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TMI Blog2022 (3) TMI 1597X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. (iv) Placing of the 1994 Act under the Ninth Schedule cannot operate as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arasan, Advs., Promila, AOR, B. Karunakaran, M.R. Jothimanian, B. Sasi Kumar, Elavarasan, Advs., Anoop Prakash Awasthi, AOR, M.N. Rao, Sr. Adv., K. Balu, M.R. Jothimanian, Advs., Radhakrishnan, Sr. Adv., Balaji Srinivasan, AOR, Gowtham Kumar, Pallavi Sengupta, Garima Jain, Aakriti Priya, Shahrukh, Prateek Yadav, Suhail Ahmed, Lakshmi Rao, Advs., C.S. Vaidyanathan, Sr. Adv., Diksha Rai, AOR, Ankit Agarwal, Prateek Bhardwaj, Advs., Abhishek Manu Singhvi, Sr. Adv., Varun K. Chopra, Amit Bhandari, Advs., D. Kumanan, AOR, Naman Joshi, Yash Johri, Sheikh F. Kalia, Guneet Sidhu, Advs., Rakesh Dwivedi, Sr. Adv., Sanskriti Pathak, Adv., V. Krishna Murthy, Sr. Adv., P. Wilson, Mukul Rohtagi, Sr. Advs., M. Yogesh Kanna, AOR, Raja Rajeshwaran S., P.M. Vishnu Varthanan, R. Vignesh, Advs., M. Yogesh Kanna, AOR, Prabhu Rama Subramanian, Raghunatha Sethupathi, Karuppaiah Meyyappan, Raja Rajeshwaran, Murugendran, K. Nagendra Prasad, Priya R., Advs., Colin Gonsalves, Sr. Adv., Shiyas Kumar, Adv., K.M. Vijayan, Sr. Adv., S. Gowthaman, AOR, M. Venmani, Beno Bencigar, K.V. Jagdishwaran, N.P. Haibila, Advs., Parijat Kishore, Satya Mitra, AORs, Jaideep Gupta, Sr. Adv., Nishe Rajen Shonker, AOR, Anu K. Jo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sses Commission was submitted to the Government on 08.07.2011 and subsequently placed before the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommunity (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 BCs 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 Amendment Act, 2018 and before 105th 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ese 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 105th 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 (Sic Article) 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ghvi 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 105th 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 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 Minister (2021) 8 SCC 1 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 (SEB ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endment 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 (1994) 5 SCC 593 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 (1969) 2 SCC 283 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 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 102nd Amendment Act. If a community was already included in the State's list of SEBCs, which had been saved b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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. (1970) 1 SCC 509 and a judgment of the U.S. Supreme Court in Plaut v. Spendthrift Farm Inc. 1995 : 514 U.S. 211 (1995), 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 105th Amendment Act cannot be treated to be a validating provision, as there has been no 'invalidation' of the 102nd 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 102nd 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hargovindas v. Municipal Commissioner, Ahmedabad (1964) 2 SCR 608. 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 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 102nd Amendment Act has been invalidated. The contention of the Appellants that the 105th Amendment Act, being an amendment relating to pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 Chinnappa Reddy, J. in K.C. Vasanth Kumar v. State of Karnataka 1985 Supp SCC 714: 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 sco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard Classes are lumped together, OBCs will take away all the vacancies leaving Scheduled Castes and Scheduled Tribes high 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 subdivision 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tians 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. 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (1955) 2 SCR 164, 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 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 fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 (1966) 3 SCR 885 and Rajiv Sarin v. State of Uttarakhand (2011) 8 SCC 708. 48. Mr. Vaidyanathan relied upon a judgment of this Court in State of Kerala v. Peoples Union for Civil Liberties (2009) 8 SCC 46 as well as judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen 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. 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 po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst the 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unity 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 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 repor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifiable 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. 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, Salava ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hatriyas 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or 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 reservation were not considered feasible by Justice Janarthanam on the sole basis of the proportion of their population to the tot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 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 un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ackward 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 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made; and classification made without any reasonable basis should be regarded as invalid State of West Bengal v. Anwar Ali Sarkar 1952 SCR 284. 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 Kathi Raning Rawat v. State of Saurashtra 1952 SCR 435. 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 so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 (s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 addi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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