Supreme Court Declares 2021 TN Act Giving Vanniyars Internal Reservation In OBC Quota Unconstitutional

Background

After the Constitution came into existence the caste based reservation in the State of Madras was quashed and was replaced by class based reservation. On 13.11.1969, the Government of Tamil Nadu appointed the First Backward Classes Commission, under the Chairmanship of A.N. Sattanathan. It recommended 33% of the posts under the State Government should be reserved for the candidates of OBC. Another recommendation put forth by the Commission was that castes treated as Most Backward Classes (MBCs) should be lumped together and the increased percentage of reservation, i.e. 33% should be distributed among Backward Classes and MBCs in the said manner i.e. 17% and 16%. This was accepted by the Government and the reservation for Backward Class was increased from 25% to 31%. In 1980, the De-notified communities ("DNCs") were required to be added within this 31% reservation. In 1983, the Second Backward Classes Commission was constituted and the same was presided over by J.A. Ambashankar, I.A.S., (Retd). It conducted a door to door survey. 50% reservation was provided to the Backward Classes till 1989. Thereafter, by way of a Government Order ("GO") dated 28.03.1989, the reservation for Backward Classes was divided into two categories - 30% reservation to the Backward Classes with 132 Castes and 20% to Most Backward Classes/De-notified Communities with 109 Castes, which has now been increased to 116 castes.

The Tamil Nadu Backward Classes, Scheduled Caste and Scheduled Tribes (Reservation of Seats in Educational Institution and Appointments or Posts in the Services Under the State) Act 1993 was enacted which came into force on 19.07.1994 ("1994 Act"). Vide 73rd Constitutional Amendment, the 1994 Act was placed under the Ninth Schedule of the Constitution.

The definition of Backward Classes in Section 3(a) included the MBCs and DNCs -

"(a) "Backward Classes of citizens" means the class or classes of citizens who are socially and educationally backward, as may be notified by the Government in the Tamil Nadu Government Gazette, and includes the Most Backward Classes and the De-notified Communities;"

Section 4(2) of the 1994 Act enumerates the percentage share of reservation as under -

Section 7 grants power to the State Government to sub-classify the Backward Classes and reads as under -

"7. Classification of Backward Classes of citizens. - The Government may, from time to time, based on the reports presented at the appropriate periods to the Government by the Tamil Nadu Backward Classes Commission constituted in G.O. Ms. No. 9, Backward Classes and Most Backward Classes Welfare Department, dated the 15th day of March 1993, by notification, classify or sub-classify the Backward Classes of citizens for the purposes of this Act."

In 2012, the Chairman of the Tamil Nadu Backward Classes Commission recommended a proposal to divide the 20% of Most Backward Classes reservation as i) 10.5% for Vanniyars; ii) 7 % for 68 DNC and 25 other MBC castes (totally 93 castes); iii) 2.5% for 22 other MBC castes. Justice M.S. Janarthanam also suggested a separate reservation for the Vanniyar Caste. Accordingly, a specific reference was made by the Government to the Commission to sub-categorise the Most Backward Classes.

Considering the lack of reliable caste wise population data to administer reservation in Tamil Nadu, the State Government has constituted the "Commission for collection of quantifiable data on castes, communities and Tribes of Tamil Nadu" on 21.12.2020, headed by Justice A. Kulasekaran (Retd) as Chairman. Before the Commission could submit its report, on 26.02.2021, the State Government passed a Bill providing internal reservation of 10.5 % to the Vanniyar Community, which eventually became Act No. 8 of 2021 ("2021 Act"). The constitutional validity of the Act was challenged before the Madras High Court.

Decision of the Madras High Court

Vide order dated 01.11.2021, the Division Bench of the Madras High Court comprising Justices M. Duraiswamy and K. Murali Shankar, quashed the Tamil Nadu law sub-classifying the 20% reservation available to the Most Backward Classes to provide Vanniyar Community 10.5% reservation in educational institutions and government jobs. The High Court had, inter alia, held that the State lacked legislative competence in view of Constitution (102nd Amendment) Act, 2018, which had denuded the State legislature of the power to include or exclude Backward Classes and bestowed the same on the Parliament under Article 342A of the Constitution of India. It was of the view that in the light of Article 31B, the State legislature had no power to enact the impugned Act without first amending the parent Act of 1994, which had received Presidential Assent and had been placed in the Ninth Schedule of the Constitution. The other contentions raised by the petitioners before the High Court that found favour with it was that reservation cannot be solely based on caste and sub-classification cannot be done without quantifiable data to support it.

Contentions raised by the petitioners

Senior Advocate, Dr. Abhishek Singhvi appearing for the State of Tamil Nadu argued that sub-classification was valid as held by the Supreme Court in Vasanth Kumar v. State of Karnataka. The judgment in E.V. Chinnaiah v. State of Andhra Pradesh And Ors. relied upon by the petitioners before the High Court was controverted in terms of State of Punjab v. Davinder Singh, wherein a five judge bench had disagreed with Chinnaiah, and referred the matter to a larger bench. It was averred that if a caste forms a class then reservation can be extended to it. He further argued that the parent Act of 1994 having general uncircumscribed Presidential assent under the Article 31C, assent would not be required again for the 2021 Act which is merely an extension of the parent Act. It was averred that the Constitution (105th Amendment) Act, 2021 was a clarification of the Constitution (102nd Amendment) Act. It clarified that the Parliament never intended to exclude the State list. Mr. Singhvi argued that the findings of the Sattanathan Commission Report, Ambashankar Commission Report, Janarthanam Commission Report and Report of 2021 Commission were based on population census and therefore had backing of quantifiable data.

Senior Advocate, Mr. Rakesh Dwivedi submitted that the legislative competence had to be tested on the touchstone of principles in Article 246 and not Article 31B, which is only an armour of protection for the enactments put in the Ninth Schedule from being assailed on the ground of infringement of the Fundamental Rights. It was asserted that Article 31B does not prescribe the law-making process and is not meant to alter the federal distribution of powers under Article 246 and the three lists in the Seventh Schedule of the Constitution. He argued when the State did not seek the benefit of protection of Article 31C, the High Court should not have delved into issues pertaining to the same. A legislation enacted in exercise of power under Article 246 cannot be struck down, per se, because presidential assent under Article 31C was not sought.

Reading extracts from the reports of the various Committees, Senior Advocate, Mr. Rao demonstrated backwardness of the community. He refuted the finding pertaining to lack of quantifiable data and argued that the 2021 Act did not enlist new caste, but only apportioned existing reservation, which is permissible.

Senior Advocate, Mr. C.S. Vaidyanathan argued that Section 7 of the 1994 Act which mentions that sub-classification can be done by the executive cannot take away the power of the State to legislate on that subject. He argued on the permissibility of sub-classification. It was contended that the 2021 Act was not repugnant to any Central law and did not require presidential assent. He also referred to the Reports of the Commissions to show that the Government has sub-classified on the basis of quantifiable data. Senior Advocate, Mr. P. Wilson also argued on the availability of quantifiable data. Senior Advocate, Mr. Radhakrishnan, inter alia, submitted that a legislation unanimously passed by the State legislature enjoys the presumption of constitutionality and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles.

Contentions raised by the respondents

Senior Advocate, Mr. Gopal Shankaranarayanan appearing for the original petitioner before the High Court argued that after the Constitution (102nd Amendment) Act came into existence, the State could not have identified Socially and Economically Backward Classes. It was highlighted that the State of Tamil Nadu had acted in contravention of the 102nd Amendment and the judgment of the Apex Court in Jaishri Patil v. Chief Minister and Ors. He pointed out that in the process of identifying communities the National Commission for Backward Classes were also not consulted. He was of the opinion that once the Supreme Court gives its final interpretation then the only way to challenge it is by way of a review petition and not by introducing a Constitutional Amendment. It was contended that neither was 105th Amendment retrospective, nor clarificatory.

Senior Advocate, Dr. Rajeev Dhavan submitted that since, the President alone had the power under the Constitution to identify SEBCs, the 2021 Act suffered from constitutional vires as well as incompetency. It was argued that 'changing the basis of judicial pronouncement' and the argument of the 'Constitutional Amendment is clarificatory' cannot go hand in hand. Moreover, he averred that Parliamentary debates cannot be relied upon as the statute is not ambiguous. He submitted that micro-classification cannot be permitted to the extent that principles of equality are replaced by such classification as stated in Col. A.S. Iyer v. Balasubramanyam. He also argued on the point of lack of data in sub-classification. Senior Advocate Mr. S. Nagamuthu controverted the reliance on the Janarthanam Committee Report wherein seven out of eight members had rejected the recommendations; it was based on Ambashankar Commission Report which was rejected by the Government and that data adopted was based on 1921 caste census.

Senior Advocate, Mr. K.M.Vijayan argued that when the Act is not ambiguous then external aid need not be relied on for interpretation of the same. Senior Advocate, Mr. Colin Gonsalves referred to the analysis of the raw data by the Ambashankar Commission. He pointed out that the Commission found that on four or five grounds the Vanniyar Community was the most advanced of the Backward Classes. Senior Advocate, Mr. Balasubramaniam argued on legislative incompetence, quantifiable data and the classification on the basis of caste. Senior Advocate, Mr. Prakash apprised the Bench that the Apex Court had noted in SV Joshi's case that as of 2010 there was no quantifiable data for the State of Tamil Nadu. Senior Advocate, Mr. Jaideep Gupta submitted that the exercise of collecting quantifiable data had not been done by the Tamil Nadu Government even post the SV Joshi judgment.

[Case Title: Pattali Makkal Katchi v. A. Mayilerumperumal And Ors. Civil Appeal No. 2600 of 2022]

[Citation : 2022 LiveLaw (SC) 333]

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