OBC Reservation and Tamil Nadu

South Asian Journal

No. 13, July-September 2006

The six separate judgments delivered by the nine‑judge Bench of the Supreme Court on November 16, 1992 in Indra Sawhney and Others vs. Union of India are an erudite exposition of, to borrow a phrase from one of these judgments, judicial creativity in tune with Constitutional objectivity, on who should be treated as belonging to the backward classes for job reservation, how, and what should be the scope of job reservation for them.

The judiciary may show similar creativity in concluding the cases before it on educational reservation for the OBCs. But, there is a world of difference between judicial pragmatism and political opportunism, and politicians as a class are concerned more with power and pelf than with the advancement of the socially deprived. So, whether the judiciary can finally and authoritatively settle the issue of educational reservation will depend upon which triumphs over which. And, so long as judicial pronouncements are not honoured and effectively translated into reality, the deliverance of the victims of entrenched social backwardness from rhetoric to reality will continue to remain a much‑hackneyed political issue for electoral gains of the politicians.

All the same, there is reason for hope that the Supreme Court’s notice to the Central Government on May 29, to explain the basis on which it had fixed the norms for determining who belonged to the OBCs, the modalities it is going to adopt if it is going to implement reservation for the OBCs and the rationale for the same; the court’s related observation that it will consider the contention that the adoption of this policy will divide the country on caste basis which will have ramifications for the social and political fabric of the country; and the withdrawal of the prolonged strike by the students at the court’s instance, all may contribute to the well-being of the student community, the nation, and India’s long ailing education system.

The 93^rd Amendment and after

The court’s notice was in response to writ petitions by educator and business consultant Shiv Khera and Supreme Court senior counsel Ashoka Kumar Thakur, challenging the constitutionality of the 93rd amendment Act - the basis of the Centre's plans to extend 27 percent reservation for OBCs in institutions of higher learning - saying it was discriminatory and violated the fundamental right to equality, and seeking the Court's intervention to ensure that the Centre submitted all relevant reports and data on which it had based its decision.

The 93^rd amendment Act, which came into force in January 2006, was passed by Parliament in December 2005 to overcome the Supreme Court judgment of August 12, 2005 in the Inamdar case. In that judgment the Court struck down the existing reservation by state governments in private unaided medical and engineering institutions, on ground that such institutions have a fundamental right to occupation guaranteed by Article 19(1) (g) of the Constitution and the State did not have the power to impose such reservations on them.

The Inamdar judgment

The judgment in the PA Inamdar and Others vs. State of Maharashtra and Others was by a seven-judge Bench, headed by Chief Justice Lahoti. The Bench was dealing with over 100 petitions filed by the All-India Medical and Engineering Colleges Association, individual colleges, the Government of India, and the Governments of Andhra Pradesh, Karnataka, Kerala, Madhya Pradesh, Maharashtra and Tamil Nadu.

The unanimous judgment delivered by the Chief Justice ruled that imposition of quota of State seats or enforcing reservation policy of the State on available seats in unaided professional institutions are acts constituting serious encroachment on the right and autonomy of private professional educational institutions. At the same time the judiciary subjected such institutions to reasonable state control to check capitation fee and profiteering, to regulate method of admission and academic standards, to insist on the adoption of ‘a rational fee structure’ and so on.

State failure

Though the judiciary thus helped encourage private initiative in a vital social sector in which the State’s track record has been dismal, the political class saw the intervention as inimical to its interests.

The resultant uproar against the judgment in Parliament and outside, adding grist to the much-hackneyed reservation mill, the assurance by Human Resource Development Minister, Arjun Singh to get around the court order, as demanded by various political parties, the Bill passed by Parliament on December 22, 2005 culminating in Article 15(5) on January 20, 2006, are all now part of India’s sordid parliamentary practices.

Article 15(5)

Article 15(5) incorporated by the 93^rd amendment Act is to enable the state to make any special provision by law for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes insofar as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in Article 30(1).

Seen against this, Arjun Singh’s announcement on April 5, 2006 providing 27 percent quota for the OBCs in Central Government funded educational institutions like IIMs, IITs and Central Universities, is disingenuous. For, the announcement does not directly address the issue of reservation in private educational institutions as explicitly conveyed by Article 15(5), the constitutional validity of which is now before the Supreme Court. The announcement is also disingenuous in the context of the OBC quotas in Central Government funded educational institutions for the obvious reason that right from the time of the first amendment of the Constitution in 1951 the scope of Article 15(4) has been interpreted as educational reservation for the SCs, STs, and the OBCs; so much so, and when this Article has not at all been implemented by the Central Government in the context of the OBCs, announcement to implement it through a new Act is nothing short of indulging in prevarication an institution, which Arjun Singh would have others believe “supreme”.

Having said this, with the media blitzkrieg on the reservation controversy confounding the confusion of many, in particular the students; with politicians indulging in their usual vote-bank chicanery, projecting Tamil Nadu as a model; and with the continuing sharp and highly explosive division of opinion in society for and against reservation, all of which have left hardly any scope for the return of reason and fairness in the public realm, placing at least the following ten issues – constitutional, social, political, administrative - in perspective is very important .

Article 16(4) vs. Article 15(4)

One, the Centre’s decision on reservation is in the context of Central Government funded institutions. But, as of now there is no Central list of OBCs for educational reservation. The list prepared following the Supreme Court ruling of November 16, 1992 was in the context of job reservation under Article 16(4). Departing from the earlier rulings that the expression “backward classes” in Article 16(4) is the same as the expression “socially and educationally backward classes” in Article 15(4), with the exception of Justice Thommen , all the judges in the Indra Sawhney case held the former expression as wider than the latter. Their reasoning was Article 16(4) speaks only of “any backward class of citizens” and does not contain the qualifying phrase “socially and educationally”.

As the accent of Article 16(4) is on social backwardness, whereas that of Article 15(4) is on social and educational backwardness, the list of socially backward classes prepared for job reservation may need drastic changes for ensuring that only those socially backward classes which are also educationally backward are retained as OBCs for educational reservation. This may entail constitution of a new backward classes' commission.

Two, job reservation was directly incorporated into the Constitution for enabling certain communities (backward classes), as Dr. B. R. Ambedkar said in the Constituent Assembly on November 30, 1948, to have a “proper look-in” into the administration, which they did not have till then. There was, therefore, no ambiguity about the scope of Article 16(4), though it was intended for only ten years.[1]

In contrast to this, educational reservation was not directly incorporated into the Constitution, but has only been interpreted so, ever since the first amendment as part of which Article 15(4) was added to the Constitution.

As the mandate of Article 15(4) is to make “any special provision for the advancement of any socially and educationally backward classes of citizens or the Scheduled Castes and the Scheduled Tribes”, the judiciary may as well re-examine the scope of this Article. The following issues have direct bearing on such an exercise.

a) Assuming that reference to special provisions in Article 15(4) is to different instruments of affirmative action by the state, what has been the nature and impact of the use of these instruments for the past 55 years, and what is the justification for the abrupt and arbitrary introduction of reservation now.

b) Though right from the time of its enforcement in 1950 the Constitution has provided for free compulsory education of all children up to the age of 14 within a period of ten years – a sine qua non for further education including and especially higher education –, why the state did not implement this provision for the past 55 years.

c) As education is a sine qua non for individual and social development, ensuring education for all is one of the most important tasks of any humane society. Therefore, job reservation which has only limited objective, any Constitutional provision for educational reservation would have militated against this broad objective of universal access. That probably explains the absence of educational reservation in the Constitution.

d) Though a desideratum, ensuring universal education has assumed great significance in recent years. Two quotes should drive this home.

The world we leave to our children depends in large measure on the children we leave to our world. The world’s hopes for the future rest with today’s young people and their readiness to take up the challenges of the coming century. On the threshold of the twenty-first century, the education of the young has never been more in need of our commitment and resources.[2]

Because good quality education promises an escape from poverty, powerlessness, and despair, creating aspirations, opportunities, and choices otherwise unimaginable, it has emerged more clearly than ever as the last best, yet often seemingly forlorn hope that humankind may use its Promethean resources to build a safe, peaceful, prosperous world. As H.G. Wells put it in a famous aphorism exactly 100 years ago, ‘Human history becomes more and more a race between education and catastrophe.[3]

Ensuring universal access to education is all the more important now in the context of the fast unfolding globalisation and the related knowledge-based society. It is important to note in this connection that without more and better higher education, developing countries – home to over 80 percent of the world’s population - will find it increasingly difficult to benefit from the global knowledge-based economy.[4]

Impact of the rulings in Indra Sawhney on Article 15(4)

Three, when quizzed by Karan Thapar in “Devil’s Advocate” on May 21, 2006 on the CNN-IBN TV Channel, that “The CPM says that if the reservations for the OBCs are to happen, then what is called the ‘creamy layer’ should be excluded; how do you react to that?” Arjun Singh’s reaction was the ‘creamy layer’ issue has already been taken care of by the Supreme Court. Singh’s reference was to the ruling of November 16, 1992 that the 27 percent reservation in the Central services and public sector undertakings for the OBCs is enforceable subject to the exclusion of the “creamy layer” from the notified OBCs. Assuming that the judiciary continues to uphold the interpretation of Article 15(4) as educational reservation, exclusion of the creamy layer from educational reservation is bound to be an important, albeit vexatious issue, for consideration and action.

Four, while observing that the rule of reservation cannot be called anti‑meritarian, in the Indra Sawnhey rulings Chief Justice Kania, and Justices Venkatachaliah, Ahmadi, Jeevan Reddy and Pandian preferred, for various reasons, the exclusion of certain services and posts from the rule of reservation. Examples cited were defence services including all technical posts but excluding civil posts, all technical posts in research and development establishments, teaching posts of professors and above, medicine, engineering and other scientific and technical super‑specialties, posts of pilots and co‑pilots in Indian Airlines and Air India, and so on.[5] As these services are directly linked to educational specialities whether educational reservation should have similar exclusion is another important issue for debate.

Five, though the Central Government has not implemented educational reservation for the OBCs till now, since the 1950s it has been implementing such reservation for the SCs and STs, and the state governments have been implementing it for the SCs, STs, and the OBCs. As the constitutional provision has thus been under implementation in one form or another for more than half a century, Justice Thommen’s observation in the Indra Sawhney rulings that reservation must necessarily be limited in direction and contain within itself the seeds of its termination assumes significance.

The Tamil Nadu experience

Six, the Tamil Nadu experience, touted as a model during the recent reservation controversy, has been in the context of a single state, mainly through common entrance tests for professional courses with separate cut-off marks for SCs, STs, MBCs, OBCs, and Open Category, conducted by one university. Since Central institutions of higher learning are of different types - universities, AIIMS, IITs, IIMs, and so on - which have to address the educational needs of students of different streams from different parts of the country, whether the Tamil Nadu experience can be replicated in Central institutions is a moot issue.

No doubt, in the reservation politics of the country Tamil Nadu's role has been unique. It was the non‑Brahmin movement in Madras Presidency during the 1910s and 1920s, and the movement launched by the backward classes from the 1930s to the 1950s, which introduced a distinctive caste/communal idiom into south Indian politics and the policies on the backward classes. It was mainly against the background and knowledge of these movements, and pressures for reservation for the backward classes by members closely associated or familiar with them that the Constituent Assembly adopted Article 10(3) (now 16(4)) providing for job reservation. It was under political pressures from the Madras government when its Communal Quotas of 1927 were quashed by the Madras High Court and the Supreme Court that the Centre added Article 15(4).

However, the implementation of educational (and employment) reservation in Tamil Nadu from 1951 (from 1927 to 1950 through the Communal GO) has not made the state a land of milk and honey as made out by politicians. If anything, other states, and the Centre have a lot to learn from its quota conundrum.

The 1970 report of the Tamil Nadu First Backward Classes (Sattanathan) Commission made several critical observations on the state of reservation in Tamil Nadu. The following are particularly relevant to the present write-up:

(a) There is a progressive section among the BCs in very many castes; in some castes it is so substantial by all yardsticks that it may as well be regarded as having crossed the borderline.

(b) Some castes have taken full advantage of the state's protective measures and made rapid strides, while many others continue to trail behind and are still in the lower stages of stagnancy.

(c) A group of nine castes,[6] accounting for about 11 percent of the BCs' population in the state, have cornered much of the benefits available to the entire BCs population, namely, 37 percent of the non‑gazetted and 48 percent of the gazetted posts, 44 percent of the engineering and 47 percent of the medical college seats.

(d) Such layers of developed segments can very well merge with the advanced sections of society, the so‑called Forward Classes, and compete openly for careers and opportunities without taking cover under reservations.

(e) If the upper crust in each caste is not removed from competing with the less privileged the object of social justice, especially distributive justice, will not be achieved.

(f) As a result of the clubbing together of comparatively progressive castes with the most backward classes (MBCs) under one general category, representation of the latter as a group in government services and professional colleges is disproportionately low; without treating them as a separate entity for purposes of reservation there can be no chance of their reaching adequate representation in the foreseeable future, and they will continue to remain depressed.

In keeping with these observations the Commission recommended 16 percent separate reservation for the MBCs and 17 percent reservation for the BCs, taking into consideration its estimate of these categories in the state population as 22 percent and 29 percent respectively; and exclusion from reservation benefits families of salaried persons whose annual income exceeded Rs. 9,000, land owners owning more than ten standard acres, and business people with taxable income exceeding Rs. 9,000.[7]

The DMK ministry which appointed the Commission in 1969, enhanced in 1971 reservation for the BCs from 25 percent to 31 percent, and for the SCs and STs from 16 percent to 18 percent. However, it did not offer separate reservation for the MBCs; nor did it attempt to eliminate the creamy layer.

It was ostensibly as a belated attempt to eliminate this layer that the M.G. Ramachandran‑led AIADMK ministry issued a G.O. in July 1979 prescribing an annual income limit of Rs. 9,000 on OBC families for eligibility to the reservation benefits.

Shortly after the announcement of the income criterion, both MGR and his education minister, C. Aranganayagam, defended it publicly: Social justice and fairness demand it, asserted MGR. His argument was that even among the BCs there are affluent people who could afford spending on their children's education, whereas it is those with very meagre income, say, the rickshaw pullers, who ought to be given support and encouragement.

The purpose of the income limit is render justice to a larger number of the economically backward, and to cut the vicious circle of the growth of “neo‑Brahminical cult” among the affluent BCs, argued Aranganayagam. His reasoning was that although the state has reserved 31 percent of seats in engineering and medical colleges, only about 25 percent of the beneficiaries belonged to the really backward, whereas the rest were from the affluent sections of the BCs, children of income tax assessees, and so on, who took advantage of the reservation policy, merely because they belonged to the groups listed as the BCs.

When the G.O. was issued there were protests against its enforcement, and agitations demanding its immediate withdrawal. In the wake of these, and his party's defeat in the January 1980 Lok Sabha elections; MGR announced, on the eve of the dismissal of his ministry, the withdrawal of the G.O., and outwitting his adversaries, also an increase in the reservation for the BCs from 31 percent to 50 percent.

These measures amply rewarded the AIADMK in terms of its return to power. They also brought cheer to the vested interests among the BCs and the political parties representing them. Among others, Karunanidhi hailed the announcement as a great success of the agitations launched by his party and the Dravida Kazhagam.

While disposing of a batch of writ petitions challenging the Constitutional validity of the two GOs of February 1, 1980 giving effect to the two MGR announcements of January 24, 1980, the Supreme Court on October 15, 1982 directed the state to appoint a Commission within two months, for reviewing the existing list of BCs after enumeration and a factual and scientific investigation of their conditions. In pursuance of this directive M.G. Ramachandran constituted, on December 13, 1982, the Tamil Nadu Second Backward Classes Commission, with J.A. Ambasankar as Chairman, associating with it as many shades of politicians as he could find within the state through 13 members at the time of its constitution and 21 members a little later.

The data collected by the Commission revealed the following: Of the total BC students admitted to professional courses, more than three‑fourths were from a small number of the BCs (34 out of 222) accounting for only about two‑fifths of the BC population in the state; of the total number of BC scholarships, the total amount of these scholarships, and candidates of all grades selected by the Public Service Commission (PSC), about two‑thirds again went to this relatively small number of BCs; even within this small number, just about one‑third, accounting for about one‑third of the total BC population, had cornered as much as two‑thirds of the BC admissions to the professional courses and more than half of the scholarships, scholarship amounts, and BC candidates selected by the Public Service Commission.[8] (Table 1)

Table: BCs by population and access to BC benefits, Tamil Nadu, 1981-82.

Source: Tabulated from Government of Tamil Nadu, Report of the Tamil Nadu Second Backward Classes Commission. Vols. 1-3: Pp. 100-123, 154-68, 179-97.

The Ambasankar Commission recommended compartmental reservation by grouping the BCs according to the degree of their backwardness, but did not make any suggestion for preventing the "creaming effect" of reservation by income limit or any other measure.

The dissenting views of 14 of the 21 members of the Commission made its report controversial right from the time of its submission in February 1985. Among other things, the dissenters questioned the rationale for inclusion in the Chairman's recommendations of 17 forward communities as BCs and deletion of 34 communities from the existing BCs’ list. Their demands were, therefore, for retaining the existing list of BCs, with 67 percent reservation, against the much-reduced 32 percent recommended by the Chairman.[9]

In the heat of the controversy, the MGR ministry did not make the report public, and despite repeated requests, did not table it in the Assembly. However, through a series of GOs issued on July 30, 1985, it made selective use of the report. These GOs contain the ministry's orders to continue the existing 50 percent reservation for the BCs (besides 18 percent for the SCs and STs) in both educational institutions and public services, considering the Commission's estimate of the BCs population at 67 percent and the "majority members' recommendations" for 67 percent reservation; to add 29 communities to the BCs list, without deleting any recommended for deletion; and the continuation of the existing list of MBCs within the BCs’ list.

Such increasing politicisation of reservation and the related politics of accommodation resulted in the exacerbation of the condition of the very backward castes because of the concentration of the reservation benefits in certain advanced castes. This was clearly brought out by the violent agitations of the Vanniyars during 1986‑88 as outbursts of their deep‑rooted frustration and bitterness over the way successive governments cheated them and included in the BCs many undeserving communities, allowing them to grab all the benefits, leaving practically nothing to the really backward.

As a result of these agitations, the DMK, which assumed office after the January 1989 elections, ordered compartmental reservation in March 1989. Out of 50 percent reservation for 201 communities, it set apart 20 percent for 39 MBCs and 68 Denotified Tribes, together accounting for about 31.14 percent of the BCs, and 30 percent for rest of the BCs accounting for about 68.86 percent of the total BC population in the state.[10]

A couple of years after this new arrangement came the Supreme Court ruling in Indra Sawhney case, restricting overall reservation (SCs, STs, and OBCs combined) to 50 percent and eliminating the creamy layer from the notified OBCs. The vociferous campaign that followed the ruling by Chief Minister, J. Jayalalitha to protect the state’s 69 percent quota (including retention of creamy layer) was crass opportunism when seen against her earlier social justice pedantry and the related political postures.

Thus, stating that the major reason for the violent antagonism to reservation in the north is that it has not been made clear that it is the really poor who will benefit, in an interview published in Indian Express on October 5, 1990, she asserted: Even among the so‑called backward castes, there are many people who are well off, well placed in life, society. It makes a mockery of reservation if they are going to be cornering the benefits. So, it should be made clear that it is the economically weaker sections in the backward castes that will be given these concessions. Only then can one call it social justice.Defending the introduction of the income ceiling by her mentor, she added: "What MGR actually meant was the benefit of reservation should be availed of by economically weaker sections among the BCs. We stand by that”.

Jayalalitha’s relentless campaign since the Supreme Court verdict of November 16, 1992 proclaimed that courts should not hamstrung states in their efforts to render social justice, and in the process portrayed the judiciary as an interloper. In keeping with the views of the AIADMK cabinet, in April 1993 the state filed a petition in the Supreme Court, seeking a review of its verdict in the Mandal case. The cabinet views were the state's reservation scheme took into account the real backwardness among various castes and communities; its reservation scheme followed for a long time could not be disturbed without affecting the social fabric, particularly the rights and interests of the BCs; implementation of the Supreme Court's directive that reservation shall not exceed 50 percent would lead to social tension and agitations; and exclusion of the creamy layer would not be judicious as the adoption of any criteria would itself lead to unequal treatment.

Meanwhile, in response to a batch of writ petitions against the procedures followed in admissions to professional colleges, while upholding the reservation of 69 percent for 1993‑94, the Madras High Court on July 27, 1993 ruled that the state had to take steps to implement the Supreme Court’s orders in the right perspective and see that reservation was brought down to 50 percent at least before the next academic year. However, in response to a writ petition from the Voice (Consumer Care) Council, the Supreme Court on August 24, 1993 restrained the state from exceeding 50 percent even for 1993‑94. Reacting to the Court order Jayalalitha iterated her government's resolve to continue the existing level of reservation to endure the social progress of the BCs.

When the state made 69 percent reservation based on the High Court order, following a contempt petition from the Voice (Consumer Care) Council, the Supreme Court extracted on November 11, 1993 an unconditional apology from it for violating the Court order, and on November 22 an affidavit of compliance. This compliance forced the state to reduce the reservation in admissions from 50 percent to 31 percent (30 percent to 18.6 percent for the BCs, and 20 percent to 12.4 percent for the MBCs). The Court also directed the state on December 14 to admit forthwith to the MBBS course the 11 remaining candidates in the open merit list who were unlawfully deprived of admission by its failure to follow the 50 percent rule despite the Court order of August 24.

Offsetting this setback were, however, the efforts stepped up by Jayalalitha to circumvent the judiciary politically. An official resolution unanimously adopted by the Assembly at a special session convened on November 9, 1993, urged the Centre to amend the Constitution to protect the Tamil Nadu reservation policy. Moving the resolution Jayalalitha called for a state‑wide bandh on November 16, "to voice the concern of the people over the threat to the existing 69 percent reservation being followed in the state".

Following an all‑party meeting on November 26, Jayalalitha introduced in the Assembly on December 30 a Bill under Article 31(c) keyed to Articles 39(b) and (c) of the Constitution "to give effect to the aspirations of the vast majority of the people of Tamil Nadu so as to achieve the goal of social justice". The Bill with retrospective effect from November 16, 1992, reiterating the continuance of the existing 69 percent reservation, was unanimously passed on December 31, and despatched to the Centre on January 19, 1994.

Meanwhile, at a conference in Delhi on December 4, 1993, with characteristic candour Jayalalitha gave a new twist to the Supreme Court rulings, and a new interpretation to the role of judiciary and to the rule of law: The Supreme Court verdict in the Mandal case has overruled the settled position and created uncertainty in the law, and a situation had been reached where the benefits given by a state government to the weaker sections under Article 46 had to be taken away to their detriment; the courts can only declare the laws and not assume the power of the legislatures which is purely in the domain of the legislatures or Parliament; to maintain the credibility of judicial forums and to create absolute confidence in the minds of the general public, justice acceptable to the majority of the public should be rendered by courts; and between the court's verdict and verdict of the people only the latter would have to prevail because that is final in a democracy, she asserted.

Thwarting the DMK's call for picketing government offices on June 17, 1994 protesting against Jayalalitha's failure to secure President's assent to the Tamil Nadu Reservation Bill, at the eleventh hour Jayalalitha abruptly called for a state-wide state‑sponsored bandh on the same day, demanding President's assent to the Bill.

When the Bill did not get the assent for nearly six months despite reminders to the Centre including Jayalalitha's letter to the Prime Minister on June 3, reiterating that the state's reservation percentage cannot be anything less than the existing, Jayalalitha sent letters to leaders of various political parties, led a 28 member multi‑party delegation to Delhi and presented a memorandum to the Prime Minister on June 25. The memorandum pressed for President's assent to the Bill, inclusion of the Act in the Ninth Schedule, powers to the states to vary the reservation percentage with regard to population and other related factors; and reiterated the state's opposition to the elimination of the creamy layer.

Though the AIADMK was in the vanguard of the political campaign for protecting the state's 69 percent reservation, it was not alone. Political parties of all shades, besides extending support to the AIADMK within the Assembly, vied with one another in supporting the status quo, thus showing a certain unity of purpose though not of ideas and action.

Each party had its own political compulsion to vocally support the existing 69 percent reservation. But as a net result of all these efforts the Tamil Nadu Reservation Bill obtained President's assent on July 19, and under further pressures, by the Constitution (85th) Amendment Bill passed unanimously by the Rajya Sabha on August 24 and Lok Sabha the next day, was included in the Ninth Schedule under Article 31B.

Though the constitutional validity of this inclusion, challenged before the Supreme Court, has been before it for more than a decade, the judicial delay in settling the matter has helped the state persist with its 69 percent reservation.

Seven, as the Tamil Nadu experience has been one of arbitrary increase of quotas, arbitrary inclusion of communities, and affirmative action through usurpation with about 87 percent of the total population covered by the quotas, it cannot be a model to the rest of the country.

Eight, though data after 1981-82 on caste-wise access to the state’s resources are not available, from the persistence of the earlier castes in the OBCs list and the state’s refusal to eliminate the creamy layer, it is only to be expected that the groups which cornered the reservation benefits in the 1970s and 1980s continue to do so even now. This raises two issues:

a) If the argument is that reservation is to bring about equality at group level, for at least the last three decades Tamil Nadu has been having a strong case for excluding a number of groups from the OBCs list whose benefit from the state’s resources has been disproportionately high. But the state has not done this.

b) If the argument is that excluding the groups as a whole may be unfair to the really backward within each group, the state should have introduced creamy layer elimination mechanisms as recommended by the judiciary. It has not done this either.

Nine, if the litmus test of the success of the reservation policy is really tangible advancement of the most backward - the SCs, STs and MBCs -, Tamil Nadu does not pass it. Data on state government employees for 1999 reveal that representation of the SCs (eligible for 18 percent reservation), was only 13 percent and 18 percent in groups A+B and C+D respectively; of the STs (eligible for 1 percent reservation) was only 0.4 percent and 1 percent; and of the MBCs and Denotified Tribes (eligible for 20 percent reservation) was only 16 percent and 15 percent. The only redeeming feature is that the representation of these categories in C+D groups combined was close to the quota fixed for them.

The corresponding figures for the BCs (upper layer of the OBCs) were 55 percent and 46 percent in groups A+B and C+D respectively – well above the 30 percent reservation fixed for them.

Ten, if the over-representation of the BCs indicates, in an overall sense, that they as a category have already crossed the Rubicon, especially when seen in the light of the fact that of late they have been neck and neck with the forward communities (Others, or Open Category) in the marks obtained for admission to professional courses, the state is confronted with two choices:

a) Peg the reservation for the OBCs at a reasonable and realistic level, say, 20 percent, so as to provide more scope for open competition, especially in the context of globalization.

b) Exclude the creamy layer even from this reduced quota, so that only the really needy and really backward will depend on the state.

Though educational status is the most crucial factor for social advancement, in the 7+ population of Tamil Nadu 37 percent of the SCs and 59 percent of the STs are still illiterate, whereas the figure is only 24 percent for the rest of the population; and only 2.2 percent of the SCs and 1 percent of the STs in the 15+ population are Graduates, whereas the percentage is 5.4 for the rest of the population. If the SCs and STs are so backward in education and employment, whatever has happened to the implementation of the constitutional provisions for their social and educational advancement during the past 55 years, and in what sense Tamil Nadu is a model to the rest of the country? Answer to this could be found in the state’s education system and the SC-ST welfare schemes in disarray, the overall neglect of education from the primary to the tertiary level, and the lack of support systems necessary to ensure delivery of quality education at all levels.

Conclusion

With as many as 265 universities, 13,150 colleges, 8.821 million students, and 0.427 million teachers during 2001-02 as against 32 universities, 695 colleges, and 0.174 million students during 1950-51, India has developed one of the largest higher education systems in the world. Despite this, going by the UGC and the UNESCO data, India has only about 9 percent to 11 percent of its relevant age group enrolled for higher education, as against 50-85 percent in developed countries.

If the dropout and survival rates and the literacy and illiteracy rates of the broad social categories are any indication, India has not done much for democratisation of access even at the primary level. Going by the Census 2001, India’s illiterates in different age groups are about 41 million in 7-13, 16 million in 14-17, and 33 million in 18-24. The illiterates account for about 27 percent, 25 percent, and 35 percent respectively of the total population of the relevant age groups.

Of those enrolled at the primary level, about 40 percent drop out by the time they reach the fourth year of schooling. In each age cohort the illiteracy rate is much higher among the SCs, STs, and Muslims (accounting for about 47 percent of India’s population), and among women in each social group. Thus, if India has a long way to go to achieve basic education for all, its distance to achieve universal higher education may be infinity.

India’s gross expenditure on education now, by the state and central governments combined, is nearly Rupees one lakh crore or 3.52 percent of the GDP. The Government of India’s spending on education is expected to double by next year and go up to three times by 2009-10, from the current level to Rupees 1.82 lakh crore first and Rupees 238,835 crore subsequently. Though the increase in spending will fulfil the promise of the Congress-led United Progressive Alliance ruling at the Centre to allocate six percent of the GDP to education, it will still be a case of the little done and the vast undone [not done]. The spending on education by developed countries is much higher than both these figures (3.52 percent and 6 percent).

The problems of Indian education center round financing, equity and excellence in access and outturn. As these problems have been confounded by the rapid speed of globalization under which society needs only educated manpower, the deprived in India are now victims of double whammy. Their traditional deprivation keeps them away from education; and the demands of a knowledge-driven society under globalization leave them out of the mainstream as social misfits – as the disposable people of society - because of their lack of education.

Instead of seeing the problems in perspective, governance in India seems to be choosing cheap populist options. Though satisfying to the politicians, these options can do no good, and in the long run can do a lot of harm to the rising generation, in particular, the historically deprived social groups, which are still victims of entrenched backwardness.

The provision of reservation cannot benefit students from the deprived groups in a big way, though it may help vote-banks and cause a lot of bad blood. If reservation for more than fifty years in State-run institutions has not benefited the students much, it is naïve to expect that the State’s mandate for reservation in private and central institutions will benefit them. One indication of the inadequacy of reservation to meet the educational needs of the deprived sections is the share of degree holders from them.

Going by the Census 2001, the overall share of Graduates in the 20-24 age-group population is about 8 percent. Of the six categories into which the Census 2001 has classified the population, the degree holders in the 20-24 age group account for only 2.3 percent of the total population in this age group among the STs, 3.6 percent among the SCs, 4 percent among the Muslims, 7.4 percent among the Buddhists, 7.6 percent among the Sikhs, 9.8 percent among the caste-Hindus (including the OBCs but excluding the SCs and STs), and 11 percent among the Christians.

Given this dismal scenario, it is only too obvious that the State has so far failed to grapple with the reality of the enormous task of educating India’s rising generation in socially equitable and globally competitive ways, and failed to grapple with the problem that many parents are too poor that they would like their children to be wage-earners, and even if they try to seek admission for their children the prohibitive cost of education and failure of their children to get admission discourage them from doing so.

To place higher education on a fast track, the most important need is to foster existing institutions by ensuring equity and fairness in intake, by expanding and strengthening education at all levels, from primary to tertiary, strengthening basic and infrastructure facilities including, and especially of qualified teachers, and grounding institutions in disciplinary diversity and excellence in quality.

While on this it is also important to note that much of the debate about merit on the basis of marks, which has of late been turned into a bogey, is misplaced. What should concern students, teachers, and educationists alike is quality education. In ensuring this students provide only part of the inputs. The other inputs are quality of the teachers, quality of infrastructure, social ambience of class rooms and institutions, and the ability of the institutions to address the special needs of the backward students (not backward classes) irrespective of their social background.

If Prime Minister, Dr. Manmohan Singh has to honour his assurance to the students of a fair, just, and inclusive education system he has to address the different needs of the heterogeneous ensemble that make up the student community in the melting-pot of the education system from the primary to the tertiary levels, which will be a lot more rewarding and a real investment on the youth than the sops of quotas to a few.

For doing this, a comprehensive White Paper on India’s higher education policy for a pragmatic programmatic for at least the next 20 years is urgently needed. Such a Paper should take stock of the present and required availability of access taking into consideration the size of the age-cohort population in the relevant age-groups, and cover all issues relating to higher education such as ensuring social justice through education for all, relevance of public-private partnership, admission policy, quotas, fee-structure, quality-control and other matters. Without this, higher education in India will continue to be in a mess with the state and the judiciary tossing issues around without moving towards a resolution on genuine concerns, and politicians and the fast emerging education industry continuing to fish in troubled waters.

Notes and references

[1] Article 16(4) permits the State to make any provision for the reservation of appointments or posts in favour of any backward class of citizens, which, in the opinion of the State, is not adequately represented in the services under the State. While Article 16(4) onlypermits, Article 335 mandates the State that the claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration consistently with the maintenance of efficiency of administration in the making of appointments to the services and posts in connection with the affairs of the Union and of a State. Thus, while the reference to backward classes in Article 16(4) is too generic and the reservation provision is only enabling, the reference in Article 335 isspecific and mandatory. The Constitution also mandates reservation of seats for the SCs and STs in proportion to their numbers in the Lok Sabha (Article 330) and Vidhan Sabhas (State Assemblies; Article 332). Article 46 directs the State to promote with special care the educational and economic interests of the “weaker sections of the people” and in particular of the Scheduled Castes and the Scheduled Tribes and “to protect them from social injustice and all forms of exploitation”. As the repeated references in the provisions are to the SCs and STs, recognition of these categories as the most backward in need of the most effective affirmative action provisions is only too obvious. Though the much less backward OBCs is a residual category in the Constitutional scheme, over the years the vote-bank politics of the country has virtually obliterated the differences between the two, and if anything brought the OBCs to the forefront of affirmative action much to the neglect of the SCs and the STs.

[2] Frederico Mayor. In Foreword to UNESCO’s World Education Report 1998: Teachers and Teaching in a Changing World.

[3] Alan Gilbert. In a speech Education or Catastrophe, General Conference of the Association of Commonwealth Universities, Queen’s University, Belfast, Media Release, September 1, 2003; Web: www.acu.ac.uk/belfast2003.

[4] In the report Perils and Promise: Higher Education in Developing Countries, published in 2000. Prepared by the Task Force on Higher Education in Developing Countries, convened by the World Bank and UNESCO.

[5] See, The Supreme Court of India (1992), Judgments on Indra Sawhney and Others vs. Union of India and Others. Delhi. LIPS Publications Pvt. Ltd.

[6] These castes were Agamudayan/Thuluva Vellalars; Devanga/Sedan; Gavara; Illuvan/Ezhuvan/Illathar; Kaikolan/Sengunthar; Sadhu Chetty; Saurashtra; Vadugan; and Virakodi Vellala.

[7] Government of Tamil Nadu. 1974. Report of the Tamil Nadu First Backward Classes Commission. Madras. Government Press.

[8]It is important to note that top in this list of 34 major beneficiaries in the 1980s were seven of the nine major beneficiaries mentioned in the Sattanathan Commission report of 1970, which reconfirmed the continuing monopoly of certain BCs in cornering the BC benefits offered by the state.

[9] Government of Tamil Nadu. 1985. Report of the Tamil Nadu Second Backward Classes Commission. Madras. Government Press.

[10] According to Demand No. 9, Policy Note for the year 2005-06 of the Backward Classes, Most Backward Classes, and Minorities Welfare Department, Government of Tamil Nadu, Tamil Nadu’s population break-up is as follows: Backward Classes 46.14%; Most Backward Classes 17.43%; Denotified Tribes 3.44%; Scheduled Castes 19%; Scheduled Tribes 1.04%; Others 12.95%. Tamil Nadu’s reservation quotas are 30% for BCs, 20% for MBCs and DNTs, 18% for SCs, and 1% for STs. The overall reservation is thus 69%, and the population covered by it is 87%.

# posted by prk1949 @ 1:00 pm