Supreme Court of India
PATTALI MAKKAL KATCHIversusA. MAYILERUMPERUMAL & ORS.
- Citation
- 2022 INSC 378
- Decided
- 31 March 2022
- Disposal
- Disposed off
- Bench
- L NAGESWARA RAO
Holding
The 2021 Special Reservation Act is unconstitutional as it violates Articles 14, 15 and 16 due to unreasonable and arbitrary classification, although the State possesses the competence to sub‑classify backward classes.
Summary
The Tamil Nadu Legislature enacted the 2021 Special Reservation Act, earmarking 10.5% of the 20% reservation for Most Backward Classes (MBCs) and Denotified Communities (DNCs) for the Vanniyakula Kshatriya community. Several writ petitions challenged the Act on the ground that the State lacked legislative competence after the 102nd Amendment and that the classification was arbitrary, lacking a reasonable basis and violating Articles 14, 15 and 16 of the Constitution. The High Court declared the Act unconstitutional, a decision appealed before the Supreme Court. The Supreme Court held that while the State has the power to sub‑classify already identified backward classes, the 2021 Act fails the test of reasonable classification because it relies solely on outdated population data and does not demonstrate a substantial distinction. Consequently, the Act is ultra vires Articles 14, 15 and 16, and the High Court's judgment is affirmed.
Issues considered
- The State Legislature's competence to enact the 2021 Act after the Constitution (102nd Amendment) Act, 2018 and before the 105th Amendment.
- Whether sub‑classification of MBCs and DNCs within the 1994 Act is constitutionally permissible.
- Whether the 2021 Act violates Articles 14, 15 and 16 by providing internal reservation based solely on caste and population data.
- The effect of Article 31‑B and Article 31‑C on the State's power to amend a law placed in the Ninth Schedule.
- The requirement of consultation with the National Commission for Backward Classes under Article 338‑B(9).
Legislation cited
- Article 31‑B of the Constitution
- Article 31‑C of the Constitution
- Article 338‑B of the Constitution
- Article 342‑A of the Constitution
- Constitution (102nd Amendment) Act, 2018
- Constitution (105th Amendment) Act, 2021
- Constitution (First Amendment) Act, 1951
- 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 (1994 Act)s. 2, s. 3(a), s. 4, s. 5, s. 7
- Tamil Nadu Special Reservation of seats in Educational Institutions ... Act, 2021
Subjects
reservationbackward classessub‑classificationconstitutional validityArticle 14Article 15Article 16Article 342‑AArticle 31‑BVanniyarinternal reservationTamil Nadu
Judgment
42 [2022]REPORTS
SUPREME COURT 19 S.C.R. 42 [2022] 19 S.C.R.
A PATTALI MAKKAL KATCHI
v.
A. MAYILERUMPERUMAL & ORS.
(Civil Appeal No. 2600 of 2022)
B MARCH 31, 2022
[L. NAGESWARA RAO AND B. R. GAVAI, JJ.]
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
C
Reservation for the Most Backward Classes and Denotified
Communities Act, 2021 – 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 – ss. 2, 3(a), 4, 5 & 7 – Validity of 2021 Act –
D Backward Class Reservation – Reservation of seats in educational
institutions – Reservation in appointments or posts in the services
under the state – Classification of Backward Classes – An Act (2021
Act) for special reservation within 20% reserved Most Backward
Classes (MBCs) and De-notified Communities (DNCs) was passed
by State assembly – The bill provides reservation of seats in private
E
educational institutions, and reservation in appointment or posts in
the services under the State – 10.5% reservation was specifically
earmarked for the Vanniyakula Kshatriya community – Writ petitions
were filed in the High Court assailing the constitutional validity of
2021 Act – The High Court held that the State Legislature had no
F competence to enact the 2021 Act and there was no quantifiable
data – The High Court further found that the internal reservation
made only on the basis of caste is violative of Constitution – On
appeal, held: There is no bar on the legislative competence of the
State to enact the 2021 Act – State Government has the competence
to classify the Vanniakula Kshatriyas or any other community or
G
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 – By taking into account
H the population of the Vanniakula Kshatriyas as enumerated in the
42
PATTALI MAKKAL KATCHI v. A. MAYILERUMPERUMAL & 43
ORS.
report of the Ambasankar Commission in 1985, the Chairman A
recommended internal reservation, i.e., 10.5 per cent – Any study
by the 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 – There was no
substantial basis for classifying the Vanniakula Kshatriyas into one
B
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.
Constitution of India – Art. 341 – 102nd Amendment Act –
Sub Categorisation of Classes – What the 102nd Amendment prohibits
the State from undertaking is identifying a caste as SEBC or C
including or excluding a community from the list notified by the
President – A close scrutiny of E.V. Chinnaiah 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 – A Presidential list for SEBCs D
did not come into existence and the question of sub-division of the
said list by way of the 2021 Act does not arise.
Constitution (First Amendment) Act, 1951 — Article 31-B - 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 E
said amendment is also included in the Ninth Schedule— Thus, Article
31-B does not operate as a hurdle for the State to enact statutes on
matters ancillary to the 1994 Act – 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 F
and DNCs.
Disposing of the appeals, the Court
Held: 1.1 Equal laws would have to be applied to all in the
same situation, and there should be no discrimination between G
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
H
44 SUPREME COURT REPORTS [2022] 19 S.C.R.
A 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 relation
to the thing in respect to which the classification is made; and
B
classification made without any reasonable basis should be
regarded as invalid. 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
C 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. [Para 71][93-E-G; 94-A-B]
1.2 Discrimination is the essence of classification. Equality
D 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
E 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. Articles15(4) and 16(4)
F 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
G Articles 15 and 16 could not have a different content from equality
under Article 14. 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
H
PATTALI MAKKAL KATCHI v. A. MAYILERUMPERUMAL & 45
ORS.
relation to the object sought to be achieved is immaterial.[Para A
72][94-B-F]
1.3 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 B
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 of
receiving the benefits of 20 per cent reservation. While the State C
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 D
communities within the MBCs and DNCs, on grounds which
cannot be superficial or illusory. [Para 73][94-F-G; 95-A-B]
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, E
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 F
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 G
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
asa different class and meted out preferential treatment, being
H
46 SUPREME COURT REPORTS [2022] 19 S.C.R.
A 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 and Jarnail Singh. Accordingly, this court holds
B
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. [Para 74][95-B-G]
C 2. There is no bar on the legislative competence of the
State to enact the 2021 Act. 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. As the
2021 Act dealt with sub-classification and apportionment of certain
D 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. Prior to the 105th
Amendment Act, what was prohibited for the State to carry out
E 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. There
is no bar to the sub-classification amongst backward classes,
F which has been expressly approved in Indra Sawhney. Even
considering the judgment in E.V. Chinnaiah, 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
G 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. Placing
of the 1994 Act under the Ninth Schedule cannot operate as a
hurdle for the State to enact legislations on matters ancillary to
H
PATTALI MAKKAL KATCHI v. A. MAYILERUMPERUMAL & 47
ORS.
the 1994 Act. Legislative competence of the State Legislature A
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.
Detailing the extent of reservation for communities already
identified as MBCs and DNCs, which is the thrust of the 2021
B
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. 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 C
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 D
Constitution. On the issue of caste- based classification, Indra
Sawhney 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 E
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, it is found that the Government has committed
an error in accepting the recommendations. Finally, on the 2021 F
Act, 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.
This Court upholds the judgment of the High Court on this aspect. G
Given our conclusion on the 2021 Act being ultra vires Articles
14, 15 and 16 of the Constitution, this Court has 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. [Para
77][96-G-H; 97-A-H; 98-A-H; 99-A-D] H
48 SUPREME COURT REPORTS [2022] 19 S.C.R.
A Dr Jaishri Laxmanrao Patil v. Chief Minister (2021) 8
SCC 1; Indra Sawhney v. Union of India (1992) 3 Supp
SCC 217 : [1992] 2 Supp SCR 454; E.V. Chinnaiah v.
State of A.P. (2005) 1 SCC 394 : [2004] 5 Suppl. SCR
972; Maharaj Umeg Singh v. State of Bombay 1955
AIR 540 : [1955] 2 SCR 164; - followed.
B
Jarnail Singh v. Lachhmi Narain Gupta (2018) 10 SCC
396; Shrimanth Balasaheb Patil v. Speaker, Karnataka
Legislative Assembly (2020) 2 SCC 595 : [2019] 16
SCR 886; - relied on.
C State of Madras v. Srimathi Champakam Dorairajan
1951 AIR 226 : [1951] SCR 525; S.V. Joshi v. State of
Karnataka (2012) 7 SCC 41; M. Nagaraj v. Union of
India (2006) 8 SCC 212 : [2006] 7 Suppl. SCR 336;
Ashoka Kumar Thakur v. Union of India (2008) 6 SCC
1 : [2008] 4 SCR 1; Abdul Rahim Ismail C. Rahimtoola
D v. State of Bombay 1959 AIR 1315 : [1960] 1 SCR
285; Ebrahim Vazir Mavat v. State of Bombay (1954)
AIR 229 : [1954] SCR 933; The Godavari Sugar Mills
Ltd. v. S. B. Kamble (1975) 1 SCC 696 : [1975] 3 SCR
885; Shri Ram Ram Narain Medhi v. State of Bombay
E (1959) AIR 459 : [1959] 1 Supp SCR 489; Sajjan Singh
v. State of Rajasthan (1965) AIR 845 : [1965] 1 SCR
933; Ramanlal Gulab Chand Shah v. State of Gujarat
(1969) AIR 168 : [1969] 1 SCR 42; State of Orissa v.
Chandrasekhar Singh Bhoi (1969) 2 SCC 334 : [1970]
1 SCR 593; State of Maharashtra v. Madhavrao
F Damodar Patil (1968 ) AIR 1395 : [1968] 3 SCR 712;
K.S. Paripoornan v. State of Kerala (1994) 5 SCC 593
: [1994] 3 Suppl. SCR 405; Shri Prithvi Cotton Mills
Ltd. v. Broach Borough Municipality (1969) 2 SCC 283
: [1970] 1 SCR 358; Janapada Sabha Chhindwara v.
G Central Provinces Syndicate Ltd. (1970) 1 SCC 509 :
[1970] 3 SCR 745; Plaut v. Spendthrift Farm Inc. 514
U.S. 211 (1995); Saghir Ahmad v. State of U.P. (1954)
AIR 728 : (1955) 1 SCR 707; M.P.V. Sundararamier
& Co. v. State of A.P. (1958) AIR 468 : [1958] 0 SCR
1422; Deep Chand v. State of Uttar Pradesh (1959) AIR
H
PATTALI MAKKAL KATCHI v. A. MAYILERUMPERUMAL & 49
ORS.
648 : [1959] 2 Supp SCR 8; Patel Gordhandas A
Hargovindas v. Municipal Commissioner, Ahmedabad
1963 AIR 1742 : [1964] 2 SCR 608; State of Punjab v.
Davinder Singh (2020) 8 SCC 1; K.C. Vasanth Kumar
v. State of Karnataka (1988) 4 SCC 590; UCO Bank v.
Dipak Debbarma (2017) 2 SCC 585 : [2016] 11 SCR
B
723; Arnold Rodricks v. State of Maharashtra 1966 AIR
1788 : [1966] 3 SCR 885; Rajiv Sarin v. State of
Uttarakhand (2011) 8 SCC 708 : [2011] 9 SCR 1012;
State of Kerala v. Peoples Union for Civil Liberties
(2009) 8 SCC 46 : [2009] 11 SCR 142; Dattatray Yedu
Thombre v. State of Maharashtra (2019) SCC Online C
Bom 4408; Citizens of Deulgaon Raja v. State of
Maharashtra (2003) 4 Bom CR 223 : (2002) SCC
Online Bom 735; Rasal Singh v. State of M.P. (1978)
SCC Online MP 12; Barium Chemicals Ltd. v. Company
Law Board (1967) AIR 295 : [1966] Supp SCR 311;
D
State of A.P. v. U.S.V. Balram (1972) 1 SCC 660 : [1972]
3 SCR 247; Ram Singh v. Union of India (2015) 4 SCC
497 : [2003] 5 Suppl. SCR 357; V. Narayana Rao v.
State of A.P. AIR 1987 AP 53 : (1986) 2 Andh LT 258;
Chiranjit Lal Chowdhuri v. Union of India (1951) AIR
41 : [1950] SCR 869; Ajay Kumar Singh v. State of E
Bihar (1994) 4 SCC 401; Col. A.S. Iyer v. V.
Balasubramanyam (1980) 1 SCC 634 : [1980] 1 SCR
1036; State of West Bengal v. Anwar Ali Sarkar (1952)
AIR 75 : [1952] SCR 284; Kathi Raning Rawat v. State
of Saurashtra (1952) AIR 123 : [1952] SCR 435; State
F
of Kerala v. N.M Thomas (1976) 2 SCC 310 : [1976] 1
SCR 906; Subramanian Swamy v. Director, Central
Bureau of Investigation (2014) 8 SCC 682 : [2014] 6
SCR 873; M.P. Cement Manufacturers’ Association v.
State of M. P. (2004) 2 SCC 249 : [2003] 6 Suppl. SCR
557- referred to. G
Case Law Reference
[1951] SCR 525 referred to Para 2
[2006] 7 Suppl. SCR336 referred to Para 7
[2008] 4 SCR 1 referred to Para 7 H
50 SUPREME COURT REPORTS [2022] 19 S.C.R.
A [1960] 1 SCR 285 referred to Para 17
[2019] 16 SCR 886 relied on Para 17
[1954] SCR 933 referred to Para 18
[1975] 3 SCR 885 referred to Para 21
B [1959] 1 Supp SCR 489 referred to Para 21
[1965] 1 SCR 933 referred to Para 21
[1969] 1 SCR 42 referred to Para 21
[1970] 1 SCR 593 referred to Para 21
C
[1968] 3 SCR 712 referred to Para 21
[1994] 3 Suppl. SCR405 referred to Para 24
[1970] 1 SCR 358 referred to Para 24
[1970] 3 SCR 745 referred to Para 27
D
[1964] 2 SCR 608 referred to Para 29
[2004] 5 Suppl. SCR972 followed Para 32
(1955) 1 SCR 707 referred to Para 32
[1958] 0 SCR 1422 referred to Para 32
E
[1959] 2 Supp SCR 8 referred to Para 32
[1992] 2 Supp SCR 454 followed Para 33
[1972] 3 SCR 247 referred to Patra 37
F [2016] 11 SCR 723 referred to Para 41
[1955] 2 SCR 164 followed Para 43
[1966] 3 SCR 885 referred to Para 47
[2011] 9 SCR 1012 referred to Para 47
G [2009] 11 SCR 142 referred to Para 48
[1966] Supp SCR 311 referred to Para 56
[2003] 5 Suppl. SCR357 referred to Para 65
[1950] SCR 869 referred to Para 70
H [1980] 1 SCR 1036 referred to Para 70
PATTALI MAKKAL KATCHI v. A. MAYILERUMPERUMAL & 51
ORS.
[1952] SCR 284 referred to Para 72 A
[1952] SCR 435 referred to Para 72
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2600
of 2022.
From the Judgment and Order dated 01.11.2021 of the High Court B
of Madras at Madurai Bench in W.P. No. 7765 of 2021.
With
Civil Appeal Nos. 2601, 2602, 2603, 2604, 2605, 2606, 2607, 2608,
2609, 2610, 2611, 2612-2642 of 2022.
C
Krishnamoorthy, AAG, Abhishek Manu Singhvi, P. Wilson, Rakesh
Diwedi, Mukul Rohatgi, C. S. Vaidyanathan, M. N. Rao, Radhakrishnan,
Vijay Narayan, Sr. Advs., Varun K. Chopra, Amit Bhandari, D. Kumanan,
Naman Joshi, Yash Johri, Sheikh F. Kalia, Guneet Sidhu, Ms. Sansriti
Pathak, S. Agilesh Kumar, B. Karunakaran, K. Balambihai, Anoop
Prakash Awasthi, Ms. Diksha Rai, Gowtham Kumar, Ankit Agarwal, D
Prateek Bharadwaj, Ms. Ragini Pandey, S. Thananjayan, Ms. Jaswanthi,
Ms. Aaina Verma, M. R. Jothimanian, K. Balu, Vinoba Boopathy, Ms.
Promila, Ms. C. Rubavathi, Balaji Srinivasan, Ms. Pallavi Sengupta, Ms.
Aakriti Priya, Ms. Garima Jain, Ms. Lakshmi Rao, Prateek Yadav,
Mohammed Shahrukh, G. Sivabalamurugan, Mahendran Selvaraj, P.
E
Shankar, Ms. Vibha Srivasta, Advs. for the Appellant.
Sanjay Jain, ASG, R. Balasubramanian, Dr. Rajeev Dhawan, K.
M. Vijayan, S. Nagamuthu, Gopal Shankaranarayanan, V. Prakash,
Jaideep Gupta, Colin Gonsalves, Devadatt Kamat, Sr. Advs., R. Anand,
Nithin Saravanan, Ms. Arunima Singh, Karunakar Mahalik, Ms. Manika
F
Priya Saravanan, Ms. Priyadarshini, Ms. Ridhima Malhotra, P. V.
Yogeswaran, Ashish Kumar Upadhyay, Y. Lokesh, V. Sibi Kargil, Anubhav
Chaturvedi, Arun Singh, Abhisar Thakral, S. Gowthaman, Ms. M.
Venmani, G. Venkateswaramoorthy, G. Ananda Selvam, Dr. Ram Sankar,
Dr. Santhakumaran, S. Vinayak, Ms. Lakshmi Ramamurthy, Parijat
Kishore, Beno Bencigar, Ms. N.P. Haibila, Dema Seshadiri Naidu, M. G
P. Parthiban, Ishan George, Anish R. Shah, R. Sudhakaran, Ananvay
Anandvardhan, Siddharth Chapalgaokar, Deepak Goel, Chinmayee
Chandra, Amrish Kumar, M. P. Parthiban, Ms. Shalini Mishra, Ms. Shivani
Vij, Ms. Porkodi, S. Ramasubramanian, A. S. Vairawan, C. Ramar, G. S.
Mani, Rajesh Maurya, Abhay Singh Yadav, Ajay Singh, Pramod Kumar
H
52 SUPREME COURT REPORTS [2022] 19 S.C.R.
A Yadav, R. Sathish, Rahul Kaushik, Sanjay Visen, A. Rajarajan, Ms. L.
Vasuki Rajarajan, K. Paari Vendhan, Ms. Babita Mishra, Ms. Adira A.
Nair, Prabhu Ramasubramanian, Raghunatha Sethupathy, G.
Murugendran, Karuppaiah Meeyyappan, Ms. Priya, S. Senthil Elangovan,
S. Krishna Moorthy, K. Kumaravadivel, Rajeev Maheshwaranand Roy,
Nishe Rajen Shonker, Ms. Anu K. Joy, Alim Anvar, Shiyas Kr., Satya
B
Mitra, M. Yogesh Kanna, Rajarajeshwaran S., P. M. Vishnu Varthanan,
R. Vignesh, Pradeep Phaniraj Advs. for the Respondents.
The Judgment of the Court was delivered by
L. NAGESWARA RAO, J.
C Leave granted.
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
D 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.
I. Background
2. Communal representation in public services existed in the
E
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
F 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.
G
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
1
H 1951 SCR 525
PATTALI MAKKAL KATCHI v. A. MAYILERUMPERUMAL & 53
ORS. [L. NAGESWARA RAO, J.]
for Scheduled Castes and Scheduled Tribes together and 25 per cent for A
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’
B
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 C
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 D
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 seats in all kinds of educational institutions under
Government, local body and aided managements and posts for recruitment E
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 F
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 G
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
H
54 SUPREME COURT REPORTS [2022] 19 S.C.R.
A 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. On 30.07.1985, the State Government issued G.O. Ms. No.
1564 notifying 201 communities as Backward Classes throughout the
B 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
C 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
D 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
E 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
F 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
G 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
H
PATTALI MAKKAL KATCHI v. A. MAYILERUMPERUMAL & 55
ORS. [L. NAGESWARA RAO, J.]
reserved power to classify or sub-classify, by notification, the ‘Backward A
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
B
DNCs. By the Constitution (Seventy-sixth 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 C
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 India 4, had not been undertaken. Further, the State
Government was directed to place quantifiable data before the Tamil D
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 E
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 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 F
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 G
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
2
(2012) 7 SCC 41
3
(2006) 8 SCC 212
4
(2008) 6 SCC 1 H
56 SUPREME COURT REPORTS [2022] 19 S.C.R.
A 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
B
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 M.
C
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
D 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
E
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
F
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 amongst the MBCs and DNCs based
G 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
H
PATTALI MAKKAL KATCHI v. A. MAYILERUMPERUMAL & 57
ORS. [L. NAGESWARA RAO, J.]
reservation in appointment or posts in the services under the State were A
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,
B
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 C
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?
D
(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
E
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 F
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? G
(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 H
58 SUPREME COURT REPORTS [2022] 19 S.C.R.
A 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,
the 2021 Act was declared ultra vires the provisions of the Constitution.
B
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,
C 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
D 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
E 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 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.
F
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
G 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
H
PATTALI MAKKAL KATCHI v. A. MAYILERUMPERUMAL & 59
ORS. [L. NAGESWARA RAO, J.]
the 2021 Act with respect to Section 31-B of the Constitution. He stated A
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 B
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 C
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 Bombay5 and Shrimanth Balasaheb Patil v. Speaker, Karnataka
Legislative Assembly6. As both the stated conditions are not satisfied in D
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 E
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 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 F
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 G
Constitution, the determination of which was necessary for the disposal
of the case. This Court was of the opinion that the existence of substantial
5
(1960) 1 SCR 285
6
(2020) 2 SCC 595
7
1954 SCR 933 H
60 SUPREME COURT REPORTS [2022] 19 S.C.R.
A 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
B 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 105th Amendment Act is clarificatory
involves interpretation of the 105th 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
C 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
D 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
E 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
F to that of a statute placed in the Ninth Schedule. Article 31-B has been
construed by this Court in The Godavari Sugar Mills Ltd. v. S. B.
Kamble8, Shri Ram Ram Narain Medhi v. State of Bombay9, Sajjan
Singh v. State of Rajasthan10, Ramanlal Gulab Chand Shah v. State
of Gujarat11, State of Orissa v. Chandrasekhar Singh Bhoi12 and
G State of Maharashtra v. Madhavrao Damodar Patil 13. In view of the
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
H 13
(1968) 3 SCR 712
PATTALI MAKKAL KATCHI v. A. MAYILERUMPERUMAL & 61
ORS. [L. NAGESWARA RAO, J.]
above judgments, which are discussed later, it is not necessary for this A
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 B
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, C
and as amended by the 105th Amendment Act (italicized), which came
into force from 15.08.2021 in terms of the notification dated 15.09.2021
issued by the Ministry of Social Justice and Empowerment, are as below:
Article 338-B. National Commission for Backward Classes.-
D
(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 E
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.- F
(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 G
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 H
62 SUPREME COURT REPORTS [2022] 19 S.C.R.
A 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
B 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
C different from the Central List.
Article 366. Definitions.-
xxx
(26C) “socially and educationally backward classes” means
D 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
E
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 105th Amendment Act restored the power of the States
F 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, according to
the High Court, the impugned legislation, which was brought into effect
prior to the enactment of the 105th Amendment Act, was unconstitutional
in view of the majority opinion in Dr Jaishri Laxmanrao Patil (supra).
G
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
H 14
(2021) 8 SCC 1
PATTALI MAKKAL KATCHI v. A. MAYILERUMPERUMAL & 63
ORS. [L. NAGESWARA RAO, J.]
instead sought to be done by the 2021 Act is sub-classification of the A
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
102nd Amendment Act. Though a writ petition challenging the 1994 Act
is pending consideration, there has been no interim order staying the
B
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, C
was always the intention behind these provisions, i.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 105th Amendment Act as well
D
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 E
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
F
Prithvi Cotton Mills Ltd. v. Broach Borough Municipality16 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 G
this Court in Dr Jaishri Laxmanrao Patil (supra) only excluded the
specification of SEBCs by the States under the 102nd Amendment Act.
15
(1994) 5 SCC 593
16
(1969) 2 SCC 283 H
64 SUPREME COURT REPORTS [2022] 19 S.C.R.
A 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.
B 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 102nd 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
C
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 105th Amendment Act, it was argued that the said amendment is
unquestionably prospective. Wherever it had been the intention of the
D 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
E
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
F 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 105th Amendment Act that it was
G 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 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
H
PATTALI MAKKAL KATCHI v. A. MAYILERUMPERUMAL & 65
ORS. [L. NAGESWARA RAO, J.]
Sabha Chhindwara v. Central Provinces Syndicate Ltd. 17 and a 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 105th Amendment Act cannot be treated
to be a validating provision, as there has been no ‘invalidation’ of the
B
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 102 nd Amendment Act and therefore, the 2021 Act is an
impermissible exercise on the part of the State Legislature. He was C
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,
M.P.V. Sundararamier & Co. v. State of A.P.20 and Deep Chand v.
State of Uttar Pradesh21. Dr. Dhawan, joining Mr. Sankaranarayanan
D
in asserting that the 105th 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 E
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 F
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 G
17
(1970) 1 SCC 509
18
514 U.S. 211 (1995)
19
(1955) 1 SCR 707
20
1958 SCR 1422
21
1959 Supp (2) SCR 8 H
66 SUPREME COURT REPORTS [2022] 19 S.C.R.
A of a statute are ambiguous, the first 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 105th Amendment Act
has come into effect. The 105th Amendment Act cannot be said to be a
validating amendment, as admittedly the 102nd Amendment Act has not
B
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 105th Amendment Act was made to
clarify the judgment of this Court in Dr Jaishri Laxmanrao Patil (supra).
C 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, Ahmedabad 22 . The
D 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
E 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
F 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 procedure, has to be construed as retrospective along the
G 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
22
H (1964) 2 SCR 608
PATTALI MAKKAL KATCHI v. A. MAYILERUMPERUMAL & 67
ORS. [L. NAGESWARA RAO, J.]
Act and the 105th Amendment Act is only the manner of publication of A
the lists of SEBCs, whereas the substantive element of the said
amendments is identifying and 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 102nd Amendment Act came into
B
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 C
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 D
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, E
the kind of 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 F
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.
G
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 H
68 SUPREME COURT REPORTS [2022] 19 S.C.R.
A 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
B
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
C (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
D
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.
E 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 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
F 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
G 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
23
(2005) 1 SCC 394
24
H 1992 Supp (3) SCC 217
PATTALI MAKKAL KATCHI v. A. MAYILERUMPERUMAL & 69
ORS. [L. NAGESWARA RAO, J.]
E.V. Chinnaiah (supra) has been referred for consideration by a larger A
Bench in State of Punjab v. Davinder Singh25. 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. B
Balasubramanian submitted that backward classes can be sub-divided
into backward and more backward classes in accordance with Indra
Sawhney (supra), but further differentiation of MBCs is not permissible
as it would amount to micro-classification, as correctly held by the High
Court. C
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 D
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 E
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: F
“(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?
G
(3) Whether the impugned enactment creates subclassification
or micro-classification of Scheduled Castes so as to violate
Article 14 of the Constitution of India?”
25
(2020) 8 SCC 1 H
70 SUPREME COURT REPORTS [2022] 19 S.C.R.
A 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
B
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
C 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
D out that sub-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
E 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
F
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.
G 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 Karnataka26:
H 26
1985 Supp SCC 714
PATTALI MAKKAL KATCHI v. A. MAYILERUMPERUMAL & 71
ORS. [L. NAGESWARA RAO, J.]
“802. We are of the opinion that there is no constitutional or A
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
B
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 C
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
D
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 E
backward among the backward classes obtain the benefits
intended for them. Where to draw the line and how to effect
the sub-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
F
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 G
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.
H
72 SUPREME COURT REPORTS [2022] 19 S.C.R.
A 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
B 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
C 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 and dry.
D 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
E 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
F 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
G 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
H Commission for Backward Classes under Article 342-A. Admittedly,
PATTALI MAKKAL KATCHI v. A. MAYILERUMPERUMAL & 73
ORS. [L. NAGESWARA RAO, J.]
this was not done till the time of enactment of the 2021 Act. As stated A
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
B
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 C
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 D
reservation to one community from amongst that group of communities
by way of a separate but similar legislation. Reference was drawn to
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 E
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 F
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 G
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. H
74 SUPREME COURT REPORTS [2022] 19 S.C.R.
A 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
B
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
C 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
D
(supra), Godavari Sugar Mills Ltd. (supra) and UCO Bank v. Dipak
Debbarma 27.
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.
E
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.
F
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.
G 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
H 27
(2017) 2 SCC 585
PATTALI MAKKAL KATCHI v. A. MAYILERUMPERUMAL & 75
ORS. [L. NAGESWARA RAO, J.]
the provisions thereof on the ground that they are inconsistent with or A
take away or abridge any of the rights conferred by Part III of the
Constitution. The result is that 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
B
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 C
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 D
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
E
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 strictly, and it would not, in our opinion, be F
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
G
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 H
76 SUPREME COURT REPORTS [2022] 19 S.C.R.
A 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
B 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
C 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 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
D
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
E 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
F
for us to reiterate the authoritative pronouncement of a five-Judge Bench
of this Court in Maharaj Umeg Singh v. State of Bombay28, relevant
portion of which is reproduced below:
“13. … The legislative competence of the State Legislature
can only be circumscribed by express prohibition contained
G
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
28
H (1955) 2 SCR 164
PATTALI MAKKAL KATCHI v. A. MAYILERUMPERUMAL & 77
ORS. [L. NAGESWARA RAO, J.]
fetter or limitation on the plenary powers which the State A
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
B
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 Courtthat the State Legislature lacked legislative competence
C
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
D
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
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 E
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
F
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
G
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.
H
78 SUPREME COURT REPORTS [2022] 19 S.C.R.
A D. Effect of the 1994 Act receiving Presidential Assent under
Article 31-C of the Constitution
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
B 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
C 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
D 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 Maharashtra29 and Rajiv Sarin v. State
of Uttarakhand30.
E 48. Mr. Vaidyanathan relied upon a judgment of this Court in State
of Kerala v. Peoples Union for Civil Liberties31 as well as judgments
of the High Court of Bombay in Dattatray Yedu Thombre v. State of
Maharashtra 32 and Citizens of Deulgaon Raja v. State of
Maharashtra33 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
F 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
G
29
(1966) 3 SCR 885
30
(2011) 8 SCC 708
31
(2009) 8 SCC 46
32
2019 SCC Online Bom 4408
33
2002 SCC Online Bom 735
34
H 1978 SCC Online MP 12
PATTALI MAKKAL KATCHI v. A. MAYILERUMPERUMAL & 79
ORS. [L. NAGESWARA RAO, J.]
of Article 254. Mr. Vaidyanathan contended that assent of the President A
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
B
or posts In the services under the State within the Reservation for the
Scheduled Castes) Act, 2009.
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 C
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 D
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 E
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 statute which has received the assent of the President, F
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 G
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
H
80 SUPREME COURT REPORTS [2022] 19 S.C.R.
A 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
B
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 public
educational institutions as well as to make other special provisions as
may be necessary for their advancement. From these observations and
C 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
D 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
E
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.
F
IV. Caste-based classification
52. Internal reservation of 10.5 per cent for the Vanniakula
Kshatriyas was challenged by the writ petitioners before the 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
G
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
H
PATTALI MAKKAL KATCHI v. A. MAYILERUMPERUMAL & 81
ORS. [L. NAGESWARA RAO, J.]
that such classification on the basis of caste is impermissible. This Court A
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 B
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; C
(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 D
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 E
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 F
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 G
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 reservation for the Vanniakula Kshatriyas. We propose
to deal with that point subsequently. At present, we have answered the H
82 SUPREME COURT REPORTS [2022] 19 S.C.R.
A 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
B 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
C 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),
D 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 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
E 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
F 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
G 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
35
H (2018) 10 SCC 396
PATTALI MAKKAL KATCHI v. A. MAYILERUMPERUMAL & 83
ORS. [L. NAGESWARA RAO, J.]
2500 personnel and going door-to-door to collect particulars of around A
five crore people over a period of two years, with a view to find out and
identify 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
B
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 C
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
D
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 not applied its mind to the reports and the extensive findings E
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 Board 36 for
instances where the subjective opinion of the State is involved, and that
F
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 G
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
36
1966 Supp SCR 311 H
84 SUPREME COURT REPORTS [2022] 19 S.C.R.
A 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
B
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
C 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
D 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
E referred to 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 record38. Having considered the above judgments,
F 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
G 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
37
(1972) 1 SCC 660
38
H B.K. Pavitra v. Union of India (2019) 16 SCC 129
PATTALI MAKKAL KATCHI v. A. MAYILERUMPERUMAL & 85
ORS. [L. NAGESWARA RAO, J.]
the Commission. The other members of the Commission, except the A
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 not furnished to them. The majority
members observed that their term was coming to an end in July, 2012
B
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 C
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
D
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 E
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 F
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 G
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. H
86 SUPREME COURT REPORTS [2022] 19 S.C.R.
A 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 of the Vanniakula Kshatriyas was 10.562 per cent.
B
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
C 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
D 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
E
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 01.08.2010, was 8.67 per cent, which was
also below 10.5 per cent, i.e., the percentage of internal reservation
F 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.
G 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,
H
PATTALI MAKKAL KATCHI v. A. MAYILERUMPERUMAL & 87
ORS. [L. NAGESWARA RAO, J.]
recommended 10.5 per cent reservation for Vanniakula Kshatriyas, seven A
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
B
of the other members by stating that such opinion was based on
extraneous reasons, which were irrelevant and not germane to 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 C
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
D
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 E
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 F
remaining six members of the Tamil Nadu 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 G
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 H
88 SUPREME COURT REPORTS [2022] 19 S.C.R.
A 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.
B
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.
C 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
D 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
E 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
F 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
G 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
H
PATTALI MAKKAL KATCHI v. A. MAYILERUMPERUMAL & 89
ORS. [L. NAGESWARA RAO, J.]
representation of backward class has to be contrasted with A
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 B
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 C
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 D
on the basis of contemporaneous inputs and not outdated and antiquated
data39. Any study by the 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 community40. In this particular
case, the data that was relied on for the purpose of recommending internal E
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. F
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 G
Vanniakula Kshatriyas to the total population of MBCs and DNCs, termed
as the feasibility formula, was the sole criterion which was considered
39
Ram Singh v. Union of India (2015) 4 SCC 497
40
Dr Jaishri Laxmanrao Patil (supra) H
90 SUPREME COURT REPORTS [2022] 19 S.C.R.
A 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 total population of the MBCs and DNCs together. This
Court is of the opinion that percentage of population of the Vanniakula
B
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
C 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
D 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
E 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 fair
F 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
G 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
H IC 152 : (1986) 2 Andh LT 258] , striking down the
PATTALI MAKKAL KATCHI v. A. MAYILERUMPERUMAL & 91
ORS. [L. NAGESWARA RAO, J.]
enhancement of reservation from 25% to 44% for OBCs. The A
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 B
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 C
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 D
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- E
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 F
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.
Representation of Vanniyars in public posts in the Government of Tamil G
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
H
92 SUPREME COURT REPORTS [2022] 19 S.C.R.
A 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
B
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
C Court. We are further informed that numerous trusts have been
established, which cater to the betterment of members, 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
D 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.
E 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
F 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
G 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
H the 1994 Act.
PATTALI MAKKAL KATCHI v. A. MAYILERUMPERUMAL & 93
ORS. [L. NAGESWARA RAO, J.]
70. That there is no relevant, contemporaneous material which A
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
B
Appellants, relied on Chiranjit Lal Chowdhuri v. Union of India41, 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 C
special provision should be made in favour of a particular class, having
regard to the 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.
D
Iyer v. V. Balasubramanyam43 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, E
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 F
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 relation to the thing in respect to which the
classification is made; and classification made without any reasonable G
basis should be regarded as invalid44. The whole doctrine of classification
41
1950 SCR 869
42
(1994) 4 SCC 401
43
(1980) 1 SCC 634
44
State of West Bengal v. Anwar Ali Sarkar 1952 SCR 284 H
94 SUPREME COURT REPORTS [2022] 19 S.C.R.
A 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 circumstances45.
B
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,
C 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
D backward. Articles 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
E not have a different content from equality under Article 14 46. 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 immaterial47.
F 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
G 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
45
Kathi Raning Rawat v. State of Saurashtra 1952 SCR 435
46
State of Kerala v. N.M Thomas (1976) 2 SCC 310
47
H Subramanian Swamy v. Director, Central Bureau of Investigation (2014) 8 SCC 682
PATTALI MAKKAL KATCHI v. A. MAYILERUMPERUMAL & 95
ORS. [L. NAGESWARA RAO, J.]
together for the purposes of receiving the benefits of 20 per cent A
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
B
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 C
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 D
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 E
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 F
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.
G
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 H
96 SUPREME COURT REPORTS [2022] 19 S.C.R.
A 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 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
B
States. However, the 2021 Act was brought into force prior to the 105 th
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
C 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
D 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.
E Legislative competence can only be circumscribed by express prohibition
contained in the Constitution itself48 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
F
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.
G 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:
H 48
M.P. Cement Manufacturers’ Association v. State of M. P. (2004) 2 SCC 249
PATTALI MAKKAL KATCHI v. A. MAYILERUMPERUMAL & 97
ORS. [L. NAGESWARA RAO, J.]
(i) The 105th Amendment Act being prospective in operation, A
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 B
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, C
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 D
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 E
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. F
(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 G
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, H
98 SUPREME COURT REPORTS [2022] 19 S.C.R.
A 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
B 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
C well as executive orders, under Articles 15(4) and 16(4) of
the Constitution.
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
D 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
E 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
F 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.
G (ii) Apart from approving the report of the Chairman of the
Janarthanam Commission with respect to internal
reservation for the Vanniakula Kshatriyas and making
additional recommendations on the grouping of the remaining
communities for specific percentages of reservation, the
letter from Justice Thanikachalam does not refer to any
H analysis or assessment of the relative backwardness and
PATTALI MAKKAL KATCHI v. A. MAYILERUMPERUMAL & 99
ORS. [L. NAGESWARA RAO, J.]
representation of the communities within the MBCs and A
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 B
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 C
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 D
the merits of the writ petition challenging the 1994 Act, pending
consideration before this Court, or, for that matter, 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.
E
79. The Appeals are disposed of accordingly.
Ankit Gyan Appeals disposed of.
(Assisted by : Iram Jan, LCRA)
F
G
H
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