Validity Of Vanniyar Internal Reservation : Supreme Court Hears Arguments On Need For Larger Bench

A Bench comprising Justices L. Nageswara Rao and B.R. Gavai was hearing submissions in the appeal assailing the order of the Madras High Court, wherein the said Tamil Nadu law providing 10.5% internal reservation to Vanniyar Community was quashed, inter alia, on the ground that in the light of Article 31B of the Constitution of India and the 102nd Constitutional Amendment, the State legislature lacked competence to enact such a statute.

By virtue 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 De-notified Communities Act, 2021 ("2021 Act") that came into effect on 26.02.2021, out of 116 communities, the Vanniyar caste was categorically given 10.5% reservation, 7% was for the 93 de-notified communities and the remaining 2.5% for the other 22 Most Backward Communities. Eventually, the Act was challenged for providing ex-orbital and exclusive reservation to Vanniyar community without adequate quantifiable data; in derogation of the the principles laid down in Dr Jaishree Laxmanrao Patil v The Chief Minister and others and 102nd Constitutional Amendment.

At the outset, Senior Advocate, Mr. Abhishek Singhvi appearing for the State of Tamil Nadu in one of the batch petitions sought the Apex Court's indulgence in resolving the issue framed as under -

Whether the Tamil Nadu 2021 Act w.e.f 26.02.2021, is unconstitutional because it provides for sub-divided reservation within the old existing Most Backward Class reservation of 20%.

Elucidating further on the sub-classification envisaged in the 2021 Act, he asserted that the legislation was struck down by the High Court, inter alia, on the ground that sub-classification is unconstitutional, which he later goes on to argue, is erroneous in the light of the decision of the Apex Court in Indra Sawhney v. Union of India and others 1992 Supp (3) SCC 217.

"This Act within the 20% provides for subdivision of 10.5% for Vanniyars, 7% for DNCs and 2.5% of remaining for education and service. The whole Act has been struck down stating sub-classification is unconstitutional."

Mr. Singhvi identified the other grounds on which the 2021 Act was declared to be ultra vires the provisions of the Constitution of India.

1. The 2021 Act suffered from lack of competence because -
2. It did not have Presidential assent;
3. Sub-classification was not permissible as per E.V.Chinnaiah v. State of Andhra Pradesh and others 2005 (1) SCC 394;
4. It was hit by 102nd Constitutional Amendment and the judgment in Maratha Reservation matter (Jaishree Patil).
5. Reservation cannot be based on caste alone.
6. Lack of quantifiable data

Mr. Singhvi proposed to delineate the relevant factual background to demonstrate the evolution of the concerned reservation.

Backward Classes Commissions

In 1969, the Government of Tamil Nadu appointed the First Backward Classes Commission chaired by A.N. Sattanathan, which gave its recommendation in November, 1970. 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 was referred to as the Ambashankar Door-to-door survey. As per its recommendation submitted in 1985, the total reservation for Backward Classes was to be 50% and within that the MBCs and DNCs were to be subsumed. On 28.03.1989, vide G.O. Ms. No. 242, the 50% reservation for Backward Classes was divided into - 30% to Backward Classes with 132 castes and 20% to Most Backward Classes/De-notified Communities with 109 castes, which has now increased to 116 castes.

1994 Act

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;"

Mr. Singhvi drew the Bench's attention to Section 4, which deals with reservation of seats in educational institutions and specifically Section 4(2) which enumerates the percentage share of reservation for each community.

(a)	Backward Classes.	Thirty per cent.
(b)	Most Backward Classes and Denotified Communities.	Twenty per cent.
(c)	Scheduled Castes.	Eighteen per cent.
(d)	Scheduled Tribes.	One per cent.

He argued that the 2021 Act has done nothing, but subdivided the 20% in Section 4(2)(b). It was also clarified that the 1994 Act had prior presidential assent.

The Bench was informed that the total reservation of 69% in the 1994 Act is currently under challenge.

Mr. Singhvi submitted that he had five reasons why the present petition is required to be tagged with the Writ challenging the 1994 Act and thereafter, the Bench could take a call whether it needed to be referred to a larger Bench.

"I will delineate why this should be tagged and your lordships may refer it to a larger bench."

In view of the same, the Bench asked Mr. Singhvi to limit his submissions to the issue of reference.

"If you are asking it to be referred to a larger bench, then start with that."

Assuring the Bench that he would make relevant submissions pertaining to the merit of the case so as to apprise the Bench of the contours of the issues that needs to be determined in the present petition.

Referring to Section 7 of the 1994 Act, Mr. Singhvi averred that the State Government has the power to classify or sub-classify, the Backward Classes of citizens.

"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."

He contended that the 1994 Act had general un-circumscribed assent. Therefore, all the provisions, including Section 7, had received the assent of the President.

2006 Act

Thereafter, by way of the Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of Seats In Private Educational Institutions) Act, 2006 the benefit of reservation was extended to unaided private educational institutes as well.

2007 Act

Then came 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. This Act applies to the non-MBC, Backward Classes, within the ambit of the 30% share. 3.5% each was allotted for Muslims and Christians. Later, reservation was limited to only Muslims, as for some reasons the benefit was rejected by the Christian community.

Mr. Singhvi pointed out that the 2007 Act was challenged. He stated that there was a similar Andhra Pradesh dispensation. That was challenged and reached the Supreme Court by an order dated 25.03.2010. Immediately thereafter, the Tamil Nadu dispensation of the 2007 Act came and the matter reached the Division Bench of the Madras High Court. The High Court was of the opinion that it was to be decided subject to the outcome of the Supreme Court decision in the Andhra Pradesh dispensation.

Internal Reservation

Mr. Singhvi highlighted that none of the above-mentioned Acts have been stayed. In 2012, the Chairperson of Tamil Nadu Backward Classes Commission recommended a proposal to divide the 20% of MBC/DNC reservation as 10.5% for Vanniyars; 7% for 68 DNC and 2.5% for other MBCs. The mandate of the Commission was to examine and recommend upon the demand of various communities to provide internal reservation within the reservation for MBCs.

The Bench enquired, "So was there demand from any other community for internal reservation."

Mr. Singhvi responded, "One or two more, maybe."

The Bench asked him, "Except for Vanniyars there is no internal reservation in MBCs."

He stated that specific internal reservation was only for the Vanniyar community.

As per the report dated 22.02.2021, as against the population of the Vanniyars which was 13.1% the Commission recommended 10.5% reservations. The DNCs who constituted 8.56% of the population got 7% reservations and the rest 3.05% population were given 2.5% reservation.

Thereafter, Mr. Singhvi highlighted the points that he thought was essential to be addressed in his submissions -

"Let me give a thumbnail sketch of my arguments. The High Court holds that the very act of sub-classification is hit by Chinnaiah, which it quotes in detail. This Act is invalid for the want of presidential assent and says that it is hit by 102th Constitutional Amendment and Jaishree Patil."

On the issue of referring the matter to a larger Bench, Mr. Singhvi submitted that he would place his arguments before the Bench and leave the question of reference to the Court's wisdom.

"My duty is to place it and it is your lordships prerogative to refer or not."

Sub-classification was not unconstitutional: Sr. Adv. Singhvi

It was asserted that the finding of the High Court that the sub-classification was unconstitutional is per se erroneous and in teeth of the judge of the Apex Court in K.C. Vasanth Kumar v. State of Karnataka, wherein sub-classification was held to be valid.

"The first point is that the High Court concluded in the impugned order that the act of sub-division is bad, is per se erroneous, because directly milords in the Constitutional Bench of K.C Vasanth in para 55 your lordship has held sub-division is valid. KC Vasanth is followed by Indra Sawhney, 9 Judge Bench. They say that not recognising sub-division would treat unequals equally."

Decision in Chinnaiah under challenge: Sr. Adv. Singhvi

Referring to the reliance placed by the High Court on Chinnaiah, Mr. Singhvi argued that a five-judge bench of the Apex Court in State of Punjab v. Davinder Singh had expressed disagreement with Chinnaiah. However, being a coordinate bench, it referred the matter to a larger bench comprising 7 judges.

"... the most important point in this aspect is that the impugned order misses out that there was a case Davinder, wherein the 5 judges expressly disagreed with Chinnaiah and now it has been referred to 7 judges. So, this is one point."

Presidential Assent not required for 2021 Act : Sr. Adv. Singhvi

On the issue of assent, Mr Singhvi submitted that the 2021 Act had only sub-divided the existing reservation share of 20% allotted to MBCs recognised by the 1994 Act. He argued that the 1994 Act having general uncircumcised Presidential assent under Article 31C of the Constitution, there was no requirement to obtain the same for the 2021 Act, which is merely an extension of the 1994 Act.

"Second point is that you need to have assent. 1994 has been operating for 30 years. The 1994 Act acting for 30 years, the 2021 Act delineating within 30% cannot make the 2021 Act worse off. The 1994 Act had general un-circumscribed presidential assent."

He added that when a general assent had been given to Section 7, which empowers sub-division of Backward Classes for the purpose of reservation, the President ought not to be approached again, when the 2021 Act merely attempts to further the purpose of Section 7.

"The legal issue here is assent. A pre-given presidential assent called general assent, which is given to Section 7 empowering sub-division, is intended to give play in the joints. There is no concept of repetition for presidential assent. I have found two judgments, both constitutional benches, 1996 and 2011...They say once there is a presidential assent generally you don't have to go back to the president. The 2021 Act is doing nothing more than delineating within that class. This second leg of lack of competence also goes on this short point."

Retrospective application of the 105th Constitutional Amendment : Sr. Adv. Singhvi

Finally, referring to it as the 'clarification issue', in essence, he argued the retrospective application of the 105th Constitutional Amendment, which restores the power of the State Governments and Union Territories to identify and specify Socially and Economically Backward Classes (SEBCs), which was taken away by the Constitutional Bench of the Supreme Court in Jaishree Patil.

"Now the third leg…I call it the clarification issue. Your lordships in Jaishree Patil extracted various speeches marking clear intent that there should be a clarification that State lists are not touched. There it was held that though intent in speech is reflected it does not mean that A. 342A as enacted by 102nd Amendment would keep the State List apart. Now, after that your lordship gets the 105th Amendment where we have given debates, where the purpose of passing 105th Amendment was to clarify that we never intended to exclude the State list. The 105th Amendment was brought to clarify that there was no intention ever. That may be by inadvertence, the words were not sufficient. I will show that the major change between A. 342A and the new A. 342A is the procedural part; the preparation of State lists. I will make my conclusion that being a clarificatory amendment that it is, it must necessarily relate back. The 105th Amendment has mandated, to treat the State list as always operative, valid and co-existing with the Central list and this is to be related back to the original 102nd Amendment."

If a caste forms a class, reservation can be extended to it : Sr. Adv. Singhvi

Addressing the issue that reservation cannot be only based on caste, Mr. Singhvi submitted that the argument that if a caste forms a class, then there is no bar in extending reservation is in consonance with the decision of the nine-judge Bench of the Apex Court in Indra Sawhney.

"Then the two points that remain is that the error is to treat it on caste basis and not class basis. In Indra Sawhney, it has been stated the basis is class, but if caste forms a class, it is valid classification…"

On the issue of collection of quantifiable data, he submitted that he had already provided the same to the Bench in his notes.

"…then the data, which I have given your lordships."

The Bench was concerned that if the 102nd and 105th Constitutional amendments were required to be interpreted, then the matter needs to be referred to a 5-judge Bench. Therefore, it reiterated that Counsels should limit submissions to the issue of reference.

The expression 'repeal of amendment' might need clarification : Sr. Adv. Dwivedi

Senior Advocate, Mr. Rakesh Dwivedi appearing for the State of Tamil Nadu in another petition, agreed with Mr. Singhvi, that on the issue of retrospectivity, the matter needs to be referred to a larger bench.

"I completely agree that w.r.t. retrospectivity of 105th Amendment that would require interpretation of this Court."

He highlighted that one of the findings of the High Court was that as per Article 31B the 1994 Act would continue to be in force until and unless it is categorically repealed or amended.

"One of the findings of the High Court is that the last phrase of Article 31B requires that the 1994 Act which has been placed in the Ninth Schedule, should have been amended."

"Article 31B. Validation of certain Acts and Regulations - Without prejudice to the generality of the provisions contained in Article 31A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part, and notwithstanding any judgment, decree or order of any court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force."

He argued that the 2021 Act, which is a separate enactment and not an amendment to the 1994 Act, cannot co-exist as per the interpretation made by the High Court. Therefore, the ambit of the expression 'repeal or amend' needs to be interpreted. The same involving constitutional interpretation needs to be referred to a larger bench.

"What the High Court means is that what we have done is sub-classification, which can only be done by expressly getting an amendment of 1994 Act. Whereas we have made a special Act which is sui generis and separate. The subsequent enactment if it is by way of addition, variation, repeal if there is repugnancy then subsequent Act prevails. By necessary implication it is an amendment. That can be dealt with independently. But, the scope of this expression 'repeal of amendment' needs clarification. It would involve interpretation of A. 31B. Is it required for the legislation to expressly say that they are amending?"

He further argued that under Article 31C assent is required when a law with declaration is contemplated under Article 31B. In the present case, where the legislation makes sub-classification and does not contain any declaration it would not require the assent of the President.

Present matter does not involve interpretation of 102rd and 105th Constitutional Amendments : Sr. Adv. P. Wilson

Senior Advocate, Mr. P. Wilson appearing on behalf of the State, submitted that neither 102nd nor 105th Constitutional Amendment had any bearing in the present determination. He clarified that in the present matter there is no question of identification of SEBCs which was the subject matter of the said amendments and the judgment of Jaishree Patel. The issue at hand pertains to internal classification and the same can be decided by the Division Bench of the Supreme Court.

Need for quantifiable data for such sub-classification - a grey area : Sr. Adv. Vaidyanathan

Senior Advocate, C.S. Vaidyanathan otherwise opposed the reference stating that it does not pertain to constitutional interpretation. However, the issue, whether there is a need for quantifiable data for such sub-classification, he thought was a grey area, in need of a declaration of law.

'Amend and repeal' are not unilateral powers vested in the State Govt. to tinker with A.31B and its content : Sr. Adv. Dhavan

Senior Advocate, Dr. Rajeev Dhavan, opposing the 2021 Act, submitted that Article 31B has both a substantive element as well as a procedural element. He argued that the 1994 Act would remain in force until and unless the subsequent Act expressly repealed or amended it. It was emphasised that when the Act was protected by the Ninth schedule, then in order to amend or repeal the same, the procedure laid down in Articles 31B and 31C have to be followed. He expressed concern that the intention of the Constitution was not to vest power in the States to unilaterally tinker with the Acts put into the Ninth Schedule without strictly following the procedure prescribed in the Constitution.

"As 31B has two elements, the first is substantive - take an Act, get presidential assent and put it in the Ninth schedule, it also has a procedural aspect. If you want to tinker with A.31B how it ought to be done is the procedure.

[...]

The 1994 Act will continue in force, subject to repeal or amend. The first submission, I have to make is, is it their case that the 2021 Act repeal the 1994 Act. That is not the case. You have here an independent statute which is based on the 1994 Act. Therefore, 1994 had to be amended both procedurally and otherwise. The procedural aspect of A. 31B and A. 31C is quite clear. It just says you have the power to amend it, but what will go into the Ninth Schedule. The Ninth Schedule the entire Act is incorporated by a reference. If incorporated by reference not a word of it can be changed. Therefore, it is part of the constitution, which has a distinct procedure. If you want to repeal it, you cannot just unilaterally say that as far as we are concerned, we want to take this Act out of the 9th schedule…If you want to amend it, if it is amended in such a way that the constitution itself, then…even an amendment ought to go through the same procedure... Therefore, amend and repeal are not unilateral powers vested in the State Govt. to tinker with A.31B and its content."

Mr. Dhavan also assailed the reliance placed by the State on Section 7 of the 1994 Act, stating that the same is power given to the executive and not the legislature. He reiterated that for both the statutes to co-exist, the subsequent Act ought to be an expressed amendment to the previous one.

"Their argument is that there is a sameness. You will see the subject matter is the same. Their argument is that 2021 amends 1994. Section 7 is of no use to them, that is bureaucratic power based on recommendation of Commission. If they want to read the Acts in unison then it is required that they do not tinker with the Constitution. Otherwise what happens is that all the States will say we will take it out of the A.31B. If you want the two Acts to co-exist then it is necessary then one Act must amend the other."

For Article 31C, Mr. Dhavan submitted that if the 1994 Act was to be taken out of the ambit of Article 31C, then the assent of the president ought to have been necessarily obtained.

"Article 31C. Saving of laws giving effect to certain directive principles - Notwithstanding anything contained in Article 13, no law giving effect to the policy of the State towards securing all or any of the principles laid down in Part IV shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14 or Article 19 and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy: Provided that where such law is made by the Legislature of a State, the provisions of this Article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent Right to Constitutional Remedies."

"The provision of the article shall not apply, unless it has received the consideration. Once again the proviso is the procedural element. If you want to get out of A. 31C…there is a procedure by which you do it otherwise it continues as law. The argument before the High Court is that can these two acts coexist?...On the very narrow argument of coexistence of two statues then both procedural and substantive changes are substantive in nature…They want to treat these as two statutes that can coexist. Unfortunately, they overlap which is evident from their elaborate reference to Section 7."

The issues sought to be referred have already been decided by the Supreme Court : Sr. Adv. Sankaranarayanan

Senior Advocate, Mr. Gopal Sankaranarayanan submitted that the issues sought to be referred to have already been decided one way or the other in the context of constitutional amendment and therefore, the questions no longer survive.

"The 3 questions which the petition appears to put are regarding 105th Constitutional Amendment being retrospective; A.31B and its interpretation and A. 31C with respect to the presidential assent. It is our submission that all these three have been covered. It is not retrospective, the power was not with the State at that point in time."

He referred to two judgements of the Apex Court to argue that the present matter did not merit reference to a larger bench as no substantial question of law as to the interpretation of the Constitution arises herein.

Abdul Rahim Rahimtoola v. State of Bombay (1960) 1 SCR 285

"It is clear, therefore, that so far as this Court is concerned it has already decided that to require an Indian citizen to produce a passport before he can be allowed to enter India may be regarded as a proper restriction upon entering India. This decision is binding on us and we must follow the decision of this Court in the case referred to. It was, however, urged that as a constitutional question has been raised this matter cannot be decided by judges less than five in number. Therefore, the case should be referred to what is described as the Constitution Bench. Article 145(3) of the Constitution states that the minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of the Constitution or for the purpose of hearing any reference under Article 143 shall be five. It is clear that no substantial question of law as to the interpretation of the Constitution arises in the present case as the very question raised has been decided by a Bench of this Court consisting of five Judges. As the question raised before us has been already decided by this Court it cannot be said that any substantial question of law arises regarding the interpretation of the Constitution."

Shrimanth Balasaheb Patil v. Hon'ble Speaker Karnataka (2020) 2 SCC 595

"119. There is no doubt that the requirements under Article 145(3) of the Constitution have never been dealt with extensively and, more often than not, have received mere lip service, wherein this Court has found existence of case laws which have already dealt with the proposition involved, and have rejected such references. Normatively, this trend requires consideration in appropriate cases, to ensure that unmeritorious references do not unnecessarily consume precious judicial time in the Supreme Court.

120. In any case, we feel that there is a requirement to provide a preliminary analysis with respect to the interpretation of this provision. In this context, we need to keep in mind two important phrases occurring in Article 145(3) of the Constitution, which are, 'substantial question of law' and 'interpretation of the Constitution'. By reading the aforesaid provision, two conditions can be culled out before a reference is made:

i. The Court is satisfied that the case involves a substantial question of law as to the interpretation of this Constitution;

ii. The determination of which is necessary for the disposal of the case.

121. We may state that we are not persuaded for referring the present case to a larger bench as the mandate of the aforesaid Article is that this Court needs to be satisfied as to the existence of a substantial question of law on the Constitutional interpretation. However, this does not mean that every case of constitutional interpretation should be compulsorily referred to a Constitutional Bench."

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

Click Here To Read/Download Order