'Population Percentage Can't Be Sole Basis For Internal Reservation' : Detailed Analysis Of Supreme Court Judgment In Vanniyar Quota Case

A Bench comprising Justices L. Nageswara Rao and B.R. Gavai noted that the recommendation of Justice M. Thanikachalam (Retd.) to the State Government of Tamil Nadu to provide internal reservation to the Vanniyar community was not backed by any contemporaneous caste-based data. The classification had been effected solely on the basis of population data, in the absence of any objective criteria, and was thus in contravention of the decision of the Apex Court in Jarnail Singh v. Lachhmi Narain Gupta (2018) 10 SCC 396 and Indra Sawhney v. Union of India 1992 Supp (3) SCC 217, wherein it was held that adequacy of representation is different from proportionate representation.

Background

The State Government of Tamil Nadu appointed the first Backward Class Commission on 13.11.1969 under the Chairpersonship of A.N. Sattanathan. In its report submitted in November, 1970, the Commission recommended 33% of posts under the State Government for Backward Classes as well as seats in professional and educational institutions. Accordingly, the Government had enhanced reservation for Backward Classes from 25% to 31%. On 01.02.1980, the reservation was enhanced to 50% for appointment in government jobs and admission in educational institutions. The Second Backward Classes Commission chaired by J.A. Ambashankar was appointed on 13.12.1982. In its report, the Chairman recommended compartmental reservation, but 14 other members of the Commission took a contrary view. On 28.03.1989, out of the 50% reservation for Backward Classes 20% was reserved for Most Backward Classes (MBCs) and Denotified Communities (DNCs). Thereafter, the 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 ("1994 Act") was enacted which conferred 20% reservation to MNCs and DNCs for appointment in services and admissions to educational institutions. On 13.06.2012, a report was submitted by the Tamil Nadu Backward Classes Commission, headed by Justice M.S. Janarthanam. In the said report the Chairperson recommended internal reservation of 10.5% for the Vanniyar community, whereas the remaining six members dissented. Thereafter, on 08.07.2020, the Tamil Nadu Backward Classes Commission was reconstituted and Justice M. Thanikachalam was appointed as the Chairperson. In the meanwhile, another Commission headed by Justice A. Kulasekaran was appointed to collect caste-wise quantifiable data. Without waiting for the report of the Kulasekaran Commission, the Government on 18.02.2021 wrote to Justice Thanikachalam seeking his opinion on internal reservation. By letter dated 22.02.2021 he recommended sub-classification of the 20% reservation available to the MBCs and DNCs. Accordingly, the 2021 Act was passed on 26.02.2021 which created an internal reservation of 10.5% for the Vanniyar community. It was challenged before the Madras High Court and eventually quashed by it.

Legislative competence of the State

The High Court had opined that in view of the fact that the Constitution (102nd Amendment), which had taken away the power of the State legislature of the power to identify, include or exclude Backward Classes and bestowed the same on the Parliament under Article 342A of the Constitution of India, was in force when the 2021 Act was passed, the State lacked legislative competence to enact the said statute. Senior Advocate, Dr. Abhishek Singhvi appearing on behalf of the State- appellants submitted that the 2021 Act did not identify any Backward Classes, but sub-classified the MBCs and allocated 10.5% reservation for the Vanniyar community from the 20% reservation for MBCs and DNCs. Moreover, he argued that the Constitution (105th Amendment) Act, 2021 was clarificatory, and in essence he contended that it would have retrospective effect. Senior Advocate, Mr. Gopal Sankaranarayanan, appearing for the original petitioners before the High Court, submitted that when the 102nd Amendment was in force, only the President had the power to identify SEBCs, particularly in view of the judgment in Dr. Jaishri Laxmanrao Patil v. Chief Minister (2021) 8 SCC 1. On the submission of retrospectivity of the 105th Amendment Act, he argued that considering the Amendment Act did not mention retrospective application, undoubtedly it only had prospective effect. He also submitted that it was not clarificatory as a judgment cannot be clarified by the Parliament.

Analysis of the Supreme Court

The Bench was of the view that the 105th Amendment Act cannot be said to be clarificatory. It acknowledged the submission of the respondents that whenever a retrospective effect had been intended to be given to an Amendment Act, Parliament had specified the same. Therefore, the Bench held that at the time of the enactment of the 2021 Act, the 102nd Amendment Act was in force. It cited the decision of the Apex Court in Jaishri Patil, wherein it was held that the identification of SEBCs and their inclusion in a list to be published under Article 342-A can be done only by the President, after the insertion of Articles 366(26C) and 342-A. It was noted that the President was yet to prepare and publish a list under Article 342-A(1). In exercise of Article 142 the Court had held that till the time the President's list is published, the SEBC lists prepared by the States would prevail. The Bench was of the view, that in the present case the identification of the Backward Classes, MBCs and DNCs were done pursuant to the 1994 Act and the 2021 Act merely sub-classified the already identified communities. It held -

"Under the 2021 Act, sub-classification of the MBCs and DNCs and apportionment of a particular percentage of reservation is for the purpose of determining the extent of reservation for communities within the MBCs and DNCs, which is a permissible exercise of power by the State Government, according to the majority judgment in Dr. Jaishri Laxmanrao Patil (supra)."

Permissibility of sub-classification amongst Backward Classes

Relying on E.V. Chinnaiah v. State of Andhra Pradesh (2005) 1 SCC 394, the High Court had held that all castes included in the Schedule under Article 341 of the Constitution would be considered as one group and cannot be further sub-classified. The Counsels for the appellants argued that a five-judge bench of the Apex Court in State of Punjab v. Davinder Singh (2020) 8 SCC 1 had disagreed with Chinnaiah and referred the matter to a larger bench, which is pending adjudication. It was further contended that Indra Sawhney v Union of India 1992 Supp (3) SCC 217 permits sub-classification. Dr. Rajeev Dhawan and Senior Advocate, Mr. R. Balasubramanian submitted that as per Indra Sawhney, Backward Classes can be sub-divided into Backward and Most Backward Classes but not beyond that.

Analysis of the Supreme Court

On perusal of the judgment in Chinnaiah, Indra Sawhney and K.C. Vasanth Kumar v. State of Karnataka 1985 Supp SCC 714, the Bench opined that sub-classification was permissible. It was noted that in Chinnaiah it was held that castes once included in the Presidential list form a class by themselves and any division of these classes or persons based on any consideration would amount to tinkering with the Presidential list. However, such a Presidential list was not available when the 2021 Act came into force.

Bar on Competence under Article 31-B of the Constitution

The High Court had held that the 1994 Act which was placed in the Ninth Schedule would remain there until amended or repealed. As the 1994 Act was not amended the State did not have legislative competence to provide internal reservation. Dr. Singhvi referred to Section 7 of the 1994 Act which conferred power on the State to sub-classify. He argued that the 2021 Act was, in essence, an extension of the 1994 Act. Mr. Dwivedi appearing for the State-appellants argued that Article 31-B does not bar the powers of the legislature under Article 246. Therefore, he averred that legislative competence is to be tested only on the touchstone of Article 246 and not Article 31-B. The Counsels for the respondents argued to the contrary.

Analysis of the Supreme Court

The Bench cited Godavari Sugar Mills Ltd. v. S.B. Kamble (1975) 1 SCC 696 to note that the object of Article 31B was to provide blanket protection to the acts and regulations specified in the Ninth Schedule from challenge on the ground of violation of the Part III rights. It was of the view that the effect of Article 31-B, however, is not to prevent challenge to an enactment on the ground that it is beyond the legislative competence of the Legislature which enacted it. The Bench opined that the State Legislature did not lack competence to enact a legislation for determining the extent of reservation amongst the MBCs and DNCs.

Effect of the 1994 Act receiving Presidential Assent under Article 31C of the Constitution

The Bench noted that the High Court had held that since the 1994 Act had received the assent of the President of India it cannot be varied by the State legislature. It was argued by Mr. Dwivedi that the State is at liberty to decide whether a statute ought to receive the protection under Article 31C. Dr. Singhvi averred that the 1994 Act including Section 7 which permits sub-classification of Backwards Classes had received the assent of the President, therefore no further assent is required for the 2021 Act which merely sub-classifies. Mr. Vaidhyanathan appearing for the appellants argued that given the fact that there was no repugnancy with any Central law, a statute enacted with respect to a matter protected by the List II of the Seventh Schedule of the Constitution can be carried out only with the assent of the Governor.

Analysis by the Supreme Court

The Bench was of the view that the 2021 Act deals with matters ancillary to those contained in the 1994 Act and the State had competence to legislate on such subjects. It noted that the decision whether a legislation should receive assent of the President or not lies with the State. The consequence of not seeking assent would be limited to the extent that the statute so enacted would not be protected against challenge under Article 14 or 19. It held -

"From these observations and findings, it is clear that States are empowered to make reservation for backward classes under Articles 15(4) and 16(4)."

It stated that Article 31C neither bars the State's competence to legislate with the Governor's assent nor can compel the State to reserve a statute for assent of the President.

Caste-based classification

The 2021 Act was challenged on the basis that it creates internal reservation solely on the basis of caste and therefore is violative of Article 14, 15 and 16 of the Constitution of India.

Analysis of the Supreme Court

The Bench relied on K.C. Vasanth and Indra Sawhney to state that caste can be the basis for providing reservation, but noted that it cannot be the sole basis. It observed -

"…while caste can be the starting point for providing internal reservation, it is incumbent on the State Government to justify the reasonableness of the sub-classification and demonstrate that caste has not been the only basis."

Scrutiny of the report of Justice Thanikachalam

The High Court had found that there was no quantifiable data on the basis of which the 2021 enactment had been effected. It opined that the sub-classification was done without any objective criteria and was based solely on the population figures of 1983. Moreover, it had pointed out that no data was available to determine the degree of backwardness of the classes; inadequate representation and efficiency of administration. The Bench noted -

"It was concluded by the High Court that sub-classification would be permissible only on the ground that "a class is far far backward than the advanced sections of that class", however, the classification under the 2021 Act was not based on any intelligible differentia as there was nothing on record to show that the other 115 communities were more advanced than the Vanniakula Kshatriyas using any yardstick. Therefore, the classification was made only on the basis of caste, which is unsustainable in law."

The Bench emphasised that the Counsels for the appellants had relied on the reports of the Sattanathan Commission, the Ambashankar Commission and the Janarthanam Commission to demonstrate the backwardness of the Vanniyar community. It was asserted that after extensive study, the Janarthanam Commission had recommended the internal reservation. Mr. Radhakrishnan appearing for the appellants had argued that the scrutiny is limited to the extent that the decision of the State Government was based on some data. Per contra, the Counsels for the respondents submitted that Justice Thanikachalam's report was based on the decision of the minority report of the Janarthanam Commission. The majority had opined that the available data was outdated and were not caste-based data.

Analysis of the Supreme Court

The Bench found errors in the manner the minority report was accepted by Justice Thanikachalam and internal reservation was recommended. It was noted that recommendation did not come from the Thanikachalam Commission but only from Justice Thanikachalam by way of a letter addressed to the State Government. It found -

"Providing internal reservation of 10.5 per cent from the 20 per cent made available to MBCs and DNCs would definitely be to the detriment of other communities, in the absence of any exercise undertaken or any findings arrived at to demonstrate that members of the Vanniakula Kshatriya community are unable to compete with the remaining communities within the MBCs and DNCs. No data or material is referred to in the letter by Justice Thanikachalam on the representation of the remaining communities within the MBCs and DNCs in educational institutions or public employment, which could support the severe restriction in the extent of reservation made available to these communities, who had been entitled to avail the benefit of 20 per cent reservation en masse till the enactment of the 2021 Act."

The Bench agreed that there was no contemporaneous data available to Justice Thanikachalam or Justice Janarthanam on the basis of which they recommended internal reservation. It was observed that the proportion of the population of the Vanniyar community to the total population of MBCs and DNCs was the sole criteria for the recommendation. The Bench held -

"This Court is of the opinion that percentage of population of the Vanniakula Kshatriyas proportionate to the total population of the MBCs and DNCs cannot be the sole criterion for providing internal reservation."

It added -

"We make it clear that the aforesaid observations do not prevent the State, if it so decides, from undertaking suitable exercises for collecting pertinent, contemporaneous data to determine how demands for internal reservation within the Backward Classes can be justly addressed."

Constitutional validity of the 2021 Act

The Bench opined that though the legislature has the power to classify, such classification ought not to be arbitrary, artificial or evasive. The classification ought to have a reasonable nexus with the object of the statute. Moreover, the object itself is to be non-discriminatory. Discrimination being the essence of classification, equality would be violated if it is not reasonable. The Bench noted that the substantive equality permits enactment of special provisions and reservations for advancement of backward classes as enumerated under Article 14, 15 and 16.

The Bench held that the object of the 2021 Act is to achieve equitable distribution of the benefit of 20% reservation for MBCs and DNCs. Choosing one out of 116 castes and providing internal reservation of 10.5% is discriminatory in the absence of any reasonable basis for such differential treatment. It noted that the justification provided by the State was the availability of data to demonstrate inadequate representation disproportionate to the population of the Vanniyar community. The Bench observed that there was no justification for the classification other than population, which was in the teeth of the judgment in Indra Sawhney and Jarnail Singh. It held -

"…the 2021 Act is violative of Articles 14, 15 and 16, as there is no substantial basis for differentiating the Vanniakula Kshatriyas and granting them separate reservation."

[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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