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'Unfortunate That Politics Drives Reservation' : Respondents Conclude Arguments In Vanniyar Internal Quota Case; Supreme Court Reserves Judgment

Sohini Chowdhury
23 Feb 2022 4:08 PM GMT
Unfortunate That Politics Drives Reservation : Respondents Conclude Arguments In Vanniyar Internal Quota Case; Supreme Court Reserves Judgment
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On Wednesday, the Supreme Court continued hearing submissions in the challenge to the Madras High Court order quashing Tamil Nadu law ("2021 Act") that provided 10.5% reservation in educational institutions and government jobs for the Vanniyar community out of the 20% reservation available to the Most Backward Classes. A Bench comprising Justices L. Nageswara Rao and B.R. Gavai...

On Wednesday, the Supreme Court continued hearing submissions in the challenge to the Madras High Court order quashing Tamil Nadu law ("2021 Act") that provided 10.5% reservation in educational institutions and government jobs for the Vanniyar community out of the 20% reservation available to the Most Backward Classes.

A Bench comprising Justices L. Nageswara Rao and B.R. Gavai heard counter arguments and rebuttal arguments and reserved the judgment in the matter.

The State of Tamil Nadu had, primarily, submitted that the 2021 Act merely sub-classified within the 20% reservation provided to the Most Backward Classes, whereas the respondents argued that the State had attempted to 'identify' communities in derogation of the 102nd Constitutional Amendment Act without placing reliance on any quantifiable data.

'Clarification' argument does not hold water

Senior Advocate, Mr. Gopal Sankaranarayanan appearing on behalf of original writ petitioner before the Madras High Court refuted the argument put forth by the Tamil Nadu Government that 105th Constitutional Amendment Act was clarificatory in nature.

"The State appears to believe that the 105th Amendment can arrogate itself the authority to clarify what the Supreme Court had said in Jaishri Patil. Apart from the fact that it is impermissible, a perusal of the Amendment Act itself will reveal that it does no such thing."

He argued that unlike the other Constitutional Amendments which intended to 'clarify', reference is made to the judicial pronouncement of the Supreme Court wherein the Apex Court had interpreted otherwise, the Statement of Object and Purpose of the 105th Constitutional Amendment Act neither states that it is clarificatory, not mentions the Maratha Reservation judgment.

"The Amendment Act does not make reference to the Jaishri judgment unlike the 4th Amendment wherein the Statement of Object and Purpose mentions Sahagir Ahmed, the 24th amendment referred to Golaknath, 77th, 81th, 82nd referred to Indra Sawhney, 85th refers to Vir Pal and Ajit Singh and the 99th reference to the NJAC case. So, they always referred to the cases they thought were standing in the way."

In order to demonstrate the extent of the doctrine of Separation of Power, he referred to Plaut v. Spendthrift Farm, Inc. 514 U.S. 211 (1995)

"This sense of a sharp necessity to separate the legislative from the judicial power, prompted by the crescendo of legislative interference with private judgments of the courts, triumphed among the Framers of the new Federal Constitution. [See Corwin, The Progress of Constitutional Theory Between the Declaration of Independence and the Meeting of the Philadelphia Convention, 30 Am. Hist. Rev. 511, 514-517 (1925)]. The Convention made the critical decision to establish a judicial department independent of the Legislative Branch by providing that "the judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." Before and during the debates on ratification, Madison, Jefferson, and Hamilton each wrote of the factional disorders and disarray that the system of legislative equity had produced in the years before the framing; and each thought that the separation of the legislative from the judicial power in the new Constitution would cure them. Madison's Federalist No. 48, the famous description of the process by which "[t]he legislative department is every where extending the sphere of its activity, and drawing all power into its impetuous vortex," referred to the report of the Pennsylvania Council of Censors to show that in that State "cases belonging to the judiciary department [had been] frequently drawn within legislative cognizance and determination."

The Federalist No. 48, pp. 333, 337 (J. Cooke ed. 1961). Madison relied as well on Jefferson's Notes on the State of Virginia, which mentioned, as one example of the dangerous concentration of governmental powers into the hands of the legislature, that "the Legislature ... in many instances decided rights which should have been left to judiciary controversy." Id., at 336 (emphasis deleted).4

If the need for separation of legislative from judicial power was plain, the principal effect to be accomplished by that separation was even plainer. As Hamilton wrote in his exegesis of Article III, § 1, in The Federalist No. 81:

"It is not true ... that the parliament of Great Britain, or the legislatures of the particular states, can rectify the exceptionable decisions of their respective courts, in any other sense than might be done by a future legislature of the United States. The theory neither of the British, nor the state constitutions, authorises the revisal of a judicial sentence, by a legislative act .... A legislature without exceeding its province cannot reverse a determination once made, in a particular case; though it may prescribe a new rule for future cases." The Federalist No. 81, p. 545 (J. Cooke ed. 1961).

The essential balance created by this allocation of authority was a simple one. The Legislature would be possessed of power to "prescrib[e] the rules by which the duties and rights of every citizen are to be regulated," but the power of "[t]he interpretation of the laws" would be "the proper and peculiar province of the courts." Id., No. 78, at 523, 525.

Read in the abstract these public pronouncements might be taken, as the Solicitor General does take them, [see Brief for United States 28-30], to disapprove only the practice of having the legislature itself sit as a court of original or appellate jurisdiction. But against the backdrop of history, that reading is untenable. Many, perhaps a plurality, of the instances of legislative equity in the period before the framing simply involved duly enacted laws that nullified judgments so that new trials or judicial rulings on the merits could take place. [See supra, at 219].[See also Corwin, The Doctrine of Judicial Review, at 42]. The Judiciary would be, "from the nature of its functions, ... the [department] least dangerous to the political rights of the constitution," not because its acts were subject to legislative correction, but because the binding effect of its acts was limited to particular cases and controversies. Thus, "though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter: ... so long as the judiciary remains truly distinct from both the legislative and executive."

The Bench enquired that when in the Maratha reservation judgment it has been held that only the President had the power to identify the SEBCs after the commencement of the 102nd Constitutional Amendment Act, 2018, how the identification being done by the Tamil Nadu Act of 1994 falls foul.

"In Jaishri Patil we have said that it is the President who has to issue the list specifying SEBCs even for States…What is said is that the State Governments do not have power to identify but have power to do everything else…The identification of this caste had been done in 1994. Can it be said that giving them this 10.5 % reservation amounts to identification…Can you focus on that and make submissions?"

Mr. Shankaranarayanan submitted that the 1994 Act did not identify which is abundantly clear from Section 3(a) of the Act which defines Backward Classes and leave the responsibility to identify to the Government by means of notification.

Section 3(a) is the definition of backward classes -

(a) "Backward Classes of citizens" means the class or classes of citizen 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 Denotified Communities ;

He argued that the 1994 Act having vested the power in the Government, it had the powers to notify. However after the 102nd Constitutional Amendment Act came into existence the Constitution itself provided for the method of identification and the same could not have been done thereafter by the State.

"This phrase held true till August, 2018. The power that they gave themselves to notify held true till August 2018. Once the Constitution says the method of identifying SEBCs is as per Article 342A, any such provision in any statute comes to a grinding halt."

The Bench enquired, "The President did not issue notification till we delivered the judgment. What will happen to the lists then?...We continued the State lists, if this Act came into force during the subsistence of the list, what is the problem?"

Mr. Shankaranarayanan submitted that the 102nd Constitutional Amendment came into force in August, 2018 and therefore, the States could not have identified SEBCs after the said date. Moreover, from the date the said Amendment came into force, the State lists ceased to exist and was brought to life only by the direction of the Court under Article 142 in Jaishri Patil judgment.

He submitted that once a statute is void ab initio for lack of legislative competence, its subsequent constitutional amendment cannot be used to get rid of the original incompetence. In this regard he referred to judgments including Saghir Ahmad v. State of U.P. 1954 AIR 728

"With regard to the second point also we do not think that the learned Judges have approached the question from the proper stand point. There is undoubtedly a presumption in favour of the constitutionality of a legislation. But when the enactment on the face of it is found to violate a fundamental right guaranteed under article 19(1)(g) of the Constitution, it must be held to be invalid unless those who support the legislation can bring it within the purview of the exception laid down in clause (6) of the article. If the respondents do not place any materials before the Court to establish that the legislation comes within the permissible limits of clause (6), it is surely not for the appellants to prove negatively that the legislation was not reasonable and was not conducive to the welfare of the community. In the present case we have absolutely no materials before us to say in which way the establishment of State monopoly in regard to road transport service in the particular areas would be conducive to the general welfare of the public. We do not know the conditions of the bus service at the present moment or the conveniences or inconveniences of the public in regard to the same; nor we are told how the position is likely to improve if the State takes over the road transport service and what additional amenities or advantages the general public would enjoy in that event. We mention these matters only to show that these are relevant facts which might help the Court in coming to a decision as to the reasonableness or otherwise of the prohibition, but unfortunately there are no materials in the record relating to any one of them. One thing, however, in our opinion, has a decided bearing on the question of reasonableness and that is the immediate effect which the legislation is likely to produce. Hundreds of citizens are earning their livelihood by carrying on this business on various routes within the State of Uttar Pradesh. Although they carry on the business only with the aid of permits, which are granted to them by the authorities under the Motor Vehicles Act, no compensation has been allowed to them under the statute. It goes without saying that as a result of the Act they will all be deprived of the means of supporting themselves and their families and they will be left with their buses which will be of no further use to them and which they may not be able to dispose of easily or at a reasonable price. It may be pointed out in this connection that in Part IV of the Constitution which enunciates the directive principles of State policy, article 39(a) expressly lays down that the State shall direct its policy towards securing "that the citizens, men and women equally, have the right to an adequate means of livelihood." The new clause in article 19(6) has no doubt been introduced with a view to provide that a State can create a monopoly in its own favour in respect of any trade or business; but the amendment does not make the establishment of such monopoly a reasonable restriction within the meaning of the first clause of article 19(6). The result of the amendment is that the State would not have to justify such action as reasonable at all in a Court of law and no objection could be taken to it on the ground that it is an infringement of the right guaranteed under article 19(1)(g) of the Constitution. It is quite true that if the present statute was passed after the coming into force of the new clause in article 19(6) of the Constitution, the question of reasonableness would not have arisen at all and the appellants' case on this point, at any rate, would have been inarguable. These are however considerations which cannot affect our decision in the present case. The amendment of the Constitution, which came later, cannot be invoked to validate an earlier legislation which must be regarded as unconstitutional when it was passed: As Professor Cooley has stated in his work on Constitutional Limitations(1) "a statute void for u`constitutionality is dead and cannot be vitalised by a subsequent amendment of the Constitution removing the constitutional objection but must be re-enacted". We think that this is sound law and our conclusion is that the legislation in question which violates the fundamental right of the appellants under article 19(1)(g) of the Constitution and is not shown to be protected by clause (6) of the article, as it stood at the time of the enactment, must be held to be void under article 13(2) of the Constitution."

He asserted that the 102nd Amendment Act required the State government to consult the National Commission for Backward Classes as per the mandate of Article 338B.

"Considering what the 102nd and 105th Amendments have done is - If I leave the 105 Amendment issue out…we are stuck with how the 102nd amendment operates with reference to that. When you made the Act it was a major decision with respect to SEBCs and you had to follow Article 338B. You admittedly did not follow Article 338B."

The Bench asked Mr. Sankaranarayanan, "What is the consequence of not having consultation?"

He responded that consultation under Article 388B was mandatory and as the same was not done, the Tamil Nadu Act of 2021 apart from lacking legislative competency was also ultra vires.

"In my view, it would be void. Because it is mandatory…The Commission had to be consulted. "Shall consult" is the foundation of the provision. There is not a possibility of it not being mandatory. Even for appointment of judges there is a requirement to consult. The 102nd amendment makes it clear who the SEBCs are and the Constitution says that the method to identify SEBC is under Article 342A and that position continues even today. The only difference is that the State by law would do it. But before 105th and after 102nd the State did not have that power."

Senior Advocate, Dr. Rajeev Dhavan appearing on behalf of one of the respondents submitted that there was no contemporaneous data to suggest the requirement for granting the 10.5% reservation to the Vanniyar community.

"We can go back to the Sattanathan, Ambashankar and Janarthanam reports, they are all dated. When you are to supply data, you have to supply some contemporaneous data…What is the evidence that exists - a letter based on population…The narrow area we are concerned with is can this division of 10.5% be made at all. What is the basis of making it. This is the narrow scope of this matter."

Incompetency

He submitted that reservation was not a right and therefore in order to extend reservation to a community the procedure laid down in that regard ought to be followed. Since, the President alone had the power under the Constitution to identify SEBCs, the 2021 Act suffered from constitutional vires as well as incompetency.

"There is no right to reservation. This was held in Mukesh Kumar (2020) 3 SCC 1 and in Suresh Chand Gautam in (2016) 11 SCC 113. When a procedure has to be followed, and it is not done, there is no right to reservation."

Referring to the Maratha reservation judgment, he submitted -

"By introduction of Articles 366 (26C) and 342A through the 102nd Constitution of India, the President alone, to the exclusion of all other authorities, is empowered to identify SEBCs and include them in a list to be published under Article 342A (1), which shall be deemed to include SEBCs in relation to each state and union territory for the purposes of the Constitution."

Clarificatory Theory

He referred to Mr. Abhishek Singhvi's arguments that 105th Constitutional Amendment Act was clarificatory and therefore it would date back to August , 2018 and that the basis for the judgment in Maratha reservation matter was removed by the said Constitutional Amendment. It was his submission that 'changing the basis of judicial pronouncement' and the argument of the 'Constitutional Amendment is clarificatory' cannot go hand in hand, as they are conflicting arguments.

"Their argument was on the basis of -

a. The Amendment was clarificatory;

b. Because it is clarificatory it would date back; and

c. Prithvi Cotton Mills will apply and the basis of the Supreme Court judgment has been changed.

Basis changed and clarificatory - they are conflicting arguments. Either it is clarificatory or it is an Amendment by means of which the basis had been changed. It can't be both. The law is that if something is declaratory in nature, it would be retrospective. There is no case to say that if it is clarificatory then it would date back. The 105th Amendment does not say anything about dating back."

Parliamentary debates can be relied on when the statute is ambiguous

Noting that Mr. Singhvi had relied on the Parliamentary debates to substantiate his 'clarificatory argument', he placed reliance on the observation of the House of Lords in Pepper (Inspector of Taxes) v. Hart, which stated that parliamentary debates can be used as aids to interpret statutes which are ambiguous, uncertain. According to domestic law it was argued that parliamentary debates are not taken to be conclusive.

"In the present case the 105th amendment is clear in giving States the power to identify classes for inclusion. There is no ambiguity. 105th amendment reserves the interpretation of the 102nd Amendment given in the Maratha reservation matter. It is not clarificatory or directory and does not date back…"

Changing the Basis

Reliance was placed on Prithvi Cotton Mills v. Broach Borough Municipality & Ors. 1970 AIR 192

"Before we examine s. 3 to find out whether it is effective in its purpose or not we may say a few words about validating statutes in general. When a legislature sets out to validate a tax declared by a court to be illegally collected under an ineffective or an invalid law, the cause for ineffectiveness or invalidity must be removed before validation can be said to take place effectively. The most important condition, of course, is that the legislature must possess the power to impose the tax, for, if it does not, the action must ever remain ineffective and illegal. Granted legislative competence, it is not sufficient to declare merely that the decision of the Court shall not bind for that is tantamount to reversing the decision in exercise of judicial power which the legislature does not possess or exercise..

[...]

The validity of a Validating law, therefore, depends upon whether the legislature possesses the competence which it claims over the subject-matter and whether in making the validation it removes the defect which the courts had found in the existing law and makes adequate provisions in the Validating law for a valid imposition of the tax."

He argued that changing the basis could be done only when a decision of the Court is against the party and the validating statute modifies only a small defect. It cannot make substantial changes. He contended -

"What is the defect here? Normally separation of power will operate, but if you change the basis only then Prithvi Cotton will apply."

Dr. Dhavan further clarified -

"This is not a case of changing basis but usurpation of judicial power invalidating the minority view in the Maharashtra case and overruling the majority view."

Data is based on population alone

It was emphasised that Justice Thanikachalam's letter on the basis of which the 10.5% reservation appears to have been brought about was based on population alone. He stated that the same was also noted in the impugned judgment -

"51. The main thrust of the arguments of the learned Advocate General appearing for the State is that the Tamil Nadu Act 8 of 2021 has been enacted only based on adequate authenticated data on population of the Most Backward Classes and Denotified Communities enumerated by the Tamil Nadu Second Backward Classes Commission in the year 1983 and hence, it is valid in the eye of law."

He stated that the Government's argument is based on authenticated data on population. He argued that division could not have been made according to population. This he contended was made clear by Indra Sawhney's judgment -

"We must, however, point out that Clause (4) speaks of adequate representation and not proportionate representation. Adequate representation cannot be read as proportionate representation. Principle of proportionate representation is accepted only in Articles 330 and 332 of the Constitution and that too for a limited period. These articles speak of reservation of seats in Lok Sabha and the State Legislatures in favour of Scheduled Tribes and Scheduled Castes proportionate to their population, but they are only temporary and special provisions. It is therefore not possible to accept the theory of proportionate representation though the proportion of population of backward classes to the total population would certainly be relevant. Just as every power must be exercised reasonably and fairly, the power conferred by Clause (4) of Article 16 should also be exercised in a fair manner and within reasonably limits - and what is more reasonable than to say that reservation under Clause (4) shall not exceed 50% of the appointments or posts, barring certain extraordinary situations as explained hereinafter."

Reliance was also placed on 2022 judgment in Jarnail Singh & Ors. v. Lachhmi Narain Gupta & Ors.

"ADEQUACY

30. In R.K. Sabharwal (supra), it was observed that State Governments may take the total population of a particular Backward Class and its representation in the State services for the purpose of coming to a conclusion that there is inadequate representation in the State services. In M. Nagaraj (supra), this Court was of the considered view that the exercise of collecting quantifiable data depends on numerous factors, with conflicting claims to be optimised by the administration in the context of local prevailing conditions in public employment. As equity, justice and efficiency are variable factors and are context-specific, how these factors should be identified and counter-balanced will depend on the facts and circumstances of each case. The attempt of the learned Attorney General for India to impress upon this Court that the proportion of SCs and STs in the population of India should be taken as the test for determining whether they are adequately represented in promotional posts, did not yield results. This Court inJarnail Singh (supra) found no fault with M. Nagaraj (supra) regarding the test for determining the adequacy of representation in promotional posts in the State. While emphasising the contrast in the language used between Article 330 and Articles 16(4-A) and 16(4-B) of the Constitution, this Court declined the invitation of the learned Attorney General for India to hold that the proportion of SCs and STs to the population of India should be the test for determining inadequacy of representation in promotional posts. Therefore, we are not persuaded to express any opinion on this aspect. It is for the State to assess the inadequacy of representation of SCs and STs in promotional posts, by taking into account relevant factors."

Their entire case rests on one aspect and that is population. This cannot be the basis for classification and sub-classification. Your data is of the year 1983. You have to have contemporary data other than population to substantiate your case."

No Data Collected

Dr. Dhavan asserted that classification is done on the basis of extent of discrimination or extent of disadvantage.

"How classification is done is, two factors are relied on - extent of discrimination and extent of disadvantage. Are these factors there? Of course they are MBCs, but can you go further on the basis of one factor?"

He argued that considering the lack of data, the foundation of classification is under challenge in the present case.

"There is no foundation to the classification of MBC into unequal proportions even if permissible. No substantiated recommendation to support it..the only recommendation came from the Chairman of the Commission on his own without reference to the Backward Classes Commission. No data exists to support the Act… Before introduction of the Act the State has not collected any supporting material to show that the Vanniyars have not been able to compete with other extremely marginalised communities…The letter of the Commissioner alone is not sufficient to provide internal reservation to the Vanniyar community. There are 38 districts in Tamil Nadu…as per the report of Sattanathan Commission the population of the Vanniyars is higher in the north districts. The Vanniyar population is less in other districts. If 10.5% reservation is given all over the State, it would prevent the other MBCs in getting admission to education institutions and government jobs. Candidates from the community would get automatically selected without there being competition."

Classification cannot be only on the basis of caste

He submitted -

"The use of the word 'only' in Articles 15 and 16 suggests that any of the prohibited classification including caste cannot be taken as a basis for clarification unless there is some wider constitutional public purpose. What is that wider purpose here?...It is just based on population."

He referred to the impugned judgment to make good his submissions

"47. In the light of the above judgments of the Honourable Supreme Court, we find that the impugned legislation has been enacted in violation of Articles 15, 16 and 29 of the Constitution of India as the same discriminates only on caste and it also provides caste based reservation by treating one caste, viz., "Vanniakula Kshatriya" including 'Vanniyar', 'Vanniya', 'Vannia Gounder', 'Gounder' or 'Kander', 'Padayachi', 'Palli' and 'Agnikula Kshatriya', as separate class while treating the similar castes differently. By doing so, the respondents have shown discrimination between one caste having 6 sub-castes and 115 other castes, as the impugned Act tried to give higher proportion of reservation to one caste and deprive the others. Vanniyar caste who are issued with single caste certificate in the lists of MBCs is treated as separate class, when the name of the caste in every other respect, the Vanniyar caste, is similar to other castes in the MBCs.

48. We also find that none of the remaining 115 Communities was given separate reservation, as it has been done in the case of Vanniyar caste. It is also pertinent to note that no caste basis reservation has been given in respect of any of the communities enlisted under the Notification. Articles 15(4), 16(4) and Article 14 of the Constitution of India, prohibit reservation on caste basis. Reservation can only be on the basis of the community and not on the basis of the caste.

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."

Equality Replaced by Classification

He submitted that micro-classification cannot be permitted to the extent that principles of equality are replaced by such classification as stated in Col. A.S. Iyer v. Balasubramanyam 1980 AIR 452.

"The doctrine of classification is only a subsidiary rule evolved by courts to give a practical content to the said doctrine. Overemphasis on the doctrine of classification or an anxious and sustained attempt to discover some basic for classification may gradually and imperceptibly deprive the article of its glorious content. That process would inevitably end in substituting the doctrine of classification for the doctrine of equality; the fundamental right to equality before the law and the equal protection of the laws may be replaced by the doctrine of classification."

Arguing on the issue of arbitrariness of the 2021 Act, he submitted -

"This is exactly what has been done here. This is also arbitrary. Once something is treated as a group, it cannot be subdivided because that would be micro-classification. It is unfortunate that politics drives reservation, not needs, not disability."

Senior Advocate. Mr. S. Nagamuthu appearing for respondent in one of the batch matters traced the historical background of the 10.5% internal reservation. In 1954 the reservation was increased to 16% for SC/STs and 25% to Backward classes. In 1955, by GO it was increased and total reservation became 41%. In 1957, for the first time Backwards communities were sub-classified as Backward Classes and Most Backward Classes only for the purpose of granting educational concessions. In 1969 came the Sattanathan Commission, which did not have data for the year 1971, it took caste based data of 1921 by applying some formula. The Commision did not recommend sub-classification. It did not recommend that the Vanniakula Kshatriya community be included in the Most Backward Classes. In 1972, for the first time Vanniakula Kshatriyas were included in the Most Backward Classes. On 13.04.1982 Ambashankar Commission was constituted. 14 members of the Commission disagreed with the Chairperson. He argued that under such circumstances the Report of the Chairman cannot be the recommendation of the Commission. A separate recommendation was provided by the majority. He submitted that recommendation of the Commissioner was his individual report which was not even accepted by the Government. In order to assess backwardness the Chairperson took certain indications. For social backwardness he took three indicators, for each indicator he awarded 3 points; for educational backwardness he took three indicators and each was awarded 2 points. According to the Commission's recommendation there would not be a classification of Backward Classes and Most Backward Classes. Instead, it recommended only compartmentalisation for Backward Classes.

In 2008, Janarthanam Commission was constituted. Mr. Nagamuthu pointed out that the said Commission's Report could not be accepted for the following reasons -

  1. It was an individual report of the Chairperson. Other seven members had rejected the recommendations.
  2. The report was based on the Ambashankar Commission Report, which was rejected by the Government.
  3. Data collected based on the 1921 caste census was adopted by the Janarthanam Commission.

The Thanikachalam Commission was entrusted with the mandate to look into the internal reservation within Most Backward Classes. The Commission did not submit any data. Another Commission was set in 2020, which also did not turn in the report. Thereafter, the Government wrote a letter to Justice Thanikachalam 18.02.2021 asking for his opinion. On 22.02.2021 he provided his opinion. Mr. Nagamuthu highlighted that the legislation was brought to light in a hurried manner. It was contended that the exercise of granting 10.5% reservation was not on the basis of any quantifiable data.

Senior Advocate, Mr. K.M.Vijayan appearing for respondent in one of the batch matters argued that when the Act is not ambiguous then external aid need not be relied on for interpretation of the same. On the said basis the Court is to examine the provisions of the Constitution. He re-emphasised the submission made by Mr. Sankaranarayanan with respect to the applicability of the State list in the absence of the Presidential list under Article 342A.

Senior Advocate, Mr. Colin Gonsalves appearing for another set of respondents referred to the analysis of the raw data by the Ambashankar Commission. He pointed out that the Commission found that on four or five grounds the Vanniyar Community was the most advanced of the Backward Classes. Demonstrating from the report that in medical entrance and engineering examinations the Vanniyar community had secured the greatest proportion of seats. He emphasised that their representation in services and legislature is also significant. From 1952-2021, 520 MLAs have been elected from the Vanniyar community. Therefore, he submitted that in the State of Tamil Nadu, one of the most advanced communities within the Most Backward Classes was getting the benefit of a chunk of the reservation.

Senior Advocate, Mr. Balasubramaniam argued on legislative incompetence, quantifiable data and the classification on the basis of caste. Senior Advocate, Mr. Prakash apprised the Bench that the Apex Court had noted in SV Joshi's case that as of 2010 there was no quantifiable data for the State of Tamil Nadu. He pointed out that the stand of the State in SV Joshi was that there was no quantifiable data till then. Senior Advocate, Mr. Jaideep Gupta submitted that the exercise of collecting quantifiable data had not been done by the Tamil Nadu Government even after the SV Joshi judgment.

Rebuttal Arguments

Senior Advocate, Mr. Abhishek Singhvi contradicted the argument that the list of SEBCs had been frozen by the Jaishri Patel judgment and cannot be altered. He submitted that the list had not changed and had remained the same since pre 1994. Only a sub-classification was done by the 2021 Act. It was asserted that the Apex Court could not have intended in the Jaishri Patel judgment to have overturned the decisions laid down in Indra Sawhney, Basant and Davinder which recognised sub-classification. It would therefore mean that the boundaries of reservation could not have been changed, but sub-classification within the existing boundaries was permissible. It was asserted that the basis of judgment was clarified by way of the 105th Constitutional Amendment Act and not the judgment itself. It was further argued that when no substantive changes are made by the Amending Act, it is retrospective. The 105th Amendment is not a substantive amendment.

Senior Advocate, Mr Rakesh Dwivedi submitted that the identification was done on the same day 1994 Act came into force and the 102nd Amendment would not have any effect on the sub-classification made by the State. Emphasis was given on the arguments that caste can form a class in the Indian context, as had been observed in Indra Sawhney judgment. It was pointed out that the 1994 Act and Government Notification identifying communities were not challenged by the original writ petitioners.

[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]

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