PATTALI MAKKAL KATCHI versus A. MAYILERUMPERUMAL & ORS.

[2022] 19 S.C.R.

PATTALI MAKKAL KATCHI

A. MAYILERUMPERUMAL & ORS.

(Civil Appeal No. 2600 of 2022)

BMARCH 31, 2022

[L. NAGESWARA RAO AND B. R. GAVAI, JJ.]

Tamil Nadu Special Reservation of seats in EducationalInstitutions including Private Educational Institutions and ofappointments or posts in the services under the State within theCReservation for the Most Backward Classes and DenotifiedCommunities Act, 2021 – Tamil Nadu Backward Classes, ScheduledCastes and Scheduled Tribes (Reservation of seats in EducationalInstitutions and of appointments or posts in the Services under theState) Act, 1993 – ss. 2, 3(a), 4, 5 & 7 – Validity of 2021 Act –DBackward Class Reservation – Reservation of seats in educationalinstitutions – Reservation in appointments or posts in the servicesunder the state – Classification of Backward Classes – An Act (2021Act) for special reservation within 20% reserved Most BackwardClasses (MBCs) and De-notified Communities (DNCs) was passedby State assembly – The bill provides reservation of seats in privateEeducational institutions, and reservation in appointment or posts inthe services under the State – 10.5% reservation was specificallyearmarked for the Vanniyakula Kshatriya community – Writ petitionswere filed in the High Court assailing the constitutional validity of2021 Act – The High Court held that the State Legislature had noFcompetence to enact the 2021 Act and there was no quantifiabledata – The High Court further found that the internal reservationmade only on the basis of caste is violative of Constitution – Onappeal, held: There is no bar on the legislative competence of theState to enact the 2021 Act – State Government has the competenceto classify the Vanniakula Kshatriyas or any other community orGgroup of communities within backward classes as particular classfor the grant of special measures, there should be reasonablebasis for categorising such communities into different section fromthe rest of the communities within the MBCs and DNCs, on groundswhich cannot be superficial or illusory – By taking into accountHthe population of the Vanniakula Kshatriyas as enumerated in the

report of the Ambasankar Commission in 1985, the Chairmanrecommended internal reservation, i.e., 10.5 per cent – Any studyby the Commission should be with regard to the present status sincethe object is to take affirmative actions in present or in future toaddress the needs of particular community – There was nosubstantial basis for classifying the Vanniakula Kshatriyas into onegroup to be treated differentially from the remaining 115 communitieswithin the MBCs and DNCs, and therefore, the 2021 Act is inviolation of Articles 14, 15 and 16.

Constitution of India – Art. 341 – 102[nd] Amendment Act –Sub Categorisation of Classes – What the 102[nd] Amendment prohibitsthe State from undertaking is identifying caste as SEBC orincluding or excluding community from the list notified by thePresident – close scrutiny of E.V. Chinnaiahwould make it clearthat the High Court was wrong in relying upon the said judgment tohold that sub classification of backward classes is beyond thelegislative competence of the State – Presidential list for SEBCsdid not come into existence and the question of sub-division of thesaid list by way of the 2021 Act does not arise.

Constitution (First Amendment) Act, 1951 — Article 31-B - It issettled law that any amendment made to statute placed under theNinth Schedule does not get protection under Article 31-B, unless thesaid amendment is also included in the Ninth Schedule— Thus, Article31-B does not operate as hurdle for the State to enact statutes onmatters ancillary to the 1994 Act – It is made clear that it was open tothe State to have amended the 1994 Act – At the same time, it cannotbe said that the State Legislature lacked competence to enact alegislation for determining the extent of reservation amongst the MBCsand DNCs.Disposing of the appeals, the Court

Held: 1.1 Equal laws would have to be applied to all in thesame situation, and there should be no discrimination betweenone person and another if as regards the subject matter of thelegislation their position is substantially the same. This brings inthe question of classification. As there is no infringement of theequal protection rule, if the law deals alike with all of certainclass, the legislature has the undoubted right of classifying

[2022] 19 S.C.R.

Apersons and placing those whose conditions are substantiallysimilar under the same rule of law, while applying different rulesto persons differently situated. The classification should neverbe arbitrary, artificial or evasive. It must rest always upon realand substantial distinction bearing reasonable and just relationto the thing in respect to which the classification is made; andBclassification made without any reasonable basis should beregarded as invalid. The whole doctrine of classification is basedon discrimination without reason and discrimination with reasonand on the well-known fact that the circumstances which governone set of persons or objects may not necessarily be the same asCthose governing another set of persons or objects so that thequestion of unequal treatment does not really arise as betweenpersons governed by different conditions and different sets ofcircumstances. [Para 71][93-E-G; 94-A-B]

1.2 Discrimination is the essence of classification. EqualityDis violated if it rests on unreasonable basis. The concept of equalityhas an inherent limitation arising from the very nature of theconstitutional guarantee. Those who are similarly circumstancedare entitled to an equal treatment. Equality is amongst equals.Classification is, therefore, to be founded on substantialdifferences which distinguish persons grouped together fromEthose left out of the groups and such differential attributes mustbear just and rational relation to the object sought to beachieved. Our Constitution aims at equality of status andopportunity for all citizens including those who are socially,economically and educationally backward. Articles15(4) and 16(4)Fbring out the position of backward classes to merit equality.Special provisions are made for the advancement of backwardclasses and reservation of appointments and posts for them tosecure adequate representation. These provisions are intendedto bring out the content of equality guaranteed by Articles 14,

15(1) and 16(1). However, it is to be noted that equality underGArticles 15 and 16 could not have different content from equalityunder Article 14. Differentia which is the basis of classificationmust be sound and must have reasonable relation to the objectof the legislation. If the object itself is discriminatory, thenexplanation that classification is reasonable having rationalH

relation to the object sought to be achieved is immaterial.[Para72][94-B-F]

1.3 The object of the 2021 Act is to achieve equitabledistribution of the benefit of 20 per cent reservation provided toMBCs and DNCs. At the cost of repetition, at the time ofenactment of the 2021 Act, 116 castes were to be found in thecumulative lists of MBCs and DNCs. Choosing particular casteand providing special reservation of 10.5 per cent out of the 20per cent to such caste is discriminatory, in the absence of anysound differentiation from communities who are similarly situatedand were, therefore, grouped together for the purposes ofreceiving the benefits of 20 per cent reservation. While the StateGovernment has the competence to classify the VanniakulaKshatriyas or any other community or group of communities withinbackward classes as particular class for the grant of specialmeasures, there should be reasonable basis for categorisingsuch communities into different section from the rest of thecommunities within the MBCs and DNCs, on grounds whichcannot be superficial or illusory. [Para 73][94-F-G; 95-A-B]The justification on behalf of the State is that sufficientmaterial was gathered by the Tamil Nadu Backward ClassesCommission to show that there was inadequate representation,disproportionate to the population of the Vanniakula Kshatriyas,thereby culminating in the 2021 Act, which aimed to achieveequitable distribution of reservation amongst MBCs and DNCs.A perusal of the discussion in the earlier paragraphs woulddisclose that the letter from the Chairman, Backward ClassesCommission is on the basis of antiquated data, without anyassessment of the relative backwardness and representation ofthe Vanniakula Kshatriyas and their ability to compete with theremaining 115 communities within the MBCs and DNCs.Additionally, recommendations therein are solely based onpopulation. To differentiate particular class / category fromothers, there should be substantial distinction which clearlydemarcates that class / category. In the instant case, we see nojustification for how the Vanniakula Kshatriyas can be treatedasa different class and meted out preferential treatment, being

Aone amongst the 116 communities, who have all been consideredon the same footing till the enactment of the 2021 Act and were,therefore, eligible to claim the benefit of undivided 20 per centreservation. Population being cited as the sole factor to supportthis classification is in the teeth of the judgments of this Court inIndra Sawhney and Jarnail Singh. Accordingly, this court holdsBthat the classification sought to be made under the 2021 Act isunreasonable and, therefore, the 2021 Act is violative of Articles14, 15 and 16, as there is no substantial basis for differentiatingthe Vanniakula Kshatriyas and granting them separate

reservation. [Para 74][95-B-G]

2. There is no bar on the legislative competence of theState to enact the 2021 Act. The 105th Amendment Act beingprospective in operation, it is the 102nd Amendment Act whichheld the field at the time of enactment of the 2021 Act. As the2021 Act dealt with sub-classification and apportionment of certainDpercentage of reservation for the purpose of determining theextent of reservation of communities within the MBCs and DNCs,it is permissible exercise of power by the State Governmentunder Article 342-A of the Constitution in terms of the judgmentof this Court in Dr Jaishri Laxmanrao Patil. Prior to the 105thAmendment Act, what was prohibited for the State to carry outEunder Article 342-A is the identification of SEBCs, by inclusionor exclusion of communities in the Presidential list of SEBCs. Itis clear that the exercise of identification of MBCs and DNCshad been completed by the State pursuant to the 1994 Act. Thereis no bar to the sub-classification amongst backward classes,Fwhich has been expressly approved in Indra Sawhney. Evenconsidering the judgment in E.V. Chinnaiah, which dealt with thesub-classification of Scheduled Castes identified in thePresidential list under Article 341 and held that any sub-divisionof Scheduled Castes by the State would amount to tinkering withthe Presidential list, the State’s competence in the present caseGto 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. Placingof the 1994 Act under the Ninth Schedule cannot operate as ahurdle for the State to enact legislations on matters ancillary toHthe 1994 Act. Legislative competence of the State Legislaturecan only be circumscribed by express prohibition contained inthe Constitution itself and Article 31-B does not stipulate anysuch express prohibition on the legislative powers of the State.Detailing the extent of reservation for communities alreadyidentified as MBCs and DNCs, which is the thrust of the 2021Act, cannot be said to be in conflict with the 1994 Act, asdetermination of extent of reservation for various communitieswas not the subject matter of the 1994 Act. The 1994 Act, havingreceived the assent of the President under Article 31-C, doesnot prohibit the State Legislature from enacting legislation withthe approval of the Governor on matters ancillary to the 1994Act, as Article 31-C does not place any fetter on the legislativepowers of the State. The State cannot be compelled to seek theassent of the President for legislation granting internalreservation, when it is empowered to provide reservation andother special measures for backward classes, by way of legislationas well as executive orders, under Articles 15(4) and 16(4) of theConstitution. On the issue of caste- based classification, IndraSawhney has, in precise and unambiguous terms, stated that castecan be the starting point for identifying backward classes, but itcannot be the sole basis. Accordingly, while caste can be thestarting point for providing internal reservation, it is incumbenton the State Government to justify the reasonableness of thedecision and demonstrate that caste is not the sole basis. Asregards the letter of Justice Thanikachalam, Chairman of theTamil Nadu Backward Classes Commission, which forms the basisof the 2021 Act, it is found that the Government has committedan error in accepting the recommendations. Finally, on the 2021Act, there is no substantial basis for classifying the VanniakulaKshatriyas into one group to be treated differentially from theremaining 115 communities within the MBCs and DNCs, andtherefore, the 2021 Act is in violation of Articles 14, 15 and 16.This Court upholds the judgment of the High Court on this aspect.Given our conclusion on the 2021 Act being ultra vires Articles14, 15 and 16 of the Constitution, this Court has refrained fromdelving into the issue of non-compliance by the State Governmentwith the consultation requirement prescribed under clause (9) ofArticle 338-B at the time of enactment of the 2021 Act. [Para77][96-G-H; 97-A-H; 98-A-H; 99-A-D]

CDEF

Dr Jaishri Laxmanrao Patil v. Chief Minister (2021) 8SCC 1; Indra Sawhney v. Union of India (1992) 3 SuppSCC 217 : [1992] 2 Supp SCR 454; E.V. Chinnaiah v.State of A.P. (2005) 1 SCC 394 : [2004] 5 Suppl. SCR972; Maharaj Umeg Singh v. State of Bombay 1955AIR 540 : [1955] 2 SCR 164; - followed.

Jarnail Singh v. Lachhmi Narain Gupta (2018) 10 SCC396; Shrimanth Balasaheb Patil v. Speaker, KarnatakaLegislative Assembly (2020) 2 SCC 595 : [2019] 16SCR 886; - relied on.

State of Madras v. Srimathi Champakam Dorairajan1951 AIR 226 : [1951] SCR 525; S.V. Joshi v. State ofKarnataka (2012) 7 SCC 41; M. Nagaraj v. Union ofIndia (2006) 8 SCC 212 : [2006] 7 Suppl. SCR 336;Ashoka Kumar Thakur v. Union of India (2008) 6 SCC1 : [2008] 4 SCR 1; Abdul Rahim Ismail C. Rahimtoolav. State of Bombay 1959 AIR 1315 : [1960] 1 SCR285; Ebrahim Vazir Mavat v. State of Bombay (1954)AIR 229 : [1954] SCR 933; The Godavari Sugar MillsLtd. v. S. B. Kamble (1975) 1 SCC 696 : [1975] 3 SCR885; Shri Ram Ram Narain Medhi v. State of Bombay(1959) AIR 459 : [1959] 1 Supp SCR 489; Sajjan Singhv. State of Rajasthan (1965) AIR 845 : [1965] 1 SCR933; 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. MadhavraoDamodar 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 MillsLtd. v. Broach Borough Municipality (1969) 2 SCC 283: [1970] 1 SCR 358; Janapada Sabha Chhindwara v.Central Provinces Syndicate Ltd. (1970) 1 SCC 509 :[1970] 3 SCR 745; Plaut v. Spendthrift Farm Inc. 514U.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 SCR1422; Deep Chand v. State of Uttar Pradesh (1959) AIR

648 : [1959] 2 Supp SCR 8; Patel GordhandasHargovindas v. Municipal Commissioner, Ahmedabad1963 AIR 1742 : [1964] 2 SCR 608; State of Punjab v.Davinder Singh (2020) 8 SCC 1; K.C. Vasanth Kumarv. State of Karnataka (1988) 4 SCC 590; UCO Bank v.Dipak Debbarma (2017) 2 SCC 585 : [2016] 11 SCR723; Arnold Rodricks v. State of Maharashtra 1966 AIR1788 : [1966] 3 SCR 885; Rajiv Sarin v. State ofUttarakhand (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 YeduThombre v. State of Maharashtra (2019) SCC OnlineBom 4408; Citizens of Deulgaon Raja v. State ofMaharashtra (2003) 4 Bom CR 223 : (2002) SCCOnline Bom 735; Rasal Singh v. State of M.P. (1978)SCC Online MP 12; Barium Chemicals Ltd. v. CompanyLaw Board (1967) AIR 295 : [1966] Supp SCR 311;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 SCC497 : [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) AIR41 : [1950] SCR 869; Ajay Kumar Singh v. State ofBihar (1994) 4 SCC 401; Col. A.S. Iyer v. V.Balasubramanyam (1980) 1 SCC 634 : [1980] 1 SCR1036; State of West Bengal v. Anwar Ali Sarkar (1952)AIR 75 : [1952] SCR 284; Kathi Raning Rawat v. Stateof Saurashtra (1952) AIR 123 : [1952] SCR 435; Stateof Kerala v. N.M Thomas (1976) 2 SCC 310 : [1976] 1SCR 906; Subramanian Swamy v. Director, CentralBureau of Investigation (2014) 8 SCC 682 : [2014] 6SCR 873; M.P. Cement Manufacturers’ Association v.State of M. P. (2004) 2 SCC 249 : [2003] 6 Suppl. SCR557- referred to.

50SUPREME COURT REPORTS

PATTALI MAKKAL KATCHI v. A. MAYILERUMPERUMAL &ORS.

[1952] SCR 284referred toPara 72[1952] SCR 435referred toPara 72

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2600of 2022.

From the Judgment and Order dated 01.11.2021 of the High Courtof 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.

Krishnamoorthy, AAG, Abhishek Manu Singhvi, P. Wilson, RakeshDiwedi, 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. SansritiPathak, S. Agilesh Kumar, B. Karunakaran, K. Balambihai, AnoopPrakash Awasthi, Ms. Diksha Rai, Gowtham Kumar, Ankit Agarwal,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.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. ManikaPriya Saravanan, Ms. Priyadarshini, Ms. Ridhima Malhotra, P. V.Yogeswaran, Ashish Kumar Upadhyay, Y. Lokesh, V. Sibi Kargil, AnubhavChaturvedi, Arun Singh, Abhisar Thakral, S. Gowthaman, Ms. M.Venmani, G. Venkateswaramoorthy, G. Ananda Selvam, Dr. Ram Sankar,Dr. Santhakumaran, S. Vinayak, Ms. Lakshmi Ramamurthy, ParijatKishore, Beno Bencigar, Ms. N.P. Haibila, Dema Seshadiri Naidu, M.P. Parthiban, Ishan George, Anish R. Shah, R. Sudhakaran, AnanvayAnandvardhan, Siddharth Chapalgaokar, Deepak Goel, ChinmayeeChandra, Amrish Kumar, M. P. Parthiban, Ms. Shalini Mishra, Ms. ShivaniVij, Ms. Porkodi, S. Ramasubramanian, A. S. Vairawan, C. Ramar, G. S.Mani, Rajesh Maurya, Abhay Singh Yadav, Ajay Singh, Pramod Kumar

AYadav, 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., SatyaBMitra, 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.

CLeave granted.

1. The Tamil Nadu Special Reservation of seats in EducationalInstitutions including Private Educational Institutions and of appointmentsor posts in the services under the State within the Reservation for theMost Backward Classes and Denotified Communities Act, 2021 wasDdeclared as unconstitutional by the High Court of Madras, Madurai Benchby judgment dated 01.11.2021. The correctness of the said judgment ischallenged in these appeals.

I. Background

2. Communal representation in public services existed in theEMadras 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 Stateof Madras v. Srimathi Champakam Dorairajan[1]. This Court heldFthat the classification made in the said G.O. proceeded on the basis ofreligion, race and caste and constituted violation of the fundamentalrights guaranteed under Article 29(2) of the Constitution of India. On18.06.1951, Article 15(4) was inserted by the Constitution (FirstAmendment) Act, 1951, enabling the State to make any special provisionfor advancement of socially and educationally backward classes.GConsequent to the judgment of this Court, G.O. Ms. No. 2432 dated27.09.1951 was issued by the Madras State adopting 20-point roster,with three seats reserved for Scheduled Castes and Scheduled Tribesand five for Backward Classes, amounting to 15 per cent reservation

for Scheduled Castes and Scheduled Tribes together and 25 per cent forBackward Classes. On 30.12.1954, G.O. Ms. No. 2643 was issuedincreasing reservation for Scheduled Castes and Scheduled Tribescombined 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 sub-classification amongst Backward Classes. ‘Most Backward Communities’were identified and educational concessions were extended to them.There were 58 communities in the list of ‘Most Backward Communities’,with Vanniakula Kshatriyas listed at serial No. 1.

3. The State Government appointed Backward Class Commissionunder the Chairmanship of Shri A.N. Sattanathan, by G.O. Ms. No. 842dated 13.11.1969 “to make scientific and factual investigation of theconditions of backward classes in the State and recommend specificmeasures of relief for their advancement”. The Commission submittedits report in November, 1970, recommending reservation of 33 per centof posts under the State Government for Backward Classes as well asof seats in professional and educational institutions. After consideringthe recommendations of the said Commission, the State Government, byG.O. Ms. No. 695 dated 07.06.1971, enhanced the existing reservationfor Backward Classes from 25 per cent to 31 per cent and that forScheduled Castes and Scheduled Tribes from 16 per cent to 18 per centwith respect to seats in all kinds of educational institutions underGovernment, local body and aided managements and posts for recruitmentto public services. On 01.02.1980, the reservation quota for BackwardClasses was enhanced to 50 per cent for appointment to posts in servicesand admissions to educational institutions under the State Government.4. Later, the Tamil Nadu Second Backward Classes Commissionwas appointed by the Government on 13.12.1982. The said Commissionwas headed by Shri J.A. Ambasankar, I.A.S. (retd.). study wasconducted by the Commission to determine the level of backwardnesson the basis of various indicators of social and educational backwardnessbearing points, with each community assessed being awarded scorefrom total of 15 points. According to the Chairman, such of thosecommunities which have secured 8, 9 and 10 points should be groupedas ‘A’, those with 11, 12 and 13 points should be placed in group ‘B’ andthose with 14 and 15 points should be categorised as group ‘C’. TheChairman of the Commission recommended compartmental reservationon the basis of the different groupings and provided mechanism for

Aimplementation of the same. 14 members of the Commission differedfrom the views expressed by the Chairman of the Tamil Nadu SecondBackward Classes Commission.

5. On 30.07.1985, the State Government issued G.O. Ms. No.1564 notifying 201 communities as Backward Classes throughout theBState of Tamil Nadu for the purposes of Articles 15(4) and 16(4) of theConstitution. G.O. Ms. Nos. 1566 and 1567 were also issued on thesame 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 perCcent, out of the available 50 per cent for Backward Classes, was providedfor MBCs and DNCs together and the remaining 30 per cent set asidefor Backward Classes. Later, on 22.06.1990, one per cent separatereservation was provided to Scheduled Tribes in public services andeducational institutions. Thus, from 1990, 30 per cent reservation wasDprovided for Backward Classes, 20 per cent for MBCs and DNCs, 18per 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 inEEducational Institutions and of appointments or posts in the Servicesunder the State) Act, 1993 (hereinafter, the “1994 Act”) was enactedto provide for reservation in admissions to educational institutions in theState and for appointments in the services under the State. ‘BackwardClasses of citizens’ are defined under Section 3(a) thereof as “the classor classes of citizens who are socially and educationally backward, asFmay be notified by the Government in the Tamil Nadu GovernmentGazette, and includes the Most Backward Classes and the DenotifiedCommunities”. Section 4 provides that reservation in respect of annualpermitted strength in educational institutions for ‘Backward Classes ofcitizens’ and for persons belonging to Scheduled Castes and ScheduledGTribes shall be 69 per cent. According to Section 5, 69 per cent ofappointments or posts in the services under the State shall be reservedfor ‘Backward Classes of citizens’, Scheduled Castes and ScheduledTribes. The allocation of percentage of reservation for Backward Classes,MBCs and DNCs, Scheduled Castes and Scheduled Tribes remainedunchanged. Additionally, by Section 7 of the 1994 Act, the GovernmentH

reserved power to classify or sub-classify, by notification, the ‘BackwardClasses of citizens’ for the purposes of the 1994 Act, on the basis ofreports of the Tamil Nadu Backward Classes Commission constitutedon 15.03.1993. On 19.07.1994, by G.O. Ms. No. 28, the Government ofTamil Nadu, under Section 3(a) of the 1994 Act, notified 143 communitiesas Backward Classes, 41 communities as MBCs and 68 communities asDNCs. By the Constitution (Seventy-sixth Amendment) Act, 1994, whichreceived the assent of the President on 31.08.1994, the 1994 Act wasplaced in the Ninth Schedule of the Constitution, as Entry 257-A.7. The validity of the 1994 Act was challenged by way of writpetitions filed in this Court. The said writ petitions were disposed of bythis Court on 13.07.2010 in S.V. Joshi v. State of Karnataka[2], aftertaking note of the fact that the exercise of collecting quantifiable data tojustify the reservation under the 1994 Act, pursuant to judgments of thisCourt in M. Nagaraj v. Union of India[3]and Ashoka Kumar Thakurv. Union of India[4], had not been undertaken. Further, the StateGovernment was directed to place quantifiable data before the TamilNadu Backward Classes Commission, on the basis of which amongstother things, the Commission would decide the quantum of reservation.No opinion was expressed on the validity of the 1994 Act. Consequentto the judgment of this Court in S.V. Joshi (supra), by G.O. Ms. No. 50dated 11.07.2011, the Government of Tamil Nadu decided to continue toimplement reservation of 69 per cent as provided in the 1994 Act. It ismentioned therein that report of the Tamil Nadu Backward ClassesCommission was submitted to the Government on 08.07.2011 andsubsequently placed before the Cabinet, which was satisfied about thejustification for continuation of reservation of 69 per cent.

8. Thereafter, Writ Petition No.365 of 2012 was filed under Article32 of the Constitution challenging the 1994 Act, which is pendingconsideration before this Court. On 21.03.2012, by G.O. (Ms) No. 35,the Government prescribed additional terms of reference to the TamilNadu Backward Classes Commission, requesting the Commission toexamine and recommend upon the demand made by various communitiesto provide for internal reservation, within the reservation provided toMBCs and DNCs. There is reference in the said G.O. to writ petition

2 (2012) 7 SCC 41

3 (2006) 8 SCC 212

4 (2008) 6 SCC 1

Afiled before the High Court of Madras as well as representations madeby members of the Vanniakula Kshatriya community and othercommunities, seeking internal reservation for each of these communitieswithin the 20 per cent reservation for MBCs and DNCs. On 13.06.2012,a report was submitted by the Tamil Nadu Backward ClassesCommission, chaired by Justice M.S. Janarthanam (retd.) of the MadrasBHigh Court. The Chairman recommended internal reservation of 10.5per cent for the Vanniakula Kshatriyas, with the remaining six membersof the Commission submitting dissent note.

9. The Tamil Nadu Backward Classes Commission wasreconstituted by G.O. (MS) No. 52 dated 08.07.2020 and Justice M.CThanikachalam (retd.) of the Madras High Court, was appointed as theChairman. One of the terms of reference prescribed to the BackwardClasses Commission was to examine and recommend upon the demandmade by various communities to provide for internal reservation within

the reservation provided for MBCs. In addition thereto, anotherDCommission was constituted by G.O. (MS) No. 99 dated 21.12.2020, forthe purpose of collection of caste-wise quantifiable data and was headedby Justice A. Kulasekaran (retd.) of the Madras High Court. TheGovernment recognized that the caste-wise data collected by theAmbasankar Commission was more than three decades old and therewas an urgent need to collect caste and tribe wise data “as on date”. ItEwas stated in the said G.O. that the Commission was constituted inresponse to the demands of various political parties and communityorganizations.10. letter was written on 18.02.2021 by the Government toJustice M. Thanikachalam, Chairman of the Tamil Nadu BackwardFClasses Commission, to give his opinion regarding the possibility ofproviding internal reservation amongst the communities listed as MBCsand 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 basedGon the proportion of their population. Immediately thereafter, on24.02.2021, bill for special reservation within the 20 per cent reservedfor MBCs and DNCs was placed before the State Legislative Assembly.On the same day, the bill was passed and it received the assent of theGovernor on 26.02.2021. By the 2021 Act, reservation of seats ineducational institutions, including private educational institutions, andH

reservation in appointment or posts in the services under the State wereprovided in the following manner: ten and half per cent for ‘Part-MBC(V) Communities’, seven per cent for ‘Part-MBC and DNCCommunities’ and two and half per cent for ‘Part-MBC Communities’.In terms of the Schedule annexed to the 2021 Act, ‘Part-MBC(V)’consists of Vanniakula Kshatriya community (including Vanniyar, Vanniya,Vannia Gounder, Gounder or Kander, Padayachi, Palli and AgnikulaKshatriya), ‘Part-MBC and DNC’ comprise 25 communities from theMBCs and 68 DNCs and the remaining 22 communities of MBCs comeunder the category of ‘Part-MBC’.

11. Writ petitions were filed in the High Court of Madras assailingthe constitutional validity of the 2021 Act. The High Court framed thefollowing points for consideration:

“(i) Whether the State Legislature has competency to makethe impugned Act after 102nd Constitutional Amendment Act,2018 and before 105[th] Constitutional Amendment Act, 2021?

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

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

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

(v) Whether reservation can be provided without anyquantifiable data on population, socio educational status andrepresentation 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 ofArticles 14, 15 and 16 of the Constitution of India?

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

12. The High Court answered points (i) to (iii) by holding that theState Legislature has no competence to enact the 2021 Act. The High

ACourt further found that the internal reservation made only on the basisof caste is violative of the Constitution. Answering points (v) to (vii), theHigh Court was of the opinion that there was no quantifiable data relatingto the population, socio-economic status and representation of thebackward 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 appearingfor the Appellants and Dr. Rajeev Dhawan, Mr. R. Balasubramanian,Mr. K. M. Vijayan, Mr. S. Nagamuthu, Mr. Gopal Sankaranarayanan,CMr. V. Prakash, Mr. Jaideep Gupta and Mr. Colin Gonsalves, learnedSenior Counsel appearing for the Respondents.

II. Reference to larger Bench

14. At the outset, it is necessary to deal with the preliminaryDsubmission made by some Senior Counsel appearing for the State ofTamil Nadu for reference of these appeals to Constitution Bench.

15. Dr. Abhishek Singhvi, Mr. Rakesh Dwivedi and Mr. MukulRohatgi, learned Senior Counsel appearing for the State of Tamil Nadu,submitted that the case involves interpretation of constitutional provisionsEand therefore, it is appropriate that these appeals are heard by aConstitution Bench. Mr. P. Wilson, learned Senior Counsel appearingfor the State and Mr. C.S. Vaidyanathan and Mr. M. N. Rao, learnedSenior Counsel appearing for the Appellants in Civil Appeals arising fromSLP (C) No. 19378 of 2021 and SLP (C) No. 19574 of 2021, respectively,stated that there is no necessity of referring this matter to larger Bench.F

16. Dr. Singhvi submitted that challenge to the 1994 Act is pendingconsideration before Constitution Bench of this Court. He further statedthat adjudication of the dispute in these appeals would involveinterpretation of the Constitution (One Hundred and Fifth Amendment)Act, 2021 (hereinafter, the “105[th] Amendment Act”). According toGDr. Singhvi, this Court would have to decide whether the 105[th]Amendment Act is clarificatory and dates back to the introduction ofArticle 342-A. It is advisable that the said issue is decided by largerBench. Mr. Dwivedi, supplementing the submissions of Dr. Singhvi,referred to the findings of the High Court in the impugned judgment onthe lack of legislative competence of the State Legislature in enacting

the 2021 Act with respect to Section 31-B of the Constitution. He statedthat the words “repeal or amend” appearing in Article 31-B would haveto be construed by this Court in these appeals to reach determinativefinding. On this ground, he urged for these appeals to be decided by alarger Bench.

17. Appearing on behalf of the Respondents, Dr. Rajeev Dhawanand Mr. Gopal Sankaranarayanan emphatically argued that no groundhas been made out for referring these appeals to larger Bench. Dr.Dhawan argued that the adjudication of the dispute in these appealsdoes not involve interpretation of any provision in the Constitution. Mr.Sankaranarayanan submitted that reference to Constitution Bench ismade only when the Court is satisfied that substantial question of lawas to interpretation of the Constitution is involved, the determination ofwhich is necessary for disposal of the case. He placed reliance on twojudgments of this Court in Abdul Rahim Ismail C. Rahimtoola v. Stateof Bombay[5] and Shrimanth Balasaheb Patil v. Speaker, KarnatakaLegislative Assembly[6]. As both the stated conditions are not satisfied inthe present case, he stated that there is absolutely no need for referenceto larger Bench.

18. The vires of Rule 3 of the Indian Passport Rules, 1950 andSection 3 of the Indian Passport Act (34 of 1920) fell for considerationbefore this Court in Abdul Rahim Ismail C. Rahimtoola (supra). Anargument was advanced in that case that the matter should be referred toa Bench of five Judges as constitutional question was raised. Whilereferring to an earlier judgment of this Court in Ebrahim Vazir Mavat v.State of Bombay[7], this Court held that the question of the impugnedprovision and rule being in violation of Articles 19(1)(d) and 19(1)(e) hadalready been decided by this Court and therefore, it cannot be said thatany substantial question of law arises on the interpretation of constitutionalprovision. The request for reference, was therefore, rejected.

19. In Shrimanth Balasaheb Patil (supra), this Court refused torefer the dispute therein to Constitution Bench on the ground thatthere was no substantial question of law as to the interpretation of theConstitution, the determination of which was necessary for the disposalof 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

Aquestion 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 finaldetermination of the case.

20. Article 145(3) of the Constitution provides that any caseinvolving substantial question of law as to the interpretation of theBConstitution should be heard by minimum number of five Judges.However, we are not in agreement with the submission of Dr. Singhvithat the question of whether the 105[th] Amendment Act is clarificatoryinvolves interpretation of the 105[th] Amendment Act. Relying upon theparliamentary debates, Dr. Singhvi submitted that the amendment hasbeen brought only for the purpose of clarifying the Constitution (OneCHundred and Second Amendment) Act, 2018 and, therefore, the 105thAmendment Act should be deemed to have come into force from15.08.2018, i.e., the date from which Article 342-A was given effect.There is no necessity of interpreting the 105[th] Amendment Act for thepurpose of deciding the question raised by Dr. Singhvi relating to theDretrospectivity 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 theConstitution. His submission is that the High Court erred in holding thatthe State of Tamil Nadu did not have legislative competence to enact aEseparate legislation varying the provisions of the 1994 Act, placed in theNinth Schedule, on the ground that it falls foul of Article 31-B of theConstitution. The submission of Mr. Dwivedi is that the words “repealor amend” in Article 31-B have to be interpreted to determine whetherby virtue of the said constitutional provision, the State lacked legislativecompetence to enact sui generis law on subject similar or ancillaryFto that of statute placed in the Ninth Schedule. Article 31-B has beenconstrued by this Court in The Godavari Sugar Mills Ltd. v. S. B.Kamble[8], Shri Ram Ram Narain Medhi v. State of Bombay[9], SajjanSingh v. State of Rajasthan[10], Ramanlal Gulab Chand Shah v. Stateof Gujarat[11], State of Orissa v. Chandrasekhar Singh Bhoi[12] andGState of Maharashtra v. Madhavrao Damodar Patil[13]. In view of the

8 (1975) 1 SCC 6969 1959 Supp (1) SCR 48910 (1965) 1 SCR 93311 (1969) 1 SCR 4212 (1969) 2 SCC 334H13 (1968) 3 SCR 712

above judgments, which are discussed later, it is not necessary for thisCourt to refer these appeals to larger Bench.

III. Legislative competence of the State Legislature inenactment of the 2021 Act

A. Effect of the Constitution (One Hundred and SecondAmendment) Act, 2018 and the Constitution (One Hundred andFifth Amendment) Act, 2021

22. The impugned 2021 Act was passed on 26.02.2021. Relevantprovisions of the Constitution as introduced by the Constitution (OneHundred and Second Amendment) Act, 2018 (hereinafter, the “102[nd]Amendment Act”), brought into force with effect from 15.08.2018,and as amended by the 105[th] Amendment Act (italicized), which cameinto force from 15.08.2021 in terms of the notification dated 15.09.2021issued by the Ministry of Social Justice and Empowerment, are as below:

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

(1) There shall be Commission for the socially and educationallybackward classes to be known as the National Commission forBackward Classes.

xxx

(9) The Union and every State Government shall consult theCommission on all major policy matters affecting the socially andeducationally backward classes.

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

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

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

(2) Parliament may by law include in or exclude from the CentralList of socially and educationally backward classes specified in anotification issued under clause (1) any socially and educationally

backward class, but save as aforesaid notification issued underthe said clause shall not be varied by any subsequent notification.

Explanation.- For the purposes of clauses (1) and (2), theexpression “Central List” means the list of socially andeducationally backward classes prepared and maintained byand for the Central Government.

(3) Notwithstanding anything contained in clauses (1) and(2), every State or Union territory may, by law, prepare andmaintain, for its own purposes, list of socially andeducationally backward classes, entries in which may bedifferent from the Central List.

Article 366. Definitions.-

xxx

(26C) “socially and educationally backward classes” meanssuch backward classes as are so deemed under article 342Afor the purposes of the Central Government or the State orUnion territory, as the case may be.

23. The High Court observed that the majority opinion of thisCourt in Dr Jaishri Laxmanrao Patil v. Chief Minister[14]concludedthat the powers of the State Legislatures to identify backward classesEhave been ousted and the power to modify the list of socially andeducationally backward classes (SEBCs) stood vested in the Parliament,after insertion of Article 342-A in the Constitution by the 102[nd]Amendment Act. The High Court rejected the contention on behalf ofthe State that the 105[th] Amendment Act restored the power of the StatesFto identify and notify backward classes. The High Court was of theview that the 2021 Act came into existence on 26.02.2021, whereas the105[th] Amendment Act was enacted on 19.08.2021. Thus, according tothe High Court, the impugned legislation, which was brought into effectprior to the enactment of the 105[th] Amendment Act, was unconstitutionalin view of the majority opinion in Dr Jaishri Laxmanrao Patil (supra).

24. It was contended on behalf of the State by Dr. Singhvi thatthe 2021 Act does not identify, exclude or include any community inrelation to the list of backward classes. The said exercise was alreadydone by G.O. Ms. No. 28 dated 19.07.1994 under the 1994 Act. What is

H14 (2021) 8 SCC 1

instead sought to be done by the 2021 Act is sub-classification of theMBCs and allocation of 10.5 per cent reservation for the VanniakulaKshatriya community within the 20 per cent earmarked for MBCs andDNCs, which is not barred to be undertaken by the State by virtue of the102[nd] Amendment Act. Though writ petition challenging the 1994 Actis pending consideration, there has been no interim order staying theoperation of the said legislation. He proceeded to submit that the 105[th]Amendment Act is essentially clarificatory in nature. After the judgmentof this Court in Dr Jaishri Laxmanrao Patil (supra), the Parliament, inexercise of its constituent power, recognised the imminent need ofclarification of Articles 338-B, 342-A and 366(26C) of the Constitutionand sought to make amendments to reflect what, according to Dr. Singhvi,was always the intention behind these provisions, i.e., for the States tocontinue to hold and exercise the power of identification of backwardclasses for reservation to educational institutions and services under theStates. To emphasize this claim, Dr. Singhvi took the Court through theStatement of Objects and Reasons of the 105[th] Amendment Act as wellas some of the debates and speeches in both houses of the Parliamenton the Constitution (One Hundredth and Twenty-seventh Amendment)Bill, 2021. He further sought to impress upon this Court that the only realand operative change brought about by the 105[th] Amendment Act is theaddition of clause (3) to Article 342-A, which is essentially proceduralrequirement on State / Union Territory to prepare and maintain list ofSEBCs for its own purposes. He relied upon the judgment of this Courtin K.S. Paripoornan v. State of Kerala[15]to assert that the 105[th]Amendment Act, being clarificatory amendment dealing predominantlywith procedure and not substantive amendment, will have retrospectiveaffect. Further, support was sought from this Court’s judgment in ShriPrithvi Cotton Mills Ltd. v. Broach Borough Municipality[16] to pleadthat while undoubtedly the Parliament had the power to enact both the102[nd] Constitution Amendment Act and the 105[th] Constitution AmendmentAct, the latter sought to clarify the circumstances which gave rise to theCourt’s interpretation of the former and would, thus, be retrospective.

25. In the alternative, Mr. Dwivedi argued that the judgment ofthis Court in Dr Jaishri Laxmanrao Patil (supra) only excluded thespecification of SEBCs by the States under the 102[nd] Amendment Act.

15 (1994) 5 SCC 593

16 (1969) 2 SCC 283

ABCDE

AIf community was already included in the State’s list of SEBCs, whichhad been saved by the said judgment in exercise of the Court’s powersunder Article 142 till the notification of the List by the President,, therewas no bar on the State to provide for sub-classification.

26. The contention put forth on behalf of the Respondents by Mr.BSankaranarayanan was that the State did not have legislative competenceto identify SEBCs on 26.02.2021, the date the 2021 Act came into force.He submitted that the 102[nd] Constitutional Amendment Act was in forceon 26.02.2021, according to which SEBCs can be specified for thepurposes of the Constitution only by the President, according to the majorityopinion of this Court in Dr Jaishri Laxmanrao Patil (supra). HeCsupported the judgment of the High Court and contended that the Statelacked legislative competence to identify particular community forallocating 10.5 per cent reservation within the MBCs. On the subject ofthe 105[th] Amendment Act, it was argued that the said amendment isunquestionably prospective. Wherever it had been the intention of theDParliament to give retrospective effect to constitutional amendments, itwas specifically mentioned in the relevant amendment. Our attentionwas drawn to the Constitution (First Amendment) Act, 1951, by whichchanges to Article 19(2) were given retrospective effect from the dateof commencement of the Constitution and Article 31-B was inserted

containing validating provision, thereby making it applicable prior toEthe date of the amendment to all laws made before such date andnotwithstanding 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 validatedsuch elections which may have been declared to be void under law orFany order made by any court, before such commencement. Lastly, theConstitution (Eighty-fifth Amendment) Act, 2001 was pointed outwhereby the changes to Article 16(4-A) were given retrospective effectfrom 17.06.1995. It was submitted that, unlike the cited instances, thereis not even slight indication in the 105[th] Amendment Act that it wasGintended to be retrospective in operation.

27. Countering the submission made on behalf of the Appellantsas to the 105[th] Amendment Act being clarificatory in nature, it was furtherargued by Mr. Sankaranarayanan that judgment of this Court cannotbe clarified by the Parliament, as the Supreme Court is the final arbiterwith respect to interpretation of the Constitution. He cited JanapadaH

Sabha Chhindwara v. Central Provinces Syndicate Ltd.[17]and ajudgment of the U.S. Supreme Court in Plaut v. Spendthrift FarmInc.[18], amongst others, to elaborate on the limitations on the power ofthe Legislature to ‘clarify’ an interpretation of law rendered by this Court.He further submitted that the 105[th] Amendment Act cannot be treatedto be validating provision, as there has been no ‘invalidation’ of the102[nd] Amendment Act. With the 102[nd] Amendment Act holding force atthe time of enactment of the 2021 Act, he asserted that earmarking 10.5per cent to one community is tantamount to identifying community forthe benefit of reservation, which can be done only by the President asper the 102[nd] Amendment Act and therefore, the 2021 Act is animpermissible exercise on the part of the State Legislature. He wasvehement in his argument that statute which is void ab initio for lackof legislative competence cannot be validated by subsequentamendment 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 Pradesh[21]. Dr. Dhawan, joining Mr. Sankaranarayananin asserting that the 105[th] Amendment Act is prospective in operation,contested the claim of the Appellants, on the 105[th] Amendment Act beingclarificatory and at the same time removing the basis of the judgment ofthis Court in Dr Jaishri Laxmanrao Patil (supra),as contradictory.According to Dr. Dhawan, the amendment could either be clarificatoryof the Parliament’s intention or purport to remove the basis of this Court’sjudgment, but could not be both.

28. On the issue of the 105[th] Amendment Act, we are unable toagree with the contention of the Appellants that the said amendment isclarificatory and dates back to the introduction of Article 342-A. TheRespondents were right in submitting that the Parliament had expresslyspecified the retrospectivity of an amendment, whenever it intended togive any amendment retrospective effect. As such we do not intend toscrutinize the Statement of Objects and Reasons of and the parliamentarydebates on the Constitution (One Hundredth and Twenty-seventhAmendment) Bill, 2021, as it is well established and also reiterated in themajority decision in Dr Jaishri Laxmanrao Patil that where provisions

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

CDE

Aof statute are ambiguous, the first attempt should be to find meaning inthe statute itself, failing which the court may turn to external aids. Wehave not been called upon to interpret the 105[th] Amendment Act and nordo we find any vagueness as regards when the 105[th] Amendment Acthas come into effect. The 105[th] Amendment Act cannot be said to be avalidating amendment, as admittedly the 102[nd] Amendment Act has notBbeen invalidated by this Court. We do not find it necessary to deal withthe judgments cited by the Respondents on the impermissibility ofclarification of judgment of this Court by the Parliament, as even theAppellants do not contend that the 105[th] Amendment Act was made toclarify the judgment of this Court in Dr Jaishri Laxmanrao Patil (supra).C29. Rule 350-A of the Rules framed by the Broach BoroughMunicipality, by which rate on land was fixed at percentage of thevaluation based upon capital value, was declared ultra vires Section 73of the Bombay Municipal Boroughs Act, 1925 in Patel GordhandasHargovindas v. Municipal Commissioner, Ahmedabad[22]. TheDLegislature of Gujarat passed the Gujarat Imposition of Taxes byMunicipalities (Validation) Act, 1963, validating the rates so imposed.The said validating legislation was challenged before this Court in ShriPrithvi Cotton Mills Ltd. (supra). This Court was of the opinion thatthe defect pointed out by the judgment in Patel GordhandasHargovindas (supra), being that Section 73 had not authorised the levyEof tax but that of “rate”, which had acquired special meaning inlegislative practice as held by this Court, was cured by the validatinglegislation. The Court upheld the validating statute on the ground that anew meaning to the expression “rate” was legislatively ascribed, thusputting out of action the effect of the decisions of the courts to theFcontrary. The Appellants cannot take aid of this judgment to argue thatthe 105[th] Amendment Act has to be given retrospective effect, since the105[th] Amendment Act cannot be treated as validating amendment asno part of the 102[nd] Amendment Act has been invalidated. The contentionof the Appellants that the 105[th] Amendment Act, being an amendment

relating to procedure, has to be construed as retrospective along theGlines of K.S. Paripoornan (supra), is misconceived. Identifying certaincommunities which are to be deemed as SEBCs for the purposes of theCentral Government and the States, respectively, cannot be said to be amatter of procedure. The procedural aspect of the 102[nd] Amendment

Act and the 105[th] Amendment Act is only the manner of publication ofthe lists of SEBCs, whereas the substantive element of the saidamendments 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 retrospectiveeffect from the date on which the 102[nd] Amendment Act came intoeffect.

30. At the time of enactment of the 2021 Act, there is no doubttherefore, that the 102[nd] Amendment Act held force. The majority inDr Jaishri Laxmanrao Patil (supra) was of the view that identificationof SEBCs and their inclusion in list to be published under Article 342-A can be done only by the President, after the insertion of Articles366(26C) and 342-A. The list of SEBCs to be notified by the Presidentunder Article 342-A shall be the only list for the purposes of theConstitution. It was concluded in the said judgment that the changebrought about by the 102[nd] Amendment Act, especially under Article342-A, was only with respect to the process of identification of SEBCsand their list. It was categorically held that the power to frame policiesand legislation with regard to all other matters, i.e., the welfare schemesfor SEBCs, setting up of institutions, grants, scholarships, extent ofreservation and special provisions under Articles 15(4), 15(5) and 16(4)are entirely with the State Government in relation to its institutions andits public services. It was further clarified that the extent of reservation,the kind of benefits, the quantum of scholarships, the number of schoolswhich are to be specially provided under Article 15(4) or any otherbeneficial or welfare scheme conceivable under Article 15(4) can all beachieved by the State through its legislative and executive powers.Recognising that the President was yet to prepare and publish listunder Article 342-A(1), the Court held that comprehensive list shouldbe published expeditiously and in exercise of its powers under Article142 of the Constitution, the Court directed till the time of the publicationof such list, the SEBC lists prepared by the States would continue to beoperative.

31. Backward Classes, MBCs and DNCs have been identifiedfor reservation in educational institutions and for public employment byG.O. Ms. No. 28 dated 19.07.1994 under the 1994 Act. 30 per centreservation was provided for Backward Classes and 20 per cent forMBCs and DNCs together. The Vanniakula Kshatriya community hasconsistently featured in the list of MBCs since 1957 and was also included

Ain the list of MBCs in G.O. Ms. No. 28 dated 19.07.1994, pursuant to the1994 Act. By the 2021 Act, 10.5 per cent out of 20 per cent reservationfor MBCs and DNCs was earmarked for the Vanniakula Kshatriyacommunity. Identification of the Vanniakula Kshatriyas as communitywithin the MBCs was not the subject-matter of the 2021 Act, as thisexercise had already been completed pursuant to the 1994 Act. Under theB2021 Act, sub-classification of the MBCs and DNCs and apportionmentof particular percentage of reservation is for the purpose of determiningthe extent of reservation for communities within the MBCs and DNCs,which is permissible exercise of power by the State Government,according to the majority judgment in Dr. Jaishri Laxmanrao PatilC(supra).What the 102[nd] Amendment prohibits the State from undertakingis identifying caste as SEBC or including or excluding communityfrom the list notified by the President. We are not in agreement with thecontention of the Respondents that determining the extent of reservationfor community amongst the list of Most Backward Classes amounts toidentification. In view thereof, the High Court has committed an error inDholding that the 2021 Act is violative of Article 342-A.B. Permissibility of sub-classification amongst backwardclasses32. Placing reliance on the judgment of this Court in E.V.EChinnaiah v. State of A.P.[23], the High Court held that all castes includingthe sub-castes, races, tribes mentioned in the list are to be members ofone group for the purpose of the Constitution and cannot be further sub-divided so as to give more preference to miniscule portion thereof.The High Court also observed that as per E.V. Chinnaiah (supra), allthe castes included in the Schedule under Article 341 of the ConstitutionFwould be ‘deemed to be’ one class of persons.

33. On behalf of the Appellants, it was contended that the HighCourt committed an error in relying upon E.V. Chinnaiah (supra),which pertained to the interpretation of Articles 341 and 342, to cometo the conclusion that classification is not permissible even in respectGof backward classes. It was argued that it is clear from Indra Sawhneyv. Union of India[24]that sub-classification of backward classes ispermissible. Stress was also laid on the fact that the correctness of

23 (2005) 1 SCC 394H24 1992 Supp (3) SCC 217

E.V. Chinnaiah (supra) has been referred for consideration by largerBench in State of Punjab v. Davinder Singh[25]. It was urged that thepermissibility of sub-classification amongst backward classes as hasbeen done in the 2021 Act cannot be contested. Reasonableness ofsub-classification is separate question to be determined by this Court.

34. On the other hand, Dr. Rajeev Dhawan and Mr. R.Balasubramanian submitted that backward classes can be sub-dividedinto backward and more backward classes in accordance with IndraSawhney (supra), but further differentiation of MBCs is not permissibleas it would amount to micro-classification, as correctly held by the HighCourt.

35. The Andhra Pradesh Scheduled Castes (Rationalisation ofReservations) Act, 2000 was challenged before the High Court of AndhraPradesh. 57 castes enumerated in the Presidential list of Scheduled Casteswere categorised into four groups based on inter se backwardness andseparate quotas were fixed in reservation for each of these groups bythe State of Andhra Pradesh. five-Judge Bench of the High Court bya majority of 4:1 dismissed the writ petitions. In E.V. Chinnaiah (supra),the main contention of the appellants therein before this Court was thatthe State lacked legislative competence in enacting the said legislationwhich, according to the appellants, was solely meant for subdividing orsubgrouping the castes enumerated in the Presidential list, as under Article341(2) bifurcation of the Presidential list can be done only by theParliament. Alternatively, it was submitted that this subgrouping amountedto micro-classification of the Scheduled Castes, in violation of Article 14of the Constitution. Three questions were framed by this Court in E.V.Chinnaiah (supra), as listed below:

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

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

(3) Whether the impugned enactment creates subclassificationor micro-classification of Scheduled Castes so as to violateArticle 14 of the Constitution of India?”

A36. In E.V. Chinnaiah (supra), this Court was of the opinion thatArticle 341 made it clear that the State, either by legislative or executiveaction, had no power of “disturbing” the Presidential list of ScheduledCastes and therefore, any executive or legislative act of the State whichinterferes, disturbs, rearranges, regroups or reclassifies various castesin the Presidential list is violative of Article 341 and the scheme of theBConstitution. Further, it was held that castes identified by the Presidentunder Article 341 formed class in themselves and any division of theseclasses based on any consideration would amount to tinkering with thePresidential list. As the primary object of the impugned enactment inthat case was to create groups of sub-castes in the list of ScheduledCCastes, this Court concluded that the State does not have legislativecompetence to divide the Scheduled Castes, by tracing its claim to Entry41 of List II and Entry 25 of List III. Insofar as the contention of sub-classification of Scheduled Castes is concerned, this Court rejected thecontention of the respondents therein that the ratio of Indra Sawhney(supra) applied to the facts of E.V. Chinnaiah (supra). It was pointedDout that sub-classification dealt with by Indra Sawhney (supra) relatedonly to ‘Other Backward Classes’ and not Scheduled Castes as thejudgment in Indra Sawhney (supra) itself had expressly held thatsubdivision of ‘Other Backward Classes’ is not applicable to ScheduledCastes and Scheduled Tribes, the reason for which, according to thisECourt in E.V. Chinnaiah (supra), was that the Constitution itself hadkept the Lists of Scheduled Castes and Scheduled Tribes out ofinterference by the State Governments.

37. close scrutiny of E.V. Chinnaiah (supra) would make itclear that the High Court was wrong in relying upon the said judgment tohold that sub-classification of backward classes is beyond the legislativeFcompetence of the State. E.V. Chinnaiah (supra) primarily relates tothe power of the State legislature in categorising the Scheduled Castesidentified under Article 341 into four groups, the effect of which washeld to be modification of the Presidential list, which Article 341 precludedthe States from doing. As was clearly expressed by this Court in E.V.GChinnaiah (supra), the issue of sub-classification of backward classeswas dealt with in Indra Sawhney (supra) and it is pertinent for us torefer to the following paragraphs authored by Jeevan Reddy, J., afterreferring to observations of Chinnappa Reddy, J. in K.C. Vasanth Kumarv. State of Karnataka[26]:“802. We are of the opinion that there is no constitutional orlegal bar to State categorising the backward classes asbackward and more backward. We are not saying that it oughtto be done. We are concerned with the question if Statemakes such categorisation, whether it would be invalid?We think not. Let us take the criteria evolved by MandalCommission. Any caste, group or class which scored elevenor more points was treated as backward class. Now, it is notas if all the several thousands of castes/groups/classes scoredidentical points. There may be some castes/groups/classeswhich have scored points between 20 to 22 and there may besome who have scored points between eleven and thirteen. Itcannot reasonably be denied that there is no differencebetween these two sets of castes/groups/classes. To give anillustration, take two occupational groups viz., goldsmiths andvaddes (traditional stone-cutters in Andhra Pradesh) bothincluded within Other Backward Classes. None can deny thatgoldsmiths are far less backward than vaddes. If both of themare grouped together and reservation provided, the inevitableresult would be that goldsmiths would take away all thereserved posts leaving none for vaddes. In such situation,a State may think it advisable to make categorisation evenamong other backward classes so as to ensure that the morebackward among the backward classes obtain the benefitsintended for them. Where to draw the line and how to effectthe sub-classification is, however, matter for the Commissionand the State — and so long as it is reasonably done, theCourt may not intervene. In this connection, reference maybe made to the categorisation obtaining in Andhra Pradesh.The Backward Classes have been divided into four categories.Group comprises “Aboriginal tribes, Vimukta jatis, nomadicand semi-nomadic tribes etc.” Group comprises professionalgroup like tappers, weavers, carpenters, ironsmiths,goldsmiths, kamsalins etc. Group pertains to “ScheduledCastes converts to Christianity and their progeny”, whileGroup comprises all other classes/communities/groups,which are not included in Groups A, and C. The 25%vacancies reserved for backward classes are sub-dividedbetween them in proportion to their respective population.

This categorisation was justified in Balram [(1972) 1 SCC660 : (1972) 3 SCR 247] . This is merely to show that evenamong backward classes, there can be sub-classificationon reasonable basis.

803. There is another way of looking at this issue. ArticleB16(4) recognises only one class viz., “backward class ofcitizens”. It does not speak separately of Scheduled Castesand Scheduled Tribes, as does Article 15(4). Even so, it isbeyond controversy that Scheduled Castes and ScheduledTribes are also included in the expression “backward classof citizens” and that separate reservations can be providedCin their favour. It is well-accepted phenomenon throughoutthe country. What is the logic behind it? It is that if ScheduledTribes, Scheduled Castes and Other Backward Classes arelumped together, OBCs will take away all the vacanciesleaving Scheduled Castes and Scheduled Tribes high and dry.DThe same logic also warrants categorisation as between morebackward and backward. We do not mean to say — we mayreiterate — that this should be done. We are only saying thatif State chooses to do it, it is not impermissible in law.”

Sawant, J. was also of the opinion that sub-classification ofEbackward and more backward classes would be permissible, providedthat separate quotas are provided for each of them. It is crystal clearfrom the judgment of Indra Sawhney (supra) that backward classescan be sub-classified. Whether the sub-classification under the 2021Act is reasonable will be addressed subsequently but no doubt can beentertained about the permissibility of sub-classification amongstFbackward classes.

38. By drawing strength from E.V. Chinnaiah (supra), the HighCourt was of the firm view that there cannot be any sub-division ofcastes including sub-castes, races and tribes mentioned in the Presidentiallist. In E.V. Chinnaiah (supra), it was held that castes once included inGthe Presidential list form class by themselves and any division of theseclasses or persons based on any consideration would amount to tinkeringwith the Presidential list. According to the plural opinion in Dr JaishriLaxmanrao Patil (supra), the list of SEBCs with respect to States wasto be notified by the President, after due consultation with the NationalHCommission for Backward Classes under Article 342-A. Admittedly,

this was not done till the time of enactment of the 2021 Act. As statedearlier, exercising powers under Article 142 of the Constitution, this Courtin Dr Jaishri Laxmanrao Patil (supra) directed that till the publicationof the list of SEBCs by the President, the SEBC lists prepared by theStates would continue to hold the field. Thus, even on consideration ofthe law laid down in E.V. Chinnaiah (supra), it is clear from the abovethat Presidential list for SEBCs did not come into existence and thequestion of sub-division of the said list by way of the 2021 Act does notarise. 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 theHigh Court under Article 31-B of the Constitution. The High Courtobserved that statute placed in the Ninth Schedule shall continue to bein force, till it is amended or repealed. In the present set of facts, theHigh Court was of the view that without amending the 1994 Act, whichprovides for undivided 20 per cent reservation to MBCs and DNCstogether, the State lacked the legislative competence to provide internalreservation to one community from amongst that group of communitiesby way of separate but similar legislation. Reference was drawn toamendments made by the State of Tamil Nadu to statutes placed in theNinth Schedule, which were also included in the Ninth Schedule.

40. Dr. Singhvi, referring to Section 7 of the 1994 Act, submittedthat the scheme of reservation under the 2021 Act was not new schemeover and above the reservation provided for under the 1994 Act. Section7 of the 1994 Act expressly provided for classification and sub-classification of the ‘Backward Classes of citizens’ by the State bynotification, for the purposes of the said statute. It was pointed out byDr. Singhvi that the power under Section 7 had been exercised by theState earlier as well in enacting the Tamil Nadu Backward Class Christiansand Backward Class Muslims (Reservation of Seats in EducationalInstitutions Including Private Educational Institutions and of Appointmentsor Posts in the Services Under the State) Act, 2007 (hereinafter, the“2007 Act”), whereunder three and half per cent reservations weregranted to ‘Backward Class Muslims’ from the 30 per cent reserved forBackward Classes under the 1994 Act and which continues to be inforce till date. Accordingly, Dr. Singhvi contended that the High Courtwas incorrect in its treatment of the 2021 Act as special statute varyingthe provisions of the 1994 Act.

A41. Mr. Dwivedi proffered arguments on different aspect ofthis issue. He submitted that the High Court completely misunderstoodthe scope of Article 31-B. While Article 31-B provided protection tostatutes placed within the Ninth Schedule against challenge in terms ofPart III of the Constitution, it cannot be interpreted to restrict the plenarypowers of legislation under Article 246 and alter the federal distributionBof powers. Additionally, he urged that Article 31-B did not prescribe anyprocedure for amendment or repeal of statute in the Ninth Scheduleand therefore, the High Court’s observation on amending statutes alsobeing placed in the Ninth Schedule was only evidence of the procedureadopted with respect to certain amending statutes and not requirementCof every amending statute. Assuming that this Court was not inclined toaccept that the 2021 Act was in exercise of Section 7 of the 1994 Act,even then the 2021 Act in its own right is valid piece of legislation,without the protection of Article 31-B as the incurred consequence. Tosupport his submissions, he placed reliance on judgments of this Court inSri Ram Ram Narain Medhi (supra), Chandra Sekhar Singh BhoiD(supra), Godavari Sugar Mills Ltd. (supra) and UCO Bank v. DipakDebbarma[27].

42. Countering these submissions, the Respondents contended thata statute placed in the Ninth Schedule becomes part of the Constitutionand cannot be amended or added to by the State Legislature. Mr.EBalasubramanian argued that the 2021 Act is in conflict with the 1994Act inasmuch as the 1994 Act provides for composite reservation of 20per cent for MBCs and DNCs whereas under the 2021 Act, 10.5 percent has been delineated for one community from amongst thecommunities comprising MBCs and DNCs.F

43. Article 31-B prescribes that no statute placed in the NinthSchedule shall be void on the ground that it is inconsistent with, takesaway or abridges any right conferred under Part III of the Constitution.The statute placed in the Ninth Schedule shall continue in force, subjectto the powers of the competent Legislature to repeal or amend it.GAccording to this Court in Godavari Sugar Mills Ltd. (supra), the objectof Article 31-B, which was inserted by the Constitution (FirstAmendment) Act, 1951, is to give blanket protection to the acts andregulations specified in the Ninth Schedule and the provisions of thoseacts and regulations against any challenge to those acts, regulations or

the provisions thereof on the ground that they are inconsistent with ortake away or abridge any of the rights conferred by Part III of theConstitution. The result is that howsoever violative of the fundamentalrights may be the provisions of an act or regulation, once the act orregulation is specified in the Ninth Schedule it would not be liable to bestruck down on that score. This immunity against the above challengewould be available notwithstanding any judgment, decree or order ofany 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 isbeyond the legislative competence of the Legislature which enacted it.It is also plain from the language of the Article that the specification ofan act or regulation would not prevent the competent legislature to repealor amend it. This Court was of the further opinion that:“16. The protection of Article 31B can also not be extendedto new provision inserted as result of amendment on theground that it is ancillary or incidental to the provisions towhich protection has already been afforded by including themin the Ninth Schedule. Article 31B carves out protected zone.It has inserted Ninth Schedule in the Constitution and givesimmunity to the Acts, Regulations and provisions specified inthe said schedule from being struck down on the ground ofinfringement of Fundamental Rights even though they areviolative of such rights. Article 31B thus excludes theoperation of Fundamental Rights in matters dealt with by thoseActs, Regulations and provisions. Any provision which hasthe effect of making an inroad into the guarantee ofFundamental Rights in the very nature of things should beconstrued very strictly, and it would not, in our opinion, bepermissible to widen the scope of such provision or to extendthe frontiers of the protected zone beyond what is warrantedby the language of the provision. No Act, Regulation orprovision would enjoy immunity and protection of Article 31Bunless it is expressly made part of the Ninth Schedule. Theentitlement 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 includedin that schedule. This principle would hold good irrespectiveof the fact whether the provision to which entitlement toprotection is sought to be extended deals with new substantive

DEFG

Amatters or whether it deals with matters which are incidentalor ancillary to those already protected.”

While dealing with the findings of the High Court in the impugnedjudgment therein, made on the basis of an earlier decision of this Courtin Ramanlal Gulab Chand Shah (supra), this Court in Godavari SugarBMills (supra) observed that legislation, which is incidental or ancillaryto statute protected under Article 31-B, can be assailed on the groundof inconsistency with Part III of the Constitution.

44. In our view, the 2021 Act cannot be said to be suffering fromthe vice of lack of legislative competence, merely because it deals withCmatters associated with or ancillary to the 1994 Act. Classification ofbackward classes has been made by the 1994 Act, which was placedunder the Ninth Schedule. It is clear from the judgments referred toabove that the State has the power to amend or repeal statute whichhas been placed under the Ninth Schedule. It is settled law that anyamendment made to statute placed under the Ninth Schedule does notDget protection under Article 31-B, unless the said amendment is alsoincluded in the Ninth Schedule. Having scrutinised the above judgmentson the objective of Article 31-B, we are unable to see how Article 31-Boperates as hurdle for the State to enact statutes on matters ancillaryto the 1994 Act. Article 31-B does not place any fetter on the power ofEthe State to legislate on such matters nor does it prescribe any mandatoryrequirement for such legislations to be included within the Ninth Schedule,as has been understood by the High Court. The consequence of the2021 Act not being placed in the Ninth Schedule is that it can be assailedas being violative of the fundamental rights enshrined under Part III ofthe Constitution, which the Appellants have fairly admitted. It is worthwhileFfor us to reiterate the authoritative pronouncement of five-Judge Benchof this Court in Maharaj Umeg Singh v. State of Bombay[28], relevantportion of which is reproduced below:

“13. … The legislative competence of the State Legislaturecan only be circumscribed by express prohibition containedGin the Constitution itself and unless and until there is anyprovision in the Constitution expressly prohibiting legislationon the subject either absolutely or conditionally, there is no

fetter or limitation on the plenary powers which the StateLegislature enjoys to legislate on the topics enumerated inthe Lists 2 and 3 of the Seventh Schedule to the Constitution.It was conceded on behalf of the petitioners that the topic oflegislation which was covered by the impugned Act was wellwithin List 2 of the said schedule and the vires of the impugnedAct could not be challenged on that ground…”

As no express prohibition stems from Article 31-B on the powersof the State Legislature to legislate on matters incidental to statutes placedwithin the Ninth Schedule, we are not in agreement with the finding ofthe High Courtthat the State Legislature lacked legislative competenceto enact the 2021 Act on account of Article 31-B.

45. The 2021 Act determined the extent of reservation forcommunities which had already been identified and categorised by the1994 Act. Assuming that the State Legislature carried out an amendmentto the 1994 Act, the said amendment would not have received theprotection under Article 31-B. The question that remains to be answeredis whether the determination of internal reservation for already identifiedcommunities by separate legislation can be said to be in conflict withthe 1994 Act. This Court is of the considered view that detailing theextent of reservation for communities which have already been identifiedas MBCs and DNCs cannot be said to be contrary to the 1994 Act. Thepreamble of the 1994 Act states that in view of requests from variouspolitical parties and social forums representing backward classes toconsider the ramifications of the judgment of this Court in IndraSawhney, the State Government had decided that the existing level of69 per cent reservation in admission to educational institutions in theState and services under the State shall be continued. Determination ofextent of reservation for specific communities within the ‘BackwardClasses of citizens’ was not the subject matter of the 1994 Act.

46. The conclusion of the High Court that determining the extentof reservation amongst the ‘Backward Classes of citizens’ can be doneonly 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 1994Act. At the same time, it cannot be said that the State Legislature lackedcompetence to enact legislation for determining the extent of reservationamongst the MBCs and DNCs.

AD. Effect of the 1994 Act receiving Presidential Assent underArticle 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 theState Government. It was contended on behalf of the Appellants thatBthe High Court was completely wrong in holding that the State does nothave the competence to enact the 2021 Act on the ground that it has notreceived the assent of the President of India. It was pointed out by Mr.Dwivedi that the 1994 Act had received assent of the President underArticle 31-C as it was enacted for giving effect to the policy of the Statetowards securing principles laid down in Part IV of the Constitution, inCparticular, under Article 38, clauses (b) and (c) of Article 39 and Article46. The 1994 Act contained an express declaration to this effect inSection 2 thereof. He argued that the State is at liberty to decide whethera statute should receive the protection of Article 31-C. Mr. Singhvisubmitted that as the impugned legislation is pursuant to the mandate ofDSection 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 forconsideration of the President, by relying upon judgments of this Courtin Arnold Rodricks v. State of Maharashtra[29]and Rajiv Sarin v. Stateof Uttarakhand[30].

E48. Mr. Vaidyanathan relied upon judgment of this Court in Stateof Kerala v. Peoples Union for Civil Liberties[31]as well as judgmentsof the High Court of Bombay in Dattatray Yedu Thombre v. State ofMaharashtra[32] and Citizens of Deulgaon Raja v. State ofMaharashtra[33] and judgment of the High Court of Madhya Pradeshin Rasal Singh v. State of M.P.[34] to submit that assent of the PresidentFis not required for enacting statute with respect to matter which iswithin the purview of List II of Seventh Schedule of the Constitution andfurther, that amendment to statute, which had received the assent ofthe President, can be carried out with the assent of the Governor, aslong as provisions of the amending statute do not fall within the mischief

29 (1966) 3 SCR 88530 (2011) 8 SCC 70831 (2009) 8 SCC 4632 2019 SCC Online Bom 440833 2002 SCC Online Bom 735H34 1978 SCC Online MP 12

of Article 254. Mr. Vaidyanathan contended that assent of the Presidenthad 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 TamilNadu Arunthathiyars (Special Reservation of seats in EducationalInstitutions including Private Educational Institutions and of appointmentsor posts In the services under the State within the Reservation for theScheduled Castes) Act, 2009.

49. Laws giving effect to the policy of the State towards securingprinciples laid down in clauses (b) and (c) of Article 39 of the Constitutionare saved from challenge as being inconsistent with Articles 14 and 19of the Constitution, as per Article 31-C. Where such law is made by theState Legislature, it shall not receive the benefit under Article 31-C unlessit receives the assent of the President. The 1994 Act received the assentof the President as it was made for securing the Directive Principlesunder Article 38, clauses (b) and (c) of Article 39 and Article 46. TheHigh Court proceeded to hold that the 2021 Act has varied the provisionsof the 1994 Act, which could not have been done by the Governor.

50. As already stated, the 2021 Act deals with matters which areincidental or ancillary to those contained in the 1994 Act and the State iscompetent to legislate on such matters. It is for the State to decidewhether legislation, which is not repugnant to any law made by theParliament on the same subject matter, should receive the assent of thePresident or not. If the assent of the President is not sought, theconsequence is that the statute made by the State is susceptible tochallenge as being violative of Article 14 or Article 19. However, it cannotbe said that the State cannot legislate on subject matters, ancillary tothat of an earlier statute which has received the assent of the President,or that it is mandatory for the State Government to seek the assent ofthe President for legislation which the State is otherwise competent toenact. In Indra Sawhney (supra), Jeevan Reddy, J., writing for himselfand three other judges, conclusively clarified that Article 16(1) is facetof Article 14 and just as Article 14 permits reasonable classification, sodoes Article 16(1), which means that appointment and / or posts can bereserved in favour of class under clause (1) of Article 16. For assuringequality of opportunity, it may well be necessary in certain situations totreat unequally situated persons unequally. It was further noted that Article16(4) is an instance of such classification, put in to place the matter

Abeyond controversy. Where the State finds it necessary – for the purposeof giving full effect to the provision of reservation to provide certainexemptions, concessions or preferences to members of backward classes,it can extend the same under clause (4) itself. Pandian, J. while tracingthe legislative history of Article 15(4), observed that the object of Article15(4), introduced by the Constitution (First Amendment) Act, 1951, wasBto bring Articles 15 and 29 in line with Articles 16(4), 46 and 340 and tomake it constitutionally valid for the State to reserve seats for backwardclass of citizens, Scheduled Castes and Scheduled Tribes in publiceducational institutions as well as to make other special provisions asmay be necessary for their advancement. From these observations andCfindings, it is clear that States are empowered to make reservation forbackward classes under Articles 15(4) and 16(4). We see no force inthe submissions of Mr. Vijayan, who attempted to convince this Courtthat the State Legislature’s source of power for enacting the 2021 Actcannot be traced to any Entry in the Lists under the Seventh Schedule ofthe Constitution.D

51. As referenced while dealing with the competence of the Stateto enact the 2021 Act vis-à-vis Article 31-B, this Court in MaharajUmeg Singh (supra) has unequivocally clarified that no fetter can beimplied on the power of the State to legislate, unless it is expresslyprohibited under the Constitution. Without any such express bar underEArticle 31-C, the State’s competence to enact the 2021 Act with theGovernor’s assent cannot be faulted with nor can the State be compelledby the courts to reserve the 2021 Act for assent of the President. Inview of our conclusion, we do not deem it necessary to deal with thejudgments relied upon by the Appellants.F

IV. Caste-based classification

52. Internal reservation of 10.5 per cent for the VanniakulaKshatriyas was challenged by the writ petitioners before the High Courtas being violative of Articles 14, 15 and 16 of the Constitution. Theircontention, that internal reservation was only on the basis of caste whichGamounted to discrimination to the other communities, was accepted bythe High Court.

53. The point that arises for our consideration is whether the internalreservation of 10.5 per cent provided for the Vanniakula Kshatriyas ison the basis of caste alone and whether the High Court is right in holdingH

that such classification on the basis of caste is impermissible. This Courtin K.C. Vasanth Kumar (supra) defined and described caste as below:

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

In Indra Sawhney (supra), Jeevan Reddy, J. observed that casteis nothing but social class — socially homogeneous class. JeevanReddy, J. then proceeded to answer the question relating to identificationof backward classes. He was of the considered view that there is norecognised method for identification of backward classes. He held thatcaste can be the starting point for identifying backward classes, andwherever they are found, the criteria evolved for determiningbackwardness can be applied to see whether they satisfy the criteria.54. It is clear from the above that caste can be the basis forproviding reservation, but it cannot be the sole basis. At present we areconcerned with sub-classification. As stated, it has been held in IndraSawhney (supra) that there is no constitutional or legal bar to Statecategorising backward classes as backward and more backward. In thepresent case, sub-classification for providing internal reservation to aparticular community, i.e., the Vanniakula Kshatriyas, will also be governedby the same principle, namely, while caste can be the starting point forproviding internal reservation, it is incumbent on the State Governmentto justify the reasonableness of the sub-classification and demonstratethat caste has not been the only basis. We are not at present dealingwith the inquiry of other factors relied on by the State Government tojustify internal reservation for the Vanniakula Kshatriyas. We proposeto deal with that point subsequently. At present, we have answered the

Aquestion relating to caste being the starting basis for providing reservationand for sub-classification of backward classes so as to provide for internalreservation.

V. Scrutiny of the report of Thanikachalam, J. andconstitutional validity of the 2021 Act

55. According to the High Court, there was no quantifiable dataavailable with the State of Tamil Nadu as on the date of enactment ofthe 2021 Act, which would support their exercise of enabling powersunder Articles 15(4) and 16(4) of the Constitution. The High Court wasof the view that sub-classification of MBCs and DNCs into threeCcategories for apportionment of reservation under the 2021 Act has beendone without any objective criteria and aside from the population figuresof 1983, no data was available on (i) the degree of backwardness of theclasses for sub-classification; (ii) inadequate representation of these sub-classes; and (iii) efficiency of the administration. Additionally, the HighCourt has relied on the judgments of this Court in Indra Sawhney (supra),DJarnail Singh v. Lachhmi Narain Gupta[35] and Dr JaishriLaxmanrao Patil (supra) to hold that the 2021 Act, being an attempt toprovide proportionate representation, is against the law laid down by thisCourt, as it is settled law that adequate representation is not proportionaterepresentation. It was concluded by the High Court that sub-classificationEwould be permissible only on the ground that “a class is far far backwardthan the advanced sections of that class”, however, the classificationunder the 2021 Act was not based on any intelligible differentia as therewas nothing on record to show that the other 115 communities weremore advanced than the Vanniakula Kshatriyas using any yardstick.Therefore, the classification was made only on the basis of caste, whichFis unsustainable in law.

56. Mr. Rao, Mr. Vaidyanathan and Mr. Wilson relied on the reportsof the Sattanathan Commission and the Ambasankar Commission toshow that the condition of the Vanniakula Kshatriyas, in terms of theirpresence and numbers across Tamil Nadu, their typical occupations andGtheir social and educational status had been assessed meticulously.Emphasis was laid on the manner in which the Ambasankar Commissionhad conducted their assessment, wherein socio, educational and economicsurvey of the entire populace of Tamil Nadu was undertaken by employing2500 personnel and going door-to-door to collect particulars of aroundfive crore people over period of two years, with view to find out andidentify backward classes entitled to enjoy the reservation benefits foradmission into educational institutions and professional colleges and forappointments or posts in the services under the State. It was furthersubmitted that the report of the Janarthanam Commission was based onthe Ambasankar Commission Report, which had collected extensivequantifiable data. The Janarthanam Commission had undertaken afeasibility analysis of castes and communities demanding internalreservation and applied formula for finding out the feasibility factor ofeach such community. Only after concluding that none of the other castes/ communities, demanding internal reservation within the 20 per centreservation granted to MBCs and DNCs, satisfied the test of viability orfeasibility for internal reservation, the Janarthanam Commission hadrecommended 10.5 per cent internal reservation for the VanniakulaKshatriyas. The Appellants also pointed out that the JanarthanamCommission had studied the representation of Vanniakula Kshatriyas inprofessional courses for academic years 2006-07 to 2010-11 and in TamilNadu Government Services as on 01.08.2010 to demonstrate theirinadequate share of enjoyment of reservation benefits, which was farbelow the proportion of their population to the total population. Accordingly,it was urged by the Appellants that the impugned judgment of the HighCourt had not applied its mind to the reports and the extensive findingson the basis of the data collected and evaluated. Contesting the impugnedjudgment, it was further argued by Mr. Radhakrishnan that the HighCourt had not embarked on limited scrutiny, as is the mandate of thisCourt in Barium Chemicals Ltd. v. Company Law Board[36] forinstances where the subjective opinion of the State is involved, and thatthe High Court should have restricted itself to examine whether therewas data available on the basis of which the State Government hadformed its opinion. These submissions were forcefully controverted bythe Respondents, on grounds discussed hereinafter.

57. The preamble of the 2021 Act refers to the recommendationof the Chairman, Tamil Nadu Backward Classes Commission forproviding 10.5 per cent reservation to the Vanniakula Kshatriya communitywithin 20 per cent. The Chairman of the Commission sought supportfrom the recommendations made by the Janarthanam Commission to

Arecommend internal reservation in favour of the Vanniakula Kshatriyas.To appreciate the submissions on whether the findings of the variousReports are supported by data, it is necessary to deal with therecommendations 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 CommissionBwere not requested to address the issue of provision of internal reservationto specific communities within the MBCs and DNCs, the reports ofthese Commissions are not relevant for our discussion.

58. Before we commence our evaluation of the reports of theJanarthanam Commission and of Justice Thanikachalam, it is necessaryCto briefly outline the contours of judicial review of Commission’s reportproviding recommendations pertaining to backward classes. Asidentification of backward classes and grant of reservation are measuresunder Articles 15(4) and 16(4) of the Constitution, such measures haveto pass constitutional scrutiny. While the report of Commission has to

Dbe looked into with deference, it cannot be said that evaluation pertainingto violation of any constitutional principle or non-consideration of anyconstitutional requirement is beyond the reach of judicial oversight. ThisCourt in State of A.P. v. U.S.V. Balram[37]categorially laid down thatjudicial scrutiny is permissible to enquire into whether the conclusionsarrived at by the Commission are supported by the data and materialsEreferred to in its report. In Indra Sawhney (supra), the test laid down inBarium Chemicals (supra) was endorsed with respect to judicial reviewof the subjective opinion of the State in matters relating to reservation.Subsequently, this Court has cautioned against the re-evaluation of thefactual material on record[38]. Having considered the above judgments,

Fwe say with certainty that it is within the domain of the courts to scrutinisethe factual material and data collected by Commission and assesswhether the conclusions of the Commission are justified by such material.

59. By G.O. (Ms) No. 35 dated 21.03.2012, the Government ofTamil Nadu requested the Tamil Nadu Backward Classes CommissionGto submit report on the demands made by various communities forinternal reservation within the reservation provided for MBCs and DNCs,apart from other terms of reference prescribed. The Backward ClassesCommission consisted of 7 members, with Justice Janarthanam chairing

37 (1972) 1 SCC 660H38 B.K. Pavitra v. Union of India (2019) 16 SCC 129

the Commission. The other members of the Commission, except theChairman, expressed their concern that adequate time was not given tothem 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 majoritymembers observed that their term was coming to an end in July, 2012and it would not be proper for them to submit report, especially whenthe parliamentary elections were anticipated. suggestion was madeby the members to provide an interim reply to the Government requestingthat updated caste-based census data should be collected and placedbefore the Commission. Prof D. Sundaram, member of theCommission, submitted separate note, in which, along with otherrecommendations, he stated that there was need for assessment ofquantifiable data by statistical expert, which should be collated in thecurrent survey on castes. He further suggested wider consultationwith vice-chancellors of universities, directors of institutes, chairmenand members of various recruitment commissions and agencies both atthe Centre and State level and all stakeholders of the communities andclasses, bureaucrats in various departments, more particularly of thepersonnel and administrative reforms departments. He also emphasisedthat the representations preferred by other communities from amongstthe Backward Classes for internal reservation need to be examined.

60. The Chairman of the Backward Classes Commission submittedhis report on 24.05.2012, recommending internal reservation of 10.5 percent in favour of Vanniakula Kshatriyas. In his report, there is referenceto 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 bycommunities within the MBCs, out of which, 8 were from VanniakulaKshatriyas, 5 from Meenavars, 1 each from Thotiya Naicker, Maruthuvar,Navithar, Salavai Thozhilalar and Erra Gollar, seeking internal reservationon the basis of individual castes / communities. The Commission gatheredthe population data of all castes and communities listed as MBCs andDNCs from the Ambasankar Commission Report submitted to theGovernment in 1985 and other material furnished by the Government toconsider the feasibility of the requests for internal reservation. It wasmentioned in the report that the total population from the State of TamilNadu representing all castes and communities during 1983 was4,99,90,943. The population of the MBCs and DNCs was 1,23,17,745.

AThe population of the Vanniakula Kshatriyas was 65,04,855, which cameup to 13.012 per cent of the total population. The Chairman of theCommission worked out the percentage of internal reservation from thepopulation figures, which formed the basis of the feasibility analysisconducted. On the basis of formula that was adopted by the Chairman,the feasibility factor of the Vanniakula Kshatriyas was 10.562 per cent.BThe other communities / castes seeking internal representation werefound to be not entitled for the benefit as they did not satisfy the test offeasibility for making internal reservation, falling about or below two anda half per cent on the basis of their population proportionate to thepopulation of MBCs and DNCs together. The report further stated thatCpreparation of roster for working out reservation would becomecomplicated, if representations by other communities asking for internalreservation were to be accepted.

61. By taking into account the population of the VanniakulaKshatriyas as enumerated in the report of the Ambasankar CommissionDin 1985, the Chairman recommended internal reservation to theVanniakula Kshatriyas in proportion to their population, i.e., 10.5 percent. The Chairman further referred to the admissions of studentsbelonging to the Vanniakula Kshatriya community in professional coursessuch as engineering, medicine, veterinary science, agriculture and lawfor the academic years 2006-07 to 2010-11 and found that the seatsEsecured to engineering courses was not proportionate to their population.Insofar as public employment is concerned, representation of VanniakulaKshatriyas 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 wasalso below 10.5 per cent, i.e., the percentage of internal reservationFearmarked by the Chairman. The Chairman was of the view that providinginternal reservation to the Vanniakula Kshatriyas would not amount toconferring undue advantage on them nor would it unduly affect theentitlement of reservation benefits of the other castes and communitieslisted as MBCs and DNCs.G62. As stated, the Tamil Nadu Backward Classes Commission

G62. As stated, the Tamil Nadu Backward Classes Commissionwas re-constituted on 08.07.2020, with Justice Thanikachalam as theChairman, along with six members and two ex-officio members. Inresponse to the Government’s request on 18.02.2021 to send views oninternal reservation to be provided for communities listed in MBCs andDNCs, Justice Thanikachalam, by way of letter dated 22.02.2021,H

recommended 10.5 per cent reservation for Vanniakula Kshatriyas, sevenper cent for DNCs and some MBCs and two and half per cent for theremaining MBCs. In the said letter, reference was made to therecommendation of Justice Janarthanam for grant of 10.5 per centinternal reservation to Vanniakula Kshatriyas. Without providing anyreasons, Justice Thanikachalam made adverse comments on the dissentof the other members by stating that such opinion was based onextraneous reasons, which were irrelevant and not germane to theconsideration of issues under the additional terms of reference issued in2012. Justice Thanikachalam was of the view that the recommendationof Justice Janarthanam, though being the minority opinion, wasunassailable. However, noting that the terms of reference of theJanarthanam Commission required the Commission to considerrepresentation for internal reservation of various communities and notjust major communities, Justice Thanikachalam recommended, in additionto the 10.5 per cent reservation for the Vannikula Kshatriyas, allocatingseven per cent reservation to grouping of communities, comprisingDNCs along with certain communities within MBCs bearing namessimilar to DNCs and fishermen communities and Vannar communitieswithin MBCs, and allocating two and half per cent to the remainingcommunities within MBCs. It is worthwhile to reiterate that at the time,no report had been submitted by the Kulasekaran Commission, whichwas appointed by the Government on 21.12.2020 for collection ofquantifiable data on castes, communities and tribes in the State of TamilNadu “as on date”.

63. As contested by Mr. Nagamuthu and Mr. Balasubramanian, itis clear that the report of Justice Janarthanam, relied upon by JusticeThanikachalam, is minority view. The views of the plurality, i.e., theremaining six members of the Tamil Nadu Backward Classes Commissionwere contrary to the views expressed by Justice Janarthanam. Themajority opinion clearly mentioned that the data that was available beforethem was outdated. They highlighted the importance of collection ofcaste-wise data to enable them to give an opinion on internal reservation.That apart, the majority members expressed the inappropriateness ofsubmitting the report in haste, just before the ensuing parliamentaryelections in 2012. Justice Thanikachalam committed an error in brushingaside the opinion of the majority members on the ground that it wasriddled with extraneous reasons. Without justifying the lack of updateddata cited by the majority as ground for being unable to comment on

Agrant of internal reservation, Justice Thanikachalam blindly followed therecommendation of Justice Janarthanam, by stating that his view isunassailable. It is to be noted that the recommendation of internalreservation for the Vannikula Kshatriyas is by way of letter signedonly by Justice Thanikachalam and does not enclose the views of theremaining members of the Tamil Nadu Backward Classes Commission.BThere is nothing in the said letter to even suggest that JusticeThanikachalam, after due deliberation with the remaining members ofthe Commission, has put forth recommendations on internal reservation,which have the backing of the remaining members, or at the least, theapproval of the majority.C64. Providing internal reservation of 10.5 per cent from the 20 percent made available to MBCs and DNCs would definitely be to thedetriment of other communities, in the absence of any exercise undertakenor any findings arrived at to demonstrate that members of the VanniakulaKshatriya community are unable to compete with the remainingDcommunities within the MBCs and DNCs. No data or material is referredto in the letter by Justice Thanikachalam on the representation of theremaining communities within the MBCs and DNCs in educationalinstitutions or public employment, which could support the severerestriction in the extent of reservation made available to these communities,who had been entitled to avail the benefit of 20 per cent reservation enEmasse till the enactment of the 2021 Act. The following paragraph fromDr Jaishri Laxmanrao Patil (supra), as relied upon by Mr. V. Prakash,is relevant to the present context:

“520. The word “adequate” is relative term used in relationto representation of different caste and communities in publicFemployment. The objective of Article 16(4) is that backwardclass should also be put in mainstream and they are to beenabled to share power of the State by affirmative action. Tobe part of public service, as accepted by the society of today,is to attain social status and play role in governance. TheGgovernance of the State is through service personnel who playa key role in implementing government policies, its obligationand duties. The State for exercising its enabling power to grantreservation under Article 16(4) has to identify inadequacy inrepresentation of backward class who is not adequatelyrepresented. For finding out adequate representation, the

representation of backward class has to be contrasted withrepresentation of other classes including forward classes. Itis relative term made in reference to representation ofbackward class, other caste and communities in publicservices.”

There was no independent evaluation by resorting to knownmethods for recommending internal reservation by Justice Thanikachalam,who simply approved the minority report submitted by JusticeJanarthanam.

65. It is relevant to note that Justice Janarthanam in his reportrelied upon the population figures of the Vanniakula Kshatriyas from theyear 1985. His recommendation was on the basis of the figures takenfrom the report of the Ambasankar Commission, submitted in 1985.Reference made to admissions to engineering colleges and appointmentto public posts pertained to the years 2006-07 to 2010-11 and 2010,respectively. decision taken for providing reservation which wouldimpact the rights of members of as many as 115 communities should beon the basis of contemporaneous inputs and not outdated and antiquateddata[39]. Any study by the Commission should be with regard to the presentstatus since the object is to take affirmative actions in present or infuture to address the needs of particular community[40]. In this particularcase, the data that was relied on for the purpose of recommending internalreservation to the Vanniakula Kshatariyas is from 1985. The StateGovernment, at the time of appointing the Kulasekaran Commission tocollect quantifiable data on castes, communities and tribes in the Stateof Tamil Nadu, including migrants domiciled therein, expressly recognizedthe need for collection of such data as the data collected by theAmbasankar Commission had become more than three decades old.We are in agreement with the objection of the Respondents, that therewas no contemporaneous data available to Justice Thanikachalam oreven Justice Janarthanam, on the basis of which recommendations forinternal reservation could have been made.

66. It is observed that the proportion of the population of theVanniakula Kshatriyas to the total population of MBCs and DNCs, termedas 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)

Aby Justice Janarthanam to recommend internal reservation for theVanniakula Kshatriyas. The representations made by other communitieswithin the MBCs seeking internal reservation were not considered feasibleby Justice Janarthanam on the sole basis of the proportion of theirpopulation to the total population of the MBCs and DNCs together. ThisCourt is of the opinion that percentage of population of the VanniakulaBKshatriyas proportionate to the total population of the MBCs and DNCscannot be the sole criterion for providing internal reservation. Adequacyof representation is different from proportionate representation, althoughproportion of population of the relevant community to the total populationmay be one of the relevant factors in determining adequacy. In IndraCSawhney, it was held as under: -

“807. We must, however, point out that clause (4) speaks ofadequate representation and not proportionate representation.Adequate representation cannot be read as proportionaterepresentation. Principle of proportionate representation isDaccepted only in Articles 330 and 332 of the Constitutionand that too for limited period. These articles speak ofreservation of seats in Lok Sabha and the State legislaturesin favour of Scheduled Tribes and Scheduled Castesproportionate to their population, but they are only temporaryand special provisions. It is therefore not possible to acceptEthe theory of proportionate representation though theproportion of population of backward classes to the totalpopulation would certainly be relevant. Just as every powermust be exercised reasonably and fairly, the power conferredby clause (4) of Article 16 should also be exercised in fairFmanner and within reasonable limits — and what is morereasonable than to say that reservation under clause (4) shallnot exceed 50% of the appointments or posts, barring certainextraordinary situations as explained hereinafter. From thispoint of view, the 27% reservation provided by the impugnedMemorandums in favour of backward classes is well withinGthe reasonable limits. Together with reservation in favour ofScheduled Castes and Scheduled Tribes, it comes to total of49.5%. In this connection, reference may be had to the FullBench decision of the Andhra Pradesh High Court in V.Narayana Rao v. State of A.P. [AIR 1987 AP 53 : 1987 LabHIC 152 : (1986) 2 Andh LT 258] , striking down the

enhancement of reservation from 25% to 44% for OBCs. Thesaid enhancement had the effect of taking the total reservationunder Article 16(4) to 65%.”

Accordingly, we accept the contention of Dr. Dhawan that theinternal reservation recommended in the report of Justice Janarthanamand approved by Justice Thanikachalam, based only on population, cannotbe sustained in view of the law laid down by this Court.

67. The data placed by Mr. Gonsalves, on behalf of one of theRespondents, with reference to the Tamil Nadu Second BackwardClasses Commission (Ambasankar Commission), appears to indicatethat unlike the other 115 communities in the same class of MBCs andDNCs, many of whom have been bereft of any benefit of affirmativeaction, the Vanniakula Kshatriyas had higher representation in publicemployment and educational institutions. For the years 1980-1983, 25communities from 48 communities identified as MBCs and 66 out of 68communities identified as DNCs did not get admission into MBBS course.Students belonging to the Vanniyar community secured 104 seats inmedical course, with an admission to population ratio of 1:62547. 87students out of these 104 were admitted on the basis of reservationwhereas 17 students were admitted on their own merit. The Respondentsalso placed certain data obtained under the Right to Information Act,2005 (hereinafter, the “RTI Act”) pertaining to the academic years 2019-2020 and 2020-2021. While the total seats available for admission toundergraduate medical course for the year 2019-2020 in the State ofTamil Nadu were 4,193 with 20 per cent seats reserved for MBCs andDNCs amounting to 960 seats, students from the Vanniyar communityhad secured 515 seats, which is around 57 per cent of the total seatsreserved for MBCs and DNCs. Citing from the Ambasankar Report, itwas submitted that with respect to engineering, law and veterinary sciencecourses as well, students from the Vanniyar community fared far betterthan other communities within the MBCs and DNCs, many of whom didnot get any seats in these courses for the period from 1980 to 1983.Representation of Vanniyars in public posts in the Government of TamilNadu for the years 1980 to 1983, according to the AmbasankarCommission Report, was much better in comparison to persons belongingto the other communities within the MBCs and DNCs. Particularsprovided of staff members in Anna University for the years 2018 to2020, obtained under the RTI Act, appear to paint picture of better

Aaccess and representation of members of the Vanniyar community overtheir compatriots belonging to other communities within MBCs andDNCs. We are informed that 520 MLAs belonging to the Vanniyar castehave been elected to the Tamil Nadu Legislative Assembly between1952 to 2021, averaging to about 35 MLAs in each Assembly and forming15 per cent of the strength of the House. More than 90 persons from theBVanniyar 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 Sabhafrom Tamil Nadu. Several individuals from the Vannikula Kshatriyacommunity have held posts of Ministers at the Centre as well as in theState Government and have also been appointed as Judges of the HighCCourt. We are further informed that numerous trusts have beenestablished, which cater to the betterment of members, and educationalneeds of students in particular, from the Vanniyar community.

68. We have referred to this data only to emphasize that the findingsin the letter of Justice Thanikachalam had to be suitably supported byDindependent studies and assessment of relevant data. We make it clearthat 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 reservationwithin the Backward Classes can be justly addressed.

E69. Having dealt with the recommendations from JusticeThanikachalam, which form the basis for the 2021 Act, the questionwhich requires to be considered next is whether the 2021 Act isunconstitutional, being violative of Article 14 of the Constitution. Thepreamble of the 2021 Act refers to the representation made by theVanniakula Kshatriyas for separate quota of reservation on the groundFthat they could not compete with the other communities in the list ofMBCs and DNCs, which was referred to the Backward ClassesCommission. The preamble further refers to the recommendations madeby the Chairman of the Backward Classes Commission (JusticeThanikachalam), where to facilitate distributive social justice, apart fromGthe 10.5 per cent reservation for Vanniakula Kshatriyas, the othercommunities within the MBCs and DNCs were recommended to begrouped into two categories on the proportion of their population.Accepting the suggestions made by the Chairman, Backward ClassesCommission, the 2021 Act was promulgated to ensure equitable distributionof the 20 per cent reservation provided to the MBCs and DNCs underHthe 1994 Act.

70. That there is no relevant, contemporaneous material whichwas examined by the Chairman, Backward Classes Commission beforesubmitting his report in support of the claim of the Vanniakula Kshatriyas,has been dealt with in detail in the preceding paragraphs. Is the Stateright in contending that the classification of the Vanniakula Kshatriyasmade by the 2021 Act for separate reservation is reasonable? TheAppellants, relied on Chiranjit Lal Chowdhuri v. Union of India[41], tourge that the presumption is in favour of constitutionality of the 2021 Actand the burden is upon those who attack the legislation to demonstratethat constitutional principles had been clearly transgressed. Further,support was sought from Ajay Kumar Singh v. State of Bihar[42] tocontend that the State is in the best position to determine what kind ofspecial provision should be made in favour of particular class, havingregard to the relevant facts and circumstances, and deference must beshown to legislative judgment. The Respondents contested the abovesubmissions on the ground that the classification made under the 2021Act amounts to discriminating equals. Reliance was placed on Col. A.S.Iyer v. V. Balasubramanyam[43] to argue that an anxious and sustainedattempt to discover some basis for classification will deprive Article 14of the equality dispensation. In the absence of any rationale for treatingthe Vanniakula Kshatriyas differently, the differentiation and allocationof percentages was entirely arbitrary and falls foul of Article 14.

71. Equal laws would have to be applied to all in the same situation,and there should be no discrimination between one person and another ifas regards the subject matter of the legislation their position is substantiallythe same. This brings in the question of classification. As there is noinfringement of the equal protection rule, if the law deals alike with all ofa certain class, the legislature has the undoubted right of classifyingpersons and placing those whose conditions are substantially similar underthe same rule of law, while applying different rules to persons differentlysituated. The classification should never be arbitrary, artificial or evasive.It must rest always upon real and substantial distinction bearing areasonable and just relation to the thing in respect to which theclassification is made; and classification made without any reasonablebasis should be regarded as invalid[44]. The whole doctrine of classification41 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

Ais based on discrimination without reason and discrimination with reasonand on the well-known fact that the circumstances which govern oneset of persons or objects may not necessarily be the same as thosegoverning another set of persons or objects so that the question of unequaltreatment does not really arise as between persons governed by differentBconditions and different sets of circumstances[45].

72. Discrimination is the essence of classification. Equality isviolated if it rests on unreasonable basis. The concept of equality has aninherent limitation arising from the very nature of the constitutionalguarantee. Those who are similarly circumstanced are entitled to anequal treatment. Equality is amongst equals. Classification is, therefore,Cto be founded on substantial differences which distinguish persons groupedtogether from those left out of the groups and such differential attributesmust bear just and rational relation to the object sought to be achieved.Our Constitution aims at equality of status and opportunity for all citizensincluding those who are socially, economically and educationallyDbackward. Articles 15(4) and 16(4) bring out the position of backwardclasses to merit equality. Special provisions are made for the advancementof backward classes and reservation of appointments and posts for themto secure adequate representation. These provisions are intended to bringout 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 couldEnot have different content from equality under Article 14[46]. Differentiawhich is the basis of classification must be sound and must havereasonable relation to the object of the legislation. If the object itself isdiscriminatory, then explanation that classification is reasonable havingrational relation to the object sought to be achieved is immaterial[47].

73. As stated supra, the object of the 2021 Act is to achieveequitable distribution of the benefit of 20 per cent reservation providedto MBCs and DNCs. At the cost of repetition, at the time of enactmentof the 2021 Act, 116 castes were to be found in the cumulative lists ofMBCs and DNCs. Choosing particular caste and providing specialGreservation of 10.5 per cent out of the 20 per cent to such caste isdiscriminatory, in the absence of any sound differentiation fromcommunities 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 Subramanian Swamy v. Director, Central Bureau of Investigation (2014) 8 SCC 682

together for the purposes of receiving the benefits of 20 per centreservation. While the State Government has the competence to classifythe Vanniakula Kshatriyas or any other community or group ofcommunities within backward classes as particular class for the grantof special measures, there should be reasonable basis for categorisingsuch communities into different section from the rest of the communitieswithin the MBCs and DNCs, on grounds which cannot be superficial orillusory.

74. The justification on behalf of the State is that sufficient materialwas gathered by the Tamil Nadu Backward Classes Commission toshow that there was inadequate representation, disproportionate to thepopulation of the Vanniakula Kshatriyas, thereby culminating in the 2021Act, which aimed to achieve equitable distribution of reservation amongstMBCs and DNCs. perusal of the discussion in the earlier paragraphswould disclose that the letter from the Chairman, Backward ClassesCommission is on the basis of antiquated data, without any assessmentof the relative backwardness and representation of the VanniakulaKshatriyas and their ability to compete with the remaining 115 communitieswithin the MBCs and DNCs. Additionally, recommendations therein aresolely based on population. To differentiate particular class / categoryfrom others, there should be substantial distinction which clearlydemarcates that class / category. In the instant case, we see no justificationfor how the Vanniakula Kshatriyas can be treated as different classand meted out preferential treatment, being one amongst the 116communities, who have all been considered on the same footing till theenactment of the 2021 Act and were, therefore, eligible to claim thebenefit of undivided 20 per cent reservation. Population being cited asthe sole factor to support this classification is in the teeth of the judgmentsof this Court in Indra Sawhney (supra) and Jarnail Singh (supra).Accordingly, we hold that the classification sought to be made under the2021 Act is unreasonable and, therefore, the 2021 Act is violative ofArticles 14, 15 and 16, as there is no substantial basis for differentiatingthe Vanniakula Kshatriyas and granting them separate reservation.

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

75. Mr. Sankaranarayanan argued that providing internalreservation is major policy matter, which should have been undertakenby the State only with the consultation of the National Commission for

ABackward Classes. As, admittedly, there was no consultation, the 2021Act is void. Article 338-B(9) provides that the Union and the StateGovernment shall consult the Commission on all major policy mattersaffecting the SEBCs. proviso was inserted by the 105[th] AmendmentAct, by which it was specified that clause (9) of Article 338-B would notbe applicable to lists of SEBCs that are prepared and maintained by theBStates. However, the 2021 Act was brought into force prior to the 105[th]Amendment Act. Having concluded that the 105[th] Amendment Act wasprospective in its operation, it necessarily follows that the State wasrequired to have consulted the Commission on major policy matters priorto the 105[th] Amendment Act. There cannot be any dispute regardingCinternal reservation being provided to specific community qualifying asa major policy decision. The point that falls for consideration is theconsequence of non-consultation by the State Government with theNational Commission for Backward Classes before providing internalreservation. Given the language of the provision and its interpretation inDr Jaishri Laxmanrao Patil (supra), there need not be detailedDdiscussion about Article 338-B(9) being mandatory. The requirement ofconsultation with an expert constitutional body is indeed mandatory andit would be fatal to disregard the provision. However, non-consultationby the State Government with the National Commission would not takeaway the competence of the State Government to enact the 2021 Act.ELegislative competence can only be circumscribed by express prohibitioncontained in the Constitution itself[48] and Article 338-B(9) does not stopthe State from enacting legislation in furtherance of major policymatter but states that the State Government shall consult the Commissionon such matters.

76. The consequence of disregarding mandatory consultationFprovision would normally render the legislation void as it is in breach ofan obligatory requirement to consult an expert constitutional body.However, we refrain from going into this issue in view of our earlierconclusion that the 2021 Act does not withstand scrutiny under Articles14, 15 and 16 of the Constitution.GVII. Conclusion

77. To conclude, we hold that there is no bar on the legislativecompetence of the State to enact the 2021 Act and on the differentgrounds urged with respect to this issue, we are of the view that:

(i)The 105[th] Amendment Act being prospective in operation,Ait is the 102[nd] Amendment Act which held the field at thetime of enactment of the 2021 Act.

(ii)As the 2021 Act dealt with sub-classification andapportionment of certain percentage of reservation for thepurpose of determining the extent of reservation ofBcommunities within the MBCs and DNCs, it is permissibleexercise of power by the State Government under Article342-A of the Constitution in terms of the judgment of thisCourt in Dr Jaishri Laxmanrao Patil (supra). Prior to the105[th] Amendment Act, what was prohibited for the State toCcarry out under Article 342-A is the identification of SEBCs,by inclusion or exclusion of communities in the Presidentiallist of SEBCs. It is clear that the exercise of identificationof MBCs and DNCs had been completed by the Statepursuant to the 1994 Act.

(iii)There is no bar to the sub-classification amongst backwardclasses, which has been expressly approved in IndraSawhney (supra). Even considering the judgment in E.V.Chinnaiah (supra),which dealt with the sub-classificationof Scheduled Castes identified in the Presidential list underArticle 341 and held that any sub-division of ScheduledCastes by the State would amount to tinkering with thePresidential list, the State’s competence in the present caseto enact the 2021 Act is not taken away on this ground as,admittedly, the Presidential list of SEBCs is yet to bepublished, making the question of tinkering with such listredundant.

(iv)Placing of the 1994 Act under the Ninth Schedule cannotoperate as hurdle for the State to enact legislations onmatters ancillary to the 1994 Act. Legislative competenceof the State Legislature can only be circumscribed byexpress prohibition contained in the Constitution itself andArticle 31-B does not stipulate any such express prohibitionon the legislative powers of the State.

(v)Detailing the extent of reservation for communities alreadyidentified as MBCs and DNCs, which is the thrust of the2021 Act, cannot be said to be in conflict with the 1994 Act,

98SUPREME COURT REPORTS

Aas determination of extent of reservation for variouscommunities was not the subject matter of the 1994 Act.

(vi)The 1994 Act, having received the assent of the Presidentunder Article 31-C, does not prohibit the State Legislaturefrom enacting legislation with the approval of the GovernorBon matters ancillary to the 1994 Act, as Article 31-C doesnot place any fetter on the legislative powers of the State.The State cannot be compelled to seek the assent of thePresident for legislation granting internal reservation, whenit is empowered to provide reservation and other specialmeasures for backward classes, by way of legislation asCwell as executive orders, under Articles 15(4) and 16(4) ofthe Constitution.

On the issue of caste-based classification, Indra Sawhney (supra)has, in precise and unambiguous terms, stated that caste can be thestarting point for identifying backward classes, but it cannot be the soleDbasis. Accordingly, while caste can be the starting point for providinginternal reservation, it is incumbent on the State Government to justifythe reasonableness of the decision and demonstrate that caste is not thesole basis. As regards the letter of Justice Thanikachalam, Chairman ofthe Tamil Nadu Backward Classes Commission, which forms the basisEof the 2021 Act, we find that the Government has committed an error inaccepting the recommendations therein for the following reasons:

(i)Recommendations have been based on the report of theChairman of the Janarthanam Commission, which had reliedon antiquated data, and there is clear lapse on the part ofFJustice Thanikachalam in having readily dismissed thereservations expressed by the majority members of theJanarthanam Commission, who had observed that in theabsence of updated caste-wise data, recommendations oninternal reservation could not be fruitfully made.

G(ii)Apart from approving the report of the Chairman of theJanarthanam Commission with respect to internalreservation for the Vanniakula Kshatriyas and makingadditional recommendations on the grouping of the remainingcommunities for specific percentages of reservation, theletter from Justice Thanikachalam does not refer to anyHanalysis or assessment of the relative backwardness and

representation of the communities within the MBCs andDNCs.

(iii)Population has been made the sole basis for recommendinginternal reservation for the Vanniakula Kshatriyas, whichis 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 nosubstantial basis for classifying the Vanniakula Kshatriyas into one groupto be treated differentially from the remaining 115 communities withinthe MBCs and DNCs, and therefore, the 2021 Act is in violation ofArticles 14, 15 and 16. We uphold the judgment of the High Court on thisaspect. Given our conclusion on the 2021 Act being ultra vires Articles14, 15 and 16 of the Constitution, we have refrained from delving intothe issue of non-compliance by the State Government with theconsultation requirement prescribed under clause (9) of Article 338-B atthe time of enactment of the 2021 Act.

78. We make it clear that we have not expressed any opinion onthe merits of the writ petition challenging the 1994 Act, pendingconsideration before this Court, or, for that matter, challenges to anyother legislation which may have been referred to herein and our findingsare strictly confined to the issues which have come up for ourconsideration in relation to the 2021 Act.

79. The Appeals are disposed of accordingly.

Ankit Gyan

Appeals disposed of.

(Assisted by : Iram Jan, LCRA)