Pattali Makkal Katchi vs A. Mayilerumperumal

1. The 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 was declared as

unconstitutional by the High Court of Madras, Madurai Bench by

a judgment dated 01.11.2021. The correctness of the said

judgment is challenged in these appeals.

2 | Page I. Background

2. Communal representation in public services existed in the

Madras Presidency prior to the Constitution of India coming into

force. The Madras High Court declared G.O. Ms. No. 3437 dated

21.11.1947, by which communal representation was provided,

as unconstitutional.The said judgment of the High Court was

upheld by this Court in State of Madras v. Srimathi

Champakam Dorairajan1. This Court held that the

classification made in the said G.O. proceeded on the basis of

religion, race and caste and constituted a violation of the

fundamental rights guaranteed under Article 29(2) of the

Constitution of India. On 18.06.1951, Article 15(4) was inserted

by the Constitution (First Amendment) Act, 1951, enabling the

State to make any special provision for advancement of socially

and educationally backward classes. Consequent to the

judgment of this Court, G.O. Ms. No. 2432 dated 27.09.1951

was issued by the Madras State adopting a 20-point roster, with

three seats reserved for Scheduled Castes and Scheduled Tribes

and five for Backward Classes, amounting to 15 per cent

reservation for Scheduled Castes and Scheduled Tribes together

and 25 per cent for Backward Classes. On 30.12.1954, G.O. Ms.

1 1951 SCR 525

3 | Page No. 2643 was issued increasing reservation for Scheduled

Castes and Scheduled Tribes combined to 16 per cent and

Backward Classes to 25 per cent. By G.O. Ms. No. 353 dated

31.01.1957, the State Government made a sub-classification

amongst Backward Classes. ‘Most Backward Communities’

were identified and educational concessions were extended to

them. There were 58 communities in the list of ‘Most

Backward Communities’, with Vanniakula Kshatriyas listed at

serial No. 1.

3. The State Government appointed a Backward Class

Commission under the Chairmanship of Shri A.N. Sattanathan, by

G.O. Ms. No. 842 dated 13.11.1969 “to make a scientific and

factual investigation of the conditions of backward classes in the

State and recommend specific measures of relief for their

advancement”. The Commission submitted its report in

November, 1970, recommending reservation of 33 per cent of

posts under the State Government for Backward Classes as well

as of seats in professional and educational institutions. After

considering the recommendations of the said Commission, the

State Government, by G.O. Ms. No. 695 dated 07.06.1971,

enhanced the existing reservation for Backward Classes from 25

per cent to 31 per cent and that for Scheduled Castes and

Scheduled Tribes from 16 per cent to 18 per cent with respect to

4 | Page seats in all kinds of educational institutions under Government,

local body and aided managements and posts for recruitment to

public services. On 01.02.1980, the reservation quota for

Backward Classes was enhanced to 50 per cent for appointment

to posts in services and admissions to educational institutions

under the State Government.

4. Later, the Tamil Nadu Second Backward Classes

Commission was appointed by the Government on 13.12.1982.

The said Commission was headed by Shri J.A. Ambasankar, I.A.S.

(retd.). A study was conducted by the Commission to determine

the level of backwardness on the basis of various indicators of

social and educational backwardness bearing points, with each

community assessed being awarded a score from a total of 15

points. According to the Chairman, such of those communities

which have secured 8, 9 and 10 points should be grouped as ‘A’,

those with 11, 12 and 13 points should be placed in group ‘B’

and those with 14 and 15 points should be categorised as group

‘C’. The Chairman of the Commission recommended

compartmental reservation on the basis of the different

groupings and provided mechanism for implementation of the

same. 14 members of the Commission differed from the views

expressed by the Chairman of the Tamil Nadu Second Backward

Classes Commission.

5 | Page

5. On 30.07.1985, the State Government issued G.O. Ms. No.

1564 notifying 201 communities as Backward Classes

throughout the State of Tamil Nadu for the purposes of Articles

15(4) and 16(4) of the Constitution. G.O. Ms. Nos. 1566 and

1567 were also issued on the same day, classifying 39

communities as ‘Most Backward Classes’ (MBCs) and 68

communities as ‘Denotified Communities’ (DNCs), respectively.

The Vanniakula Kshatriya community was placed at sl. no. 26 in

the list of MBCs. On 28.03.1989, separate reservation of 20 per

cent, out of the available 50 per cent for Backward Classes, was

provided for MBCs and DNCs together and the remaining 30 per

cent set aside for Backward Classes. Later, on 22.06.1990, one

per cent separate reservation was provided to Scheduled Tribes

in public services and educational institutions. Thus, from 1990,

30 per cent reservation was provided for Backward Classes, 20

per cent for MBCs and DNCs, 18 per cent for Scheduled Castes

and 1 per cent for Scheduled Tribes, totalling to 69 per cent.

6. Act No. 45 of 1994, i.e., the Tamil Nadu Backward Classes,

Scheduled Castes and Scheduled Tribes (Reservation of seats in

Educational Institutions and of appointments or posts in the

Services under the State) Act, 1993 (hereinafter, the “1994

Act”) was enacted to provide for reservation in admissions to

educational institutions in the State and for appointments in the

6 | Page services under the State. ‘Backward Classes of citizens’ are

defined under Section 3(a) thereof as “the class or classes of

citizens who are socially and educationally backward, as may be

notified by the Government in the Tamil Nadu Government

Gazette, and includes the Most Backward Classes and the

Denotified Communities”. Section 4 provides that reservation in

respect of annual permitted strength in educational institutions

for ‘Backward Classes of citizens’ and for persons belonging to

Scheduled Castes and Scheduled Tribes shall be 69 per cent.

According to Section 5, 69 per cent of appointments or posts in

the services under the State shall be reserved for ‘Backward

Classes of citizens’, Scheduled Castes and Scheduled Tribes.

The allocation of percentage of reservation for Backward

Classes, MBCs and DNCs, Scheduled Castes and Scheduled

Tribes remained unchanged. Additionally, by Section 7 of the

1994 Act, the Government reserved power to classify or sub-

classify, by notification, the ‘Backward Classes of citizens’ for

the purposes of the 1994 Act, on the basis of reports of the Tamil

Nadu Backward Classes Commission constituted on 15.03.1993.

On 19.07.1994, by G.O. Ms. No. 28, the Government of Tamil

Nadu, under Section 3(a) of the 1994 Act, notified 143

communities as Backward Classes, 41 communities as MBCs and

68 communities as DNCs. By the Constitution (Seventy-sixth

7 | Page Amendment) Act, 1994, which received the assent of the

President on 31.08.1994, the 1994 Act was placed in the Ninth

Schedule of the Constitution, as Entry 257-A.

7. The validity of the 1994 Act was challenged by way of writ

petitions filed in this Court. The said writ petitions were

disposed of by this Court on 13.07.2010 in S.V. Joshi v. State

of Karnataka2, after taking note of the fact that the exercise of

collecting quantifiable data to justify the reservation under the

1994 Act, pursuant to judgments of this Court in M. Nagaraj v.

Union of India3 and Ashoka Kumar Thakur v. Union of

India4, had not been undertaken. Further, the State

Government was directed to place quantifiable data before the

Tamil Nadu Backward Classes Commission, on the basis of which

amongst other things, the Commission would decide the

quantum of reservation. No opinion was expressed on the

validity of the 1994 Act. Consequent to the judgment of this

Court in S.V. Joshi (supra), by G.O. Ms. No. 50 dated

11.07.2011, the Government of Tamil Nadu decided to continue

to implement reservation of 69 per cent as provided in the 1994

Act. It is mentioned therein that a report of the Tamil Nadu

Backward Classes Commission was submitted to the

Government on 08.07.2011 and subsequently placed before the 2 (2012) 7 SCC 41 3 (2006) 8 SCC 212 4 (2008) 6 SCC 1

8 | Page Cabinet, which was satisfied about the justification for

continuation of reservation of 69 per cent.

8. Thereafter, Writ Petition No.365 of 2012 was filed under

Article 32 of the Constitution challenging the 1994 Act, which is

pending consideration before this Court. On 21.03.2012, by

G.O. (Ms) No. 35, the Government prescribed additional terms of

reference to the Tamil Nadu Backward Classes Commission,

requesting the Commission to examine and recommend upon

the demand made by various communities to provide for

internal reservation, within the reservation provided to MBCs

and DNCs. There is a reference in the said G.O. to a writ

petition filed before the High Court of Madras as well as

representations made by members of the Vanniakula Kshatriya

community and other communities, seeking internal reservation

for each of these communities within the 20 per cent

reservation for MBCs and DNCs. On 13.06.2012, a report was

submitted by the Tamil Nadu Backward Classes Commission,

chaired by Justice M.S. Janarthanam (retd.) of the Madras High

Court. The Chairman recommended internal reservation of 10.5

per cent for the Vanniakula Kshatriyas, with the remaining six

members of the Commission submitting a dissent note.

9. The Tamil Nadu Backward Classes Commission was

reconstituted by G.O. (MS) No. 52 dated 08.07.2020 and Justice

9 | Page M. Thanikachalam (retd.) of the Madras High Court, was

appointed as the Chairman. One of the terms of reference

prescribed to the Backward Classes Commission was to examine

and recommend upon the demand made by various

communities to provide for internal reservation within the

reservation provided for MBCs. In addition thereto, another

Commission was constituted by G.O. (MS) No. 99 dated

21.12.2020, for the purpose of collection of caste-wise

quantifiable data and was headed by Justice A. Kulasekaran

(retd.) of the Madras High Court. The Government recognized

that the caste-wise data collected by the Ambasankar

Commission was more than three decades old and there was an

urgent need to collect caste and tribe wise data “as on date”. It

was stated in the said G.O. that the Commission was constituted

in response to the demands of various political parties and

community organizations.

10. A letter was written on 18.02.2021 by the Government to

Justice M. Thanikachalam, Chairman of the Tamil Nadu Backward

Classes Commission, to give his opinion regarding the possibility

of providing internal reservation amongst the communities listed

as MBCs and DNCs within the 20 per cent reservation made

available to them. Justice M. Thanikachalam promptly

responded on 22.02.2021, recommending sub-categorization

10 | P a g e amongst the MBCs and DNCs based on the proportion of their

population. Immediately thereafter, on 24.02.2021, a bill for

special reservation within the 20 per cent reserved for MBCs and

DNCs was placed before the State Legislative Assembly. On the

same day, the bill was passed and it received the assent of the

Governor on 26.02.2021. By the 2021 Act, reservation of seats

in educational institutions, including private educational

institutions, and reservation in appointment or posts in the

services under the State were provided in the following manner:

ten and a half per cent for ‘Part-MBC (V) Communities’, seven

per cent for ‘Part-MBC and DNC Communities’ and two and a half

per cent for ‘Part-MBC Communities’. In terms of the Schedule

annexed to the 2021 Act, ‘Part-MBC(V)’ consists of Vanniakula

Kshatriya community (including Vanniyar, Vanniya, Vannia

Gounder, Gounder or Kander, Padayachi, Palli and Agnikula

Kshatriya), ‘Part-MBC and DNC’ comprise 25 communities from

the MBCs and 68 DNCs and the remaining 22 communities of

MBCs come under the category of ‘Part-MBC’.

11. Writ petitions were filed in the High Court of Madras

assailing the constitutional validity of the 2021 Act. The High

Court framed the following points for consideration:

“(i) Whether the State Legislature has competency to make the impugned Act after 102nd Constitutional

11 | P a g e Amendment Act, 2018 and before 105 th Constitutional Amendment Act, 2021?

(ii) Whether an Act placed under the Ninth Schedule of the Constitution of India can be varied without amending the said Act?

(iii) Whether the State Government had the power to take any decision with regard to Backward Classes in the teeth of the Constitutional provisions, more particularly, Article 338-B of the Constitution of India?

(iv) Whether the State has power to provide reservation based on caste?

(v) Whether reservation can be provided without any quantifiable data on population, socio educational status and representation of the backward classes in the services?

(vi) Whether the impugned Act providing reservation of 10.5% to MBC(V), without any quantifiable data, is in violation of Articles 14, 15 and 16 of the Constitution of India?

(vii) Whether the sub-classification of MBC into three categories can be done solely based on adequate population data, in the absence of any objective criteria?”

12. The High Court answered points (i) to (iii) by holding that

the State Legislature has no competence to enact the 2021 Act.

The High Court further found that the internal reservation made

only on the basis of caste is violative of the Constitution.

Answering points (v) to (vii), the High Court was of the opinion

that there was no quantifiable data relating to the population,

socio-economic status and representation of the backward

classes in the services. Finally, on the basis of such conclusions,

12 | P a g e the 2021 Act was declared ultra vires the provisions of the

Constitution.

13. We have heard Dr. Abhishek Manu Singhvi, Mr. P. Wilson,

Mr. Rakesh Diwedi, Mr. Mukul Rohatgi, Mr. C.S. Vaidyanathan, Mr.

M. N. Rao and Mr. Radhakrishnan, learned Senior Counsel

appearing for the Appellants and Dr. Rajeev Dhawan, Mr. R.

Balasubramanian, Mr. K. M. Vijayan, Mr. S. Nagamuthu, Mr. Gopal

Sankaranarayanan, Mr. V. Prakash, Mr. Jaideep Gupta and Mr.

Colin Gonsalves, learned Senior Counsel appearing for the

Respondents.

II. Reference to a larger Bench

14. At the outset, it is necessary to deal with the preliminary

submission made by some Senior Counsel appearing for the

State of Tamil Nadu for reference of these appeals to a

Constitution Bench.

15. Dr. Abhishek Singhvi, Mr. Rakesh Dwivedi and Mr. Mukul

Rohatgi, learned Senior Counsel appearing for the State of Tamil

Nadu, submitted that the case involves interpretation of

constitutional provisions and therefore, it is appropriate that

these appeals are heard by a Constitution Bench. Mr. P. Wilson,

learned Senior Counsel appearing for the State and Mr. C.S.

Vaidyanathan and Mr. M. N. Rao, learned Senior Counsel

13 | P a g e appearing for the Appellants in Civil Appeals arising from SLP (C)

No. 19378 of 2021 and SLP (C) No. 19574 of 2021, respectively,

stated that there is no necessity of referring this matter to a

larger Bench.

16. Dr. Singhvi submitted that challenge to the 1994 Act is

pending consideration before a Constitution Bench of this Court.

He further stated that adjudication of the dispute in these

appeals would involve interpretation of the Constitution (One

Hundred and Fifth Amendment) Act, 2021 (hereinafter, the

“105th Amendment Act”). According to Dr. Singhvi, this Court

would have to decide whether the 105 th Amendment Act is

clarificatory and dates back to the introduction of Article 342-A.

It is advisable that the said issue is decided by a larger Bench.

Mr. Dwivedi, supplementing the submissions of Dr. Singhvi,

referred to the findings of the High Court in the impugned

judgment on the lack of legislative competence of the State

Legislature in enacting the 2021 Act with respect to Section 31-B

of the Constitution. He stated that the words “repeal or amend”

appearing in Article 31-B would have to be construed by this

Court in these appeals to reach a determinative finding. On this

ground, he urged for these appeals to be decided by a larger

Bench.

14 | P a g e

17. Appearing on behalf of the Respondents, Dr. Rajeev

Dhawan and Mr. Gopal Sankaranarayanan emphatically argued

that no ground has been made out for referring these appeals to

a larger Bench. Dr. Dhawan argued that the adjudication of the

dispute in these appeals does not involve interpretation of any

provision in the Constitution. Mr. Sankaranarayanan submitted

that reference to a Constitution Bench is made only when the

Court is satisfied that a substantial question of law as to

interpretation of the Constitution is involved, the determination

of which is necessary for disposal of the case. He placed

reliance on two judgments of this Court in Abdul Rahim Ismail

C. Rahimtoola v. State of Bombay 5 and Shrimanth

Balasaheb Patil v. Speaker, Karnataka Legislative

Assembly6. As both the stated conditions are not satisfied in

the present case, he stated that there is absolutely no need for

reference to a larger Bench.

18. The vires of Rule 3 of the Indian Passport Rules, 1950 and

Section 3 of the Indian Passport Act (34 of 1920) fell for

consideration before this Court in Abdul Rahim Ismail C.

Rahimtoola (supra). An argument was advanced in that case

that the matter should be referred to a Bench of five Judges as a

constitutional question was raised. While referring to an earlier

5 (1960) 1 SCR 285 6 (2020) 2 SCC 595

15 | P a g e judgment of this Court in Ebrahim Vazir Mavat v. State of

Bombay7, this Court held that the question of the impugned

provision and rule being in violation of Articles 19(1)(d) and

19(1)(e) had already been decided by this Court and therefore, it

cannot be said that any substantial question of law arises on the

interpretation of a constitutional provision. The request for

reference, was therefore, rejected.

19. In Shrimanth Balasaheb Patil (supra), this Court refused

to refer the dispute therein to a Constitution Bench on the

ground that there was no substantial question of law as to the

interpretation of the Constitution, the determination of which

was necessary for the disposal of the case. This Court was of

the opinion that the existence of substantial question of law

does not weigh on the stakes involved in the case, rather, it is

determined by the impact that the question would have on the

final determination of the case.

20. Article 145(3) of the Constitution provides that any case

involving substantial question of law as to the interpretation of

the Constitution should be heard by a minimum number of five

Judges. However, we are not in agreement with the submission

of Dr. Singhvi that the question of whether the 105 th Amendment

Act is clarificatory involves interpretation of the 105 th

7 1954 SCR 933

16 | P a g e Amendment Act. Relying upon the parliamentary debates, Dr.

Singhvi submitted that the amendment has been brought only

for the purpose of clarifying the Constitution (One Hundred and

Second Amendment) Act, 2018 and, therefore, the 105th

Amendment Act should be deemed to have come into force from

15.08.2018, i.e., the date from which Article 342-A was given

effect. There is no necessity of interpreting the 105 th

Amendment Act for the purpose of deciding the question raised

by Dr. Singhvi relating to the retrospectivity of the said

amendment.

21. The other point to be dealt with is the submission made by

Mr. Dwivedi on the question of interpretation of Article 31-B of

the Constitution. His submission is that the High Court erred in

holding that the State of Tamil Nadu did not have legislative

competence to enact a separate legislation varying the

provisions of the 1994 Act, placed in the Ninth Schedule, on the

ground that it falls foul of Article 31-B of the Constitution. The

submission of Mr. Dwivedi is that the words “repeal or amend” in

Article 31-B have to be interpreted to determine whether by

virtue of the said constitutional provision, the State lacked

legislative competence to enact a sui generis law on a subject

similar or ancillary to that of a statute placed in the Ninth

Schedule. Article 31-B has been construed by this Court in The

17 | P a g e Godavari Sugar Mills Ltd. v. S. B. Kamble 8, Shri Ram Ram

Narain Medhi v. State of Bombay 9, Sajjan Singh v. State

of Rajasthan10, Ramanlal Gulab Chand Shah v. State of

Gujarat11, State of Orissa v. Chandrasekhar Singh Bhoi 12

and State of Maharashtra v. Madhavrao Damodar Patil 13.

In view of the above judgments, which are discussed later, it is

not necessary for this Court to refer these appeals to a larger

Bench.

III. Legislative competence of the State Legislature in

enactment of the 2021 Act

A. Effect of the Constitution (One Hundred and Second

Amendment) Act, 2018 and the Constitution (One

Hundred and Fifth Amendment) Act, 2021

22. The impugned 2021 Act was passed on 26.02.2021.

Relevant provisions of the Constitution as introduced by the

Constitution (One Hundred and Second Amendment) Act, 2018

(hereinafter, the “102nd Amendment Act”), brought into force

with effect from 15.08.2018, and as amended by the 105 th

Amendment Act (italicized), which came into force from

15.08.2021 in terms of the notification dated 15.09.2021 issued

8 (1975) 1 SCC 696 9 1959 Supp (1) SCR 489 10 (1965) 1 SCR 933 11 (1969) 1 SCR 42 12 (1969) 2 SCC 334 13 (1968) 3 SCR 712

18 | P a g e by the Ministry of Social Justice and Empowerment, are as

below:

Article 338-B. National Commission for Backward Classes.-

(1) There shall be a Commission for the socially and educationally backward classes to be known as the National Commission for Backward Classes. xxx (9) The Union and every State Government shall consult the Commission on all major policy matters affecting the socially and educationally backward classes.

Provided that nothing in this clause shall apply for the purposes of clause (3) of article 342A.

Article 342-A. Socially and educationally backward classes.-

(1) The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the socially and educationally backward classes in the Central List which shall for the purposes of the Central Government be deemed to be socially and educationally backward classes in relation to that State or Union territory, as the case may be.

(2) Parliament may by law include in or exclude from the Central List of socially and educationally backward classes specified in a notification issued under clause (1) any socially and educationally backward class, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.

Explanation.- For the purposes of clauses (1) and (2), the expression “Central List” means the list of

19 | P a g e socially and educationally backward classes prepared and maintained by and for the Central Government.

(3) Notwithstanding anything contained in clauses (1) and (2), every State or Union territory may, by law, prepare and maintain, for its own purposes, a list of socially and educationally backward classes, entries in which may be different from the Central List. Article 366. Definitions.-

xxx

(26C) “socially and educationally backward classes” means such backward classes as are so deemed under article 342A for the purposes of the Central Government or the State or Union territory, as the case may be.

23. The High Court observed that the majority opinion of this

Court in Dr Jaishri Laxmanrao Patil v. Chief Minister14

concluded that the powers of the State Legislatures to identify

backward classes have been ousted and the power to modify the

list of socially and educationally backward classes (SEBCs) stood

vested in the Parliament, after insertion of Article 342-A in the

Constitution by the 102nd Amendment Act. The High Court

rejected the contention on behalf of the State that the 105 th

Amendment Act restored the power of the States to identify and

notify backward classes. The High Court was of the view that

the 2021 Act came into existence on 26.02.2021, whereas the

105th Amendment Act was enacted on 19.08.2021. Thus,

14 (2021) 8 SCC 1

20 | P a g e according to the High Court, the impugned legislation, which

was brought into effect prior to the enactment of the 105 th

Amendment Act, was unconstitutional in view of the majority

opinion in Dr Jaishri Laxmanrao Patil (supra).

24. It was contended on behalf of the State by Dr. Singhvi that

the 2021 Act does not identify, exclude or include any

community in relation to the list of backward classes. The said

exercise was already done by G.O. Ms. No. 28 dated 19.07.1994

under the 1994 Act. What is instead sought to be done by the

2021 Act is sub-classification of the MBCs and allocation of 10.5

per cent reservation for the Vanniakula Kshatriya community

within the 20 per cent earmarked for MBCs and DNCs, which is

not barred to be undertaken by the State by virtue of the 102 nd

Amendment Act. Though a writ petition challenging the 1994

Act is pending consideration, there has been no interim order

staying the operation of the said legislation. He proceeded to

submit that the 105th Amendment Act is essentially clarificatory

in nature. After the judgment of this Court in Dr Jaishri

Laxmanrao Patil (supra), the Parliament, in exercise of its

constituent power, recognised the imminent need of clarification

of Articles 338-B, 342-A and 366(26C) of the Constitution and

sought to make amendments to reflect what, according to Dr.

Singhvi, was always the intention behind these provisions, i.e.,

21 | P a g e for the States to continue to hold and exercise the power of

identification of backward classes for reservation to educational

institutions and services under the States. To emphasize this

claim, Dr. Singhvi took the Court through the Statement of

Objects and Reasons of the 105 th Amendment Act as well as

some of the debates and speeches in both houses of the

Parliament on the Constitution (One Hundredth and Twenty-

seventh Amendment) Bill, 2021. He further sought to impress

upon this Court that the only real and operative change brought

about by the 105th Amendment Act is the addition of clause (3)

to Article 342-A, which is essentially a procedural requirement

on a State / Union Territory to prepare and maintain a list of

SEBCs for its own purposes. He relied upon the judgment of this

Court in K.S. Paripoornan v. State of Kerala 15 to assert that

the 105th Amendment Act, being a clarificatory amendment

dealing predominantly with procedure and not a substantive

amendment, will have retrospective affect. Further, support was

sought from this Court’s judgment in Shri Prithvi Cotton Mills

Ltd. v. Broach Borough Municipality 16 to plead that while

undoubtedly the Parliament had the power to enact both the

102nd Constitution Amendment Act and the 105th Constitution

Amendment Act, the latter sought to clarify the circumstances

15 (1994) 5 SCC 593 16 (1969) 2 SCC 283

22 | P a g e which gave rise to the Court’s interpretation of the former and

would, thus, be retrospective.

25. In the alternative, Mr. Dwivedi argued that the judgment of

this Court in Dr Jaishri Laxmanrao Patil (supra) only excluded

the specification of SEBCs by the States under the 102 nd

Amendment Act. If a community was already included in the

State’s list of SEBCs, which had been saved by the said

judgment in exercise of the Court’s powers under Article 142 till

the notification of the List by the President,, there was no bar on

the State to provide for sub-classification.

26. The contention put forth on behalf of the Respondents by

Mr. Sankaranarayanan was that the State did not have

legislative competence to identify SEBCs on 26.02.2021, the

date the 2021 Act came into force. He submitted that the 102 nd

Constitutional Amendment Act was in force on 26.02.2021,

according to which SEBCs can be specified for the purposes of

the Constitution only by the President, according to the majority

opinion of this Court in Dr Jaishri Laxmanrao Patil (supra). He

supported the judgment of the High Court and contended that

the State lacked legislative competence to identify a particular

community for allocating 10.5 per cent reservation within the

MBCs. On the subject of the 105 th Amendment Act, it was

argued that the said amendment is unquestionably prospective.

23 | P a g e Wherever it had been the intention of the Parliament to give

retrospective effect to constitutional amendments, it was

specifically mentioned in the relevant amendment. Our

attention was drawn to the Constitution (First Amendment) Act,

1951, by which changes to Article 19(2) were given

retrospective effect from the date of commencement of the

Constitution and Article 31-B was inserted containing a

validating provision, thereby making it applicable prior to the

date of the amendment to all laws made before such date and

notwithstanding any judgment. We were also directed to Article

329-A, which excluded applicability of laws made prior to the

Constitution (Thirty-ninth) Amendment Act, 1975 to specified

elections and also validated such elections which may have

been declared to be void under law or any order made by any

court, before such commencement. Lastly, the Constitution

(Eighty-fifth Amendment) Act, 2001 was pointed out whereby

the changes to Article 16(4-A) were given retrospective effect

from 17.06.1995. It was submitted that, unlike the cited

instances, there is not even a slight indication in the 105 th

Amendment Act that it was intended to be retrospective in

operation.

27. Countering the submission made on behalf of the

Appellants as to the 105th Amendment Act being clarificatory in

24 | P a g e nature, it was further argued by Mr. Sankaranarayanan that a

judgment of this Court cannot be clarified by the Parliament, as

the Supreme Court is the final arbiter with respect to

interpretation of the Constitution. He cited Janapada Sabha

Chhindwara v. Central Provinces Syndicate Ltd. 17 and a

judgment of the U.S. Supreme Court in Plaut v. Spendthrift

Farm Inc.18, amongst others, to elaborate on the limitations on

the power of the Legislature to ‘clarify’ an interpretation of law

rendered by this Court. He further submitted that the 105 th

Amendment Act cannot be treated to be a validating provision,

as there has been no ‘invalidation’ of the 102 nd Amendment Act.

With the 102nd Amendment Act holding force at the time of

enactment of the 2021 Act, he asserted that earmarking 10.5

per cent to one community is tantamount to identifying a

community for the benefit of reservation, which can be done

only by the President as per the 102 nd Amendment Act and

therefore, the 2021 Act is an impermissible exercise on the part

of the State Legislature. He was vehement in his argument that

a statute which is void ab initio for lack of legislative

competence cannot be validated by a subsequent amendment

and placed reliance on Saghir Ahmad v. State of U.P. 19,

17 (1970) 1 SCC 509 18 514 U.S. 211 (1995) 19 (1955) 1 SCR 707

25 | P a g e M.P.V. Sundararamier & Co. v. State of A.P. 20 and Deep

Chand v. State of Uttar Pradesh 21. Dr. Dhawan, joining Mr.

Sankaranarayanan in asserting that the 105 th Amendment Act is

prospective in operation, contested the claim of the Appellants,

on the 105th Amendment Act being clarificatory and at the same

time removing the basis of the judgment of this Court in Dr

Jaishri Laxmanrao Patil (supra), as contradictory. According

to Dr. Dhawan, the amendment could either be clarificatory of

the Parliament’s intention or purport to remove the basis of this

Court’s judgment, but could not be both.

28. On the issue of the 105th Amendment Act, we are unable to

agree with the contention of the Appellants that the said

amendment is clarificatory and dates back to the introduction of

Article 342-A. The Respondents were right in submitting that the

Parliament had expressly specified the retrospectivity of an

amendment, whenever it intended to give any amendment

retrospective effect. As such we do not intend to scrutinize the

Statement of Objects and Reasons of and the parliamentary

debates on the Constitution (One Hundredth and Twenty-seventh

Amendment) Bill, 2021, as it is well established and also

reiterated in the majority decision in Dr Jaishri Laxmanrao

Patil that where provisions of a statute are ambiguous, the first

20 1958 SCR 1422 21 1959 Supp (2) SCR 8

26 | P a g e attempt should be to find meaning in the statute itself, failing

which the court may turn to external aids. We have not been

called upon to interpret the 105th Amendment Act and nor do we

find any vagueness as regards when the 105 th Amendment Act

has come into effect. The 105th Amendment Act cannot be said

to be a validating amendment, as admittedly the 102 nd

Amendment Act has not been invalidated by this Court. We do

not find it necessary to deal with the judgments cited by the

Respondents on the impermissibility of clarification of a

judgment of this Court by the Parliament, as even the Appellants

do not contend that the 105 th Amendment Act was made to

clarify the judgment of this Court in Dr Jaishri Laxmanrao

Patil (supra).

29. Rule 350-A of the Rules framed by the Broach Borough

Municipality, by which a rate on land was fixed at a percentage

of the valuation based upon capital value, was declared ultra

vires Section 73 of the Bombay Municipal Boroughs Act, 1925 in

Patel Gordhandas Hargovindas v. Municipal

Commissioner, Ahmedabad22. The Legislature of Gujarat

passed the Gujarat Imposition of Taxes by Municipalities

(Validation) Act, 1963, validating the rates so imposed. The said

validating legislation was challenged before this Court in Shri

22 (1964) 2 SCR 608

27 | P a g e Prithvi Cotton Mills Ltd. (supra). This Court was of the

opinion that the defect pointed out by the judgment in Patel

Gordhandas Hargovindas (supra), being that Section 73 had

not authorised the levy of a tax but that of a “rate”, which had

acquired a special meaning in legislative practice as held by this

Court, was cured by the validating legislation. The Court upheld

the validating statute on the ground that a new meaning to the

expression "rate" was legislatively ascribed, thus putting out of

action the effect of the decisions of the courts to the contrary.

The Appellants cannot take aid of this judgment to argue that

the 105th Amendment Act has to be given retrospective effect,

since the 105th Amendment Act cannot be treated as a validating

amendment as no part of the 102 nd Amendment Act has been

invalidated. The contention of the Appellants that the 105 th

Amendment Act, being an amendment relating to procedure,

has to be construed as retrospective along the lines of K.S.

Paripoornan (supra), is misconceived. Identifying certain

communities which are to be deemed as SEBCs for the purposes

of the Central Government and the States, respectively, cannot

be said to be a matter of procedure. The procedural aspect of

the 102nd Amendment Act and the 105 th Amendment Act is only

the manner of publication of the lists of SEBCs, whereas the

substantive element of the said amendments is identifying and

28 | P a g e recognising certain communities as SEBCs. Thus, we see no

force in the submission of the Appellants that the 105 th

Amendment Act is clarificatory in nature and has to be given

retrospective effect from the date on which the 102 nd

Amendment Act came into effect.

30. At the time of enactment of the 2021 Act, there is no doubt

therefore, that the 102nd Amendment Act held force. The

majority in Dr Jaishri Laxmanrao Patil (supra) was of the view

that identification of SEBCs and their inclusion in a list to be

published under Article 342-A can be done only by the President,

after the insertion of Articles 366(26C) and 342-A. The list of

SEBCs to be notified by the President under Article 342-A shall

be the only list for the purposes of the Constitution. It was

concluded in the said judgment that the change brought about

by the 102nd Amendment Act, especially under Article 342-A,

was only with respect to the process of identification of SEBCs

and their list. It was categorically held that the power to frame

policies and legislation with regard to all other matters, i.e., the

welfare schemes for SEBCs, setting up of institutions, grants,

scholarships, extent of reservation and special provisions under

Articles 15(4), 15(5) and 16(4) are entirely with the State

Government in relation to its institutions and its public services.

It was further clarified that the extent of reservation, the kind of

29 | P a g e benefits, the quantum of scholarships, the number of schools

which are to be specially provided under Article 15(4) or any

other beneficial or welfare scheme conceivable under Article

15(4) can all be achieved by the State through its legislative and

executive powers. Recognising that the President was yet to

prepare and publish a list under Article 342-A(1), the Court held

that a comprehensive list should be published expeditiously and

in exercise of its powers under Article 142 of the Constitution,

the Court directed till the time of the publication of such list, the

SEBC lists prepared by the States would continue to be

operative.

31. Backward Classes, MBCs and DNCs have been identified for

reservation in educational institutions and for public

employment by G.O. Ms. No. 28 dated 19.07.1994 under the

1994 Act. 30 per cent reservation was provided for Backward

Classes and 20 per cent for MBCs and DNCs together. The

Vanniakula Kshatriya community has consistently featured in the

list of MBCs since 1957 and was also included in the list of MBCs

in G.O. Ms. No. 28 dated 19.07.1994, pursuant to the 1994 Act.

By the 2021 Act, 10.5 per cent out of 20 per cent reservation for

MBCs and DNCs was earmarked for the Vanniakula Kshatriya

community. Identification of the Vanniakula Kshatriyas as a

community within the MBCs was not the subject-matter of the

30 | P a g e 2021 Act, as this exercise had already been completed pursuant

to the 1994 Act. Under the 2021 Act, sub-classification of the

MBCs and DNCs and apportionment of a particular percentage of

reservation is for the purpose of determining the extent of

reservation for communities within the MBCs and DNCs, which is

a permissible exercise of power by the State Government,

according to the majority judgment in Dr. Jaishri Laxmanrao

Patil (supra). What the 102nd Amendment prohibits the State

from undertaking is identifying a caste as SEBC or including or

excluding a community from the list notified by the President.

We are not in agreement with the contention of the Respondents

that determining the extent of reservation for a community

amongst the list of Most Backward Classes amounts to

identification. In view thereof, the High Court has committed an

error in holding that the 2021 Act is violative of Article 342-A.

B. Permissibility of sub-classification amongst backward

classes

32. Placing reliance on the judgment of this Court in E.V.

Chinnaiah v. State of A.P.23, the High Court held that all

castes including the sub-castes, races, tribes mentioned in the

list are to be members of one group for the purpose of the

Constitution and cannot be further sub-divided so as to give

23 (2005) 1 SCC 394

31 | P a g e more preference to a miniscule portion thereof. The High Court

also observed that as per E.V. Chinnaiah (supra), all the castes

included in the Schedule under Article 341 of the Constitution

would be ‘deemed to be’ one class of persons.

33. On behalf of the Appellants, it was contended that the

High Court committed an error in relying upon E.V. Chinnaiah

(supra), which pertained to the interpretation of Articles 341

and 342, to come to the conclusion that classification is not

permissible even in respect of backward classes. It was argued

that it is clear from Indra Sawhney v. Union of India 24 that

sub-classification of backward classes is permissible. Stress was

also laid on the fact that the correctness of E.V. Chinnaiah

(supra) has been referred for consideration by a larger Bench in

State of Punjab v. Davinder Singh 25. It was urged that the

permissibility of sub-classification amongst backward classes as

has been done in the 2021 Act cannot be contested.

Reasonableness of sub-classification is a separate question to

be determined by this Court.

34. On the other hand, Dr. Rajeev Dhawan and Mr. R.

Balasubramanian submitted that backward classes can be sub-

divided into backward and more backward classes in

accordance with Indra Sawhney (supra), but further 24 1992 Supp (3) SCC 217 25 (2020) 8 SCC 1

32 | P a g e differentiation of MBCs is not permissible as it would amount to

micro-classification, as correctly held by the High Court.

35. The Andhra Pradesh Scheduled Castes (Rationalisation of

Reservations) Act, 2000 was challenged before the High Court of

Andhra Pradesh. 57 castes enumerated in the Presidential list

of Scheduled Castes were categorised into four groups based on

inter se backwardness and separate quotas were fixed in

reservation for each of these groups by the State of Andhra

Pradesh. A five-Judge Bench of the High Court by a majority of

4:1 dismissed the writ petitions. In E.V. Chinnaiah (supra), the

main contention of the appellants therein before this Court was

that the State lacked legislative competence in enacting the

said legislation which, according to the appellants, was solely

meant for subdividing or subgrouping the castes enumerated in

the Presidential list, as under Article 341(2) bifurcation of the

Presidential list can be done only by the Parliament.

Alternatively, it was submitted that this subgrouping amounted

to micro-classification of the Scheduled Castes, in violation of

Article 14 of the Constitution. Three questions were framed by

this Court in E.V. Chinnaiah (supra), as listed below:

“(1) Whether the impugned Act is violative of Article 341(2) of the Constitution of India?

(2) Whether the impugned enactment is constitutionally invalid for lack of legislative competence?

33 | P a g e (3) Whether the impugned enactment creates subclassification or micro-classification of Scheduled Castes so as to violate Article 14 of the Constitution of India?”

36. In E.V. Chinnaiah (supra), this Court was of the opinion

that Article 341 made it clear that the State, either by legislative

or executive action, had no power of “disturbing” the

Presidential list of Scheduled Castes and therefore, any

executive or legislative act of the State which interferes,

disturbs, rearranges, regroups or reclassifies various castes in

the Presidential list is violative of Article 341 and the scheme of

the Constitution. Further, it was held that castes identified by

the President under Article 341 formed a class in themselves

and any division of these classes based on any consideration

would amount to tinkering with the Presidential list. As the

primary object of the impugned enactment in that case was to

create groups of sub-castes in the list of Scheduled Castes, this

Court concluded that the State does not have legislative

competence to divide the Scheduled Castes, by tracing its claim

to Entry 41 of List II and Entry 25 of List III. Insofar as the

contention of sub-classification of Scheduled Castes is

concerned, this Court rejected the contention of the respondents

therein that the ratio of Indra Sawhney (supra) applied to the

facts of E.V. Chinnaiah (supra). It was pointed out that sub-

34 | P a g e classification dealt with by Indra Sawhney (supra) related only

to ‘Other Backward Classes’ and not Scheduled Castes as the

judgment in Indra Sawhney (supra) itself had expressly held

that subdivision of ‘Other Backward Classes’ is not applicable to

Scheduled Castes and Scheduled Tribes, the reason for which,

according to this Court in E.V. Chinnaiah (supra), was that the

Constitution itself had kept the Lists of Scheduled Castes and

Scheduled Tribes out of interference by the State Governments.

37. A close scrutiny of E.V. Chinnaiah (supra) would make it

clear that the High Court was wrong in relying upon the said

judgment to hold that sub-classification of backward classes is

beyond the legislative competence of the State. E.V.

Chinnaiah (supra) primarily relates to the power of the State

legislature in categorising the Scheduled Castes identified under

Article 341 into four groups, the effect of which was held to be

modification of the Presidential list, which Article 341 precluded

the States from doing. As was clearly expressed by this Court in

E.V. Chinnaiah (supra), the issue of sub-classification of

backward classes was dealt with in Indra Sawhney (supra) and

it is pertinent for us to refer to the following paragraphs

authored by Jeevan Reddy, J., after referring to observations of

35 | P a g e Chinnappa Reddy, J. in K.C. Vasanth Kumar v. State of

Karnataka26:

“802. We are of the opinion that there is no constitutional or legal bar to a State categorising the backward classes as backward and more backward. We are not saying that it ought to be done. We are concerned with the question if a State makes such a categorisation, whether it would be invalid? We think not. Let us take the criteria evolved by Mandal Commission. Any caste, group or class which scored eleven or more points was treated as a backward class. Now, it is not as if all the several thousands of castes/groups/classes scored identical points. There may be some castes/groups/classes which have scored points between 20 to 22 and there may be some who have scored points between eleven and thirteen. It cannot reasonably be denied that there is no difference between these two sets of castes/groups/classes. To give an illustration, take two occupational groups viz., goldsmiths and vaddes (traditional stone-cutters in Andhra Pradesh) both included within Other Backward Classes. None can deny that goldsmiths are far less backward than vaddes. If both of them are grouped together and reservation provided, the inevitable result would be that goldsmiths would take away all the reserved posts leaving none for vaddes. In such a situation, a State may think it advisable to make a categorisation even among other backward classes so as to ensure that the more backward among the backward classes obtain the benefits intended for them. Where to draw the line and how to effect the sub-

26 1985 Supp SCC 714

36 | P a g e classification is, however, a matter for the Commission and the State — and so long as it is reasonably done, the Court may not intervene. In this connection, reference may be made to the categorisation obtaining in Andhra Pradesh. The Backward Classes have been divided into four categories. Group A comprises “Aboriginal tribes, Vimukta jatis, nomadic and semi- nomadic tribes etc.” Group B comprises professional group like tappers, weavers, carpenters, ironsmiths, goldsmiths, kamsalins etc. Group C pertains to “Scheduled Castes converts to Christianity and their progeny”, while Group D comprises all other classes/communities/groups, which are not included in Groups A, B and C. The 25% vacancies reserved for backward classes are sub-divided between them in proportion to their respective population. This categorisation was justified in Balram [(1972) 1 SCC 660 : (1972) 3 SCR 247] . This is merely to show that even among backward classes, there can be a sub- classification on a reasonable basis.

803. There is another way of looking at this issue. Article 16(4) recognises only one class viz., “backward class of citizens”. It does not speak separately of Scheduled Castes and Scheduled Tribes, as does Article 15(4). Even so, it is beyond controversy that Scheduled Castes and Scheduled Tribes are also included in the expression “backward class of citizens” and that separate reservations can be provided in their favour. It is a well-accepted phenomenon throughout the country. What is the logic behind it? It is that if Scheduled Tribes, Scheduled Castes and Other Backward Classes are lumped together, OBCs will take away all the vacancies leaving Scheduled Castes and Scheduled Tribes high

37 | P a g e and dry. The same logic also warrants categorisation as between more backward and backward. We do not mean to say — we may reiterate — that this should be done. We are only saying that if a State chooses to do it, it is not impermissible in law.”

Sawant, J. was also of the opinion that sub-classification of

backward and more backward classes would be permissible,

provided that separate quotas are provided for each of them. It

is crystal clear from the judgment of Indra Sawhney (supra)

that backward classes can be sub-classified. Whether the sub-

classification under the 2021 Act is reasonable will be addressed

subsequently but no doubt can be entertained about the

permissibility of sub-classification amongst backward classes.

38. By drawing strength from E.V. Chinnaiah (supra), the

High Court was of the firm view that there cannot be any sub-

division of castes including sub-castes, races and tribes

mentioned in the Presidential list. In E.V. Chinnaiah (supra), it

was held that castes once included in the Presidential list form a

class by themselves and any division of these classes or persons

based on any consideration would amount to tinkering with the

Presidential list. According to the plural opinion in Dr Jaishri

Laxmanrao Patil (supra), the list of SEBCs with respect to

States was to be notified by the President, after due consultation

with the National Commission for Backward Classes under

38 | P a g e Article 342-A. Admittedly, this was not done till the time of

enactment of the 2021 Act. As stated earlier, exercising powers

under Article 142 of the Constitution, this Court in Dr Jaishri

Laxmanrao Patil (supra) directed that till the publication of the

list of SEBCs by the President, the SEBC lists prepared by the

States would continue to hold the field. Thus, even on

consideration of the law laid down in E.V. Chinnaiah (supra), it

is clear from the above that a Presidential list for SEBCs did not

come into existence and the question of sub-division of the said

list by way of the 2021 Act does not arise. Therefore, the finding

of the High Court in this regard is erroneous. C. Bar on Competence under Article 31-B of the

Constitution

39. The constitutionality of the 2021 Act was assessed by the

High Court under Article 31-B of the Constitution. The High

Court observed that a statute placed in the Ninth Schedule shall

continue to be in force, till it is amended or repealed. In the

present set of facts, the High Court was of the view that without

amending the 1994 Act, which provides for undivided 20 per

cent reservation to MBCs and DNCs together, the State lacked

the legislative competence to provide internal reservation to one

community from amongst that group of communities by way of a

separate but similar legislation. Reference was drawn to

39 | P a g e amendments made by the State of Tamil Nadu to statutes placed

in the Ninth Schedule, which were also included in the Ninth

Schedule.

40. Dr. Singhvi, referring to Section 7 of the 1994 Act,

submitted that the scheme of reservation under the 2021 Act

was not a new scheme over and above the reservation provided

for under the 1994 Act. Section 7 of the 1994 Act expressly

provided for classification and sub-classification of the

‘Backward Classes of citizens’ by the State by notification, for

the purposes of the said statute. It was pointed out by Dr.

Singhvi that the power under Section 7 had been exercised by

the State earlier as well in enacting the Tamil Nadu Backward

Class Christians and Backward Class Muslims (Reservation of

Seats in Educational Institutions Including Private Educational

Institutions and of Appointments or Posts in the Services Under

the State) Act, 2007 (hereinafter, the “2007 Act”), whereunder

three and a half per cent reservations were granted to

‘Backward Class Muslims’ from the 30 per cent reserved for

Backward Classes under the 1994 Act and which continues to be

in force till date. Accordingly, Dr. Singhvi contended that the

High Court was incorrect in its treatment of the 2021 Act as a

special statute varying the provisions of the 1994 Act.

40 | P a g e

41. Mr. Dwivedi proffered arguments on a different aspect of

this issue. He submitted that the High Court completely

misunderstood the scope of Article 31-B. While Article 31-B

provided protection to statutes placed within the Ninth Schedule

against challenge in terms of Part III of the Constitution, it

cannot be interpreted to restrict the plenary powers of

legislation under Article 246 and alter the federal distribution of

powers. Additionally, he urged that Article 31-B did not

prescribe any procedure for amendment or repeal of a statute in

the Ninth Schedule and therefore, the High Court’s observation

on amending statutes also being placed in the Ninth Schedule

was only evidence of the procedure adopted with respect to

certain amending statutes and not a requirement of every

amending statute. Assuming that this Court was not inclined to

accept that the 2021 Act was in exercise of Section 7 of the

1994 Act, even then the 2021 Act in its own right is a valid piece

of legislation, without the protection of Article 31-B as the

incurred consequence. To support his submissions, he placed

reliance on judgments of this Court in Sri Ram Ram Narain

Medhi (supra), Chandra Sekhar Singh Bhoi (supra),

Godavari Sugar Mills Ltd. (supra) and UCO Bank v. Dipak

Debbarma27.

27 (2017) 2 SCC 585

41 | P a g e

42. Countering these submissions, the Respondents contended

that a statute placed in the Ninth Schedule becomes part of the

Constitution and cannot be amended or added to by the State

Legislature. Mr. Balasubramanian argued that the 2021 Act is in

conflict with the 1994 Act inasmuch as the 1994 Act provides for

composite reservation of 20 per cent for MBCs and DNCs

whereas under the 2021 Act, 10.5 per cent has been delineated

for one community from amongst the communities comprising

MBCs and DNCs.

43. Article 31-B prescribes that no statute placed in the Ninth

Schedule shall be void on the ground that it is inconsistent with,

takes away or abridges any right conferred under Part III of the

Constitution. The statute placed in the Ninth Schedule shall

continue in force, subject to the powers of the competent

Legislature to repeal or amend it. According to this Court in

Godavari Sugar Mills Ltd. (supra), the object of Article 31-B,

which was inserted by the Constitution (First Amendment) Act,

1951, is to give a blanket protection to the acts and regulations

specified in the Ninth Schedule and the provisions of those acts

and regulations against any challenge to those acts, regulations

or the provisions thereof on the ground that they are

inconsistent with or take away or abridge any of the rights

conferred by Part III of the Constitution. The result is that

42 | P a g e howsoever violative of the fundamental rights may be the

provisions of an act or regulation, once the act or regulation is

specified in the Ninth Schedule it would not be liable to be

struck down on that score. This immunity against the above

challenge would be available notwithstanding any judgment,

decree or order of any court or tribunal to the contrary. The

effect of Article 31-B, however, is not to prevent challenge, to

an enactment on the ground that it is beyond the legislative

competence of the Legislature which enacted it. It is also plain

from the language of the Article that the specification of an act

or regulation would not prevent the competent legislature to

repeal or amend it. This Court was of the further opinion that:

“16. The protection of Article 31B can also not be extended to a new provision inserted as a result of amendment on the ground that it is ancillary or incidental to the provisions to which protection has already been afforded by including them in the Ninth Schedule. Article 31B carves out a protected zone. It has inserted Ninth Schedule in the Constitution and gives immunity to the Acts, Regulations and provisions specified in the said schedule from being struck down on the ground of infringement of Fundamental Rights even though they are violative of such rights. Article 31B thus excludes the operation of Fundamental Rights in matters dealt with by those Acts, Regulations and provisions. Any provision which has the effect of making an inroad into the guarantee of Fundamental Rights in the very nature of things should be construed very

43 | P a g e strictly, and it would not, in our opinion, be permissible to widen the scope of such a provision or to extend the frontiers of the protected zone beyond what is warranted by the language of the provision. No Act, Regulation or provision would enjoy immunity and protection of Article 31B unless it is expressly made a part of the Ninth Schedule. The entitlement to protection being confined only to the Acts, Regulations and provisions mentioned in the Ninth Schedule, it cannot be extended to provisions which were not included in that schedule. This principle would hold good irrespective of the fact whether the provision to which entitlement to protection is sought to be extended deals with new substantive matters or whether it deals with matters which are incidental or ancillary to those already protected.”

While dealing with the findings of the High Court in the

impugned judgment therein, made on the basis of an earlier

decision of this Court in Ramanlal Gulab Chand Shah (supra),

this Court in Godavari Sugar Mills (supra) observed that a

legislation, which is incidental or ancillary to a statute protected

under Article 31-B, can be assailed on the ground of

inconsistency with Part III of the Constitution.

44. In our view, the 2021 Act cannot be said to be suffering

from the vice of lack of legislative competence, merely because

it deals with matters associated with or ancillary to the 1994 Act.

Classification of backward classes has been made by the 1994

Act, which was placed under the Ninth Schedule. It is clear from

44 | P a g e the judgments referred to above that the State has the power to

amend or repeal a statute which has been placed under the

Ninth Schedule. It is settled law that any amendment made to a

statute placed under the Ninth Schedule does not get protection

under Article 31-B, unless the said amendment is also included

in the Ninth Schedule. Having scrutinised the above judgments

on the objective of Article 31-B, we are unable to see how Article

31-B operates as a hurdle for the State to enact statutes on

matters ancillary to the 1994 Act. Article 31-B does not place

any fetter on the power of the State to legislate on such matters

nor does it prescribe any mandatory requirement for such

legislations to be included within the Ninth Schedule, as has

been understood by the High Court. The consequence of the

2021 Act not being placed in the Ninth Schedule is that it can be

assailed as being violative of the fundamental rights enshrined

under Part III of the Constitution, which the Appellants have

fairly admitted. It is worthwhile for us to reiterate the

authoritative pronouncement of a five-Judge Bench of this Court

in Maharaj Umeg Singh v. State of Bombay 28, relevant

portion of which is reproduced below:

“13. … The legislative competence of the State Legislature can only be circumscribed by express prohibition contained in the Constitution itself and

28 (1955) 2 SCR 164

45 | P a g e unless and until there is any provision in the Constitution expressly prohibiting legislation on the subject either absolutely or conditionally, there is no fetter or limitation on the plenary powers which the State Legislature enjoys to legislate on the topics enumerated in the Lists 2 and 3 of the Seventh Schedule to the Constitution. It was conceded on behalf of the petitioners that the topic of legislation which was covered by the impugned Act was well within List 2 of the said schedule and the vires of the impugned Act could not be challenged on that ground…” As no express prohibition stems from Article 31-B on the

powers of the State Legislature to legislate on matters

incidental to statutes placed within the Ninth Schedule, we are

not in agreement with the finding of the High Court that the

State Legislature lacked legislative competence to enact the

2021 Act on account of Article 31-B.

45. The 2021 Act determined the extent of reservation for

communities which had already been identified and categorised

by the 1994 Act. Assuming that the State Legislature carried out

an amendment to the 1994 Act, the said amendment would not

have received the protection under Article 31-B. The question

that remains to be answered is whether the determination of

internal reservation for already identified communities by a

separate legislation can be said to be in conflict with the 1994

Act. This Court is of the considered view that detailing the

46 | P a g e extent of reservation for communities which have already been

identified as MBCs and DNCs cannot be said to be contrary to

the 1994 Act. The preamble of the 1994 Act states that in view

of requests from various political parties and social forums

representing backward classes to consider the ramifications of

the judgment of this Court in Indra Sawhney, the State

Government had decided that the existing level of 69 per cent

reservation in admission to educational institutions in the State

and services under the State shall be continued. Determination

of extent of reservation for specific communities within the

‘Backward Classes of citizens’ was not the subject matter of the

1994 Act.

46. The conclusion of the High Court that determining the

extent of reservation amongst the ‘Backward Classes of citizens’

can be done only by amending the 1994 Act in view of Article

31-B is unsustainable. It is made clear that it was open to the

State to have amended the 1994 Act. At the same time, it

cannot be said that the State Legislature lacked competence to

enact a legislation for determining the extent of reservation

amongst the MBCs and DNCs.

D. Effect of the 1994 Act receiving Presidential Assent

under Article 31-C of the Constitution

47 | P a g e

47. As the 1994 Act received the assent of the President of

India, the High Court was of the opinion that the same cannot be

varied by the State Government. It was contended on behalf of

the Appellants that the High Court was completely wrong in

holding that the State does not have the competence to enact

the 2021 Act on the ground that it has not received the assent of

the President of India. It was pointed out by Mr. Dwivedi that the

1994 Act had received assent of the President under Article 31-C

as it was enacted for giving effect to the policy of the State

towards securing principles laid down in Part IV of the

Constitution, in particular, under Article 38, clauses (b) and (c) of

Article 39 and Article 46. The 1994 Act contained an express

declaration to this effect in Section 2 thereof. He argued that

the State is at liberty to decide whether a statute should receive

the protection of Article 31-C. Mr. Singhvi submitted that as the

impugned legislation is pursuant to the mandate of Section 7 of

the 1994 Act, which had received the assent of the President, it

is not necessary for the State to have reserved the 2021 Act for

consideration of the President, by relying upon judgments of this

Court in Arnold Rodricks v. State of Maharashtra 29 and

Rajiv Sarin v. State of Uttarakhand30.

29 (1966) 3 SCR 885 30 (2011) 8 SCC 708

48 | P a g e

48. Mr. Vaidyanathan relied upon a judgment of this Court in

State of Kerala v. Peoples Union for Civil Liberties 31 as

well as judgments of the High Court of Bombay in Dattatray

Yedu Thombre v. State of Maharashtra32 and Citizens of

Deulgaon Raja v. State of Maharashtra 33 and a judgment of

the High Court of Madhya Pradesh in Rasal Singh v. State of

M.P.34 to submit that assent of the President is not required for

enacting a statute with respect to a matter which is within the

purview of List II of Seventh Schedule of the Constitution and

further, that amendment to a statute, which had received the

assent of the President, can be carried out with the assent of the

Governor, as long as provisions of the amending statute do not

fall within the mischief of Article 254. Mr. Vaidyanathan

contended that assent of the President had not been sought

while granting separate reservation provided to the ‘Backward

Class Muslims’ under the 2007 Act and to the Arunthathiyars,

within the 18 per cent reserved for Scheduled Castes, under the

Tamil Nadu Arunthathiyars (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 Scheduled Castes) Act, 2009.

31 (2009) 8 SCC 46 32 2019 SCC Online Bom 4408 33 2002 SCC Online Bom 735 34 1978 SCC Online MP 12

49 | P a g e

49. Laws giving effect to the policy of the State towards

securing principles laid down in clauses (b) and (c) of Article 39

of the Constitution are saved from challenge as being

inconsistent with Articles 14 and 19 of the Constitution, as per

Article 31-C. Where such law is made by the State Legislature, it

shall not receive the benefit under Article 31-C unless it receives

the assent of the President. The 1994 Act received the assent of

the President as it was made for securing the Directive Principles

under Article 38, clauses (b) and (c) of Article 39 and Article 46.

The High Court proceeded to hold that the 2021 Act has varied

the provisions of the 1994 Act, which could not have been done

by the Governor.

50. As already stated, the 2021 Act deals with matters which

are incidental or ancillary to those contained in the 1994 Act

and the State is competent to legislate on such matters. It is for

the State to decide whether a legislation, which is not

repugnant to any law made by the Parliament on the same

subject matter, should receive the assent of the President or

not. If the assent of the President is not sought, the

consequence is that the statute made by the State is

susceptible to challenge as being violative of Article 14 or

Article 19. However, it cannot be said that the State cannot

legislate on subject matters, ancillary to that of an earlier

50 | P a g e statute which has received the assent of the President, or that it

is mandatory for the State Government to seek the assent of

the President for a legislation which the State is otherwise

competent to enact. In Indra Sawhney (supra), Jeevan Reddy,

J., writing for himself and three other judges, conclusively

clarified that Article 16(1) is a facet of Article 14 and just as

Article 14 permits reasonable classification, so does Article

16(1), which means that appointment and / or posts can be

reserved in favour of a class under clause (1) of Article 16. For

assuring equality of opportunity, it may well be necessary in

certain situations to treat unequally situated persons unequally.

It was further noted that Article 16(4) is an instance of such

classification, put in to place the matter beyond controversy.

Where the State finds it necessary – for the purpose of giving

full effect to the provision of reservation to provide certain

exemptions, concessions or preferences to members of

backward classes, it can extend the same under clause (4) itself.

Pandian, J. while tracing the legislative history of Article 15(4),

observed that the object of Article 15(4), introduced by the

Constitution (First Amendment) Act, 1951, was to bring Articles

15 and 29 in line with Articles 16(4), 46 and 340 and to make it

constitutionally valid for the State to reserve seats for backward

class of citizens, Scheduled Castes and Scheduled Tribes in

51 | P a g e public educational institutions as well as to make other special

provisions as may be necessary for their advancement. From

these observations and findings, it is clear that States are

empowered to make reservation for backward classes under

Articles 15(4) and 16(4). We see no force in the submissions of

Mr. Vijayan, who attempted to convince this Court that the State

Legislature’s source of power for enacting the 2021 Act cannot

be traced to any Entry in the Lists under the Seventh Schedule

of the Constitution.

51. As referenced while dealing with the competence of the

State to enact the 2021 Act vis-à-vis Article 31-B, this Court in

Maharaj Umeg Singh (supra) has unequivocally clarified that

no fetter can be implied on the power of the State to legislate,

unless it is expressly prohibited under the Constitution. Without

any such express bar under Article 31-C, the State’s

competence to enact the 2021 Act with the Governor’s assent

cannot be faulted with nor can the State be compelled by the

courts to reserve the 2021 Act for assent of the President. In

view of our conclusion, we do not deem it necessary to deal

with the judgments relied upon by the Appellants.

IV. Caste-based classification

52. Internal reservation of 10.5 per cent for the Vanniakula

Kshatriyas was challenged by the writ petitioners before the

52 | P a g e High Court as being violative of Articles 14, 15 and 16 of the

Constitution. Their contention, that internal reservation was

only on the basis of caste which amounted to discrimination to

the other communities, was accepted by the High Court.

53. The point that arises for our consideration is whether the

internal reservation of 10.5 per cent provided for the Vanniakula

Kshatriyas is on the basis of caste alone and whether the High

Court is right in holding that such classification on the basis of

caste is impermissible. This Court in K.C. Vasanth Kumar

(supra) defined and described caste as below:

“What then is a caste? Though caste has been discussed by scholars and jurists, no precise definition of the expression has emerged. A caste is a horizontal segmental division of society spread over a district or a region or the whole State and also sometimes outside it. Homo Hierarchicus is expected to be the central and substantive element of the caste-system which differentiates it from other social systems. The concept of purity and impurity conceptualises the caste system …. There are four essential features of the caste-system which maintained its homo hierarchicus character: (1) hierarchy; (2) commensality; (3) restrictions on marriage; and (4) hereditary occupation. Most of the castes are endogamous groups. Inter-marriage between two groups is impermissible. But ‘Pratilom’ marriages are not wholly known.”

53 | P a g e In Indra Sawhney (supra), Jeevan Reddy, J. observed that caste

is nothing but a social class — a socially homogeneous class.

Jeevan Reddy, J. then proceeded to answer the question relating

to identification of backward classes. He was of the considered

view that there is no recognised method for identification of

backward classes. He held that caste can be the starting point

for identifying backward classes, and wherever they are found,

the criteria evolved for determining backwardness can be

applied to see whether they satisfy the criteria.

54. It is clear from the above that caste can be the basis for

providing reservation, but it cannot be the sole basis. At present

we are concerned with sub-classification. As stated, it has been

held in Indra Sawhney (supra) that there is no constitutional or

legal bar to a State categorising backward classes as backward

and more backward. In the present case, sub-classification for

providing internal reservation to a particular community, i.e., the

Vanniakula Kshatriyas, will also be governed by the same

principle, namely, while caste can be the starting point for

providing internal reservation, it is incumbent on the State

Government to justify the reasonableness of the sub-

classification and demonstrate that caste has not been the only

basis. We are not at present dealing with the inquiry of other

factors relied on by the State Government to justify internal

54 | P a g e reservation for the Vanniakula Kshatriyas. We propose to deal

with that point subsequently. At present, we have answered the

question relating to caste being the starting basis for providing

reservation and for sub-classification of backward classes so as

to provide for internal reservation.

V. Scrutiny of the report of Thanikachalam, J. and

constitutional validity of the 2021 Act

55. According to the High Court, there was no quantifiable data

available with the State of Tamil Nadu as on the date of

enactment of the 2021 Act, which would support their exercise

of enabling powers under Articles 15(4) and 16(4) of the

Constitution. The High Court was of the view that sub-

classification of MBCs and DNCs into three categories for

apportionment of reservation under the 2021 Act has been done

without any objective criteria and aside from the population

figures of 1983, no data was available on (i) the degree of

backwardness of the classes for sub-classification; (ii)

inadequate representation of these sub-classes; and (iii)

efficiency of the administration. Additionally, the High Court has

relied on the judgments of this Court in Indra Sawhney (supra),

Jarnail Singh v. Lachhmi Narain Gupta 35 and Dr Jaishri

Laxmanrao Patil (supra) to hold that the 2021 Act, being an

attempt to provide proportionate representation, is against the 35 (2018) 10 SCC 396

55 | P a g e law laid down by this Court, as it is settled law that adequate

representation is not proportionate representation. It was

concluded by the High Court that sub-classification would be

permissible only on the ground that “a class is far far backward

than the advanced sections of that class”, however, the

classification under the 2021 Act was not based on any

intelligible differentia as there was nothing on record to show

that the other 115 communities were more advanced than the

Vanniakula Kshatriyas using any yardstick. Therefore, the

classification was made only on the basis of caste, which is

unsustainable in law.

56. Mr. Rao, Mr. Vaidyanathan and Mr. Wilson relied on the

reports of the Sattanathan Commission and the Ambasankar

Commission to show that the condition of the Vanniakula

Kshatriyas, in terms of their presence and numbers across Tamil

Nadu, their typical occupations and their social and educational

status had been assessed meticulously. Emphasis was laid on

the manner in which the Ambasankar Commission had

conducted their assessment, wherein socio, educational and

economic survey of the entire populace of Tamil Nadu was

undertaken by employing 2500 personnel and going door-to-

door to collect particulars of around five crore people over a

period of two years, with a view to find out and identify

56 | P a g e backward classes entitled to enjoy the reservation benefits for

admission into educational institutions and professional colleges

and for appointments or posts in the services under the State. It

was further submitted that the report of the Janarthanam

Commission was based on the Ambasankar Commission Report,

which had collected extensive quantifiable data. The

Janarthanam Commission had undertaken a feasibility analysis

of castes and communities demanding internal reservation and

applied a formula for finding out the feasibility factor of each

such community. Only after concluding that none of the other

castes / communities, demanding internal reservation within the

20 per cent reservation granted to MBCs and DNCs, satisfied the

test of viability or feasibility for internal reservation, the

Janarthanam Commission had recommended 10.5 per cent

internal reservation for the Vanniakula Kshatriyas. The

Appellants also pointed out that the Janarthanam Commission

had studied the representation of Vanniakula Kshatriyas in

professional courses for academic years 2006-07 to 2010-11 and

in Tamil Nadu Government Services as on 01.08.2010 to

demonstrate their inadequate share of enjoyment of reservation

benefits, which was far below the proportion of their population

to the total population. Accordingly, it was urged by the

Appellants that the impugned judgment of the High Court had

57 | P a g e not applied its mind to the reports and the extensive findings on

the basis of the data collected and evaluated. Contesting the

impugned judgment, it was further argued by Mr. Radhakrishnan

that the High Court had not embarked on a limited scrutiny, as is

the mandate of this Court in Barium Chemicals Ltd. v.

Company Law Board36 for instances where the subjective

opinion of the State is involved, and that the High Court should

have restricted itself to examine whether there was data

available on the basis of which the State Government had

formed its opinion. These submissions were forcefully

controverted by the Respondents, on grounds discussed

hereinafter.

57. The preamble of the 2021 Act refers to the

recommendation of the Chairman, Tamil Nadu Backward Classes

Commission for providing 10.5 per cent reservation to the

Vanniakula Kshatriya community within 20 per cent. The

Chairman of the Commission sought support from the

recommendations made by the Janarthanam Commission to

recommend internal reservation in favour of the Vanniakula

Kshatriyas. To appreciate the submissions on whether the

findings of the various Reports are supported by data, it is

necessary to deal with the recommendations of the Tamil Nadu

36 1966 Supp SCR 311

58 | P a g e Backward Classes Commission, headed by Justice Janarthanam

and the letter of Justice Thanikachalam. Given that the

Sattanathan Commission and the Ambasankar Commission were

not requested to address the issue of provision of internal

reservation to specific communities within the MBCs and DNCs,

the reports of these Commissions are not relevant for our

discussion.

58. Before we commence our evaluation of the reports of the

Janarthanam Commission and of Justice Thanikachalam, it is

necessary to briefly outline the contours of judicial review of a

Commission’s report providing recommendations pertaining to

backward classes. As identification of backward classes and

grant of reservation are measures under Articles 15(4) and 16(4)

of the Constitution, such measures have to pass constitutional

scrutiny. While the report of a Commission has to be looked into

with deference, it cannot be said that evaluation pertaining to

violation of any constitutional principle or non-consideration of

any constitutional requirement is beyond the reach of judicial

oversight. This Court in State of A.P. v. U.S.V. Balram37

categorially laid down that judicial scrutiny is permissible to

enquire into whether the conclusions arrived at by the

Commission are supported by the data and materials referred to

37 (1972) 1 SCC 660

59 | P a g e in its report. In Indra Sawhney (supra), the test laid down in Barium Chemicals (supra) was endorsed with respect to

judicial review of the subjective opinion of the State in matters

relating to reservation. Subsequently, this Court has cautioned

against the re-evaluation of the factual material on record 38.

Having considered the above judgments, we say with certainty

that it is within the domain of the courts to scrutinise the factual

material and data collected by a Commission and assess

whether the conclusions of the Commission are justified by such

material.

59. By G.O. (Ms) No. 35 dated 21.03.2012, the Government of

Tamil Nadu requested the Tamil Nadu Backward Classes

Commission to submit a report on the demands made by various

communities for internal reservation within the reservation

provided for MBCs and DNCs, apart from other terms of

reference prescribed. The Backward Classes Commission

consisted of 7 members, with Justice Janarthanam chairing the

Commission. The other members of the Commission, except the

Chairman, expressed their concern that adequate time was not

given to them to deliberate on an important issue relating to

internal reservation. It was pointed out by the majority in their

report that as on 2011-12, updated caste-based statistics were

38 B.K. Pavitra v. Union of India (2019) 16 SCC 129

60 | P a g e not furnished to them. The majority members observed that

their term was coming to an end in July, 2012 and it would not

be proper for them to submit a report, especially when the

parliamentary elections were anticipated. A suggestion was

made by the members to provide an interim reply to the

Government requesting that updated caste-based census data

should be collected and placed before the Commission. Prof D.

Sundaram, a member of the Commission, submitted a separate

note, in which, along with other recommendations, he stated

that there was a need for assessment of quantifiable data by a

statistical expert, which should be collated in the current survey

on castes. He further suggested a wider consultation with vice-

chancellors of universities, directors of institutes, chairmen and

members of various recruitment commissions and agencies both

at the Centre and State level and all stakeholders of the

communities and classes, bureaucrats in various departments,

more particularly of the personnel and administrative reforms

departments. He also emphasised that the representations

preferred by other communities from amongst the Backward

Classes for internal reservation need to be examined.

60. The Chairman of the Backward Classes Commission

submitted his report on 24.05.2012, recommending internal

reservation of 10.5 per cent in favour of Vanniakula Kshatriyas.

61 | P a g e In his report, there is a reference to 50 representations received

by the Commission from various castes / communities seeking

internal reservation in educational institutions as well as

appointments to public posts. 30 representations were made by

communities within the MBCs, out of which, 8 were from

Vanniakula Kshatriyas, 5 from Meenavars, 1 each from Thotiya

Naicker, Maruthuvar, Navithar, Salavai Thozhilalar and Erra

Gollar, seeking internal reservation on the basis of individual

castes / communities. The Commission gathered the population

data of all castes and communities listed as MBCs and DNCs

from the Ambasankar Commission Report submitted to the

Government in 1985 and other material furnished by the

Government to consider the feasibility of the requests for

internal reservation. It was mentioned in the report that the

total population from the State of Tamil Nadu representing all

castes and communities during 1983 was 4,99,90,943. The

population of the MBCs and DNCs was 1,23,17,745. The

population of the Vanniakula Kshatriyas was 65,04,855, which

came up to 13.012 per cent of the total population. The

Chairman of the Commission worked out the percentage of

internal reservation from the population figures, which formed

the basis of the feasibility analysis conducted. On the basis of a

formula that was adopted by the Chairman, the feasibility factor

62 | P a g e of the Vanniakula Kshatriyas was 10.562 per cent. The other

communities / castes seeking internal representation were found

to be not entitled for the benefit as they did not satisfy the test

of feasibility for making internal reservation, falling about or

below two and a half per cent on the basis of their population

proportionate to the population of MBCs and DNCs together. The

report further stated that preparation of roster for working out

reservation would become complicated, if representations by

other communities asking for internal reservation were to be

accepted.

61. By taking into account the population of the Vanniakula

Kshatriyas as enumerated in the report of the Ambasankar

Commission in 1985, the Chairman recommended internal

reservation to the Vanniakula Kshatriyas in proportion to their

population, i.e., 10.5 per cent. The Chairman further referred to

the admissions of students belonging to the Vanniakula

Kshatriya community in professional courses such as

engineering, medicine, veterinary science, agriculture and law

for the academic years 2006-07 to 2010-11 and found that the

seats secured to engineering courses was not proportionate to

their population. Insofar as public employment is concerned,

representation of Vanniakula Kshatriyas in the State services

averaged across Group-A, Group-B, Group-C and Group-D, as on

63 | P a g e 01.08.2010, was 8.67 per cent, which was also below 10.5 per

cent, i.e., the percentage of internal reservation earmarked by

the Chairman. The Chairman was of the view that providing

internal reservation to the Vanniakula Kshatriyas would not

amount to conferring undue advantage on them nor would it

unduly affect the entitlement of reservation benefits of the other

castes and communities listed as MBCs and DNCs.

62. As stated, the Tamil Nadu Backward Classes Commission

was re-constituted on 08.07.2020, with Justice Thanikachalam as

the Chairman, along with six members and two ex-officio

members. In response to the Government’s request on

18.02.2021 to send views on internal reservation to be provided

for communities listed in MBCs and DNCs, Justice

Thanikachalam, by way of letter dated 22.02.2021,

recommended 10.5 per cent reservation for Vanniakula

Kshatriyas, seven per cent for DNCs and some MBCs and two

and a half per cent for the remaining MBCs. In the said letter, a

reference was made to the recommendation of Justice

Janarthanam for grant of 10.5 per cent internal reservation to

Vanniakula Kshatriyas. Without providing any reasons, Justice

Thanikachalam made adverse comments on the dissent of the

other members by stating that such opinion was based on

extraneous reasons, which were irrelevant and not germane to

64 | P a g e the consideration of issues under the additional terms of

reference issued in 2012. Justice Thanikachalam was of the view

that the recommendation of Justice Janarthanam, though being

the minority opinion, was unassailable. However, noting that

the terms of reference of the Janarthanam Commission required

the Commission to consider representation for internal

reservation of various communities and not just major

communities, Justice Thanikachalam recommended, in addition

to the 10.5 per cent reservation for the Vannikula Kshatriyas,

allocating seven per cent reservation to a grouping of

communities, comprising DNCs along with certain communities

within MBCs bearing names similar to DNCs and fishermen

communities and Vannar communities within MBCs, and

allocating two and a half per cent to the remaining communities

within MBCs. It is worthwhile to reiterate that at the time, no

report had been submitted by the Kulasekaran Commission,

which was appointed by the Government on 21.12.2020 for

collection of quantifiable data on castes, communities and tribes

in the State of Tamil Nadu “as on date”.

63. As contested by Mr. Nagamuthu and Mr. Balasubramanian,

it is clear that the report of Justice Janarthanam, relied upon by

Justice Thanikachalam, is a minority view. The views of the

plurality, i.e., the remaining six members of the Tamil Nadu

65 | P a g e Backward Classes Commission were contrary to the views

expressed by Justice Janarthanam. The majority opinion clearly

mentioned that the data that was available before them was

outdated. They highlighted the importance of collection of

caste-wise data to enable them to give an opinion on internal

reservation. That apart, the majority members expressed the

inappropriateness of submitting the report in haste, just before

the ensuing parliamentary elections in 2012. Justice

Thanikachalam committed an error in brushing aside the opinion

of the majority members on the ground that it was riddled with

extraneous reasons. Without justifying the lack of updated data

cited by the majority as a ground for being unable to comment

on grant of internal reservation, Justice Thanikachalam blindly

followed the recommendation of Justice Janarthanam, by stating

that his view is unassailable. It is to be noted that the

recommendation of internal reservation for the Vannikula

Kshatriyas is by way of a letter signed only by Justice

Thanikachalam and does not enclose the views of the remaining

members of the Tamil Nadu Backward Classes Commission.

There is nothing in the said letter to even suggest that Justice

Thanikachalam, after due deliberation with the remaining

members of the Commission, has put forth recommendations on

66 | P a g e internal reservation, which have the backing of the remaining

members, or at the least, the approval of the majority.

64. Providing internal reservation of 10.5 per cent from the 20

per cent made available to MBCs and DNCs would definitely be

to the detriment of other communities, in the absence of any

exercise undertaken or any findings arrived at to demonstrate

that members of the Vanniakula Kshatriya community are

unable to compete with the remaining communities within the

MBCs and DNCs. No data or material is referred to in the letter

by Justice Thanikachalam on the representation of the remaining

communities within the MBCs and DNCs in educational

institutions or public employment, which could support the

severe restriction in the extent of reservation made available to

these communities, who had been entitled to avail the benefit of

20 per cent reservation en masse till the enactment of the 2021

Act. The following paragraph from Dr Jaishri Laxmanrao Patil

(supra), as relied upon by Mr. V. Prakash, is relevant to the

present context:

“520. The word “adequate” is a relative term used in relation to representation of different caste and communities in public employment. The objective of Article 16(4) is that backward class should also be put in mainstream and they are to be enabled to share power of the State by affirmative action. To be part of public service, as accepted by the society of today, is to attain social status and play a role in governance. The

67 | P a g e governance of the State is through service personnel who play a key role in implementing government policies, its obligation and duties. The State for exercising its enabling power to grant reservation under Article 16(4) has to identify inadequacy in representation of backward class who is not adequately represented. For finding out adequate representation, the representation of backward class has to be contrasted with representation of other classes including forward classes. It is a relative term made in reference to representation of backward class, other caste and communities in public services.” There was no independent evaluation by resorting to known

methods for recommending internal reservation by Justice

Thanikachalam, who simply approved the minority report

submitted by Justice Janarthanam.

65. It is relevant to note that Justice Janarthanam in his report

relied upon the population figures of the Vanniakula Kshatriyas

from the year 1985. His recommendation was on the basis of

the figures taken from the report of the Ambasankar

Commission, submitted in 1985. Reference made to admissions

to engineering colleges and appointment to public posts

pertained to the years 2006-07 to 2010-11 and 2010,

respectively. A decision taken for providing reservation which

would impact the rights of members of as many as 115

communities should be on the basis of contemporaneous inputs

and not outdated and antiquated data 39. Any study by the 39 Ram Singh v. Union of India (2015) 4 SCC 497

68 | P a g e Commission should be with regard to the present status since

the object is to take affirmative actions in present or in future to

address the needs of a particular community 40. In this particular

case, the data that was relied on for the purpose of

recommending internal reservation to the Vanniakula

Kshatariyas is from 1985. The State Government, at the time of

appointing the Kulasekaran Commission to collect quantifiable

data on castes, communities and tribes in the State of Tamil

Nadu, including migrants domiciled therein, expressly

recognized the need for collection of such data as the data

collected by the Ambasankar Commission had become more

than three decades old. We are in agreement with the objection

of the Respondents, that there was no contemporaneous data

available to Justice Thanikachalam or even Justice Janarthanam,

on the basis of which recommendations for internal reservation

could have been made.

66. It is observed that the proportion of the population of the

Vanniakula Kshatriyas to the total population of MBCs and DNCs,

termed as the feasibility formula, was the sole criterion which

was considered by Justice Janarthanam to recommend internal

reservation for the Vanniakula Kshatriyas. The representations

made by other communities within the MBCs seeking internal

40 Dr Jaishri Laxmanrao Patil (supra)

69 | P a g e reservation were not considered feasible by Justice Janarthanam

on the sole basis of the proportion of their population to the

total population of the MBCs and DNCs together. This Court is of

the opinion that percentage of population of the Vanniakula

Kshatriyas proportionate to the total population of the MBCs and

DNCs cannot be the sole criterion for providing internal

reservation. Adequacy of representation is different from

proportionate representation, although proportion of population

of the relevant community to the total population may be one of

the relevant factors in determining adequacy. In Indra

Sawhney, it was held as under: -

“807. We must, however, point out that clause (4) speaks of adequate representation and not proportionate representation. Adequate representation cannot be read as proportionate representation. Principle of proportionate representation is accepted only in Articles 330 and 332 of the Constitution and that too for a limited period. These articles speak of reservation of seats in Lok Sabha and the State legislatures in favour of Scheduled Tribes and Scheduled Castes proportionate to their population, but they are only temporary and special provisions. It is therefore not possible to accept the theory of proportionate representation though the proportion of population of backward classes to the total population would certainly be relevant. Just as every power must be exercised reasonably and fairly, the power conferred by clause (4) of Article 16 should also be exercised in a

70 | P a g e fair manner and within reasonable limits — and what is more reasonable than to say that reservation under clause (4) shall not exceed 50% of the appointments or posts, barring certain extraordinary situations as explained hereinafter. From this point of view, the 27% reservation provided by the impugned Memorandums in favour of backward classes is well within the reasonable limits. Together with reservation in favour of Scheduled Castes and Scheduled Tribes, it comes to a total of 49.5%. In this connection, reference may be had to the Full Bench decision of the Andhra Pradesh High Court in V. Narayana Rao v. State of A.P. [AIR 1987 AP 53 : 1987 Lab IC 152 : (1986) 2 Andh LT 258] , striking down the enhancement of reservation from 25% to 44% for OBCs.

The said enhancement had the effect of taking the total reservation under Article 16(4) to 65%.”

Accordingly, we accept the contention of Dr. Dhawan that the

internal reservation recommended in the report of Justice

Janarthanam and approved by Justice Thanikachalam, based

only on population, cannot be sustained in view of the law laid

down by this Court.

67. The data placed by Mr. Gonsalves, on behalf of one of the

Respondents, with reference to the Tamil Nadu Second

Backward Classes Commission (Ambasankar Commission),

appears to indicate that unlike the other 115 communities in the

same class of MBCs and DNCs, many of whom have been bereft

of any benefit of affirmative action, the Vanniakula Kshatriyas

71 | P a g e had higher representation in public employment and

educational institutions. For the years 1980-1983, 25

communities from 48 communities identified as MBCs and 66

out of 68 communities identified as DNCs did not get admission

into MBBS course. Students belonging to the Vanniyar

community secured 104 seats in medical course, with an

admission to population ratio of 1:62547. 87 students out of

these 104 were admitted on the basis of reservation whereas 17

students were admitted on their own merit. The Respondents

also placed certain data obtained under the Right to Information

Act, 2005 (hereinafter, the “RTI Act”) pertaining to the

academic years 2019-2020 and 2020-2021. While the total

seats available for admission to undergraduate medical course

for the year 2019-2020 in the State of Tamil Nadu were 4,193

with 20 per cent seats reserved for MBCs and DNCs amounting

to 960 seats, students from the Vanniyar community had

secured 515 seats, which is around 57 per cent of the total

seats reserved for MBCs and DNCs. Citing from the Ambasankar

Report, it was submitted that with respect to engineering, law

and veterinary science courses as well, students from the

Vanniyar community fared far better than other communities

within the MBCs and DNCs, many of whom did not get any seats

in these courses for the period from 1980 to 1983.

72 | P a g e Representation of Vanniyars in public posts in the Government

of Tamil Nadu for the years 1980 to 1983, according to the

Ambasankar Commission Report, was much better in

comparison to persons belonging to the other communities

within the MBCs and DNCs. Particulars provided of staff

members in Anna University for the years 2018 to 2020,

obtained under the RTI Act, appear to paint a picture of better

access and representation of members of the Vanniyar

community over their compatriots belonging to other

communities within MBCs and DNCs. We are informed that 520

MLAs belonging to the Vanniyar caste have been elected to the

Tamil Nadu Legislative Assembly between 1952 to 2021,

averaging to about 35 MLAs in each Assembly and forming 15

per cent of the strength of the House. More than 90 persons

from the Vanniyar caste have been elected to the Lok Sabha in

the same period, which is also about 15 per cent of the total

number of MPs in Lok Sabha from Tamil Nadu. Several

individuals from the Vannikula Kshatriya community have held

posts of Ministers at the Centre as well as in the State

Government and have also been appointed as Judges of the

High Court. We are further informed that numerous trusts have

been established, which cater to the betterment of members,

73 | P a g e and educational needs of students in particular, from the

Vanniyar community.

68. We have referred to this data only to emphasize that the

findings in the letter of Justice Thanikachalam had to be suitably

supported by independent studies and assessment of relevant

data. We make it clear that the aforesaid observations do not

prevent the State, if it so decides, from undertaking suitable

exercises for collecting pertinent, contemporaneous data to

determine how demands for internal reservation within the

Backward Classes can be justly addressed.

69. Having dealt with the recommendations from Justice

Thanikachalam, which form the basis for the 2021 Act, the

question which requires to be considered next is whether the

2021 Act is unconstitutional, being violative of Article 14 of the

Constitution. The preamble of the 2021 Act refers to the

representation made by the Vanniakula Kshatriyas for a

separate quota of reservation on the ground that they could not

compete with the other communities in the list of MBCs and

DNCs, which was referred to the Backward Classes Commission.

The preamble further refers to the recommendations made by

the Chairman of the Backward Classes Commission (Justice

Thanikachalam), where to facilitate distributive social justice,

apart from the 10.5 per cent reservation for Vanniakula

74 | P a g e Kshatriyas, the other communities within the MBCs and DNCs

were recommended to be grouped into two categories on the

proportion of their population. Accepting the suggestions made

by the Chairman, Backward Classes Commission, the 2021 Act

was promulgated to ensure equitable distribution of the 20 per

cent reservation provided to the MBCs and DNCs under the

1994 Act.

70. That there is no relevant, contemporaneous material

which was examined by the Chairman, Backward Classes

Commission before submitting his report in support of the claim

of the Vanniakula Kshatriyas, has been dealt with in detail in the

preceding paragraphs. Is the State right in contending that the

classification of the Vanniakula Kshatriyas made by the 2021 Act

for separate reservation is reasonable? The Appellants, relied

on Chiranjit Lal Chowdhuri v. Union of India 41, to urge that

the presumption is in favour of constitutionality of the 2021 Act

and the burden is upon those who attack the legislation to

demonstrate that constitutional principles had been clearly

transgressed. Further, support was sought from Ajay Kumar

Singh v. State of Bihar42 to contend that the State is in the

best position to determine what kind of special provision should

be made in favour of a particular class, having regard to the

41 1950 SCR 869 42 (1994) 4 SCC 401

75 | P a g e relevant facts and circumstances, and deference must be shown

to legislative judgment. The Respondents contested the above

submissions on the ground that the classification made under

the 2021 Act amounts to discriminating equals. Reliance was

placed on Col. A.S. Iyer v. V. Balasubramanyam 43 to argue

that an anxious and sustained attempt to discover some basis

for classification will deprive Article 14 of the equality

dispensation. In the absence of any rationale for treating the

Vanniakula Kshatriyas differently, the differentiation and

allocation of percentages was entirely arbitrary and falls foul of

Article 14.

71. Equal laws would have to be applied to all in the same

situation, and there should be no discrimination between one

person and another if as regards the subject matter of the

legislation their position is substantially the same. This brings in

the question of classification. As there is no infringement of the

equal protection rule, if the law deals alike with all of a certain

class, the legislature has the undoubted right of classifying

persons and placing those whose conditions are substantially

similar under the same rule of law, while applying different rules

to persons differently situated. The classification should never

be arbitrary, artificial or evasive. It must rest always upon real

and substantial distinction bearing a reasonable and just 43 (1980) 1 SCC 634

76 | P a g e relation to the thing in respect to which the classification is

made; and classification made without any reasonable basis

should be regarded as invalid44. The whole doctrine of

classification is based on discrimination without reason and

discrimination with reason and on the well-known fact that the

circumstances which govern one set of persons or objects may

not necessarily be the same as those governing another set of

persons or objects so that the question of unequal treatment

does not really arise as between persons governed by different

conditions and different sets of circumstances 45.

72. Discrimination is the essence of classification. Equality is

violated if it rests on unreasonable basis. The concept of

equality has an inherent limitation arising from the very nature

of the constitutional guarantee. Those who are similarly

circumstanced are entitled to an equal treatment. Equality is

amongst equals. Classification is, therefore, to be founded on

substantial differences which distinguish persons grouped

together from those left out of the groups and such differential

attributes must bear a just and rational relation to the object

sought to be achieved. Our Constitution aims at equality of

status and opportunity for all citizens including those who are

socially, economically and educationally backward. Articles

44 State of West Bengal v. Anwar Ali Sarkar 1952 SCR 284 45 Kathi Raning Rawat v. State of Saurashtra 1952 SCR 435

77 | P a g e 15(4) and 16(4) bring out the position of backward classes to

merit equality. Special provisions are made for the

advancement of backward classes and reservation of

appointments and posts for them to secure adequate

representation. These provisions are intended to bring out the

content of equality guaranteed by Articles 14, 15(1) and 16(1).

However, it is to be noted that equality under Articles 15 and 16

could not have a different content from equality under Article

1446. Differentia which is the basis of classification must be

sound and must have reasonable relation to the object of the

legislation. If the object itself is discriminatory, then

explanation that classification is reasonable having rational

relation to the object sought to be achieved is immaterial 47.

73. As stated supra, the object of the 2021 Act is to achieve

equitable distribution of the benefit of 20 per cent reservation

provided to MBCs and DNCs. At the cost of repetition, at the

time of enactment of the 2021 Act, 116 castes were to be found

in the cumulative lists of MBCs and DNCs. Choosing a particular

caste and providing a special reservation of 10.5 per cent out of

the 20 per cent to such caste is discriminatory, in the absence

of any sound differentiation from communities who are similarly

situated and were, therefore, grouped together for the purposes

46 State of Kerala v. N.M Thomas (1976) 2 SCC 310 47 Subramanian Swamy v. Director, Central Bureau of Investigation (2014) 8 SCC 682

78 | P a g e of receiving the benefits of 20 per cent reservation. While the

State Government has the competence to classify the

Vanniakula Kshatriyas or any other community or group of

communities within backward classes as a particular class for

the grant of special measures, there should be a reasonable

basis for categorising such communities into a different section

from the rest of the communities within the MBCs and DNCs, on

grounds which cannot be superficial or illusory.

74. The justification on behalf of the State is that sufficient

material was gathered by the Tamil Nadu Backward Classes

Commission to show that there was inadequate representation,

disproportionate to the population of the Vanniakula Kshatriyas,

thereby culminating in the 2021 Act, which aimed to achieve

equitable distribution of reservation amongst MBCs and DNCs.

A perusal of the discussion in the earlier paragraphs would

disclose that the letter from the Chairman, Backward Classes

Commission is on the basis of antiquated data, without any

assessment of the relative backwardness and representation of

the Vanniakula Kshatriyas and their ability to compete with the

remaining 115 communities within the MBCs and DNCs.

Additionally, recommendations therein are solely based on

population. To differentiate a particular class / category from

others, there should be a substantial distinction which clearly

79 | P a g e demarcates that class / category. In the instant case, we see no

justification for how the Vanniakula Kshatriyas can be treated as

a different class and meted out preferential treatment, being

one amongst the 116 communities, who have all been

considered on the same footing till the enactment of the 2021

Act and were, therefore, eligible to claim the benefit of

undivided 20 per cent reservation. Population being cited as

the sole factor to support this classification is in the teeth of the

judgments of this Court in Indra Sawhney (supra) and Jarnail

Singh (supra). Accordingly, we hold that the classification

sought to be made under the 2021 Act is unreasonable and,

therefore, the 2021 Act is violative of Articles 14, 15 and 16, as

there is no substantial basis for differentiating the Vanniakula

Kshatriyas and granting them separate reservation.

VI. Non-compliance with Article 338-B(9) of the

Constitution

75. Mr. Sankaranarayanan argued that providing internal

reservation is a major policy matter, which should have been

undertaken by the State only with the consultation of the

National Commission for Backward Classes. As, admittedly,

there was no consultation, the 2021 Act is void. Article 338-

B(9) provides that the Union and the State Government shall

consult the Commission on all major policy matters affecting

80 | P a g e the SEBCs. A proviso was inserted by the 105 th Amendment

Act, by which it was specified that clause (9) of Article 338-B

would not be applicable to lists of SEBCs that are prepared and

maintained by the States. However, the 2021 Act was brought

into force prior to the 105th Amendment Act. Having concluded

that the 105th Amendment Act was prospective in its operation,

it necessarily follows that the State was required to have

consulted the Commission on major policy matters prior to the

105th Amendment Act. There cannot be any dispute regarding

internal reservation being provided to a specific community

qualifying as a major policy decision. The point that falls for

consideration is the consequence of non-consultation by the

State Government with the National Commission for Backward

Classes before providing internal reservation. Given the

language of the provision and its interpretation in Dr Jaishri

Laxmanrao Patil (supra), there need not be a detailed

discussion about Article 338-B(9) being mandatory. The

requirement of consultation with an expert constitutional body

is indeed mandatory and it would be fatal to disregard the

provision. However, non-consultation by the State Government

with the National Commission would not take away the

competence of the State Government to enact the 2021 Act.

Legislative competence can only be circumscribed by express

81 | P a g e prohibition contained in the Constitution itself 48 and Article 338-

B(9) does not stop the State from enacting a legislation in

furtherance of a major policy matter but states that the State

Government shall consult the Commission on such matters.

76. The consequence of disregarding a mandatory

consultation provision would normally render the legislation

void as it is in breach of an obligatory requirement to consult an

expert constitutional body. However, we refrain from going into

this issue in view of our earlier conclusion that the 2021 Act

does not withstand scrutiny under Articles 14, 15 and 16 of the

Constitution.

VII. Conclusion

77. To conclude, we hold that there is no bar on the legislative

competence of the State to enact the 2021 Act and on the

different grounds urged with respect to this issue, we are of the

view that:

(i) The 105th Amendment Act being prospective in operation, it

is the 102nd Amendment Act which held the field at the

time of enactment of the 2021 Act.

(ii) As the 2021 Act dealt with sub-classification and

apportionment of certain percentage of reservation for the

purpose of determining the extent of reservation of

48 M.P. Cement Manufacturers' Association v. State of M. P. (2004) 2 SCC 249

82 | P a g e communities within the MBCs and DNCs, it is a permissible

exercise of power by the State Government under Article

342-A of the Constitution in terms of the judgment of this

Court in Dr Jaishri Laxmanrao Patil (supra). Prior to the

105th Amendment Act, what was prohibited for the State to

carry out under Article 342-A is the identification of SEBCs,

by inclusion or exclusion of communities in the Presidential

list of SEBCs. It is clear that the exercise of identification of

MBCs and DNCs had been completed by the State pursuant

to the 1994 Act.

(iii) There is no bar to the sub-classification amongst backward

classes, which has been expressly approved in Indra

Sawhney (supra). Even considering the judgment in E.V.

Chinnaiah (supra), which dealt with the sub-classification

of Scheduled Castes identified in the Presidential list under

Article 341 and held that any sub-division of Scheduled

Castes by the State would amount to tinkering with the

Presidential list, the State’s competence in the present

case to enact the 2021 Act is not taken away on this

ground as, admittedly, the Presidential list of SEBCs is yet

to be published, making the question of tinkering with such

list redundant.

83 | P a g e

(iv) Placing of the 1994 Act under the Ninth Schedule cannot

operate as a hurdle for the State to enact legislations on

matters ancillary to the 1994 Act. Legislative competence

of the State Legislature can only be circumscribed by

express prohibition contained in the Constitution itself and

Article 31-B does not stipulate any such express prohibition

on the legislative powers of the State.

(v) Detailing the extent of reservation for communities already

identified as MBCs and DNCs, which is the thrust of the

2021 Act, cannot be said to be in conflict with the 1994 Act,

as determination of extent of reservation for various

communities was not the subject matter of the 1994 Act.

(vi) The 1994 Act, having received the assent of the President

under Article 31-C, does not prohibit the State Legislature

from enacting a legislation with the approval of the

Governor on matters ancillary to the 1994 Act, as Article

31-C does not place any fetter on the legislative powers of

the State. The State cannot be compelled to seek the

assent of the President for a legislation granting internal

reservation, when it is empowered to provide reservation

and other special measures for backward classes, by way

of legislation as well as executive orders, under Articles

15(4) and 16(4) of the Constitution.

84 | P a g e On the issue of caste-based classification, Indra Sawhney

(supra) has, in precise and unambiguous terms, stated that

caste can be the starting point for identifying backward classes,

but it cannot be the sole basis. Accordingly, while caste can be

the starting point for providing internal reservation, it is

incumbent on the State Government to justify the

reasonableness of the decision and demonstrate that caste is

not the sole basis. As regards the letter of Justice

Thanikachalam, Chairman of the Tamil Nadu Backward Classes

Commission, which forms the basis of the 2021 Act, we find that

the Government has committed an error in accepting the

recommendations therein for the following reasons:

(i) Recommendations have been based on the report of the

Chairman of the Janarthanam Commission, which had relied

on antiquated data, and there is a clear lapse on the part of

Justice Thanikachalam in having readily dismissed the

reservations expressed by the majority members of the

Janarthanam Commission, who had observed that in the

absence of updated caste-wise data, recommendations on

internal reservation could not be fruitfully made.

(ii) Apart from approving the report of the Chairman of the

Janarthanam Commission with respect to internal

reservation for the Vanniakula Kshatriyas and making

85 | P a g e additional recommendations on the grouping of the

remaining communities for specific percentages of

reservation, the letter from Justice Thanikachalam does not

refer to any analysis or assessment of the relative

backwardness and representation of the communities

within the MBCs and DNCs.

(iii) Population has been made the sole basis for recommending

internal reservation for the Vanniakula Kshatriyas, which is

directly in the teeth of the law laid down by this Court.

Finally, on the 2021 Act, we are of the opinion that there is no

substantial basis for classifying the Vanniakula Kshatriyas into

one group to be treated differentially from the remaining 115

communities within the MBCs and DNCs, and therefore, the

2021 Act is in violation of Articles 14, 15 and 16. We uphold the

judgment of the High Court on this aspect. Given our

conclusion on the 2021 Act being ultra vires Articles 14, 15 and

16 of the Constitution, we have refrained from delving into the

issue of non-compliance by the State Government with the

consultation requirement prescribed under clause (9) of Article

338-B at the time of enactment of the 2021 Act.

78. We make it clear that we have not expressed any opinion

on the merits of the writ petition challenging the 1994 Act,

pending consideration before this Court, or, for that matter,

86 | P a g e challenges to any other legislation which may have been

referred to herein and our findings are strictly confined to the

issues which have come up for our consideration in relation to

the 2021 Act.

79. The Appeals are disposed of accordingly.

..............................J. [L. NAGESWARA RAO]

............................J. [B. R. GAVAI]

New Delhi, March 31, 2022

87 | P a g e