Vanniyar Internal Quota Based On Data That 20% MBC Reservation Hasn't Benefited Them : TN Govt Tells Supreme Court

A Bench comprising Justices L. Nageswara Rao and B.R. Gavai heard arguments testing the sub-classification of the 20% reservation available to the Most Backward Classes to provide Vanniyar community 10.5% reservation in educational institutions and government jobs on the touchstone of the principles envisaged in the Constitution of India.

On the previous occasion the Bench had heard arguments on the issue of reference to a Constitutional Bench. Upon hearing both the parties and on perusal of material on record, the Bench had finally decided against reference, stating that the matter did not entail constitutional interpretations.

Adequate Quantifiable Data Available

At the outset, Senior Advocate, Mr. C.S. Vaidyanathan appearing on behalf of the State of Tamil Nadu in one of the batch petitions, referred to Paragraph 34 of the Impugned order of the Madras High Court, which reads as under -

"34. On a reading of the above judgment, it is clear that the Constitution of India intended all the castes including the sub-castes, races and tribes mentioned in the list to be members of one group for the purpose of the Constitution of India and further, this group cannot be sub-divided for any purpose. Moreover, the Constitution of India intended that all the castes included in the Schedule under Article 341 would be "deemed to be"one class of persons."

He submitted that the view taken by the High Court was in line with the decision of the Apex Court in Balaji [AIR 1963 SC 649], which was followed in Janaki Prasad Parimoo [(1973) 1 SCC 420]. However, it was clearly enunciated in a nine-bench judgment in Indra Sawhney that sub-classification is permissible.

Referring to Paragraph 38 of the Impugned order he argued that the 1994 Act ("Parent Act") was preserved for the assent of the president because it needed the protection of Articles 31B and 31C. He stated that the 2021 Act being a State legislature, the assent of the Governor is good enough. He further

Paragraph 38 reads as under -

"38. Further, when the Act 45 of 1994 got the Assent of President of India under Article 31-C of the Constitution of India, the same cannot be varied by the Governor even if the Council of Ministers had advised his Assent to the impugned Act. A combined reading of Articles 200 and 201 of the Constitution of India makes it very clear that the Constitutional scheme warrants that the Governor ought to have reserved the Bill for the Assent of the President of India under Article 31-C of the Constitution of India."

He emphasised that the similar Acts of 2006 and 2009 whereby reservation was extended to other communities were neither reserved for the presidential assent nor included in the Ninth Schedule.

He referred to the decision of the Apex Court in State of Kerala v. PUCL (2009) 8 SCC 46

"PRESIDENTIAL ASSENT

13. It was held by the High Court that Presidential Assent was necessary and the 1999 Act was enacted to by-pass the mandatory requirement of the President's Assent. In determining the said issue, it again ought to have posed unto itself the right question, viz., whether the Presidential Assent was necessary for enacting a statute which came within the purview of List II of the Seventh Schedule of the Constitution of India. The answer thereto must be rendered in negative.

The 1975 Act dealt with both agricultural and non-agricultural lands. Transfer of land comes within the purview of Entry 6, List III of the Seventh Schedule of the Constitution of India. There exists aParliamentary Act in that behalf, as for example, Transfer of Property Act. Only because the 1975 Act could be held to be in conflict with the provisions of the Transfer of Property Act, the Presidential Assent was necessary having regard to Clause (2) of Article 254 of the Constitution of India but once the said statute is repealed and in its place a new Act is brought on the statute book, which comes strictly within the purview of Entry 49, List II of the Seventh Schedule of the Constitution of India, no Presidential Assent would be necessary. Presidential Assent would be necessary for the purpose of amendment of the Act and not for enacting a separate statute which came within the purview of a different entry and a different List.

It is furthermore well-known that Article 254 of the Constitution of India would be attracted only in a case where two statutes are enacted under the Concurrent List, viz., one by the State Legislature and the other by the Parliament of India, and not in any other case."

Ms. Vaidyanathan submitted that the impugned act was not a separate act enacted by a competent State legislature. Moreover, not being repugnant to or inconsistent with any Central Law, it required no presidential assent.

"No. 1 this is not an amendment, this is a separate statute. It is within the competence of the State legislature. There is no repugnancy, it is not inconsistent with any Central Law. Therefore it does not require presidential assent, therefore the reasoning is incorrect. I'll give citation for three High Court judgment on this point 1978 SCC OnLine MP …; 1990 SCC Online Bom 4408; 2002 SCC Online Bom 735."

He relied on three judgments which he stated had taken the view that even for an amendment presidential assent was not needed, even though the original Act had got the assent of the President.

Thereafter, he dealt with the findings in Paragraph 41 of the Impugned order, which reads as under -

"41.…Further, the respondents cannot discriminate between one group of 6 castes and 115 other castes because the impugned Act allegedly tried to give a higher proportion of reservation to one caste and deprive the remaining 115 other castes and hence, the impugned Act is illegal. The impugned Act provides reservation only on caste basis which is also impermissible under Articles 15 and 16 of the Constitution of India."

He submitted that the Tamil Nadu Government had taken into account the latest data available and made the above-stated considerations before enacting the 2021 Act. In this regard he referred to the Ambashankar Commission Report. He stated that the Commission had also stated that it was not feasible to have internal reservation for other smaller communities given their proportion. He asserted that the High Court without applying its mind to the reports attacked them. It was highlighted that no undue advantage was given to the Vanniyar community by the 2021 Act. The advantage of internal reservation was extended on the consideration that they have not enjoyed the benefit of the 20% reservation for the Most Backward Classes, which is evident from their representation in services etc.

He refuted the findings in Paragraph 56, which reads as under -

"56. It is seen that the sub-classification of MBC in Sections 3 and 4 of the impugned Act into three categories viz. i) MBC(V); ii) MBC & DNC and iii) MBC, has been done without any objective criteria and the apportionment of 20% MBC reservation into 10.5%, 7% and 2.5% to i) MBC(V); MBC & DNC and iii) MBC respectively, are not supported by any data much less quantifiable data."

Mr. Vaidyanathan submitted that -

"I respectfully submit that this is a comment that has been made without adverting to or considering the recommendation of Janarthanam..Therefore I respectfully submit that this conclusion is erroneous."

He further submitted -

"Justice Thanikachalam's letter is based on the recommendation of Janarthanam Commission which was based on the Ambashankar Commission report and the data in regard to representation in educational institutions and in services have been considered. This was not even taken into account by the High Court."

He pointed out that the High Court had stated that in Nagaraj it has been found that if reservation is more than 50% then there ought to be quantifiable data. It was argued that in the present case the 69% reservation was already there, the State had merely sub-classified and there is no pronouncement of the Apex Court which mandates availability of data for sub-classification.

Senior Advocate. Mr. P. Wilson, appearing on behalf of the State, took the Bench's attention to the Commission Report, the questionnaire prepared, and the methodology adopted to substantiate their validity. He vehemently submitted that extensive study was done by the Sattanathan Commission and Ambashankar Commission. He highlighted that In S.V. Joshi v. State of Karnataka (2012) 7 SCC 41, the Supreme Court recorded that there was data available with respect to backward classes. It merely asked the said data to be placed before the Government. Referring to the Janarthanam Commission's report he submitted that the majority had not stated that the methodology was not acceptable, but was not keen to accept the recommendations on the ground of upcoming election; likely agitation, the lack of data pertaining to the latest census etc. However, it was emphasised that all the members had approved the Ambashankar Commission's report, which also had similar findings with respect to the Vanniyar community.

The Bench was concerned that reliance was being placed so extensively on a report, wherein 7 out of 8 members did not agree with the Chairman on the recommendations.

Mr. Wilson stated that the finding of the High Court that there was no quantifiable data available as the Commission appointed on 21.12.2020 had not turned in its Report was not correct. He argued that the availability of the data in the Commission reports, previously instituted by the Government, provided sufficient quantifiable data.

Presumption of Constitutionality of a Statute

Senior Advocate, Mr. Radhakrishnan appearing for the petitioner submitted that a legislation unanimously passed by the State legislature enjoys the presumption of constitutionality.

"The impugned Act was unanimously passed by the Tamil Nadu Assembly in Feb 2021. In that respect I submit that the presumption of constitutionality assumes a great role …In that respect I will present why the presumption of constitutionality…"

In this regard, he highlighted the two principles laid down in Chiranjit Lal Chowdhuri v. Union of India 1950 SCR 869

"Prima facie, the argument appears to be a plausible one, but it requires a careful examination, and, while examining it, two principles have to be borne in mind :--(1) that a law may be constitutional even though it relates to a single individual, in those cases where on account of some special circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself; (2) that it is the accepted doctrine of the American courts, which I consider to be well-founded on principle, that the presumption is always in favour of the constitutionality of an enactment, and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles."

Placing reliance on the State of West Bengal v. Anwar Ali Sarkar 1952 SCR 284 he argued that while deciding whether the impugned was discriminatory, the Courts ought to attach great weight to the fact that a majority of the elected representatives of the people who made the law did not think so, though that is not, of course, conclusive.

Referring to Mukesh Kumar v. State of Uttarakhand (2020) 3 SCC 1, Mr. Radhakrishnan submitted that with respect to reservation the State can form its own opinion on the basis of the material it has in its possession already or it may gather such material through a Commission/Committee, person or authority. So, he argued, Mr. Janarthanam's singular opinion, as a Retired Hon'ble Judge of High Court of Madras was sufficient as per this judgment.

"All that is required is that there must be some material on the basis of which the opinion is formed. The Court should show due deference to the opinion of the State which does not, however, mean that the opinion formed is beyond judicial scrutiny altogether."

It was pointed out that what kind of special provision should be made in favour of a particular class, is a matter for the State to decide having regard to the facts and circumstances of a given situation as laid down in Ajay Kumar Singh vs State Of Bihar (1994) 4 SC 401

Pointing out that the Vanniyar have not enjoyed the fruits of reservation as is evident from their abysmal representation in services, he argued on the point of substantive equality in terms of the decision of the Apex Court in State of Kerala v. NM Thomas (1976) 2 SCC 310

Senior Advocate, Mr. Gopal Sankaranarayanan appearing on behalf of the original petitioner before the High Court submitted that he would primarily counter the argument of retrospective put forth by the State Government and would set out the implication of the same. He argued that at the time of enactment of the impugned legislation the 102nd Constitutional Amendment was operational and therefore, its constitutionality ought to be tested on the anvil of 102nd Amendment Act alone.

"I have set out five dates in my submission. On 11.08.2018, the 102nd amendment came into force, 26.02.2021 the impugned Tamil Nadu Act comes into force. The essential question is at that point in time was it the 102nd amendment act that prevailed or was it the 105th that would come in the future which would then relate back to 11.08.2018. It is our argument, that, No…It is only on the anvil of 102nd Amendment Act, this Act could have been tested…I am not dealing with Article 31B or Article 31C assent of the president."

State Government cannot identify SEBCs

According to Mr. Sankaranarayanan, the Jaishri Patil judgment which dealt with the Maratha reservation, made it abundantly clear that by virtue of the 102nd Constitutional Amendment Act, the State Governments are devoid of the power to identify SEBCs. It was highlighted that in derogation of the majority decision in Jaishri Patil, the Tamil Nadu Government had in essence identified communities. Even in doing so, he contended, the Government had not followed the procedure laid down in Article 342A, which requires a presidential notification.

"…On 05.05.2021, the judgment in the Maratha matter came. The majority opinion stated it takes away the power of the State with respect to identification. The impugned act and the three schedules identify…The identification had to be done for the purposes of the Constitution. The identification could have been done only by the procedure in Article 342A and no other…"

National Commission for Backward Classes ought to be consulted

The 102nd Constitutional Amendment Act introduced a separate National Commission for Backward Classes and made it mandatory by Clause 9 for the States and Union Government to consult the said Commission on all major policy matters affecting the socially and educationally backward classes. No such consultation was sought by the Tamil Nadu Government before enacting the impugned Act.

"…After Article 338B was inserted the Commission that has been set up…says and makes it mandatory that the States and Union Governments shall consult it. In this case there was no consultation…"

Interpretation by Supreme Court cannot be annulled by Constitutional Amendment

Mr. Sankaranarayanan 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.

"Most importantly,...once the Supreme Court of India gives its final interpretation on a provision of the Constitution, the avenue does not exist for that interpretation to be annulled by way of a Constitutional Amendment. The basis may be removed…If they wanted to get a different interpretation then they could have filed a review.

He apprised the Bench that prior to 105th Amendment, both State and Union Governments had to consult the National Commission, which requirement has been now removed.

"19.08.2021 is when the 105th Amendment comes. The first proposition is that as on 26.02.2021, the State had no competence to identify SEBC…Article 338B, clause 9 states that the State Government and Union shall consult the National Commission in case of major policy matters…So they were supposed to consult the National Commission which they did not do. What 105th Amendment does is that it adds a proviso.

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

[...]

If one needs to know who are the SEBCs in the context of Tamil Nadu, the Constitution tells me to go to Article 342A. At the time this Act was made sub clause 3 was not there."

Article 342A(3) inserted by the 105th Amendment Act reads as under -

"(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."

Relying on the language of the amending act, he argued that it would have prospective effect.

"Clearly this is prospective, hereon in the States are not encumbered to consult with the National Commission in major policy decisions."

It was highlighted that even after the 105th Amendment states are required to have a list of SEBCs which the Tamil Nadu Government has not formulated in terms of Article 342A(3) and therefore even if it is assumed that 105th Amendment would have retrospective effect, the impugned act will fall short of the current requirement under Article 342A(3).

"The only option was a presidential list from which parliament will add or remove. That did not exist. Even now under Article 342A(3) they need to have a list of SEBC, but they have not done it…Even if it is assumed that 105th Amendment Act is clarificatory, they fall foul of 342A(3). The entirety of the 2021 Act deals with the classes that they have identified.. Therefore not severable from the rest of the Act…So either the lack legislative competence or it was completely ultra vires."

Mr. Sankaranarayanan enumerated the consequences of the 102nd Amendment as under -

1. The Tamil Nadu Government had no power to identify SEBCs;
2. The SEBCs are only those who could be identified from the notification under 342A;
3. The State Government was mandated to consult the National Commission for Backward Classes before enacting the impugned legislation.

He referred to the decision in State of Punjab v. Davinder Singh to argue that to be recognised as SEBCs, the concerned class has to be notified by the President under Article 342(1), which was bypassed in the present case.

"Article 342A has been inserted by the Constitution (One Hundred and Second Amendment) Act, 2018, w.e.f. 14.8.2018. In Indra Sawhney, the question of reservation of socially and educationally backward classes was involved. Article 342A's provisions are pari materia to Articles 341 and 342 dealing with Scheduled Castes and Scheduled Tribes. Under Article 342A the President is empowered to issue public notification with respect to socially, and educationally backward classes which shall for the Constitution be deemed to be socially and educationally backward classes in relation to that State or Union territory and the Parliament may by law has the power to include in or exclude from the Central list of socially and educationally backward class. The power of variation can be exercised only once. When we consider the definition of 'socially and educationally backward classes' as defined in Article 366(26C), it means such backward classes as are so deemed under Article 342A for the purposes of the Constitution. In order to be recognised, it is necessary that socially and educationally class to find a place in the notification issued under Article 342A(1)."

2021 Act in derogation of the Maratha judgment

Referring to Dr. Jaishri Laxmanrao Patil v. Chief Minister and Ors. (2021) 8 SCC 143, he contended -

1. For all purposes under the Constitution (for extending benefits of reservation etc.) SEBCs are only those who are deemed to be so under Article 342A. The enactment of Article 342A excludes all other methods of identification, by any other body - either the state, or any state commission or authority.
2. The final say in regard to inclusion or exclusion (or modification of lists) of SEBCs is firstly with the President, and thereafter, in case of modification or exclusion from the lists initially published, with the Parliament.
3. The Commission – under Article 338B is not only assigned a constitutional role but is also expected to act as an expert and engage with experts in the determination of the communities. For the purposes of the Constitution, the Commission newly established under Article 338B, i.e., the National Commission for Backward Classes shall be the only body to whom both the Central Government and the State Governments have to turn, in all matters of policy. Necessarily, the question of matters of policy would also include identification of castes or communities as backward classes. For the Tamil Nadu Government enacting the legislation without turning to the National Commission is complete in the teeth of this observation.
4. Whenever lists are prepared under Article 338, 338A and 338B, three provisions in relation to States or UTs, the classes and castes included in such list and no other are deemed to be castes or classes falling within the one or the other category (SCs, STs, SEBCs) in relation to the particular State or UT for the purposes of the Constitution.

e. The Apex Court would not whittle down any terminology through extrinsic aids such as speeches made on the floor of the Parliament or Select Committee reports ignoring the terms of the Constitution. This submission was meant to controvert Senior Advocate, Mr. Abhishek Singhvi's reliance on Parliamentary debates to establish that 105th Amendment was merely a clarificatory amendment.

It was asserted that the impugned legislation had been enacted in complete derogation of the principles set out by the Court in the Jaishri Patil judgment.

"These interpretations have been thrown overboard by enacting this legislation. If we come to the legislation itself…"

He emphasised that by way of the impugned Act the State has indeed attempted to identify communities

"These definitions are inconsistent with what the Constitution requires. All of these make reference to SEBC. What the schedule does is identify them for the purposes of the Constitution. The minute they identify they cannot argue that all these belong in the 1994 Act. Once the 102nd Amendment came in, the only thing that could have been done was everything short of identification. But, you identified and then gave them percentages."

To substantiate his submissions, reliance was placed on the definitions and the schedule in the 2021 Act -

"(e) "Most Backward Classes of citizens" means the class or classes of citizens who are socially and educationally backward and notified as Most Backward Classes by the Government under the 1994 Act;"

(f) "Part–MBC (V) Communities" means the community or communities mentioned in Part-MBC (V) of the Schedule, which are notified as Most Backward Classes by the Government under the 1994 Act;

(g) "Part– MBC and DNC Communities" means the community or communities mentioned in Part- MBC and DNC of the Schedule, which are notified as Most Backward Classes and Denotified Communities by the Government under the 1994 Act;

(h) "Part–MBC Communities" means the community or communities mentioned in Part-MBC of the Schedule, which are notified as Most Backward Classes by the Government under the 1994 Act;"

He highlighted that the impugned Act did not even identify SEBCs, but only specific groups, which the State Governments are not permitted to do even under the 105th Amendment. He added that all these classifications were permissible in a pre 102nd Amendment era when the identification was done on the basis of recommendations by the State Commissions for Backward Classes.

"The Act is not even identifying SEBCs, it is identifying specific groups, which in my respectful submission they cannot do. All these sub-classifications can only arise under the umbrella of Article 342A. In a pre 102nd Amendment era…the constitution did not say how you will identify SEBCs. The State Commissions were set out to determine because there were no constitutional provisions…"

105th Constitutional Amendment Act is prospective

Mr. Sankaranarayanan submitted that whenever the Constitutional amendment had the intention to save existing principles, it was explicitly mentioned in the amending act. He pointed out that there were only four instances where the Constitution has made retrospective provision.

"The first amendment where the changes to A. 19(2) were made retrospective by virtue of Section 3(2) of the Amending Act. The Amending itself had a Section. The second was the property issue. Retrospective effect was due to Article 31B…the one that was during the term of Indira Gandhi and the one in the Nagaraj matter."

He submitted that in all the four instances, retrospectivity was explicitly spelled out.

"It was either by employment of expression or by employment of a prior date. The only test to determine retrospective application has been this alone. Neither is present in the 105th amendment. Therefore, there is no question of it being retrospective."

105th Constitutional Amendment is not Clarificatory

He expressed concern that if the Court accepts the argument that the 105th Amendment Act was clartificatory and the legislature is permitted to 'clarify' final interpretations of the Apex Court in such a manner, then the legislature will get the license to 'clarify' every major principle laid down by the Court. Reliance was placed on decision of a Constitutional Bench to demonstrate that judgment of by Court cannot be rendered ineffective by a 'clarificatory' amendment.

Janapada Sabha, Chhindwara v. Central Provinces Syndicate (1970) 1 SCC 509

"On the words used in the Act, it is plain that the Legislature attempted to overrule or set aside the decision of this Court. That, in our judgment, is not open to the Legislature to do under our constitutional scheme. It is open to the Legislature within certain limits to amend the provisions of an Act retrospectively and to declare what the law shall be deemed to have been, but it is not open to the Legislature to say that, a judgment of a Court properly constituted and rendered in exercise of its powers in a matter brought before it shall be deemed to be ineffecive and the interpretation of the law shall be otherwise than as declared by the Court."

[Case Title: Secretary to Government of Tamil Nadu Ministry of Backward Classes v. Denotified Tribes Welfare Association SLP(C) No. 19776/2021 and connected matters]

Click Here To Read/Download Order