seven sub-castes as one class, these sub-castes would always be treated as one caste.
“No homogeneous caste can be kept in different classes,” the court ordered.