Larger Bench Reference Not Needed For Vanniyar Internal Reservation Issue; Supreme Court Starts Hearing On Merits

On the last date of hearing, a Bench comprising Justices L. Nageswara Rao and B.R. Gavai heard the submission made by the Counsels on the issue of reference to a larger Bench. The Bench, on Wednesday, refused to refer the matter and asked the Counsels to argue on merits.

Submissions made by the Counsels appearing for State

Can't say there was no legislative competence

Senior Advocate, Mr. Rakesh Dwivedi submitted that the High Court had questioned the legislative competence for enacting the 2021 Act on the basis of the fact that the procedure laid down under Article 31B of the Constitution of India was not adhered to. He argued that the source of power to legislate is Article 246 and the 2021 Act was enacted pursuant to the exercise of this power. Article 31B 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. He stated that the legislative competence has to be tested on the touchstone of the principles in Article 246 and not Article 31B. He stated that the lawmaking power of the legislature is not restricted even to deal with ancillary issues which are a part of the 1994 Act.

"I am dealing with A.31B and A.31C. I have shown to your lordships para 32 of the Impugned order. It is correct that the 1994 Act is in the Ninth Schedule. It is correct that the 2021 Act does not specifically say it is an amendment though it is bringing out a variation. The question is, is A. 31B violated because a state ought to have made a legislation specifically saying amendment act. Kindly see Para 32.

"32. In our view, a combined reading of the Act 45 of 1994 as well as the impugned Act would make it clear that the impugned Act (Act 8 of 2021) has been enacted as a Special Act and not by way of Amendment Act to amend the provisions of the Act 45 of 1994. Article 31-B of the Constitution of India mandates that only amendment or repeal alone is permissible and not by way of overruling of the said Act as the same has been placed in the Ninth Schedule of the Constitution of India."

He controverted the High Court's reasoning that an enactment which is protected by Article 31B cannot be varied without bringing about a formal Amendment Act in the manner prescribed in Article 31B. It was asserted that Article 31B does not intend to take away the power that is bestowed by the Constitution on the State legislature to legislate under Article 246. In short, he averred, Article 31B does not prescribe the law-making procedure.

"The crux of the reasoning is if you want to bring a change with respect to an enactment in the Ninth Schedule then it cannot be by way of a special act but only by an amendment act. The submission is that on a plain reading of A. 31B…the first thing notable about A. 31B is that it is an armour of protection; a protection shield…It is not seeking to alter the federal distribution of powers under A.246 and the three Lists. The law which we made and which was placed in the Act was pursuant to exercise of power under A. 246. When we seek to repeal or amend, it would again be in exercise of A. 246. This is basic constitutional principle, but what was contended was that A. 31B prescribes a procedure of its own…A. 31B only picks up the statute of a state and protects it as against the Fundamental rights. It does not prescribe a particular procedure to make any law."

He appraised the Bench that the precedents in this regard are those cases wherein the State had argued that, the new enactment being a modification of the earlier statute already placed in the Ninth Schedule, the benefit of the protection of the Ninth Schedule would also accrue to the subsequent modification. It was clarified that this was not the contention of the State before the High Court. Yet it went ahead and determined legislative competence in terms of Article 31B rather than testing the same on the touchstone of Article 246.

It was submitted by Mr. Dwivedi that unlike the finding of the High Court that amendment can be made only by an amending Act, it could be done in any manner, as the procedure for such variation was not prescribed under Article 31B. The word 'amend' in Article 31B is broad enough to accommodate a legislation, which has an effect on an enactment protected by it.

"Certainly, the 1994 Act and this Act have to be read together. Because in the first Act there was a solid group which was split in the second Act. The ambit of the word amend in 31B would be in whatsoever manner. There is no particular manner prescribed…It will be seen if the second act has an effect on the first. If that is there then there is variation."

The Bench enquired, "It is not the case of the State that you have amended it, in that case you will lose the protection of A. 31B."

Mr. Dwivedi submitted that even arguing in the alternative, the validity of the 2021 Act cannot be challenged since it has been passed exercising power under Article 246.

On the issue of Article 31C, he argued that presidential assent is not required for enactments that do not contain a declaration. More importantly, when the State did not seek the benefit of protection of Article 31C, the High Court on its own should not have delved into any determination 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.

"What should have been seen is that the 2021 Act contains a declaration, if it does not contain a declaration then 31C is not attracted at all. Only I raise an issue that though we have not put up a declaration nevertheless it is carrying out the purpose under A. 31 C and then I seek the protection of A. 31C, the Court can put to me that there is no presidential assent. The State has not argued that A. 31C protection be given."

Sub-classification is permitted

Mr. Dwivedi submitted that E.V.Chinnaiah v. State of Andhra Pradesh and others 2005 (1) SCC 394 can be distinguished as it dealt with Scheduled Castes and Scheduled Tribes and not Backward Classes and Most Backward Classes. Reliance was placed on a catena of judgments including Indra Sawhney v. Union of India and others 1992 Supp (3) SCC 217 to argue that sub-classification is permissible -

"We are of the opinion that there is no constitutional or legal bar to a State categorising the backward classes as backward and more backward. We are not saying that it ought to be done. We are concerned with the question if a State makes such a categorisation, whether it would be invalid? We think not…"

Senior Advocate, Mr. Abhishek Singhvi submitted that once the general presidential assent was obtained for the 1994 Act, no further assent was required for the modification carried out by way of the 2021 Act. He clarified that the presidential assent to the intent of Section 7 which provides for sub-classification of Backward Classes cannot be taken away when it has merely been delineated by the 2021 Act.

"Kindly read Section 4, 7 and 8 of the 1994 Act…My submission is that the 1994 Act, which has stood the test of time and gives clear charter on MBC reservation, has simply been elaborated by the 2021 Act in the category of 20% MBC. As the highest as 2021 Act is not part of the Ninth Schedule, no one is claiming the protection of the Ninth Schedule…I am not interested in the Ninth Schedule...If I had chosen to exercise power by a notification, how can I be worse off because I have done it through the 2021 Act. Power I undoubtedly have…So 1994 Act does two things: for education and service it gives a clear subdivision charter and recognises the future flexibility in the joints and availability of power. It is not static, forward looking and dynamic. For everything unless you are changing the character of 1994 Act, you need not go for fresh presidential assent. Fortunately the issue is narrow one, it is within the rubric of 20% MBC. Hyper-technical to say that you cannot exercise power; your power is vague; you have power, but it should have come by way of notification. The intent to leave the detailing for the future has stood the test of time."

Clarificatory Amendment

Mr. Singhvi argued that the 105th Constitutional Amendment was only a clarificatory amendment and therefore it would cure the position from the inception of the 102nd Constitutional Amendment. In order to show that 105th was only clarifying the intention of the legislature that was there from the beginning, he referred to the Statement of Objects and Reasons of the 127th Constitution Bill (105th Constitutional Amendment Act)

"The Constitution (One Hundred and Second Amendment) Act, 2018 has inserted three new articles, that is, 342A, 366(26C) and 338B in the Constitution. Whereas article 338B has constituted the National Commission for Backward Classes, article 342A has dealt with the Central List of the socially and educationally backward classes (commonly known as the Other Backward Classes) and article 366 (26C) has defined the socially and educationally backward classes.

2. The legislative intent at the time of passing of the Constitution (One Hundred and Second Amendment) Act, 2018 was that it deals with the Central List of the socially and educationally backward classes (SEBCs). It recognises the fact that even prior to the declaration of the Central List of SEBCs in 1993, many States/Union territories are having their own State List/Union territory List of OBCs. The same was clarified in Parliament that the States and Union territories may continue to have their separate State List/Union territory List of SEBCs. The castes or communities included in such State List or Union List of Backward Classes may differ from the castes or communities included in the Central List of SEBCs.

3. Although since 1993, there always existed separate lists of the Central Government and that of the State Governments and Union territories, a question has arisen after enactment of the Constitution (One Hundred and Second Amendment) Act, 2018 as to whether the said amendments to the Constitution mandated for a single Central List of SEBCs specifying the SEBCs for each State, thereby taking away the powers of the State to prepare and maintain a separate State List of SEBCs.

4. In order to adequately clarify that the State Government and Union territories are empowered to prepare and maintain their own State List/ Union territory List of SEBCs and with a view to maintain the federal structure of this country, there is a need to amend article 342A and make consequential amendments in articles 338B and 366 of the Constitution."

He also placed reliance on the Parliamentary debates to highlight that it was a clarificatory amendment and therefore, would operate from the date of inception, 11.08.2018, i.e. before the 2021 Act came into existence.

High Court's finding that classification is bad because it is based on caste and not on class is a patent error

Mr. Singhvi argued that a caste can form a class and the finding of the High Court which held the sub-classification in the 2021 Act to be unconstitutional was patently erroneous.

"It says classification is bad because it is based on caste and not on class. This and reliance on Chinnaiah are patent errors, if I might say so. They don't take note of Indra Sawhney."

He referred to relevant portions of Indra Sawhney to make good his submission -

"Indeed, there are very good reasons why the Constitution could not have used the expression "castes" or "caste" in Article 16(4) and why the word "class" was the natural choice in the context. The Constitution was meant for the entire country and for all time to come. Non-Hindu religions like Islam, Christianity and Sikh did not recognise caste as such though, as pointed out hereinabove, castes did exist even among these religions to a varying degree. Further, a Constitution is supposed to be a permanent document expected to last several centuries. It must surely have been envisaged that in future many classes may spring-up answering the test of backwardness, requiring the protection of Article 16(4). It, therefore, follows that from the use of the word "class" in Article 16(4), it cannot be concluded either that "class" is antithetical to "caste" or that a caste cannot be a class or that a caste as such can never be taken as a backward class of citizens. The word "class" in Article 16(4), in our opinion, is used in the sense of social class - and not in the sense it is understood in Marxist jargon."

[...]

"...As observed by Dr. Ambedkar, a caste is an enclosed class and it was mainly these classes the Constituent Assembly had in mind though not exclusively - while enacting Article 16(4)..."

Mr. Singhvi pointed out that paragraph 40 to 50 of the Impugned order observes the exact opposite of what has been elucidated in the Indra Sawhney judgment -

"Para 40-50 of Impugned Order, is directly opposite of all this. Kindly look at 49 of the Impugned Order -

"49. It is settled position of law that caste alone cannot be the basis for any classification and the Honourable Supreme Court in Indra Sawhney judgment makes it very clear that caste alone cannot be a criteria to make reservation, because Articles 16(1), 16(2) and 16(4) are facet of Article 14 of the Constitution of India and when there is a specific bar to discriminate on caste under Article 16(2), the same cannot be done under Article 16(4) of the Constitution of India being same facet."

Reservation based on quantifiable data

He argued that there are four reports which have consistently stated that Vanniyars are part of the Most Backward Classes.

a. Sattanathan Commission Report - 26.11.1970,

b. Ambashankar Commission Report - 1985

c. Janarthanam Commission Report - 24.05.2012

d. Report of 2021 Commission - 22.02.2021

He asserted that the findings of the reports are based on pollution census and therefore, the High Court was not correct in saying that the reservation was provided without collecting any quantifiable data.

Senior Advocate, Mr. Rao apprised the Bench that the Vanniyar community is not a single community but a conglomeration of six to seven communities. He read portions of the Ambashankar Report and the Janarthanam Report to demonstrate their backwardness. It was argued that the finding pertaining to lack of quantifiable data was factually incorrect as the Commission Reports demonstrates otherwise. Mr. Rao asserted that there was no enlistment of new caste, existing reservation had merely been apportioned. He stated that there is nothing wrong with sub-classification on the basis of population.

"The social and educational backwardness of the community where women are doing menial work, men are doing scavenging work, where they are grave diggers in the graveyard, such a community being given this small benefit cannot be subject matter of attack from other backward communities."

Senior Advocate, Mr. C.S. Vaidyanathan argued that Section 7 of the 1994 Act, which specifically mentions that the sub-classification amongst the Backward Classes can be done only by way of a notification, cannot be said to have taken away the power of the State to legislate on the subject-matter.

"One fundamental question that I want to raise is that in regard to the argument based on Section 7 of 1994 Act that it has to be done in that manner or not at all. We are dealing with plenary power of the State legislature. Section 7 of the 1994 Act did not amend the Constitution and cut down the plenary powers of the State legislature to make legislation…Respondents' argument amounts to saying the 1994 Act has amended the Constitution."

[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