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

On Wednesday, the Supreme Court, opined that the matter pertaining to challenge to the Madras High Court order quashing Tamil Nadu law ("2021 Act") that provided 10.5% reservation in education and jobs for the Vanniyar community did not involve any Constitutional interpretation and therefore, need not be referred to a Larger Bench.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 ...

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

Sohini Chowdhury

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