TaxTMI 
TaxTMI 
2022 (3) TMI 1597
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....12-2642 OF 2022 (ARISING OUT OF SLP (C) NOS. 2312-2342 OF 2022) L. NAGESWARA RAO AND B.R. GAVAI, JJ. For Appearing Parties : G. Sivabalamurugan, AOR, S. Thananjayan, Ilavarasan, Advs., Promila, AOR, B. Karunakaran, M.R. Jothimanian, B. Sasi Kumar, Elavarasan, Advs., Anoop Prakash Awasthi, AOR, M.N. Rao, Sr. Adv., K. Balu, M.R. Jothimanian, Advs., Radhakrishnan, Sr. Adv., Balaji Srinivasan, AOR, Gowtham Kumar, Pallavi Sengupta, Garima Jain, Aakriti Priya, Shahrukh, Prateek Yadav, Suhail Ahmed, Lakshmi Rao, Advs., C.S. Vaidyanathan, Sr. Adv., Diksha Rai, AOR, Ankit Agarwal, Prateek Bhardwaj, Advs., Abhishek Manu Singhvi, Sr. Adv., Varun K. Chopra, Amit Bhandari, Advs., D. Kumanan, AOR, Naman Joshi, Yash Johri, Sheikh F. Kalia, Guneet Sidhu, Advs., Rakesh Dwivedi, Sr. Adv., Sanskriti Pathak, Adv., V. Krishna Murthy, Sr. Adv., P. Wilson, Mukul Rohtagi, Sr. Advs., M. Yogesh Kanna, AOR, Raja Rajeshwaran S., P.M. Vishnu Varthanan, R. Vignesh, Advs., M. Yogesh Kanna, AOR, Prabhu Rama Subramanian, Raghunatha Sethupathi, Karuppaiah Meyyappan, Raja Rajeshwaran, Murugendran, K. Nagendra Prasad, Priya R., Advs., Colin Gonsalves, Sr. Adv., Shiyas Kumar, Adv., K.M. Vijayan, Sr. Adv., S. Gow....
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....nteed Under Article 29(2) of the Constitution of India. On 18.06.1951, Article 15(4) was inserted by the Constitution (First Amendment) Act, 1951, enabling the State to make any special provision for advancement of socially and educationally backward classes. Consequent to the judgment of this Court, G.O. Ms. No. 2432 dated 27.09.1951 was issued by the Madras State adopting a 20-point roster, with three seats reserved for Scheduled Castes and Scheduled Tribes and five for Backward Classes, amounting to 15 per cent reservation for Scheduled Castes and Scheduled Tribes together and 25 per cent for Backward Classes. On 30.12.1954, G.O. Ms. No. 2643 was issued increasing reservation for Scheduled Castes and Scheduled Tribes combined to 16 per cent and Backward Classes to 25 per cent. By G.O. Ms. No. 353 dated 31.01.1957, the State Government made a sub-classification amongst Backward Classes. 'Most Backward Communities' were identified and educational concessions were extended to them. There were 58 communities in the list of 'Most Backward Communities', with Vanniakula Kshatriyas listed at serial No. 1. 3. The State Government appointed a Backward Class Commission u....
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....9 communities as 'Most Backward Classes' (MBCs) and 68 communities as 'Denotified Communities' (DNCs), respectively. The Vanniakula Kshatriya community was placed at sl. No. 26 in the list of MBCs. On 28.03.1989, separate reservation of 20 per cent, out of the available 50 per cent for Backward Classes, was provided for MBCs and DNCs together and the remaining 30 per cent set aside for Backward Classes. Later, on 22.06.1990, one per cent separate reservation was provided to Scheduled Tribes in public services and educational institutions. Thus, from 1990, 30 per cent reservation was provided for Backward Classes, 20 per cent for MBCs and DNCs, 18 per cent for Scheduled Castes and 1 per cent for Scheduled Tribes, totalling to 69 per cent. 6. Act No. 45 of 1994, i.e., the Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of seats in Educational Institutions and of appointments or posts in the Services under the State) Act, 1993 (hereinafter, the "1994 Act") was enacted to provide for reservation in admissions to educational institutions in the State and for appointments in the services under the State. 'Backward Classes of citizens....
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.... No. 50 dated 11.07.2011, the Government of Tamil Nadu decided to continue to implement reservation of 69 per cent as provided in the 1994 Act. It is mentioned therein that a report of the Tamil Nadu Backward Classes Commission was submitted to the Government on 08.07.2011 and subsequently placed before the Cabinet, which was satisfied about the justification for continuation of reservation of 69 per cent. 8. Thereafter, Writ Petition No. 365 of 2012 was filed Under Article 32 of the Constitution challenging the 1994 Act, which is pending consideration before this Court. On 21.03.2012, by G.O. (Ms) No. 35, the Government prescribed additional terms of reference to the Tamil Nadu Backward Classes Commission, requesting the Commission to examine and recommend upon the demand made by various communities to provide for internal reservation, within the reservation provided to MBCs and DNCs. There is a reference in the said G.O. to a writ petition filed before the High Court of Madras as well as representations made by members of the Vanniakula Kshatriya community and other communities, seeking internal reservation for each of these communities within the 20 per cent reservation for M....
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....per cent for 'Part-MBC and DNC Communities' and two and a half per cent for 'Part-MBC Communities'. In terms of the Schedule annexed to the 2021 Act, 'Part-MBC(V)' consists of Vanniakula Kshatriya community (including Vanniyar, Vanniya, Vannia Gounder, Gounder or Kander, Padayachi, Palli and Agnikula Kshatriya), 'Part-MBC and DNC' comprise 25 communities from the MBCs and 68 DNCs and the remaining 22 communities of BCs come under the category of 'Part-MBC'. 11. Writ petitions were filed in the High Court of Madras assailing the constitutional validity of the 2021 Act. The High Court framed the following points for consideration: (i) Whether the State Legislature has competency to make the impugned Act after 102nd Constitutional Amendment Act, 2018 and before 105th Constitutional Amendment Act, 2021? (ii) Whether an Act placed under the Ninth Schedule of the Constitution of India can be varied without amending the said Act? (iii) Whether the State Government had the power to take any decision with regard to Backward Classes in the teeth of the Constitutional provisions, more particularly, Article 338-B of the Cons....
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....nd SLP (C) No. 19574 of 2021, respectively, stated that there is no necessity of referring this matter to a larger Bench. 16. Dr. Singhvi submitted that challenge to the 1994 Act is pending consideration before a Constitution Bench of this Court. He further stated that adjudication of the dispute in these appeals would involve interpretation of the Constitution (One Hundred and Fifth Amendment) Act, 2021 (hereinafter, the "105th Amendment Act"). According to Dr. Singhvi, this Court would have to decide whether the 105th Amendment Act is clarificatory and dates back to the introduction of Article 342-A. It is advisable that the said issue is decided by a larger Bench. Mr. Dwivedi, supplementing the submissions of Dr. Singhvi, referred to the findings of the High Court in the impugned judgment on the lack of legislative competence of the State Legislature in enacting the 2021 Act with respect to Section (Sic Article) 31-B of the Constitution. He stated that the words "repeal or amend" appearing in Article 31-B would have to be construed by this Court in these appeals to reach a determinative finding. On this ground, he urged for these appeals to be decided by a larger Bench. 17....
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....erpretation of the Constitution should be heard by a minimum number of five Judges. However, we are not in agreement with the submission of Dr. Singhvi that the question of whether the 105th Amendment Act is clarificatory involves interpretation of the 105th Amendment Act. Relying upon the parliamentary debates, Dr. Singhvi submitted that the amendment has been brought only for the purpose of clarifying the Constitution (One Hundred and Second Amendment) Act, 2018 and, therefore, the 105th Amendment Act should be deemed to have come into force from 15.08.2018, i.e., the date from which Article 342-A was given effect. There is no necessity of interpreting the 105th Amendment Act for the purpose of deciding the question raised by Dr. Singhvi relating to the retrospectivity of the said amendment. 21. The other point to be dealt with is the submission made by Mr. Dwivedi on the question of interpretation of Article 31-B of the Constitution. His submission is that the High Court erred in holding that the State of Tamil Nadu did not have legislative competence to enact a separate legislation varying the provisions of the 1994 Act, placed in the Ninth Schedule, on the ground that it fa....
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....ocially and educationally backward classes in the Central List which shall for the purposes of the Central Government be deemed to be socially and educationally backward classes in relation to that State or Union territory, as the case may be. (2) Parliament may by law include in or exclude from the Central List of socially and educationally backward classes specified in a notification issued under Clause (1) any socially and educationally backward class, but save as aforesaid a notification issued under the said Clause shall not be varied by any subsequent notification. Explanation.-For the purposes of Clauses (1) and (2), the expression "Central List" means the list of socially and educationally backward classes prepared and maintained by and for the Central Government. (3) Notwithstanding anything contained in Clauses (1) and (2), every State or Union territory may, by law, prepare and maintain, for its own purposes, a list of socially and educationally backward classes, entries in which may be different from the Central List. Article 366. Definitions.- xxx (26C) "socially and educationally backward classes" means such backwa....
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....reservation to educational institutions and services under the States. To emphasize this claim, Dr. Singhvi took the Court through the Statement of Objects and Reasons of the 105th Amendment Act as well as some of the debates and speeches in both houses of the Parliament on the Constitution (One Hundredth and Twenty-seventh Amendment) Bill, 2021. He further sought to impress upon this Court that the only real and operative change brought about by the 105th Amendment Act is the addition of Clause (3) to Article 342-A, which is essentially a procedural requirement on a State/Union Territory to prepare and maintain a list of SEBCs for its own purposes. He relied upon the judgment of this Court in K.S. Paripoornan v. State of Kerala (1994) 5 SCC 593 to assert that the 105th Amendment Act, being a clarificatory amendment dealing predominantly with procedure and not a substantive amendment, will have retrospective affect. Further, support was sought from this Court's judgment in Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality (1969) 2 SCC 283 to plead that while undoubtedly the Parliament had the power to enact both the 102nd Constitution Amendment Act and the 105th Con....
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.... the changes to Article 16(4-A) were given retrospective effect from 17.06.1995. It was submitted that, unlike the cited instances, there is not even a slight indication in the 105th Amendment Act that it was intended to be retrospective in operation. 27. Countering the submission made on behalf of the Appellants as to the 105th Amendment Act being clarificatory in nature, it was further argued by Mr. Sankaranarayanan that a judgment of this Court cannot be clarified by the Parliament, as the Supreme Court is the final arbiter with respect to interpretation of the Constitution. He cited Janapada Sabha Chhindwara v. Central Provinces Syndicate Ltd. (1970) 1 SCC 509 and a judgment of the U.S. Supreme Court in Plaut v. Spendthrift Farm Inc. 1995 : 514 U.S. 211 (1995), amongst others, to elaborate on the limitations on the power of the Legislature to 'clarify' an interpretation of law rendered by this Court. He further submitted that the 105th Amendment Act cannot be treated to be a validating provision, as there has been no 'invalidation' of the 102nd Amendment Act. With the 102nd Amendment Act holding force at the time of enactment of the 2021 Act, he asserted that....
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....larification of a judgment of this Court by the Parliament, as even the Appellants do not contend that the 105th Amendment Act was made to clarify the judgment of this Court in Dr. Jaishri Laxmanrao Patil (supra). 29. Rule 350-A of the Rules framed by the Broach Borough Municipality, by which a rate on land was fixed at a percentage of the valuation based upon capital value, was declared ultra vires Section 73 of the Bombay Municipal Boroughs Act, 1925 in Patel Gordhandas Hargovindas v. Municipal Commissioner, Ahmedabad (1964) 2 SCR 608. The Legislature of Gujarat passed the Gujarat Imposition of Taxes by Municipalities (Validation) Act, 1963, validating the rates so imposed. The said validating legislation was challenged before this Court in Shri Prithvi Cotton Mills Ltd. (supra). This Court was of the opinion that the defect pointed out by the judgment in Patel Gordhandas Hargovindas (supra), being that Section 73 had not authorised the levy of a tax but that of a "rate", which had acquired a special meaning in legislative practice as held by this Court, was cured by the validating legislation. The Court upheld the validating statute on the ground that a new meaning to the exp....
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....ts, the quantum of scholarships, the number of schools which are to be specially provided Under Article 15(4) or any other beneficial or welfare scheme conceivable Under Article 15(4) can all be achieved by the State through its legislative and executive powers. Recognising that the President was yet to prepare and publish a list Under Article 342-A(1), the Court held that a comprehensive list should be published expeditiously and in exercise of its powers Under Article 142 of the Constitution, the Court directed till the time of the publication of such list, the SEBC lists prepared by the States would continue to be operative. 31. Backward Classes, MBCs and DNCs have been identified for reservation in educational institutions and for public employment by G.O. Ms. No. 28 dated 19.07.1994 under the 1994 Act. 30 per cent reservation was provided for Backward Classes and 20 per cent for MBCs and DNCs together. The Vanniakula Kshatriya community has consistently featured in the list of MBCs since 1957 and was also included in the list of MBCs in G.O. Ms. No. 28 dated 19.07.1994, pursuant to the 1994 Act. By the 2021 Act, 10.5 per cent out of 20 per cent reservation for MBCs and DNCs....
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....sification amongst backward classes as has been done in the 2021 Act cannot be contested. Reasonableness of sub-classification is a separate question to be determined by this Court. 34. On the other hand, Dr. Rajeev Dhawan and Mr. R. Balasubramanian submitted that backward classes can be subdivided into backward and more backward classes in accordance with Indra Sawhney (supra), but further differentiation of MBCs is not permissible as it would amount to micro-classification, as correctly held by the High Court. 35. The Andhra Pradesh Scheduled Castes (Rationalisation of Reservations) Act, 2000 was challenged before the High Court of Andhra Pradesh. 57 castes enumerated in the Presidential list of Scheduled Castes were categorised into four groups based on inter se backwardness and separate quotas were fixed in reservation for each of these groups by the State of Andhra Pradesh. A five-Judge Bench of the High Court by a majority of 4:1 dismissed the writ petitions. In E.V. Chinnaiah (supra), the main contention of the Appellants therein before this Court was that the State lacked legislative competence in enacting the said legislation which, according to the Appellants, was s....
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....Court in E.V. Chinnaiah (supra), was that the Constitution itself had kept the Lists of Scheduled Castes and Scheduled Tribes out of interference by the State Governments. 37. A close scrutiny of E.V. Chinnaiah (supra) would make it clear that the High Court was wrong in relying upon the said judgment to hold that sub-classification of backward classes is beyond the legislative competence of the State. E.V. Chinnaiah (supra) primarily relates to the power of the State legislature in categorising the Scheduled Castes identified Under Article 341 into four groups, the effect of which was held to be modification of the Presidential list, which Article 341 precluded the States from doing. As was clearly expressed by this Court in E.V. Chinnaiah (supra), the issue of sub-classification of backward classes was dealt with in Indra Sawhney (supra) and it is pertinent for us to refer to the following paragraphs authored by Jeevan Reddy, J., after referring to observations of Chinnappa Reddy, J. in K.C. Vasanth Kumar v. State of Karnataka 1985 Supp SCC 714: 802. We are of the opinion that there is no constitutional or legal bar to a State categorising the backward classes as back....
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....nother way of looking at this issue. Article 16(4) recognises only one class viz., "backward class of citizens". It does not speak separately of Scheduled Castes and Scheduled Tribes, as does Article 15(4). Even so, it is beyond controversy that Scheduled Castes and Scheduled Tribes are also included in the expression "backward class of citizens" and that separate reservations can be provided in their favour. It is a well-accepted phenomenon throughout the country. What is the logic behind it? It is that if Scheduled Tribes, Scheduled Castes and Other Backward Classes are lumped together, OBCs will take away all the vacancies leaving Scheduled Castes and Scheduled Tribes high and dry. The same logic also warrants categorisation as between more backward and backward. We do not mean to say--we may reiterate--that this should be done. We are only saying that if a State chooses to do it, it is not impermissible in law. Sawant, J. was also of the opinion that sub-classification of backward and more backward classes would be permissible, provided that separate quotas are provided for each of them. It is crystal clear from the judgment of Indra Sawhney (supra) that backward classes can....
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....h Schedule. 40. Dr. Singhvi, referring to Section 7 of the 1994 Act, submitted that the scheme of reservation under the 2021 Act was not a new scheme over and above the reservation provided for under the 1994 Act. Section 7 of the 1994 Act expressly provided for classification and sub-classification of the 'Backward Classes of citizens' by the State by notification, for the purposes of the said statute. It was pointed out by Dr. Singhvi that the power Under Section 7 had been exercised by the State earlier as well in enacting the Tamil Nadu Backward Class Christians and Backward Class Muslims (Reservation of Seats in Educational Institutions Including Private Educational Institutions and of Appointments or Posts in the Services Under the State) Act, 2007 (hereinafter, the "2007 Act"), whereunder three and a half per cent reservations were granted to 'Backward Class Muslims' from the 30 per cent reserved for Backward Classes under the 1994 Act and which continues to be in force till date. Accordingly, Dr. Singhvi contended that the High Court was incorrect in its treatment of the 2021 Act as a special statute varying the provisions of the 1994 Act. 41. Mr. Dwiv....
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....he provisions of those acts and Regulations against any challenge to those acts, Regulations or the provisions thereof on the ground that they are inconsistent with or take away or abridge any of the rights conferred by Part III of the Constitution. The result is that howsoever violative of the fundamental rights may be the provisions of an act or Regulation, once the act or Regulation is specified in the Ninth Schedule it would not be liable to be struck down on that score. This immunity against the above challenge would be available notwithstanding any judgment, decree or order of any court or tribunal to the contrary. The effect of Article 31-B, however, is not to prevent challenge, to an enactment on the ground that it is beyond the legislative competence of the Legislature which enacted it. It is also plain from the language of the Article that the specification of an act or Regulation would not prevent the competent legislature to repeal or amend it. This Court was of the further opinion that: 16. The protection of Article 31B can also not be extended to a new provision inserted as a result of amendment on the ground that it is ancillary or incidental to the provisio....
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....o a statute placed under the Ninth Schedule does not get protection Under Article 31-B, unless the said amendment is also included in the Ninth Schedule. Having scrutinised the above judgments on the objective of Article 31-B, we are unable to see how Article 31-B operates as a hurdle for the State to enact statutes on matters ancillary to the 1994 Act. Article 31-B does not place any fetter on the power of the State to legislate on such matters nor does it prescribe any mandatory requirement for such legislations to be included within the Ninth Schedule, as has been understood by the High Court. The consequence of the 2021 Act not being placed in the Ninth Schedule is that it can be assailed as being violative of the fundamental rights enshrined under Part III of the Constitution, which the Appellants have fairly admitted. It is worthwhile for us to reiterate the authoritative pronouncement of a five-Judge Bench of this Court in Maharaj Umeg Singh v. State of Bombay (1955) 2 SCR 164, relevant portion of which is reproduced below: 13. ... The legislative competence of the State Legislature can only be circumscribed by express prohibition contained in the Constitution itsel....
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....e clear that it was open to the State to have amended the 1994 Act. At the same time, it cannot be said that the State Legislature lacked competence to enact a legislation for determining the extent of reservation amongst the MBCs and DNCs. D. Effect of the 1994 Act receiving Presidential Assent Under Article 31-C of the Constitution 47. As the 1994 Act received the assent of the President of India, the High Court was of the opinion that the same cannot be varied by the State Government. It was contended on behalf of the Appellants that the High Court was completely wrong in holding that the State does not have the competence to enact the 2021 Act on the ground that it has not received the assent of the President of India. It was pointed out by Mr. Dwivedi that the 1994 Act had received assent of the President Under Article 31-C as it was enacted for giving effect to the policy of the State towards securing principles laid down in Part IV of the Constitution, in particular, Under Article 38, Clauses (b) and (c) of Article 39 and Article 46. The 1994 Act contained an express declaration to this effect in Section 2 thereof. He argued that the State is at liberty to decide wheth....
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....d (c) of Article 39 and Article 46. The High Court proceeded to hold that the 2021 Act has varied the provisions of the 1994 Act, which could not have been done by the Governor. 50. As already stated, the 2021 Act deals with matters which are incidental or ancillary to those contained in the 1994 Act and the State is competent to legislate on such matters. It is for the State to decide whether a legislation, which is not repugnant to any law made by the Parliament on the same subject matter, should receive the assent of the President or not. If the assent of the President is not sought, the consequence is that the statute made by the State is susceptible to challenge as being violative of Article 14 or Article 19. However, it cannot be said that the State cannot legislate on subject matters, ancillary to that of an earlier statute which has received the assent of the President, or that it is mandatory for the State Government to seek the assent of the President for a legislation which the State is otherwise competent to enact. In Indra Sawhney (supra), Jeevan Reddy, J., writing for himself and three other judges, conclusively clarified that Article 16(1) is a facet of Article 14....
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....enged by the writ Petitioners before the High Court as being violative of Articles 14, 15 and 16 of the Constitution. Their contention, that internal reservation was only on the basis of caste which amounted to discrimination to the other communities, was accepted by the High Court. 53. The point that arises for our consideration is whether the internal reservation of 10.5 per cent provided for the Vanniakula Kshatriyas is on the basis of caste alone and whether the High Court is right in holding that such classification on the basis of caste is impermissible. This Court in K.C. Vasanth Kumar (supra) defined and described caste as below: What then is a caste? Though caste has been discussed by scholars and jurists, no precise definition of the expression has emerged. A caste is a horizontal segmental division of society spread over a district or a region or the whole State and also sometimes outside it. Homo Hierarchicus is expected to be the central and substantive element of the caste-system which differentiates it from other social systems. The concept of purity and impurity conceptualises the caste system .... There are four essential features of the caste-system wh....
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....b-classification of MBCs and DNCs into three categories for apportionment of reservation under the 2021 Act has been done without any objective criteria and aside from the population figures of 1983, no data was available on (i) the degree of backwardness of the classes for sub-classification; (ii) inadequate representation of these sub-classes; and (iii) efficiency of the administration. Additionally, the High Court has relied on the judgments of this Court in Indra Sawhney (supra), Jarnail Singh v. Lachhmi Narain Gupta (2018) 10 SCC 396 and Dr. Jaishri Laxmanrao Patil (supra) to hold that the 2021 Act, being an attempt to provide proportionate representation, is against the law laid down by this Court, as it is settled law that adequate representation is not proportionate representation. It was concluded by the High Court that sub-classification would be permissible only on the ground that "a class is far far backward than the advanced Sections of that class", however, the classification under the 2021 Act was not based on any intelligible differentia as there was nothing on record to show that the other 115 communities were more advanced than the Vanniakula Kshatriyas using any ....
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....hat the High Court had not embarked on a limited scrutiny, as is the mandate of this Court in Barium Chemicals Ltd. v. Company Law Board 1966 Supp SCR 311 for instances where the subjective opinion of the State is involved, and that the High Court should have restricted itself to examine whether there was data available on the basis of which the State Government had formed its opinion. These submissions were forcefully controverted by the Respondents, on grounds discussed hereinafter. 57. The preamble of the 2021 Act refers to the recommendation of the Chairman, Tamil Nadu Backward Classes Commission for providing 10.5 per cent reservation to the Vanniakula Kshatriya community within 20 per cent. The Chairman of the Commission sought support from the recommendations made by the Janarthanam Commission to recommend internal reservation in favour of the Vanniakula Kshatriyas. To appreciate the submissions on whether the findings of the various Reports are supported by data, it is necessary to deal with the recommendations of the Tamil Nadu Backward Classes Commission, headed by Justice Janarthanam and the letter of Justice Thanikachalam. Given that the Sattanathan Commission and th....
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....n. It was pointed out by the majority in their report that as on 2011-12, updated caste-based statistics were not furnished to them. The majority members observed that their term was coming to an end in July, 2012 and it would not be proper for them to submit a report, especially when the parliamentary elections were anticipated. A suggestion was made by the members to provide an interim reply to the Government requesting that updated caste-based census data should be collected and placed before the Commission. Prof D. Sundaram, a member of the Commission, submitted a separate note, in which, along with other recommendations, he stated that there was a need for assessment of quantifiable data by a statistical expert, which should be collated in the current survey on castes. He further suggested a wider consultation with vice-chancellors of universities, directors of institutes, chairmen and members of various recruitment commissions and agencies both at the Centre and State level and all stakeholders of the communities and classes, bureaucrats in various departments, more particularly of the personnel and administrative reforms departments. He also emphasised that the representatio....
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....commended internal reservation to the Vanniakula Kshatriyas in proportion to their population, i.e., 10.5 per cent. The Chairman further referred to the admissions of students belonging to the Vanniakula Kshatriya community in professional courses such as engineering, medicine, veterinary science, agriculture and law for the academic years 2006-07 to 2010-11 and found that the seats secured to engineering courses was not proportionate to their population. Insofar as public employment is concerned, representation of Vanniakula Kshatriyas in the State services averaged across Group-A, Group-B, Group-C and Group-D, as on 01.08.2010, was 8.67 per cent, which was also below 10.5 per cent, i.e., the percentage of internal reservation earmarked by the Chairman. The Chairman was of the view that providing internal reservation to the Vanniakula Kshatriyas would not amount to conferring undue advantage on them nor would it unduly affect the entitlement of reservation benefits of the other castes and communities listed as MBCs and DNCs. 62. As stated, the Tamil Nadu Backward Classes Commission was re-constituted on 08.07.2020, with Justice Thanikachalam as the Chairman, along with six memb....
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....give an opinion on internal reservation. That apart, the majority members expressed the inappropriateness of submitting the report in haste, just before the ensuing parliamentary elections in 2012. Justice Thanikachalam committed an error in brushing aside the opinion of the majority members on the ground that it was riddled with extraneous reasons. Without justifying the lack of updated data cited by the majority as a ground for being unable to comment on grant of internal reservation, Justice Thanikachalam blindly followed the recommendation of Justice Janarthanam, by stating that his view is unassailable. It is to be noted that the recommendation of internal reservation for the Vannikula Kshatriyas is by way of a letter signed only by Justice Thanikachalam and does not enclose the views of the remaining members of the Tamil Nadu Backward Classes Commission. There is nothing in the said letter to even suggest that Justice Thanikachalam, after due deliberation with the remaining members of the Commission, has put forth recommendations on internal reservation, which have the backing of the remaining members, or at the least, the approval of the majority. 64. Providing internal r....
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.... Ambasankar Commission, submitted in 1985. Reference made to admissions to engineering colleges and appointment to public posts pertained to the years 2006-07 to 2010-11 and 2010, respectively. A decision taken for providing reservation which would impact the rights of members of as many as 115 communities should be on the basis of contemporaneous inputs and not outdated and antiquated data Ram Singh v. Union of India (2015) 4 SCC 497. Any study by the Commission should be with regard to the present status since the object is to take affirmative actions in present or in future to address the needs of a particular community Dr. Jaishri Laxmanrao Patil (supra). In this particular case, the data that was relied on for the purpose of recommending internal reservation to the Vanniakula Kshatariyas is from 1985. The State Government, at the time of appointing the Kulasekaran Commission to collect quantifiable data on castes, communities and tribes in the State of Tamil Nadu, including migrants domiciled therein, expressly recognized the need for collection of such data as the data collected by the Ambasankar Commission had become more than three decades old. We are in agreement with the ....
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.... reservation provided by the impugned Memorandums in favour of backward classes is well within the reasonable limits. Together with reservation in favour of Scheduled Castes and Scheduled Tribes, it comes to a total of 49.5%. In this connection, reference may be had to the Full Bench decision of the Andhra Pradesh High Court in V. Narayana Rao v. State of A.P. [AIR 1987 AP 53 : 1987 Lab IC 152 : (1986) 2 Andh LT 258], striking down the enhancement of reservation from 25% to 44% for OBCs. The said enhancement had the effect of taking the total reservation Under Article 16(4) to 65%. Accordingly, we accept the contention of Dr. Dhawan that the internal reservation recommended in the report of Justice Janarthanam and approved by Justice Thanikachalam, based only on population, cannot be sustained in view of the law laid down by this Court. 67. The data placed by Mr. Gonsalves, on behalf of one of the Respondents, with reference to the Tamil Nadu Second Backward Classes Commission (Ambasankar Commission), appears to indicate that unlike the other 115 communities in the same class of MBCs and DNCs, many of whom have been bereft of any benefit of affirmative action, the Vanniakula ....
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.... of Ministers at the Centre as well as in the State Government and have also been appointed as Judges of the High Court. We are further informed that numerous trusts have been established, which cater to the betterment of members, and educational needs of students in particular, from the Vanniyar community. 68. We have referred to this data only to emphasize that the findings in the letter of Justice Thanikachalam had to be suitably supported by independent studies and assessment of relevant data. We make it clear that the aforesaid observations do not prevent the State, if it so decides, from undertaking suitable exercises for collecting pertinent, contemporaneous data to determine how demands for internal reservation within the Backward Classes can be justly addressed. 69. Having dealt with the recommendations from Justice Thanikachalam, which form the basis for the 2021 Act, the question which requires to be considered next is whether the 2021 Act is unconstitutional, being violative of Article 14 of the Constitution. The preamble of the 2021 Act refers to the representation made by the Vanniakula Kshatriyas for a separate quota of reservation on the ground that they could....
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....there should be no discrimination between one person and another if as regards the subject matter of the legislation their position is substantially the same. This brings in the question of classification. As there is no infringement of the equal protection rule, if the law deals alike with all of a certain class, the legislature has the undoubted right of classifying persons and placing those whose conditions are substantially similar under the same Rule of law, while applying different Rules to persons differently situated. The classification should never be arbitrary, artificial or evasive. It must rest always upon real and substantial distinction bearing a reasonable and just relation to the thing in respect to which the classification is made; and classification made without any reasonable basis should be regarded as invalid State of West Bengal v. Anwar Ali Sarkar 1952 SCR 284. The whole doctrine of classification is based on discrimination without reason and discrimination with reason and on the well-known fact that the circumstances which govern one set of persons or objects may not necessarily be the same as those governing another set of persons or objects so that the que....
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....or the purposes of receiving the benefits of 20 per cent reservation. While the State Government has the competence to classify the Vanniakula Kshatriyas or any other community or group of communities within backward classes as a particular class for the grant of special measures, there should be a reasonable basis for categorising such communities into a different Section from the rest of the communities within the MBCs and DNCs, on grounds which cannot be superficial or illusory. 74. The justification on behalf of the State is that sufficient material was gathered by the Tamil Nadu Backward Classes Commission to show that there was inadequate representation, disproportionate to the population of the Vanniakula Kshatriyas, thereby culminating in the 2021 Act, which aimed to achieve equitable distribution of reservation amongst MBCs and DNCs. A perusal of the discussion in the earlier paragraphs would disclose that the letter from the Chairman, Backward Classes Commission is on the basis of antiquated data, without any assessment of the relative backwardness and representation of the Vanniakula Kshatriyas and their ability to compete with the remaining 115 communities within the....
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....he provision and its interpretation in Dr. Jaishri Laxmanrao Patil (supra), there need not be a detailed discussion about Article 338-B(9) being mandatory. The requirement of consultation with an expert constitutional body is indeed mandatory and it would be fatal to disregard the provision. However, non-consultation by the State Government with the National Commission would not take away the competence of the State Government to enact the 2021 Act. Legislative competence can only be circumscribed by express prohibition contained in the Constitution itself M.P. Cement Manufacturers' Association v. State of M.P. (2004) 2 SCC 249 and Article 338-B(9) does not stop the State from enacting a legislation in furtherance of a major policy matter but states that the State Government shall consult the Commission on such matters. 76. The consequence of disregarding a mandatory consultation provision would normally render the legislation void as it is in breach of an obligatory requirement to consult an expert constitutional body. However, we refrain from going into this issue in view of our earlier conclusion that the 2021 Act does not withstand scrutiny Under Articles 14, 15 and 16 o....
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....ion of extent of reservation for various communities was not the subject matter of the 1994 Act. (vi) The 1994 Act, having received the assent of the President Under Article 31-C, does not prohibit the State Legislature from enacting a legislation with the approval of the Governor on matters ancillary to the 1994 Act, as Article 31-C does not place any fetter on the legislative powers of the State. The State cannot be compelled to seek the assent of the President for a legislation granting internal reservation, when it is empowered to provide reservation and other special measures for backward classes, by way of legislation as well as executive orders, Under Articles 15(4) and 16(4) of the Constitution. On the issue of caste-based classification, Indra Sawhney (supra) has, in precise and unambiguous terms, stated that caste can be the starting point for identifying backward classes, but it cannot be the sole basis. Accordingly, while caste can be the starting point for providing internal reservation, it is incumbent on the State Government to justify the reasonableness of the decision and demonstrate that caste is not the sole basis. As regards the letter of Justice Tha....