105th Constitutional Amendment Act Is Prospective In Nature : Supreme Court In Vanniyar Quota Case

In its judgment holding that the Tamil Nadu law providing internal reservation of 10.5 % to the Vanniyar Community under the category Most Backward Classes is unconstitutional, the Supreme Court  held that the Constitution 105th Amendment Act is prospective in nature.

The bench comprising Justices L Nageswara Rao and B R Gavai rejected the contention that the Constitution 105th Amendment Act is clarificatory in nature and has to be given retrospective effect from the date on which the 102nd Amendment Act came into effect.

The Court held that the 102nd Amendment Act held the field at the time of enactment of the Tamil Nadu Special Reservation of seats in Educational Institutions including Private Educational Institutions and of appointments or posts in the services under the State within the Reservation for the Most Backward Classes and Denotified Communities Act, 2021.

One of the issues considered by the Madras High Court was whether the State Legislature has competency to make the impugned Act after 102nd Constitutional Amendment Act, 2018 and before 105th Constitutional Amendment Act, 2021?

Before the High Court, the writ petitioners  relied on Maratha Quota judgment to contend that after 102nd Constitutional Amendment, the powers of the State Legislative Assembly to include and exclude Backward Class has been ousted and bestowed with Parliament of India under Article 342-A of the Constitution of India. The Government relied on the Constitution (105th Amendment) Act, 2021 and  contended that the said amendment nullified the effect of Maratha quota judgment and restored the power of the States to identify and notify Backward Classes and thus, the power of the State for identification and notification of the Backward Classes stated to be lost by virtue of the Constitution (102nd Amendment) Act, 2018, has been restored through the above said 105th Amendment to the Constitution.

In this regard, the High court observed: We are of the opinion that the Constitution (102nd Amendment) Act, 2018, came into existence on 11.08.2018 and the Constitution (105th Amendment) Act, 2021, was enacted on 19.08.2021 and whereas the impugned Act 8 of 2021 came to be enacted on 26.02.2021 and therefore, we hold that as on the date of enactment of the impugned Act, the State Legislature has no power to enact such legislation and accordingly, the State Legislature has no competency to pass the impugned Act.

Before the Apex Court, the appellants contended that the 105th amendment is clarificatory and dates back to the introduction of Article 342-A. It was submitted that the question of whether the 105th Amendment Act is clarificatory involves interpretation of the 105th Amendment Act and therefore to be decided by a larger Bench. Rejecting the said contention, the bench observed:

"We have not been called upon to interpret the 105th Amendment Act and nor do we find any vagueness as regards when the 105th Amendment Act has come into effect. The 105th Amendment Act cannot be said to be a validating amendment, as admittedly the 102nd Amendment Act has not been invalidated by this Court...

...The contention of the Appellants that the 105th Amendment Act, being an amendment relating to procedure, has to be construed as retrospective along the lines of K.S. Paripoornan (supra), is misconceived. Identifying certain communities which are to be deemed as SEBCs for the purposes of the Central Government and the States, respectively, cannot be said to be a matter of procedure. The procedural aspect of the 102nd Amendment Act and the 105th Amendment Act is only the manner of publication of the lists of SEBCs, whereas the substantive element of the said amendments is identifying and recognising certain communities as SEBCs. Thus, we see no force in the submission of the Appellants that the 105th Amendment Act is clarificatory in nature and has to be given retrospective effect from the date on which the 102nd Amendment Act came into effect."

The Court also clarified that 102nd Amendment only prohibits the State from undertaking is identifying a caste as SEBC or including or excluding a community from the list notified by the President.

"We are not in agreement with the contention of the Respondents that determining the extent of reservation for a community amongst the list of Most Backward Classes amounts to identification. In view thereof, the High Court has committed an error in holding that the 2021 Act is violative of Article 342-A. B. Permissibility of sub-classification amongst backward", the court said.

Case details 

Pattali Makkal Katchi Vs A. Mayilerumperumal | 2022 LiveLaw (SC) 333 | CA 2600 of 2022 | 31 March 2022

Coram: Justices L. Nageswara Rao and B R Gavai

Headnotes

Summary: Tamil Nadu Special Reservation of seats in Educational Institutions including Private Educational Institutions and of appointments or posts in the services under the State within the Reservation for the Most Backward Classes and Denotified Communities Act, 2021 declared unconstitutional - Upheld the Madras High Court judgment holding that there is no substantial basis for classifying the Vanniakula Kshatriyas into one group to be treated differentially from the remaining 115 communities within the MBCs and DNCs, and therefore, the 2021 Act is in violation of Articles 14, 15 and 16 (Para 74)- There is no bar on the legislative competence of the State to enact the 2021 Act (Para 71) - The High Court has committed an error in holding that the 2021 Act is violative of Article 342-A (Para 31) - Permissibility of sub-classification amongst backward classes as has been done in the 2021 Act cannot be contested. Reasonableness of sub-classification is a separate question (Para 33) - The conclusion of the High Court that determining the extent of reservation amongst the 'Backward Classes of citizens' can be done only by amending the 1994 Act in view of Article 31-B is unsustainable - State Legislature did not lack competence to enact a legislation for determining the extent of reservation amongst the MBCs and DNCs (Para 46) - The State's competence to enact the 2021 Act with the Governor's assent cannot be faulted with nor can the State be compelled by the courts to reserve the 2021 Act for assent of the President (Para 51).

Constitution of India, 1950 ; Article 14,15,16 - 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. (Para 54)

Constitution of India, 1950 ; Article 31B - 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 - Placing of the 1994 Act under the Ninth Schedule cannot operate as a hurdle for the State to enact legislations on matters ancillary to the 1994 Act. Legislative competence of the State Legislature can only be circumscribed by express prohibition contained in the Constitution itself and Article 31-B does not stipulate any such express prohibition on the legislative powers of the State. (Para 44)

Constitution (102nd Amendment) Act, 2018 - What the 102nd Amendment prohibits the State from undertaking is identifying a caste as SEBC or including or excluding a community from the list notified by the President - Determining the extent of reservation for a community amongst the list of Most Backward Classes does not amount to identification.(Para 31)

Constitution (105th Amendment) Act, 2021 - The 105th Amendment Act cannot be said to be a validating amendment- Prospective in operation - Identifying certain communities which are to be deemed as SEBCs for the purposes of the Central Government and the States, respectively, cannot be said to be a matter of procedure. The procedural aspect of the 102nd Amendment Act and the 105th Amendment Act is only the manner of publication of the lists of SEBCs, whereas the substantive element of the said amendments is identifying and recognising certain communities as SEBCs. (Para 29)

Constitution of India, 1950 ; Article 31 B - No express prohibition stems from Article 31-B on the powers of the State Legislature to legislate on matters incidental to statutes placed within the Ninth Schedule - State has the power to amend or repeal a statute which has been placed under the Ninth Schedule - Any amendment made to 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. (Para 44)

Constitution of India, 1950 ; Article 14,15,16 - Differentia which is the basis of classification must be sound and must have reasonable relation to the object of the legislation. If the object itself is discriminatory, then explanation that classification is reasonable having rational relation to the object sought to be achieved is immaterial. (Para 71-72)

Constitution of India, 1950 ; Article 338 B - The requirement of consultation with an expert constitutional body is indeed mandatory and it would be fatal to disregard the provision - 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 - 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. (Para 75-76)

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